Warrant - ScreamingMedia Inc. and Mad Dogs & Englishmen
THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE
OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL FOR THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.
No.1 Number of Shares:8,928
Date of Issuance: August 16, 1999 Subject To Adjustment in The Manner
Described Below
SCREAMINGMEDIA INC.
WARRANT
ScreamingMedia Inc., a Delaware corporation (the "Company"), for value
received, hereby certifies that Mad Dogs & Englishmen, a _________ corporation,
or its registered assigns (the "Registered Holder") is entitled, subject to the
terms set forth below, to purchase from the Company, at any time on or after the
date hereof until 5:00 p.m., New York City time, on August 16, 2004 (the
"Exercise Period"), in whole such number of fully paid and nonassessable shares
of the Company's common stock $.01 par value per share ("Common Stock"), at a
price of $11.20 per share (the "Exercise Price"). Such number of shares shall
equal to a hundred thousand dollars ($100,000) divided by the Exercise Price
rounded to the nearest whole share. The shares shall vest in eight equal
quarterly installments, with the first installment vesting on August 16, 1999
and the balance to vest quarterly at the rate of one-eighth of the total number
of shares. In connection with the issuance of this Warrant and concurrent with
its signing, the Company and the Registered Holder have entered into a six month
agency agreement for general advertising services. This warrant will only be in
effect and shares will only vest so long as the agency agreement is in effect.
As used herein, the term "Warrant Stock" shall mean the Common Stock issuable
upon exercise of this Warrant.
1. EXERCISE.
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(a) This warrant (the "Warrant") may be exercised by the Registered Holder
at any time during the Exercise Period by surrendering this Warrant, with the
purchase form appended hereto as Exhibit A duly executed by such Registered
Holder or by such Registered Holder's duly authorized attorney, at the principal
office of the Company, or at such other office or agency as the Company may
designate, accompanied by payment in full by cash, check or wire transfer in the
amount of the Exercise Price multiplied by the number of shares of Warrant Stock
for which this Warrant is being exercised (the "Purchase Price").
(b) The exercise of this Warrant, if any, shall be deemed to have been
effected immediately prior to the close of business on the day on which this
Warrant shall have been surrendered to the Company as provided in Section 1(a)
above. At such time, the person or persons in whose name or names any
certificates for Warrant Stock shall be issuable upon such exercise as provided
in Section 1(d) below shall be deemed to have become the Registered Holder or
Registered Holders of record of the Warrant Stock represented by such
certificates.
(c) NET ISSUE EXERCISE.
(i) Notwithstanding the payment provisions set forth above, in lieu of
exercising this Warrant in the manner provided above in Section 1(a), the
Registered Holder may elect to receive shares of Warrant Stock equal to the
value of this Warrant by surrender of this Warrant at the principal office of
the Company, together with notice of such election, in which event the Company
shall issue to Registered Holder a number of shares of Warrant Stock computed
using the following formula:
X = Y (A - B)
------------
A
Where X= The number of shares of Warrant Stock to be issued to the
Registered Holder.
Y= The number of shares of Warrant Stock as to which the Warrant
is being exercised.
A= The Fair Market Value (as defined below) of one share of
Warrant Stock (at the date of such calculation).
B= The Exercise Price (as adjusted to the date of such
calculation).
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(ii) For purposes of this Section 1(c), the Fair Market Value of the
Warrant Stock shall be determined in good faith by written resolution of the
Company's Board of Directors; provided, however, that if this Warrant is
exercised in connection with an Initial Public Offering, the fair market
value of the Warrant Stock shall be equal to the final price set for the
Common Stock in the Initial Public Offering; provided, further that if this
Warrant is exercised following the Initial Public Offering, so long as the
Common Stock is listed on a national securities exchange, the fair market
value of the Warrant Stock shall be equal to the final sale price for the
Common Stock on the business day immediately preceding the date on which
this Warrant is surrendered at the principal office of the Company in
accordance with the provisions hereof.
(d) As soon as practicable after the exercise of this Warrant, and in
any event within 20 days thereafter, the Company at its expense will cause
to be issued in the name of, and delivered to, the Registered Holder, or as
such Registered Holder (upon payment by such Registered Holder of any
applicable transfer taxes) may direct, a certificate or certificates for the
number of shares of Warrant Stock to which such Registered Holder shall be
entitled.
2. ADJUSTMENTS.
(a) If outstanding shares of the Warrant Stock shall be subdivided into a
greater number of shares or a dividend in Warrant Stock shall be paid in respect
of Warrant Stock, the Exercise Price in effect immediately prior to such
subdivision or at the record date of such dividend shall simultaneously with the
effectiveness of such subdivision or immediately after the record date of such
dividend be proportionately reduced. If outstanding shares of Warrant Stock
shall be combined into a smaller number of shares, the Exercise Price in effect
immediately prior to such combination shall, simultaneously with the
effectiveness of such combination, be proportionately increased. When any
adjustment is required to be made in the Exercise Price, the number of shares of
Warrant Stock purchasable upon the exercise of this Warrant shall be changed to
the number determined by dividing (i) an amount equal to the number of shares
issuable upon the exercise of this Warrant immediately prior to such adjustment,
multiplied by the Exercise Price in effect immediately prior to such adjustment,
by (ii) the Exercise Price in effect immediately after such adjustment.
(b) In case of any reclassification or change of the outstanding securities
of the Company or of any reorganization of the Company (or any other
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corporation the stock or securities of which are at the time receivable upon the
exercise of this Warrant) or any similar corporate reorganization on or after
the date hereof, then and in each such case the Registered Holder of this
Warrant, upon the exercise hereof at any time after the consummation of such
reorganization, merger or conveyance, shall be entitled to receive, in lieu of
the stock or other securities and property receivable upon the exercise hereof
prior to such consummation, the stock or other securities or property to which
such Registered Holder would have been entitled upon such consummation if such
Registered Holder had exercised this Warrant immediately prior thereto, all
subject to further adjustment as provided in paragraph (a); and in each such
case, the terms of this Section 2 shall be applicable to the shares of stock or
other securities properly receivable upon the exercise of this Warrant after
such consummation.
(c) When any adjustment is required to be made in the Exercise Price, the
Company shall promptly mail to the Registered Holder a certificate setting forth
the Exercise Price after such adjustment and setting forth a brief statement of
the facts requiring such adjustment. Such certificate shall also set forth the
kind and amount of stock or other securities or property into which this Warrant
shall be exercisable following the occurrence of any of the events specified in
Section 2(a) or (b) above.
3. TERMINATION UPON REORGANIZATION. Simultaneous with the closing of a
merger, consolidation, acquisition of all or substantially all of the assets or
stock, of the Company by another entity (the "Surviving Entity") as a result of
which the stockholders of the Company will own less than 50% of the voting
capital stock of the surviving entity or the entity that controls such surviving
entity immediately after the transaction or, in the case of a sale of assets,
the Company will own after the transaction less than 50% of the assets owned by
the Company prior to the transaction (collectively, a "Reorganization") prior to
the expiration of the Exercise Period, as a result of which the stockholders of
the Company receive cash, stock or other property in respect of their shares of
Warrant Stock, this Warrant shall be canceled and all rights granted hereunder
shall terminate; provided, however, that (a) the Company shall have delivered to
the Registered Holder notice of the Reorganization no less than thirty (30)
business days before the date scheduled for closing of the Reorganization, and
(b) at the closing of such Reorganization this Warrant will be exchanged for a
warrant to purchase such kind and number of shares of capital stock or other
securities or property of the Company or the Surviving Entity to which the
Registered Holder would have been entitled if it had held the
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Warrant Stock issuable upon the exercise hereof immediately prior to such
Reorganization, which warrant shall have the same terms and conditions hereof.
4. TRANSFERS. Neither this Warrant nor any securities purchased upon
exercise of this Warrant may be transferred unless (i) such transfer is
registered under the Securities Act and any applicable state securities or blue
sky laws, (ii) an opinion of counsel, satisfactory to the Company, to the effect
that the transfer is exempt from the prospectus delivery and registration
requirements of the Securities Act and any applicable state securities or blue
sky laws has been delivered to the Company, or (iii) the Company otherwise
satisfies itself that such transfer is exempt from registration. This Warrant,
any replacement hereof and any certificate representing a security issued
pursuant to the exercise hereof, shall bear a legend substantially to the
foregoing effect.
5. REGISTERED HOLDER ITS OWNER. The Company may deem and treat the
Registered Holder of this Warrant as the absolute owner hereof for all purposes
regardless of any notice to the contrary.
6. NO IMPAIRMENT. The Company will not, by amendment of its charter or
through reorganization, consolidation, merger, dissolution, sale of assets or
any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will (subject to Section 15 below) at
all times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the Registered Holder of this Warrant against impairment.
7. EXPIRATION. This Warrant (and the right to purchase securities upon
exercise hereof) shall be void and all rights represented thereby shall cease
unless exercised during the Exercise Period. All restrictions set forth herein
on the shares of capital stock issued upon exercise of any rights hereunder
shall survive such exercise and expiration of the rights granted hereunder.
8. NOTICES OF CERTAIN TRANSACTIONS. In case:
(a) the Company shall establish a record date for the purpose of entitling
or enabling the holders of its Warrant Stock (or other stock or securities at
the time deliverable upon the exercise of this Warrant) to receive any dividend
or other distribution, or to receive any right to subscribe
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for or purchase any shares of stock of any class or any other securities, or to
receive any other right, to subscribe for or purchase any shares of stock of any
class or any other securities, or to receive any other right, or
(b) of any capital reorganization of the Company, any reclassification of
the capital stock of the Company, any consolidation or merger of the Company,
any consolidation or merger of the Company with or into another corporation
(other than a consolidation or merger in which the Company is the surviving
entity), or any transfer of all or substantially all of the assets of the
Company, or
(c) of the voluntary or involuntary dissolution, liquidation or winding-up
of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Registered Holder of this Warrant a notice specifying, as the case may be, (i)
the applicable record date for the purpose of such dividend, distribution or
right and stating the amount and character of such dividend distribution or
right, or (ii) the effective date on which such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation,
winding-up, redemption or conversion is to take place, and the time, if any is
to be fixed, as of which the holders of record of Common Stock shall be entitled
to exchange their shares of Common Stock for the securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
transfer, dissolution, liquidation, winding-up, redemption or conversion.
9. RESERVATION OF STOCK. The Company will at all times reserve and keep
available, solely for the issuance and delivery upon the exercise of this War
rant, such shares of Warrant Stock and other stock, securities and property, as
from time to time shall be issuable upon the exercise of this Warrant.
10. EXCHANGE OF WARRANTS. Upon the surrender by the Registered Holder of any
Warrant or Warrants, properly endorsed, to the Company at the principal office
of the Company, the Company will, subject to the provisions of Section 4 hereof,
issue and deliver to or upon the order of such Registered Holder, at the
Company's expense, a new Warrant or Warrants of like tenor, in the name of such
Registered Holder or as such Registered Holder (upon payment by such Registered
Holder of any applicable transfer taxes) may direct, calling in the aggregate on
the face or faces thereof for the number of shares of Warrant Stock called for
on the face or faces of the Warrant or Warrants so surrendered.
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11. REPLACEMENT OF WARRANTS. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of an
indemnity agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor.
12. MAILING OF NOTICES. Any notice required or permitted pursuant to
this Warrant shall be in writing and shall be deemed sufficient when delivered
personally or sent by telegram or fax or forty-eight (48) hours after being
deposited in the U.S. mail, as certified or registered mail, with postage
prepaid, addressed as follows:
If to the Registered Holder:
Mad Dogs & Englishmen
126 Fifth Avenue
New York, NY 10011
Attn: Chief Executive Officer
with a copy to:
If to the Company:
ScreamingMedia Inc.
601 West 26th Street, 13th Floor
New York, NY 10001
Fax: (212) 691-1483
Attention: General Counsel
with a copy to:
David J. Goldschmidt, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
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New York, New York 10036-6522
Fax: (212) 735-2000
Each of the foregoing parties shall be entitled to specify a different
address by giving five days' advance written notice as aforesaid to the other
parties. All such notices and communications shall be deemed to have been
received (i) in the case of personal delivery, on the date of such delivery and
(ii) in the case of mailing, on the third business day following the date of
such mailing.
13. WARRANT HOLDER RIGHTS.
(a) RIGHTS IN CONNECTION WITH WARRANT STOCK. Upon exercise of all or
part of this Warrant, the Registered Holder of the Warrant Stock shall be
entitled to all rights as a stockholder of the Company with respect to such
shares of Warrant Stock.
(b) NO RIGHTS AS STOCKHOLDER. Until the exercise of this War rant, the
Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a stockholder of the Company; and except as otherwise provided
herein, no dividend or interest shall be payable or shall accrue in respect of
this Warrant or the Warrant Stock purchasable hereunder unless, until and to the
extent that this Warrant shall be exercised.
14. NO FRACTIONAL SHARES. No fractional shares of Warrant Stock will be
issued in connection with any exercise hereunder. In lieu of any fractional
shares which would otherwise be issuable, the Company shall pay cash equal to
the product of such fraction multiplied by the fair market value of one share of
Warrant Stock on the applicable date, determined as provided in Section
1(c)(ii).
15. AMENDMENT OR WAIVER. This Warrant or any provision thereof may be
changed, waived, discharged or terminated only by a statement in writing signed
by the party against which enforcement of the change, waiver, discharge or
termination is sought.
16. HEADINGS. The headings in this Warrant are for purposes of
reference only and shall not limit or otherwise affect the meaning of any
provision of this Warrant.
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17. GOVERNING LAW. THIS WARRANT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
18. SUCCESSORS AND ASSIGNS. This Warrant shall be binding upon the
Company and inure to the benefit of Mad Dogs & Englishmen and its successors and
assigns.
19. INVESTMENT INTENT. By accepting this Warrant, the Registered Holder
represents that it is acquiring this Warrant for investment and not with a view
to, or for sale in connection with, any distribution thereof.
IN WITNESS WHEREOF, THE Company has executed this Warrant as of the
date first written above.
ScreamingMedia Inc.
By:/s/ William P. Kelly
-----------------------
William P. Kelly
General Counsel
Mad Dogs and Englishmen
By: /s/ Jeffrey M. Soinski
--------------------------
Jeffrey M. Soinski
Managing Partner and
CEO
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EXHIBIT A
FORM OF PURCHASE
[To be executed only upon exercise of Warrant]
To ScreamingMedia Inc.:
The undersigned registered holder of the within Warrant hereby irrevocably
exercises such Warrant for, and purchases thereunder, ______ (_______) shares of
Warrant Stock of ScreamingMedia Inc. 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 must conform in all respects to name
of holder as specified on the face of Warrant)
(Street Address)
(City)(State)(Zip Code)