Current Report — Form 8-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 8-K Current Report on Form 8-K 4 13K
2: EX-3.1 Certificate of Designations 19 70K
3: EX-10.1 Securities Purchase Agreement 27 128K
4: EX-10.2 Warrant Issued to Elliot Associates, L.P. 14 58K
5: EX-10.3 Warrant Issued to Westgate International, L.P. 13 58K
6: EX-10.4 Registration Rights Agreement 20 74K
7: EX-99.1 Press Release 2 11K
EX-10.2 — Warrant Issued to Elliot Associates, L.P.
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THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER REGULATION D PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT") THIS WARRANT SHALL NOT CONSTITUTE AN OFFER
TO SELL NOR A SOLICITATION OF AN OFFER TO BUY THE SECURIITES IN ANY JURISDICTION
IN WHICH SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL. THE SECURIITES ARE
"RESTRICTED" AND MAY NOT BE RESOLD OR TRANSFERRED EXCEPT AS PERMITTED UNDER THE
ACT PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
COMMON STOCK PURCHASE WARRANT
To Purchase Shares of $0.001 Par Value Common Stock ("Common Stock") of
GENESISINTERMEDIA.COM, INC.
THIS CERTIFIES that, for value received, ELLIOTT ASSOCIATES, L.P. (the
"Investor") is entitled, upon the terms and subject to the conditions
hereinafter set forth, at any time on or after the date hereof and on or prior
to 8:00 p.m. New York City Time on April 27, 2003 (the "Termination Date"), but
not thereafter, to subscribe for and purchase from GenesisIntermedia.com, Inc.,
a Delaware corporation (the "Company"), 56,000 shares of Common Stock (the
"Warrant Shares") at an Exercise Price equal to $17.74 per share [115% of the
Closing Price] (as adjusted from time to time pursuant to the terms hereof, the
"Exercise Price"). The Exercise Price and the number of shares for which the
Warrant is exercisable shall be subject to adjustment as provided herein. This
Warrant is being issued in connection with the Securities Purchase Agreement
dated April 28, 2000 (the "Purchase Agreement") entered into between the Company
and the Investor. Capitalized terms used herein and not otherwise defined shall
have the meaning ascribed thereto in the Purchase Agreement.
1. Title of Warrant. Prior to the expiration hereof and subject to
compliance with applicable laws, this Warrant and all rights hereunder are
transferable, in whole or in part, at the office or agency of the Company by the
Holder hereof in person or by duly authorized attorney, upon surrender of this
Warrant together with (a) the Assignment Form annexed hereto properly endorsed,
and (b) any other documentation reasonably necessary to satisfy the Company that
such transfer is in compliance with all applicable securities laws. The term
"Holder" shall refer to the Investor or any subsequent transferee of this
Warrant.
2. Authorization of Shares. The Company covenants that all shares of Common
Stock which may be issued upon the exercise of rights represented by this
Warrant will, upon exercise of the rights represented by this Warrant and
payment of the Exercise Price as set forth herein will be duly authorized,
validly issued, fully paid and nonassessable and free from all taxes, liens and
charges in respect of the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue or otherwise specified
herein).
3. Exercise of Warrant.
(a) The Holder may exercise this Warrant, in whole or in part, at any time
and from time to time, by delivering to the offices of the Company or any
transfer agent for the Common Stock this Warrant, together with a Notice of
Exercise in the form annexed hereto specifying the number of Warrant Shares with
respect to which this Warrant is being exercised, together with payment to the
Company of the Exercise Price therefor.
In the event that the Warrant is not exercised in full, the number of
Warrant Shares shall be reduced by the number of such Warrant Shares for which
this Warrant is exercised and/or surrendered, and the Company, at its expense,
shall within three (3) Trading Days (as defined below) issue and deliver to the
Holder a new Warrant of like tenor in the name of the Holder or as the Holder
(upon payment by Holder of any applicable transfer taxes) may request,
reflecting such adjusted Warrant Shares.
Certificates for shares of Common Stock purchased hereunder shall be
delivered to the Holder hereof within two (2) Trading Days after the date on
which this Warrant shall have been exercised as aforesaid. The Holder may
withdraw its Notice of Exercise at any time if the Company fails to timely
deliver the relevant certificates to the Holder as provided in this Agreement. A
Notice of Exercise shall be deemed sent on the date of delivery if delivered
before 8:00 p.m. Eastern Time on such date, or the day following such date if
delivered after 8:00 p.m. East Time; provided that the Company is only obligated
to deliver Warrant Shares against delivery of the Exercise Price from the holder
hereof and surrender of this Warrant (or appropriate affidavit and/or indemnity
in lieu thereof).
In lieu of delivering physical certificates representing the Warrant Shares
issuable upon conversion of this Warrant, provided the Company's transfer agent
is participating in the Depository Trust Company ("DTC") Fast Automated
Securities Transfer ("FAST") program, upon request of the Holder, the Company
shall use its best efforts to cause its transfer agent to electronically
transmit the Warrant Shares issuable upon exercise to the Holder, by crediting
the account of the Holder's prime broker with DTC through its Deposit Withdrawal
Agent Commission ("DWAC") system. The time periods for delivery described above
shall apply to the electronic transmittals through the DWAC system. The Company
agrees to coordinate with DTC to accomplish this objective.
Notwithstanding the foregoing provision regarding payment of the Exercise
Price in cash, during any time that the Warrant Shares are not subject to an
effective Registration Statement as required by the terms of the Registration
Rights Agreement (as defined in the Purchase Agreement), the Holder may elect to
receive a reduced number of Warrant Shares in lieu of tendering the Exercise
Price in cash. In such case, the number of Warrant Shares to be issued to the
Holder shall be computed using the following formula:
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X = Y x (A-B)
A
where: X = the number of Warrant Shares to be issued to the Holder;
Y = the number of Warrant Shares to be exercised under this Warrant
Certificate;
A = the Market Value (defined below) of one share of Common Stock; and
B = the Exercise Price.
(b) The term "Trading Day" means (x) if the Common Stock is not listed on
the New York or American Stock Exchange but sale prices of the Common Stock are
reported on Nasdaq National Market or another automated quotation system, a day
on which trading is reported on the principal automated quotation system on
which sales of the Common Stock are reported, (y) if the Common Stock is listed
on the New York Stock Exchange or the American Stock Exchange, a day on which
there is trading on such stock exchange, or (z) if the foregoing provisions are
inapplicable, a day on which quotations are reported by National Quotation
Bureau Incorporated.
The term "Market Value" means the closing bid price of the Common Stock (as
reported by Bloomberg, L.P.) on the day before the Notice of Exercise and this
Warrant are duly surrendered to the Company for a full or partial exercise
hereof. Notwithstanding the foregoing definition, if the Common Stock is not
listed on a national securities exchange or quoted in the Nasdaq System at the
time said Notice of Exercise is submitted to the Company in the foregoing
manner, the Market Value of the Common Stock shall be as reasonably determined
in good faith by the Board of Directors of the Company and such Holder, unless
the Company shall become subject to a merger, acquisition, or other
consolidation pursuant to which the Company is not the surviving entity, in
which case the Market Value of the Common Stock shall be deemed to be the value
received by the Company's common shareholders pursuant to the Company's
acquisition (subject to Section 12 below).
4. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of issuance of a fractional share upon any exercise hereunder,
the Company will either round up to nearest whole number of shares or pay the
cash value of that fractional share calculated on the basis of the Market Value.
5. Charges, Taxes and Expenses. Issuance of certificates for shares of
Common Stock upon the exercise of this Warrant shall be made without charge to
the Holder hereof for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificate, all of which taxes and expenses
shall be paid by the Company, and such certificates shall be issued in the name
of the Holder of this Warrant or in such name or names as may be directed by the
Holder of this Warrant; provided, however, that in the event certificates for
shares of Common Stock are to be issued in a name other than the name of the
Holder of this Warrant, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by the Holder
hereof; and provided further, that the Company shall not be required to pay any
tax or taxes which may be payable in respect of any transfer involved in the
issuance of any Warrant certificates or any certificates for the Warrant Shares
other than the issuance of a Warrant Certificate to the Holder in connection
with the Holder's surrender of a Warrant Certificate upon the exercise of all or
less than all of the Warrants evidenced thereby.
6. Closing of Books. The Company will at no time close its shareholder
books or records in any manner which interferes with the timely exercise of this
Warrant.
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7. No Rights as Shareholder until Exercise. Subject to Section 12 of this
Warrant and the provisions of any other written agreement between the Company
and the Investor, the Investor shall not be entitled to vote or receive
dividends or be deemed the holder of Warrant Shares or any other securities of
the Company that may at any time be issuable on the exercise hereof for any
purpose, nor shall anything contained herein be construed to confer upon the
Investor, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issuance of stock,
reclassification of stock, change of par value, or change of stock to no par
value, consolidation, merger, conveyance or otherwise) or to receive notice of
meetings, or to receive dividends or subscription rights or otherwise until the
Warrant shall have been exercised as provided herein. However, at the time of
the exercise of this Warrant pursuant to Section 3 hereof, the Warrant Shares so
purchased hereunder shall be deemed to be issued to such Holder as the record
owner of such shares as of the close of business on the date on which this
Warrant shall have been exercised.
8. Assignment and Transfer of Warrant. This Warrant may be assigned by the
surrender of this Warrant and the Assignment Form annexed hereto duly executed
at the office of the Company (or such other office or agency of the Company or
its transfer agent as the Company may designate by notice in writing to the
registered Holder hereof at the address of such Holder appearing on the books of
the Company); provided, however, that this Warrant may not be resold or
otherwise transferred except (i) in a transaction registered under the
Securities Act of 1933, as amended (the "Act"), or (ii) in a transaction
pursuant to an exemption, if available, from registration under the Act and
whereby, if reasonably requested by the Company, an opinion of counsel
reasonably satisfactory to the Company is obtained by the Holder of this Warrant
to the effect that the transaction is so exempt. If this Warrant is duly
assigned in accordance with the terms hereof, then the Company agrees, upon the
request of the assignee, to amend or supplement promptly any effective
registration statement covering the Warrant Shares so that the direct assignee
of the original holder is added as a selling stockholder thereunder.
9. Loss, Theft, Destruction or Mutilation of Warrant; Exchange. The Company
represents warrants and covenants that (a) upon receipt by the Company of
evidence and/or indemnity reasonably satisfactory to it of the loss, theft,
destruction or mutilation of any Warrant or stock certificate representing the
Warrant Shares, and in case of loss, theft or destruction, of indemnity
reasonably satisfactory to it, and (b) upon surrender and cancellation of such
Warrant or stock certificate, if mutilated, the Company will make and deliver a
new Warrant or stock certificate of like tenor and dated as of such
cancellation, in lieu of this Warrant or stock certificate, without any charge
therefor. This Warrant is exchangeable at any time for an equal aggregate number
of Warrants of different denominations, as requested by the holder surrendering
the same, or in such denominations as may be requested by the Holder following
determination of the Exercise Price. No service charge will be made for such
registration or transfer, exchange or reissuance.
10. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the
taking of any action or the expiration of any right required or granted herein
shall be a Saturday, Sunday or a legal holiday, then such action may be taken or
such right may be exercised on the next succeeding day not a legal holiday.
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11. Effect of Certain Events. If at any time while this Warrant or any
portion thereof is outstanding and unexpired there shall be a transaction (by
merger or otherwise) in which more than 50% of the voting power of the Company
is disposed of (collectively, a "Sale or Merger Transaction"), the Holder of
this Warrant shall have the right thereafter to purchase, by exercise of this
Warrant and payment of the aggregate Exercise Price in effect immediately prior
to such action, the kind and amount of shares and other securities and property
which it would have owned or have been entitled to receive after the happening
of such transaction had this Warrant been exercised immediately prior thereto,
subject to further adjustment as provided in Section 12.
12. Adjustments of Exercise Price and Number of Warrant Shares.
The number of and kind of securities purchasable upon exercise of this
Warrant and the Exercise Price shall be subject to adjustment from time to time
as set forth in this Section 12.
(a) Subdivisions, Combinations, Stock Dividends and other Issuances. If the
Company shall, at any time while this Warrant is outstanding, (A) pay a stock
dividend or otherwise make a distribution or distributions on any equity
securities (including instruments or securities convertible into or exchangeable
for such equity securities) in shares of Common Stock, (B) subdivide outstanding
shares of Common Stock into a larger number of shares, or (C) combine
outstanding Common Stock into a smaller number of shares, then each Affected
Exercise Price (as defined below) shall be multiplied by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
before such event and the denominator of which shall be the number of shares of
Common Stock outstanding after such event. Any adjustment made pursuant to this
Section 12(a) shall become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or distribution
and shall become effective immediately after the effective date in the case of a
subdivision or combination. As used herein, the Affected Exercise Prices (each
an "Affected Exercise Price") shall refer to: (i) the Exercise Price and (ii)
each reported price for the Common Stock on the Principal Market (as defined in
the Purchase Agreement) occurring on any Trading Day included in the period used
for determining the Closing Price, which Trading Day occurred before the record
date in the case of events referred to in clause (A) of this subparagraph 12(a)
and the effective date in the case of the events referred to in clauses (B) and
(C) of this subparagraph 12(a). "Closing Price" shall have the meaning set forth
in the Purchase Agreement. The number of shares which may be purchased hereunder
shall be increased proportionately to any reduction in Exercise Price pursuant
to this paragraph 12(a), so that after such adjustments the aggregate Exercise
Price payable hereunder for the increased number of shares shall be the same as
the aggregate Exercise Price in effect just prior to such adjustments.
(b) Other Distributions. If at any time after the date hereof the Company
distributes to holders of its Common Stock, other than as part of its
dissolution, liquidation or the winding up of its affairs, any shares of its
capital stock, any evidence of indebtedness or any of its assets (other than
Common Stock), then the number of Warrant Shares for which this Warrant is
exercisable shall be increased to equal: (i) the number of Warrant Shares for
which this Warrant is exercisable immediately prior to such event, (ii)
multiplied by a fraction, (A) the numerator of which shall be the Fair Market
Value (as defined below) per share of Common Stock on the record date for the
dividend or distribution, and (B) the denominator of which shall be the Fair
Market Value price per share of Common Stock on the record date for the dividend
or distribution minus the amount allocable to one share of Common Stock of the
value (as jointly determined in good faith by the Board of Directors of the
Company and the Holder) of any and all such evidences of indebtedness, shares of
capital stock, other securities or property, so distributed. For purposes of
this Warrant, "Fair Market Value" shall equal the 5 Trading Day average closing
trading price of the Common Stock on the Principal Market (as defined in the
Purchase Agreement) for the 5 Trading Days preceding the date of determination
or, if the Common Stock is not listed or admitted to trading on any Principal
Market, and the average price cannot be determined as contemplated above, the
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Fair Market Value of the Common Stock shall be as reasonably determined in good
faith by the Company's Board of Directors and the Holder. The Exercise Price
shall be reduced to equal: (i) the Exercise Price in effect immediately before
the occurrence of any event (ii) multiplied by a fraction, (A) the numerator of
which is the number of Warrant Shares for which this Warrant is exercisable
immediately before the adjustment, and (B) the denominator of which is the
number of Warrant Shares for which this Warrant is exercisable immediately after
the adjustment.
(c) Merger, etc. If at any time after the date hereof there shall be a
merger or consolidation of the Company with or into or a transfer of all or
substantially all of the assets of the Company to another entity, then the
Holder shall be entitled to receive upon or after such transfer, merger or
consolidation becoming effective, and upon payment of the Exercise Price then in
effect, the number of shares or other securities or property of the Company or
of the successor corporation resulting from such merger or consolidation, which
would have been received by the Holder for the shares of stock subject to this
Warrant had this Warrant been exercised just prior to such transfer, merger or
consolidation becoming effective or to the applicable record date thereof, as
the case may be. The Company will not merge or consolidate with or into any
other corporation, or sell or otherwise transfer its property, assets and
business substantially as an entirety to another corporation, unless the
corporation resulting from such merger or consolidation (if not the Company), or
such transferee corporation, as the case may be, shall expressly assume in
writing the due and punctual performance and observance of each and every
covenant and condition of this Warrant to be performed and observed by the
Company.
(d) Reclassification, etc. If at any time after the date hereof there shall
be a reorganization or reclassification of the securities as to which purchase
rights under this Warrant exist into the same or a different number of
securities of any other class or classes, then the Holder shall thereafter be
entitled to receive upon exercise of this Warrant, during the period specified
herein and upon payment of the Exercise Price then in effect, the number of
shares or other securities or property resulting from such reorganization or
reclassification, which would have been received by the Holder for the shares of
stock subject to this Warrant had this Warrant at such time been exercised.
(e) Exercise Price Adjustment. In the event that the Company issues or
sells any Common Stock or securities which are convertible into or exchangeable
for its Common Stock or any convertible securities, or any warrants or other
rights to subscribe for or to purchase or any options for the purchase of its
Common Stock or any such convertible securities (other than shares or options
issued or which may be issued pursuant to (i) the Company's current employee
option plans or shares issued upon exercise of options, warrants or rights
outstanding on the date of the Agreement and listed in the Company's most recent
periodic report filed under the Exchange Act or in the Purchase Agreement, or
(ii) arrangements with the Investor) at an effective price per share which is
less than the greater of the Exercise Price then in effect or the Fair Market
Value (as described in Section 12(b) above) of the Common Stock on the trading
day next preceding such issue or sale, then in each such case, the Exercise
Price in effect immediately prior to such issue or sale shall be reduced
effective concurrently with such issue or sale to an amount determined by
multiplying the Exercise Price then in effect by a fraction, (x) the numerator
of which shall be the sum of (1) the number of shares of Common Stock
outstanding immediately prior to such issue or sale, plus (2) the number of
shares of Common Stock which the aggregate consideration received by the Company
for such additional shares would purchase at such Fair Market Value or Exercise
Price, whichever is greater, then in effect; and (y) the denominator of which
shall be the number of shares of Common Stock of the Company outstanding
immediately after such issue or sale.
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For the purposes of the foregoing adjustment, in the case of the issuance
of any convertible securities, warrants, options or other rights to subscribe
for or to purchase or exchange for, shares of Common Stock ("Convertible
Securities"), the maximum number of shares of Common Stock issuable upon
exercise, exchange or conversion of such Convertible Securities shall be deemed
to be outstanding, provided that no further adjustment shall be made upon the
actual issuance of Common Stock upon exercise, exchange or conversion of such
Convertible Securities.
The number of shares which may be purchased hereunder shall be increased
proportionately to any reduction in Exercise Price pursuant to this paragraph
12(e), so that after such adjustments the aggregate Exercise Price payable
hereunder for the increased number of shares shall be the same as the aggregate
Exercise Price in effect just prior to such adjustments.
In the event of any such issuance for a consideration which is less than
such Fair Market Value and also less than the Exercise Price then in effect,
than there shall be only one such adjustment by reason of such issuance, such
adjustment to be that which results in the greatest reduction of the Exercise
Price computed as aforesaid.
(f) (i) The terms of any reorganization, consolidation, merger, sale,
transfer or share exchange shall include such terms so as to continue to give to
the holder hereof the right to receive the securities or property set forth in
this Section 12 upon any exercise following any such reclassification,
consolidation, merger, sale, transfer or share exchange.
(ii) In the event of any adjustment in the number of Warrant Shares
issuable hereunder upon exercise, the Exercise Price shall be inversely
proportionately increased or decreased as the case may be, such that aggregate
purchase price for Warrant Shares upon full exercise of this Warrant shall
remain the same. Similarly, in the event of any adjustment in the Exercise
Price, the number of Warrant Shares issuable hereunder upon exercise shall be
inversely proportionately increased or decreased as the case may be, such that
aggregate purchase price for Warrant Shares upon full exercise of this Warrant
shall remain the same.
13. Voluntary Adjustment by the Company. The Company may at its option, at
any time during the term of this Warrant, reduce but not increase the then
current Exercise Price to any amount and for any period of time deemed
appropriate by the Board of Directors of the Company.
14. Notice of Adjustment; Notice of Events. (i) Whenever the number of
Warrant Shares or number or kind of securities or other property purchasable
upon the exercise of this Warrant or the Exercise Price is adjusted, the Company
shall promptly mail to the Holder of this Warrant a notice setting forth the
number of Warrant Shares (and other securities or property) purchasable upon the
exercise of this Warrant and the Exercise Price of such Warrant Shares after
7
such adjustment and setting forth the computation of such adjustment and a brief
statement of the facts requiring such adjustment. (ii) If: (A) the Company shall
declare a dividend (or any other distribution) on its Common Stock; or (B) the
Company shall declare a special nonrecurring cash dividend on or a redemption of
its Common Stock; or (C) the Company shall authorize the granting to all holders
of the Common Stock rights or warrants to subscribe for or purchase any shares
of capital stock of any class or of any rights; or (D) the approval of any
stockholders of the Company shall be required in connection with any
reclassification of the Common Stock of the Company, any consolidation or merger
to which the Company is a party, any sale or transfer of all or substantially
all of the assets of the Company, or any compulsory share exchange whereby the
Common Stock is converted into other securities, cash or property; or (E) the
Company shall authorize the voluntary dissolution, liquidation or winding up of
the affairs of the Company, then the Company shall cause to be mailed to each
Warrant holder at their last addresses as they shall appear upon the Warrant
register of the Company, at least 30 calendar days prior to the applicable
record or effective date hereinafter specified (or such lesser time as is equal
to the period between the date of fixing such record or effective date and such
record or effective date, but in no event less than 10 days), a notice stating
(x) the date on which a record is to be taken for the purpose of such dividend,
distribution, redemption, rights or warrants, or if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distributions, redemption, rights or warrants are to be
determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or
close, and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up.
15. Authorized Shares. The Company covenants that during the period the
Warrant is outstanding and exercisable, it will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of the Warrant Shares upon the exercise of any and all purchase rights under
this Warrant. The Company further covenants that its issuance of this Warrant
shall constitute full authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary certificates for
the Warrant Shares upon the exercise of the purchase rights under this Warrant.
The Company will take all such reasonable action as may be necessary to assure
that such Warrant Shares may be issued as provided herein without violation of
any applicable law, regulation, or rule of any applicable market or exchange.
16. 9.99% Limitation.
(i) Notwithstanding anything to the contrary contained herein, the number
of shares of Common Stock that may be acquired by the holder upon exercise
pursuant to the terms hereof shall not exceed a number that, when added to the
total number of shares of Common Stock deemed beneficially owned by such holder
(other than by virtue of the ownership of securities or rights to acquire
securities that have limitations on the holder's right to convert, exercise or
8
purchase similar to the limitation set forth herein), together with all shares
of Common Stock deemed beneficially owned by the holder's "affiliates" (as
defined in Rule 144 of the Act) ("Aggregation Parties") that would be aggregated
for purposes of determining whether a group under Section 13(d) of the
Securities Exchange Act of 1934 as amended, exists, would exceed 9.99% of the
total issued and outstanding shares of the Common Stock (the "Restricted
Ownership Percentage"); provided that (w) each holder shall have the right at
any time and from time to time to reduce its Restricted Ownership Percentage
immediately upon notice to the Company and (x) each holder shall have the right
(subject to waiver) at any time and from time to time, to increase its
Restricted Ownership Percentage immediately in the event of the announcement as
pending or planned, of a transaction or event referred to in Section 5(m) of the
Certificate.
(ii) Each time (a "Covenant Time") the holder or an Aggregation Party makes
a Triggering Acquisition (as defined below) of shares of Common Stock (the
"Triggering Shares"), the holder will be deemed to covenant that it will not,
during the balance of the day on which such Triggering Acquisition occurs, and
during the 61-day period beginning immediately after that day, acquire
additional shares of Common Stock pursuant to rights-to-acquire existing at that
Covenant Time, if the aggregate amount of such additional shares so acquired
(without reducing that amount by any dispositions) would exceed (x) 9.99% of the
number of shares of Common Stock outstanding at that Covenant Time (including
the Triggering Shares) minus (y) the number of shares of Common Stock actually
owned by the holder at that Covenant Time (regardless of how or when acquired,
and including the Triggering Shares). A "Triggering Acquisition" means the
giving of a Notice of Exercise or any other acquisition of Common Stock by the
holder or an Aggregation Party; provided, however, that with respect to the
giving of such Notice of Exercise, if the associated issuance of shares of
Common Stock does not occur, such event shall cease to be a Triggering
Acquisition and the related covenant under this paragraph shall terminate. At
each Covenant Time, the holder shall be deemed to waive any right it would
otherwise have to acquire shares of Common Stock to the extent that such
acquisition would violate any covenant given by the holder under this paragraph.
Notwithstanding anything to the contrary in the Transaction Documents, in the
event of a conflict between any covenant given under this paragraph and any
obligation of the holder to exercise this Warrant pursuant to the Transaction
Documents, the former shall supersede the latter, and the latter shall be
reduced accordingly. For the avoidance of doubt:
(A) The covenant to be given pursuant to this paragraph will be given
at every Covenant Time and shall be calculated based on the circumstances
then in effect. The making of a covenant at one Covenant Time shall not
terminate or modify any prior covenants.
(B) The holder may therefore from time to time be subject to multiple
such covenants, each one having been made at a different Covenant Time, and
some possibly being more restrictive than others. The holder must comply
with all such covenants then in effect.
17. Compliance with Securities Laws. (a) The Holder hereof acknowledges
that the Warrant Shares acquired upon the exercise of this Warrant, if not
registered (or if no exemption from registration exists), will have restrictions
upon resale imposed by state and federal securities laws. Each certificate
representing the Warrant Shares issued to the Holder upon exercise (if not
registered, for resale or otherwise, or if no exemption from registration
exists) will bear substantially the following legend:
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED WITH
THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE
IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED,
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS.
(b) Without limiting the Investor's right to transfer, assign or otherwise
convey the Warrant or Warrant Shares in compliance with all applicable
securities laws, the Investor of this Warrant, by acceptance hereof,
acknowledges that this Warrant and the Warrant Shares to be issued upon exercise
hereof are being acquired solely for the Investor's own account and not as a
nominee for any other party, and that the Investor will not offer, sell or
otherwise dispose of this Warrant or any Warrant Shares to be issued upon
exercise hereof except under circumstances that will not result in a violation
of applicable federal and state securities laws.
18. Miscellaneous.
(a) Issue Date; Choice of Law; Venue; Jurisdiction. The provisions of this
Warrant shall be construed and shall be given effect in all respects as if it
had been issued and delivered by the Company on the date hereof. This Warrant
shall be binding upon any successors or assigns of the Company. This Warrant
will be construed and enforced in accordance with and governed by the laws of
the State of New York, except for matters arising under the Act, without
reference to principles of conflicts of law. Each of the parties consents to the
exclusive jurisdiction of the FEDERAL AND STATE CourtS sitting in the COUNTY of
New York in the State of New York in connection with any dispute arising under
this Warrant and hereby waives, to the maximum extent permitted by law, any
objection, including any objection based on forum non conveniens OR VENUE, to
the bringing of any such proceeding in such jurisdiction. Each party hereby
agrees that if the other party to this Warrant obtains a judgment against it in
such a proceeding, the party which obtained such judgment may enforce same by
summary judgment in the courts of any country having jurisdiction over the party
against whom such judgment was obtained, and each party hereby waives any
defenses available to it under local law and agrees to the enforcement of such a
judgment. Each party to this Warrant irrevocably consents to the service of
process in any such proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to such party at its address in accordance with
Section 18(c). Nothing herein shall affect the right of any party to serve
process in any other manner permitted by law.
(b) Modification and Waiver. This Warrant and any provisions 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. Any
amendment effected in accordance with this paragraph shall be binding upon the
Investor, each future holder of this Warrant and the Company. No waivers of, or
exceptions to, any term, condition or provision of this Warrant, in any one or
more instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
(c) Notices. Any notice, request or other document required or permitted to
be given or delivered to the Investor or future holders hereof or the Company
shall be personally delivered or shall be sent by certified or registered mail,
postage prepaid, to the Investor or each such holder at its address as shown on
the books of the Company or to the Company at the address set forth in the
Purchase Agreement. All notices under this Warrant shall be deemed to have been
given when received.
10
A party may from time to time change the address to which notices to it are
to be delivered or mailed hereunder by notice in accordance with the provisions
of this Section 18(c).
(d) Severability. Whenever possible, each provision of this Warrant shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this Warrant
in such jurisdiction or affect the validity, legality or enforceability of any
provision in any other jurisdiction, but this Warrant shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
(e) No Impairment. The Company will not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will 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 Holder against impairment.
Without limiting the generality of the foregoing, the Company (a) will not
increase the par value of any Warrant Shares above the amount payable therefor
on such exercise, and (b) will take all such action as may be reasonably
necessary or appropriate in order that the Company may validly and legally issue
fully paid and nonassessable Warrant Shares on the exercise of this Warrant.
(f) Specific Enforcement. The Company and the Holder acknowledge and agree
that irreparable damage would occur in the event that any of the provisions of
this Warrant were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall he entitled
to an injunction or injunctions to prevent or cure breaches of the provisions of
this Warrant and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which either of them may be entitled by
law or equity.
[Signature Page Follows]
11
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its officers thereunto duly authorized.
Dated: April _______, 2000
GenesisIntermedia.com, Inc.
By: ______________________________
Name: Ramy El-Batrawi
Title: President
ATTEST:
________________________
Print Name:
NOTICE OF EXERCISE
To: GenesisIntermedia.com, Inc.
(1) The undersigned hereby elects to exercise the attached Warrant for and
to purchase thereunder, ______ shares of Common Stock, and herewith makes
payment therefor of $_______, or elects to use the cashless exercise option of
the Warrant in the event Warrant Shares are not registered as required in the
Registration Rights Agreement.
(2) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
_______________________________
(Name)
_______________________________
(Address)
_______________________________
(3) Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of the undersigned or in such other name as is specified
below:
___________________________________
(Name)
____________________ ___________________________________
(Date) (Signature)
___________________________________
(Address)
Dated:
______________________________
Signature
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby
are hereby assigned to ___________________________ whose address is
____________________________________________.
Dated: ______________,
Holder's Signature: _____________________________
Holder's Address: _____________________________
_____________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in an fiduciary or other representative
capacity should file proper evidence of authority to assign the foregoing
Warrant.
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘8-K’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 4/27/03 | | 1 |
| Filed on: | | 5/15/00 | | | | | | | 10QSB |
| For Period End: | | 5/3/00 |
| | 4/28/00 | | 1 |
| List all Filings |
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