Exhibit 4.03.1
THE SECURITIES REPRESENTED HEREBY AND THE SHARES OF COMMON STOCK OF THE ISSUER
THAT ARE ISSUABLE UPON EXERCISE OF THIS WARRANT, ARE BE SUBJECT TO RESTRICTIONS
ON TRANSFER AND TO OTHER RESTRICTION PURSUANT TO THE PROVISIONS OF AGREEMENTS
BETWEEN THE HOLDER OF SUCH SECURITIES AND THE COMPANY, A COPY OF WHICH IS
AVAILABLE AT THE PRINCIPAL EXECUTIVE OFFICE OF THE COMPANY.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
ISSUE DATE: ___________, 1999
NUMBER OF SHARES: 5,000
Pursuant to that certain XxxxXxxxxxx.xxx Builder Gold Program Agreement
(the "PROGRAM AGREEMENT"), dated as of ________, 1999, entered into to which
RealSelect, Inc., a Delaware corporation (the "REALSELECT"), NetSelect, Inc., a
Delaware corporation that intends to change its name to XxxxXxxxx.xxx, Inc.
("XXXXXXXXX.XXX" or the "COMPANY"), National New Homes, Inc., a Delaware
corporation, operator of XxxxXxxxxxx.xxx and (among other parties) the person or
entity whose name appears on the signature page of this Warrant as the Holder
are parties, and subject to the provisions and upon the terms and conditions set
forth herein, this warrant (the "WARRANT") is issued to Holder by the Company on
the date set forth above (the "ISSUE DATE") and certifies that, for value
received, Holder is entitled to purchase the Number of Shares set forth above,
subject to the other provisions of this Warrant, the Program Agreement, and any
other agreement to which Holder and the Company are parties relating to this
Warrant or the shares issuable upon exercise of this Warrant. Capitalized terms
not defined herein will have the meanings given them in the Program Agreement.
1. Definitions. The following definitions shall apply for purposes of this
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Warrant:
1.1 "ACT" means the Securities Act of 1933, as amended.
1.2 "COMMON STOCK" means the Company's Common Stock.
1.3 "EXERCISE COMMENCEMENT DATE" means the later of (i) the date of
the closing of the IPO and (ii) the date on which the registration statement
filed by the Company relating to the issuance of the Warrants has been declared
effective by the Securities and Exchange Commission and the Warrants have been
issued by the Company.
1.4 "HOLDER" means the initial holder of this Warrant and any person
who shall at the time be the registered holder of this Warrant.
1.5 "IPO" means the Company's initial registered underwritten public
offering of equity securities.
1.6 "MAXIMUM PURCHASE AMOUNT" means an amount equal to the product of
(i) the number of shares of Warrant Stock purchasable on the date of this
Warrant (subject to adjustment as provided herein) multiplied by (ii) the
Warrant Price on the date of this Warrant (subject to adjustment as provided
herein).
1.7 "NUMBER OF SHARES" means the number of shares of fully paid and
non-assessable Common Stock set forth at the beginning of this Warrant that may
be acquired upon exercise of this Warrant, subject to adjustment as provided
herein.
1.8 "PURCHASE AMOUNT" means, at a given time, an amount equal to the
Maximum Purchase Amount less the aggregate amount previously paid to the Company
for the purchase of Warrant Stock upon exercise of this Warrant.
1.9 "SECURITIES" means, collectively, this Warrant and any shares of
Warrant Stock acquired upon exercise of this Warrant.
1.10 "SHARES" means the Number of Shares of Common Stock that may be
acquired upon exercise of this Warrant.
1.11 "TERMINATION DATE" means (i) the date which is three years from
the Issue Date or, (ii) if sooner, the date on which this Warrant shall no
longer be exercisable as described in Section 2.2 below.
1.12 "WARRANT PRICE" means the exercise price per Share of Warrant
Stock, which shall be the price to public of the Common Stock sold by the
Company in the IPO, subject to adjustment as provided herein.
1.13 "WARRANT" means this Warrant and any warrant(s) delivered in
substitution or exchange therefor, as provided herein.
1.14 "WARRANT STOCK" shall initially mean up to 5,000 shares of Common
Stock. The number and character of shares of Warrant Stock are subject to
adjustment as provided herein and the term "WARRANT STOCK" shall include stock
and other securities and property at any time receivable or issuable upon
exercise of this Warrant in accordance with its terms. The actual number of
Shares of Warrant Stock that may be acquired upon exercise of this Warrant shall
be determined by the provisions of the Program Agreement.
2. Exercise of Warrant.
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2.1 Exercise Price. The exercise price per Share of the Warrant
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shall be the Warrant Price.
2.2 Exercisability; Term. The Warrant will not be exercisable in whole
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or in part until the Exercise Commencement Date. If an IPO does not occur, then
the Warrant will not
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be exercisable. The Warrant shall have a term of three (3) years from the Issue
Date until the Termination Date.
2.3 Method of Exercise. Subject to the terms and conditions of this
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Warrant, the Holder may exercise this Warrant in whole or in part, at any time
or from time to time, on any business day during the period commencing on the
Exercise Commencement Date and ending on the Termination Date, for up to that
number of shares of Warrant Stock that is obtained by dividing (a) the Purchase
Amount by (b) the then effective Warrant Price, by surrendering this Warrant at
the principal offices of the Company, with the subscription form attached hereto
duly executed by the Holder (or such other form as the Company may reasonably
determine), and payment of an amount equal to the product obtained by
multiplying (i) the number of shares of Warrant Stock to be purchased by the
Holder by (ii) the Warrant Price, determined in accordance with the terms
hereof.
2.4 Form of Payment. Payment may be made by (i) a check payable to
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the Company's order, (ii) wire transfer of funds to the Company or (iii) any
combination of the foregoing.
2.5 Partial Exercise. Upon a partial exercise of this Warrant: (i)
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the Purchase Amount immediately prior to such exercise shall be reduced by the
aggregate amount paid to the Company upon such exercise of this Warrant, and
(ii) this Warrant shall be surrendered by the Holder and replaced with a new
Warrant of like tenor in which the Maximum Purchase Amount is the Purchase
Amount as so reduced. In no event may the cumulative aggregate purchase price
paid to the Company upon all exercises of the Warrant exceed the Maximum
Purchase Amount.
2.6 No Fractional Shares. No fractional shares may be issued upon any
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exercise of this Warrant, and any fractions shall be rounded down to the nearest
whole number of shares. If upon any exercise of this Warrant a fraction of a
share results, the Company will pay the cash value of any such fractional share,
calculated on the basis of the Warrant Price.
2.7 Restrictions on Exercise. This Warrant may not be exercised if
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the issuance of the Warrant Stock upon such exercise would constitute a
violation of any applicable federal or state securities laws or other laws or
regulations. As a condition to the exercise of this Warrant, if requested by the
Company the Holder shall execute the subscription form attached hereto,
confirming and acknowledging that the representations and warranties of the
Holder set forth herein are true and correct as of this date of exercise.
2.8 Net Issue Election. The Holder may elect to convert this Warrant,
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without the payment by the Holder of any additional consideration, into shares
of Warrant Stock having a value equal to the Purchase Amount or any portion
thereof by the surrender of this Warrant or such portion to the Company, with
the net issue election selected in the subscription form attached hereto duly
executed by the Holder, at the principal offices of the Company. Thereupon, the
Company will issue to the Holder such number of shares of Warrant Stock as is
computed using the following formula:
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X = Y (A-B)
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A
where X = the number of shares to be issued to the Holder pursuant to this
Section.
Y = the number of shares covered by this Warrant in respect of which
the net issue election is made pursuant to this Section.
A = the fair market value of one share of Warrant Stock, as determined
in good faith by the Company's Board of Directors, as at the time
the net issue election is made pursuant to this Section.
B = the Warrant Price in effect at the time the net issue election is
made pursuant to this Section.
The Company's Board of Directors will promptly respond in writing to
an inquiry by the Holder as to the fair market value of one share of Warrant
Stock.
3. Issuance of Stock.
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3.1 Date of Exercise. This Warrant shall be deemed to have been
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exercised immediately prior to the close of business on the date of its
surrender for exercise as provided above, and the person entitled to receive the
shares of Warrant Stock issuable upon such exercise shall be treated for all
purposes as the holder of record of such shares as of the close of business on
such date. As soon as reasonably practicable on or after such date, the Company
shall issue and deliver to the person or persons entitled to receive the same a
certificate or certificates for the number of whole shares of Warrant Stock
issuable upon such exercise.
3.2 Restrictions on Sale of Shares of Warrant Stock. In addition to
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the restrictions set forth in Section 5.4 of the Program Agreement and as
further described in the Registration Statement, from the Issue Date, Holder
agrees that it shall sell no more than an aggregate of (i) 417 Shares issuable
upon exercise of this Warrant multiplied by (ii) the number of three month
periods that have elapsed since the Issue Date.
4. Adjustment Provisions. The number and character of shares of Warrant
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Stock issuable upon exercise of this Warrant (or any shares of stock or other
securities or property at the time receivable or issuable upon exercise of this
Warrant) and the Warrant Price therefor, are subject to adjustment upon the
occurrence of the following events:
4.1 Adjustment for Stock Splits, Stock Dividends, etc. The Warrant
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Price and the number of shares of Warrant Stock issuable upon exercise of this
Warrant shall each be proportionally adjusted to reflect any stock dividend,
stock split, reverse stock split, combination of shares or other similar event
affecting the number of outstanding shares of Warrant Stock (or such other stock
or securities) that occurs after the date of the Warrant. Notwithstanding the
preceding sentence, Holder and the Company acknowledge that in connection with
the IPO, the
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Company may effect a stock split at or before the closing of the IPO, and that
in such event, the Warrant Price per Share shall remain the price to public per
share of Common Stock sold by the Company in the IPO, even though the initial
number of Shares that may be acquired upon exercise of this Warrant may be
proportionately increased to reflect such stock split.
4.2 No Adjustment for Other Dividends and Distributions. In case the
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Company shall make or issue, or shall fix a record date for the determination of
eligible holders entitled to receive, a dividend or other distribution payable
respect to the Warrant Stock that is payable in securities of the Company (other
than issuances with respect to which adjustment is made under Section 4.1),
then, and in each such case, the Holder, shall not be entitled, by virtue of
Holder's status as a holder of the Warrant, be entitled to receive the
securities or such other assets of the Company to which the Holder would have
been entitled upon such date if the Holder had exercised this Warrant
immediately prior thereto.
4.3 Adjustment for Reorganization or Recapitalization; Merger or
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Consolidation. After the date of this Warrant, in case of any reorganization or
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recapitalization of the Company (or of any other corporation, the stock or other
securities of which are at the time receivable on the exercise of this Warrant),
then the Holder, upon the exercise of this Warrant as provided herein, at any
time after the consummation of such reorganization, recapitalization, shall be
entitled to receive, in lieu of the stock or other securities and property
receivable upon the exercise of this Warrant prior to such consummation, the
stock or other securities or property to which the Holder would have been
entitled upon the consummation of such reorganization or recapitalization if the
Holder had exercised this Warrant immediately prior thereto, all subject to
further adjustment as provided in this Section 4, and the successor or
purchasing corporation in such reorganization or recapitalization (if other than
the Company) shall duly execute and deliver to the Holder a supplement hereto
acknowledging such corporation's obligations under this Warrant; and in each
such case, the terms of this Warrant shall be applicable to the shares of stock
or other securities or property receivable upon the exercise of this Warrant
after the consummation of such reorganization or recapitalization. After the
date of this Warrant, in case of any merger or consolidation of the Company (or
of any other corporation, the stock or other securities of which are at the time
receivable on the exercise of this Warrant), to which the Company is a party and
in which the Company is not the surviving entity, the surviving corporation (or
its parent) may assume this Warrant, and if the surviving corporation does
assume this Warrant, then after the consummation of such merger or
consolidation, the Holder, upon exercise of this Warrant as provided herein, at
any time after the consummation or such transaction, shall be entitled to
receive, in lieu of the stock or other securities and property receivable upon
the exercise of this Warrant before such merger or consolidation, the stock or
other securities or property to which the Holder would have been entitled upon
the consummation of such reorganization or recapitalization if the Holder had
exercised this Warrant immediately prior thereto, all subject to further
adjustment as provided in this Section 4; and in each such case, the terms of
this Warrant shall, with appropriate adjustments to the number of shares subject
to this Warrant and the Warrant Price of this Warrant, be applicable to the
shares of stock or other securities or property receivable upon the exercise of
this Warrant after the consummation of such merger or consolidation.
Notwithstanding the foregoing, if the surviving corporation refuses to assume
this Warrant, then this Warrant shall, if not exercised before the
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consummation of such merger or consolidation, terminate in its entirety upon the
consummation of such merger or consolidation.
4.4 Notice of Adjustments. The Company shall promptly give written
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notice of each adjustment or readjustment of the Warrant Price or the number of
shares of Warrant Stock or other securities issuable upon exercise of this
Warrant. The notice shall describe the adjustment or readjustment and show in
reasonable detail the facts on which the adjustment or readjustment is based.
4.5 No Change Necessary. The form of this Warrant need not be changed
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because of any adjustment in the Warrant Price or in the number of shares of
Warrant Stock issuable upon its exercise.
4.6 Reservation of Stock. If at any time the number of shares of
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Warrant Stock or other securities issuable upon exercise of this Warrant shall
not be sufficient to effect the exercise of this Warrant, the Company will take
such corporate action as may, in the opinion of its counsel, be necessary to
increase its authorized but unissued shares of Warrant Stock or other securities
issuable upon exercise of this Warrant as shall be sufficient for such purpose.
5. Securities Law Matters.
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5.1 Representations and Warranties of the Holder. The Warrant and the
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shares of Warrant Stock are being acquired for the Holder's own account, in each
case for investment and not with a view to, or for resale in connection with,
any distribution or public offering thereof within the meaning of the Securities
Act of 1933, as amended.
5.2 Lock-Up Agreement. Holder acknowledges that the Warrant, and any
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Warrant Shares, are subject to the lock-up provisions of Section 5.4 of the
Program Agreement.
5.3 Further Limitations on Disposition. Holder further agrees not to
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make any disposition of all or any portion of the Warrant or Warrant Stock
unless and until:
(a) There is then in effect a registration statement under the Act
covering such proposed disposition and such disposition is made in accordance
with such registration statement; or
(b) Holder shall have notified the Company of the proposed
disposition and shall have furnished the Company with a statement of the
circumstances surrounding the proposed disposition and Holder shall have
furnished the Company, at the expense of such Holder or its transferee, with an
opinion of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration of such securities under the Act.
Notwithstanding the provisions of paragraphs (a) and (b) above, no such
registration statement or opinion of counsel shall be required: (i) for any
routine transfer of any Warrant or Warrant
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Stock in compliance with SEC Rule 144 or Rule 144A; or (ii) for the transfer by
gift, will or intestate succession by Holder to his or her spouse or lineal
descendants or ancestors or any trust for any of the foregoing; provided that in
each of the foregoing cases the transferee agrees in writing to be governed by
the provisions of this Warrant (including without limitation this Section 5) to
the same extent as if the transferee were an original Holder hereunder, and to
execute such other agreements (including without limitation any stockholders
agreement to which the original Holder is or was a party) reasonably requested
by the Company relating to the Warrant or the Warrant Stock.
5.4 Legends. It is understood that the certificates evidencing the
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Warrant and Warrant Stock will bear legends that the Company or its counsel may
reasonably require.
6. No Rights or Liabilities as Stockholder. This Warrant does not by
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itself entitle the Holder to any voting rights or other rights as a stockholder
of the Company. In the absence of affirmative action by the Holder to purchase
Warrant Stock by exercise of this Warrant, no provisions of this Warrant, and no
enumeration herein of the rights or privileges of the Holder, shall cause the
Holder to be a stockholder of the Company for any purpose.
7. Miscellaneous
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7.1 Governing Law; Consent to Jurisdiction. This Warrant shall be
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governed by and construed exclusively in accordance with the internal laws of
the State of California as applied to agreements between residents thereof and
to be performed entirely within such State, without reference to that body of
law relating to conflict of laws or choice of law. The Company and the Holder
hereby consent to the exclusive jurisdiction and venue of the State and Federal
courts located in Los Angeles County, California in connection with any action
to enforce the provisions of this Warrant, or otherwise arising under or by
reason of this Warrant, and agrees that service of process in any such action
may be effected by the means provided in this Warrant for delivery of notices.
7.2 Assignment; Binding Upon Successors and Assigns. Neither party
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hereto may assign any of its rights or obligations hereunder without the prior
written consent of the other party hereto, except that (i) the Company may
assign its respective rights to any wholly-owned subsidiary of the Company, and
(ii) the Company may assign its rights and obligations hereunder without the
prior written consent of Holder in connection with a merger, consolidation or
sale of all or substantially all of the Company's assets, provided that the
acquiring or surviving entity agrees to assume all of the Company's obligations
under this Warrant and substitutes a warrant for its own shares for this
Warrant. This Warrant will be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
7.3 Headings; Pronouns. The titles of the sections and subsections of
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this Warrant are for convenience only and are not to be considered in construing
this Warrant. All pronouns used in this Warrant shall be deemed to include
masculine, feminine and neuter forms.
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7.4 Counterparts. This Warrant may be executed in any number of
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counterparts, each of which will be deemed an original and all of which taken
together will constitute one and the same instrument. This Warrant will become
binding when one or more counterparts hereof, individually or taken together,
will bear the signatures of the parties reflected hereon as signatories.
Facsimile copies of such counterparts are acceptable.
7.5 Builder Gold Program Agreement. This Warrant is issued pursuant
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to the Program Agreement and is subject to the terms thereof, to the extent that
they relate to this Warrant.
7.6 Notices. All notices or other communications given under this
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Warrant shall be in writing and shall be delivered in person, by first class
mail, by national overnight courier service, or facsimile, addressed as follows:
If to Holder:
To the address for Holders set forth on the signature page of
this Warrant.
If to NetSelect or RealSelect:
000 Xxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attn: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Either party may change its address or addressee for the purpose of this
Warrant by notice. Notices or other communications shall be deemed given or
delivered upon receipt if delivered in person, four (4) days after deposit in
the mails, one (1) business day after deposit with a reputable overnight courier
service, or one (1) business day after transmission if delivered by facsimile
with confirmation of receipt.
7.7 Attorney's Fees. If any party is required to engage the services
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of any attorneys for the purpose of enforcing this Warrant, or any provision
thereof, the prevailing party shall be entitled to recover its reasonable
expenses and costs in enforcing this Warrant, including attorney's fees.
7.8 Amendment; Waiver. This Warrant is one of a series of Warrants
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(the "PROGRAM WARRANTS") issued pursuant to the Program Agreement. Any term of
this Warrant may be amended, and the observance of any term of this Warrant may
be waived, either generally or in a particular instance and either retroactively
or prospectively, only with the written consent of the Company and the holders
of Program Warrants representing at least a majority of the aggregate shares of
Warrant Stock issuable upon exercise of all the Program Warrants at the time
outstanding (provided that any such amendment or waiver does not discriminate
against any particular holder in a manner differently from other Holders of
Program Warrants). Any amendment or waiver effected in accordance with this
Section shall be binding upon the
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Company, and each Holder of any Program Warrants at the time outstanding, each
future holder of such securities, and the Company.
7.9 Terms Binding. By acceptance of this Warrant, the Holder accepts
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and agrees to be bound by all of the terms and conditions of this Warrant.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Warrant as of the Issue
Date.
COMPANY: HOLDER:
NETSELECT, INC. Name of Holder:
a Delaware corporation ------------------------
By: By:
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Title: Title:
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Address:
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Telephone:
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Facsimile:
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[SIGNATURE PAGE TO BUILDER GOLD PROGRAM WARRANT]
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Exhibit 1
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FORM OF SUBSCRIPTION
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(To be signed only upon exercise of Warrant)
To: XxxxXxxxx.xxx
(1) The undersigned Holder hereby elects to purchase ____________
shares of Common Stock of XxxxXxxxx.xxx (the "WARRANT STOCK"), pursuant to the
terms of the attached Warrant, and tenders herewith payment of the purchase
price for such shares in full.
(1) Net Issue Election. The undersigned Holder elects to convert the
Warrant into such shares of Warrant Stock by net issue election pursuant to the
terms of the Warrant. This conversion is exercised with respect to ____________
shares of Common Stock of XxxxXxxxx.xxx (the "WARRANT STOCK") covered by the
Warrant.
[STRIKE WHICHEVER PARAGRAPH (1) ABOVE THAT DOES NOT APPLY]
(2) In exercising the Warrant, the undersigned Holder hereby confirms
and acknowledges that the representations and warranties of Holder, including
those set forth in Section 5.1 of the Warrant, are true and correct as of this
date with respect to the Warrant Stock as they were with respect to the Warrant
as of the date of the Warrant.
(3) Please issue a certificate or certificates representing such shares
of Warrant Stock in the name or names specified below:
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(Name) (Name)
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(Address) (Address)
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(City, State, Zip Code) (City, State, Zip Code)
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(Federal Tax Identification Number) (Federal Tax Identification Number)
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(Date) (Signature of Holder)
(4) Unless otherwise set forth in this Exhibit 1, all capitalized terms
shall have the meanings ascribed to them in the Warrant.
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