Exhibit 10.13
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE SOLD, OFFERED FOR SALE, MORTGAGED,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
ANY APPLICABLE STATE SECURITIES LAWS, OR AN EXEMPTION THEREFROM.
THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW
TO DISTRIBUTION OR RESALE.
WARRANT TO PURCHASE
SERIES C SENIOR CONVERTIBLE PREFERRED STOCK
OF
OPTIUM CORPORATION
VOID AFTER JANUARY 31, 2013
This Warrant is issued to Xxxxxxx Xxxxx or his registered assigns (the
"Employee") by Optium Corporation, a Delaware corporation (including any
successors as provided herein, the "Company"), on May 1, 2003 (the "Warrant
Issue Date"). This Warrant is issued to the Employee in connection with his
employment by the Company.
1. NUMBER OF SHARES SUBJECT TO WARRANT; EXERCISE PRICE. Subject to
the terms and conditions hereinafter set forth, the Employee is entitled, upon
surrender of this Warrant at the principal office of the Company, to purchase
from the Company 5,801 shares (the "Shares") of Series C Senior Convertible
Preferred Stock, par value $0.0001 per share (the "Series C Preferred Stock"),
at a purchase price of $0.05036 per share (as may be adjusted herein, the
"Exercise Price").
2. VESTING; EXERCISE PERIOD. Except as otherwise provided for
herein, this Warrant shall be exercisable, in whole or in part, at any time and
from time to time beginning on the earlier of (i) December 31, 2003 or (ii) the
moment in time that is immediately prior to the consummation of a Change in
Control (as defined in the Company's 2001 Stock Incentive Plan, as amended) and
ending at 5:00 p.m. eastern time on the tenth (10th) anniversary of the Warrant
Issue Date (the "Warrant Termination Date"); PROVIDED, that if the employment by
the Company of the Employee is terminated for any reason or reasons prior to
this Warrant becoming exercisable, then this Warrant shall expire without ever
becoming exercisable; and, PROVIDED FURTHER, that if the employment by the
Company of the Employee is terminated for any reason or reasons after this
Warrant first becomes exercisable, then this Warrant shall expire and no longer
be exercisable on the earlier of: the Warrant Termination Date or (ii) the date
that is ninety (90) days following the date of such termination.
3. NOTICE OF SALE OR CONVERSATION. The Company shall provide written
notice to the Employee not less than thirty (30) days prior to the consummation
of a Change in
Control or any transaction that would cause the conversion of all outstanding
shares of Series C Preferred Stock into Common Stock of the Company.
4. METHOD OF EXERCISE. While this Warrant remains outstanding and
exercisable in accordance with SECTION 2 hereof, the purchase rights hereby
represented may be exercised in whole but not in part, at the election of the
Employee, by the tender of the Notice of Exercise in substantially the form
attached hereto as EXHIBIT A and the surrender of this Warrant at the principal
office of the Company and by the payment to the Company in cash, by check,
cancellation of indebtedness, shares of Series C Preferred Stock that have been
held by the Employee for at least six (6) months (or shares previously issued
upon conversion thereof) or other form of payment acceptable to the Company, of
an amount equal to the then applicable Exercise Price multiplied by the number
of Shares then being purchased. For purposes of this SECTION 4, the fair market
value of a share of Series C Preferred Stock (or shares previously issued upon
conversion thereof) as of a particular date shall be determined by the Company's
Board of Directors in its reasonable discretion; PROVIDED that if such shares
issuable upon exercise of this Warrant are traded on a national securities
exchange or admitted to quotation on the National Association of Securities
Dealers Automated Quotation System, the fair market value on any given date
shall be the average of the closing sale prices on such exchange or system of
such shares issuable upon exercise of this Warrant for the 20 trading days
preceding such date.
5. CERTIFICATES FOR SHARES. Upon the exercise of the purchase rights
evidenced by this Warrant, one or more certificates for the number of Shares so
purchased shall be issued as soon as practicable thereafter (with appropriate
restrictive legends, as applicable).
6. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF 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 follows:
(a) SUBDIVISIONS, COMBINATIONS AND OTHER ISSUANCES. If the
Company shall at any time prior to the exercise or expiration of this Warrant
subdivide its shares of Series C Preferred Stock (or any successor security as
provided for in SECTION 6(b)), by split-up or otherwise, or combine its shares
of Series C Preferred Stock (or any successor security as provided for in
SECTION 6(b)), or issue additional Common Stock as a dividend with respect to
any of its shares of Series C Preferred Stock (or any successor security as
provided for in SECTION 6(b)), the number of Shares issuable on the exercise of
this Warrant shall forthwith be proportionately increased in the case of a
subdivision or stock dividend, or proportionately decreased in the case of a
combination. Appropriate adjustments shall also be made to the Exercise Price,
provided that the aggregate exercise price payable hereunder for the total
number of Shares purchasable under this Warrant (as adjusted) shall remain the
same. Any adjustment under this SECTION 6(a) shall become effective at the close
of business on the date the subdivision or combination becomes effective, or as
of the record date of such dividend, or in the event that no record date is
fixed, upon the making of such dividend.
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(b) RECLASSIFICATION, REORGANIZATION AND CONSOLIDATION. In the
event of any corporate reclassification, capital reorganization, consolidation,
spin-off or change in the shares of Series C Preferred Stock (other than as a
result of a subdivision, combination, or dividend provided for in SECTION 6(a)
above), then, as a condition of such event, lawful provision shall be made, and
duly executed documents evidencing the same from the Company or its successor
shall be delivered to the Employee, so that the Employee shall have the right at
any time prior to the expiration of this Warrant to purchase, at a total price
equal to that payable upon the exercise of this Warrant, the kind and amount of
shares of stock and/or other securities and property receivable in connection
with such event by a Employee of the same number of shares for which this
Warrant could have been exercised immediately prior to such event. In any such
case appropriate provisions shall be made with respect to the rights and
interest of the Employee so that the provisions hereof shall thereafter be
applicable with respect to any shares of stock or other securities and property
deliverable upon exercise hereof, and appropriate adjustments shall be made to
the Exercise Price, provided that the aggregate exercise price payable hereunder
for the total number of Shares purchasable under this Warrant (as adjusted)
shall remain the same.
(c) NOTICE OF ADJUSTMENT. When any adjustment is required to be
made to the Exercise Price or in the number or kind of Shares purchasable upon
exercise of the Warrant, the Company shall promptly notify the Employee of such
event and of the adjusted Exercise Price or number of Shares or other securities
or property thereafter purchasable upon exercise of this Warrant.
7. ASSUMPTION OF WARRANT. If at any time while this Warrant, or any
portion thereof, is outstanding and unexpired there shall be an acquisition of
the Company by another entity by means of a merger, reorganization or
consolidation of the Company or any other similar transaction, then, as a part
of such acquisition, lawful provision shall be made so that the Employee shall
thereafter be entitled to receive upon exercise of this Warrant, during the
period specified herein and upon payment of the aggregate Exercise Price then in
effect, the number of shares of stock or other securities or property of the
successor corporation resulting from such acquisition which the Employee would
have been entitled to receive in such acquisition if this Warrant had been
exercised immediately before such acquisition.
8. NO FRACTIONAL SHARES OR SCRIP. No fractional Shares or scrip
representing fractional Shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional Shares the Company shall make a cash
payment therefor on the basis of the fair market value determined in accordance
with SECTION 4.
9. NO SHAREHOLDER RIGHTS. Prior to exercise of this Warrant, the
Employee shall not be entitled to any rights of a shareholder with respect to
the Shares, including (without limitation) the right to vote such Shares,
receive dividends or other distributions thereon, exercise preemptive rights or
be notified of shareholder meetings, and such Employee shall not be entitled to
any notice or other communication concerning the business or affairs of the
Company. However, nothing in this SECTION 9 shall limit the right of the
Employee to be provided the notices required under this Warrant.
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10. COMPLIANCE WITH SECURITIES ACT; TRANSFERABILITY OF WARRANT OR
SHARES.
(a) COMPLIANCE WITH SECURITIES ACT. The Employee, by acceptance
hereof, agrees that this Warrant, and the Shares issuable upon exercise of this
Warrant, are being acquired for investment and that such Employee will not
offer, sell or otherwise dispose of this Warrant, or any Shares issuable upon
exercise of this Warrant, except under circumstances which will not result in a
violation of the Securities Act, or any applicable state securities laws. This
Warrant and all Shares issued upon exercise of this Warrant (unless registered
under the Securities Act and any applicable state securities laws) shall be
stamped or imprinted with a legend in substantially the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY APPLICABLE STATE SECURITIES LAW AND MAY NOT BE SOLD,
OFFERED FOR SALE, MORTGAGED, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS, OR AN EXEMPTION THEREFROM,
AND, IF REQUESTED BY THE COMPANY, THE COMPANY HAS RECEIVED
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY TO THAT
EFFECT. THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND
NOT WITH A VIEW TO DISTRIBUTION OR RESALE."
(b) TRANSFERABILITY. Subject to compliance with applicable
federal and state securities laws, the Shares issuable upon exercise of this
Warrant (but not this Warrant) are transferable in whole or in part by the
Employee to any person or entity upon written notice to the Company.
11. INVESTMENT STATUS. The Employee represents that he or she is an
"accredited investor" within the meaning of Regulation D under the Securities
Act, as presently in effect.
12. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and the holders
hereof and their respective successors and assigns.
13. AMENDMENTS AND WAIVERS. 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), with the
written consent of the Company and the Employee.
14. NOTICES. All notices required under this Warrant shall be deemed
to have been given or made for all purposes (i) upon personal delivery, (ii)
upon confirmation receipt that the communication was successfully sent to the
applicable number if sent by facsimile, (iii)
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one day after being sent, when sent by professional overnight courier service,
or (iv) five days after posting when sent by registered or certified mail.
Notices to the Company shall be sent to the address of the Company set forth
below (or at such other place as the Company shall notify the Employee hereof in
writing) and notices to the Employee shall be sent to the address of the
Employee set forth below (or at such other place as the Employee shall notify
the Company hereof in writing):
To the Company: Optium Corporation
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Chief Executive Officer
To the Employee: Xxxxxxx Xxxxx
0 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
15. CAPTIONS. The section and subsection headings of this Warrant are
inserted for convenience only and shall not constitute a part of this Warrant in
construing or interpreting any provision hereof.
16. GOVERNING LAW. This Warrant shall be governed by the laws of the
State of Delaware, without regard to the choice or conflict of laws principles
thereof.
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IN WITNESS WHEREOF, the undersigned have caused this Warrant to be
duly executed as of the date first set forth above.
COMPANY
OPTIUM CORPORATION
By: /s/ Xxxx X. Xxxxxxxx, Xx.
-------------------------
Name: Xxxx X. Xxxxxxxx, Xx.
Title: Chief Executive Officer
EMPLOYEE
/s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
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EXHIBIT A
NOTICE OF EXERCISE
To: Optium Corporation
The undersigned hereby elects to [CHECK APPLICABLE SUBSECTION]:
/ / Purchase __________________ Shares (as defined in the attached
Warrant) of Optium Corporation, pursuant to the terms of the
attached Warrant and payment of the Exercise Price per Share
required under such Warrant accompanies this notice.
The undersigned hereby represents and warrants that the undersigned is
acquiring such shares for its own account for investment purposes only, and not
for resale or with a view to distribution of such shares or any part thereof.
Date: WARRANT HOLDER:
----------------------
By:-------------------------------
Name:
Address:
Name in which shares should be registered:___________________
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