EXHIBIT 4.3
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this "Agreement"), dated as of the 17th day of May,
2001, is made and entered into by and between ROXIO, INC., a Delaware
corporation (the "Company"), and VIRGIN HOLDINGS, INC., a Delaware corporation
(together with its permitted assigns, the "Warrantholder").
R E C I T A L S
WHEREAS, the Company and the Warrantholder are parties to that certain
Strategic Relationship Agreement, dated as of the date hereof (the "Strategic
Relationship Agreement"), pursuant to which, among other things, the
Warrantholder will provide Strategic Advice (as defined in the Strategic
Relationship Agreement) to the Company; and
WHEREAS, in order to provide consideration of the Warrantholder's
obligations made under the Strategic Relationship Agreement, the Company hereby
grants to the Warrantholder, effective as of the date hereof (the "Grant Date"),
a warrant to purchase 117,647 shares of the Company's Common Stock, par value
$0.001 per share (the "Common Stock"), subject to and upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants made
herein and the mutual benefits to be derived herefrom and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
agree as follows:
1. Grant of Warrant. This Agreement evidences the Company's grant to the
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Warrantholder of the right and option to purchase (the "Warrant"), subject
to and on the terms and conditions set forth herein, 117,647 shares of the
Company's Common Stock, subject to adjustment in accordance herewith (the
"Shares"), at a price equal to $8.50 per Share, subject to adjustment in
accordance herewith (the "Exercise Price"), exercisable from time to time
as provided in Section 2 hereof prior to the close of business on the day
before the third anniversary of the Grant Date, unless earlier terminated
pursuant to Section 6(c) hereof (at any such time, the "Expiration Date").
2. Exercisability of Warrant.
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(a) This Warrant shall vest in full upon its issuance. The Warrant is
exercisable, in whole or in part, at any time from the Grant Date
until the Expiration Date as follows: (i) 29,412 Shares shall become
exercisable on the date (each, a "Determination Date") which is August
17, 2001, so long as, as of such Determination Date, there is no
existing reasonable claim made in good faith and in writing by the
Company to the Warrantholder ("Notice") that the Warrantholder has
materially failed to provide the Strategic Advice in accordance with
the terms and conditions of the Strategic Relationship Agreement (a
"Dispute"); (ii) 29,412 Shares become exercisable on November 17,
2001, so long as, as of such Determination Date, there is no Dispute;
(iii) 29,412 Shares become exercisable on February 17, 2002, so long
as, as of such Determination Date, there is no Dispute; and (iv)
29,411 Shares become exercisable on May 17, 2002, so long as, as of
such Determination Date, there is no Dispute.
(b) In the event that a Dispute exists as of any Determination Date, if
the Warrantholder shall contact the Company within ten (10) business
days after receipt of Notice (the "10-Day Cure Period") to schedule a
meeting to occur within the 10-Day Cure Period during which the
parties will work together to cure such Dispute (and such meeting is
actually held during such 10-Day Cure Period other than through no
fault of the Warrantholder or other than as mutually agreed by the
parties), those Shares which would have become exercisable on such
Determination Date but for such Dispute shall become exercisable
unless such Dispute becomes the basis for termination of the Strategic
Relationship Agreement in accordance with Section 4(b)(ii) thereof.
Notwithstanding anything herein to the contrary, the Warrant will not
become exercisable with respect to such Shares due to become
exercisable on a Determination Date if, on or as of such Determination
Date, the Strategic Relationship Agreement has been or is terminated
in accordance with its terms. In addition, if the Term (as defined in
the Strategic Relationship Agreement) of the Strategic Relationship
Agreement is extended in accordance with Section 4(f) thereof, any
Shares that have not yet become exercisable shall immediately
thereafter become exercisable.
(c) If, at any time of exercise, the Warrantholder does not purchase all
of the Shares to which the Warrantholder is entitled under this
Agreement, the Warrantholder has the right thereafter to purchase any
such Shares not so purchased and such right shall continue until the
Expiration Date. The Warrant shall only be exercisable in respect of
whole Shares, and, in lieu of fractional interests, the Company shall
pay the Warrantholder a sum in cash equal to such fraction multiplied
by the then-effective Exercise Price. Certificates for Shares so
purchased, together with any other securities or property to which the
Warrantholder is entitled upon such exercise, shall be delivered to
the Warrantholder by the Company at the Company's expense promptly
after this Warrant has been so exercised. Each such certificate shall
be in such denominations of Common Stock as may be requested by the
Warrantholder and shall be registered in the name of the
Warrantholder.
3. Method of Exercise of Warrant.
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(a) The Warrant shall be exercisable by the delivery to the Secretary of
the Company of a written notice accompanied by (i) delivery of an
executed Exercise Agreement in the form attached hereto as Exhibit A
and (ii) unless an election is made by the Warrantholder under Section
3(b) hereof, payment of the full purchase price of the Shares to be
purchased upon such exercise. Unless an election is made by the
Warrantholder under Section 3(b) hereof, payment shall be made in cash
in the form of a certified or cashier's check payable to the order of
the Company or by wire transfer of immediately available funds to an
account designated by the Company.
(b) In lieu of exercising this Warrant for cash, the Warrantholder may
elect to receive shares equal to the value (as determined below) of
this Warrant (or the portion thereof being canceled) by surrender of
this Warrant at the principal office of the Company, together with an
executed Exercise Agreement in the form attached hereto as Exhibit A,
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in which event the Company shall issue to the Warrantholder a number
of Shares computed using the following formula:
2
X = Y (A-B)
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A
Where:
X = the number of Shares to be issued to the Warrantholder.
Y = the number of Shares purchasable under the Warrant or, if only a
portion of the Warrant is being exercised, the portion of the Warrant
being exercised (at the date of such calculation).
A = the Fair Market Value (as defined below) of one share of Common
Stock.
B = the Exercise Price (as adjusted to the date of such calculation).
"Fair Market Value" shall be (i) if the Common Stock of the Company is
publicly traded on a national securities exchange or The Nasdaq Stock
Market, the average of the closing prices of the Common Stock on such
exchange or market over the five (5) trading days ending immediately
prior to the date on which the Company receives the applicable
Exercise Agreement, (ii) if the Common Stock is actively traded over-
the-counter, the average of the closing bid prices over the five (5)-
day period ending immediately prior to the date on which the Company
receives the applicable Exercise Agreement and (iii) if there is no
active public market, the value determined in good faith by the Board
of Directors of the Company.
4. Warrant Not Transferable. This Warrant may be exercised only by, and
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Shares issuable pursuant to this Warrant shall be issued only to, the
Warrantholder. Prior to the first anniversary of the date hereof, except
as provided below, the Warrantholder shall not voluntarily sell, assign,
transfer, pledge, hypothecate, encumber, dispose, loan, gift, attach or
levy ("Transfer") this Warrant or any interest in this Warrant, other than
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to any Affiliate (defined below) of the Warrantholder that has agreed in
writing to be bound by the terms hereof, without the prior written consent
of the Company, not to be unreasonably withheld or delayed. Any Transfer or
purported Transfer of this Warrant or any interest herein shall be null and
void unless the provisions of this Section 4 are strictly observed and
followed. For purposes of this Agreement, the term "Affiliate" has the
meaning set forth in Rule 501(b) of Regulation D promulgated under the
Securities Act of 1933, as amended (the "Securities Act").
5. Shares Fully Paid; Reservation of Shares; Inconsistent Agreements. The
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Company covenants and agrees that all Shares which may be issued upon the
exercise of the rights represented by this Warrant will, upon issuance, be
duly authorized, validly issued, fully paid and non-assessable and free of
all taxes, liens and changes with respect to the issue thereof. The
Company further covenants and agrees that, at all times during which this
Warrant may be exercised, the Company will have authorized and reserved,
for the purpose of issue upon exercise hereof, a sufficient number of
shares of authorized but unissued Common Stock, or other securities and
property, when and as required to provide for the exercise of the rights
represented by
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this Warrant. Subject to Section 8 hereof, the Company will take reasonable
steps to assure that such Shares may be issued as provided herein without
violation of any applicable law or regulation, or of any requirements of
any securities exchange upon which securities of the Company may be listed;
provided, however, that the Company shall not be required to effect a
registration under federal or state securities laws with respect to such
exercise. The Company will not on or after the date of this Warrant enter
into any agreement with respect to its securities which is inconsistent
with the rights granted the Warrantholder or otherwise conflicts with the
provisions hereof. The rights granted to the Warrantholder hereunder do not
in any way conflict with and are not inconsistent with the rights granted
to holders of the Company's securities under any other agreements, except
rights that have been waived.
6. Adjustment and Termination upon Certain Events. The Exercise Price and the
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number of Shares purchasable upon exercise of this Warrant shall be subject
to adjustment from time to time upon the occurrence of certain events
described in this Section 6. Upon each adjustment of the Exercise Price,
the Warrantholder shall thereafter be entitled to purchase, at the Exercise
Price resulting from such adjustment, the number of Shares obtained by
multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of Shares purchasable pursuant hereto immediately
prior to such adjustment, and dividing the product thereof by the Exercise
Price resulting from the adjustment.
(a) If the Company shall at any time prior to the expiration of this
Warrant subdivide its Common Stock, by stock split or otherwise, or
combine its Common Stock, or issue additional shares of its Common
Stock as a dividend with respect to any shares of its Common Stock,
the number of Shares issuable on the exercise of this Warrant shall be
forthwith 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 as provided herein, but the aggregate purchase price
payable 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 of 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 making of such dividend.
(b) In case of (i) any reclassification, capital reorganization, or change
or conversion in the Common Stock of the Company (other than as a
result of a subdivision, combination, or stock dividend provided for
in Section 6(a) above) or (ii) any dividend or distribution of Common
Stock (other than as a result of a subdivision, combination or stock
dividend provided for in Section 6(a) above), or other securities
which are at any time directly or indirectly convertible into or
exchangeable for any other securities of the Company or another
issuer, cash, evidence of indebtedness of the Company or another
issuer or any rights or options to subscribe for, purchase or
otherwise acquire any of the foregoing by way of dividend or other
distribution, then, as a condition of such reclassification,
reorganization, or change, lawful provision shall be made, and duly
executed documents evidencing the same from the Company or its
successor shall be delivered to the Warrantholder, so that the
Warrantholder shall have the right at any time prior to the expiration
of this
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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
other securities and property receivable in connection with such
reclassification, reorganization or change by a holder of the same
number of shares of Common Stock as were purchasable by the
Warrantholder immediately prior to such reclassification,
reorganization or change. In any such case appropriate provisions
shall be made with respect to the rights and interest of the
Warrantholder so that the provisions hereof shall thereafter be
applicable with respect to any Shares or other securities and property
deliverable upon exercise hereof, and appropriate adjustments shall be
made to the Exercise Price as provided herein; provided further the
aggregate purchase price shall remain the same.
(c) Notwithstanding anything else contained herein to the contrary, the
Warrant to the extent not previously exercised shall terminate upon
(i) the liquidation or dissolution of the Company, (ii) the closing of
a sale of all or substantially all of the Company's assets, or (iii)
the closing of the acquisition of the Company by another entity by
means of a merger, consolidation or other transaction or series of
related transactions, resulting in the exchange of the outstanding
shares of the Company's capital stock such that stockholders of the
Company prior to such transaction own, directly or indirectly, less
than 50% of the voting power of the surviving entity.
(d) Promptly after any adjustment to the number or class of Shares subject
to this Warrant and the Exercise Price, the Company shall give written
notice thereof to the Warrantholder, setting forth in reasonable
detail and certifying the calculation of such adjustment. In case of
any of the events described in Section 6(c) above, the Company shall
give reasonable prior written notice thereof to the Warrantholder,
which shall be at least 15 days prior to each such event, setting
forth in reasonable detail a description of any such event including,
among other things, the date on which the event is scheduled to occur;
provided, however, if a record date is set by the Company with respect
to any such event, the Company will provide the Warrantholder
reasonable prior written notice of such record date, which shall be at
least 15 days prior to such record date. Any and all notices shall be
delivered in accordance with Section 10 below.
7. Restrictions on Sale and Transfer of Shares. Prior to the first
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anniversary of the date hereof, except as provided below, the Warrantholder
shall not voluntarily Transfer the Shares received by the Warrantholder
upon such exercise or any interest in such Shares, other than to any
Affiliate of the Warrantholder that has agreed in writing to be bound by
the terms of this Agreement, without the prior written consent of the
Company, not to be unreasonably withheld or delayed . Any Transfer or
purported Transfer of any Shares acquired pursuant to this Agreement or any
interest therein shall be null and void unless the terms, conditions and
provisions of this Agreement are strictly observed and followed.
Notwithstanding the foregoing, the Warrantholder, prior to the first
anniversary of the date hereof, may exercise its piggy-back registration
rights under the Registration Rights Agreement, dated as of the date
hereof, between the Company and the Warrantholder (the "Registration Rights
Agreement") to sell Shares in a registered public offering, and thereafter
may
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sell such Shares pursuant to such registered public offering in accordance
with the terms and conditions of the Registration Rights Agreement.
8. Compliance; Application of Securities Laws. This Agreement and the offer,
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issuance and delivery of the Warrant and the Shares are subject to
compliance with all applicable federal and state laws, rules and
regulations (including but not limited to state and federal securities laws
and federal margin requirements) and to such approvals by any listing,
regulatory or governmental authority as may, in the opinion of counsel for
the Company, be necessary or advisable in connection therewith. In
furtherance of the foregoing, the Warrantholder covenants and agrees that
it will not exercise the Warrant during the Registration Period (as defined
below) except pursuant to Section 3(b) hereof. For purposes hereof,
"Registration Period" means the period of time between (i) the date of the
initial filing of the registration statement of the Company's securities
for which notice was given to the Warrantholder pursuant to Section 2 of
the Registration Rights Agreement and (ii) the earlier to occur of (x) the
termination of such registration prior to the effective time of such
registration and (y) 180 days after the effective time of such
registration.
9. Investment Representations. By execution of this Agreement, the
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Warrantholder makes the representations set forth below to the Company and
acknowledges that the Company's reliance on federal and state securities
law exemptions from registration and qualification is predicated, in part,
on such representations (all such representations being made as of the date
hereof):
(a) No Intent to Sell. The Warrantholder represents that it is acquiring
the Warrant and the Shares solely for its own account, for investment
purposes only, and not with a view to or an intent to sell, or to
offer for resale in connection with any unregistered distribution of
all or any portion of the Warrant or the Shares within the meaning of
the Securities Act, or applicable state securities laws.
(b) Accredited Investor. The Warrantholder represents that it is an
"accredited investor" as defined in Regulation D promulgated under the
Securities Act.
(c) No Reliance on Company. In evaluating the merits and risks of an
investment in the Warrant and the Shares, the Warrantholder represents
that it has and will rely upon the advice of its own legal counsel,
tax advisors, and/or investment advisors. Accordingly, the
Warrantholder hereby represents and warrants that it has reviewed the
legal, accounting, tax and other economic aspects of the
Warrantholder's investment with the Warrantholder's own advisors and
is not relying on the Company for any legal, tax, accounting or other
advice involved in the Warrantholder's investment in the Company.
(d) Relationship to and Knowledge About Company. The Warrantholder
represents that it is knowledgeable about the Company and has a
business relationship with the Company. As a result of such
relationship, it is familiar with, among other characteristics, the
Company's business and financial circumstances. The Warrantholder has
received all information it considers necessary or appropriate for
deciding whether to purchase the Warrant and the Shares hereunder,
including without limitation, a copy of the Company's Form 10, as
amended, filed with the Securities and Exchange Commission. The
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Warrantholder represents that it has formed its own conclusions
regarding the condition of the Company in response to the parties'
express intention and agreement that the sale hereunder will be
without representation and warranty of any kind (express or implied)
regarding the Company, the Warrant and the Shares. The Purchaser will
rely solely on its own business judgment and investigations with
respect to the Company, the Warrant and the Shares.
(e) Restrictions on Warrant and Shares. The Warrantholder represents that
it understands that the Warrant and the Shares are and will be
characterized as "restricted securities" under the federal securities
laws since the Warrant and the Shares are being acquired from the
Company in a transaction not involving a public offering and that
under such laws and applicable regulations such securities may be
resold without registration under the Securities Act only in certain
limited circumstances. The Warrantholder represents that it will not
to make any disposition of all or any portion of the Warrant or the
Shares, except in compliance with all applicable federal and state
securities laws and unless and until: (a) there is then in effect a
registration statement under the Securities Act covering such proposed
disposition and such disposition is made in accordance with such
registration statement; or (b) such disposition is made in accordance
with Rule 144 under the Securities Act; or (c) the Warrantholder
notifies the Company of the proposed disposition and furnishes the
Company with a statement of the circumstances surrounding the proposed
disposition, and, if requested by the Company, the Warrantholder
furnishes the Company with an opinion of counsel acceptable to the
Company's counsel, that such disposition will not require registration
under the Securities Act and will be in compliance with all applicable
state securities laws. The Warrantholder represents that it is
familiar with Rule 144 under the Securities Act and understands the
resale limitations imposed thereby and by the Securities Act and
applicable state securities laws. Except as provided in the
Registration Rights Agreement, the Company has no obligation to
register the Warrant or Shares or file any registration statement
under either federal or state securities laws,
(f) No General Solicitation. The Warrantholder represents that it was not
presented with or solicited by any promotional meeting or material
relating to the Warrant or the Shares.
(g) Share Certificate Legend. The Warrantholder represents that it
understands and acknowledges that any certificate evidencing the
Shares (or evidencing any other securities issued with respect thereto
pursuant to any stock split, stock dividend or other form of
reorganization or recapitalization) when issued shall bear, in
addition to any other legends which may be required by applicable
state securities laws, the following legend:
"OWNERSHIP OF THE SHARES EVIDENCED BY THIS CERTIFICATE AND ANY
INTEREST THEREIN ARE SUBJECT TO RESTRICTIONS ON TRANSFER UNDER
APPLICABLE LAW AND UNDER AN AGREEMENT WITH THE COMPANY, INCLUDING
RESTRICTIONS ON SALE, ASSIGNMENT, TRANSFER, PLEDGE OR OTHER
DISPOSITION, A COPY OF WHICH IS AVAILABLE
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FOR REVIEW AT THE OFFICE OF THE SECRETARY OF THE COMPANY."
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("ACT"), NOR
HAVE THEY BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES LAWS OF
ANY STATE. NO TRANSFER OF SUCH SECURITIES WILL BE PERMITTED UNLESS A
REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH TRANSFER,
THE TRANSFER IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT, OR IN
THE OPINION OF COUNSEL TO THE CORPORATION, REGISTRATION UNDER THE ACT
IS UNNECESSARY IN ORDER FOR SUCH TRANSFER TO COMPLY WITH THE ACT AND
WITH APPLICABLE STATE SECURITIES LAWS."
10. Notices. All notices, demands and other communications provided for or
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permitted under this Agreement shall be made in writing and will either be
(i) personally delivered, (ii) sent by postage prepaid certified mail,
return receipt requested, (iii) delivered by courier service, (iv)
transmitted by facsimile with confirmation of receipt by telephone, or (v)
transmitted by e-mail with confirmation of receipt by telephone, and will
be deemed to have been given when received, to:
If to the Company, to:
Roxio, Inc.
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer with a copy to internal counsel
Facsimile: 000-000-0000
e-mail: xxxxx@xxxxx.xxx; xxxxxxx@xxxxx.xxx
with a copy to:
O'Melveny & Xxxxx LLP
000 Xxxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: 000-000-0000
e-mail: xxxxxxxx@xxx.xxx
If to the Warrantholder, to:
Virgin Holdings, Inc.
c/o EMI Recorded Music, New Media Group
0000 X. Xxxx Xxxxxx, XX-0
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, VP, Business & Legal Affairs, New Media
Facsimile: (000) 000-0000
e-mail: xxxxx.xxxxxx@xxxxxx.xxx
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or to such other person or at such other address as either party shall
hereafter designate.
11. Further Assurances. Each of the parties hereto shall use its reasonable
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and diligent best efforts to execute such further documents and other
papers and perform such further acts as may be reasonably required or
desirable to carry out the provisions hereof and the transactions
contemplated herein.
12. Modifications, Amendments and Waivers. This Agreement may not be amended,
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modified or altered except by a written instrument executed by both parties
hereto in the same manner in which this Agreement has been executed.
13. Entire Agreement. This Agreement is intended to embody the final, complete
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and exclusive agreement among the parties with respect to the Warrant and
the purchase of the Shares represented thereby, is intended to supersede
all prior agreements, understandings and representations written or oral,
with respect thereto, and may not be contradicted by evidence of any such
prior or contemporaneous agreement, understanding or representation,
whether written or oral.
14. Governing Law and Venue. This Agreement is to be governed by and construed
-----------------------
in accordance with the laws of the State of California applicable to
contracts made and to be performed wholly within such state, and without
regard to the conflicts of laws principles thereof.
15. Binding Effect; Assignment. This Agreement and the rights, covenants,
--------------------------
conditions and obligations of the respective parties hereto and any
instrument or agreement executed pursuant hereto shall be binding upon the
parties and their respective successors, assigns and legal representatives.
Except as provided in Section 4 hereof, this Agreement may not be assigned
by the Warrantholder without the prior written consent of the Company.
16. Counterparts. This Agreement may be executed simultaneously in any number
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of counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. This Agreement may
be executed by facsimile signatures.
17. Section Headings. The section headings of this Agreement are for
----------------
convenience of reference only and shall not be deemed to alter or affect
any provision hereof.
18. Representation by Counsel. Any rule of law, including but not limited to,
-------------------------
Section 1654 of the California Civil Code, or any legal decision that would
require interpretation of any claimed ambiguities in this Agreement against
the party that drafted it has no application and is expressly waived.
19. Survival. The representations, warranties and agreements shall survive
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acceptance of this Agreement by the Company, exercise of the Warrant and
payment of the Exercise Price for the Shares by the Warrantholder and the
issuance of the Shares to the Warrantholder.
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20. Severability. Every provision of this Agreement is intended to be
------------
severable. If any term or provision hereof is illegal or invalid for any
reason whatsoever, then such illegality or invalidity shall not affect the
validity of the remainder of the Agreement.
21. Issue Tax. The issuance of certificates for the Shares upon the exercise
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of any portion of this Warrant shall be made without charge to the
Warrantholder for any issue tax (other than any applicable income taxes) in
respect thereof; provided, that the Company shall not be required to pay
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any tax which may be payable in respect of any transfer involved in the
issuance and delivery of any certificate in the name other than that of the
Warrantholder exercising this Warrant.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first written above.
ROXIO, INC.,
a Delaware corporation
By: /s/ Wm. Xxxxxxxxxxx Xxxxx
-----------------------------
Name:
---------------------------
Title:
--------------------------
VIRGIN HOLDINGS, INC.
a Delaware corporation
By: /s/ Xxx X. Xxxxx
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Name:
---------------------------
Title:
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S-1
EXHIBIT A
ROXIO, INC.
EXERCISE AGREEMENT
THIS EXERCISE AGREEMENT (this "Agreement") dated as of the ____ day of
______________, _____, by and between ROXIO, INC., a Delaware corporation (the
"Company"), and ________________ (the "Purchaser").
R E C I T A L S
WHEREAS, the Company has granted to the Purchaser a Warrant (the "Warrant")
to purchase a designated amount of authorized but unissued shares of common
stock of the Company and in connection therewith, the Company and the Purchaser
entered into that certain Warrant Agreement dated as of May __, 2001 (the
"Warrant Agreement") of which this Agreement is a part and incorporated therein;
WHEREAS, the Purchaser desires to exercise the Warrant and purchase from
the Company and the Company wishes to issue and sell to the Purchaser _______
shares of its common stock, par value $0.001 per share (the "Common Stock"), at
a price equal to $8.50 per share, in accordance with and subject to the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the above premises and the
representations, warranties, covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. Purchase and Sale of Common Stock. The Company shall deliver to the
---------------------------------
Purchaser a stock certificate representing the shares of Common Stock
against delivery to the Company by the Purchaser of the purchase price in
the sum of $________ (which represents the product of the $8.50 price per
share and the number of shares listed above, the "Purchase Price"), except
if the Purchaser is exercising the Warrant pursuant to Section 3(b) of the
Warrant Agreement, in which case the Purchaser shall so indicate by marking
the space provided below.
_____ Exercise Pursuant to Section 3(b) of the Warrant Agreement
2. Investment Representations. The Purchaser acknowledges that the shares of
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Common Stock are not being registered under the Securities Act of 1933, as
amended (the "Securities Act"). The Purchaser hereby affirms as made as of
the date hereof the representations, covenants and agreements made in
Section 9 of the Warrant Agreement and such representations, covenants and
agreements are incorporated herein by this reference. The Purchaser has no
need for liquidity in this investment, has the ability to bear the economic
risk of this investment, and can afford a complete loss of the Purchase
Price. The Purchaser has received the Company's consolidated financial
information which includes information material to the Company's financial
condition, operations and prospects. The Purchaser also understands and
acknowledges the restrictive legend provision contained in the Warrant
Agreement.
A-1
3. Restrictions on Shares. The shares of Common Stock acquired pursuant to
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Section 1 hereof are subject to and the Purchaser agrees to be bound by the
provisions of the Warrant Agreement, incorporated herein by this reference.
4. Miscellaneous. This Agreement shall be governed by and construed and
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enforced in accordance with the laws of the state of California. This
Agreement and the Warrant Agreement, together constitute the entire
agreement and supersede all prior understandings and agreements, written or
oral, of the parties hereto with respect to the subject matter hereof.
This Agreement may be amended by mutual agreement of the parties. Such
amendment must be in writing and signed by the Company. The Company may,
however, unilaterally waive any provision hereof in writing to the extent
such waiver does not adversely affect the interests of the Purchaser
hereunder, but no such waiver shall operate as or be construed to be a
subsequent waiver of the same provision or a waiver of any other provision
hereof.
[Signature Page Follows]
A-2
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first written above.
ROXIO, INC.,
By:___________________________
Name:_________________________
Title:________________________
[PURCHASER]
By:___________________________
Name:_________________________
Title:________________________
A-3
