Exhibit 10.13
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED OR ANY STATE SECURITIES LAWS. NO SALE OR DISPOSITION MAY BE EFFECTED
WITHOUT (i) EFFECTIVE REGISTRATION STATEMENTS RELATED THERETO, (ii) AN
OPINION OF COUNSEL OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE COMPANY,
THAT SUCH REGISTRATIONS ARE NOT REQUIRED, (iii) RECEIPT OF NO-ACTION LETTERS
FROM THE APPROPRIATE GOVERNMENTAL AUTHORITIES, OR (iv) OTHERWISE COMPLYING
WITH THE PROVISIONS OF SECTION 7 OF THIS WARRANT.
ZAPME! CORPORATION
WARRANT TO PURCHASE 390 SHARES
OF SERIES D PREFERRED STOCK
THIS CERTIFIES THAT, for value received, FIRSTCORP and its assignees
are entitled to subscribe for and purchase 390 shares of the fully paid and
nonassessable Series D Preferred Stock (as adjusted pursuant to Section 4
hereof, the "Shares") of ZAPME! CORPORATION, a California corporation (the
"Company"), at the price of $5.00 per share (such price and such other price
as shall result, from time to time, from the adjustments specified in Section
4 hereof is herein referred to as the "Warrant Price"), subject to the
provisions and upon the terms and conditions hereinafter set forth. As used
herein, (a) the term "Series D Preferred" shall mean the Company's presently
authorized Series D Preferred Stock, and any stock into or for which such
Series D Preferred Stock may hereafter be converted or exchanged and (b) the
term "Date of Grant" shall mean February 23, 1999.
1. TERM. The purchase right represented by this Warrant is
exercisable, in whole or in part, at any time and from time to time from the
Date of Grant through the earlier of (i) seven (7) years after the Date of
Grant or (ii) the closing of the Company's initial public offering of its
Common Stock effected pursuant to a Registration Statement on Form S-1 (or
any successor form thereto) filed under the Securities Act of 1933, as
amended (the "Act").
2. METHOD OF EXERCISE PAYMENT: ISSUANCE OF NEW WARRANT. Subject to
Section 1 hereof, the purchase right represented by this Warrant may be
exercised by the holder hereof, in whole or in part and from time to time, at
the election of the holder hereof, by (a) the surrender of this Warrant (with
the notice of exercise substantially in the form attached hereto as EXHIBIT A
duly completed and executed) at the principal office of the Company and by
the payment to the Company, by certified or bank check, or by wire transfer
to an account designated by the Company (a "Wire Transfer") of an amount
equal to the then applicable Warrant Price multiplied by the number of Shares
then being purchased, or (b) if in connection with a registered public
offering of the Company's securities, the surrender of this Warrant (with the
notice of exercise form attached hereto as EXHIBIT A-1 duly completed and
executed) at the principal office of the Company together with notice of
arrangements reasonably satisfactory to the Company for payment to the
Company either by certified or bank check or by Wire Transfer from the
proceeds of the sale of shares to be sold by the holder in such public
offering of an amount equal to the then applicable Warrant Price per share
multiplied by the number of Shares then being purchased or (c) exercise of
the Conversion Right provided for in Section 10.2 hereof. The person or
persons in whose name(s) any certificate(s) representing shares of Series D
Preferred shall be issuable upon exercise of this warrant shall be deemed to
have become the holder(s) of record of, and shall be treated for all purposes
as the record holder(s) of, the shares represented thereby (and such shares
shall be deemed to have been issued)
immediately prior to the close of business on the date or dates upon which
this Warrant is exercised. In the event of any exercise of the rights
represented by this Warrant, certificates for the shares of stock so
purchased shall be delivered to the holder hereof as soon as possible and in
any event within thirty (30) days after such exercise and, unless this
Warrant has been fully exercised or expired, a new Warrant representing the
portion of the Shares, if any, with respect to which this Warrant shall not
then have been exercised shall also be issued to the holder hereof as soon as
possible and in any event within such thirty-day period.
3. STOCK FULLY PAID RESERVATION OF SHARES. All Shares that may be
issued upon the exercise of the rights represented by this Warrant will, upon
issuance pursuant to the terms and conditions herein, be fully paid and
nonassessable, and free from all taxes, liens and charges with respect to the
issue thereof. During the period within which the rights represented by this
Warrant may be exercised, the Company will at all times have authorized, and
reserved for the purpose of the issue upon exercise of the purchase rights
evidenced by this Warrant, a sufficient number of shares of its Series D
Preferred to provide for the exercise of the rights represented by this
Warrant and a sufficient number of shares of its Common Stock to provide for
the conversion of the Series D Preferred into Common Stock.
4. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES. The number
and kind of securities purchasable upon the exercise of this Warrant and the
Warrant Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
(a) RECLASSIFICATION OR MERGER. In case of any
reclassification or change of securities of the class issuable upon exercise
of this Warrant (other than a change in par value, or from par value to no
par value, or from no par value to par value, or as a result of a subdivision
or combination), or in case of any merger of the Company with or into another
corporation (other than a merger with another corporation in which the
Company is the acquiring and the surviving corporation and which does not
result in any reclassification or change of outstanding securities issuable
upon exercise of this Warrant) or in case of any sale of all or substantially
all of the assets of the Company, the Company, or such successor or
purchasing corporation, as the case may be, shall duly execute and deliver to
the holder of this Warrant a new Warrant (in form and substance satisfactory
to the holder of this Warrant), so that the holder of this Warrant shall have
the right to receive, at a total purchase price not to exceed that payable
upon the exercise of the unexercised portion of this Warrant, and in lieu of
the shares of Series D Preferred theretofore issuable upon exercise of this
Warrant, the kind and amount of shares of stock, other securities, money and
property receivable upon such reclassification, change or merger by a holder
of the number of shares of Series D Preferred then purchasable under this
Warrant. Such new Warrant shall provide for adjustments that shall be as
nearly equivalent as may be practicable to the adjustments provided for in
this Section 4. The provisions of this subparagraph (a) shall similarly apply
to successive reclassifications, changes, mergers and transfers.
(b) SUBDIVISION OR COMBINATION OF SHARES. If the Company at
any time while this Warrant remains outstanding and unexpired shall subdivide
or combine its outstanding shares of Series D Preferred, the Warrant Price
shall be proportionately decreased in the case of a subdivision or increased
in the case of a combination, effective at the close of business on the date
the subdivision or combination becomes effective.
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(c) STOCK DIVIDENDS AND OTHER DISTRIBUTIONS. If the Company
at any time while this Warrant is outstanding and unexpired shall (i) pay a
dividend with respect to Series D Preferred payable in Series D Preferred, or
(ii) make any other distribution with respect to Series D Preferred (except
any distribution specifically provided for in Sections 4(a) and 4(b)), of
Series D Preferred, then the Warrant Price shall be adjusted, from and after
the date of determination of shareholders entitled to receive such dividend
or distribution, to that price determined by multiplying the Warrant Price in
effect immediately prior to such date of determination by a fraction (i) the
numerator of which shall be the total number of shares of Series D Preferred
outstanding immediately prior to such dividend or distribution, and (ii) the
denominator of which shall be the total number of shares of Series D
Preferred outstanding immediately after such dividend or distribution.
(d) ADJUSTMENT OF NUMBER OF SHARES. Upon each adjustment in
the Warrant Price, the number of Shares of Series D Preferred purchasable
hereunder shall be adjusted, to the nearest whole share, to the product
obtained by multiplying the number of Shares purchasable immediately prior to
such adjustment in the Warrant Price by a fraction, the numerator of which
shall be the Warrant Price immediately prior to such adjustment and the
denominator of which shall be the Warrant Price immediately thereafter.
5. NOTICE OF ADJUSTMENTS. Whenever the Warrant Price or the number
of Shares purchasable hereunder shall be adjusted pursuant to Section 4
hereof, the Company shall make a certificate signed by its chief financial
officer setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated, and the Warrant Price and the number of Shares purchasable
hereunder after giving effect to such adjustment, and shall cause copies of
such certificate to be mailed (without regard to Section 13 hereof, by first
class mail, postage prepaid) to the holder of this Warrant. In addition,
whenever the conversion price or conversion ratio of the Series D Preferred
shall be adjusted, the Company shall make a certificate signed by its chief
financial officer setting forth, in reasonable detail, the event requiring
the adjustment, the amount of the adjustment, the method by which such
adjustment was calculated, and the conversion price or ratio of the Series D
Preferred after giving effect to such adjustment, and shall cause copies of
such certificate to be mailed (without regard to Section 13 hereof, by first
class mail, postage prepaid) to the holder of this warrant.
6. FRACTIONAL SHARES. No fractional shares of Series D Preferred
will be issued in connection with any exercise hereunder, but in lieu of such
fractional shares the Company shall make a cash payment therefor based on the
fair market value of the Series D Preferred on the date of exercise as
reasonably determined in good faith by the Company's Board of Directors.
7. COMPLIANCE WITH ACT; DISPOSITION OF WARRANT OR SHARES OF SERIES
D PREFERRED.
(a) COMPLIANCE WITH ACT. The holder of this Warrant, by
acceptance hereof, agrees that this Warrant, and the shares of Series D
Preferred to be issued upon exercise hereof and any Common Stock issued upon
conversion thereof are being acquired for investment and that such holder
will not offer, sell or otherwise dispose of this Warrant, or any shares of
Series D Preferred to be issued upon exercise hereof or any Common Stock
issued upon conversion thereof except under circumstances which will not
result in a violation of the Act or any applicable state securities laws.
Upon exercise of this Warrant, unless the Shares being acquired are
registered under the Act and any applicable state securities laws or an
exemption from such registration is available, the holder hereof shall
confirm in writing that
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the shares of Series D Preferred so purchased (and any shares of Common Stock
issued upon conversion thereof) are being acquired for investment and not
with a view toward distribution or resale in violation of the Act and shall
confirm such other matters related thereto as may be reasonably requested by
the Company. This Warrant and all shares of Series D Preferred issued upon
exercise of this Warrant and all shares of Common Stock issued upon
conversion thereof (unless registered under the Act and any applicable state
securities laws) shall be stamped or imprinted with a legend in substantially
the following form:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. NO SALE OR
DISPOSITION MAY BE EFFECTED WITHOUT (i) EFFECTIVE REGISTRATION STATEMENTS
RELATED THERETO, (ii) AN OPINION OF COUNSEL OR OTHER EVIDENCE, REASONABLY
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATIONS ARE NOT REQUIRED, (iii)
RECEIPT OF NO-ACTION LETTERS FROM THE APPROPRIATE GOVERNMENTAL AUTHORITIES,
OR (iv) OTHERWISE COMPLYING WITH THE PROVISIONS OF SECTION 7 OF THE WARRANT
UNDER WHICH THESE SECURITIES WERE ISSUED, DIRECTLY OR INDIRECTLY."
Said legend shall be removed by the Company, upon the request of a
holder, at such time as the restrictions on the transfer of the applicable
security shall have terminated. In addition, in connection with the issuance
of this Warrant, the holder specifically represents to the Company by
acceptance of this Warrant as follows:
(1) The holder is aware of the Company's business
affairs and financial condition, and has acquired information about the
Company sufficient to reach an informed and knowledgeable decision to acquire
this Warrant. The holder is acquiring this Warrant for its own account for
investment purposes only and not with a view to, or for the resale in
connection with, any "distribution" thereof in violation of the Act.
(2) The holder understands that this Warrant has not
been registered under the Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of the holder's investment intent as expressed herein.
(3) The holder further understands that this Warrant
must be held indefinitely unless subsequently registered under the Act and
qualified under any applicable state securities laws, or unless exemptions
from registration and qualification are otherwise available. The holder is
aware of the provisions of Rule 144, promulgated under the Act.
(b) DISPOSITION OF WARRANT OR SHARES. With respect to any
offer, sale or other disposition of this Warrant or any shares of Series D
Preferred acquired pursuant to the exercise of this Warrant prior to
registration of such Warrant or shares, the holder hereof agrees to give
written notice to the Company prior thereto, describing briefly the manner
thereof, together with a written opinion of such holder's counsel, or other
evidence, if reasonably requested by the Company, to the effect that such
offer, sale or other disposition may be effected without registration or
qualification (under the Act as then in effect or any federal or state
securities law then in effect) of this Warrant or such shares of Series D
Preferred or Common Stock and indicating whether or not under the Act
certificates for this Warrant or
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such shares of Series D Preferred to be sold or otherwise disposed of require
any restrictive legend as to applicable restrictions on transferability in
order to ensure compliance with such law. Promptly upon receiving such
written notice and reasonably satisfactory opinion or other evidence, if so
requested, the Company, as promptly as practicable but no later than twenty
(20) days after receipt of the written notice, shall notify such holder that
such holder may sell or otherwise dispose of this Warrant or such shares of
Series D Preferred or Common Stock, all in accordance with the terms of the
notice delivered to the Company. If a determination has been made pursuant to
this Section 7(b) that the opinion of counsel for the holder or other
evidence is not reasonably satisfactory to the Company, the Company shall so
notify the holder promptly with details thereof after such determination has
been made. Notwithstanding the foregoing, this Warrant or such shares of
Series D Preferred or Common Stock may, as to such federal laws, be offered,
sold or otherwise disposed of in accordance with Rule 144 or 144A under the
Act, provided that the Company shall have been furnished with such
information as the Company may reasonably request to provide a reasonable
assurance that the provisions of Rule 144 or 144A have been satisfied. Each
certificate representing this Warrant or the shares of Series D Preferred
thus transferred (except a transfer pursuant to Rule 144 or 144A) shall bear
a legend as to the applicable restrictions on transferability in order to
ensure compliance with such laws, unless in the aforesaid opinion of counsel
for the holder, such legend is not required in order to ensure compliance
with such laws. The Company may issue stop transfer instructions to its
transfer agent in connection with such restrictions.
(c) APPLICABILITY OF RESTRICTIONS. Neither any restrictions
of any legend described in this Warrant nor the requirements of Section 7(b)
above shall apply to any transfer of, or grant of a security interest in,
this Warrant (or the Series D Preferred or Common Stock obtainable upon
exercise thereof) or any part hereof (i) to a partner of the holder if the
holder is a partnership, (ii) to a partnership of which the holder is a
partner, or (iii) to any affiliate of the holder if the holder is a
corporation; PROVIDED, HOWEVER, in any such transfer, if applicable, the
transferee shall on the Company's request agree in writing to be bound by the
terms of this Warrant as if an original signatory hereto.
8. RIGHTS AS SHAREHOLDERS; INFORMATION. No holder of this Warrant,
as such, shall be entitled to vote or receive dividends or be deemed the
holder of Series D Preferred or any other securities of the Company which may
at any time be issuable on the exercise hereof for any purpose, nor shall
anything contained herein be construed to confer upon the holder of this
Warrant, as such, any of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to receive notice of meetings, or to
receive dividends or subscription rights or otherwise until this Warrant
shall have been exercised and the Shares purchasable upon the exercise hereof
shall have become deliverable, as provided herein.
9. REGISTRATION RIGHTS. The Company hereby agrees to grant
piggyback registration rights to the holder of this Warrant pursuant to
Section 1.4 of the Amended and Restated Investors' Rights Agreement dated
September 29, 1998, by and among the Company and the Investors set forth on
Exhibit A thereto (the "Investors' Rights Agreement"), for any Common Stock
of the Company obtained upon conversion of the Series D Preferred. The
Company will add the holder of this Warrant as a party to the Investors'
Rights Agreement and the shares of Common Stock issued or issuable upon
conversion of the Series D Preferred issued pursuant to the exercise of this
Warrant shall be deemed "Registrable Securities" for purposes of Section 1.4
thereof.
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10. ADDITIONAL RIGHTS.
10.1 MERGERS. The Company shall provide the holder of this Warrant
with at least five (5) business days' notice of the terms and conditions of
any of the following potential transactions; (i) the sale, lease, exchange,
conveyance or other disposition of all or substantially all of the Company's
property or business, or (ii) its merger into or consolidation with any other
corporation (other than a wholly-owned subsidiary of the Company), or any
transaction (including a merger or other reorganization) or series of related
transactions, in which more than 50% of the voting power of the Company is
disposed of.
10.2 RIGHT TO CONVERT WARRANT INTO STOCK: NET ISSUANCE.
(a) RIGHT TO CONVERT. In addition to and without limiting
the rights of the holder under the terms of this Warrant, the holder shall
have the right to convert this Warrant (the "Conversion Right") into shares
of Series D Preferred (or Common Stock if the Series D Preferred has been
automatically converted into Common Stock) as provided in this Section 10.2
at any time during the term of this Warrant. Upon exercise of the Conversion
Right with respect to the number of shares subject to this Warrant (the
"Converted Warrant Shares"), the Company shall deliver to the holder (without
payment by the holder of any exercise price or any cash or other
consideration) (X) that number of shares of fully paid and nonassessable
Series D Preferred (or Common Stock if the Series D Preferred has been
automatically converted into Common Stock) equal to the quotient obtained by
dividing the value of this Warrant on the Conversion Date (as defined in
subsection (b) hereof), which value shall be determined by subtracting (A)
the aggregate Warrant Price of the Converted Warrant Shares immediately prior
to the exercise of the Conversion Right from (B) the aggregate fair market
value of the Converted Warrant Shares issuable upon exercise of this Warrant
on the Conversion Date (as herein defined) by (Y) the fair market value of
one share of Series C Preferred (or Common Stock if the Series D Preferred
has been automatically converted into Common Stock) on the Conversion Date
(as herein defined).
Expressed as a formula, such conversion (assuming the Series D
Preferred has been automatically converted into Common Stock) shall be
computed as follows:
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X= B - A
------
Y
Where: X = the number of shares of Common Stock that may
be issued to holder
Y = the fair market value of one share of
Common Stock
A = the aggregate Warrant Price (i.e., Converted
Warrant Shares x Warrant Price)
B = the aggregate fair market value (i.e., fair market value x
Converted Warrant Shares)
No fractional shares shall be issuable upon exercise of the Conversion
Right, and, if the number of shares to be issued determined in accordance
with the foregoing formula is other than a whole number, the Company shall
pay to the holder an amount in cash equal to the fair market value of the
resulting fractional share on the Conversion Date (as hereinafter defined).
For purposes of Section 9 of this Warrant, shares issued pursuant to the
Conversion Right shall be treated as if the), were issued upon the exercise
of this Warrant.
(b) METHOD OF EXERCISE. The Conversion Right may be
exercised by the holder by the surrender of this Warrant at the principal
office of the Company together with a written statement specifying that the
holder thereby intends to exercise the Conversion Right and indicating the
number of shares subject to this Warrant which are being surrendered
(referred to in Section 10.2(a) hereof as the Converted Warrant Shares) in
exercise of the Conversion Right. Such conversion shall be effective upon
receipt by the Company of this Warrant together with the aforesaid written
statement, or on such later date as is specified therein (the "Conversion
Date"), and, at the election of the holder hereof, may be made contingent
upon the closing of the sale of the Company's Common Stock to the public in a
public offering pursuant to a Registration Statement under the Act (a "Public
Offering"). Certificates for the shares issuable upon exercise of the
Conversion Right and, if applicable, a new warrant evidencing the balance of
the shares remaining subject to this Warrant, shall be issued as of the
Conversion Date and shall be delivered to the holder within thirty (30) days
following the Conversion Date. Any conversion from Series D Preferred to
Common Stock shall be in the ratio of one (1) share of Common Stock for each
share of Series D Preferred (as adjusted herein and in the Charter). On the
Date of Grant, each share of the Series D Preferred represented by this
Warrant is convertible into one share of Common Stock.
(c) DETERMINATION OF FAIR MARKET VALUE. For purposes of this
Section 10.2. "fair market value" of a share of Series D Preferred (or Common
Stock if the Series D Preferred has been automatically converted into Common
Stock) as of a particular date (the "Determination Date") shall mean:
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(i) If the Conversion Right is exercised in connection with
and contingent upon a Public Offering, and if the Company's Registration
Statement relating to such Public Offering has been declared effective by the
SEC, then the initial "Price to Public" specified in the final prospectus
with respect to such offering.
(ii) If the Conversion Right is not exercised in connection
with and contingent upon a Public Offering, then the fair market value shall
be as determined in good faith by the Board of Directors of the Company.
10.3 EXERCISE PRIOR TO EXPIRATION. To the extent this Warrant is not
previously exercised as to all of the Shares subject hereto, and if the fair
market value of one share of the Series D Preferred is greater than the
Warrant Price then in effect, this Warrant shall be deemed automatically
exercised pursuant to Section 10.2 above (even if not surrendered)
immediately before its expiration. For purposes of such automatic exercise,
the fair market value of one share of the Series D Preferred upon such
expiration shall be determined pursuant to Section 10.2(c). To the extent
this Warrant or any portion thereof is deemed automatically exercised
pursuant to this Section 10.3, the Company agrees to promptly notify the
holder hereof of the number of Shares, if any, the holder hereof is to
receive by reason of such automatic exercise.
11. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the holder of this Warrant as follows:
(a) This Warrant has been duly authorized and executed by
the Company and is a valid and binding obligation of the Company enforceable
in accordance with its terms, subject to laws of general application relating
to bankruptcy, insolvency and the relief of debtors and the rules of law or
principles at equity governing specific performance, injunctive relief and
other equitable remedies;
(b) The Shares have been duly authorized and reserved for
issuance by the Company and, when issued in accordance with the terms hereof,
will be validly issued, fully paid and non-assessable;
(c) The rights, preferences, privileges and restrictions
granted to or imposed upon the Series D Preferred and the holders thereof are
as set forth in the Company's Articles of Incorporation, as amended to the
Date of the Grant, a true and complete copy of which has been delivered to
the original holder of this Warrant and is attached hereto as EXHIBIT B;
(d) The shares of Common Stock issuable upon conversion of
the Shares have been duly authorized and reserved for issuance by the Company
and, when issued in accordance with the terms hereof and of the Company's
Articles of Incorporation will be validly issued, fully paid and
nonassessable;
(e) The execution and delivery of this Warrant are not, and
the issuance of the Shares upon exercise of this Warrant in accordance with
the terms hereof will not be, inconsistent with the Company's Articles of
Incorporation or by-laws, do not and will not contravene any law,
governmental rule or regulation, judgment or order applicable to the Company,
and do not and will not conflict with or contravene any provision of, or
constitute a default under, any indenture, mortgage, contract or other
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instrument of which the Company is a party or by which it is bound or require
the consent or approval of the giving of notice to, the registration or
filing with or the taking of any action in respect of or by any Federal,
state or local government authority or agency or other person, except for the
filing of notices pursuant to federal and state securities laws, which
filings will be effected by the time required thereby; and
(f) There are no actions, suits, audits, investigations or
proceedings pending or to the knowledge of the Company, threatened against
the Company in any court or before any governmental commission, board or
authority which, if adversely determined, will have a material adverse effect
on the ability of the Company to perform its obligations under this Warrant.
12. MODIFICATION AND WAIVER. This Warrant and any provision 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.
13. NOTICES. Any notice, request, communication or other document
required or permitted to be given or delivered to the holder hereof or the
Company shall be delivered, or shall be sent by certified or registered mail,
postage prepaid, to each such holder at its address as shown on the books of
the Company or to the Company at the address indicated therefor on the
signature page of this Warrant.
14. BINDING EFFECT ON SUCCESSORS. This Warrant shall be binding
upon any corporation succeeding the Company by merger, consolidation or
acquisition of all or substantially all of the Company's assets, and all of
the obligations of the Company relating to the Series D Preferred issuable
upon the exercise or conversion of this Warrant shall survive the exercise,
conversion and termination or this Warrant and all of the covenants and
agreements of the Company shall inure to the benefit of the successors and
assigns of the holder hereof.
15. LOST WARRANTS OR STOCK CERTIFICATES. The Company covenants to
the holder hereof that upon receipt of evidence satisfactory to the Company
of the loss, theft, destruction or mutilation of this Warrant or any stock
certificate and, in the case of any such loss, theft or destruction, upon
receipt of an indemnity satisfactory to the Company, or in the case of any
such mutilation, upon surrender and cancellation of such Warrant or stock
certificate, the Company will make and deliver a new Warrant or stock
certificate, of like tenor, in lieu of the lost, stolen, destroyed or
mutilated Warrant or stock certificate.
16. DESCRIPTIVE HEADINGS. The descriptive headings of the several
paragraphs of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant. The language in this Warrant shall be
construed as to its fair meaning without regard to which party drafted this
Warrant.
17. GOVERNING LAW. This Warrant shall be construed and enforced in
accordance with and the rights of the parties shall be governed by, the laws
of the State of California.
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18. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations and warranties of the Company and the holder hereof contained
herein shall survive the Date of Grant, the exercise or conversion of this
Warrant (or any part hereof) or the termination or expiration of rights
hereunder. All agreements of the Company and the holder hereof contained
herein shall survive indefinitely until, by their respective terms, they are
no longer operative.
19. REMEDIES. In case any one or more of the covenants and
agreements contained in this Warrant shall have been breached, the holders
hereof (in the case of a breach by the Company), or the Company (in the case
of a breach by a holder), may proceed to protect and enforce their or its
rights either by suit in equity and/or by action at law, including, but not
limited to, an action for damages as a result of any such breach and/or an
action for specific performance of any such covenant or agreement contained
in this Warrant.
20. NO IMPAIRMENT OF RIGHTS. The Company will not, by amendment of
its Articles of Incorporation or through any other means, 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 of this Warrant against impairment.
21. SEVERABILITY. The invalidity or unenforceability of any
provision of this Warrant in any jurisdiction shall not affect the validity
or enforceability of such provision in any other jurisdiction, or affect any
other provision of this Warrant, which shall remain in full force and effect.
22. RECOVERY OF LITIGATION COSTS. If any legal action or other
proceeding is brought for the enforcement of this Warrant, or because of an
alleged dispute, breach, default, or misrepresentation in connection with any
of the provisions of this Warrant, the successful or prevailing party or
parties shall be entitled to recover, reasonable attorneys' fees and other
costs incurred in that action or proceeding, in addition to any other relief
to which it or they may be entitled.
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23. ENTIRE AGREEMENT; MODIFICATION. This Warrant constitutes the
entire agreement between the parties pertaining to the subject matter
contained in it and supersedes all prior and contemporaneous agreements,
representations, and undertakings of the parties, whether oral or written,
with respect to such subject matter.
ZAPME! CORPORATION
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Title Secretary
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EXHIBIT A
NOTICE OF EXERCISE
To: ZAPME! CORPORATION
1. The undersigned hereby:
/ / elects to purchase _____________ shares of Series D
Preferred Stock of ZapMe! Corporation pursuant to the
terms of the attached Warrant and tenders herewith
payment of the purchase price of such shares in full, or
/ / elects to exercise its net issuance rights pursuant to
Section 10.2 of the attached Warrant with respect to
_______________ Shares of Series D Preferred Stock.
2. Please issue a certificate or certificates representing said
shares in the name of the undersigned or in such other name or names as are
specified below:
____________________________
(Name)
____________________________
____________________________
(Address)
3. The undersigned represents that the aforesaid shares are being
acquired for the account of the undersigned for investment and not with a
view to, or for resale in connection with, the distribution thereof and that
the undersigned has no present intention of distributing or reselling such
shares, all except as in compliance with applicable securities laws.
_____________________________
(Signature)
_____________________________
(Date)
-12-
EXHIBIT A-1
NOTICE OF EXERCISE
To: ZAPME! CORPORATION (the "Company")
1. Contingent upon and effective immediately prior to the closing
(the "Closing") of the Company's public offering contemplated by the
Registration Statement on Form S____ filed _____________ , 19__ , the
undersigned hereby:
/ / elects to purchase ______________ shares of Series D
Preferred Stock of the Company (or such lesser number of
shares as may be sold on behalf of the undersigned at
the Closing) pursuant to the terms of the attached
Warrant, or
/ / elects to exercise its net issuance rights pursuant to
Section 10.3 of the attached Warrant with respect to
______________ Shares of Series D Preferred Stock.
2. Please deliver to the custodian for the selling shareholders a
stock certificate representing such _____________ shares.
3. The undersigned has instructed the custodian for the selling
shareholders to deliver to the Company $_______________ or, if less, the net
proceeds due the undersigned from the sale of shares in the aforesaid public
offering. If such net proceeds are less than the purchase price for such
shares, the undersigned agrees to deliver the difference to the Company prior
to the Closing.
______________________
(Signature)
_______________________
(Date)
-13-
EXHIBIT B
Articles of Incorporation
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