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EXHIBIT 10.14
STOCK AND WARRANT PURCHASE AGREEMENT BETWEEN THE COMPANY AND THE PERSONS LISTED
ON EXHIBIT A THERETO DATED AS OF MAY 12, 2000, AND FORM OF WARRANT TO PURCHASE
COMMON STOCK OF ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC. DATED MAY 12, 2000
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STOCK AND WARRANT PURCHASE AGREEMENT
This Stock and Warrant Purchase Agreement (the "Agreement") is
entered into as of May 12, 2000, by and between @▇▇▇.▇▇▇, Inc., a Delaware
corporation (the "Company"), and the persons and entities listed on Exhibit A
attached to this Agreement (collectively, the "Purchasers" and individually a
"Purchaser").
WHEREAS, each Purchaser, at various times during March 2000,
subscribed to purchase shares of the Company's common stock, either directly or
through an affiliate;
WHEREAS, as an inducement to subscribe to purchase the shares, the
Company agreed to issue to each Purchaser a warrant to purchase 1.7 shares of
common stock held by the Company in its subsidiary, ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a
Delaware corporation ("ReceiptCity"), for each Company share subscribed for;
WHEREAS, in connection with such subscriptions, at various times
during March 2000, the Purchasers each paid the purchase price of the shares to
which they had subscribed;
WHEREAS, pursuant to the terms and conditions of this Agreement,
the parties wish to provide for the issuance of the shares and the warrants to
the Purchasers.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. PURCHASE AND SALE OF SHARES; ISSUANCE OF WARRANTS
(a) Purchase and Sale of Shares. Subject to the terms and
conditions set forth herein, the Company hereby issues and sells to each
Purchaser, and each Purchaser hereby purchases from the Company, the number of
shares of the Company's common stock set forth opposite such Purchaser's name on
Exhibit A attached to this Agreement (the "Shares"), at a price of $4.50 per
Share, or the total purchase price indicated for such Purchaser on Exhibit A.
The Company acknowledges receipt from each Purchaser of the purchase price of
the Shares, in connection with the Purchaser's subscription in March 2000, and
agrees to deliver to each Purchaser a certificate representing the Shares
purchased by that Purchaser as soon as practical after the date of this
Agreement.
(b) Issuance of Warrants. Subject to the terms and conditions set
forth herein, the Company hereby issues to each Purchaser, and each Purchaser
accepts the issuance of, a warrant in the form of Exhibit B attached to this
Agreement, to purchase from the Company the number of shares of ReceiptCity
common stock set forth opposite such Purchaser's name on Exhibit A attached to
this Agreement (the "Warrants").
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2. REPRESENTATIONS AND WARRANTIES OF PURCHASERS
Each Purchaser represents and warrants to the Company as follows,
it being understood that the Purchasers make no other representations or
warranties of any nature whatsoever, express or implied, to the Company with
respect to the transactions contemplated hereby:
(a) If the Purchaser is an entity, the execution, delivery and
performance of this Agreement and the purchase of the Shares and acceptance of
the Warrants have been duly and effectively authorized by all necessary action
on the part of the Purchaser. This Agreement has been duly executed and
delivered by the Purchaser and constitutes the legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms, except as limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' right generally, and (ii) laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies.
(b) The Purchaser is not subject to any agreement, instrument,
order, law, rule, regulation, judgment, decree or any other restriction of any
kind or character which would prevent consummation of the transactions
contemplated hereby.
(c) The Purchaser is an "accredited investor" as defined in
Section 501(a) of Regulation D promulgated under the Securities Act of 1933, as
amended (the "1933 Act"). The Purchaser has the financial resources to bear the
economic risk of the Purchaser's investment in the Company and has sufficient
knowledge and experience in financial and business matters to evaluate the risks
and merits of an investment in the Company.
(d) The Purchaser has had access to and has obtained such
information regarding the Company and ReceiptCity, and their business and
financial conditions, operations, prospects and investments as the Purchaser has
deemed necessary to enable the Purchaser to enter into this Agreement and
purchase the Shares and accept the Warrant. The Purchaser has personally made
such independent investigations of the Company and ReceiptCity as the Purchaser
deems necessary and advisable and has been supplied with all information and
data which the Purchaser believes is necessary to reach an informed decision as
to the advisability of purchasing the Shares and accepting the Warrant. The
Purchaser has consulted with legal counsel and accounting and financial advisors
to the extent the Purchaser deems necessary and appropriate.
(e) The Purchaser understands and acknowledges that: (i) the
Shares, the Warrant, and the shares of ReceiptCity common stock issuable upon
exercise of the Warrant (the "Warrant Shares" and collectively with the Shares
and the Warrant, the "Securities") will be "restricted securities" as defined in
Rule 144 ("Rule 144") promulgated under the 1933 Act, have not been registered
under the 1933 Act or under any state securities laws and, as such, cannot be
resold or otherwise transferred unless they are registered in accordance with
the 1933 Act and applicable state securities laws or exemptions from
registration are available; (ii) the Company is under no obligation to register
the Securities or to permit or facilitate sales under Rule 144 or under any
other exemption from the registration requirements of the 1933 Act or any state
securities laws, and the Purchaser will have no right with respect to such
registration of the Securities (except as otherwise provided in this Agreement
and in the Warrant
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Agreement); and (iii) no federal or state agency has made any recommendation or
endorsement of the Securities.
(f) The Shares and the Warrant are being acquired for investment
purposes for the Purchaser's own account and not with a view to resale or
distribution. No other person has or will have any interest or participation in
the Share or the Warrant, or any right to acquire an interest therein from the
Purchaser.
(g) The Purchaser has adequate means of providing for the
Purchaser's current needs and personal contingencies and has no need for
liquidity in this investment.
(h) The Purchaser understands and acknowledges that the Company is
relying to a material degree on the representations contained herein and, with
such realization, authorizes the Company to act as it may see fit in reliance
thereon, including the placement on the certificates evidencing the Shares of
legends describing the restrictions applicable to the Shares.
(i) The Purchaser is a resident of the state or nation indicated
in such Purchaser's address shown on Exhibit A to this Agreement, and has no
present intention of becoming a resident of any other state or jurisdiction.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to each Purchaser as follows,
it being understood that the Company makes no other representations or
warranties of any nature whatsoever, express or implied, to the Purchasers with
respect to the transactions contemplated hereby:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware with all requisite
corporate power and authority to own its properties and assets and carry on its
business as now conducted.
(b) The Company has the requisite corporate power and authority to
enter into this Agreement and to consummate any transactions contemplated hereby
and to otherwise carry out its obligations hereunder.
(c) The execution, delivery and performance of this Agreement, the
issuance and sale of the Securities have been duly and effectively authorized by
all necessary corporate action on the part of the Company. This Agreement
constitutes, and the Warrants, when issued and delivered, will constitute, the
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, except as limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors' right generally, and
(ii) laws relating to the availability of specific performance, injunctive
relief or other equitable remedies.
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(d) The execution, delivery and performance of this Agreement by
the Company and the performance of the Company of its obligations hereunder do
not and will not (i) conflict with or violate any provision of its certificate
of incorporation or bylaws (each as amended through the date hereof), (ii)
conflict with, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any rights of
termination, amendment, cancellation of, any agreement, indenture or instrument
to which the Company is a party, or (iii) to the knowledge of the Company result
in a violation of any law, rule, regulation, order, judgment, injunction, decree
or other restriction of any court or governmental authority to which the Company
is subject (including Federal and state securities laws and regulations), or by
which any property or asset of the Company is bound or affected, except in the
case of each of clauses (ii) and (iii), such conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations as could not,
individually or in the aggregate, (x) adversely affect the legality, validity or
enforceability of this Agreement, or (y) have a material adverse effect on the
Company or adversely impair the Company's ability to perform fully on a timely
basis its obligations under this Agreement. To the knowledge of the Company, the
business of the Company is not being conducted in violation of any law,
ordinance or regulation of any governmental authority.
(e) The Company and its subsidiaries (i) have timely filed any and
all return, declaration, report, claim for refund, or information return or
statement relating to any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Section 59A of
the Internal Revenue Code of 1986, as amended (the "Code")), customs duties,
capital stock, franchise, profits, withholding, social security (or similar),
unemployment, disability, real property, personal property, sales, use,
transfer, registration, value added, alternative or add-on minimum, estimated,
or other tax of any kind whatsoever, including any interest, penalty, or
addition thereto, whether disputed or not ("Taxes"), including any schedule or
attachment thereto, and including any amendment thereof ("Tax Return"), that
they were required to file with all appropriate foreign, federal, and local
governmental agencies (and all Tax Returns fairly reflect the Company's and its
subsidiaries' operations for Tax purposes); (ii) have timely paid all Taxes owed
by them or for which they are obligated to withhold from amounts owing to any
employee (including without limitation social security taxes), creditor or third
party (other than taxes the validity of which are being contested in good faith
by appropriate proceedings); and (iii) have not waived any statute of
limitations with respect to Taxes or agreed to any extension of time with
respect to a Tax assessment or deficiency. The assessment of any additional
Taxes for periods for which Tax Returns have been filed is not expected to
exceed the recorded liability therefor, and, to the best of the Company's
knowledge, there are no material unresolved questions or claims concerning the
Company's or its subsidiaries' Tax liability. Neither the Company's nor its
subsidiaries' Tax Returns have been reviewed or audited by any foreign, federal,
or local taxing authority. There is no pending dispute with any Taxing authority
relating to any Tax Returns which, if determined adversely to the Company or its
subsidiaries, would result in the asserting by any taxing authority of any valid
deficiency in any material amount for Taxes.
(f) FIRPTA. Neither the Company nor its subsidiaries are a United
States Real Property Holding Corporation ("USRPHC") within the meaning of
Section 897(c) of the Internal Revenue Code of 1986, as amended (the "Code").
(g) The Company is not subject to any agreement, instrument,
order, law, rule, regulation, judgment, decree or any other restriction of any
kind or character which would prevent consummation of the transactions
contemplated hereby.
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(h) Neither the Company nor any of its subsidiaries (i) is in
default under or in violation of any indenture, loan or credit agreement or any
other agreement or instrument to which it is a party or by which any of its
properties is bound, (ii) is in violation of any order of any court, arbitrator
or governmental body, or (iii) is in violation of any statute, rule or
regulation of any governmental authority, except as could not, in any case of
(i) above, individually or in the aggregate, (x) adversely affect the legality,
validity or enforceability of this Agreement, or (y) have a material adverse
effect or adversely impair the Company's ability to perform fully its
obligations under this Agreement on a timely basis.
(i) Exhibits C and D to this Agreement list the authorized and
outstanding stock of ReceiptCity and the Company, respectively, and all
securities convertible into or exercisable with respect to such stock. All of
the issued and outstanding shares of the Company's stock have been duly
authorized and are validly issued and outstanding, fully paid and
non-assessable.
(j) The Warrant Shares that may be transferred to the Purchasers
upon exercise of the Warrants, when transferred in accordance with the terms of
the Warrant, will be duly authorized and validly issued, fully paid and
non-assessable.
(k) All parties to the Right of First Refusal and Co-Sale
Agreement dated as of January 26, 2000, have entered into the Waiver Agreement
dated as of the date hereof.
4. REGISTRATION RIGHTS
The Company and the Purchasers hereby agree that if, at any time,
the Company determines to prepare and file with the United States Securities and
Exchange Commission a registration statement relating to an offering for its own
account or the account of others under the 1933 Act, the Company shall send to
each Purchaser written notice of such determination and, if within twenty (20)
days after receipt of such notice, a Purchaser shall so request in writing, the
Company shall include in such registration statement all or any part of the
Shares held by that Purchaser that the Purchaser requests to be registered.
However, if in conjunction with any registration in connection with which
securities of the Company are sold to an underwriter for reoffering to the
public pursuant to an effective registration statement for the account of the
Company, the managing underwriter(s) thereof impose a limitation on the number
of shares of the Company's common stock which may be included in the
registration statement because, in such underwriter(s)' judgment, such
limitation is necessary to effect an orderly public distribution of securities
covered thereby, then the Company shall be obligated to include in such
registration statement only such limited portion of the Shares as to which the
Purchaser has requested inclusion thereunder. Any such exclusion of securities
from registration shall be made pro rata among holders seeking to include
securities pursuant to similar piggyback registration rights, and the Company
shall only so exclude Shares after it has first excluded all outstanding
securities the holders of which are not entitled by right to include in such
registration statement.
5. MISCELLANEOUS
(a) No Broker's or Finder's Fee. Each party represents to the
others that it neither is nor will be obligated for any broker's or finder's fee
or commission or other compensation in the nature thereof in connection with the
transactions contemplated hereby, and agrees to indemnify and hold
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harmless the other parties from and against any liability (and the costs and
expenses of defending against such liability or asserted liability) for any such
fee, commission or other compensation.
(b) FIRPTA. For as long as Purchasers hold Shares or Warrants (or
shares of ReceiptCity common stock acquired from the exercise of Warrants)
acquired pursuant to this Agreement, the Company and its subsidiaries will not
be a USRPHC within the meaning of Section 897(c) of the Code.
(c) Expenses. The Company shall pay the fees and legal expenses of
▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, counsel to Private Equity US Venture
Finance, for its services in connection with this financing and the transactions
contemplated hereby, in amounts not to exceed in the aggregate $3,000.00 (in
addition to the fees and legal expenses of such counsel previously paid by the
Company in connection with this transaction).
(d) Amendment; Waiver. No provision of this Agreement may be
waived or amended except in a written instrument signed, in the case of an
amendment, by both the Company and all of the Purchasers affected by such
amendment, or, in the case of a waiver, by the party against whom enforcement of
such waiver is sought. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future of any other provision, condition or requirement hereof,
nor shall any delay or omission of any party to exercise any right hereunder in
any manner impair the exercise of any such right accruing to it thereafter.
(e) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(f) Successors, Assigns and Transferability. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and assigns. Any transfer of
the Securities must be strictly in accordance with the provisions of the 1933
Act and all applicable state securities laws.
(g) Notices. All notices and other communications under or
relating to this Agreement shall be in writing and effective upon receipt.
(h) Remedies. In addition to being entitled to exercise all rights
provided herein or granted by law, including recovery of damages, the Purchasers
shall be entitled to specific performance of the obligations of the Company
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of any breach of its
obligations
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described in the foregoing sentence and hereby agrees to waive the defense that
a remedy at law would be adequate in any action for specific performance of any
such obligation.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without regard
to the conflicts of law rules and principles of such State.
(j) Entirety of the Agreement. This Agreement and, when issued and
delivered, the Warrant, constitute the entire agreement of the parties with
respect to the subject matter hereof and supersedes any and all prior agreements
or understandings with respect thereto.
(k) Headings. The headings of this Agreement are for convenience
only and shall not be taken into consideration in the interpretation of this
Agreement.
(l) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[remainder of this page is intentionally blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE COMPANY:
@▇▇▇.▇▇▇, INC.
By:
-------------------------------
----------------------------------
Printed Name and Title
THE PURCHASERS:
U.S. VENTURE L.P.
By: ▇▇▇▇▇▇▇▇▇ Capital Ventures LDC
Its: General Partner
By:
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ AND ▇▇▇▇ ▇. ▇▇▇▇▇▇, THE ▇▇▇▇▇▇ LIVING
TRUST, U/D/T DATED APRIL 18TH 1995
By:
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
▇▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇▇▇▇▇▇, AS COMMUNITY PROPERTY
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ AND SAW-CHIN FERNANDO'S LIVING
TRUST
By:
-------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ TRUST
By:
-------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Trustee
[signature page to Stock and Warrant Purchase Agreement]
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EXHIBIT A
PURCHASERS
Number of Total Purchase Number of ReceiptCity
Name and Address @▇▇▇.▇▇▇ Price of @▇▇▇.▇▇▇ Shares Covered
of Purchaser Shares Shares by Warrant
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U.S. Venture L.P. 444,444 $2,000,000.00 755,556
----------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇, 111,111 $500,000.00 188,889
The ▇▇▇▇▇▇ Living Trust, U/D/T dated
April 18th 1995
----------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇, as 111,111 $500,000.00 188,889
community property
----------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and Saw-Chin 11,111 $50,000.00 18,889
Fernando's Living Trust
----------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Trust 5,556 $25,000.00 9,444
----------------------------------------------------------------------------------------------------
TOTALS: 683,333 $3,075,000.00 1,161,6677
----------------------------------------------------------------------------------------------------
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EXHIBIT C
AUTHORIZED AND OUTSTANDING SECURITIES OF RECEIPTCITY
1. AUTHORIZED STOCK
Common Stock: 20,000,000 shares authorized
Preferred Stock: 5,000,000 shares authorized
1,200,000 shares designated as Series A Preferred shares
2. OUTSTANDING STOCK
Common Stock: 8,380,000 shares outstanding
Series A Preferred Stock: 938,983 shares outstanding
3. OUTSTANDING OPTIONS, AND WARRANTS
The Company has adopted a stock plan pursuant to which
5,000,000 shares of common stock are reserved for issuance to
employees, consultants, officers and directors, pursuant to the
exercise of options. Options to purchase a total of approximately
2,300,000 shares have been granted under the plan.
Warrants to purchase a total of 67,145 shares are
outstanding, and the company has agreed to issue an additional
warrant to a consultant to purchase 30 shares per day for services
performed.
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EXHIBIT D
AUTHORIZED AND OUTSTANDING SECURITIES OF THE COMPANY
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THE SECURITIES EVIDENCED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED
UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH
SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE
CORPORATION RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF SUCH SECURITIES
REASONABLY SATISFACTORY TO THE CORPORATION STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SUCH ACT.
May 12, 2000
WARRANT TO PURCHASE COMMON STOCK
OF
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
(void after May 12, 2004)
1. Number of Shares Subject to Warrant. FOR VALUE RECEIVED, subject to
the terms and conditions herein set forth, Holder (as defined below) is entitled
to purchase from @▇▇▇.▇▇▇, Inc., a Delaware corporation (the "Corporation"),
during the times specified in Section 6, at a price per share equal to the
Warrant Price (as defined below), the Warrant Stock (as defined below) upon
exercise of this Warrant pursuant to Section 6 hereof.
2. Definitions. As used in this Warrant, the following terms shall have
the definitions ascribed to them below:
(a) "Holder" shall mean _____________________________ or its
assigns.
(b) "Warrant Price" shall mean $0.30 per share.
(c) "Warrant Stock" shall mean up to ______________ fully paid and
nonassessable shares of common stock of ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware
corporation ("ReceiptCity"), standing in the name of the Corporation on the
books of ReceiptCity.
3. Fractional Shares. No fractional shares shall be transferable to the
Holder upon exercise or conversion of the Warrant and the number of shares to be
transferred shall be rounded down to the nearest whole share. If a fractional
share interest arises upon any exercise or conversion of the Warrant, the
Corporation shall eliminate such fractional share interest by paying the Holder
an amount computed by multiplying the fractional interest by the fair market
value of a full share.
4. No Shareholder Rights. This Warrant, by itself, as distinguished from
any shares purchased hereunder, shall not entitle its Holder to any of the
rights of a shareholder of ReceiptCity.
5. Availability of Stock. The Corporation covenants that, until
termination of this Warrant, the Corporation will not transfer, sell, assign,
encumber, or grant any lien, security interest, or other interest in a
sufficient number of shares of Warrant Stock to provide for the transfer to the
Holder of all Warrant Stock to which the Holder is entitled upon the exercise or
conversion of this Warrant. Issuance of this Warrant shall constitute full
authority to the officers of ReceiptCity who are charged with the duty of
executing stock certificates to execute and issue the necessary certificates for
shares of Warrant Stock issuable upon the exercise or conversion of this
Warrant.
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6. Exercise of Warrant. This Warrant may not be exercised until the
earliest of: (i) an initial public offering of ReceiptCity stock (in which case
this Warrant may be exercised immediately prior to, and conditioned upon the
closing of such transaction); or (ii) a sale, lease or other disposition of all
or substantially all of the assets of ReceiptCity; or (iii) a consolidation or
merger of ReceiptCity with or into any other corporation or other entity or
person, or any other corporate reorganization, in which the stockholders of
ReceiptCity immediately prior to such consolidation, merger or reorganization,
own less than 50% of resulting entity's voting power immediately after such
consolidation, merger or reorganization (in which case this Warrant may be
exercised immediately prior to, and conditioned upon the closing of such
transaction); or (iv) May 12, 2001. This Warrant shall terminate and shall no
longer be exercisable at the time provided in Section 12. This Warrant may be
exercised by the surrender of this Warrant, together with the Notice of Exercise
and Investment Representation Statement in the forms attached hereto as
Attachments 1 and 2, respectively, duly completed and executed at the principal
office of the Corporation, specifying the portion of the Warrant to be exercised
and accompanied by payment in full of the Warrant Price in cash or by check with
respect to the shares of Warrant Stock being purchased. This Warrant shall be
deemed to have been exercised immediately prior to the close of business on the
date of its surrender for exercise as provided above. Immediately upon such
exercise of this Warrant, the Corporation shall deliver to ReceiptCity a
certificate representing the Warrant Stock together with the Investment
Representation Statement and an assignment or stock power requesting the
immediate transfer of the appropriate number of shares of the Warrant Stock to
the Holder. The person entitled to receive the shares of Warrant Stock issuable
upon such exercise shall be treated for all purposes as the holder of such
shares of record as of the date of transfer of the Warrant Stock to such person
on the books of ReceiptCity. The Corporation shall deliver to the person or
persons entitled to receive the same a certificate or certificates for the
number of full shares of Warrant Stock transferred to such person upon such
exercise, immediately upon receipt of such certificate from ReceiptCity. If the
Warrant shall be exercised for less than the total number of shares of Warrant
Stock then transferable upon exercise, promptly after surrender of the Warrant
upon such exercise, the Corporation will execute and deliver a new Warrant,
dated the date hereof, evidencing the right of the Holder to the balance of the
Warrant Stock purchasable hereunder upon the same terms and conditions set forth
herein.
7. Conversion. In lieu of exercising this Warrant or any portion hereof,
the Holder hereof shall have the right to convert this Warrant or any portion
hereof into Warrant Stock (at any time at which the exercise of this Warrant
would be permitted) by executing and delivering to the Corporation at its
principal office the written Notice of Conversion and Investment Representation
Statement in the forms attached hereto as Attachments 2 and 3, specifying the
portion of the Warrant to be converted, and accompanied by this Warrant. The
number of shares of Warrant Stock to be transferred to Holder upon such
conversion shall be computed using the following formula:
X = (P)(Y)(A-B)/A
Where X= the number of shares of Warrant Stock to be transferred
to the Holder for the portion of the Warrant being
converted.
P= the portion of the Warrant being converted expressed
as a decimal fraction.
Y= the total number of shares of Warrant Stock
transferable upon exercise of the Warrant in full.
A= the fair market value of one share of Warrant
Stock which shall mean (i) the fair market value
of one share of Warrant Stock as of the last
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business day immediately prior to the date the
notice of conversion is received by the
Corporation, as determined in good faith by the
Board of Directors of the Corporation (taking into
account the most recent determination of fair
market value by the Board of Directors of
ReceiptCity), or (ii) if this Warrant is being
converted in conjunction with a public offering of
ReceiptCity stock, the price to the public per
share pursuant to the offering.
B= the=Warrant Price on the date of conversion.
Any portion of this Warrant that is converted shall be immediately
canceled. This Warrant or any portion hereof shall be deemed to have been
converted immediately prior to the close of business on the date of its
surrender for conversion as provided above. Immediately upon such conversion of
this Warrant, the Corporation shall deliver to ReceiptCity a certificate
representing the Warrant Stock together with the Investment Representation
Statement and an assignment or stock power requesting the immediate transfer of
the appropriate number of shares of Warrant Stock to the Holder. The person
entitled to receive the shares of Warrant Stock issuable upon such conversion
shall be treated for all purposes as the holder of such shares of record as of
the date of transfer of the Warrant Stock to such person on the books of
ReceiptCity. The Corporation shall deliver to the person or persons entitled to
receive the same a certificate or certificates for the number of full shares of
Warrant Stock transferred to such person upon such conversion, immediately upon
receipt of such certificate from ReceiptCity. If the Warrant shall be converted
for less than the total number of shares of Warrant Stock then transferable upon
exercise, promptly after surrender of the Warrant upon such conversion, the
Corporation will execute and deliver a new Warrant, dated the date hereof,
evidencing the right of the Holder to the balance of the Warrant Stock
purchasable hereunder upon the same terms and conditions set forth herein
8. Adjustment of Exercise Price and Number of Shares. The number of
shares transferable upon exercise of this Warrant (or any shares of stock or
other securities or property at the time receivable or transferable upon
exercise of this Warrant) and the Warrant Price therefor are subject to
adjustment upon the occurrence of the following events:
(a) Adjustment for Stock Splits, Stock Dividends,
Recapitalizations, etc. The Warrant Price and the number of shares issuable upon
exercise of this Warrant shall each be proportionally adjusted to reflect any
stock dividend, stock split, reverse stock split, combination of shares,
reclassification, recapitalization or other similar event altering the number of
outstanding shares of ReceiptCity's capital stock.
(b) Adjustment for Other Dividends and Distributions. In case
ReceiptCity shall make or issue, or shall fix a record date for the
determination of eligible holders entitled to receive, a dividend or other
distribution with respect to the shares payable in securities of the Corporation
then, and in each such case, the Holder, on exercise of this Warrant at any time
after the consummation, effective date or record date of such event, shall
receive, in addition to the Warrant Stock (or such other stock or securities)
transferable on such exercise prior to such date, the securities of ReceiptCity
to which such Holder would have been entitled upon such date if such Holder had
exercised this Warrant immediately prior thereto (all subject to further
adjustment as provided in this Warrant).
9. Adjustment for Capital Reorganization, Consolidation, Merger. If any
capital reorganization of the capital stock of ReceiptCity, or any consolidation
or merger of ReceiptCity with or into another corporation, or the sale of all or
substantially all of ReceiptCity's assets to another corporation shall be
effected in such a way that the Corporation receives stock, securities or assets
with respect to or in exchange for the ReceiptCity common stock held by the
Corporation, and in each such
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case, the Holder, upon the exercise of this Warrant, at any time after the
consummation of such capital reorganization, consolidation, merger, or sale,
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 such Holder
would have been entitled upon such consummation if such Holder had exercised
this Warrant immediately prior to the consummation of such capital
reorganization, consolidation, merger, or sale, all subject to further
adjustment as provided in this Section 9; 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 such consummation.
10. Piggyback Registration Rights.
(a) Corporate Obligation. If ReceiptCity shall determine to
register any of its securities either for its own account or the account of a
shareholder(s) exercising demand registration rights, other than a registration
relating solely to employee benefit plans, or a registration relating solely to
a transaction pursuant to Rule 145 promulgated under the Securities Act of 1933,
as amended (the "Act"), or a registration on any registration form which does
not permit secondary sales or does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Warrant Stock, ReceiptCity will promptly give to the
Holder written notice thereof and include in such registration (and any related
qualification under blue sky laws), and in any underwriting involved therein,
the number of shares specified in a written request made by the Holder within
fifteen (15) days after receipt of such written notice from ReceiptCity, except
as set forth in Section 10(b) below.
(b) Underwritten Public Offering. If the registration for which
ReceiptCity gives notice is for a registered public offering involving an
underwriting, the right of any Holder to registration shall be conditioned upon
the Holder's participation in such underwriting and the inclusion of such
Holder's Warrant Stock in the underwriting pursuant to an underwriting agreement
in customary form with the underwriter or underwriters selected by ReceiptCity.
Notwithstanding any other provision of this Section, if the underwriter
reasonably determines that marketing factors require a limitation on the number
of shares to be underwritten the underwriter may exclude some or all of the
Warrant Stock with the number of shares that may be included in the registration
and underwriting being allocated among the Holder and all other shareholders
entitled to have securities included in such registration in proportion, as
nearly as practicable, to the respective amounts of securities which they had
requested to be included in such registration (provided, however, that if the
registration is for the account of shareholders exercising demand registration
rights, the number of shares that may be included by the Holder shall be cut
back entirely before any limitation on the number of shares that may be included
by such shareholders).
(c) Expenses. All expenses of the registration shall be borne by
ReceiptCity, except underwriting discounts and selling commissions applicable to
the sale of any of Holder's Warrant Stock and any other securities of
ReceiptCity being sold in the same registration by other shareholders, which
shall be borne by the Holder and such other shareholders pro rata on the basis
of the number of their shares registered.
11. Transfer of Warrant. This Warrant may be transferred or assigned by
the Holder hereof in whole or in part, provided that (i) the transferor
provides, at the Corporation's request, an opinion of counsel satisfactory to
the Corporation that such transfer does not require registration under the Act
and the securities law applicable with respect to any other applicable
jurisdiction, and (ii) the transfer is to an "Affiliate" of the Holder. For
these purposes, an Affiliate of a Holder means any other person or entity
directly or indirectly controlling, controlled by or under common control with,
such Holder or a partnership with respect to which such Holder is or will be a
limited partner. For the purposes of this definition, "control" means the
possession, directly or indirectly, of the power to direct or cause the
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direction of the management and policies of the entity in question, whether
through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
12. Termination. This Warrant shall terminate and no longer be
exercisable at 5:00 p.m. California time, on May 12, 2004.
13. Miscellaneous. This Warrant shall be governed by the laws of the
State of California, as such laws are applied to contracts to be entered into
and performed entirely in California by California residents. The headings in
this Warrant are for purposes of convenience and reference only, and shall not
be deemed to constitute a part hereof. Neither this Warrant nor any term hereof
may be changed or waived orally, but only by an instrument in writing signed by
the Corporation and the Holder of this Warrant, and by ReceiptCity to the extent
ReceiptCity is directly affected by such amendment. All notices and other
communications from the Corporation or from ReceiptCity to the Holder of this
Warrant shall be delivered personally or mailed by first class mail, postage
prepaid, to the address furnished to the Corporation and ReceiptCity in writing
by the last Holder of this Warrant who shall have furnished an address to the
Corporation in writing, and if mailed shall be deemed given three days after
deposit in the United States mail.
14. ReceiptCity Consent and Agreement. The Corporation agrees to use its
best efforts to cause ReceiptCity to execute the Consent and Agreement attached
to this Warrant as Attachment 4.
@▇▇▇.▇▇▇, Inc.
By:
-------------------------------------
----------------------------------------
Printed Name and Title
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Attachment 1
NOTICE OF EXERCISE
TO: @▇▇▇.▇▇▇, INC.
1. The undersigned hereby elects to purchase ________________ shares of
Warrant Stock pursuant to the terms of the attached Warrant, and tenders
herewith payment of the purchase price in full, together with all applicable
transfer taxes, if any.
2. Please cause a certificate or certificates representing said shares of
Warrant Stock to be issued in the name of the undersigned or in such other name
as is specified below:
----------------------------------
(Name)
----------------------------------
(Address)
----------------------------------- ---------------------------------------
(Date) (Name of Warrant Holder)
By:
------------------------------------
Title:
---------------------------------
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Attachment 2
INVESTMENT REPRESENTATION STATEMENT
Shares of the Warrant Stock
(as defined in the attached Warrant) of
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
In connection with the purchase of the above-listed securities, the undersigned
hereby represents to ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. (the "Corporation") as follows:
(a) The securities to be received upon the exercise of the Warrant (the
"Securities") will be acquired for investment for its own account, not as a
nominee or agent, and not with a view to the sale or distribution of any part
thereof, and the undersigned has no present intention of selling, granting
participation in or otherwise distributing the same, but subject, nevertheless,
to any requirement of law that the disposition of its property shall at all
times be within its control. By executing this Statement, the undersigned
further represents that it does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer, or grant participation to such
person or to any third person, with respect to any Securities issuable upon
exercise of the Warrant.
(b) The undersigned understands that the Securities transferable to the
undersigned upon exercise of the Warrant at the time of transfer may not be
registered under the Act, and applicable state securities laws, on the ground
that the Securities were issued pursuant to exemptions under Section 4(2) of the
Act and state law exemptions relating to offers and sales not by means of a
public offering, and that, by virtue of the undersigned's representations set
forth herein, the transfer of the Securities to the undersigned is exempt from
such registration.
(c) The undersigned agrees that in no event will it make a disposition of
any Securities acquired upon the exercise of the Warrant unless and until (i) it
shall have notified the Corporation of the proposed disposition and shall have
furnished the Corporation with a statement of the circumstances surrounding the
proposed disposition, and (ii) it shall have furnished the Corporation with an
opinion of counsel satisfactory to the Corporation and Corporation's counsel to
the effect that (A) appropriate action necessary for compliance with the Act and
any applicable state securities laws has been taken or an exemption from the
registration requirements of the Act and such laws is available, and (B) the
proposed transfer will not violate any of said laws.
(d) The undersigned acknowledges that the Securities transferable to the
undersigned upon exercise of the Warrant must be held indefinitely unless
subsequently registered under the Act or an exemption from such registration is
available. The undersigned is aware of the provisions of Rule 144 promulgated
under the Act which permit limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions, including, among
other things, the existence of a public market for the shares, the availability
of certain current public information about the Corporation, the resale
occurring not less than one year after a party has purchased and paid for the
security to be sold, the sale being through a "broker's transaction" or in
transactions directly with a "market makers" (as provided by Rule 144(f)) and
the number of shares being sold during any three-month period not exceeding
specified limitations.
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Dated:
-----------------------
----------------------------------------
(Typed or Printed Name)
By:
-------------------------------------
(Signature)
----------------------------------------
(Title)
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Attachment 3
NOTICE OF CONVERSION
TO: @▇▇▇.▇▇▇, INC.
1. The undersigned hereby elects to acquire ________________ shares of
Warrant Stock, pursuant to the terms of the attached Warrant, by conversion of
_____________ percent (________ %) of the Warrant.
2. Please cause a certificate or certificates representing said shares of
Warrant Stock to be issued in the name of the undersigned or in such other name
as is specified below:
----------------------------------
(Name)
----------------------------------
(Address)
------------------------------------ --------------------------------------
(Date) (Name of Warrant Holder)
By:
-------------------------------------
Title:
-------------------------------------
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Attachment 4
CONSENT AND AGREEMENT
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation ("ReceiptCity") executes this
Consent and Agreement (this "Agreement") in connection with the Warrant to which
this is an attachment.
1. Consent and Agreement. ReceiptCity hereby (i) consents and agrees to be bound
by the provisions of Section 10 of the Warrant to which this is an attachment,
pursuant to which the Holder is granted certain registration rights with respect
to the Warrant Stock, and (ii) agrees to transfer to the Holder, on the books of
ReceiptCity, the appropriate number of shares of Warrant Stock, and to issue and
deliver to the Corporation a certificate representing such Warrant Stock
registered in the name of the Holder, upon receipt from the Corporation of the
Investment Representation Statement signed by Holder, a certificate representing
the Warrant Stock to be transferred, and an assignment or stock power signed on
behalf of the Corporation requesting the transfer of the Warrant Stock to the
Holder. ReceiptCity acknowledges receipt of a cash payment from the Holder, in
March 2000, in consideration for its agreement to the above.
2. Representations and Warranties. ReceiptCity represents and warrants to the
Holder that:
(a) ReceiptCity has the requisite corporate power and authority to enter
into this Agreement and to consummate any transactions contemplated hereby and
to otherwise carry out its obligations hereunder. The execution of this
Agreement and delivery of this Agreement have been duly authorized by all
necessary action on the part of ReceiptCity, and this Agreement constitutes the
legal, valid and binding obligation of ReceiptCity enforceable against
ReceiptCity in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally the enforcement
of, creditors' rights and remedies or by other equitable principles of general
application.
(b) The execution, delivery and performance of this Agreement by
ReceiptCity and the performance of ReceiptCity of its obligations hereunder do
not and will not (i) conflict with or violate any provision of its certificate
of incorporation or bylaws (each as amended through the date hereof), (ii)
conflict with, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any rights of
termination, amendment, cancellation of, any agreement, indenture or instrument
to which ReceiptCity is a party, or (iii) to the knowledge of ReceiptCity result
in a violation of any law, rule, regulation, order, judgment, injunction, decree
or other restriction of any court or governmental authority to which ReceiptCity
is subject (including Federal and state securities laws and regulations), or by
which any property or asset of ReceiptCity is bound or affected, except in the
case of each of clauses (ii) and (iii), such conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations as could not,
individually or in the aggregate, (x) adversely affect the legality, validity or
enforceability of this Agreement, or (y) have a material adverse effect on
ReceiptCity or adversely impair ReceiptCity's ability to perform fully on a
timely basis its obligations under this Agreement. The business of ReceiptCity
is not being conducted in violation of any law, ordinance or regulation of any
governmental authority.
(c) Neither ReceiptCity nor any of its subsidiaries (i) is in default
under or in violation of any indenture, loan or credit agreement or any other
agreement or instrument to which it is a party or by which any of its properties
is bound, (ii) is in violation of any order of any court, arbitrator or
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governmental body, or (iii) is in violation of any statute, rule or regulation
of any governmental authority, except as could not, in any case of (i) above,
individually or in the aggregate, (x) adversely affect the legality, validity or
enforceability of this Agreement, or (y) have a material adverse effect or
adversely impair ReceiptCity's ability to perform fully its obligations under
this Agreement on a timely basis.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
By:
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇, President & CEO
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