Exhibit 10.13
THE SECURITIES EVIDENCED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITES LAWS OF ANY
STATE, AND HAVE BEEN TAKEN FOR INVESTMENT PURPOSES ONLY, AND NOT WITH A VIEW TO
THE DISTRIBUTION THEREOF. EXCEPT AS STATED IN THE PREFERRED STOCK AND WARRANT
PURCHASE AGREEMENT DATED JANUARY 12, 1999, PURSUANT TO WHICH SUCH SECURITIES
WERE ISSUED. SUCH SECURITIES MAY NOT BE SOLD, PLEDGED OR TRANSFERRED UNLESS
THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS COVERING SUCH SECURITIES OR THE COMPANY RECEIVES AN OPINION OF
COUNSEL (WHICH MAY BE COUNSEL FOR THE COMPANY), REASONABLY SATISFACTORY IN FORM
AND CONTENT TO THE COMPANY, STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM
THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT AND APPLICABLE
STATE SECURITES LAWS.
VALUE AMERICA, INC.
No. SC-D-1
WARRANT TO PURCHASE
473,724 SHARES OF
COMMON STOCK
This certifies that for value received VULCAN VENTURES INCORPORATED, a
Washington corporation ("Vulcan"), or its registered assigns (Vulcan or its
registered assigns, collectively, the "Holder") is entitled, subject to the
terms set forth below, at any time from and after the Vesting Date (as defined
below) and before 5:00 P.M., Eastern Time, on the Termination Date (as such term
is defined below) to purchase from VALUE AMERICA, INC., a Virginia corporation
(the "Company"), up to 473,724 shares of the common stock, without par value per
share (the "Common Stock"), of the Company, as constituted on the Vesting Date,
upon surrender hereof, at the principal office of the Company referred to below,
with a duly executed subscription form in the form attached hereto as Exhibit A
and simultaneous payment therefor in lawful money of the United States or
otherwise as hereinafter provided, of the Purchase Price (as such term is
defined below). Notwithstanding anything herein to the contrary, this Warrant
shall only be exercisable by Holder if, on the Evaluation Date (as defined
herein), the Company Value (as defined herein) shall be less than $600 million.
The number and character of such shares of Common Stock are subject to further
adjustment as provided below.
1. Definitions. As used herein, the terms indicated below shall have the
following meaning:
"Act" shall mean the Securities Act of 1933, as amended.
"Change-in-Control Transaction" shall mean (i) the acquisition by any
unrelated person of beneficial ownership (as that term is used for purposes of
the Act) of 50% or more of the then outstanding shares of Common Stock of the
Company or the combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of directors ("Voting
Securities") or (ii) approval by the shareholders of the Company of (x) a
reorganization, merger or consolidation with respect to which the individuals
and entities who were the respective beneficial owners of the Voting Securities
immediately before such reorganization, merger or consolidation do not following
such transaction beneficially own, directly or indirectly, more than 50% of the
then outstanding shares of Voting Securities of the Corporation resulting from
such reorganization, merger or consolidation; (y) a complete liquidation or
dissolution of the Company, or (z) any sale, lease, exchange or other
disposition of all or substantially all of the Company's assets to any entity
other than a wholly-owned subsidiary of the Company. The term "unrelated person"
means any person other than (x) the Company and its subsidiaries, (y) an
employee benefit plan or related trust of the Company, and (z) a person who
acquires stock of the Company pursuant to an agreement with the Company that is
approved by the Company's Board of Directors in advance of the acquisition. For
purposes of this subsection, a "person" means an individual, entity or group, as
that term is used for purposes of the Act.
"Common Stock" shall mean the common stock, without par value, of the
Company, and, unless the context otherwise requires, the stock and other
securities and property at the time receivable upon the exercise of this
Warrant.
"Company" shall mean Value America, Inc., a Virginia corporation.
"Company Value" shall mean the aggregate Fair Market Value of all
outstanding Shares of the Company's capital stock. Notwithstanding the
foregoing, however, in the case of a Change-in-Control Transaction, the Company
Value shall be the implied value of the Company utilized in determining the
terms of such acquisition.
"Evaluation Date" shall mean the earliest of (i) December 31, 1999, or (ii)
the closing date of the first Change-in-Control Transaction occurring after
December 31, 1998, or (iii) if the Company's Common Stock is listed on a
national securities exchange, traded on the Nasdaq National Market ("NNM") or
traded over-the-counter as quoted on the National Association of Securities
Dealers Automated Quotation System, the date on which the Company Value is
determined to exceed $600,000,000 as provided in the definition of "Fair Market
Value" below.
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"Fair Market Value" shall mean, as of any date, (i) if a security is listed
on a national securities exchange, the closing or opening price as reported for
composite transactions for such date, (ii) if a security is not so listed but is
traded on the NNM, the closing or opening price as reported on the NNM on such
date or, if no sale occurred on a trading day, then the mean between the highest
bid and lowest asked prices as of the close of business on such trading day, as
reported on the NNM, (iii) if a security is not traded on a national securities
exchange or the NNM otherwise traded over-the-counter, the arithmetic average of
the highest bid and lowest asked prices on such date as quoted on the National
Association of Securities Dealers Automated Quotation System or an equivalent
generally accepted reporting service, or (iv) the price at which a security is
offered for sale to the public in an underwritten public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended.
If none of (i), (ii), (iii), or (iv) of the preceding sentence applies, "Fair
Market Value" shall mean, as of the date in question, the fair market value of a
security as determined in accordance with the following provisions (with the
Company bearing all expenses relating to such valuation, including, without
limitation, all expenses of each appraiser or investment banking firm provided
for below):
(a) The Company, Vulcan Ventures Incorporated, a Washington
corporation ("Vulcan") and The Union Labor Life Insurance Company, a
Maryland corporation acting on behalf of its Separate Account P
("Ullico"), shall jointly appoint a qualified appraiser or investment
banking firm of recognized international standing (the "Joint
Appraiser") to determine the Fair Market Value. If the Company, Vulcan
and Ullico are unable to agree upon the joint selection of a Joint
Appraiser within ten (10) days following the Evaluation Date, the
Company shall appoint a qualified appraiser or investment banking firm
of recognized national standing (the "Company Appraiser"), Vulcan shall
appoint a qualified appraiser or investment banking firm of recognized
national standing (the "Vulcan Appraiser") and Ullico shall appoint a
qualified appraiser or investment banking firm of recognized national
standing (the "Ullico Appraiser"), each to determine the Fair Market
Value. Each of the Joint Appraiser, if any, and the Company Appraiser,
the Vulcan Appraiser and the Ullico Appraiser, if any, shall enter into
an appropriate and reasonable confidentiality agreement with the
Company in a form approved by the Company, Vulcan and Ullico.
(b) In establishing the Fair Market Value, the Joint Appraiser
or the Company Appraiser, the Vulcan Appraiser and the Ullico
Appraiser, as the case may be, shall consider the Company and its
subsidiaries on a consolidated basis. The Joint Appraiser or the
Company Appraiser, the Vulcan Appraiser and the Ullico Appraiser, as
the case may be, shall determine the Fair Market Value which shall be
the price as of the Evaluation Date that an unrelated willing third
party would pay in cash in an arm's-length transaction for the security
in question, assuming that (1) the purchaser was in possession of all
material information specifically concerning the Company and its
subsidiaries and (2) the holders of such security are willing sellers
and the Company is being sold in a reasonable
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manner (with the hypothetical costs of such sale being deducted for
purposes of calculating fair market value hereunder).
(c) Without in any way limiting the obligation any party has
to provide information to the other party or any party's access thereto
under this Warrant or otherwise, Vulcan and Ullico shall have
reasonable access to all books, records, financial statements, business
plans, management, appraisals (whether by Ullico, an affiliate of
Ullico, Vulcan, an affiliate of Vulcan or by a third party), and other
information relating to the Company and its subsidiaries, their
respective businesses and prospects and all other information relating
to the Company and its subsidiaries that are reasonably requested by
Vulcan or Ullico to assist in the appraisal procedures provided hereby;
and the Company shall promptly provide Vulcan and Ullico with such
information as Vulcan and Ullico may reasonably request relating to the
Company and its subsidiaries including reasonable access to the
Company's auditors and executives and personnel who have responsibility
with respect to the management of the Company and its subsidiaries.
(d) The Company, Vulcan and Ullico shall exchange with one
another the information it or its respective affiliates or
representatives will provide to the Joint Appraiser or the Company
Appraiser, the Vulcan Appraiser and Ullico Appraiser, as the case may
be, for the purpose of establishing the Fair Market Value. The Company,
Vulcan and Ullico shall have equal access to the Joint Appraiser or the
Company Appraiser, the Vulcan Appraiser and the Ullico Appraiser, as
the case may be, to provide such Joint Appraiser or the Company
Appraiser, the Vulcan Appraiser and the Ullico Appraiser with all
information each deems pertinent to such Joint Appraiser's or the
Company Appraiser's, the Vulcan Appraiser's and the Ullico Appraiser's
determination.
(e) Within 30 days after the first date (the "Initiation
Date") by which the Joint Appraiser or each of the Company Appraiser,
the Vulcan Appraiser and the Ullico Appraiser have been selected, the
Joint Appraiser or the Company Appraiser, the Vulcan Appraiser and the
Ullico Appraiser, as the case may be, will each determine its initial
view as to the Fair Market Value and consult with one another with
respect thereto. By the 45th day after the Initiation Date, the Joint
Appraiser or the Company Appraiser, the Vulcan Appraiser and the Ullico
Appraiser will each have determined its final view as to the Fair
Market Value, and their respective written reports with respect to such
appraisals shall be delivered to the Company, Vulcan and Ullico.
(f) If the appraised amount of the Fair Market Value shall
have been determined by the Joint Appraiser, the Fair Market Value
shall be such appraised amount.
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(g) If the appraised amount of the Fair Market Value shall
have been determined by the Company Appraiser, the Vulcan Appraiser and
the Ullico Appraiser, then the Fair Market Value shall be the average
of such three appraised amounts; provided that the highest of the three
appraised amounts of the Fair Market Value (the "Highest Appraised
Amount") is not more than 125% of the lowest appraised amount of the
Fair Market Value (the "Lowest Appraised Amount").
(h) If neither paragraph (f) or (g) applies, the Company
Appraiser, the Vulcan Appraiser and the Ullico Appraiser will agree
upon and jointly designate a fourth appraiser or investment banking
firm of recognized national standing (the "Mutually Designated
Appraiser") to participate in the determination of the Fair Market
Value. The Mutually Designated Appraiser will, no later than the 45th
day after the date it is designated, determine its view as to the Fair
Market Value (the "Mutually Appraised Amount"); and the Fair Market
Value will be (x) the Mutually Appraised Amount, if such amount falls
within the range of values that is greater than one-fourth and less
than two-fourths of the way between the Lowest Appraised Amount and the
Highest Appraised Amount, (y) the average of the Mutually Appraised
Amount and the other Appraised Amount (Lowest or Highest) that is
closest to the Mutually Appraised Amount, if the Mutually Appraised
Amount does not fall within that range but does fall between the Lowest
Appraised Amount and the Highest Appraised Amount and (z) the Appraised
Amount (Lowest or Highest) that is nearest to the Mutually Appraised
Amount, if the Mutually Appraised Amount falls outside the range
between the Highest and Lowest Appraised Amounts.
"Holder" shall mean Vulcan Ventures, Incorporated or its registered
assigns.
"Issuance Date" shall mean January 15, 1999.
"Purchase Agreement" shall mean that certain Preferred Stock and Warrant
Purchase Agreement, dated as of January 12, 1999, by and among the Company,
Vulcan, FDX Corporation, a Delaware corporation headquartered in Tennessee, and
Xxxxxxxxx X. Xxxxx, a resident of the state of Tennessee.
"Purchase Price" shall mean $0.01 per share of Common Stock.
"Stock Purchase Rights" shall mean any options, warrants or subscription
rights entitling a holder to purchase Common Stock or any security convertible
into or exchangeable for Common Stock or to purchase any other stock or security
of the Company.
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"Termination Date" shall mean the earlier of (i) January 15, 2009 or (ii)
the date that is three calendar years following the closing of the Company's
firmly-underwritten, initial public offering of Common Stock.
"Vesting Date" shall mean the Evaluation Date.
"Warrant" or "Warrants" shall mean this warrant and any warrants delivered
in substitution or exchange therefor as provided herein.
2. Exercise. This Warrant may be exercised at any time or from time to time
from and after the Vesting Date and before 5:00 P.M., Eastern Time, on the
Termination Date on any business day, for the full number of shares of Common
Stock called for hereby, by surrendering it at the principal office of the
Company, at 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxxxxxxx, Xxxxxxxx 00000, with the
subscription form duly executed, together with payment in an amount equal to (a)
the number of shares of Common Stock called for on the face of this Warrant
(without giving effect to any further adjustment herein) multiplied by (b) the
Purchase Price. Payment of this amount may be made (1) by payment in cash or by
corporate check, payable to the order of the Company, or (2) by the Company not
issuing that number of shares of Common Stock subject to this Warrant having a
Fair Market Value on the date of exercise equal to such sum, as Holder may
determine. This Warrant may be exercised for less than the full number of shares
of Common Stock at the time called for hereby, except that the number of shares
receivable upon the exercise of this Warrant as a whole, and the sum payable
upon the exercise of this Warrant as a whole, shall be proportionately reduced.
Upon a partial exercise of this Warrant in accordance with the terms hereof,
this Warrant shall be surrendered, and a new Warrant of the same tenor and for
the purchase of the number of such shares not purchased upon such exercise shall
be issued by the Company to Holder without any charge therefor. A 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, and the person
entitled to receive the shares of Common Stock issuable upon such exercise shall
be treated for all purposes as the holder of such shares of record as of the
close of business on such date. As soon as practicable on or after such date,
the Company shall issue and deliver to the person or persons entitled to receive
the same a certificate or certificates for the number of full shares of Common
Stock issuable upon such exercise, together with cash, in lieu of any fraction
of a share, equal to such fraction of the then Fair Market Value on the date of
exercise of one full share of Common Stock.
3. Payment of Taxes. All shares of Common Stock issued upon the exercise of
a Warrant shall be validly issued, fully paid and non-assessable, and the
Company shall pay all taxes and other governmental charges (other than any
application income taxes to be paid by Holder) that may be imposed in respect of
the issue or delivery thereof.
4. Transfer and Exchange. This Warrant and all rights hereunder are
transferable, in whole or in part, on the books of the Company maintained for
such
6
purpose at its principal office referred to above by Holder in person or by
duly authorized attorney, upon surrender of this Warrant together with a
completed and executed assignment form in the form attached as Exhibit B and
upon payment of any necessary transfer tax or other governmental charge imposed
upon such transfer. Upon any partial transfer, the Company will issue and
deliver to Holder a new Warrant or Warrants with respect to the shares of Common
Stock not so transferred. Each taker and holder of this Warrant, by taking or
holding the same, consents and agrees that this Warrant when endorsed in blank
shall be deemed negotiable and that when this Warrant shall have been so
endorsed, the holder hereof may be treated by the Company and all other persons
dealing with this Warrant as the absolute owner hereof for any purpose and as
the person entitled to exercise the rights represented hereby, or to the
transfer hereof on the books of the Company, any notice to the contrary
notwithstanding; but until such transfer on such books, the Company may treat
the registered Holder hereof as the owner for all purposes.
This Warrant is exchangeable at such office for Warrants for the same
aggregate number of shares of Common Stock, each new Warrant to represent the
right to purchase such number of shares as the Holder shall designate at the
time of such exchange.
5. A. Adjustment for Dividends in Other Stock and Property;
Reclassifications. In case at any time or from time to time the holders of the
Common Stock (or any shares of stock or other securities at the time receivable
upon the exercise of this Warrant) shall have received, or, on or after the
record date fixed for the determination of eligible shareholders, shall have
become entitled to receive, without payment therefor,
(1) other or additional stock or other securities or property
(other than cash) by way of dividend,
(2) any cash or other property paid or payable out of any
source other than retained earnings (determined in accordance
with generally accepted accounting principles), or
(3) other or additional stock or other securities or property
(including cash) by way of stock-split, spin-off, reclassification,
combination of shares or similar corporate rearrangement,
(other than (x) additional shares of Common Stock or any other stock or
securities into which such Common Stock shall have been changed, (y) any other
stock or securities convertible into or exchangeable for such Common Stock or
such other stock or securities or (z) any Stock Purchase Rights (as hereinafter
defined), issued as a stock dividend or stock-split, adjustments in respect of
which shall be covered by the terms of Section 5.C, 5.D, 5.E or 5.H), then and
in each such case Holder, upon the exercise hereof as provided in Section 1,
shall be entitled to receive the amount of stock and other
7
securities and property (including cash in the cases referred to in clauses (2)
and (3) above) which such Holder would hold on the date of such exercise if on
the Vesting Date Holder had been the holder of record of the number of shares of
Common Stock called for on the face of this Warrant, as adjusted in accordance
with the first paragraph of this Warrant, and had thereafter, during the period
from the Issuance Date to and including the date of such exercise, retained such
shares and/or all other or additional stock and other securities and property
(including cash in the cases referred to in clause (2) and (3) above) receivable
by it as aforesaid during such period, giving effect to all adjustments called
for during such period by Sections 5.A and 5.B.
B. Adjustment for Reorganization, Consolidation and Merger. In case of any
reorganization of the Company (or any other corporation the stock or other
securities of which are at the time receivable on the exercise of this Warrant)
after the Issuance Date, or in case, after such date, the Company (or any such
other corporation) shall consolidate with or merge into another corporation or
entity or convey all or substantially all its assets to another corporation or
entity, then and in each such case Holder, upon the exercise hereof as provided
in Section 1 at any time after the consummation of such reorganization,
consolidation, merger or conveyance, 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 Holder had
exercised this Warrant immediately prior thereto, all subject to further
adjustment as provided in Sections 5.A, 5.B, 5.C, 5.D and 5.E; 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.
C. Adjustment for Certain Dividends and Distributions. If the Company at
any time or from time to time makes, or fixes a record date for the
determination of holders of Common Stock entitled to receive, a dividend or
other distribution payable in additional shares of Common Stock, then and in
each such event
(1) the Purchase Price then in effect shall be decreased as of the time
of such issuance or, in the event such record date is fixed, as of the close of
business on such record date, by multiplying the Purchase Price then in effect
by a fraction (A) the numerator of which is the total number of shares of Common
Stock issued and outstanding immediately prior to the time of such issuance or
the close of business on such record date, and (B) the denominator of which
shall be the total number of shares of Common Stock issued and outstanding
immediately prior to the time of such issuance or the close of business on such
record date as the case may be, plus the number of shares of Common Stock
issuable in payment of such dividend or distribution; provided, however, that if
such record date is fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the Purchase Price
shall be recomputed accordingly as of the close of business on such record date,
and thereafter the Purchase Price shall be adjusted pursuant to this Section 5.D
as of the time of actual payment of such dividends or distributions; and
8
(2) the number of shares of Common Stock theretofore receivable upon
the exercise of this Warrant shall be increased, as of the time of such issuance
or, in the event such record date is fixed, as of the close of business on such
record date, in inverse proportion to the decrease in the Purchase Price.
D. Stock Split and Reverse Stock Split. If the Company at any time or from
time to time effects a stock split or subdivision of the outstanding Common
Stock, the Purchase Price then in effect immediately before that stock split or
subdivision shall be proportionately decreased and the number of shares of
Common Stock theretofore receivable upon the exercise of this Warrant shall be
proportionately increased. If the Company at any time or from time to time
effects a reverse stock split or combines the outstanding shares of Common Stock
into a smaller number of shares, the Purchase Price then in effect immediately
before that reverse stock split or combination shall be proportionately
increased and the number of shares of Common Stock theretofore receivable upon
the exercise of this Warrant shall be proportionately decreased. Each adjustment
under this Section 5.E shall become effective at the close of business on the
date the stock split, subdivision, reverse stock split or combination becomes
effective.
E. No Dilution or Impairment. The Company will not, by amendment of its
certificate of incorporation or through reorganization, consolidation, merger,
dissolution, issue or sale of securities, sale of assets or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
of the Warrants, 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 holders of the Warrants
against dilution or other impairment. Without limiting the generality of the
foregoing, the Company (a) will not increase the par value of any share of stock
receivable upon the exercise of the Warrants above the amount payable therefor
upon such exercise, and (b) will take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and non-assessable shares upon the exercise of all Warrants at the time
outstanding.
F. Accountants' Certificate as to Adjustment. In each case of an adjustment
in the number of shares of Common Stock or the number or type of other stock,
securities or property receivable on the exercise of the Warrants, the Company
at its expense shall cause independent public accountants of recognized standing
selected by the Company (who may be the independent public accountants then
auditing the books of the Company) to compute such adjustment in accordance with
the terms of the Warrants and prepare a certificate setting forth such
adjustment and showing in detail the facts upon which such adjustment is based.
The Company will forthwith mail a copy of each such certificate to each holder
of a Warrant at the time outstanding.
9
G. Notices of Record Date. In case
(1) the Company shall take a record of the holders of its Common Stock
(or other stock or securities at the time receivable upon the exercise of
the Warrants) for the purpose of entitling them to receive any dividend or
other distribution, or any right to subscribe for or purchase any shares of
stock of any class or any other securities, or to receive any other right,
or
(2) of any capital reorganization of the Company, any reclassification
of the capital stock of the Company, any consolidation or merger of the
Company with or into another corporation, or any conveyance of all or
substantially all of the assets of the Company to another corporation, or
(3) of any voluntary dissolution, liquidation or winding-up of the
Company,
then, and in each such case, the Company will mail or cause to be mailed to each
holder of a Warrant at the time outstanding a notice specifying, as the case may
be, (a) the date on which a record is to be taken for the purpose of such
dividend, distribution or right, and stating the amount and character of such
dividend, distribution or right, or (b) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up is expected to take place, and the time, if any is to be fixed, as of
which the holders of record of Common Stock (or such stock or securities at the
time receivable upon the exercise of the Warrants) shall be entitled to exchange
their shares of Common Stock (or such other stock or securities) for securities
or other property deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or winding-up, such
notice shall be mailed at least 30 days prior to the date therein specified.
H. Stock Purchase Rights. If at any time or from time to time, the Company
grants or issues Stock Purchase Rights to the record holders of the Common
Stock, the Holder shall be entitled to acquire, upon the terms applicable to
such Stock Purchase Rights, the aggregate Stock Purchase Rights which Holder
could have acquired if Holder had been the record holder of the maximum number
of shares of Common Stock issuable upon exercise of this Warrant on both (x) the
record date for such grant or issuance of such Stock Purchase Rights, and (y)
the date of the grant or issuance of such Stock Purchase Rights.
6. Loss or Mutilation. Upon receipt by the Company of evidence satisfactory
to it (in the exercise of reasonable discretion) of the ownership of and the
loss, theft, destruction or mutilation of any Warrant and (in the case of loss,
theft or destruction) of indemnity satisfactory to it (in the exercise of
reasonable discretion), and
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(in the case of mutilation) upon surrender and cancellation thereof, the Company
will execute and deliver in lieu thereof a new Warrant of like tenor.
7. Reservation of Common Stock. The Company shall at all times reserve and
keep available for issue upon the exercise of Warrants such number of its
authorized but unissued shares of Common Stock as will be sufficient to permit
the exercise in full of all outstanding Warrants.
8. Preferred Stock and Warrant Purchase Agreement. This Warrant has been
issued pursuant to the Purchase Agreement and the transferability of this
Warrant and the Common Stock issuable upon the exercise hereof are subject to
the Purchase Agreement.
9. Notices. All notices and other communications from the Company to the
holder of this Warrant shall be mailed by first-class registered or certified
mail, postage prepaid, to the address furnished to the Company in writing by the
last holder of this Warrant who shall have furnished an address to the Company
in writing.
10. Change; Waiver. Neither this Warrant nor any term hereof may be
changed, waived, discharged or terminated orally but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
11. Headings. The headings in this Warrant are for purposes of convenience
of reference only, and shall not be deemed to constitute a part hereof.
12. Law Governing. This Warrant shall be construed and enforced in
accordance with and governed by the internal laws the Commonwealth of Virginia
without reference to the choice of law provisions of any jurisdiction.
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IN WITNESS WHEREOF, the undersigned has executed this warrant as of
January 15, 1999.
VALUE AMERICA, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------------
Title: EVP & CFO
---------------------------------
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EXHIBIT A
---------
SUBSCRIPTION FORM
-----------------
(To be executed only upon exercise of Warrant)
The undersigned registered owner of this Warrant irrevocably
exercises this Warrant and purchases _______ of the number of shares of Common
Stock of Value America, Inc., purchasable with this Warrant, and herewith makes
payment therefor, all at the price and on the terms and conditions specified in
this Warrant.
DATED:__________________
-------------------------------
(Signature of Registered Owner)
-------------------------------
(Street Address)
-------------------------------
(City) (State) (Zip)
EXHIBIT B
---------
FORM OF ASSIGNMENT
------------------
FOR VALUE RECEIVED the undersigned registered owner of this
Warrant hereby sells, assigns and transfers unto the Assignee named below all of
the rights of the undersigned under the within Warrant, with respect to the
number of shares of Common Stock set forth below:
Name of Assignee Address No. of Shares
---------------- -------- -------------
and does hereby irrevocably constitute and appoint __________________________
Attorney to make such transfer on the books of Value America, Inc., maintained
for the purpose, with full power of substitution in the premises.
DATED:__________________
-------------------------------
(Signature)
-------------------------------
(Witness)
