XXXXXXXXXXX.XXX
REFERRAL AGREEMENT
This Referral Agreement (the "Agreement") is entered into as of January 26, 2001
(the "Effective Date") by and between XxxxxxxxXxx.xxx, Inc. ("PurchasePro"), and
C3 Capital, LLC ("Referring Party"). In consideration of the mutual promises and
covenants contained in this Agreement, PurchasePro and Referring Party hereby
agree as follows:
1. DEFINITIONS
The following definitions shall apply to this Agreement:
(a) "Marketplace Software Product" means PurchasePro's proprietary computer
program, utilities, and accompanying user documentation (which in no event
includes any source code) for configuration and operation of a web-based
application through which multiple prospective buyers/suppliers of products
and/or services who have been registered into such marketplace have access to
other buyers/suppliers for the purpose of transacting purchases and/or sales of
products and/or services within such marketplace.
(b) "Customer" means each business entity referred to PurchasePro by
Referring Party as a potential customer of PurchasePro under a Marketplace
Agreement.
(c) "Qualified Referral" means each Customer referred to PurchasePro by
Referring Party as to which at the time of the referral PurchasePro had no
preexisting relationship as a strategic partner, prospect or Customer, either
directly or indirectly through another referral party, reseller, sales and
marketing agent or other strategic partner, including, but not limited to,
America OnLine, Computer Associates, Sprint, Office Depot and Hilton, and with
whom PurchasePro, in its sole discretion, enters into a fully executed
Marketplace Agreement.
(d) "Qualified Referral Date" means the Effective Date of the Marketplace
Agreement between PurchasePro and the Customer.
(e) "Qualified Revenue" has the meaning assigned to such term in Section 3
hereof.
(f) "Referral Fee" means the amount to be paid to Referring party by
PurchasePro for a Qualified Referral as specified in Section 3 hereof.
(g) "Marketplace Agreement" means a written agreement under which
PurchasePro (i) licenses its Marketplace Software Product to Customers or (ii)
renders services for the maintenance or hosting of, project management or
training with respect to, or professional services in connection with, its
Marketplace Software Product.
2. RESPONSIBILITIES & RIGHTS OF PARTIES
(a) For each Customer whom Referring Party wishes to refer to PurchasePro
and to qualify under this Agreement, Referring Party will submit to PurchasePro
a completed Referral Form (attached hereto as Exhibit C) ("Referral Form"). For
each submitted Referral Form, the Referring Party must submit in writing to
PurchasePro a monthly Customer status update to PurchasePro. PurchasePro may
modify the Referral Form from time to time upon notice to Referring Party. Each
such Customer referral must meet any and all PurchasePro qualifications and
criteria and be accepted in writing by PurchasePro. Any such Customer referral
that does not result in a Qualified Referral within three (3) months after the
Effective Date set forth in the Referral Form shall expire immediately unless a
time extension has been granted by PurchasePro in a writing signed by
PurchasePro's Director of Indirect Channels. PurchasePro will not unreasonably
(i) modify any Referral Form nor (ii) refuse to accept any Customer referred by
Referring Party nor (iii) if reasonably requested by Referring Party, refuse to
extend the period during which the Referral Form will continue in effect.
(b) Referring Party warrants and represents that, for each Customer
referred to PurchasePro under this Agreement, the Referring Party has the
authority to make the referral on behalf of the Customer, has
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disclosed the potential receipt of fees under this Agreement to the Customer,
and has no conflict of interest with the Customer or with PurchasePro in receipt
of such payment. Referring Party warrants and represents that neither it nor, to
its knowledge, any director, officer, shareholder, partner or member of it, is
an affiliate of PurchasePro.
(c) PurchasePro reserves the right in its discretion to make any changes in
the Marketplace Software Product and Marketplace Agreements, including pricing,
and to refuse to enter into a Marketplace Agreement with any Customer referred
by Referring Party for lack of creditworthiness or for any other reason in its
sole discretion.
(d) Each party understands this Agreement is non-exclusive. Without
limiting the generality of the foregoing, Referring Party acknowledges that
nothing in this Agreement shall prevent or limit PurchasePro from marketing and
selling its Marketplace Agreements or any other product or service, in whole or
in part, directly or indirectly, to any prospective customers or from appointing
representatives, resellers, distributors and other marketing agents, without
liability to Referring Party.
(e) PurchasePro shall determine in good faith whether a prospect referred
to it is a Qualified Referral. Any dispute as to such a determination shall be
resolved pursuant to Section 8 hereof.
3. PAYMENT
(a) As full and complete payment for all Qualified Referrals hereunder,
PurchasePro shall issue Referring Party warrants to purchase up to an aggregate
of 1,100,000 shares of PurchasePro's Common Stock ("Warrant Shares"), in
substantially the forms attached hereto as Exhibits A and B (the "Warrants"), at
such prices, and vesting and becoming exercisable, as set forth therein, based
upon "Qualified Revenue" recorded by PurchasePro under any Marketplace Agreement
between PurchasePro and any Qualified Referral. "Qualified Revenue" shall be
defined for all purposes hereof as all net revenue (i.e., net after deduction
for commissions, revenue sharing payments and bad debt reserves) received by
PurchasePro beginning October 1, 2000 and continuing through September 30, 2005,
computed using generally accepted accounting principles, consistently applied;
provided, however, that all license fees paid to PurchasePro by Gateway
Companies, Inc. under Marketplace Software License Agreements between
PurchasePro and Gateway Companies, Inc., each dated September 29, 2000, shall be
excluded in all respects for purposes of determining the number of shares vested
and exercisable under the Warrants as set forth in this Section 3 and on Exhibit
A and Exhibit B.
(b) The determination as to whether PurchasePro has Qualified Revenue shall
be made by PurchasePro in good faith, as evidenced by its periodic reports filed
with the Securities and Exchange Commission from time to time during the term of
this Agreement on Forms 10-K and 10-Q and any amendments thereto, and in the
case of Qualified Revenue reflected in interim quarterly reports on Form 10-Q
shall be subject to adjustment upon completion of its year-end audit as
evidenced by its report on Form 10-K and any amendments thereto (all such Forms
10-Q and 10-K, together with any amendments thereto and other periodic reports
referred to herein as "SEC Filings").
(1) PurchasePro shall provide Referring Party with written
notice within 45 days after the end of each fiscal quarter of the
number of Warrant Shares vesting during such fiscal quarter, with such
notice containing such information as may be reasonably necessary to
allow Referring Party to verify the accuracy of such Qualified Revenue
upon review thereof and of PurchasePro's SEC Filings.
(2) During the term of this Agreement, PurchasePro will permit
Referring Party, through a nationally recognized or
PurchasePro-approved (which approval shall not be unreasonably
withheld) certified public accounting firm designated by Referring
Party (subject to execution of a reasonable non-disclosure agreement by
said CPA), upon reasonable notice and during normal business hours, to
inspect these books, records and other materials once per year during
the term of this Agreement. In the event the audit reveals an
underpayment in the payment obligations of PurchasePro, PurchasePro
will promptly pay Referring Party such underpayment amount. If any such
underpayment shall exceed five percent (5%), PurchasePro will reimburse
Referring Party for any and all reasonable expenses incurred in
connection with such inspection.
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(3) Any dispute as to any such matter shall be resolved
pursuant to Section 8 hereof.
(c) In addition to the foregoing, any out of pocket expenses incurred by
Referring Party in performance of the referral services rendered and/or to be
rendered hereunder, including but not limited to airfare, lodging, meals and car
rentals, and approved in advance by a duly authorized officer of PurchasePro,
shall be billed to PurchasePro at Referring Party's reasonable cost and shall be
reimbursed by PurchasePro within thirty (30) days after such expenses are
invoiced by Referring Party.
4. TERM & TERMINATION
(a) This Agreement is effective as of the Effective Date and will remain in
effect for five (5) years after the Effective Date.
(b) This Agreement may be terminated by either party at any time in the
event of a material breach by the other party which remains uncured after thirty
(30) days written notice.
(c) Either party may terminate this Agreement at any time, without cause,
upon sixty (60) days prior written notice to the other party.
(d) Upon expiration or termination of this Agreement, (i) both parties
shall immediately discontinue all representations or statements from which it
might be inferred that any relationship exists between the two parties, (ii)
each party agrees not to act in any way to damage the reputation of the other
party's products or services, and (iii) Referring Party shall cease to promote,
solicit, or procure orders for any Marketplace Agreement. PurchasePro's
execution of any Marketplace Agreement after termination of this Agreement shall
not be construed as a renewal or extension of this Agreement, or as a waiver of
the right to terminate or of any other matter or right and PurchasePro shall
have the right after the termination of this Agreement to deal with, and solicit
orders from, any and all persons and entities, including referred Customers or
potential referred Customers, who dealt with or were referred by Referring
Party, without any liability of any kind to Referring Party.
(e) Notwithstanding expiration or termination of this Agreement, excluding
any termination by PurchasePro pursuant to paragraph (b) of this Section 4, the
right of the Referring Party to purchase Warrant Shares, in accordance with the
terms and conditions as set forth in the Warrants attached hereto as Exhibit A
and Exhibit B, shall continue to vest and be exercisable based upon all
Qualified Revenue received during the Exercise Period from any and all Customers
which (i) have become Qualified Referrals prior to the date of any such
expiration or termination or (b) become Qualified Referrals within three (3)
months after the date of any such expiration or termination.
5. CONFIDENTIAL INFORMATION
Each party acknowledges that it may receive valuable trade and business
secrets and other proprietary and confidential information, including, without
limitation, information about the other party's business, products, equipment,
systems, techniques and practices (collectively, "Confidential Information")
(for purposes of this Section 5, a party receiving Confidential Information
shall be referred to as a "Receiving Party" and a party disclosing Confidential
Information shall be referred to as a "Disclosing Party"). The Receiving Party
shall, and shall cause its employees and agents to, strictly maintain the
confidentiality of the Confidential Information and not disclose, disseminate or
otherwise give Confidential Information to any other person, firm, organization
or third party, except for an employee or agent of Receiving Party who has a
reasonable need to obtain access and who has agreed in writing to not disclose,
and not to use for any other purpose, the Confidential Information.
Notwithstanding the foregoing, the obligations of confidentiality set forth in
this Section 5 with respect to Confidential Information shall not apply to any
information that: (i) is or becomes publicly known without violation by
Receiving Party; (ii) is already known to Receiving Party without restrictions
at the time of its disclosure by Disclosing Party, as evidenced by the written
records of Receiving Party; (iii) after its disclosure to Receiving Party by
Disclosing Party, is made known to Receiving Party without restrictions by a
third party having the right to do so; or (iv) is legally required to be
disclosed by Receiving Party pursuant to a judicial order from a court of
competent jurisdiction (provided that Receiving Party promptly informs
Disclosing Party of the requirement and affords
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Disclosing Party a reasonable opportunity to contest the required disclosure).
The foregoing obligations of confidentiality shall survive termination or
expiration of this Agreement.
6. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES (I) SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF
THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT
NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF
LOST OR DAMAGED DATA OR DOCUMENTATION, OR SUCH PARTY'S LIABILITIES TO THIRD
PARTIES ARISING FROM ANY SOURCE; OR (II) SHALL PURCHASEPRO BE LIABLE TO
REFERRING PARTY PURSUANT TO THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE,
STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS,
IN THE AGGREGATE, OF REFERRAL FEES OWED AND NOT YET PAID TO REFERRING PARTY.
Referring Party must give written notice to PurchasePro of any claims against
PurchasePro arising under or in any way relating to this Agreement within six
months after the effective termination date of this Agreement. Referring Party
shall have no claim against PurchasePro for fees, compensation or otherwise with
regard to this Agreement, whether in contract, in tort, under any warranty or
otherwise, either during the term of this Agreement or after its termination,
except as expressly provided in this Agreement.
7. RELATIONSHIP OF PARTIES
The parties shall perform all of their duties under this Agreement as
independent contractors. Nothing in this Agreement shall be construed to
constitute the parties as principal and agent, employer and employee, franchiser
and franchisee, partners, joint ventures, co-owners, or otherwise as
participants in a joint undertaking, or to enter into any contract or otherwise
incur any liability or obligation, expressed or implied, on behalf of the other
party, or to transfer, release, or waive any right, title, or interest of such
other party. Further, PurchasePro shall not, as a result of this Agreement, have
any obligation to Referring Party to continue its business or to continue,
discontinue, change, retain, sell or supply the Marketplace Software Product or
any part thereof.
8. GOVERNING LAW & CONSENT TO ARBITRATION
This Agreement shall be governed by and interpreted in accordance with the
laws of the State of New York, excluding its conflicts of law principles. The
parties agree that any and all disputes arising under or relating to this
Agreement shall be resolved exclusively by binding arbitration in Las Vegas,
Nevada before a single arbitrator under the Commercial Arbitration Rules of the
American Arbitration Association; provided, however, that the Referring Party
shall not be limited to binding arbitration with respect to claims asserted by
the Referring Party alleging that PurchasePro has wrongfully terminated this
Agreement for material breach pursuant to Section 4(b) hereof. The decision of
the arbitrator shall be final and binding with respect to the dispute and shall
be enforceable in any court of competent jurisdiction. The prevailing party in
any action or proceeding between the parties shall be entitled to an award of
its reasonable attorneys fees and costs.
9. ASSIGNMENT
The Agreement may not be transferred or assigned by either PurchasePro or
Referring Party, whether by operation of law or otherwise, without the prior
written consent of the other party, which consent shall not be unreasonably
withheld.
10. ENTIRE AGREEMENT & AMENDMENTS
This Agreement, including all attached Exhibits, constitutes and contains
the entire agreement between the parties with respect to the subject matter and
supersedes any prior oral or written agreements. Each party acknowledges and
agrees that the other has not made any representations, warranties or agreements
of any kind, except as expressly set forth herein. This Agreement may not be
modified or amended, including by custom, usage of trade, or course of dealing,
except by an instrument in writing signed by duly authorized employees of both
of the parties.
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11. WAIVER & SEVERABILITY
The waiver by either party of a breach of any provision contained herein
shall be in writing and shall in no way be construed as a waiver of any
subsequent breach of such provision or the waiver of the provision itself. If
any provision of this Agreement shall be held illegal or unenforceable, that
provision shall be limited or eliminated to the minimum extent necessary so that
this Agreement shall otherwise remain in full force and effect and enforceable.
12. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original and all such counterparts shall constitute one and the same
agreement.
13. NOTICES
All notices and other communications under the Agreement shall be in
writing and shall be deemed to have been duly given as of the date of delivery
shown on the receipt if mailed at a post office in the United States, postage
prepaid, return receipt requested, or via nationally recognized overnight
courier, to the addresses set forth below the signatures of each party in the
Agreement. Either party may from time to time by written notice to the other
designate another address, which shall thereupon become its effective address
for the purposes of the Agreement.
14. PAYMENT OF FEES AND EXPENSES
Each party shall bear its own expenses in connection with this Agreement
and the transactions contemplated herein.
IN WITNESS WHEREOF, the parties acknowledge that they have read, understood and
have executed this Agreement below and agree to be bound by its \terms.
XXXXXXXXXXX.XXX, INC.
0000 Xxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Telephone: 000-000-0000
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
(Signature of authorized PurchasePro representative)
Name: Xxxxx X. Xxxxxxx Title: Senior VP & General Counsel
-------------------------- ---------------------------
REFERRING PARTY: C3 CAPITAL, LLC
Attn: Xxxxxx Xxxxxx
----------------------------
Address: 000 X. 00xx Xxxxxx, Xxx. 0X
----------------------------
Xxx Xxxx, XX 00000
----------------------------
Phone: (000)000-0000 Fax: (000)000-0000
---------------- ----------------
By: /s/ Xxxxxx Xxxxxx
--------------------------
(Signature of authorized Referring Party representative)
Name: Xxxxxx Xxxxxx Title: Managing Partner
-------------------------- ---------------------------
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EXHIBIT A
-----------
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED HEREUNDER MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE
SECURITIES AND RESTRICTING THEIR TRANSFER OR SALE MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD HEREOF TO THE SECRETARY OF THE
COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.
WARRANT TO PURCHASE COMMON STOCK
OF
XXXXXXXXXXX.XXX, INC.
In consideration of the sum of ten dollars ($10.00) previously paid to
XXXXXXXXXXX.XXX, INC., a Nevada corporation (the "Company"), receipt and
sufficiency of which are hereby acknowledged, this certifies that, for value
received, C3 Capital, LLC or its registered assigns ("Holder") is entitled,
subject to the terms and conditions set forth below, to purchase from the
Company, in whole or in part, that number of fully paid and non-assessable
shares of the common stock, par value $0.01 per share, of the Company (the
"Warrant Shares") as set forth in Section 2 below and at a purchase price per
share (the "Exercise Price") as set forth in Section 2 below. The term "Warrant"
as used herein shall mean this Warrant, and any warrants delivered in
substitution or exchange therefor as provided herein.
1. TERM OF WARRANT; PURPOSE; VESTING.
(a) Subject to the terms and conditions set forth herein, this Warrant
shall be exercisable in accordance with the provisions contained in Section 3
hereof until 5:00 p.m., Pacific time, December _____, 2005 (the "Exercise
Period"), and shall be void thereafter.
(b) This Warrant is issued as payment by the Company to the initial Holder
under a Referral Agreement between the Company and initial Holder, dated January
_____, 2001 ("Agreement").
(c) The right to purchase Warrant Shares pursuant to this Warrant shall
vest and become exercisable during the Exercise Period in accordance with the
following schedule:
Upon the Company collecting Qualified Revenue (defined in the Agreement)
from (i) all (A) hosting and maintenance fees and (B) any portion of
subscription and transaction fees and any advertising revenues paid by Gateway
and/or third parties and received by the Company, generated under agreements
entered into in connection with licenses granted to Gateway Companies, Inc.
under Marketplace Software License Agreements between Gateway Companies, Inc.
and the Company, dated September 29, 2000, specifically excluding license fees
paid by Gateway Companies, Inc. thereunder, (ii) all Qualified Revenue under
agreements between the Company and The Carlyle Group, including agreements
between the Company and any entity with respect to which The Carlyle Group is
holder of at least ten percent (10%) of the outstanding capital stock thereof at
the time any such agreement is entered, and (iii) the first transaction entered
by the Company after the date hereof and referred by Holder under the Agreement,
in the amounts set forth below, the number of Warrant Shares indicated shall
vest and become exercisable as follows:
Qualified Revenue Warrant Shares Vesting
------------------------------ -----------------------------
Additional Cumulative Additional Cumulative
---------- ---------- ---------- ----------
$3,375,000 $3,375,000 75,000 75,000
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$1,125,000 $4,500,000 25,000 100,000
$1,125,000 $5,625,000 25,000 125,000
$1,125,000 $6,750,000 25,000 150,000
$6,750,000 $13,500,000 100,000 250,000
$13,500,000 $27,000,000 100,000 350,000
$27,000,000 $54,000,000 100,000 450,000
$54,000,000 $108,000,000 100,000 550,000
(d) The vesting calculation under Section 1(c) shall be calculated each
consecutive fiscal quarter of the Company, beginning with the fiscal quarter
ended December 31, 2000 and ending with the fiscal quarter ended September 30,
2005. This Warrant shall become exercisable as to the Warrant Shares vesting
pursuant to Section 1(c) on the last day of the fiscal quarter in which Holder
has earned the vesting of all Warrant Shares subject to Section 1(c). The
Company shall provide Holder with written notice within 45 days after the end of
each fiscal quarter of the number of Warrant Shares vesting during such fiscal
quarter under Section 1(c) as set forth in the Agreement. The vesting
calculations shall, subject to the provisions of this Agreement with respect
thereto (including but not limited to provisions regarding arbitration of
disputes), be made by the Company in good faith and its determinations shall be
final and binding on the parties.
2. NUMBER OF SHARES, EXERCISE PRICE.
(a) This Warrant shall be exercisable for up to five hundred fifty thousand
(550,000) shares of common stock of the Company vested in accordance with
Section 1(c).
(b) All Warrant Shares vested pursuant to Section 1(c) for Qualified
Revenue shall be exercisable at an exercise price equal to $11.00 per share.
3. EXERCISE OF WARRANT.
(a) This Warrant may be exercised by the Holder by the surrender of this
Warrant to the Company, with the Notice of Exercise annexed hereto duly
completed and executed on behalf of the Holder, at the office of the Company (or
such other office or agency of the Company as it may designate by notice in
writing to the Holder at the address of the Holder appearing on the books of the
Company) during the Exercise Period and: (x) the delivery of payment to the
Company, for the account of the Company, by cash, wire transfer of immediately
available funds to a bank account specified by the Company, or by certified or
bank cashier's check, of the Exercise Price for the number of Warrant Shares
specified in the Exercise Form in lawful money of the United States of America
or (y) pursuant to a net issuance election in accordance with Section 3(b)
hereof. The Company agrees that such Warrant Shares shall be deemed to be issued
to the Holder as the record holder of such Warrant Shares as of the close of
business on the date on which this Warrant shall have been surrendered and
payment made for the Warrant Shares as aforesaid. A stock certificate or
certificates for the Warrant Shares specified in the Exercise Form shall be
delivered to the Holder as promptly as practicable, and in any event within ten
(10) days, thereafter. If this Warrant shall have been exercised only in part,
the Company shall, at the time of delivery of the stock certificate or
certificates, deliver to the Holder a new Warrant evidencing the rights to
purchase the remaining Warrant Shares, which new Warrant shall in all other
respects be identical with this Warrant. No adjustments shall be made on Warrant
Shares issuable on the exercise of this Warrant for any cash dividends paid or
payable to holders of record of common stock prior to the date as of which the
Holder shall be deemed to be the record holder of such Warrant Shares. However,
the number of Warrant Shares shall be adjusted to reflect any stock dividend,
stock split or other conversion of the number of shares of the Company into a
different number of shares, however denominated.
(b) In lieu of exercising this Warrant pursuant to Section 3(a), the Holder
may elect to receive, without the payment by the Holder of any additional
consideration, shares equal to the value of this Warrant or any portion hereof
by the surrender of this Warrant or such portion to the Company, with the Net
Issue Election Notice annexed hereto duly executed, at the office of the
Company. Thereupon, the Company shall issue to the Holder such number of fully
paid and nonassessable shares of Common Stock as is computed using the following
formula:
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X = Y (A-B)/A, where:
X = the number of shares to be issued to the Holder pursuant to
this Section 3(b).
Y = the number of shares of Common Stock otherwise issuable
under this Warrant (as adjusted to the date of such
calculation).
A = the closing stock price of one share of the Company's common
stock as reported by the Nasdaq National Market the business
day immediately prior to the Exercise Date (as defined below).
B = the Exercise Price in effect under this Warrant at the time
the net issue election is made pursuant to this Section 3(b).
This Warrant shall automatically be deemed to be exercised in full pursuant to
the provisions of this Section 3, without any further action on behalf of the
Holder, immediately prior to the time this Warrant would otherwise expire
pursuant to the terms of this Warrant.
(c) 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 (the "Exercise Date"), 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 record of such shares as of the close of business on such date. As
promptly as practicable on or after such date and in any event within three (3)
business days thereafter, the Company at its expense shall issue and deliver to
the person or persons entitled to receive the same a certificate or certificates
for the number of shares issuable upon such exercise. In the event that this
Warrant is exercised in part, the Company at its expense will execute and
deliver a new Warrant of like tenor exercisable for the number of shares for
which this Warrant may then be exercised.
4. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. In lieu of
any fractional share to which the Holder would otherwise be entitled, the
Company shall make a cash payment equal to the Exercise Price multiplied by such
fraction.
5. REPLACEMENT OF WARRANT. On receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and, in
the case of loss, theft or destruction, on delivery of an indemnity agreement
reasonably satisfactory in form and substance to the Company or, in the case of
mutilation, on surrender and cancellation of this Warrant, the Company at its
expense shall execute and deliver, in lieu of this Warrant, a new warrant of
like tenor and amount.
6. RIGHTS OF STOCKHOLDERS. The Holder of this Warrant shall not be entitled to
vote or receive dividends or be deemed the holder of common stock nor shall
anything contained herein be construed to confer upon the Holder, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of stock, change
of par value, or change of stock to no par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until the Warrant shall have been
exercised as provided herein.
7. TRANSFER OF WARRANT.
(a) WARRANT REGISTER. The Company will maintain a register (the "Warrant
Register") containing the names and addresses of the Holder or Holders. Any
Holder of this Warrant or any portion thereof may change his address as shown on
the Warrant Register by written notice to the Company requesting such change.
Any notice or written communication required or permitted to be given to the
Holder may be delivered or given by mail to such Holder as shown on the Warrant
Register and at the address shown on the Warrant Register. Until this Warrant is
transferred on the Warrant Register of the Company, the Company may treat the
Holder as shown on the Warrant
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Register as the absolute owner of this Warrant for all purposes, notwithstanding
any notice to the contrary.
(b) WARRANT AGENT. The Company may, by written notice to the Holder,
appoint an agent for the purpose of maintaining the Warrant Register referred to
in Section 7(a) above, issuing the common stock, exchanging this Warrant,
replacing this Warrant, or any or all of the foregoing. Thereafter, any such
registration, issuance, exchange, or replacement, as the case may be, shall be
made at the office of such agent.
(c) TRANSFERABILITY AND NON-NEGOTIABILITY OF WARRANT. This Warrant may not
be transferred or assigned in whole or in part, without compliance with all
applicable federal and state securities laws by the transferor and the
transferee (including the delivery of investment representation letters and
legal opinions reasonably satisfactory to the Company, if such are requested by
the Company). Notwithstanding the foregoing, no investment representation letter
or opinion of counsel shall be required for any transfer of this Warrant (or any
portion thereof) or any shares of common stock issued upon exercise hereof (i)
in compliance with Rule 144 or Rule 144A of the Act, or (ii) by gift, will or
intestate succession by the Holder to his or her spouse or lineal descendants or
ancestors or any trust for any of the foregoing, provided that in each of the
foregoing cases the transferee agrees in writing to be subject to the terms of
this Section 7(c). In addition, if the holder of the Warrant (or any portion
thereof) or any common stock issued upon exercise hereof delivers to the Company
an unqualified opinion of counsel that no subsequent transfer of such Warrant or
common stock shall require registration under the Act, the Company shall, upon
such contemplated transfer, promptly deliver new documents/certificates for such
Warrant or common stock that do not bear the legend set forth in Section
7(e)(ii) below. Subject to the provisions of this Warrant with respect to
compliance with the Securities Act of 1933, as amended (the "Act"), title to
this Warrant may be transferred by endorsement (by the Holder executing the
Assignment Form annexed hereto) and delivery in the same manner as a negotiable
instrument transferable by endorsement and delivery.
(d) EXCHANGE OF WARRANT UPON A TRANSFER. On surrender of this Warrant for
exchange, properly endorsed on the Assignment Form and subject to the provisions
of this Warrant with respect to compliance with the Act and with the limitations
on assignments and transfers and contained in this Section 7, the Company at its
expense shall issue to or on the order of the Holder a new warrant or warrants
of like tenor, in the name of the Holder or as the Holder (on payment by the
Holder of any applicable transfer taxes) may direct, for the number of shares
issuable upon exercise hereof.
(e) COMPLIANCE WITH SECURITIES LAWS.
(i) The initial Holder of this Warrant represents and warrants to
the Company that it is an accredited investor under the Act. The
initial Holder represents and warrants to the Company that it has all
of the information necessary for it to evaluate an investment in the
Company's securities.
(ii) The Holder of this Warrant, by acceptance hereof,
acknowledges that this Warrant and the shares of common stock to be
issued upon exercise hereof are being acquired solely for the Holder's
own account and not as a nominee for any other party, and for
investment, and that the Holder will not offer, sell or otherwise
dispose of this Warrant or any shares of common stock to be issued
upon exercise hereof except under circumstances that will not result
in a violation of the Act or any applicable state securities laws.
Upon the exercise of this Warrant, the Holder shall, if requested by
the Company, confirm in writing, in a form satisfactory to the
Company, that the shares of common stock so purchased are being
acquired solely for the Holder's own account and not as a nominee for
any other party, for investment, and not with a view toward
distribution or resale.
(iii) This Warrant and all shares of common stock issued upon
exercise hereof shall be stamped or imprinted with a legend in
substantially the following form (in addition to any legend required
by state securities laws):
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. SUCH SECURITIES AND ANY SECURITIES OR SHARES
ISSUED HEREUNDER MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF THE
AGREEMENT, COVERING THE PURCHASE OF THESE SECURITIES AND RESTRICTING
-9-
THEIR TRANSFER OR SALE MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD HEREOF TO THE SECRETARY OF THE COMPANY AT
ITS PRINCIPAL EXECUTIVE OFFICES."
(iv) The Company agrees to remove promptly, upon the request of
the holder of this Warrant and Securities issuable upon exercise of
the Warrant, the legend set forth in Section 7(e)(ii) above from the
documents/certificates for such securities upon full compliance with
this Agreement and Rules 144 and 145.
8. RESERVATION OF STOCK. The Company covenants that during the term this Warrant
is exercisable, the Company will reserve from its authorized and unissued common
stock a sufficient number of shares to provide for the issuance of common stock
upon the exercise of this Warrant (including any adjustment in the number of
Warrant Shares pursuant to Section 3(b) above). The Company further covenants
that all shares that may be issued upon the exercise of rights represented by
this Warrant and payment of the Exercise Price, all as set forth herein, will be
free from all taxes, liens and charges in respect of the issue thereof (other
than taxes in respect of any transfer occurring contemporaneously or otherwise
specified herein). The Company agrees that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary certificates for
shares of common stock upon the exercise of this Warrant.
9. REGISTRATION RIGHTS: COMPANY REGISTRATION.
(a) If the Company shall determine to register any of its securities for
its own account, other than a registration relating solely to employee benefit
plans, or a registration relating solely to a Rule 145 transaction, or a
registration on any registration form that does not permit secondary sales, the
Company will:
(i) promptly give to Holder written notice thereof; and
(ii) use its best efforts to include in such registration (and
any related qualification under blue sky laws or other
compliance), except as set forth in Section 9(b) below, and in
any underwriting involved therein, all or any part (in minimum
increments of 100,000 Shares) of the Warrant Shares specified in
a written request or requests, made by Holder and received by the
Company within twenty (20) days after the written notice from the
Company described in clause (i) above is mailed or delivered by
the Company. Such written request may specify all or a part of
Holder's Warrant Shares.
(b) UNDERWRITING. If the registration of which the Company gives notice is
for a registered public offering involving an underwriting, the Company shall so
advise Holder as a part of the written notice given pursuant to Section 9(a)(i).
In such event, the right of Holder to registration pursuant to this Section 9
shall be conditioned upon Holder's participation in such underwriting and the
inclusion of Holder's Warrant Shares in the underwriting to the extent provided
herein. A Holder proposing to distribute its securities through such
underwriting shall (together with the Company and the other holders of
securities of the Company with registration rights to participate therein
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters selected by the Company. If any person does not
agree to the terms of any such underwriting, he shall be excluded therefrom by
written notice from the Company or the underwriter. Any Warrant Shares or other
securities excluded or withdrawn from such underwriting shall be withdrawn from
such registration.
Notwithstanding any other provision of this Section 9, if the
representative of the underwriters advises the Company, in good faith, in
writing, that marketing factors require a limitation on the number of shares to
be underwritten, (i) the representative may (subject to the limitations set
forth below) exclude all Warrant Shares from, or limit the number of Warrant
Shares to be included in the registration and underwriting, or (ii) the Company
may limit, to the extent so advised by the underwriters, the amount of
securities to be included in the registration by the Company's stockholders
(including the Holder), to be apportioned pro rata among the holders of
registrable securities, including Warrant Shares, according to the total amount
of securities entitled to be included therein owned by each holder of
registrable securities, including Warrant Shares, and subject in all respects to
the rights of holders of registrable securities other than Holder affecting the
ability of such representative or the Company, as
-10-
applicable, to limit the number of registrable securities of such holder or
holders to be included in such registration and underwriting.
If registrable securities are withdrawn from the registration as a result
of the holder failing to agree to the terms of any such underwriting and the
number of registrable securities to be included in such registration was
previously reduced as a result of marketing factors, the Company shall then
offer to all persons who have retained the right to include registrable
securities in the registration the right to include additional securities in the
registration in an aggregate amount equal to the number of shares so withdrawn,
apportioned pro rata among the holders of registrable securities, including
Warrant Shares, according to the total amount of securities entitled to be
included therein owned by each holder of registrable securities, including
Warrant Shares, and subject in all respects to the rights of holders of
registrable securities other than Holder affecting the ability of such
representative or the Company, as applicable, to limit the number of registrable
securities of such holder or holders to be included in such registration and
underwriting.
10. REGISTRATION ON FORM S-3.
(a) Provided the Company is qualified for the use of Form S-3, in addition
to the rights contained in the foregoing provisions of Section 9, Holder shall
have the right to request one or more registrations on Form S-3 (such requests
shall be in writing and shall state the number of shares of Warrant Shares to be
disposed of and the intended methods of disposition of such shares by Holder),
provided, however, that the Company shall not be obligated to effect any such
registration if (i) Holder proposes to sell Warrant Shares on Form S-3 at an
aggregate price to the public of less than $500,000, or (ii) in the event the
Company shall furnish the certification described in paragraph 10(d)(ii) (but
subject to the limitations set forth therein), or (iii) the Company has, within
the six (6) month period preceding the date of such request already effected one
registration on Form S-3 for Holder pursuant to this Section 10.
(b) If a request complying with the requirements of Section 10(a) hereof is
delivered to the Company, the provisions of Sections 9(a)(i) and (ii) and
Section 10(c) hereof shall apply to such registration. If the registration is
for an underwritten offering, the provisions of Sections 9(b) hereof shall apply
to such registration.
(c) The Company shall not be obligated to effect, or to take any action to
effect, any such registration pursuant to this Section 10:
(i) In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in
effecting such registration, qualification, or compliance, unless the
Company is already subject to service in such jurisdiction and except
as may be required by the Act;
(ii) During the period starting with the date sixty (60) days
prior to the Company's good faith estimate of the date of filing of,
and ending on a date one hundred eighty (180) days after the effective
date of, a Company-initiated registration; provided that the Company
is actively employing in good faith all reasonable efforts to cause
such registration statement to become effective.
(d) Subject to the limitations set forth in this Section 10, the Company
shall file a registration statement covering the Warrant Shares so requested to
be registered as soon as practicable after receipt of the request of Holder;
provided, however, that if (i) in the good faith judgment of the Board of
Directors of the Company, such registration would be seriously detrimental to
the Company and the Board of Directors of the Company concludes, as a result,
that it is essential to defer the filing of such registration statement at such
time, and (ii) the Company shall furnish to Holder a certificate signed by the
President of the Company stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company for
such registration statement to be filed in the near future and that it is,
therefore, essential to defer the filing of such registration statement, then
the Company shall have the right to defer such filing for the period during
which such disclosure would be seriously detrimental, provided that (except as
provided in clause (c) above) the Company may not defer the filing for a period
of more than one hundred eighty (180) days after receipt of the request of
Holder, and, provided further, that the Company shall not defer its obligation
in this manner more than once in any twelve (12) month period.
-11-
11. EXPENSES OF REGISTRATION. All Registration Expenses (as defined herein)
incurred in connection with any registration, qualification or compliance
pursuant to Sections 9 and 10 hereof and reasonable fees of one counsel for
Holder shall be borne by the Company. All Selling Expenses (as defined herein)
relating to securities so registered shall be borne by the holders of such
securities pro rata on the basis of the number of shares of securities so
registered on their behalf. "Registration Expenses" shall mean all expenses
incurred in effecting any registration pursuant to this Warrant, including,
without limitation, all registration, qualification, and filing fees, printing
expenses, escrow fees, fees and disbursements of counsel for the Company, fees
and disbursements of one special counsel for the selling stockholders, blue sky
fees and expenses, accounting fees and expenses of any regular or special audits
incident to or required by any such registration, but shall not include Selling
Expenses and fees and disbursements of additional counsel for the stockholders.
Registration Expenses do not include the compensation of regular employees of
the Company, which shall be paid in any event by the Company. "Selling Expenses"
shall mean all underwriting discounts and selling commissions applicable to the
sale of Warrant Shares and fees and disbursements of counsel for any Holder
(other than the fees and disbursements of counsel included in Registration
Expenses).
12. AMENDMENTS. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
13. MISCELLANEOUS.
(a) This Warrant shall be governed by the laws of the State of Nevada
as applied to agreements entered into in the State of Nevada by and among
residents of the State of Nevada.
(b) In the event of a dispute with regard to the interpretation of
this Warrant, the prevailing party may collect the cost of attorney's fees,
litigation expenses or such other expenses as may be incurred in the
enforcement of the prevailing party's rights hereunder.
(c) The rights to cause the Company to register securities granted to
a Holder by the Company under Section 10 may be transferred or assigned by
Holder only to a transferee or assignee of not less than 100,000, provided
that the Company is given written notice at the time of or within a
reasonable time after such transfer or assignment, stating the name and
address of the transferee or assignee and identifying the securities with
respect to which such registration rights are being transferred or
assigned, and, provided further, that the transferee or assignee of such
rights assumes the obligations of such Holder under this Warrant.
(d) This Warrant shall be exercisable as provided for herein, except
that in the event that the expiration date of this Warrant shall fall on a
Saturday, Sunday or United States federally recognized Holiday, this
expiration date for this Warrant shall be extended to 5:00 p.m. Pacific
standard time on the business day following such Saturday, Sunday or
recognized Holiday.
(e) This Warrant shall be governed by and interpreted in accordance
with the laws of the State of New York, excluding its conflicts of law
principles. The parties agree that any and all disputes arising under or
relating to this Warrant shall be resolved exclusively by binding
arbitration in Las Vegas, Nevada before a single arbitrator under the
Commercial Arbitration Rules of the American Arbitration Association. The
decision of the arbitrator shall be final and binding with respect to the
dispute and shall be enforceable in any court of competent jurisdiction.
The prevailing party in any action or proceeding between the parties shall
be entitled to an award of its reasonable attorneys fees and costs.
-12-
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officers thereunto duly authorized.
Dated: January __, 2001
COMPANY:
XXXXXXXXXXX.XXX, INC., a Nevada
corporation
By
-----------------------------------------
Xxxxxxxxxxx X. Carton
President
INITIAL HOLDER:
C3 Capital, LLC, a __________________ limited liability company
By
-----------------------------------------
Its
----------------------------------------
-13-
NOTICE OF EXERCISE
To: XXXXXXXXXXX.XXX, INC.
(1) The undersigned hereby elects to purchase shares of common stock of
XXXXXXXXXXX.XXX INC., pursuant to the terms of the attached Warrant, and tenders
herewith payment of the purchase price for such shares in full.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of common stock to be issued upon conversion
thereof are being acquired solely for the account of the undersigned and not as
a nominee for any other party, or for investment, and that the undersigned will
not offer, sell or otherwise dispose of any such shares of common stock except
under circumstances that will not result in a violation of the Securities Act of
1933, as amended, or any applicable state securities laws.
(3) Please issue a certificate or certificates representing said shares of
common stock in the name of the undersigned or in such other name as is
specified below:
--------------------------------
(Name)
--------------------------------
(Name)
(4) Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of the undersigned or in such other name as is specified
below:
--------------------------------
(Name)
--------------------------------
(Name)
--------------------------------
(Date)
-14-
NET ISSUE ELECTION NOTICE
To: XXXXXXXXXXX.XXX INC. Date: ____________
The undersigned hereby elects pursuant to the net issue provisions of
Section 3(b) to surrender the right to purchase ________ shares of Common Stock
pursuant to this Warrant.
(1) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of common stock to be issued upon conversion
thereof are being acquired solely for the account of the undersigned and not as
a nominee for any other party, or for investment, and that the undersigned will
not offer, sell or otherwise dispose of any such shares of common stock except
under circumstances that will not result in a violation of the Securities Act of
1933, as amended, or any applicable state securities laws.
(2) Please issue a certificate or certificates representing said shares of
common stock in the name of the undersigned or in such other name as is
specified below:
--------------------------------
(Name)
--------------------------------
(Name)
(3) Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of the undersigned or in such other name as is specified
below:
--------------------------------
(Name)
--------------------------------
(Name)
--------------------------------
(Date)
================================
(Address)
-15-
ASSIGNMENT FORM
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 XXXXXXXXXXX.XXX, INC., maintained for the purpose, with
full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof or conversion thereof are being acquired for investment and that
the Assignee will not offer, sell or otherwise dispose of this Warrant or any
shares of stock to be issued upon exercise hereof or conversion thereof except
under circumstances which will not result in a violation of the Securities Act
of 1933, as amended, or any applicable state securities laws. Further, the
Assignee has acknowledged that upon exercise of this Warrant, the Assignee
shall, if requested by the Company, confirm in writing, in a form satisfactory
to the Company, that the shares of stock so purchased are being acquired for
investment and not with a view toward distribution or resale.
Dated: ______________, _____
------------------------------
Signature of Holder
-16-
EXHIBIT B
---------
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED HEREUNDER MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE
SECURITIES AND RESTRICTING THEIR TRANSFER OR SALE MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD HEREOF TO THE SECRETARY OF THE
COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.
WARRANT TO PURCHASE COMMON STOCK
OF
XXXXXXXXXXX.XXX, INC.
In consideration of the sum of ten dollars ($10.00) previously paid to
XXXXXXXXXXX.XXX, INC., a Nevada corporation (the "Company"), receipt and
sufficiency of which are hereby acknowledged, this certifies that, for value
received, C3 Capital, LLC or its registered assigns ("Holder") is entitled,
subject to the terms and conditions set forth below, to purchase from the
Company, in whole or in part, that number of fully paid and non-assessable
shares of the common stock, par value $0.01 per share, of the Company (the
"Warrant Shares") as set forth in Section 2 below and at a purchase price per
share (the "Exercise Price") as set forth in Section 2 below. The term "Warrant"
as used herein shall mean this Warrant, and any warrants delivered in
substitution or exchange therefor as provided herein.
1. TERM OF WARRANT; PURPOSE; VESTING.
(a) Subject to the terms and conditions set forth herein, this Warrant
shall be exercisable in accordance with the provisions contained in Section
3 hereof until 5:00 p.m., Pacific time, December _____, 2005 (the "Exercise
Period"), and shall be void thereafter.
(b) This Warrant is issued as payment by the Company to the initial
Holder under a Referral Agreement between the Company and initial Holder,
dated January ______, 2001 ("Agreement").
(c) The right to purchase Warrant Shares pursuant to this Warrant
shall vest and become exercisable during the Exercise Period in accordance
with the following schedule:
Upon the Company collecting Qualified Revenue (defined in the Agreement),
other than Qualified Revenue referred to and covered by that certain other
Warrant issued simultaneously herewith pursuant to the Agreement, which provides
an exercise price of $11.00 per share, in the amounts set forth below, the
number of Warrant Shares indicated shall vest and become exercisable as follows:
Qualified Revenue Warrant Shares Vesting
-------------------------------- ------------------------------
Additional Cumulative Additional Cumulative
---------- ---------- ---------- ----------
$3,375,000 $3,375,000 75,000 75,000
$1,125,000 $4,500,000 25,000 100,000
$1,125,000 $5,625,000 25,000 125,000
$1,125,000 $6,750,000 25,000 150,000
$6,750,000 $13,500,000 100,000 250,000
$13,500,000 $27,000,000 100,000 350,000
$27,000,000 $54,000,000 100,000 450,000
$54,000,000 $108,000,000 100,000 550,000
-17-
(d) The vesting calculation under Section 1(c) shall be calculated
each consecutive fiscal quarter of the Company, beginning with the fiscal
quarter ended December 31, 2000 and ending with the fiscal quarter ended
September 30, 2005. This Warrant shall become exercisable as to the Warrant
Shares vesting pursuant to Section 1(c) on the last day of the fiscal
quarter in which Holder has earned the vesting of all Warrant Shares
subject to Section 1(c). The Company shall provide Holder with written
notice within 45 days after the end of each fiscal quarter of the number of
Warrant Shares vesting during such fiscal quarter under Section 1(c) as set
forth in the Agreement. The vesting calculations shall, subject to the
provisions of this Agreement with respect thereto (including but not
limited to provisions regarding arbitration of disputes), be made by the
Company in good faith and its determinations shall be final and binding on
the parties.
2. NUMBER OF SHARES, EXERCISE PRICE.
(a) This Warrant shall be exercisable for up to five hundred fifty
thousand (550,000) shares of common stock of the Company vested in
accordance with Section 1(c).
(b) All Warrant Shares vested pursuant to Section 1(c) for Qualified
Revenue shall be exercisable at an exercise price determined as of the
dates of vesting with respect to such Warrant Shares equal to the average
of the opening price and closing price on such day for shares of the
Company's common stock on the Nasdaq National Market (as applicable, the
"Exercise Price"), as adjusted to reflect any stock dividend, stock split
or other conversion of the number of shares of the Company into a different
number of shares, however denominated.
3. EXERCISE OF WARRANT.
(a) This Warrant may be exercised by the Holder by the surrender of
this Warrant to the Company, with the Notice of Exercise annexed hereto
duly completed and executed on behalf of the Holder, at the office of the
Company (or such other office or agency of the Company as it may designate
by notice in writing to the Holder at the address of the Holder appearing
on the books of the Company) during the Exercise Period and: (x) the
delivery of payment to the Company, for the account of the Company, by
cash, wire transfer of immediately available funds to a bank account
specified by the Company, or by certified or bank cashier's check, of the
Exercise Price for the number of Warrant Shares specified in the Exercise
Form in lawful money of the United States of America or (y) pursuant to a
net issuance election in accordance with Section 3(b) hereof. The Company
agrees that such Warrant Shares shall be deemed to be issued to the Holder
as the record holder of such Warrant Shares as of the close of business on
the date on which this Warrant shall have been surrendered and payment made
for the Warrant Shares as aforesaid. A stock certificate or certificates
for the Warrant Shares specified in the Exercise Form shall be delivered to
the Holder as promptly as practicable, and in any event within ten (10)
days, thereafter. If this Warrant shall have been exercised only in part,
the Company shall, at the time of delivery of the stock certificate or
certificates, deliver to the Holder a new Warrant evidencing the rights to
purchase the remaining Warrant Shares, which new Warrant shall in all other
respects be identical with this Warrant. No adjustments shall be made on
Warrant Shares issuable on the exercise of this Warrant for any cash
dividends paid or payable to holders of record of common stock prior to the
date as of which the Holder shall be deemed to be the record holder of such
Warrant Shares. However, the number of Warrant Shares shall be adjusted to
reflect any stock dividend, stock split or other conversion of the number
of shares of the Company into a different number of shares, however
denominated.
(b) In lieu of exercising this Warrant pursuant to Section 3(a), the
Holder may elect to receive, without the payment by the Holder of any
additional consideration, shares equal to the value of this Warrant or any
portion hereof by the surrender of this Warrant or such portion to the
Company, with the Net Issue Election Notice annexed hereto duly executed,
at the office of the Company. Thereupon, the Company shall issue to the
Holder such number of fully paid and nonassessable shares of Common Stock
as is computed using the following formula:
X = Y (A-B)/A, where:
X = the number of shares to be issued to the Holder pursuant to
this Section 3(b).
-18-
Y = the number of shares of Common Stock otherwise issuable under
this Warrant (as adjusted to the date of such calculation).
A = the closing stock price of one share of the Company's common
stock as reported by the Nasdaq National Market the business day
immediately prior to the Exercise Date (as defined below).
B = the Exercise Price in effect under this Warrant at the time
the net issue election is made pursuant to this Section 3(b).
This Warrant shall automatically be deemed to be exercised in full pursuant
to the provisions of this Section 3, without any further action on behalf
of the Holder, immediately prior to the time this Warrant would otherwise
expire pursuant to the terms of this Warrant.
(c) 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 (the "Exercise Date"), 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 record of such shares as of the close of
business on such date. As promptly as practicable on or after such date and
in any event within three (3) business days thereafter, the Company at its
expense shall issue and deliver to the person or persons entitled to
receive the same a certificate or certificates for the number of shares
issuable upon such exercise. In the event that this Warrant is exercised in
part, the Company at its expense will execute and deliver a new Warrant of
like tenor exercisable for the number of shares for which this Warrant may
then be exercised.
4. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. In lieu of
any fractional share to which the Holder would otherwise be entitled, the
Company shall make a cash payment equal to the Exercise Price multiplied by such
fraction.
5. REPLACEMENT OF WARRANT. On receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and, in
the case of loss, theft or destruction, on delivery of an indemnity agreement
reasonably satisfactory in form and substance to the Company or, in the case of
mutilation, on surrender and cancellation of this Warrant, the Company at its
expense shall execute and deliver, in lieu of this Warrant, a new warrant of
like tenor and amount.
6. RIGHTS OF STOCKHOLDERS. The Holder of this Warrant shall not be entitled to
vote or receive dividends or be deemed the holder of common stock nor shall
anything contained herein be construed to confer upon the Holder, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of stock, change
of par value, or change of stock to no par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until the Warrant shall have been
exercised as provided herein.
7. TRANSFER OF WARRANT.
(a) WARRANT REGISTER. The Company will maintain a register (the
"Warrant Register") containing the names and addresses of the Holder or
Holders. Any Holder of this Warrant or any portion thereof may change his
address as shown on the Warrant Register by written notice to the Company
requesting such change. Any notice or written communication required or
permitted to be given to the Holder may be delivered or given by mail to
such Holder as shown on the Warrant Register and at the address shown on
the Warrant Register. Until this Warrant is transferred on the Warrant
Register of the Company, the Company may treat the Holder as shown on the
Warrant Register as the absolute owner of this Warrant for all purposes,
notwithstanding any notice to the contrary.
(b) WARRANT AGENT. The Company may, by written notice to the Holder,
appoint an agent for the purpose of maintaining the Warrant Register
referred to in Section 7(a) above, issuing the common stock, exchanging
this Warrant, replacing this Warrant, or any or all of the foregoing.
Thereafter, any such registration,
-19-
issuance, exchange, or replacement, as the case may be, shall be made at
the office of such agent.
(c) TRANSFERABILITY AND NON-NEGOTIABILITY OF WARRANT. This Warrant may
not be transferred or assigned in whole or in part, without compliance with
all applicable federal and state securities laws by the transferor and the
transferee (including the delivery of investment representation letters and
legal opinions reasonably satisfactory to the Company, if such are
requested by the Company). Notwithstanding the foregoing, no investment
representation letter or opinion of counsel shall be required for any
transfer of this Warrant (or any portion thereof) or any shares of common
stock issued upon exercise hereof (i) in compliance with Rule 144 or Rule
144A of the Act, or (ii) by gift, will or intestate succession by the
Holder to his or her spouse or lineal descendants or ancestors or any trust
for any of the foregoing, provided that in each of the foregoing cases the
transferee agrees in writing to be subject to the terms of this Section
7(c). In addition, if the holder of the Warrant (or any portion thereof) or
any common stock issued upon exercise hereof delivers to the Company an
unqualified opinion of counsel that no subsequent transfer of such Warrant
or common stock shall require registration under the Act, the Company
shall, upon such contemplated transfer, promptly deliver new
documents/certificates for such Warrant or common stock that do not bear
the legend set forth in Section 7(e)(ii) below. Subject to the provisions
of this Warrant with respect to compliance with the Securities Act of 1933,
as amended (the "Act"), title to this Warrant may be transferred by
endorsement (by the Holder executing the Assignment Form annexed hereto)
and delivery in the same manner as a negotiable instrument transferable by
endorsement and delivery.
(d) EXCHANGE OF WARRANT UPON A TRANSFER. On surrender of this Warrant
for exchange, properly endorsed on the Assignment Form and subject to the
provisions of this Warrant with respect to compliance with the Act and with
the limitations on assignments and transfers and contained in this Section
7, the Company at its expense shall issue to or on the order of the Holder
a new warrant or warrants of like tenor, in the name of the Holder or as
the Holder (on payment by the Holder of any applicable transfer taxes) may
direct, for the number of shares issuable upon exercise hereof.
(e) COMPLIANCE WITH SECURITIES LAWS.
(i) The initial Holder of this Warrant represents and warrants to
the Company that it is an accredited investor under the Act. The
initial Holder represents and warrants to the Company that it has all
of the information necessary for it to evaluate an investment in the
Company's securities.
(ii) The Holder of this Warrant, by acceptance hereof,
acknowledges that this Warrant and the shares of common stock to be
issued upon exercise hereof are being acquired solely for the Holder's
own account and not as a nominee for any other party, and for
investment, and that the Holder will not offer, sell or otherwise
dispose of this Warrant or any shares of common stock to be issued
upon exercise hereof except under circumstances that will not result
in a violation of the Act or any applicable state securities laws.
Upon the exercise of this Warrant, the Holder shall, if requested by
the Company, confirm in writing, in a form satisfactory to the
Company, that the shares of common stock so purchased are being
acquired solely for the Holder's own account and not as a nominee for
any other party, for investment, and not with a view toward
distribution or resale.
(iii) This Warrant and all shares of common stock issued upon
exercise hereof shall be stamped or imprinted with a legend in
substantially the following form (in addition to any legend required
by state securities laws):
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. SUCH SECURITIES AND ANY SECURITIES OR SHARES
ISSUED HEREUNDER MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF THE
AGREEMENT, COVERING THE PURCHASE OF THESE SECURITIES AND RESTRICTING
THEIR TRANSFER OR SALE MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD HEREOF TO THE SECRETARY OF THE COMPANY AT
ITS PRINCIPAL EXECUTIVE OFFICES."
(iv) The Company agrees to remove promptly, upon the request of
the holder of this Warrant
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and Securities issuable upon exercise of the Warrant, the legend set
forth in Section 7(e)(ii) above from the documents/certificates for
such securities upon full compliance with this Agreement and Rules 144
and 145.
8. RESERVATION OF STOCK. The Company covenants that during the term this Warrant
is exercisable, the Company will reserve from its authorized and unissued common
stock a sufficient number of shares to provide for the issuance of common stock
upon the exercise of this Warrant (including any adjustment in the number of
Warrant Shares pursuant to Section 3(b) above). The Company further covenants
that all shares that may be issued upon the exercise of rights represented by
this Warrant and payment of the Exercise Price, all as set forth herein, will be
free from all taxes, liens and charges in respect of the issue thereof (other
than taxes in respect of any transfer occurring contemporaneously or otherwise
specified herein). The Company agrees that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary certificates for
shares of common stock upon the exercise of this Warrant.
9. REGISTRATION RIGHTS: COMPANY REGISTRATION.
(a) If the Company shall determine to register any of its securities
for its own account, other than a registration relating solely to employee
benefit plans, or a registration relating solely to a Rule 145 transaction,
or a registration on any registration form that does not permit secondary
sales, the Company will:
(i) promptly give to Holder written notice thereof; and
(ii) use its best efforts to include in such registration (and
any related qualification under blue sky laws or other compliance),
except as set forth in Section 9(b) below, and in any underwriting
involved therein, all or any part (in minimum increments of 100,000
Shares) of the Warrant Shares specified in a written request or
requests, made by Holder and received by the Company within twenty
(20) days after the written notice from the Company described in
clause (i) above is mailed or delivered by the Company. Such written
request may specify all or a part of Holder's Warrant Shares.
(b) UNDERWRITING. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise Holder as a part of the written notice given
pursuant to Section 9(a)(i). In such event, the right of Holder to
registration pursuant to this Section 9 shall be conditioned upon Holder's
participation in such underwriting and the inclusion of Holder's Warrant
Shares in the underwriting to the extent provided herein. A Holder
proposing to distribute its securities through such underwriting shall
(together with the Company and the other holders of securities of the
Company with registration rights to participate therein distributing their
securities through such underwriting) enter into an underwriting agreement
in customary form with the representative of the underwriter or
underwriters selected by the Company. If any person does not agree to the
terms of any such underwriting, he shall be excluded therefrom by written
notice from the Company or the underwriter. Any Warrant Shares or other
securities excluded or withdrawn from such underwriting shall be withdrawn
from such registration.
Notwithstanding any other provision of this Section 9, if the
representative of the underwriters advises the Company, in good faith, in
writing, that marketing factors require a limitation on the number of
shares to be underwritten, (i) the representative may (subject to the
limitations set forth below) exclude all Warrant Shares from, or limit the
number of Warrant Shares to be included in the registration and
underwriting, or (ii) the Company may limit, to the extent so advised by
the underwriters, the amount of securities to be included in the
registration by the Company's stockholders (including the Holder), to be
apportioned pro rata among the holders of registrable securities, including
Warrant Shares, according to the total amount of securities entitled to be
included therein owned by each holder of registrable securities, including
Warrant Shares, and subject in all respects to the rights of holders of
registrable securities other than Holder affecting the ability of such
representative or the Company, as applicable, to limit the number of
registrable securities of such holder or holders to be included in such
registration and underwriting.
If registrable securities are withdrawn from the registration as a
result of the holder failing to agree to the terms of any such underwriting
and the number of registrable securities to be included in such
registration was
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previously reduced as a result of marketing factors, the Company shall then
offer to all persons who have retained the right to include registrable
securities in the registration the right to include additional securities
in the registration in an aggregate amount equal to the number of shares so
withdrawn, apportioned pro rata among the holders of registrable
securities, including Warrant Shares, according to the total amount of
securities entitled to be included therein owned by each holder of
registrable securities, including Warrant Shares, and subject in all
respects to the rights of holders of registrable securities other than
Holder affecting the ability of such representative or the Company, as
applicable, to limit the number of registrable securities of such holder or
holders to be included in such registration and underwriting.
10. REGISTRATION ON FORM S-3.
(a) Provided the Company is qualified for the use of Form S-3, in
addition to the rights contained in the foregoing provisions of Section 9,
Holder shall have the right to request one or more registrations on Form
S-3 (such requests shall be in writing and shall state the number of shares
of Warrant Shares to be disposed of and the intended methods of disposition
of such shares by Holder), provided, however, that the Company shall not be
obligated to effect any such registration if (i) Holder proposes to sell
Warrant Shares on Form S-3 at an aggregate price to the public of less than
$500,000, or (ii) in the event the Company shall furnish the certification
described in paragraph 10(d)(ii) (but subject to the limitations set forth
therein), or (iii) the Company has, within the six (6) month period
preceding the date of such request already effected one registration on
Form S-3 for Holder pursuant to this Section 10.
(b) If a request complying with the requirements of Section 10(a)
hereof is delivered to the Company, the provisions of Sections 9(a)(i) and
(ii) and Section 10(c) hereof shall apply to such registration. If the
registration is for an underwritten offering, the provisions of Sections
9(b) hereof shall apply to such registration.
(c) The Company shall not be obligated to effect, or to take any
action to effect, any such registration pursuant to this Section 10:
(i) In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in
effecting such registration, qualification, or compliance, unless the
Company is already subject to service in such jurisdiction and except
as may be required by the Act;
(ii) During the period starting with the date sixty (60) days
prior to the Company's good faith estimate of the date of filing of,
and ending on a date one hundred eighty (180) days after the effective
date of, a Company-initiated registration; provided that the Company
is actively employing in good faith all reasonable efforts to cause
such registration statement to become effective.
(d) Subject to the limitations set forth in this Section 10, the
Company shall file a registration statement covering the Warrant Shares so
requested to be registered as soon as practicable after receipt of the
request of Holder; provided, however, that if (i) in the good faith
judgment of the Board of Directors of the Company, such registration would
be seriously detrimental to the Company and the Board of Directors of the
Company concludes, as a result, that it is essential to defer the filing of
such registration statement at such time, and (ii) the Company shall
furnish to Holder a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company for such
registration statement to be filed in the near future and that it is,
therefore, essential to defer the filing of such registration statement,
then the Company shall have the right to defer such filing for the period
during which such disclosure would be seriously detrimental, provided that
(except as provided in clause (c) above) the Company may not defer the
filing for a period of more than one hundred eighty (180) days after
receipt of the request of Holder, and, provided further, that the Company
shall not defer its obligation in this manner more than once in any twelve
(12) month period.
11. EXPENSES OF REGISTRATION. All Registration Expenses (as defined herein)
incurred in connection with any registration, qualification or compliance
pursuant to Sections 9 and 10 hereof and reasonable fees of one counsel for
Holder shall be borne by the Company. All Selling Expenses (as defined herein)
relating to securities so registered shall be borne by the holders of such
securities pro rata on the basis of the number of shares of securities so
registered on their behalf. "Registration Expenses" shall mean all expenses
incurred in effecting any
-22-
registration pursuant to this Warrant, including, without limitation, all
registration, qualification, and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for the Company, fees and disbursements of one
special counsel for the selling stockholders, blue sky fees and expenses,
accounting fees and expenses of any regular or special audits incident to or
required by any such registration, but shall not include Selling Expenses and
fees and disbursements of additional counsel for the stockholders. Registration
Expenses do not include the compensation of regular employees of the Company,
which shall be paid in any event by the Company. "Selling Expenses" shall mean
all underwriting discounts and selling commissions applicable to the sale of
Warrant Shares and fees and disbursements of counsel for any Holder (other than
the fees and disbursements of counsel included in Registration Expenses).
12. AMENDMENTS. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
13. MISCELLANEOUS.
(a) This Warrant shall be governed by the laws of the State of Nevada
as applied to agreements entered into in the State of Nevada by and among
residents of the State of Nevada.
(b) In the event of a dispute with regard to the interpretation of
this Warrant, the prevailing party may collect the cost of attorney's fees,
litigation expenses or such other expenses as may be incurred in the
enforcement of the prevailing party's rights hereunder.
(c) The rights to cause the Company to register securities granted to
a Holder by the Company under Section 10 may be transferred or assigned by
Holder only to a transferee or assignee of not less than 100,000, provided
that the Company is given written notice at the time of or within a
reasonable time after such transfer or assignment, stating the name and
address of the transferee or assignee and identifying the securities with
respect to which such registration rights are being transferred or
assigned, and, provided further, that the transferee or assignee of such
rights assumes the obligations of such Holder under this Warrant.
(d) This Warrant shall be exercisable as provided for herein, except
that in the event that the expiration date of this Warrant shall fall on a
Saturday, Sunday or United States federally recognized Holiday, this
expiration date for this Warrant shall be extended to 5:00 p.m. Pacific
standard time on the business day following such Saturday, Sunday or
recognized Holiday.
(e) This Warrant shall be governed by and interpreted in accordance
with the laws of the State of New York, excluding its conflicts of law
principles. The parties agree that any and all disputes arising under or
relating to this Warrant shall be resolved exclusively by binding
arbitration in Las Vegas, Nevada before a single arbitrator under the
Commercial Arbitration Rules of the American Arbitration Association. The
decision of the arbitrator shall be final and binding with respect to the
dispute and shall be enforceable in any court of competent jurisdiction.
The prevailing party in any action or proceeding between the parties shall
be entitled to an award of its reasonable attorneys fees and costs.
-23-
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officers thereunto duly authorized.
Dated: January __, 2001
COMPANY:
XXXXXXXXXXX.XXX, INC., a Nevada corporation
By
-----------------------------------------
Xxxxxxxxxxx X. Carton
President
INITIAL HOLDER:
C3 Capital, LLC, a __________________ limited liability company
By
-----------------------------------------
Its
----------------------------------------
-24-
NOTICE OF EXERCISE
To: XXXXXXXXXXX.XXX, INC.
(1) The undersigned hereby elects to purchase shares of common stock of
XXXXXXXXXXX.XXX INC., pursuant to the terms of the attached Warrant, and tenders
herewith payment of the purchase price for such shares in full.
(2) In exercising this Warrant, the undersigned hereby confirms and acknowledges
that the shares of common stock to be issued upon conversion thereof are being
acquired solely for the account of the undersigned and not as a nominee for any
other party, or for investment, and that the undersigned will not offer, sell or
otherwise dispose of any such shares of common stock except under circumstances
that will not result in a violation of the Securities Act of 1933, as amended,
or any applicable state securities laws.
(3) Please issue a certificate or certificates representing said shares of
common stock in the name of the undersigned or in such other name as is
specified below:
--------------------------------
(Name)
--------------------------------
(Name)
(4) Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of the undersigned or in such other name as is specified
below:
--------------------------------
(Name)
--------------------------------
(Name)
--------------------------------
(Date)
-25-
NET ISSUE ELECTION NOTICE
To: XXXXXXXXXXX.XXX INC. Date: ____________
The undersigned hereby elects pursuant to the net issue provisions of
Section 3(b) to surrender the right to purchase ________ shares of Common Stock
pursuant to this Warrant.
(1) In exercising this Warrant, the undersigned hereby confirms and acknowledges
that the shares of common stock to be issued upon conversion thereof are being
acquired solely for the account of the undersigned and not as a nominee for any
other party, or for investment, and that the undersigned will not offer, sell or
otherwise dispose of any such shares of common stock except under circumstances
that will not result in a violation of the Securities Act of 1933, as amended,
or any applicable state securities laws.
(2) Please issue a certificate or certificates representing said shares of
common stock in the name of the undersigned or in such other name as is
specified below:
--------------------------------
(Name)
--------------------------------
(Name)
(3) Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of the undersigned or in such other name as is specified
below:
--------------------------------
(Name)
--------------------------------
(Name)
--------------------------------
(Date)
================================
(Address)
-26-
ASSIGNMENT FORM
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 XXXXXXXXXXX.XXX, INC., maintained for the purpose, with
full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof or conversion thereof are being acquired for investment and that
the Assignee will not offer, sell or otherwise dispose of this Warrant or any
shares of stock to be issued upon exercise hereof or conversion thereof except
under circumstances which will not result in a violation of the Securities Act
of 1933, as amended, or any applicable state securities laws. Further, the
Assignee has acknowledged that upon exercise of this Warrant, the Assignee
shall, if requested by the Company, confirm in writing, in a form satisfactory
to the Company, that the shares of stock so purchased are being acquired for
investment and not with a view toward distribution or resale.
Dated: ______________, _____
--------------------------------
(Signature of Holder)
-27-
EXHIBIT C
---------
REFERRAL FORM
-------------
Referring Party
Company:________________________________________________________________________
Physical Address:_______________________________________________________________
Mailing Address (if different): ________________________________________________
City, State, Zip: ______________________________________________________________
Phone Number: _______________________________ Fax: ____________________________
Customer Profile
----------------
Company:________________________________________________________________________
Physical Address:_______________________________________________________________
Mailing Address (if different): ________________________________________________
City, State, Zip: ______________________________________________________________
Phone Number: ________________________________ Fax: ___________________________
Web Site URL: __________________________________________________________________
Key Contact Name:_____________________________ Telephone: _____________________
Key Contacts Title:___________________________ Email Address: _________________
Name of person with final approval authority:___________________________________
Opportunity Profile
PurchasePro Marketplace Opportunity (Choose One):
____e-Procurement ____ v-Distributor ____ e-MarketMaker
Explain your relationship to this opportunity:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Date of First Meeting:__________________________
Projected date of Signed Agreement:_____________________
Describe the action steps required to complete a Marketplace Software License
Agreement on this opportunity:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ACCEPTED by PurchasePro
Signed___________________________ Signed_________________________
Referring Party
Title: __________________________ Title: ________________________
Print Name: _____________________ Print Name: ___________________
Date: ___________________________ Effective Date*: ______________
*All opportunities expire after 3 months from time of Date Submitted unless a
time extension has been agreed upon in writing by the Director of Indirect
Channels.
