EXHIBIT 10.9
EXHIBIT C
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THE WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
("ACT"), AND THIS WARRANT CANNOT BE SOLD OR TRANSFERRED AND THE SHARES OF COMMON
STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT CANNOT BE SOLD OR TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT RELATED THERETO OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY ISSUING THIS WARRANT THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT.
Warrant No. _________
566,000 Shares
(Subject to Adjustment)
COMMON STOCK PURCHASE WARRANT
September 27, 2000
This certifies that, for value received, Venture
Communications Corporation, a Nevada corporation ("Warrantholder") is entitled
to subscribe for and purchase from Centergistic Solutions, Inc., a California
corporation ("Company"), 566,000 shares of the Company's Common Stock ("Common
Stock"), prior to the Expiration Date (as such term is defined below) at the
price of $5.75 per share ("Exercise Price"), subject to the terms and conditions
stated herein. This Warrant is issued pursuant to that certain Judgment Purchase
Agreement dated as of September 27, 2000 (the "Agreement") by and among the
Company, Affinitec Corporation, Xxxxx & Xxxxxx and Warrantholder.
1. Exercise of Warrant.
1.1 Manner of Exercise. The rights represented by this
Warrant may be exercised in whole or in part by the holder hereof by the
surrender of this Warrant and delivery of an executed Subscription Agreement in
the form attached hereto as Exhibit A to the Company at its principal executive
office, or such other place as the Company shall designate in writing, at any
time or times prior to the Expiration Date, accompanied by payment for the
Common Stock so subscribed for in cash or certified bank or cashier's checks.
1.2 Exercise Period. This Warrant shall terminate
September 27, 2005 (the "Expiration Date").
1.3 Delivery of Certificates. Within a reasonable time
after exercise, in whole or in part, of this Warrant, the Company shall issue in
the name of and deliver to the Warrantholder, a certificate or certificates for
the number of fully paid and nonassessable shares of Common Stock which the
Warrantholder shall have requested in the Notice of Exercise. If this Warrant is
exercised in part, the Company shall deliver to the Warrantholder a new Warrant
for the unexercised portion of this Warrant at the time of delivery of such
certificate or certificates.
2. Representations and Warranties of Warrantholder. The
Warrantholder by accepting this Warrant represents and warrants as follows:
2.1 Investment Representation. The Warrant is acquired
for Warrantholder's own account for investment purposes and not with a view to
any offering or distribution and Warrantholder has no present intention of
selling or otherwise disposing of the Warrant or the underlying shares of Common
Stock in violation of applicable securities laws. Upon exercise, Warrantholder
will confirm, in respect of securities obtained upon such exercise, that
Warrantholder is acquiring such securities for Warrantholder's own account and
not with a view to any offering or distribution in violation of applicable
securities laws. Warrantholder acknowledges that shares of Common Stock issued
upon exercise of this Warrant have not been registered under the Act and are
"restricted securities" as that term is defined in Rule 144 promulgated under
the Act and must be held indefinitely unless they are subsequently registered
under the Act or an exemption from such registration is available. Warrantholder
further acknowledges that the certificate(s) representing the Common Stock
issued upon exercise of this Warrant shall be endorsed with a legend similar to
the legend set forth on this Warrant and all other legends, if any, required by
applicable federal and state securities laws to be placed on the certificate(s).
2.2 Tax Matters. Warrantholder understands that the
acceptance and exercise of this Warrant has implications under the Internal
Revenue Code and Warrantholder will consult its own tax counsel with respect
thereto.
3. Validity of Common Stock. The Company warrants and agrees that
all shares of Common Stock which may be issued upon the exercise of this Warrant
will, upon issuance, be validly issued, fully paid and nonassessable and free
from all taxes, liens and charges with respect to the issue thereof. The Company
further warrants and agrees that during the period within which this Warrant may
be exercised the Company will at all times have authorized and reserved a
sufficient number of shares of Common Stock to provide for the exercise of this
Warrant.
4. Adjustments. The number of shares of Common Stock for which
Warrantholder is entitled to subscribe and purchase from the Company pursuant to
this Warrant and the Exercise Price for such shares shall be subject to
adjustment from time to time only as follows:
4.1 Adjustments for Stock Splits and Combinations. If the
Company at any time or from time to time after the date hereof effects a
subdivision of the outstanding Common Stock, the number of shares of Common
Stock for which Warrantholder is entitled to subscribe and purchase from the
Company upon exercise of this Warrant shall be proportionately increased and the
Exercise Price then in effect immediately before the subdivision shall be
proportionately decreased, and conversely, if the Company at any time or from
time to time after the date hereof combines the outstanding shares of Common
Stock, the number of shares of Common Stock for which Warrantholder is entitled
to subscribe and purchase from the Company shall be proportionately decreased
and the Exercise Price then in effect immediately before the subdivision shall
be proportionately increased. Any adjustment under this subsection shall become
effective at the close of business on the date the subdivision or combination
becomes effective.
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4.2 Adjustments for Certain Dividends and Distributions.
In the event the Company at any time or from time to time after the date hereof
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 the number of shares of
Common Stock for which Warrantholder is entitled to subscribe and purchase from
the Company upon exercise of this Warrant shall be proportionately increased and
the Exercise Price then in effect shall be proportionately decreased as of the
time of such issuance or, in the event such a record date is fixed, as of the
close of business on such record date; 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 number of shares of Common Stock for
which Warrantholder is entitled to subscribe and purchase from the Company and
the Exercise Price therefor shall be recomputed accordingly as of the close of
business on such record date and thereafter the number of shares of Common Stock
then issuable on exercise of this Warrant and the Exercise Price therefor shall
be adjusted pursuant to this subsection as of the time of actual payment of such
dividends or distributions.
4.3 Adjustment for Reclassification, Exchange and
Substitution. If the Common Stock issuable upon the exercise of this Warrant is
changed into the same or a different number of shares of any class or classes of
stock, whether by reclassification, recapitalization or otherwise (other than a
subdivision or combination of shares or stock dividend or a capital
reorganization, merger, consolidation or sale of assets provided for elsewhere
in this Section 4, then and in any such event Warrantholder shall have the right
thereafter to purchase the kind and amount of stock and other securities and
property receivable upon such reclassification, recapitalization or other
change, by holders of the number of shares of Common Stock which might have been
purchased upon exercise of this Warrant immediately prior to such
reclassification, recapitalization or change, all subject to further adjustment
as provided herein.
4.4 Adjustment for Reorganizations, Mergers,
Consolidations or Sales of Assets. If at any time or from time to time there is
a capital reorganization or any merger of the Company with or into any other
corporation or corporations or a sale of all or substantially all of the assets
of the Company to any other person or any voluntary or involuntary liquidation,
dissolution or winding up of the Company (any such transaction referred to
herein as a "Reorganization") involving the Common Stock then, as a part of such
Reorganization, provision shall be made so that Warrantholder shall thereafter
be entitled to receive, upon exercise of this Warrant, the number of shares of
stock or other securities or property of the Company or of the successor
corporation resulting from such Reorganization to which a holder of Common Stock
deliverable upon exercise of this Warrant would have been entitled on such
Reorganization. In any such case, appropriate adjustment shall be made in the
application of the provisions of this Section 4 with respect to the rights of
Warrantholder after such Reorganization to the end that the provisions of this
Section 4 (including adjustments of the Exercise Price then in effect and number
of shares of stock purchasable upon exercise of this Warrant) shall be
applicable after that event and be as nearly equivalent to the provisions hereof
as may be practicable.
4.5 Adjustment for Lower Priced Warrants and Options. To
the extent that the Company issues a warrant or option for the purchase of
shares of Common Stock of the Company to any person or entity who is not an
employee, director or consultant of the Company
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providing for an exercise price of less than $5.23 per share, then the Exercise
Price pursuant to this Warrant shall be reduced to 110% of the lowest such
exercise price.
4.6 Notice of Adjustments. Upon any adjustments of the
Exercise Price or the amount or kind of securities or other property issuable
upon exercise of this Warrant, then and in each case the Company shall give
written notice of such adjustment by first class mail, postage prepaid,
addressed to the holder of this Warrant at his address registered on the books
of the Company, which notice shall state the Exercise Price resulting from such
adjustment and the amount and kind of securities purchasable at such price upon
the exercise of this Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
4.7 Notice of Record Date. In the event of (i) any taking
by the Company of a record of the holders of any class of Common Stock for the
purpose of determining the holders thereof who are entitled to receive any
dividend or other distribution, or (ii) any capital transaction that the Company
proposes to effect requiring adjustments pursuant to this Section 4 ("Capital
Transaction"), the Company shall mail to Warrantholder at least twenty (20) days
prior to the date specified therein, a notice specifying (1) the date on which
any such record is to be taken for the purpose of such dividend or distribution
and a description of such dividend or distribution, (2) the date on which any
such Capital Transaction is expected to become effective, and (3) the time, if
any, that is to be fixed, as to when the holders of record of Common Stock shall
be entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such Capital Transaction.
5. Transfer of Warrant.
(a) Until the obligations of Warrantholder pursuant to
the Agreement are satisfied in full, this Warrant may not be sold, assigned,
transferred or pledged without the prior written consent of the Company, which
consent may be withheld for any reason in the sole and subjective discretion of
the Company. Thereafter, this Warrant shall not be sold, assigned, transferred
or pledged except upon the conditions specified in this Warrant, which
conditions are intended, among other things, to ensure compliance with the
provisions of federal and state securities laws. Warrantholder will cause any
proposed purchaser, assignee, transferee or pledgee of the Warrant held by the
Warrantholder to agree to take and hold such Warrant subject to the provisions
and upon the conditions specified in this Warrant.
(b) No transfer or assignment of this Warrant shall be
made without compliance with the legend set forth on the first page of this
Warrant.
(c) In order to effectuate any transfer of this Warrant,
or any rights or obligations hereunder, the current Warrantholder must execute
an assignment in form and substance reasonably acceptable to Company, the
proposed transferee must execute an acknowledgment and agreement in form and
substance reasonably acceptable to Company, and the Warrantholder and proposed
transferee shall execute all other documents, representations and warranties
which Company may reasonably request. No proposed transfer shall have any effect
unless and until Company gives its written consent to the proposed transfer and
acknowledges
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that the proposed transferee has become the current Warrantholder and registered
owner of this Warrant.
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 loss, theft, destruction or mutilation of this Warrant and, in the case of
loss, theft or destruction, of indemnity satisfactory to it in the exercise of
reasonable discretion, and, 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.
(a) No Impairment. The Company will not, by amendment of
its Fourth Amended and Restated Certificate of Incorporation or through
reorganization, consolidation, merger, dissolution, sale of assets or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Warrantholder
against 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 this Warrant 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
nonassessable shares upon the exercise of this Warrant at the time outstanding.
7. Miscellaneous Matters.
(a) As used herein, the term "Common Stock" shall mean
the Company's presently authorized Common Stock and stock of any other class
into which such presently authorized Common Stock may hereafter have been
converted.
(b) As used herein, the word "person" shall mean an
individual or entity.
(c) This Warrant and the name and address of the holder
have been registered in a Warrant Register that is kept at the principal office
of the Company, and the Company may treat the holder so registered as the owner
of this Warrant for all purposes.
(d) This Warrant shall not entitle the holder hereof to
any voting rights or other rights as a shareholder of the Company, or to any
other rights whatsoever except the rights herein expressed, and no cash dividend
paid out of earnings or surplus or interest shall be payable or accrue in
respect of this Warrant or the interest represented hereby or the shares which
may be subscribed for and purchased hereunder until and unless and except to the
extent that the rights represented by this Warrant shall be exercised.
(e) This Warrant shall be governed by and interpreted in
accordance with the internal laws, and not the law of conflicts, of the State of
California.
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(f) All notices under this Warrant shall be given as set
forth in the Agreement.
CENTERGISTIC SOLUTIONS, INC.,
a California corporation
By: __________________________
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SUBSCRIPTION AGREEMENT
______________________, 200__
To: Centergistic Solutions, Inc.
The undersigned, pursuant to the provisions set forth in
Warrant No. [______________], hereby agrees to subscribe for and purchase
[__________________] shares of the Common Stock covered by such Warrant, and
makes payment herewith in full for such Common Stock at the Exercise Price.
The undersigned represents and warrants to you that the
undersigned is acquiring the shares covered hereby for the undersigned's own
account for investment purposes and not with a view to any offering or
distribution in violation of applicable securities laws.
Signature: ___________________________
Printed Name
And Title: ___________________________
___________________________
Address: ___________________________
___________________________
___________________________
ASSIGNMENT
FOR VALUE REVISED ___________________ hereby sells, assigns
and transfers all of the undersigned under Warrrant No. [__________], with
respect to the number of shares of Common Stock covered thereby set forth below
unto:
Name of Assignee Address No. of Shares
---------------- ------- -------------
Dated: _________________, 200___.
Signature: ___________________________
Printed Name
And Title: ___________________________
___________________________
Address: ___________________________
___________________________
___________________________
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