EXHIBIT 10.29
THE SHAAR FUND LTD.
c/o SHAAR ADVISORY SERVICES LTD.
00 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx 0X
Xxxxxxxxx, Xxxxxx
December 2, 1998
VIA FEDERAL EXPRESS
DYNAMICWEB ENTERPRISES, INC.
Xxxxxxxx X, Xxxxx 000
271 Route 00 Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Xx.
Re: $400,000 Investment by The Shaar Fund Ltd. in Series A
6% Convertible Preferred Shares and a Common Stock
Purchase Warrant of Dynamicweb Enterprises, Inc.
Gentlemen:
Reference is hereby made in this letter agreement (this
"Letter Agreement") to the following documents:
(i) the Securities Purchase Agreement dated as of
August 7, 1998 (the "Securities, Purchase Agreement")
between DYNAMICWEB ENTERPRISES, INC., a New Jersey
corporation with principal executive offices located at
000 Xxxxx 00 Xxxx, Xxxxxxxxx, XX 00000 (the "Company") and
THE SHAAR FUND, LTD. ("Buyer");
(ii) the Registration Rights Agreement dated as of
August 7, 1998 (the "Registration Rights Agreement") between
the Company and Buyer;
(iii) the Common Stock Purchase Warrant No. 1 dated as
of August 7, 1998 ("Warrant No. 1") issued by the Company to
Buyer to purchase 87,500 shares of the Company's common
stock, par value $0.0001 (the "Common Stock");
(iv) the Escrow Instructions dated as of August 7,
1998 (the "Escrow Instruction") among the Company, Buyer and
Xxxxxxx Xxxxxxxxx LLP (the "Escrow Agent"; and
(v) all other documents and instruments executed and
delivered by the Company or Buyer on the Initial Funding
Date in order to consummate the transactions contemplated
pursuant to the Securities Purchase Agreement (collectively,
the "Ancillary Documents," and together with the Securities
Purchase Agreement, the Securities Purchase Agreement, the
Registration Rights Agreement, Warrant No. I and
the Escrow Instructions, collectively referred to as the
"Documents").
In order to consummate the acquisition by Buyer from
the Company of ___ shares of the Company's Series A 6%
Preferred Stock, par value $O.001 (collectively, the "New
Preferred Shares") and Common Stock Purchase Warrant No. 2
(the "New Warrant") to purchase ___ shares of the Company's
Common Stock (a copy of which is attached hereto as
Exhibit A) on the Second Funding Date, the parties hereto
hereby agree as follows:
1. Definitions. All capitalized terms that are used and
not defined herein shall have the respective meaning assigned to
them in the Securities Purchase Agreement.
2. Amendments to the Documents.
(a) The parties hereto covenant and agree that the
Documents are hereby deemed amended as follows:
(i) all references to Subsequently Issued
Preferred Shares in the Documents are amended to mean the
New Preferred Shares;
(ii) all references to Subsequently Issued
Warrants in the Documents are amended to mean the New
Warrant;
(iii) the reference to $675,000 as the amount of
the Second Purchase Price in Section 1.B. of the Securities
Purchase Agreement is hereby amended and changed to
$400,000;
(iv) the reference to the definition of the
Second Tranche in the Documents as being comprised of the
Subsequently Issued Preferred Shares and the Subsequently
Issued Warrants is amended and changed to reflect that the
Second Tranche is comprised of the New Preferred Shares and
the New Warrant.
(b) Without limiting the generality of the foregoing,
the following sections of the Documents are hereby amended as
follows:
(i) all references to 675 shares of Subsequently
Issued Preferred Shares and 67,500 Subsequently Issued
Warrants, respectively, in the first and second "WHEREAS"
clauses of the Securities Purchase Agreement are amended to
mean ___ shares of the New Preferred Shares and the New
Warrant to purchase ___ shares of Common Stock,
respectively;
(ii) the reference to the 675 shares of
Subsequently Issued Preferred Shares and 67,500 Subsequently
Issued Warrants in the first "WHEREAS" clause of the
Registration Rights Agreement is amended to mean
___ shares of Common Stock; and
(iii) the reference to the 675 shares of
Subsequently Issued Preferred Shares and 67,500 Subsequently
Issued Warrants in the first paragraph of the Escrow
Instructions is amended to mean ___ shares of the New
Preferred Shares and the New Warrant to purchase shares of
Common Stock.
3. Closing Conditions. The Company represents, warrants
and covenants that all of the Second Funding Requirements set
forth at Section I.B. of the Securities Purchase Agreement have
been completed and satisfied in all respects.
4. Conditions to the Buyer's Obligations. The Company
understands that Buyer's obligation to purchase the New Preferred
Shares and the New Warrant pursuant to this Letter Agreement and
the Documents is conditioned upon:
(a) Delivery by the Company to the Escrow Agent on the
Second Funding Date of one or more certificates (I/N/O Buyer)
evidencing the New Preferred Shares and the New Warrant to be
purchased by Buyer pursuant to this Letter Agreement on the
Second Funding Date;
(b) The accuracy in all respects on the Second Funding
Date of the representations and warranties of the Company
contained in the Securities Purchase Agreement as if made on the
Second Funding Date (except for representations and warranties
which, by their express terms, speak as of and relate to a
specified date, in which case such accuracy shall be measured as
of such specified date) and the performance by the Company in all
respects on or before the Second Funding Date of all covenants
and agreements of the Company required to be performed, by it
pursuant to this Agreement on or before the Second Funding Date;
(c) Buyer having received an opinion of counsel for
the Company, dated as of the Second Funding Date, in form, scope
and substance satisfactory to the Buyer;
(d) There not having occurred (i) any general
suspension of trading in, or limitation on prices listed for, the
Common Stock on NASD/BBS, (ii) the declaration of a banking
moratorium or any suspension of payments in respect of banks in
the United States, (iii) the commencement of a war, armed
hostilities or other international or national calamity directly
or indirectly involving the United States or any of its
territories, protectorates or possessions, or (iv) in the case of
the foregoing existing at the date of this Agreement, a material
acceleration or worsening thereof;
(e) There not having occurred any event or
development, and there being in existence no condition, having or
which reasonably and foreseeably could have a Material Adverse
Effect;
(f) The Company shall have delivered to Buyer (as
provided in the Escrow Instructions) reimbursement of Buyer's
out-of-pocket costs and expenses incurred in connection with the
transactions contemplated by this Agreement and the Securities
Purchase Agreement (including the fees and disbursements of
Buyer's legal counsel);
(g) There shall not be in effect any Law or order,
ruling, judgment or writ of any court or public or governmental
authority restraining, enjoining or otherwise prohibiting any of
the transactions contemplated by this Letter Agreement or the
Securities Purchase Agreement; and
(h) Solely with respect to the closing date occurring
on the Second Funding Date, the Company shall have satisfied or
performed all of the Second Funding Requirements and all other
conditions set forth in Section I.B. of the Securities Purchase
Agreement, or Buyer shall have waived the Company's compliance
with such requirements.
5. Conditions to the Company's Obligations. The Buyer
understands that the Company's obligation to sell the New
Preferred Shares and the New Warrant on the Second Funding Date
to Buyer pursuant to this Agreement and the Documents is
conditioned upon:
(a) Delivery by Buyer to the Escrow Agent of $400,000
on the Second Funding Date;
(b) The accuracy in all material respects on the
Second Funding Date of the representations and warranties of
Buyer contained in the Securities Purchase Agreement as if made
on the Second Funding Date (except for representations and
warranties which, by their express terms, speak as of and relate
to a specified date, in which case such accuracy shall be
measured as of such specified date) and the performance by Buyer
in all material respects on or before the Second Funding Date of
all covenants and agreements of Buyer required to be performed by
it pursuant to this Letter Agreement or the Securities Purchase
Agreement on or before the Second Funding Date; and
(c) There shall not be in effect any Law or order,
ruling, judgment or writ of any court or public or governmental
authority restraining, enjoining or otherwise prohibiting any of
the transactions contemplated by this Letter Agreement or the
Securities Purchase Agreement.
6. Deliveries Upon the Second Funding Date. Upon the
Second Funding Date, the Company shall deliver to Buyer the
following documents and instruments, all in the form, scope and
substance satisfactory to Buyer:
(a) one or more certificates (I/N/0 Buyer) evidencing
the New Preferred Shares;
(b) the New Warrant (I/N/0 Buyer) in the form
attached hereto as Exhibit A;
(c) the opinion of counsel for the Company dated as of
the Second Funding Date in similar form to the opinion delivered
on the Initial Funding Date;
(d) an Officers' Certificate of the Company in similar
form to the Officers' Certificate delivered on the Initial
Funding Date;
(e) a Certificate of Good Standing as of the Second
Funding Date; and
(f) the Minutes of the Special Meeting of the Board of
Directors of the Company approving the transaction contemplated
by this Letter Agreement and the Documents.
7. Closing. The issuance and sale of the Second Tranche
shall occur on the Second Funding Date at the offices of the
Escrow Agent (as defined in the Securities Purchase Agreement) in
accordance with the terms and provisions of the Securities
Purchase Agreement.
8. Governing Law; Miscellaneous. This Letter Agreement
shall be governed by and interpreted in accordance with the laws
of the State of New York, without regard to the conflicts of law
principles of such state. Each of the parties consents to the
jurisdiction of the federal courts whose districts encompass any
part of the City of New York or the state courts of the State of
New York sitting in the City of New York in connection with any
dispute arising under this Letter Agreement and hereby waives, to
the maximum extent permitted by law, any objection, including any
objection based on forum non conveniens, to the bringing of any
such proceeding in such jurisdictions. A facsimile transmission
of this signed Letter Agreement shall be legal and binding on all
parties hereto. This Letter Agreement may be signed in one or
more counterparts, each of which shall be deemed an original.
The headings of this Letter Agreement are for convenience of
reference and shall not form part of, or affect the
interpretation of, this Letter Agreement. if any provision of
this Letter Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this
Letter Agreement or the validity or enforceability of this Letter
Agreement in any other jurisdiction. This Letter Agreement may
be amended only by an instrument in writing signed by the party
to be charged with enforcement. This Letter Agreement supersedes
all prior agreements and understandings among the parties hereto
with respect to the subject matter hereof.
9. Notices. Except as may be otherwise provided herein,
any notice or other communication or delivery required or
permitted hereunder shall be in writing and shall be delivered
personally or sent by certified mail, postage prepaid, or by a
nationally recognized overnight courier service, and shall be
deemed given when so delivered personally or by overnight courier
service, or, if mailed, three (3) days after the date of deposit
in the United States mails, as follows:
(a) if to the Company, to:
DYNAMICWEB ENTERPRISES, INC.
000 Xxxxx 00 Xxxx
Xxxxxxxx X, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx & Xxx
One Glenhardie Xxxxxxxxx Xxxxxx Xxxxx 000
Xxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to the Buyer, to
THE SHAAR FUND LTD.,
c/o SHAAR ADVISORY SERVICES LTD.
00 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx 0X
Xxxxxxxxx, Xxxxxx
Attention: Xxxxxx Xxxxxxxx
with a copy to:
Xxxxxxx, Xxxxxxxxx LLP
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Company, the Buyer or the Escrow Agent may change the
foregoing address by notice given pursuant to this Section 9.
10. Confidentiality. Each of the Company and Buyer agrees
to keep confidential and not to disclose to or use for the
benefit of any third party the terms of this Letter Agreement or
any other information which at any time is communicated by the
other party as being confidential without the prior written
approval of the other party; provided, however, that this
provision shall not apply to information which, at the time of
disclosure, is already part of the public domain (except by
breach of this Letter Agreement) and information which is
required to be disclosed by law (including,without limitations
pursuant to Item 1O of Rule 601 of Regulation S-K under the
Securities Act and the Exchange Act).
11. Assignment. This Letter Agreement shall not be
assignable by either of the parties hereto without the prior
written consent of the other party, and any attempted assignment
contrary to the provisions hereby shall be null and void;
provided, however, that Buyer may assign its rights and
obligations hereunder, in whole or in part, to any affiliate of
Buyer who furnishes to the Company the representations and
warranties set forth in Section II of the Securities Purchase
Agreement and otherwise agrees to be bound by the terms of this
Letter Agreement and the Documents.
12. No Further Modification. Except as specifically
provided in this Letter Agreement, nothing herein contained shall
otherwise modify, reduce, amend or otherwise supplement the terms
and provisions of the Documents, each of which remain in full
force and effect.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
PAGE 7
This letter is being delivered to you in duplicate. If it
accurately describes the agreement between us, kindly so indicate
by executing and returning one copy to the undersigned whereupon
it will constitute our agreement with respect to the matters set
forth above.
Sincerely,
THE SHAAR FUND, LTD.
By; INTERCARRIBBEAN SERVICES, INC.
By:_____________________________
Name:
Title:
AGREED TO AND ACCEPTED this
2nd day of December 1998.
DYNAMICWEB ENTERPRISES, INC.
By:___________________________
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title:
PAGE 8
EXHIBIT A
COMMON STOCK PURCHASE WARRANT NO. 2
PAGE 9
THIS COMMON STOCK PURCHASE WARRANT AND THE SECURITIES
REPRESENTED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT,
THE RULES AND REGULATIONS THEREUNDER OR THE PROVISIONS
OF THIS COMMON STOCK PURCHASE WARRANT.
Number of Shares of Common Stock: ______
Warrant No. 2
COMMON STOCK PURCHASE WARRANT
To Purchase Common Stock of
Dynamicweb Enterprises, Inc.
THIS IS TO CERTIFY THAT The Shaar Fund Ltd., or registered
assigns, is entitled, at any time from the Initial Funding Date
(as hereinafter defined) to the Expiration Date (as hereinafter
defined), to purchase from DYNAMICWEB ENTERPRISES, INC., a New
Jersey corporation (the "Company"), 67,500 shares of Common Stock
(as hereinafter defined and subject to adjustment as provided
herein), in whole or in part, including fractional parts, at a
purchase price equal to $________ per share, all on the terms and
pursuant to conditions and pursuant to the purchase price equal
to the provisions hereinafter set forth.
1. DEFINITIONS
As used in this Common Stock Purchase War-rant (this
"Warrant"), the following terms have the respective meanings set
forth below:
"Additional Shares of Common Stock" shall mean all
shares of Common Stock issued by the Company after the Initial
Funding Date, other than Warrant Stock.
"Book Value" shall mean, in respect of any share of
Common Stock on any date herein specified, the consolidated book
value of the Company as of the last day of any month immediately
preceding such date, divided by the number of Fully Diluted
Outstanding shares of Common Stock as determined in accordance
with GAAP (assuming the payment of tile exercise prices for such
shares) by Xxxxxxx X. Xxxxxx & Company, LLP or any other firm of
independent certified public accountants of recognized national
standing selected by the Company and reasonably acceptable to the
Holder.
"Business Day" shall mean any day that is not a
Saturday or Sunday or a day on which banks are required or
permitted to be closed in the State of New York.
"Commission" shall mean the Securities and Exchange
Commission or any other federal agency then administering the
Securities Act and other federal securities laws.
"Common Stock" shall mean (except where the context
otherwise indicates) the Common Stock, par value $0.0001, of the
Company as constituted on the Initial Funding Date, and any
capital stock into which such Common Stock may thereafter be
changed, and shall also include (i) capital stock of the Company
of any other class (regardless of how denominated) issued to the
holders of shares of Common Stock upon any reclassification
thereof which is also not preferred as to dividends or assets
over any other class of stock of the Company and which is not
subject to redemption and (ii) shares of common stock of any
successor or acquiring corporation received by or distributed to
the holders of Common Stock of the Company in the circumstances
contemplated by Section 4.4.
"Convertible Securities" shall mean evidences of
indebtedness, shares of stock or other securities which are
convertible into or exchangeable, with or without payment of
additional consideration in cash or property, for shares of
Common Stock, either immediately or upon the occurrence of a
specified date or a specified event.
"Current Warrant Price" shall mean, in respect of a
share of Common Stock at any date herein specified, the price at
which a share of Common Stock may be purchased pursuant to this
Warrant on such date.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended, or any successor federal statute, and the
rules and regulations of the Commission thereunder, all as the
same shall be in effect from time to time.
"Exercise Period" shall mean the period during which
this Warrant is exercisable pursuant to Section 2.1.
"Expiration Date" shall mean December 1, 2001.
"Fully Diluted Outstanding" shall mean, when used with
reference to Common Stock, at any date as of which the number of
shares thereof is to be determined, all shares of Common Stock
Outstanding at such date and all shares of Common Stock issuable
in respect of this Warrant, outstanding on such date, and other
options or warrants to purchase, or securities convertible into,
shares of Common Stock outstanding on such date which would be
deemed outstanding in accordance with GAAP for purposes of
determining book value or net income per share.
"GAAP" shall mean generally accepted accounting
principles in the United States of America as from time to time
in effect.
"Holder" shall mean the Person in whose name the
Warrant or Warrant Stock set forth herein is registered on the
books of the Company maintained for such purpose.
"Initial Funding Date" means the date and time of the
issuance and sale of the Initially Issued Preferred Shares (as
defined in the Securities Purchase Agreement) and the Initially
Issued Warrants (as defined in the Securities Purchase Agreement)
in the First Tranche (as defined in the Securities Purchase
Agreement).
"Market Price" per Common Share means the average of
the closing bid prices of the Common Shares as reported on the
National Association of Securities Dealers, Inc. ("NASD"), Over
("OTC") the Counter Bulletin Board System ("BBS", together with
NASD and OTC, the "NASD/BBS"), or, if such security bid is not
listed or admitted to trading on the Nasdaq, on the principal
national security exchange or quotation system on which such
security is quoted or listed or admitted to trading, or, if not
quoted or listed or admitted to trading on any national
securities exchange or quotation system the closing bid price of
such security on the over-the-counter market on the day in
question as reported by the National Quotation Bureau
Incorporated, or a similar generally accepted reporting service,
or if not so available, in such manner as furnished by any member
firm of the NASD selected from time to time by the Board of
Directors of the Company for that purpose, or a price determined
in good faith by the Board of Directors of the Company as being
equal to the fair market value thereof, as the case may be, for
the five (5) Trading Days immediately preceding the Initial
Funding Date.
"Other Property" shall have the meaning set forth in
Section 4.4.
"Outstanding" shall mean, when used with reference to
Common Stock, at any date as of which the number of shares
thereof is to be determined, all issued shares of Common Stock,
except shares then owned or held by or for the account of the
Company or any subsidiary thereof, and shall include all shares
issuable in respect of outstanding scrip or any certificates
representing fractional interests in shares of Common Stock.
"Person" shall mean any individual, sole
proprietorship, partnership, joint venture. trust, incorporated
organization, association, corporation, institution, public
benefit corporation, entity or government (whether federal,
state, county, city, municipal or otherwise, including, without
limitation, any instrumentality, division, agency, body or
department thereof).
"Registration Rights Agreement" shall mean the
Registration Rights Agreement dated a date even herewith by and
between the Company and The Shaar Fund Ltd., as it may be amended
from time to time.
"Restricted Common Stock" shall mean shares of Common
Stock which are, or which upon their issuance or the exercise of
this Warrant would be, evidenced by a certificate bearing the
restrictive legend set forth in Section 9.1(a).
"Second Funding Date" means the date and time of the
issuance and sale of the New Preferred Shares (as defined in the
Securities Purchase Agreement) and the New Warrants (as defined
in the Securities Purchase Agreement) in the Second Tranche (as
defined in the Securities Purchase Agreement).
"Securities Act" shall mean the Securities Act of 1933,
as amended, or any successor federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall
be in effect at the time.
"Securities Purchase Agreement" shall mean the
Securities Purchase Agreement dated as of August 7, 1998 by and
between the Company and The Shaar Fund, Ltd. as it may be amended
from time to time.
"Transfer" shall mean any disposition of any Warrant or
Warrant Stock or of any interest in either thereof, which would
constitute a sale thereof within the meaning of the Securities
Act.
"Transfer Notice" shall have the meaning set forth in
Section 9.2.
"Warrants" shall mean this Warrant and all warrants
issued upon transfer, division or combination of, or in
substitution for, any thereof All Warrants shall at all times be
identical as to terms and conditions and date, except as to the
number of shares of Common Stock for which they may be exercised.
"Warrant Price" shall mean an amount equal to (i) the
number of shares of Common Stock being purchased upon exercise of
this Warrant pursuant to Section 2.1, multiplied by (ii) the
Current Warrant Price as of the date of such exercise.
"Warrant Stock" shall mean the shares of Common Stock
purchased by the holders of the Warrants upon the exercise
thereof.
2. EXERCISE OF WARRANT
2.1 Manner of Exercise. From and after the Second
Funding Date and until 5:00 P.M., New York time, on the
Expiration Date, Holder may exercise this Warrant, on any
Business Day, for all or any part of the number of shares of
Common Stock purchasable hereunder.
In order to exercise this Warrant, in whole or in
part, Holder shall deliver to the Company at its principal office
at 000 Xxxxx 00 Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, or at the
office or agency designated by the Company pursuant to
Section 12, (i) a written notice of Holder's of election to
exercise this Warrant, which notice shall specify the number of
shares of Common Stock to be purchased, (ii) payment of the
Warrant Price in Cash Or by wire transfer or cashier's check
drawn on a United States bank and (iii) this Warrant. Such
notice shall be substantially in the form of the subscription
form appearing at the end of this Warrant as Exhibit A,
duly executed by Holder or its agent or attorney. Upon receipt
of the items referred to in clauses (i), (ii) and (iii) above,
the Company shall, as promptly as practicable, and in any event
within five (5) Business Days thereafter, execute or cause to be
executed and deliver or cause to be delivered to Holder a
certificate or certificates representing the aggregate number of
full shares of Common Stock issuable upon such exercise, together
with cash in lieu of any fraction of a share, as hereinafter
provided. The stock certificate or certificates so delivered
shall be, to the extent possible, in such denomination or
denominations as Holder shall request in the notice and shall be
registered in the name of Holder or, subject to Section 9, such
other name as shall be designated in the notice. This Warrant
shall be deemed to have been exercised and such certificate or
certificates shall be deemed to have been issued, and Holder or
any other Person so designated to be named therein shall be
deemed to have become a holder of record of such shares for all
purposes, as of the date the notice, together with the cash or
check or checks and this Warrant, is received by the Company as
described above and all taxes required to be paid by Holder, if
any, pursuant to Section 2.2 prior to the issuance of such shares
have been paid. if this Warrant shall have been exercised in
part, the Company shall, at the time of delivery of the
certificate or certificates representing Warrant Stock, deliver
to Holder a new Warrant evidencing the rights of Holder to
purchase the unpurchased shares of Common Stock called for by
this Warrant, which new Warrant shall in all other respects be
identical with this Warrant, or, at the request of Holder,
appropriate notation may be made on this Warrant and the same
returned to Holder. Notwithstanding any provision herein to the
contrary, the Company shall not be required to register shares in
the name of any Person who acquired this Warrant (or pail
hereof) or any Warrant Stock otherwise than in accordance with
this Warrant.
2.2 Payment of Taxes and Charges. All shares of
Common Stock issuable upon the exercise of this Warrant pursuant
to the terms hereof shall be validly issued, fully paid and
nonassessable, freely tradeable and without any preemptive
rights. The Company shall pay all expenses in connection with,
and all taxes and other governmental charges that may be imposed
with respect to, the issue or delivery thereof, unless such tax
or charge is imposed by law upon Holder, in which case such taxes
or charges shall be paid by Holder. The Company shall not be
required, however, to pay any tax or other charge imposed in
connection with any transfer involved in the issue of any
certificate for shares of Common Stock issuable upon exercise of
this Warrant in any name other than that of Holder, and in such
case the Company shall not be required to issue or deliver any
stock certificate until such tax or other charge has been paid or
it has been established to the satisfaction of the Company that
no such tax or other charge is due.
2.3 Fractional Shares. The Company shall not be
required to issue a fractional share of Common Stock upon
exercise of any Warrant. As to any fraction of a share which
Holder would otherwise be entitled to purchase upon
such exercise, the Company shall pay a cash adjustment in respect
of such final fraction in an amount equal to the same fraction of
the Market Price per share of Common Stock as of the Initial
Funding Date.
2.4 Continued Validity. A holder of shares of Common
Stock issued upon the exercise, of this Warrant, in whole or in
part (other than a holder who acquires such shares after the same
have been publicly sold pursuant to a Registration Statement
under the Securities Act or sold pursuant to Rule 144
thereunder), shall continue to be entitled with respect to such
shares to all rights to which it would have been entitled as
Holder under Sections 9, 10 and 14 of this Warrant. The Company
will, at the time of exercise of this Warrant, in whole or in
part, upon the request of Holder, acknowledge in writing, in form
reasonably satisfactory to Holder, its continuing obligation to
afford Holder all such rights; provided, however, that if Holder
shall fail to make any such request, such failure shall not
affect the continuing obligation of the Company to afford to
Holder all such rights.
3. TRANSFER, DIVISION AND COMBINATION
3.1 Transfer. Subject to compliance with Section 9,
transfer of this Warrant and all rights hereunder, in whole or in
part, shall be registered on the books of the Company to be
maintained for such purpose, upon surrender of this Warrant at
the principal office of the Company referred to in Section 2.1 or
the office or agency designated by the Company pursuant to
Section 12, together with a written assignment of this Warrant
substantially in the form of Exhibit B hereto duly executed by
Holder or its agent or attorney and funds sufficient to pay any
transfer taxes payable upon the making of such transfer. Upon
such surrender and, if required, such payment, the Company shall,
subject to Section 9, execute and deliver a new Warrant or
Warrants in the name of the assignee or assignees and in the
denomination specified in such instrument of assignment, and
shall issue to the assignor a new Warrant evidencing the portion
of this Warrant not so assigned, and this Warrant shall promptly
be cancelled. A Warrant, if properly assigned in compliance with
Section 9, may be exercised by a new Holder for the purchase of
shares of Common Stock without having a new warrant issued.
3.2 Division and Combination. Subject to Section 9,
this Warrant may be divided or combined with other Warrants upon
presentation hereof at the aforesaid office or agency of the
Company, together with a written notice specifying the names and
denominations in which new Warrants are to be issued, signed by
Holder or its agent or attorney. Subject to compliance with
Section 3.1 and with Section 9, as to any transfer which may be
involved in such division or combination, the Company shall
execute and deliver a new Warrant or Warrants in exchange for the
Warrant or Warrants to be divided or combined in accordance with
such notice.
3.3 Expenses. The Company shall prepare, issue and
deliver at its own expense (other than transfer taxes) the new
Warrant or Warrants under this Section 3.
3.4 Maintenance of Books. The Company agrees to
maintain, at its aforesaid office or agency, books for the
registration and the registration of transfer of the Warrants.
4. ADJUSTMENTS
The number of shares of Common Stock for which this
Warrant is exercisable, or the price at which such shares may be
purchased upon exercise of this Warrant, shall be subject to
adjustment from time to time as set forth in this Section 4. The
Company shall give Holder notice of any event described below
which requires an adjustment pursuant to this Section 4 at the
time of such event.
4.1 Stock Dividends, Subdivisions and Combinations.
If at any time the Company shall:
(a) take a record of the holders of its Common
Stock for the purpose of entitling them to receive a
dividend payable in, or other distribution of, Additional
Shares of Common Stock,
(b) subdivide its outstanding shares of Common
Stock into a larger number of shares of Common Stock, or
(c) combine its outstanding shares of Common
Stock into a smaller number of shares of Common Stock,
then (i) the number of shares of Common Stock for which this
Warrant is exercisable immediately after the occurrence of any
such event shall be adjusted to equal the number of shares of
Common Stock which a record holder of the same number of shares
of Common Stock for which this Warrant is exercisable immediately
prior to the occurrence of such event would own or be entitled to
receive after the happening of such event, and (ii) the Current
Warrant Price shall be adjusted to equal (A) the Current Warrant
Price multiplied by the number of shares of Common Stock for
which this Warrant is exercisable immediately prior to the
adjustment divided by (B) the number of shares for which this
Warrant is exercisable immediately after such adjustment.
4.2 Certain Other Distribution. If at any time the
Company shall take a record of the holders of its Common Stock
for the purpose of entitling them to receive any dividend or
other distribution of:
(a) cash,
(b) any evidences of its indebtedness, any shares
of its stock or any other securities or property of any
nature whatsoever (other than cash, Convertible Securities
or Additional Shares of Common Stock), or
(c) any warrants or other rights to subscribe for
or purchase any evidences of its indebtedness, any shares of
its stock or any other securities or property of any nature
whatsoever (other than cash, Convertible Securities or
Additional Shares of Common Stock),
then Holder shall be entitled to receive such dividend or
distribution as if Holder had exercised the Warrant. A
reclassification of the Common Stock (other than a change in par
value, or from par value to no par value or from no par value to
par value) into shares of Common Stock and shares of any other
class of stock shall be deemed a distribution by the Company to
the holders of its Common Stock of such shares of such other
class of stock within the meaning of this Section 4.2 and, if the
outstanding shares of Common Stock shall be changed into a larger
or smaller number of shares of Common Stock as a part of such
reclassification, such change shall be deemed a subdivision or
combination, as the case may be, of the outstanding shares of
Common Stock within the meaning of Section 4.1.
4.3 Other Provisions Applicable to Adjustments under
this Section. The following provisions shall be applicable to
the making of adjustments of the number of shares of Common Stock
for which this Warrant is exercisable and the Current Warrant
Price provided for in this Section 4:
(a) When Adjustments to Be Made. The adjustments
required by this Section 4 shall be made whenever and as
often as any specified event requiring an adjustment shall
occur. For the purpose of any adjustment, any specified
event shall be deemed to have occurred at the close of
business on the date of its occurrence.
(b) Fractional Interests. In computing
adjustments under this Section 4, fractional interests in
Common Stock shall be taken into account to the nearest
1/10th of a share.
(c) When Adjustment Not Required. If the Company
shall take a record of the holders of its Common Stock for
the purpose of entitling them to receive a dividend or
distribution or subscription or purchase rights and shall,
thereafter and before the distribution to stockholders
thereof, legally abandon its plan to pay or deliver such
dividend, distribution, subscription or purchase rights,
then thereafter no adjustment shall be required by reason of
the taking of such record and any such adjustment previously
made in respect thereof shall be rescinded and annulled.
(d) Challenge to Good Faith Determination.
Whenever the Board of Directors of the Company shall be
required to make a determination in good faith of the fair
value of any item under this Section 4, such determination
may be challenged in good faith by the Holder, and any
dispute shall be resolved by an investment banking firm of
recognized national standing selected by the Company and
acceptable to the Holder.
4.4 Reorganization, Reclassification, Merger,
Consolidation or Disposition of Assets. In case the Company shall
reorganize its capital, reclassify its capital stock, consolidate
or merge with or into another corporation (where the Company is
not the surviving corporation or where there is a change in or
distribution with respect to the Common Stock of the Company), or
sell, transfer or otherwise dispose of all or substantially all
its property, assets or business to another corporation and,
pursuant to the terms of such reorganization, reclassification,
merger, consolidation or disposition of assets, shares of common
stock of the successor or acquiring corporation, or any cash,
shares of stock or other securities or property of any nature
whatsoever (including warrants or other subscription or purchase
rights) in addition to or in lieu of common stock of the
successor or acquiring corporation ("Other Property"), are to be
received by or distributed to the holders of Common Stock of the
Company, then Holder shall have the night thereafter to receive,
upon exercise of the Warrant, the number of shares of common
stock of the successor or acquiring corporation or of the
Company, if it is the surviving corporation, and Other Property
receivable upon or as a result of such reorganization,
reclassification, merger, consolidation or disposition of assets
by a holder of the number of shares of Common Stock for which
this Warrant is exercisable immediately prior to such event. In
case of any such reorganization, reclassification, merger,
consolidation or disposition of assets, the successor or
acquiring corporation (if other than the Company) shall expressly
assume the due and punctual observance and performance of each
and every covenant and condition of this Warrant to be performed
and observed by the Company and all the obligations and
liabilities hereunder, subject to such modifications as may be
deemed appropriate (as determined by resolution of the Board of
Directors of the Company) in order to provide for adjustments of
shares of Common Stock for which this War-rant is exercisable
which shall be as nearly equivalent as practicable to the
adjustments provided for in this Section 4. For purposes of this
Section 4.4, "common stock of the successor or acquiring
corporation" shall include stock of such corporation of any class
which is not preferred as to dividends or assets over any other
class of stock of such corporation and which is not subject to
redemption and shall also include any evidences of indebtedness,
shares of stock or other securities which are convertible into or
exchangeable for any such stock, either immediately or upon the
arrival of a specified date or the happening of a specified event
and any warrants or other rights to subscribe for or purchase any
such stock. The foregoing provisions of this Section 4.4 shall
similarly apply to successive reorganizations, reclassifications,
mergers, consolidations or disposition of assets.
4.5 Other Action Affecting Common Stock. In case at
any time or from time to time the Company shall take any action
in respect of its Common Stock, other than any action described
in this Section 4, which would have a materially adverse effect
upon the rights of the Holder, the number of shares of Common
Stock and/or the purchase price thereof shall be adjusted in such
manner as may be equitable in the circumstances, as determined in
good faith by the Board of Directors-of the Company.
4.6 Certain Limitations. Notwithstanding anything
herein to the contrary, the Company agrees not to enter into any
transaction which, by reason of any adjustment hereunder, would
cause the Current Warrant Price to be less than the par value per
share of Common Stock.
5. NOTICES TO HOLDER
5.1 Notice of Adjustments. Whenever the number of
shares of Common Stock for which this Warrant is exercisable, or
whenever the price at which a share of such Common Stock may be
purchased upon exercise of the Warrants, shall be adjusted
pursuant to Section 4, the Company shall forthwith prepare a
certificate to be executed by the chief financial officer of the
Company setting forth, in reasonable detail, the event requiring
the adjustment and the method by which such adjustment was
calculated (including a description of the basis on which the
Board of Directors of the Company determined the fair value of
any evidences of indebtedness, shares of stock, other securities
or property or warrants or other subscription or purchase rights
referred to in Section 4.2), specifying the number of shares of
Common Stock for which this Warrant is exercisable and (if such
adjustment was made pursuant to Section 4.4 or 4.5) describing
the number and kind of any other shares of stock or Other
Property for which this warrant is exercisable, and any change in
the purchase price or prices thereof, after giving effect to such
adjustment or change. The Company shall promptly cause a signed
copy of such certificate to be delivered to the Holder in
accordance with Section 14.2. The Company shall keep at its
office or agency designated pursuant to Section 12 copies of all
such certificates and cause the same to be available for
inspection at said office during normal business hours by the
Holder or any prospective purchaser of a Warrant designated by
the Holder.
5.2 Notice of Corporate Action. If at any time
(a) the Company shall take a record of the
holders of its Common Stock for the purpose of entitling
them to receive a dividend or other distribution, or any
right to subscribe for or purchase any evidences of its
indebtedness, any shares of stock of any class or any other
securities or property, or to receive any other right, or
(b) there shall be any capital reorganization of
the Company, any reclassification or recapitalization of the
capital stock of the Company or any consolidation or merger
of the Company with, or any sale, transfer or other
disposition of all or substantially all the property, assets
or business of the Company to, another corporation, or
(c) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to
Holder (i) at least 3 0 days' prior written notice of the date on
which a record date shall be selected for such dividend,
distribution or right or for determining rights to vote
in respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution,
liquidation or winding up, and (ii) in the case of any such
reorganization, reclassification, merger, consolidation, sale,
transfer, disposition, dissolution, liquidation or winding up, at
least 30 days' prior written notice of the date when the same
shall take place. Such notice in accordance with the foregoing
clause also shall specify (i) the date on which any such record
is to be taken for the purpose of such dividend, distribution or
right, the date on which the holders of Common Stock shall be
entitled to any such dividend, distribution or right, and the
amount and character thereof, and (ii) the date on which any such
reorganization, reclassification, merger, consolidation, sale,
transfer, disposition, dissolution, liquidation or winding up is
to take place and the time, if any such time is to be fixed, as
of which the holders of Common Stock shall be entitled to
exchange their shares of Common Stock for securities or other
property deliverable upon such reorganization, reclassification,
merger, consolidation, sale, transfer, disposition, dissolution,
liquidation or winding up. Each such written notice shall be
sufficiently given if addressed to Holder at the last address of
Holder appearing on the books of the Company and delivered in
accordance with Section 14.2.
6. NO IMPAIRMENT
The Company shall not by any action including, without
limitation, amending its certificate of incorporation or through
any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities 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 actions as may be necessary or appropriate to
protect the rights of Holder against impairment. Without
limiting the generality of the foregoing, the Company will
(a) not increase the par value of any shares of Common Stock
receivable upon the exercise of this Warrant above the amount
payable therefor upon such exercise immediately Prior to such
increase in par value, (b) 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 of Common
Stock upon the exercise of this warrant, and (c) use its best
efforts to obtain all such authorizations, exemptions or consents
from any public regulatory body having jurisdiction thereof as
may be necessary to enable the Company to perform its obligations
under this Warrant.
Upon the request of Holder, the Company will at any
time during the period this Warrant is outstanding acknowledge in
writing, in form satisfactory to Holder, the continuing validity
of this Warrant and the obligations of the Company hereunder.
7. RESERVATION AND AUTHORIZATION OF COMMON STOCK
From and after the Initial Funding Date, the Company
shall at all times reserve and keep available for issue upon the
exercise of Warrants such number of its authorized but unissued
shares of Common Stock as will be sufficient to permit the
exercise in full of all outstanding Warrants. All shares of
Common Stock which shall be so issuable, when issued upon
exercise of any Warrant and payment therefor in accordance with
the terms of such Warrant, shall be duly and validly issued and
fully paid and nonassessable, and not subject to preemptive
rights.
Before taking any action which would cause an
adjustment reducing the Current Warrant Price below the then par
value, if any, of the shares of Common Stock issuable upon
exercise of the Warrants, the Company shall take any corporate
action which may be necessary in order that the Company may
validly and legally issue fully paid and non-assessable shares of
such Common Stock at such adjusted Current Warrant Price.
Before taking any action which would result in an
adjustment in the number of shares of Common Stock for which this
Warrant is exercisable or in the Current Warrant Price, the
Company shall obtain all such authorizations or exemptions
thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
8. TAKING OF RECORD; STOCK AND WARRANT TRANSFER BOOKS
In the case of all dividends or other distributions by
the Company to the holders of its Common Stock with respect to
which any provision of Section 4 refers to the taking of a record
of such holders, the Company will in each such case take such a
record and will take such record as of the close of business on a
Business Day. The Company will not at any time, except upon
dissolution, liquidation or winding up of the Company, close its
stock transfer books or Warrant transfer books so as to result in
preventing or delaying the exercise or transfer of any Warrant.
9. RESTRICTIONS ON TRANSFERABILITY
The Warrants and the Warrant Stock shall not be
transferred, hypothecated or assigned before satisfaction of the
conditions specified in this Section 9, which conditions are
intended to ensure compliance with the provisions of the
Securities Act with respect to the Transfer of any Warrant or any
Warrant Stock. Holder, by acceptance of this Warrant, agrees to
be bound by the provisions of this Section 9.
9.1 Restrictive Legend.
(a) The Holder by accepting this Warrant and any
Warrant Stock agrees that this Warrant and the Warrant Stock
issuable upon exercise hereof may not be assigned or
otherwise transferred unless and until (i) the Company has
received an opinion of counsel for the Holder that such
securities may be sold pursuant to an exemption from
registration under the Securities Act of 1933, as amended
(the "Securities Act") or (ii) a registration statement
relating to such securities has been filed by the Company
and declared effective by the Commission.
Each certificate for Warrant Stock issuable
hereunder shall bear a legend as follows unless such
securities have been sold pursuant to an effective
registration statement under the Securities Act:
"These securities have not been registered under
the Securities Act of 1933, as amended (the "Securities
Act"), or the securities laws of any state, and are
being offered and sold pursuant to an exemption from
the registration requirements of the Securities Act and
such laws. These securities may not be sold or
transferred except pursuant to an effective
registration statement under the Securities Act or
pursuant to an available exemption from the
registration requirements of the Securities Act or such
other laws."
(b) Except as otherwise provided in this
Section 9, the Warrant shall be stamped or otherwise
imprinted with a legend in substantially the following form:
"This Warrant and the securities represented
hereby have not been registered under the Securities
Act of 1933, as amended, and may not be transferred in
violation of such Act, the rules and regulations
thereunder or the provisions of this Warrant."
9.2 Notice of Proposed Transfers. Prior to any
Transfer or attempted Transfer of any Warrants or any shares of
Restricted Common Stock, the Holder shall give ten days, prior
written notice (a "Transfer Notice") to the Company of Holder's
intention to effect such Transfer, describing the manner and
circumstances of the proposed Transfer, and obtain from counsel
to Holder who shall be reasonably satisfactory to the Company, an
opinion that the proposed Transfer of such Warrants or such
Restricted Common Stock may be effected without registration
under the Securities Act. After receipt of the Transfer Notice
and opinion, the Company shall, within five days thereof, notify
the Holder as to whether such opinion is reasonably satisfactory
and, if so, such holder shall thereupon be entitled to Transfer
such Warrants or such Restricted Common Stock, in accordance with
the terms of the Transfer Notice. Each certificate, if any,
evidencing such shares of Restricted Common Stock issued upon
such Transfer shall bear the restrictive legend set forth in
Section 9.1(a), and the Warrant issued upon such
Transfer shall bear the restrictive legend set forth in
Section 9.1(b), unless in the opinion of such counsel such legend
is not required in order to ensure compliance with the Securities
Act. The Holder shall not be entitled to Transfer such Warrants
or such Restricted Common Stock until receipt of notice from the
Company under this Section 9.2(a) that such opinion is reasonably
satisfactory.
9.3 Required Registration. Pursuant to the terms and
conditions set forth in the Registration Rights Agreement, the
Company shall prepare and file with the Commission not later than
the sixtieth (60th) day after the Initial Funding Date, a
Registration Statement relating to the offer and sale of the
Common Stock issuable upon exercise of the Warrants and shall use
its best efforts to cause the Commission to declare such
Registration Statement effective under the Securities Act as
promptly as practicable but no later than one hundred and twenty
(120) days after the Initial Funding Date.
9.4 Termination of Restrictions. Notwithstanding the
foregoing provisions of Section 9, the restrictions imposed by
this Section upon the transferability of the Warrants, the
Warrant Stock and the Restricted Common Stock (or Common Stock
issuable upon the exercise of the Warrants) and the legend
requirements of Section 9.1 shall terminate as to any particular
Warrant or share of Warrant Stock or Restricted Common Stock (or
Common Stock issuable upon the exercise of the warrants) (1) when
and so long as such security shall have been effectively
registered under the Securities Act and disposed of pursuant
thereto or (ii) when the Company shall have received an opinion
of counsel reasonably satisfactory to it that such shares may be
transferred without registration thereof under the Securities
Act. Whenever the restrictions imposed by Section 9 shall
terminate as to this Warrant, as hereinabove provided, the Holder
hereof shall be entitled to receive from the Company upon written
request of the Holder, at the expense of the Company, a new
Warrant bearing the following legend in place of the restrictive
legend set forth hereon:
"THE RESTRICTIONS ON TRANSFERABILITY OF THE WITHIN
WARRANT CONTAINED IN SECTION 9 HEREOF TERMINATED ON
____________, 19_, AND ARE OF NO FURTHER FORCE AND
EFFECT."
All Warrants issued upon registration of transfer, division or
combination of, or in substitution for, any Warrant or Warrants
entitled to bear such legend shall have a similar legend endorsed
thereon. Whenever the restrictions imposed by this Section shall
terminate as to any share of Restricted Common Stock, as
hereinabove provided, the holder thereof shall be entitled to
receive from the Company, at the Company's expense, a new
certificate representing such Common Stock not bearing the
restrictive legend set forth in Section 9. 1 (a).
9.5 Listing on Securities Exchange. If the Company
shall list any shares of Common Stock on any securities exchange,
it will, at its expense, list thereon, maintain and,
when necessary, increase such listing of, all shares of Common
Stock issued or, to the extent permissible under the applicable
securities exchange rules, issuable upon the exercise of this
Warrant so long as any shares of Common Stock shall be so listed
during any such Exercise Period.
o r SUPPLYING INFORMATION
The Company shall cooperate with Holder in supplying
such information as may be reasonably necessary for Holder to
complete and file any information reporting forms presently or
hereafter required by the Commission as a condition to the
availability of an exemption from the Securities Act for the sale
of any Warrant or Restricted Common Stock.
11. LOSS OR MUTILATION
Upon receipt by the Company from Holder of evidence
reasonably satisfactory to it of the ownership of and the loss,
theft, destruction or mutilation of a Warrant and indemnity
reasonably satisfactory to it (it being understood that the
written agreement of the Holder shall be sufficient indemnity),
and in case of mutilation upon surrender and cancellation hereof,
the Company will execute and deliver in lieu hereof a new Warrant
of like tenor to Holder; provided, in the case of mutilation, no
indemnity shall be required if this Warrant in identifiable form
is surrendered to the Company for cancellation.
12. OFFICE OF THE COMPANY
As long as any of the Warrants remain outstanding, the
Company shall maintain an office or agency (which may be the
principal executive offices of the Company) where the Warrants
may be presented for exercise, registration of transfer, division
or combination as provided in this Warrant.
13. LIMITATION OF LIABILITY
No provision hereof, in the absence of affirmative
action by Holder to purchase shares of Common Stock, and no
enumeration herein of the rights or privileges of Holder hereof,
shall give rise to any liability of Holder for the purchase price
of any Common Stock or as a stockholder of the Company, whether
such liability is asserted by the Company or by creditors of the
Company.
14. MISCELLANEOUS
14.1 Nonwaiver and Expenses. No course of dealing or
any delay or failure to exercise any right hereunder on the part
of Holder shall operate as a waiver of such right or otherwise
prejudice Holder's rights, powers or remedies. If the Company
fails to make, when due, any payments provided for hereunder, or
fails to comply with any other provision of this Warrant, the
Company shall pay to Holder such amounts as shall be sufficient
to cover any costs and expenses including, but not limited to,
reasonable attorneys' fees, including those of
appellate proceedings, incurred by Holder in collecting any
amounts due pursuant hereto or in otherwise enforcing any of its
rights, powers or remedies hereunder.
14.2 Notice Generally. Except as may be otherwise
provided herein, any notice or other communication or delivery
required or permitted hereunder shall be in writing and shall be
delivered personally or sent by certified mail, postage prepaid,
or by a nationally recognized overnight courier service, and
shall be deemed given when so delivered personally or by
overnight courier service, or, if mailed, three (3) days after
the date of deposit in the United States mails, as follows:
(1) if to the Company, to:
DYNAMICWEB ENTERPRISES, INC.
000 Xxxxx 00X, Xxxxxxxx X, Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
XXXXXXX & XXX
Xxx Xxxxxxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(2) if to the Holder, to:
THE SHAAR FUND LTD., c/o SHAAR ADVISORY
SERVICES LTD. 00 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxx 0X Xxxxxxxxx, Xxxxxx
Attention: Xxxxxx Xxxxxxxx
With a copy to:
XXXXXXX, XXXXXXXXX LLP
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Company or the Holder may change the foregoing address by
notice given pursuant to this Section 14.2.
14.3 Indemnification. The Company agrees to indemnify
and hold harmless Holder from and against any liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, claims, costs, attorneys' fees, expenses and disbursements
of any kind which may be imposed upon, incurred by or asserted
against Holder in any manner relating to or arising out of any
failure by the Company to perform or observe in any
material respect any of its covenants, agreements, undertakings
or obligations set forth in this Warrant; provided, however, that
the Company will not be liable hereunder to the extent that any
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, attorneys' fees, expenses or
disbursements are found in a final non-appealable judgment by a
court to have resulted from Holder's gross negligence, bad faith
or willful misconduct in its capacity as a stockholder or
warrantholder of the Company.
14.4 Remedies. Holder in addition to being entitled to
exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights
under Section 9 of this Warrant. The Company agrees that
monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of
Section 9 of this Warrant and hereby agrees to waive the defense
in any action for specific performance that a remedy at law would
be adequate.
14.5 Successors and Assigns. Subject to the provisions
of Sections 3.1 and 9, this Warrant and the rights evidenced
hereby shall inure to the benefit of and be binding upon the
successors of the Company and the successors and assigns of
Holder. The provisions of this Warrant are intended to be for
the benefit of all Holders from time to time of this Warrant and,
with respect to Section 9 hereof, holders of Warrant Stock, and
shall be enforceable by any such Holder or holder of Warrant
Stock.
14.6 Amendment. This Warrant and all other Warrants may
be modified or amended or the provisions hereof waived with the
written consent of the Company and the Holder.
14.7 Severability. Wherever possible, each provision
of this Warrant shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of
this Warrant shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Warrant.
14.8 Headings. The headings used in this Warrant are
for the convenience of reference only reference only and shall
not, for any purpose, be deemed a part of this Warrant.
14.9 Governing Law. This Warrant shall be governed by
the laws of the State of New York, without regard to the
provisions thereof relating to conflict of laws.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
PAGE 26
IN WITNESS WHEREOF, the Company has caused this Warrant
to be duly executed and its corporate sea.1 to be impressed
hereon and attested by its Secretary or an Assistant Secretary.
Dated: December 2. 1998
DYNAMICWEB ENTERPRISES, INC.
By:___________________________________
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Chief Executive Officer
Attest:
By: _______________________
Name:
Title:
[SEAL]
PAGE 27
EXHIBIT A
SUBSCRIPTION FORM
[To be executed only upon exercise of Warrant]
The undersigned registered owner of this Warrant irrevocably
exercises this warrant for the purchase of Shares of Common Stock
of Dynamicweb Enterprises, Inc. and herewith makes payment
therefor, all at the price and on the terms and conditions
specified in this Warrant and requests that certificates for the
shares of Common Stock hereby purchased (and any securities or
other property issuable upon such exercise) be issued in the
name of and delivered to whose address is and, if such shares of
Common Stock shall not include all of the shares of Common Stock
issuable as provided in this Warrant, that a new Warrant of like
tenor and date for the balance of the shares of Common Stock
issuable hereunder be delivered to the undersigned.
(Name of Registered owner)
(Signature of Registered Owner)
Street Address)
(city) (State) (Zip Code)
NOTICE: The signature on this subscription must correspond with
the name as written upon the face of the within Warrant
in every particular, without alteration or enlargement
or any change whatsoever.
PAGE 28
EXHIBIT B
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 this
Warrant, with respect to the number of shares of Common Stock set
forth below:
No. of Shares of
Name and Address of Assignee Common Stock
and does hereby irrevocably constitute and appoint attorney-in-
fact to register such transfer on the books of maintained for the
purpose, with full power of substitution in the premises.
Dated: Print Name:
Signature:
Witness:
NOTICE: The signature on this assignment must correspond with
the name as written upon the face of the within Warrant
in every particular, without alteration or enlargement
or any change whatsoever.
