EXHIBIT 4.2.17
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NOTE AND WARRANT PURCHASE AGREEMENT
This Note and Warrant Purchase Agreement, dated as of January 26, 2003 (the
"Agreement"), is entered into by and among Salon Media Group, Inc., a Delaware
corporation (the "Company"), and each of the undersigned purchasers
(collectively the "Purchasers" and individually a "Purchaser") listed on the
Schedule of Purchasers attached hereto as Exhibit A.
RECITAL
On the terms and subject to the conditions set forth herein, the Purchasers
are willing to purchase from the Company and the Company is willing to sell to
the Purchasers, Convertible Promissory Notes (individually a "Note", and
collectively, the "Notes") and warrants to purchase common stock (individually,
a "Warrant", and collectively, the "Warrants") to be issued by the Company in
the principal amounts and for the number of shares, respectively, set forth
opposite each Purchaser's name on the Schedule of Purchasers.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and the representations,
warranties, and conditions set forth below, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Notes and Warrants.
(a) Issuance of Notes and Warrants. In reliance upon the representations,
warranties and covenants of the parties set forth herein, the Company agrees to
issue, sell and deliver to the Purchasers, and the Purchasers agree to purchase
from the Company, the Notes and Warrants. The purchase price for the Notes and
Warrants shall be payable in immediately available funds.
(b) Terms of the Notes and Warrants. The terms and conditions of the Notes
and Warrants are set forth in the forms of Note and Warrant attached hereto as
Exhibit C and Exhibit D, respectively. Capitalized terms not otherwise defined
herein shall have the meaning set forth in Exhibit C or Exhibit D.
(c) Delivery. The Company will deliver to each Purchaser a Note and Warrant
to be purchased by such Purchaser against receipt by the Company of the purchase
price for such Note.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchaser that:
(a) Organization and Standing. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority to carry on its businesses
as now conducted and as proposed to be conducted.
(b) Corporate Power. The Company has all requisite corporate power
necessary for the authorization, execution and delivery of this Agreement, and
the Warrants, to sell and issue the Notes hereunder, to carry out and perform
all of its obligations under the terms of this Agreement, and to carry on its
business as presently conducted and as presently proposed to be conducted, and
such other agreements and instruments. Each of the Agreement, the Notes and the
Warrants is a valid and binding obligation of the Company, enforceable in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, moratorium, and other laws of general application affecting the
enforcement of creditors' rights.
(c) Capitalization. As of November 26, 2002, the authorized capital stock
of the Company is Fifty million (50,000,000) shares of Common Stock and Five
million (5,000,000) shares of Preferred Stock, and there are issued and
outstanding (i) 14,155,276 shares of the Common Stock, (ii) 819 shares of Series
A Preferred Stock, (iii) 125 shares of Series B Preferred Stock (iv) warrants to
purchase an aggregate of 8,843,053 shares of Common Stock, (v) options to
purchase an aggregate of 6,479,417 shares of Common Stock granted to employees
pursuant to the Company's 1995 Stock Option Plan, and (vi) an aggregate of
16,125,960 shares of Common Stock reserved for issuance upon conversion of the
Series A Preferred Stock and Series B Preferred Stock. The 16,125,960 shares of
Common Stock reserved for issuance upon conversion of the Series A Preferred
Stock and Series B Preferred Stock may increase according to anti-dilution
provisions to approximately 24,000,000 common shares on an "as converted" basis
should a Series C Preferred Round of $5 million close with a conversion ratio
equaling $0.10 per common share. Bridge financing in the gross amount of
$914,039 has been received for conversion to Series C Preferred Stock and may
represent approximately 9 million shares of common stock, on an "as converted"
basis. All such issued and outstanding shares have been duly authorized and
validly issued, are fully paid and nonassessable, and were issued in compliance
with all applicable state and federal laws concerning the issuance of
securities. From the period between November 26, 2002 and the date hereof, the
Company has not issued any shares of capital stock, nor granted any warrants or
options to purchase shares of Common Stock.
(d) Authorization.
(i) Corporate Action. All corporate action on the part of the Company,
its officers, directors and stockholders necessary for the sale and issuance of
the Notes and the authorization, execution and performance of the Company's
obligations hereunder and under the Warrants has been taken.
(ii) Valid issuance. The Notes, the Warrants, and any shares of common
or preferred stock issued upon conversion or exercise of the Notes or Warrants
(the "Conversion Securities"), when issued in compliance with the provisions of
this Agreement will be validly issued, fully paid and nonassessable and will be
free of restrictions on transfer other than restrictions under the Warrants and
under applicable federal and state securities laws.
(e) No Preemptive Rights. No person has any right of first refusal or any
preemptive rights in connection with the issuance of the Notes, the Warrants or
Conversion Securities or any future issuances of securities by the Company.
(f) Compliance with Other Instruments. The execution, delivery and
performance of and compliance with this Agreement, the Notes or the Warrants by
the Company, and the issuance and sale of the Conversion Securities, will not
result in any violation of the Certificate of Incorporation or Bylaws of the
Company or in any violation of or default in any material respect under the
terms of any mortgage, indenture, contract, agreement, instrument, judgment or
decree.
(g) Offering. In reliance on the representations and warranties of the
Purchaser in Section 3 hereof, the offer, sale and issuance of the Notes and the
Warrants in conformity with the terms of this Agreement, the Notes and the
Warrants will not result in a violation of the Securities Act of 1933, as
amended (the "Securities Act"), or any state securities laws, including the
qualification or registration requirements of applicable blue sky laws.
(h) Company Reports; Disclosure.
(i) Company Reports. For the purposes of this Agreement, the term
"Company Reports" shall mean, collectively, each registration statement, report,
proxy statement or information statement filed with the Securities and Exchange
Commission (the "SEC") since January 1, 1999, in the form (including exhibits,
annexes and any amendments thereto) filed with the SEC. As of their respective
dates, the Company Reports complied in all material respects with the
requirements of the Securities Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances in
which they were made, not misleading. Nothing has occurred since November 13,
2002 (the date of filing of the Company's Form 10-Q reporting the period ending
September 30, 2002) which would require the filing of any additional report or
of any amendment to any of the Company Reports with the SEC, or which would
cause any of the Company Reports to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements made therein, in light of the circumstances in which they
were made, not misleading.
(ii) Disclosure. No representation or warranty by the Company in this
Agreement, or in any document or certificate furnished or to be furnished to the
Purchaser pursuant hereto or in connection with the transactions contemplated
hereby, when taken together, contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary to make
the statements made herein and therein, in the light of the circumstances under
which they were made herein and therein, in the light of the circumstances under
which they were made, not misleading. The Company has either filed with the SEC
or fully provided the Purchaser with all the information necessary for the
Purchaser to decide whether to purchase the Note.
3. Representations and Warranties by the Purchaser. The Purchaser
represents and warrants to the Company as of the time of issuance of the Notes
and Warrants as follows:
(a) Investment Intent: Authority. This Agreement is made with the Purchaser
in reliance upon such Purchaser's representation to the Company, evidenced by
Purchaser's execution of this Agreement, that Purchaser is acquiring the Note
and Warrant, including the Conversion Securities, for investment for such
Purchaser's own account, not as nominee or agent, for investment and not with a
view to, or for resale in connection with, any distribution or public offering
thereof within the meaning of the Securities Act. Purchaser has the full right,
power, authority and capacity to enter into and perform this Agreement and this
Agreement will constitute a valid and binding obligation upon Purchaser, except
as the same may be limited by bankruptcy, insolvency, moratorium, and other laws
of general application affecting the enforcement of creditors' rights.
(b) Securities Not Registered. The Purchaser understands and acknowledges
that the offering of the Notes, the Warrants and the Conversion Securities
pursuant to this Agreement will not be registered under the Securities Act or
qualified under applicable blue sky laws on the grounds that the offering and
sale of securities contemplated by this Agreement are exempt from registration
under the Securities Act and exempt from qualifications available under
applicable blue sky laws, and that the Company's reliance upon such exemptions
is predicated upon the Purchaser's representations set forth in this Agreement.
The Purchaser acknowledges and understands that the Note, the Warrant and the
Conversion Securities must be held for at least 12 months after Closing and
thereafter indefinitely unless they are registered under the Securities Act and
qualified under applicable blue sky laws or an exemption from such registration
and such qualification is available.
(c) No Transfer. Purchaser covenants that in no event will it transfer the
Note, the Warrant or the Conversion Securities other than (i) in conjunction
with an effective registration statement for the Securities under the Securities
Act or pursuant to an exemption therefrom, or in compliance with Rule 144
promulgated under the Securities Act, or (ii) to a partner, former partner,
limited partner, member, former member, stockholder or other entity affiliated
with Purchaser or, in the case of a Purchaser who is an individual, to a spouse,
lineal descendant or ancestor, or any trust for any of the foregoing, by
transfer by gift, will or intestate succession; provided that in each of the
foregoing cases the transferee agrees in writing to be subject to the terms of
this Agreement to the same extent as if the transferee were the original
Purchaser hereunder.
(d) Knowledge and Experience. Purchaser (i) has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of Purchaser's prospective investment in the Note, the Warrant
and the Conversion Securities; (ii) has the ability to bear the economic risks
of Purchaser's prospective investment; (iii) has had access to such information
as Purchaser has considered necessary to make a determination to purchase the
Note, the Warrant and the Conversion Securities together with such additional
information as is necessary to verify the accuracy of the information supplied;
and (iv) has not been offered the Note, the Warrant or the Conversion Securities
by any form of advertisement, article, notice or other communication published
in any newspaper, magazine, or similar media or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by any such
media.
(e) Accredited Investor. Purchaser is an "accredited investor" as that term
is defined in Rule 501(a) under the Securities Act.
(f) Legends. Each certificate representing the Notes, the Warrants and the
Conversion Securities may be endorsed with the following legends:
(i) Federal Legend. THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") AND ARE "RESTRICTED SECURITIES" AS DEFINED IN RULE 144 PROMULGATED UNDER
THE ACT. THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE
DISTRIBUTED EXCEPT (i) IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SHARES UNDER THE ACT OR (ii) IN COMPLIANCE WITH RULE 144, OR (iii)
PURSUANT TO AN OPINION OF COUNSEL, THAT SUCH REGISTRATION OR COMPLIANCE IS NOT
REQUIRED AS TO SAID SALE, OFFER OR DISTRIBUTION.
(ii) Other Legends. Any other legends required by applicable state
blue sky laws. The Company need not register a transfer of any legended Note,
Warrant or Conversion Securities, and may also instruct its transfer agent not
to register the transfer of the Notes, Warrants or Conversion Securities, unless
the conditions specified in each of the foregoing legends are satisfied.
(g) Removal of Legend and Transfer Restrictions. Any legend endorsed on a
certificate pursuant to subsection 3(f) and the stop transfer instructions with
respect to such legend shall be removed, and the Company shall issue a
certificate without such legend to the holder of such Note, Warrant or
Conversion Securities if such Note, Warrant or Conversion Securities are
registered under the Securities Act and a prospectus meeting the requirements of
Section 10 of the Securities Act is available or if such holder satisfies the
requirements of Rule 144(k).
4. Security Interest. The Company hereby grants to the Purchasers a
security interest in all of the Company's right, title and interest in presently
existing and hereafter acquired assets (the "Collateral"), as more fully
described in Exhibit B attached hereto, of the Company to secure the payment of
indebtedness under the Notes. The Company agrees to prepare and file any UCC
financing statements and other documentation as may be necessary, and to take
such reasonable actions as may be requested by Purchasers, to perfect
Purchasers' security interest. Pre-existing apparently perfected security
interests, as further described in Exhibit E attached hereto, may be in
existence and may be senior in interest to the security interest granted to
Purchasers hereby. The security interest evidenced by the Notes is junior to the
lien s arising under or related to the Note and Warrant Purchase Agreement,
dated as of July 24, 2002 among Salon Media Group, Inc. and the Purchasers
identified therein.
5. Subordination. The indebtedness evidenced by the Notes ("Subordinated
Indebtedness") is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of all
of the Company's Senior Indebtedness (as defined below).
(a) Definition of Senior Indebtedness. "Senior Indebtedness" shall mean the
principal of (and premium, if any), unpaid interest on and amounts reimbursed,
fees, expenses, costs of enforcement and other amounts due in connection with
any indebtedness of the Company to a commercial bank lender Silicon Valley Bank
("Bank"), which may be incurred from time to time pursuant to an agreement
between the Company and Bank, which credit facility shall not exceed $1,000,000
("Senior Indebtedness").
(b) Payment and Remedies Blockage. Other than payouts made by the Company
so as to avoid issuing fractional shares upon conversion of the Notes, Purchaser
will not demand or receive from Company (and Company will not pay to Purchaser)
all or any part of the Subordinated Indebtedness by way of payment, prepayment,
setoff, lawsuit or otherwise, nor will Purchaser exercise any remedy with
respect to the Collateral, nor will Purchaser commence, or cause to commence,
prosecute or participate in any administrative, legal or equitable action
against the Company for so long as any portion of the Senior Indebtedness
remains outstanding. Notwithstanding the foregoing, (i) Purchaser may accept,
and the Company may pay, regularly scheduled interest payments in accordance
with the terms of the Notes provided an Event of Default does not exist under
any document executed in connection with the Senior Indebtedness or would exist
after giving effect to such payment, (ii) in the event that the stockholders of
the Company have not approved the Notes and Warrants, the Company shall repay
any and all Senior Indebtedness then outstanding so as to allow the Company to
pay the Purchasers any and all amounts of principal and accrued interest owing
under the Notes, and (iii) nothing in this Section 5 shall prevent or otherwise
restrict Purchaser from converting the Note into equity securities in accordance
with its terms.
(c) Lien Subordination. The security interest granted in this Agreement is
subordinate to the security interest that Bank or its successor or assignee may
hold from time to time in the Collateral. Notwithstanding the respective dates
of attachment or perfection of the security interest of Purchaser and the
security interest of Bank, the security interest of Bank shall at all time be
prior to the security interest of Purchaser.
(d) Bankruptcy, Insolvency. If there shall occur any receivership,
insolvency, assignment for the benefit of creditors, bankruptcy, reorganization,
or arrangements with creditors (whether or not pursuant to bankruptcy or other
insolvency laws), sale of all or substantially all of the assets, dissolution,
liquidation, or any other marshaling of the assets and liabilities of the
Company, no amount shall be paid by the Company in respect of the principal of,
interest on or other amounts due with respect to this Note at the time
outstanding, unless and until the principal of and interest on the Senior
Indebtedness then outstanding shall be paid in full.
(e) Subrogation. Subject to the payment in full of all Senior Indebtedness,
the holder of the Notes shall be subrogated to the rights of the holder(s) of
such Senior Indebtedness (to the extent of the payments or distributions made to
the holder(s) of such Senior Indebtedness pursuant to the provisions of this
Section 5) to receive payments and distributions of assets of the Company
applicable to the Senior Indebtedness. No such payments or distributions
applicable to the Senior Indebtedness shall, as between the Company and its
creditors, other than the holders of Senior Indebtedness and the Purchaser, be
deemed to be a payment by the Company to or on account of the Notes; and for
purposes of such subrogation, no payments or
distributions to the holders of Senior Indebtedness to which the Purchaser would
be entitled except for the provisions of this Section 5 shall, as between the
Company and its creditors, other than the holders of Senior Indebtedness and the
Purchasers, be deemed to be a payment by the Company to or on account of the
Senior Indebtedness.
(f) No Impairment. Nothing contained in this Section 5 shall impair, as
between the Company and Purchasers, the obligation of Company, subject to the
terms and conditions hereof, to pay to the Purchaser the principal hereof and
interest hereon as and when the same become due and payable, or shall prevent
the Purchasers of the Notes, upon default hereunder, from exercising all rights,
powers and remedies otherwise provided herein or by applicable law.
(g) Reliance of Purchasers of Senior Indebtedness. Purchaser, by its
acceptance hereof, shall be deemed to acknowledge and agree that the foregoing
subordination provisions are, and are intended to be, an inducement to and a
consideration of each holder of Senior Indebtedness, whether such Senior
Indebtedness was created or acquired before or after the creation of the
indebtedness evidenced by this Note, and each such holder of Senior Indebtedness
shall be deemed conclusively to have relied on such subordination provisions in
acquiring and holding, or in continuing to hold, such Senior Indebtedness. No
amendment of this Agreement, the Notes or any other agreements relating to the
Subordinated Indebtedness shall modify the provision of this Section 5 in a way
that could reasonably be expected to impair the subordination of the security
interest or lien that Purchaser may have in the Collateral or the subordination
of any payment rights under the Subordinated Indebtedness. At any time and from
time to time, without notice to Purchaser, Bank may take such actions with
respect to the Senior Indebtedness as Bank, in its sole discretion, may deem
appropriate, including without limitation terminating advances to the Company,
increasing the principal amount up to $1,000,000, extending the time of payment,
increasing applicable interest rates, compromising or otherwise amending the
terms of any documents affecting the Senior Indebtedness, and enforcing or
failing to enforce any rights against the Company or any other person.
6. Miscellaneous.
(a) Waivers and Amendments. Any provision of this Agreement other than the
principal amount of the Notes and the number of shares subject to the Warrants
may be amended, waived or modified upon the written consent of the Company and
the Purchasers providing a majority of the aggregate principal amounts provided
pursuant to this Agreement.
(b) Governing Law. This Agreement shall be governed in all respects by the
laws of the State of Delaware.
(c) Entire Agreement. This Agreement together with the Notes and Warrants
constitutes the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof.
(d) Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be duly given upon receipt if
personally delivered or mailed by registered or certified mail, postage prepaid,
or by recognized overnight
courier or personal delivery, addressed (i) if to a Purchaser, at the address or
facsimile number of such Purchaser set forth below such party's name on Exhibit
A, or at such other address or number as such Purchaser shall have furnished to
the Company in writing, or (ii) if to Company, at 00 Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxxxxxxx, XX 00000, Attention: Chief Financial Officer or at such other
address as Company shall furnish to the Purchaser in writing.
(e) Validity. If any provision of this Agreement, the Notes or the Warrants
shall be judicially determined to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall be deemed to constitute one instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
date and year first written above.
COMPANY:
SALON MEDIA GROUP, INC.
a Delaware corporation
By:
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Name:
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Title:
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PURCHASER:
By:
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