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EXHIBIT 10.34
EXHIBIT 2.2(G)
THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND HAS NOT BEEN REGISTERED WITH
THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") OR THE
SECURITIES COMMISSION OF ANY STATE PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER REGULATION D PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"1933 ACT"). THIS WARRANT MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR ASSIGNED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND UNDER APPLICABLE STATE SECURITIES LAWS, OR IN A TRANSACTION WHICH IS EXEMPT
FROM REGISTRATION UNDER THE PROVISIONS OF THE SECURITIES ACT AND UNDER
PROVISIONS OF APPLICABLE STATE SECURITIES LAWS; AND IN THE CASE OF AN EXEMPTION,
ONLY IF THE MAKER HAS RECEIVED AN OPINION OF COUNSEL THAT SUCH TRANSACTION DOES
NOT REQUIRE REGISTRATION OF THE WARRANT, WHICH OPINION AND WHICH COUNSEL SHALL
BE SATISFACTORY TO THE MAKER IN ITS SOLE DISCRETION.
HOMECOM COMMUNICATIONS, INC.
Warrant for the Purchase of Shares of Common Stock
25,000 SHARES
FOR VALUE RECEIVED, HOMECOM COMMUNICATIONS, INC., a Delaware
corporation (the "Company"), hereby certifies that XXXXXXXX XXXXXX XXXXXX
Company or its permitted assigns, is entitled to purchase from the Company,
subject to the vesting schedule described herein, and in all events, prior to
5:00 P.M., Atlanta, Georgia time, on January 23, 2001, TWENTY FIVE THOUSAND
(25,000) fully paid and non-assessable shares of the common stock, $.0001 par
value per share, of the Company for an aggregate purchase price of $92,500.00
(computed on the basis of $3.70 per share). Hereinafter, (i) said common stock,
together with any other equity securities which may be issued by the Company
with respect thereto or in substitution therefor, is referred to as the "Common
Stock," (ii) the shares of the Common Stock purchasable hereunder or under any
other Warrant (as hereinafter defined) are referred to individually as a
"Warrant Share," and collectively as the "Warrant Shares," (iii) the aggregate
purchase price payable for the Warrant Shares hereunder is referred to as the
"Aggregate Warrant Price," (iv) the price payable for each of the Warrant Shares
hereunder is referred to as the "Per Share Warrant Price," (v) this Warrant, all
similar Warrants issued on the date hereof and all Warrants hereafter issued in
exchange or substitution for this Warrant or such similar Warrants are referred
to as the "Warrants," and (vi) the holder of this Warrant is referred to as the
"Holder" and the holder of this Warrant and all other Warrants or Warrant Shares
issued upon the exercise of any Warrant are referred to as the "Holders." The
Aggregate Warrant Price is not subject to adjustment. The Per Share Warrant
Price is subject to adjustment as hereinafter provided, and in the event of any
such adjustment, the number of Warrant Shares shall be adjusted to equal the
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number determined by dividing the Aggregate Warrant Price by the Per Share
Warrant Price in effect immediately after such adjustment.
1. Exercise of Warrant.
(a) The right to purchase shares of Common Stock pursuant to
this Warrant is subject to vesting as described below, and the Holder may not
exercise its right to purchase such shares, except only as to such rights which
are fully vested in accordance with the following vesting schedule. The right to
purchase the first eight thousand three hundred thirty-three and 33/100
(8,333.33) shares of Common Stock purchasable hereunder shall become vested as
of January 23, 1999, the right to purchase the second eight thousand three
hundred thirty-three and 33/100 (8,333.33) shares of Common Stock purchasable
hereunder shall become vested as of January 23, 2000, and the right to purchase
the third eight thousand three hundred thirty-three and 33/100 (8,333.33) shares
of Common Stock purchasable hereunder shall become vested as of January 23,
2001. After the right to purchase any share of Common Stock purchasable under
this Warrant has become fully vested, the Holder may thereafter exercise this
Warrant, in whole at any time or in part from time to time, with respect to such
vested shares prior to 5:00 P.M., Atlanta, Georgia time, on March 31, 2001 (such
period, with respect to such the vested rights to purchase shares, being the
"Exercise Period"), by the Holder by the surrender of this Warrant, together
with the Warrant Exercise Agreement in the form attached hereto as Exhibit A
duly completed and executed by the Holder or its duly authorized agent, and upon
payment of the Aggregate Warrant Price, or the proportionate part thereof if
this Warrant is exercised in part. Payment for Warrant Shares shall be made by
certified or official bank check payable to the order of the Company.
Notwithstanding anything contained herein to the contrary, this Warrant shall
terminate on March 31, 2001 (the "Expiration Date"). If this Warrant is
exercised in part, this Warrant must be exercised for a number of whole shares
of the Common Stock, and the Holder is entitled to receive a new Warrant
covering the Warrant Shares in respect of which this Warrant has not been
exercised and setting forth the proportionate part of the Aggregate Warrant
Price applicable to such Warrant Shares. Upon such exercise and surrender of
this Warrant, the Company will (i) issue a certificate or certificates in the
name of the Holder for the largest number of whole shares of the Common Stock to
which the Holder shall be entitled and, if this Warrant is exercised in whole,
in lieu of any fractional share of the Common Stock to which the Holder shall be
entitled, pay to the Holder cash in an amount equal to the fair value of such
fractional share (determined in such reasonable manner as the Board of Directors
of the Company shall determine), and (ii) deliver the other securities and
properties receivable upon the exercise of this Warrant, or the proportionate
part thereof if this Warrant is exercised in part, pursuant to the provisions of
this Warrant.
(b) The market price of a share of the Common Stock (the
"Market Price") on any date of determination shall be (i) the last reported sale
price per share of the Common Stock on the business day immediately preceding
the date of determination as reported on the National Association of Securities
Dealers Automated Quotations System ("Nasdaq") National Market (the "National
Market"), or (ii) if there is no such reported sale on the date in question, the
average of the closing bid and asked quotations as so reported on the National
Market, or (iii) if the Common Stock is not then listed on the National Market,
the last reported sale price per share of the Common Stock on such national
securities exchange upon which the Common Stock is
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then listed, or (iv) if the Common Stock is not then listed on any national
securities exchange, the average of the closing bid and asked quotations in the
over-the-counter market as reported by Nasdaq, or if not so reported, as
reported by the National Quotations Bureau or a similar organization. In the
absence of such quotations, the Board of Directors of the Company shall
determine in good faith the fair market value per share of the Common Stock,
which shall for these purposes be deemed to be the market price, which
determination shall be set forth in a certificate executed by an officer of the
Company showing the facts upon which the market price is based.
2. Reservation of Warrant Shares; Listing. The Company agrees that,
prior to the expiration of this Warrant, the Company will at all times (a) have
authorized and in reserve, and will keep available, solely for issuance or
delivery upon the exercise of this Warrant, the shares of the Common Stock and
other securities and properties as from time to time shall be receivable upon
the exercise of this Warrant, free and clear of all restrictions on sale or
transfer and free and clear of all preemptive rights and rights of first refusal
and (b) if the Company hereafter lists the Common Stock on any national
securities exchange, keep the shares of the Common Stock receivable upon the
exercise of this Warrant authorized for listing on such exchange upon notice of
issuance.
3. Protection Against Dilution.
(a) If, at any time or from time to time after the date of
this Warrant, the Company shall issue or distribute to the holders of shares of
the Common Stock (i) securities, other than shares of the Common Stock, or (ii)
property, other than cash, without payment therefor, with respect to the Common
Stock, then, and in each such case, the Holder, upon the exercise of this
Warrant, shall be entitled to receive the securities and property which the
Holder would hold on the date of such exercise if, on the date of this Warrant,
the Holder had been the holder of record of the number of shares of the Common
Stock subscribed for upon such exercise and, during the period from the date of
this Warrant to and including the date of such exercise, had retained such
shares and the securities and properties receivable by the Holder during such
period. Notice of each such distribution shall be forthwith mailed to the
Holder.
(b) If, at any time or from time to time after the date of
this Warrant, the Company shall (i) pay a dividend or make a distribution on its
capital stock in shares of the Common Stock, (ii) subdivide its outstanding
shares of the Common Stock into a greater number of shares, (iii) combine its
outstanding shares of the Common Stock into a smaller number of shares or (iv)
issue by reclassification of the Common Stock any shares of capital stock of the
Company, the Per Share Warrant Price shall be adjusted so that the Holder upon
the exercise hereof shall be entitled to receive the number of shares of the
Common Stock or other capital stock of the Company which the Holder would have
owned immediately following such action had such Warrant been exercised
immediately prior thereto. An adjustment made pursuant to this Section 3(b)
shall become effective immediately after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or reclassification.
(c) In case of any consolidation or merger to which the
Company is a party other than a merger or consolidation in which the Company is
the continuing corporation, or in
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case of any sale or conveyance to another entity of the property of the Company
as an entirety or substantially as an entirety, or in the case of any statutory
exchange of securities with another entity (including any exchange effected in
connection with a merger of another corporation with the Company), the Holder of
this Warrant shall have the right thereafter to receive on the exercise of this
Warrant the kind and amount of securities, cash or other property which the
Holder would have owned or have been entitled to receive immediately after such
consolidation, merger, statutory exchange, sale or conveyance (collectively
herein referred to as a "Transaction") had this Warrant been exercised
immediately prior to the effective date of such Transaction and, in any such
case, if necessary, appropriate adjustment shall be made in the application of
the provisions set forth in this Section 3 with respect to the rights and
interests thereafter of the Holder of this Warrant to the end that the
provisions set forth in this Section 3 shall thereafter correspondingly be made
applicable, as nearly as may reasonably be, in relation to any shares of stock
or other securities or property thereafter deliverable on the exercise of this
Warrant. The above provisions of this Section 3(c) shall similarly apply to
successive Transactions. The issuer of any shares of stock or other securities
or property thereafter deliverable on the exercise of this Warrant shall be
responsible for all of the agreements and obligations of the Company hereunder.
Notice of any Transaction and of said provisions so proposed to be made, shall
be mailed to the Holders of the Warrants not less than 30 days prior to such
event. A sale of all or substantially all of the assets of the Company for a
consideration consisting primarily of securities shall be deemed a consolidation
or merger for the foregoing purposes. Alternatively, in the event of a
Transaction, the Company may unilaterally cancel and terminate this Warrant in
exchange for (a) the cash or whole shares which the holder hereof would be
entitled to receive in the Transaction in exchange for the number of shares of
the Company issuable upon exercise hereof minus (b) the cash, or whole shares of
the survivor in the Transaction, equal in value to the exercise price.
(d) If the Board of Directors of the Company shall (i) declare
any dividend or other distribution with respect to the Common Stock, other than
a cash dividend payable otherwise than out of earnings or earned surplus, (ii)
offer to the holders of shares of the Common Stock any additional shares of the
Common Stock, any securities convertible into or exercisable for shares of the
Common Stock or any rights to subscribe thereto or (iii) propose a dissolution,
liquidation or winding up of the Company, the Company shall mail notice thereof
to the Holders of the Warrants not less than 15 days prior to the record date
fixed for determining stockholders entitled to participate in such dividend,
distribution, offer or subscription right or to vote on such dissolution,
liquidation or winding up.
(e) If, as a result of an adjustment made pursuant to this
Section 3, the Holder of any Warrant thereafter surrendered for exercise shall
become entitled to receive shares of two or more classes of capital stock or
shares of the Common Stock and other capital stock of the Company, the Board of
Directors of the Company (whose determination shall be conclusive and shall be
described in a written notice to the Holder of any Warrant promptly after such
adjustment) shall determine the allocation of the adjusted Per Share Warrant
Price between or among shares or such classes of capital stock or shares of the
Common Stock and other capital stock and any subsequent adjustments made
pursuant to this Section 3 shall apply equally to each such resulting class of
capital stock.
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4. Fully Paid Stock; Taxes. The Company agrees that the shares of the
Common Stock represented by each and every certificate for Warrant Shares
delivered on the exercise of this Warrant shall, at the time of such delivery,
be validly issued and outstanding, fully paid and nonassessable, and not subject
to preemptive rights, rights of first refusal or other contractual rights to
purchase securities of the Company, and the Company will take all such actions
as may be necessary to assure that the par value or stated value, if any, per
share of the Common Stock is at all times equal to or less than the then Per
Share Warrant Price. The Company further covenants and agrees that it will pay,
when due and payable, any and all federal and state stamp, original issue or
similar taxes which may be payable in respect of the issue of any Warrant Share
or certificate therefor.
5. Non-Transferability. This Warrant may not be sold, transferred,
assigned, pledged or hypothecated by the Holder. The Company may treat the
registered Holder of this Warrant as he or it appears on the Company's books at
any time as the Holder for all purposes. The Company shall permit any Holder of
a Warrant or his or its duly authorized attorney, upon written request during
ordinary business hours, to inspect and copy or make extracts from its books
showing the registered holders of Warrants. All Warrants issued upon the
transfer or assignment of this Warrant will be dated the same date as this
Warrant, and all rights of the Holder thereof shall be identical to those of the
Holder of this Warrant.
6. No Rights as Stockholders. Nothing contained in this Warrant shall
be construed as conferring upon the Holder the right to vote, receive dividends
or to be deemed for any purpose the holder of Warrant Shares or of any other
securities of the Company that may at any time be issuable on the exercise of
this Warrant, nor shall anything contained herein be construed to confer upon
the Holder, as such, any of the rights of a stockholder of the Company or any
right to vote on matters submitted to stockholders at any meeting thereof, or to
give or withhold consent to any corporate action (whether upon any
recapitalization, issue of stock, reclassification of stock, change of par
value, consolidation, merger, conveyance, or, without limitation, otherwise), or
to receive notice of meetings, or to receive subscription rights or otherwise,
until this Warrant shall have been exercised as provided herein.
7. Issuance of New Warrants. Notwithstanding any of the provisions of
this Warrant to the contrary, the Company may, at its option, issue a new
Warrant in such form as may be approved by its Board of Directors which reflect
any adjustment or change in the number or kind or class of shares of stock or
other securities or property purchasable under this Warrant made in accordance
with the provisions hereof. The Company may, at its option, require the Holder
of this Warrant to surrender its then current Warrant for any such new Warrant.
8. Loss, etc., of Warrant. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and of
indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed,
and upon surrender and cancellation of this Warrant, if mutilated, the Company
shall execute and deliver to the Holder a new Warrant of like date, tenor and
denomination.
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9. Communication. No notice or other communication under this Warrant
shall be effective unless, but any notice or other communication shall be
effective and shall be deemed to have been given if, the same is in writing and
is mailed by first-class mail, postage prepaid, addressed to:
(a) the Company at Fourteen Piedmont Center,
Suite 100, 0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, or such
other address as the Company has designated in writing to the
Holder, or
(b) the Holder at 0000 Xxxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx 00000-0000 or such other address as the
Holder has designated in writing to the Company.
10. Headings. The headings of this Warrant have been inserted as a
matter of convenience and shall not affect the construction hereof.
11. Applicable Law. This Warrant shall be governed by and construed in
accordance with the law of the State of Georgia, without giving effect to the
principles of conflicts of law thereof.
12. Supplements and Amendments. This Warrant may be amended or
supplemented at any time in writing signed by the Company and the Holder.
13. Successors. This Warrant shall be binding upon and inure to the
benefit of the respective successors and permitted assigns hereunder of the
Company or the Holder.
14. Termination. This Warrant shall terminate at the close of business
on the Expiration Date. Notwithstanding the foregoing, this Warrant will
terminate on any earlier date when this Warrant has been exercised in full or
has been redeemed or acquired by the Company.
15. Jurisdiction and Venue. Any judicial proceedings brought by or
against any party on any dispute arising out of this Warrant or any matter
related thereto shall be brought in the state or federal courts of Xxxxxx
County, Georgia and, by execution and delivery of this Warrant, each of the
parties accepts for itself the exclusive jurisdiction and venue of the aforesaid
courts as trial courts, and irrevocably agrees to be bound by any judgment
rendered thereby in connection with this Warrant after exhaustion of all appeals
taken (or by the appropriate appellate court if such appellate court renders
judgment).
16. Benefits of this Agreement. Nothing in this Warrant shall be
construed to give to any person or corporation other than the Company and the
Holder of this Warrant any legal or equitable right, remedy or claim under this
Warrant, and this Warrant shall be for the sole and exclusive benefit of the
Company and the Holder hereof.
17. Severability. If any provision of this Warrant is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable; this Warrant shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof; and the remaining provisions of this Warrant
shall remain in full force and effect and shall not be affected by the illegal,
invalid or
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unenforceable provision or its severance from this Warrant. Furthermore, in lieu
of such illegal, invalid or unenforceable provision there shall be added
automatically as a part of this Warrant a provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible and be legal,
valid and enforceable.
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IN WITNESS WHEREOF, HomeCom Communications, Inc. has caused
this Warrant to be signed by its a duly authorized officer and its corporate
seal to be hereunto affixed and attested by its Secretary this 23rd day of
January, 1998.
HOMECOM COMMUNICATIONS, INC.
By:
---------------------------------
Xxxxxx Xxx, President
ATTEST:
-----------------------------
Name:
Title:
[Corporate Seal]
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EXHIBIT A
Warrant Exercise Agreement
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EXHIBIT A
HOMECOM COMMUNICATIONS, INC.
WARRANT EXERCISE AGREEMENT
INCLUDING INVESTOR SUITABILITY REPRESENTATIONS
THE SECURITIES OF HOMECOM COMMUNICATIONS, INC. WHICH WILL BE ISSUED UPON THE
EXERCISE OF THE WARRANTS (THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE "BLUE SKY" OR SECURITIES LAWS. THE
SECURITIES CANNOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE RESTRICTIONS ON
TRANSFERABILITY CONTAINED IN THE APPLICABLE FEDERAL AND STATE SECURITIES LAWS
AND WILL NOT BE TRANSFERRED OF RECORD EXCEPT IN COMPLIANCE WITH SUCH LAWS.
This WARRANT EXERCISE AGREEMENT (the "Agreement") dated as of _____ , ___ is
made and entered into between HOMECOM COMMUNICATIONS, INC., a Delaware
corporation ("HomeCom" or the "Company"); and the person executing this
Agreement as the investor (the "Investor"). By executing this Agreement,
Investor acknowledges that Investor understands that the Company is relying
upon the accuracy of the representations and warranties of Investor contained
herein in complying with its obligations under applicable securities laws.
WITNESSETH:
WHEREAS, the Investor desires to exercise a Warrant to acquire shares of the
Company's Common Stock;
NOW, THEREFORE, for and in consideration of ten dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Investor agree as follows:
1. EXERCISE OF THE WARRANTS. Subject to the terms and conditions set forth
herein, Investor hereby exercises the Warrant to acquire the number of shares of
Common Stock of HomeCom set forth below the Investor's signature hereto (the
"Securities"). The Warrant shall be deemed exercised only when and if this
Agreement is countersigned by HomeCom. HomeCom shall countersign this Agreement
only if HomeCom determines that this Agreement is fully completed and executed
by the Investor and that the Investor has represented that the Investor is an
"accredited investor" as defined under Regulation D of the Securities Act of
1933, as amended (the "1933 Act").
2. INVESTOR'S REPRESENTATIONS AND WARRANTIES. Investor represents, warrants
and covenants to HomeCom as of the date hereof that:
a. Investor is a resident of the state shown in Investor's address below and
will be the sole party in interest as to the Securities subscribed for and is
acquiring the Securities for Investor's own account, for investment only and not
with a view toward the resale or distribution thereof.
b. Investor must bear the economic risk of this investment for an indefinite
period of time because the Securities are not registered under the 1933 Act or
the securities laws of any state or other jurisdiction. Investor has been
advised that the Securities are not being registered under the 1933 Act upon the
basis that tile transactions
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involving their sale are exempt from such registration requirements as
transactions by an issuer not involving any public offering in reliance on
Sections 4(2) and 3(b) of the 1933 Act, and that reliance by HomeComm on such
exemption is predicated in part on Investor's representations set forth in this
Agreement. Investor acknowledges that HomeCom makes no representations of any
kind concerning its intent or ability to offer or sell the Securities to the
public, under Rule 144 or otherwise, except as set forth in the Warrant.
Investor further understands that HomeCom makes no covenant, representation or
warranty with respect to the registration of the Securities the Securities
Exchange Act of 1934, as amended, or its dissemination to the public of any
current financial or other information concerning HomeCom, except as set forth
in the Warrant.
c. Investor is able to bear the economic risk of losing Investor's entire
investment in HomeCom, which is not disproportionate to Investor's net worth,
and that Investor has adequate means of providing for Investor's current needs
and personal contingencies without regard to the investment in HomeCom. Investor
further represents and warrants that Investor is an "accredited investor" as
defined in Rule 501(a) Regulation D promulgated pursuant to the 0000 Xxx.
d. In connection with Investor's purchase of any of the Securities no oral or
written representations or warranties have been made to Investor other than
those contained herein.
e. To the extent Investor has deemed necessary, Investor has consulted with
Investors attorney, financial advisors and others regarding all financial,
securities and tax aspects of the proposed investment, and that said advisors
have reviewed this Agreement and all documents relating hereto on Investor's
behalf Investor and Investor's advisors have sufficient knowledge and experience
in business and financial matters to evaluate HomeCom, to evaluate the risks and
merits of an investment in HomeCom, to make an informed investment decision with
respect thereto, and to protect Investor's interest in connection with
Investor's purchase of the Securities without need for the additional
information which would be required to be included in more complete registration
statements effective under the 1933 Act. Investor acknowledges that an
investment in HomeCom involves a high degree of risk, and Investor represents
that Investor and Investor's advisors have engaged in a complete and thorough
independent analysis of HomeCom (including the financial condition of HomeCom
and have independently determined the advisability and suitability of Investor's
investment in HomeCom while taking into account Investor's level of
sophistication, financial resources (including the percentage of Investor's
total assets that this investment will represent), tolerance for risk, and
investment objectives.
f. Investor and Investor's advisors have had an opportunity to ask questions
of and to receive answers from the officers of HomeCom and to obtain additional
information in writing to the extent that HomeCom possesses such information or
could acquire it without unreasonable effort or expense: (i) relative to HomeCom
and the offering of the Securities; and (ii) necessary to verify the accuracy of
any information, documents, books and records furnished. All such materials and
information requested by Investor and Investor's advisors (including information
requested to verify information previously furnished) have been made available
and examined by Investor or Investor's advisors. Investor further acknowledges
that Investor and Investor's advisors have met with (or have been provided an
opportunity to meet with) HomeCom's Chief Financial Officer and have had an
opportunity to ask any and all questions of, and receive answers to their
satisfaction from, such Chief Financial Officer. Investor acknowledges that all
discussions with officers of HomeCom as well as any written information issued
by HomeCom, were intended to describe the aspects of HomeCom's business and
prospects which it believes to be material but were not necessarily a thorough
or exhaustive description. Investor acknowledges that HomeCom has not provided
any information to Investor regarding HomeCom's future prospects for success nor
has HomeCom made any representations or warranties to Investor regarding the
merits or advisability of purchasing the Securities.
g. Investor will not attempt to pledge, transfer, convey or otherwise dispose
of the Securities except in a transaction that is the subject of either (i) an
effective registration statement under the 1933 Act and any applicable state
securities laws, or (ii) an opinion of counsel, which opinion of counsel shall
be satisfactory to HomeCom, to the effect that such registration is not
required. HomeCom may rely on such an opinion of Investor's counsel in making
such determination. Investor consents to the placement of legends on any
certificates or documents representing any of the Securities, or any securities
issuable thereunder, stating that they have not been registered under the 1933
Act or any applicable state securities laws and setting forth or referring to
the restrictions
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on transferability and sale thereof. Investor is aware that HomeCom will make a
notation in its appropriate records, and notify its transfer agent, with respect
to the restrictions on the transferability of the Securities.
h. If Investor is an individual, he or she is at least 21 years of age or
older or, if Investor is a partnership, then each of its individual partners is
of at least such age.
i. Investor is the beneficial owner of the Warrants registered in its name,
that such Warrants are free and clear of all liens and encumbrances, and that
there are no liens or encumbrances on Investor's right to receive the Securities
on the exercise of the Warrant.
3. INDEMNIFICATION. Investor recognizes that the sale of the Securities to it
will be based upon its representations and warranties set forth above and on
other written information supplied by Investor to HomeCom. Investor agrees to
indemnify and to hold harmless HomeCom, and its affiliates from and against any
and all loss, damage, liability or expense, including costs and reasonable
attorney's fees, arising out of or based upon any false representation or
warranty made by Investor in this Warrant Exercise Agreement and/or any failure
by Investor to fulfill any covenants or agreements set forth herein or in the
other documents executed and delivered by him in connection with this
transaction.
4. TERMS OF OFFERING. No commission or similar compensation will be paid in
connection with the purchase of the Securities pursuant to the exercise of the
Warrants.
5. RESALE OF SECURITIES. Investor understands that if a public market for the
Securities should be maintained (as to which no assurance can be given), Rule
144 (the "Rule") promulgated under the Securities Act, subject to all of its
terms and conditions, permits the public resale (in limited amounts) of
securities acquired in nonpublic offerings such as the Securities without having
to satisfy the registration requirements of the Securities Act. Investor further
understands that, except as set forth in the Warrant, HomeCom makes no
representation or warranty regarding its fulfillment in the future of any
reporting requirements under the Securities Exchange Act of 1934, as amended, or
its dissemination to the public of any current financial or other information
concerning HomeCom, which in most circumstances is required by the Rule as one
of the conditions of its availability. Accordingly, Investor recognizes that
notwithstanding the ultimate development and maintenance of a public market for
the Securities, he may not be able to take advantage of the resale provisions of
the Rule and may be unable to publicly offer or sell any of such Shares unless
the rights to have the Securities registered for resale, as set out in the
Warrant, become available to him.
6. SURVIVAL OF REGISTRATION RIGHTS AND OTHER INVESTOR PROTECTIONS. Neither the
execution of this Agreement nor the exercise or partial exercise of the Warrant
shall terminate the registration rights of the Investor set forth in the
Warrant, if any, which shall survive such execution and exercise.
7. FURTHER INVESTOR SUITABILITY REPRESENTATIONS. Investor understands that the
Securities offered by HomeCom will not be registered under the 1933 Act.
Investor also understands that in order to ensure that the offering and sale of
the Securities are exempt from registration undo the 1933 Act, HomeCom is
required to have reasonable grounds to believe that Investor qualifies as an
"accredited investor" as defined in Rule 501(a) of Regulation D promulgated by
the Securities and Exchange Commission under the 1933 Act. Investor understands
that the information supplied in this section will be disclosed to no one other
than officers and agents of HomeCom without Investor's consent unless it is
necessary for HomeCom to use such information to support the exemptions from
registration under the 1933 Act and under the law of any state or other
jurisdiction.
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In order to induce HomeCom to permit Investor to purchase a portion of the
Securities, Investor makes the following representations and warranties:
A. BACKGROUND AND ADMINISTRATIVE INFORMATION.
NAME(S) IN WHICH INTERESTS ARE TO BE HELD:
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First Name Initial Last Name
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First Name Initial Last Name
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Entity
SOCIAL SECURITY NUMBER(S): OR TAX IDENTIFICATION NUMBER(S):
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Manner in which title to be held (please check one):
_ Individual Ownership
_ Community Property
_ Tenants in Common
_ Joint Tenants with
Right of Survivorship
_ Partnership*
_ Corporation**
_ As Custodian, Executor Agreement or Trustee for_____________ ***
* If a partnership, a copy of the partnership agreement must be attached to
the Subscription Agreement.
** If a corporation, a certified resolution authorizing this investment must
be attached to the Subscription Agreement.
*** If a custodian, trustee or executor, a copy of the trust, testamentary
document or other agreement authorizing this investment must be attached to
the Subscription Agreement.
CORRESPONDENCE ADDRESS:
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Xxxxxx
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Xxxx Xxxxx Zip Code
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BROKER'S TELEPHONE NUMBER: BUSINESS ( )_________________
CHECKS SHOULD BE MAILED TO:
(Please check one) ____ Correspondence Address
____ Account Officer (Specify
____ name and address below)
____ Other (specify below)
STATE (OR OTHER JURISDICTION) IN WHICH BROKER RECEIVED SUBSCRIPTION AGREEMENT:
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DESCRIBE ANY PRE-EXISTING PERSONAL OR BUSINESS RELATIONSHIP WITH THE COMPANY, ID
OFFICERS OR DIRECTORS:
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B. BROKER SUITABILITY REQUIREMENTS.
The financial information and representations in this section are required to
be provided to the Company for Broker to qualify to purchase Securities. Broker
must INITIAL the paragraph below which describes the suitability requirement
under which Broker intends to qualify. Upon request of the Company, Broker must
provide information to document the representation initialed, as described
within each paragraph.
ONLY ONE PARAGRAPH NEED BE INITIALED.
_____ 1. INDIVIDUAL NET WORTH SUITABILITY
Initials
This suitability requirement may be selected only by an
individual(s), and NOT by a corporation, partnership, trust, estate,
unincorporated association or other entity.
Broker represents and warrants that his or her individual net worth
(excluding automobiles, principal residence and furnishings) with
spouse exceeds $l,000,000.
OR
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________ 2. INDIVIDUAL INCOME SUITABILITY
Initials
This suitability requirement may be selected only by an individual(s),
and NOT by a corporation, partnership, trust, estate, unincorporated
association or other entity.
Broker represents and warrants that his or her individual income was
in excess of $200,000, or his or her joint income with spouse was in
excess of $300,000, in each of the two most recent years and he or she
reasonably expects his or her net income to reach such level in the
current year.
OR
________ 3. DIRECTOR OR EXECUTIVE OFFICER SUITABILITY
Initials
This suitability requirement may be selected only by an individual(s),
and NOT by a corporation, partnership, trust, estate, unincorporated
association or other entity.
Broker represents and warrants that he or she is a director, executive
officer or general partner of the Company, or a director, executive
officer or general partner of a general partner of the Company. For
purposes hereof, "executive officer" shall mean the President, any
Vice President in charge of a principal business unit, division or
function (such as sales, administration or finance), any other officer
who performs a policy-making function, or any other person who
performs similar policy-making functions for the Company.
OR
4. Certain Qualified Organizations
Purchase represents and warrants that it is (check one):
________ a. A corporation, partnership, Massachusetts or similar
Initials business trust, or organization Initials described
in Section 501(cX3) of the Internal Revenue Code of
1986 (tax exempt organization), not formed for the
specific purpose of acquiring Securities, having
total assets in excess of $5,000,000.
________ b. A bank, savings and loan association or other similar
Initials institution (as defined in Initials Sections 3(aX2)
and 3(a)(5)(A) of the 1933 Act).
________ c. An insurance company (as defined in Section 2(13) of
Initials the 1933 Act). Initial,
________ d. An investment company registered under the Investment
Initials Company Act of 1940. Initials
________ e. A business development company (as defined in Section 2
Initials (a)(48) of the Investment Company Act of 1940) or a
private business development company (as defined in
Section 202(aX22) of the Investment Advisers Act of 1940).
________ f. A Small Business Investment Company licensed by the
Initials U.S. Small Business Administration under Sections
301(c) or (d) of the Small Business Investment Act of
1958.
________ g. A broker or dealer registered pursuant to Section 15 of
Initials the Securities Exchange Act of 1934, as amended.
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________ h. A plan established and maintained by a state, its political
Initials subdivisions, or any agency or instrumentality of a state or
its political subdivisions for the benefit of its Purchasers,
which plan has total assets in excess of $5,000,000.
________ i. An Purchaser benefit plan within the meaning of the Purchaser
Initials Retirement Income Security Act of 1974 ("ERISA"), if the
investment decision is made by a "Plan Fiduciary", as defined
in Section 3(21) of such Act, which is either a bank, savings
and loan association, insurance company or registered
investment adviser.
________ j. An Purchaser benefit plan within the meaning of ERISA having
Initials total assets in excess of $5,000,000.
________ k. A self-directed Purchaser benefit plan within the meaning of
Initials ERISA, with investment decisions made solely by persons who
are accredited investors as defined in Rule 501(a) of
Regulation D.
________ l. A trust with total assets in excess of $5,000,000 not formed
Initials for the specific purpose of acquiring the Securities, whose
purchase is directed by a sophisticated person (i.e., a
person who has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits
and risks of an investment in the Securities).
NOTE: If you claim suitability under this paragraph (3), the Company may
require that you provide appropriate information supporting your claim to
status as a Qualified Organization.
OR
________ 5. ENTITY SUITABILITY
Initials
The Investor represents and warrants that it is a corporation, a
partnership, an unincorporated association or other similar entity,
and that each owner of an equity interest in the entity satisfies
the suitability requirements of either paragraphs (1), (2) or (3)
above. An entity may be newly formed for the purpose of purchasing
a Security.
NOTE: If you claim suitability under this paragraph (4), you must
submit a list of each of the owners with an equity interest
in the entity, setting forth the address, telephone number
and social security or tax identification number and list
for EACH such owner the information required under
paragraphs (1), (2) or (3) above. These separate pages must
be validly signed by or on behalf of each such owner or
beneficiary. Alternatively, each such owner or beneficiary
may complete a separate copy of the Subscription Agreement.
________ 6. NONE OF THE ABOVE.
Initials
7. MISCELLANEOUS.
a. This Agreement shall be governed by and construed in accordance with
the laws of the State of Georgia.
b. This Agreement and the Securities issuable to Investor in connection
herewith contain the entire agreement between the parties with respect to the
subject matter hereof. The provisions of this Agreement may not be modified or
waived except in writing.
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c. The headings of this Agreement are for convenience of reference only, and
they shall not limit or otherwise affect the interpretation of any term or
provision hereof.
d. This Agreement and the rights, powers and duties set forth herein shall,
except as set forth herein, bind and inure to the benefit of the heirs,
executors, administrators, legal representatives, successors and assigns of the
parties hereto. Investor may not assign any of Investor's rights or interests in
and under this Agreement without the prior written consent of HomeCom, and any
attempted assignment without such consent shall be void and without effect.
8. ACCEPTANCE. This Agreement is subject to rejection or acceptance by
HomeCom, in its absolute discretion.
9. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall constitute an original. HomeCom shall retain one
counterpart, and one counterpart shall be returned to Investor upon acceptance
thereof by HomeCom.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, Investor has executed this Warrant Exercise Agreement this
_____ day of _______________, ___.
FOR CORPORATE, TRUST, OR FOR INDIVIDUAL PURCHASER(S)
PARTNERSHIP PURCHASERS
(1)
--------------------------------
Signature of Purchaser
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Name of Purchaser (Please print)
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By: Name of Purchaser (Please Print)
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Title:
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(2)
--------------------------------
Signature of Purchaser
--------------------------------
Name of Purchaser (Please Print)
TO BE COMPLETED BY COMPANY
The proposed exercise of the HomeCom Warrant for shares of HomeCom
Common Stock is accepted this ________ day of_____________, ______.
HOMECOM COMMUNICATIONS, INC.,
a Delaware corporation
By:
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Xxxxxx X. Xxx, President
