EXHIBIT 4.7
REDENVELOPE, INC.
WARRANT PURCHASE AGREEMENT
This Warrant Purchase Agreement (the "Agreement") is made as of
November 13, 2001 by and between RedEnvelope, Inc., a Delaware corporation
(the "Company"), and Camelot Ventures, LLC, a Michigan limited liability company
(the "Lender").
RECITALS
A. The Company and the Lender have entered into a Credit
Agreement dated as of even date herewith (the "Credit Agreement"); and
B. As a condition to the Lender's execution of the Credit
Agreement, the Company has agreed to issue to the Lender a warrant or warrants
to purchase shares of its capital stock in accordance with the terms of this
Agreement (each, a "Warrant" and collectively, the "Warrants").
AGREEMENT
In consideration of the mutual promises contained herein and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties to this Agreement hereby agree as follows:
1. PURCHASE AND SALE OF WARRANT(S).
1.1 SALE AND ISSUANCE OF INITIAL WARRANT. Subject to the
terms and conditions of this Agreement and upon the execution by the Company and
Lender of the Credit Agreement whereby the Lender provides a $2,000,000 credit
facility to the Company, the Company shall sell and issue to the Lender, and the
Lender shall purchase from the Company, for a purchase price of $0.01, a
Warrant, in substantially the form attached as Exhibit A hereto, to purchase
250,000 shares of the Company's Preferred Stock (as such term is defined in the
Warrants).
1.2 SALE AND ISSUANCE OF SUBSEQUENT WARRANTS.
(a) Subject to the terms and conditions of this Agreement
and following the date of the initial Advance (as such term is defined in the
Credit Agreement), if any, of funds to the Company under the Credit Agreement,
the Company shall sell and issue to the Lender, and the Lender shall purchase
from the Company, for a purchase price of $0.01, a Warrant, in substantially the
form attached as Exhibit A hereto, to purchase an additional 250,000 shares of
the Company's Preferred Stock.
(b) In the event that the aggregate of all Advances (as
such term is defined in the Credit Agreement) made to the Company by the Lender
pursuant to the Credit Agreement exceeds $1,000,000, the Company shall, subject
to the terms and conditions of this Agreement,
sell and issue to the Lender, and the Lender shall purchase from the Company,
for a purchase price of $0.01, a Warrant, in substantially the form attached as
Exhibit A hereto, to purchase an additional 250,000 shares of the Company's
Preferred Stock. In the event that the aggregate Advances to the Company
pursuant to the Credit Agreement exceed $1,000,000, the Company may, in its
discretion, issue to Lender pursuant to this Section 1.2 one Warrant exercisable
for 500,000 shares of Preferred Stock in lieu of two Warrants each exercisable
for 250,000 shares of Preferred Stock.
In no event shall the Company be obligated to issue Warrants
to purchase in excess of an aggregate of 750,000 shares of Preferred Stock (as
adjusted for stock splits and the like occurring after the date hereof) pursuant
to the terms of this Agreement. The Warrant(s) and the equity securities
issuable upon exercise of the Warrant(s) (and the securities issuable upon
conversion of such equity securities) are collectively referred to herein as the
"Securities."
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company hereby represents and warrants to the Lender that, except as set forth
on a Schedule of Exceptions attached as Exhibit B hereto, which exceptions shall
be deemed to be representations and warranties as if made hereunder.
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. 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 and legal right to own and operate its assets and to carry on its
business as now conducted and as proposed to be conducted, and to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The Company is duly qualified to transact business and is in good standing in
each jurisdiction in which the failure so to qualify would reasonably be
expected to have a material adverse effect on its business or properties.
2.2 CAPITALIZATION. The authorized capital of the Company
consists of:
(a) 41,975,303 shares of Preferred Stock, $0.001 par
value per share, of which (i) 7,694,809 shares have been designated Series A
Preferred Stock, 7,337,634 of which are issued and outstanding as of the date
hereof, (ii) 4,510,000 shares have been designated Series B Preferred Stock, all
of which are issued and outstanding as of the date hereof, (iii) 6,491,498
shares have been designated Series C Preferred Stock, all of which are issued
and outstanding as of the date hereof, (iv) 2,278,996 shares have been
designated Series D Preferred Stock, all of which are issued and outstanding as
of the date hereof, and (v) 21,000,000 shares have been designated Series E
Preferred Stock, 17,291,788 of which are issued and outstanding as of the date
hereof. The rights, privileges and preferences of the Preferred Stock are as
stated in the Company's Amended and Restated Certificate of Incorporation.
(b) 80,000,000 shares of Common Stock, $0.001 par value
per share, 3,804,333 shares of which are issued and outstanding. The Company has
reserved sufficient shares of Common Stock for issuance upon conversion of the
issued and outstanding Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock.
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(c) The Company has reserved 9,636,959 shares of Common
Stock for issuance to officers, directors, employees and consultants of the
Company pursuant to its 1999 Stock Plan duly adopted by the Board of Directors
and approved by the Company stockholders (the "Stock Plan"). Of such reserved
shares of Common Stock, options to purchase 4,649,339 shares have been granted
and are currently outstanding, options to purchase 445,000 shares have been
committed for issuance and 327,532 shares of Common Stock remain available for
issuance to officers, directors, employees and consultants pursuant to the Stock
Plan.
(d) Except as set forth above and as set forth in the
Investor Agreements (as such term is defined in Section 6 below), there are no
outstanding options, warrants, rights (including conversion or preemptive rights
and rights of first refusal or similar rights) or agreements, orally or in
writing, for the purchase or acquisition from the Company of any shares of its
capital stock.
(e) All outstanding shares have been duly authorized and
validly issued, are fully paid and nonassessable, and have been issued in
compliance with applicable state and federal securities laws. The issuance of
such shares by the Company did not violate any preemptive rights or rights of
first refusal held by third parties (other than rights that were previously
waived by such parties).
(f) Except for the Investor Agreements, the Company is
not a party or subject to any agreement or understanding, and, to the best of
the Company's knowledge, there is no agreement or understanding between any
persons that modifies, restricts or otherwise affects the right of a Company
stockholder to vote its shares of the Company's capital stock in accordance with
the Company's Amended and Restated Certificate of Incorporation.
2.3 AUTHORIZATION. All corporate action on the part of
the Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement and the authorization,
sale, issuance and delivery of the Warrants and the performance of all
obligations of the Company hereunder and thereunder has been taken, and the
Agreement, when executed and delivered by the Company, shall constitute a valid
and legally binding obligation of the Company, enforceable against the Company
in accordance with its terms except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and other laws of
general application affecting enforcement of creditors' rights generally, as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies. Notwithstanding the foregoing, the parties
acknowledge that the Company has not yet authorized, or reserved for issuance,
the Preferred Stock issuable upon exercise of the Warrants or the Common Stock
issuable upon conversion thereof.
2.4 FINANCIAL STATEMENTS. The Company has delivered to
Lender (a) unaudited financial statements of the Company as at and for the
fiscal year ended Xxxxx 0, 0000, (x) unaudited financial statements of the
Company, as applicable for the six (6) month period ended September 30, 2001,
and (c) weekly sales updates comparing actual sales to the Company's plan,
forecast and sales for the same period during the preceding fiscal year, for
each week beginning October 10, 2001 through and including the Closing. The
financial statements referred to in clause (a) of this Section 2.4 are true and
correct in all material respects, have been
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prepared in accordance with GAAP, and fairly present both the financial
condition of the Company, as of April 1, 2001 and the results of the Company's
operations for the fiscal year ended therein. The financial statements referred
to in clause (b) of this Section 2.4 are true and correct in all material
respects, have been prepared in accordance with GAAP (except as otherwise noted
therein and, except for the absence of footnotes and normal year end
adjustments), and fairly present both the financial condition of the Company, as
of the dates indicated therein and the results of the Company's operations for
the period indicated therein. At September 30, 2001, the Company has no
liabilities or obligations (absolute, accrued, contingent or otherwise) of any
nature, whether or not required by GAAP to be reflected in such financial
statements, which are, individually or in the aggregate, material to the
condition, financial or otherwise, or operations of the Company as of that date
which are not reflected on such financial statements. There has been no adverse
change in the condition, financial or otherwise, or operations of the Company
since September 30, 2001, nor has there otherwise occurred a Material Adverse
Effect, subsequent to such date.
2.5 DEFAULT. There are no payment defaults by the Company
and no other defaults which could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect under any loan
agreement, indenture, mortgage, security agreement, lease, franchise, permit,
license or other material agreement or material obligation to which it is a
party or by which any of its properties may be bound. The Company is paying its
debts as they become due except for debts the Company is contesting in good
faith by appropriate actions and/or proceedings diligently pursued and for which
it has established adequate reserves in conformity with GAAP and to the
reasonable satisfaction of Lender.
2.6 COMPLIANCE WITH LAWS AND MATERIAL AGREEMENTS. The
execution, delivery and performance by the Company of this Agreement and the
Warrants issuable hereunder, do not and will not violate its Certificate of
Incorporation or Bylaws or any law or any order of any court, governmental
authority or arbitrator, and do not and will not conflict with, result in a
breach of, or constitute a default under, or result in the imposition of any
Lien (except Permitted Liens) upon any assets of the Company pursuant to the
provisions of any loan agreement, indenture, mortgage, security agreement,
franchise, permit, license or other instrument or agreement by which the Company
or any of its properties is bound. No authorization, approval or consent of, and
no filing or registration with, any court, governmental authority or third
Person is or will be necessary for the execution, delivery or performance by the
Company of this Agreement or the Warrants issuable hereunder or the validity or
enforceability thereof, except for filings required under applicable state
securities laws. All authorizations, approvals, consents, filings and
registrations described under Section 2.6 of the Schedule of Exceptions have
been obtained. The Company is not in violation of any term of its (i)
Certificate of Incorporation or Bylaws or (ii) any contract, agreement, judgment
or decree, and (iii) is in full compliance with all applicable laws, regulations
and rules, except with respect to any item in clause (ii) or (iii) when such
violation or non-compliance could not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
2.7 ENVIRONMENTAL CONDITION OF THE PROPERTY. To the best
of the Company's knowledge:
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(a) The location, construction, occupancy, operation and
use of the Property do not violate any applicable law, statute, ordinance, rule,
regulation, order or determination of any governmental authority or other body
exercising similar functions, or any restrictive covenant or deed restriction
(recorded or otherwise) affecting the Property, including, without limitation,
all applicable zoning ordinances and building codes, flood disaster,
occupational health and safety laws and Environmental Laws and regulations (as
referred to in this Section 2.7, collectively, "applicable laws");
(b) Without limitation of clause (a) of this Section 2.7,
neither the Company nor the Property is subject to any existing, pending or
threatened investigation or inquiry by any governmental authority or subject to
any remedial obligations due to violations of applicable laws;
(c) The Company is not subject to any liability or
obligation relating to (i) the environmental conditions on, under or about the
Property, including, without limitation, the soil and ground water conditions at
the Property, or (ii) the use, management, handling, transport, treatment,
generation, storage, disposal, release or discharge of any Polluting Substance;
(d) There is no Polluting Substance or other substance
that may pose any risk to safety, health or the environment on, under or about
any Property;
(e) No Polluting Substances have been disposed of or
otherwise released on, onto, into, or from the Property, and the use which the
Company makes and intends to make of the Property does not and will not result
in the disposal or other release of any Polluting Substances on, onto, into or
from the Property; and
(f) The Company has been issued all required federal,
state and local licenses, certificates or permits relating to, and the Property,
the Company and the Company's facilities, business, assets, leaseholds and
equipment are all in compliance in all respects with all applicable federal,
state and local laws, rules and regulations relating to, air emissions, water
discharge, noise emissions, solid or liquid waste disposal, Polluting
Substances, or other environmental, health or safety matters.
2.8 LITIGATION AND JUDGMENTS. There is no action, suit,
proceeding or investigation before any court, governmental authority or
arbitrator pending, or to the knowledge of the Company threatened, against or
affecting the Company, this Agreement, and/or the Other Agreements. There are no
outstanding judgments against the Company. None of the matters listed under
Section 2.8 of the Schedule of Exceptions could reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect.
2.9 RIGHTS IN PROPERTIES; LIENS. The Company has good and
indefeasible title to all material properties and assets reflected on its
balance sheets, and none of such properties or assets is subject to any Liens,
except Permitted Liens. The Company enjoys peaceful and undisturbed possession
under all leases necessary for the operation of its other properties, assets,
and businesses and, to its knowledge, all such leases are valid and subsisting
and are in full force and effect. There exists no default under any provision of
any lease which
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would permit the lessor thereunder to terminate any such lease or to exercise
any rights under such lease which, individually or together with all other such
defaults, could have a Material Adverse Effect. The Company has the right to use
all of the Intellectual Property necessary to its business as presently
conducted, and the Company's use of the Intellectual Property, to its knowledge,
does not infringe on the rights of any other Person. To the best of the
Company's knowledge, no other Person is infringing the rights of the Company in
any of the Intellectual Property. The Company owes no royalties, honoraria or
fees to any Person by reason of its use of the Intellectual Property.
2.10 TAXES. The Company has filed all tax returns
(federal, state, and local) required to be filed, including, without limitation,
all income, franchise, employment, property, and sales taxes, and has paid all
of its tax liabilities, other than immaterial amounts and taxes that are being
contested by the Company in good faith by appropriate actions or proceedings
diligently pursued, and for which adequate reserves in conformity with GAAP with
respect thereto have been established to the reasonable satisfaction of Lender.
The Company knows of no pending investigation of the Company by any taxing
authority or pending but unassessed tax liability of the Company. The Company
has made no presently effective waiver of any applicable statute of limitations
or request for an extension of time to file a tax return, and the Company is not
a party to any tax-sharing agreement.
2.11 ERISA. The Company does not have or maintain any
Employee Benefit Plans subject to ERISA or the Code, and has no liability,
itself or as any member of a Controlled Group, under ERISA or the Code with
respect to any plan it does maintain or has maintained for the benefit of its
employees.
2.12 DISCLOSURE. No representation or warranty made by the
Company in this Agreement contains or will contain any untrue material fact or
omits to state any material fact necessary to make the statements herein or
therein, taken as a whole, not misleading. There is no fact known to the Company
which the Company has determined has a Material Adverse Effect, or which the
Company has determined could have a Material Adverse Effect, that has not been
disclosed in writing to Lender.
2.13 NO LABOR DISPUTES. The Company is not involved in any
labor dispute. There are no strikes or walkouts or union organization of any of
the Company's employees threatened or in existence and no labor contract is
scheduled to expire during the term of the Credit Agreement.
2.14 INSURANCE. The amount and types of insurance carried
by the Company, and the terms and conditions thereof, are substantially similar
to the coverage maintained by companies in the same or similar business as the
Company and similarly situated.
All capitalized terms contained in this Section 2 that are not
otherwise defined in this Agreement shall have the meanings ascribed to them
under the Credit Agreement.
3. COVENANTS REGARDING ISSUANCE OF STOCK UPON EXERCISE OF
WARRANTS. The Company covenants that:
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(a) The shares of Preferred Stock issuable on exercise of
the Warrants when issued and paid for in accordance with the terms of the
Warrants, will be duly authorized, validly issued, fully paid, and nonassessable
and will not be subject to preemptive rights, rights of first refusal, or
similar rights of a third party.
(b) Prior to the exercise of any Warrant in accordance
with its terms, the Company will have authorized and reserved a sufficient
number of shares of the Company's securities into which such Warrant is
exercisable to provide for the exercise in full of the Warrants.
(c) The Company has authorized and available for
issuance, or shall, prior to January 31, 2002, authorize and make available for
issuance, 750,000 shares of Series E Preferred Stock and shall reserve such
shares for issuance upon exercise of the Warrants; provided, however, that in
the event that the Warrants are not issuable for Series E Preferred Stock or are
issuable for less than 750,000 shares of Series E Preferred Stock, the Company
shall no longer be required to reserve any shares that are not issuable upon
exercise of such Warrants.
4. REPRESENTATIONS AND WARRANTIES OF THE LENDER. The Lender
hereby represents and warrants to the Company that:
4.1 AUTHORIZATION. The Lender has full power and
authority to enter into this Agreement and this Agreement, when executed and
delivered by the Lender, will constitute the valid and legally binding
obligation of the Lender, enforceable in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, and any other laws of general application affecting
enforcement of creditors' rights generally, and as limited by laws relating to
the availability of a specific performance, injunctive relief, or other
equitable remedies.
4.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. The Securities to
be acquired by the Lender will be acquired for investment for the Lender's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and the Lender has no present intention of
selling, granting any participation in, or otherwise distributing the same. By
executing this Agreement, the Lender further represents that it does not
presently have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participations to such person or to any third
person, with respect to any of the Securities. The Lender has not been formed
for the specific purpose of acquiring any of the Securities.
4.3 KNOWLEDGE. The Lender is aware of the Company's
business affairs and financial condition, has had an opportunity to discuss the
Company's business affairs and financial condition with the Company's
management, and has acquired sufficient information about the Company to reach
an informed and knowledgeable decision to acquire the Securities.
4.4 RESTRICTED SECURITIES. The Lender understands that
the Securities have not been, and will not be, registered under the Securities
Act of 1933, as amended (the "Securities Act"), by reason of a specific
exemption from the registration provisions of the Securities Act which depends
upon, among other things, the bona fide nature of the investment
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intent and the accuracy of the Lender's representations as expressed herein. The
Lender understands that the Securities are "restricted securities" under
applicable U.S. federal and state securities laws and that, pursuant to these
laws, the Lender must hold the Securities indefinitely unless they are
registered with the Securities and Exchange Commission and qualified by state
authorities, or an exemption from such registration and qualification
requirements is available. The Lender acknowledges that the Company has no
obligation to register or qualify the Securities for resale except as required
by Section 6 below. The Lender further acknowledges that if an exemption from
registration or qualification is available, it may be conditioned on various
requirements including, but not limited to, the time and manner of sale, the
holding period for the Securities, and on requirements relating to the Company
which are outside of the Lender's control, and which the Company is under no
obligation and may not be able to satisfy.
4.5 NO PUBLIC MARKET. The Lender understands that no
public market now exists for any of the securities issued by the Company, that
the Company has made no assurances that a public market will ever exist for the
Securities.
4.6 LEGENDS. The Lender understands that the Securities,
and any securities issued in respect thereof or exchange therefor, may bear one
or all of the following legends:
(a) "THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE
BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE
SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OF 1933."
(b) Any legend required by the Blue Sky laws of
any state to the extent such laws are applicable to the shares represented by
the certificate so legended.
4.7 ACCREDITED INVESTOR. The Lender is an accredited
investor as defined in Rule 501(a) of Regulation D promulgated under the
Securities Act.
5. CONDITIONS OF THE COMPANY'S OBLIGATIONS TO ISSUE WARRANTS. The
obligations of the Company to issue any Warrant to the Lender pursuant to the
terms of this Agreement are subject to the following conditions, unless
otherwise waived by the Company:
5.1 REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Lender contained in Section 4 shall be true on and as of
the date of issuance of such Warrant with the same effect as though such
representations and warranties had been made on and as of such date.
5.2 QUALIFICATIONS. All authorizations, approvals or
permits, if any, of any governmental authority or regulatory body of the United
States or of any state that are required in
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connection with the lawful issuance and sale of such Warrant pursuant to this
Agreement shall be obtained and effective as of the date of issuance of such
Warrant.
6. INVESTOR AGREEMENTS.
Upon issuance of shares of Preferred Stock to the Lender
pursuant to any exercise of the Warrants, the Company shall take all action
necessary (including obtaining any necessary consents of the Company's existing
stockholders) to have the Lender become a party to (unless Lender is already a
party to), and to have the Lender's shares of Preferred Stock issued upon
exercise of the Warrant become eligible to receive the benefits accorded to all
other holders of shares of similar Preferred Stock set forth in, those certain
Amended and Restated Investors' Rights Agreement, Amended and Restated
Investor's Right of First Refusal and Co-Sale Agreement, and Amended and
Restated Voting Agreement, each dated as of July 17, 2000 and as amended to date
(collectively, the "Investor Agreements"); provided, however, in the event the
Company hereafter closes a preferred stock financing prior to such issuance, the
term Investor Agreements shall be deemed to refer to any successor agreement or
agreements containing similar benefits granted to holders of shares issued in
such financing. The Lender acknowledges and agrees that any rights set forth in
the Investor Agreements shall be conditioned upon Lender's execution of such
agreements.
7. CONDITIONS. The obligations of the Lender to purchase the
Warrants hereunder are subject to satisfaction or waiver by the Lender of each
of the conditions precedent to the obligations of the Lender under the Credit
Agreement.
8. MISCELLANEOUS.
8.1 INTEGRATION. This Agreement, together with the
attachments hereto, and the Credit Agreement constitute the entire agreement
with respect to the subject matter hereof and thereof and supersede all previous
written, and all previous or contemporaneous oral, negotiations, understandings,
arrangements, and agreements.
8.2 REMEDIES. The failure of any party to enforce any
right or remedy under this Agreement, or promptly to enforce any such right or
remedy, will not constitute a waiver thereof, nor give rise to any estoppel
against such party, nor excuse any other party from its obligations under this
Agreement. Any waiver of any such right or remedy by any party must be in
writing and signed by the party against which such waiver is sought to be
enforced. The parties hereby agree that in the event of any breach by a party of
its obligations under this Agreement, the non-breaching party will be entitled,
in addition to any and all other rights and remedies that it may have in law or
in equity, to seek specific performance of such obligations from such breaching
party.
8.3 SURVIVAL. All warranties, representations, and
covenants made by any party in this Agreement or in any certificate delivered by
such party or on its behalf under this Agreement will be considered to have been
relied upon by the party to which it is delivered and will survive the Closing
Date, the exercise or retirement of the Warrants and the repayment of the
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Obligations under the Credit Agreement, regardless of any investigation made by
such party or on its behalf.
8.4 ATTORNEY'S FEES. If any action at law or in equity
(including arbitration) is necessary to enforce or interpret the terms of this
Agreement or the Warrant(s) issued hereunder, the prevailing party shall be
entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
8.5 SUCCESSORS AND ASSIGNS. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
8.6 GOVERNING LAW. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of Delaware, without giving effect to principles of conflicts of
law.
8.7 COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
8.8 TITLES AND SUBTITLES. The titles and subtitles used
in this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.9 NOTICES. Any notice required or permitted by this
Agreement shall be in writing and shall be deemed sufficient upon receipt, when
delivered personally or by courier, overnight delivery service or confirmed
facsimile, or forty-eight (48) hours after being deposited in the U.S. mail as
certified or registered mail with postage prepaid, if such notice is addressed
to the party to be notified at such party's address or facsimile number as set
forth below or as subsequently modified by written notice.
8.10 FINDER'S FEE. Each party represents that it neither
is nor will be obligated for any finder's fee or commission in connection with
this transaction.
8.11 AMENDMENTS AND WAIVERS. Any term of this Agreement
may be amended or waived only with the written consent of the Company and the
Lender. Any amendment or waiver effected in accordance with this Section 8.11
shall be binding upon the Lender and each transferee of the Securities, each
future holder of all such Securities, and the Company.
8.12 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, the parties agree
to renegotiate such provision in good faith,
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in order to maintain the economic position enjoyed by each party as close as
possible to that under the provision rendered unenforceable. In the event that
the parties cannot reach a mutually agreeable and enforceable replacement for
such provision, then (a) such provision shall be excluded from this Agreement,
(b) the balance of the Agreement shall be interpreted as if such provision were
so excluded and (c) the balance of the Agreement shall be enforceable in
accordance with its terms.
8.13 CORPORATE SECURITIES LAW. THE SALE OF THE SECURITIES
WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR
PRIOR TO THE QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM THE QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON THE QUALIFICATION BEING OBTAINED UNLESS THE SALE IS SO EXEMPT.
[Signature page follows]
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The parties have executed this Warrant Purchase Agreement as of the
date first written above.
COMPANY:
REDENVELOPE, INC.
By: /s/ Xxxxxx XxXxxxxx
-----------------------------------
Name: Xxxxxx XxXxxxxx
(print)
Title: Chief Executive Officer
Address: 000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
LENDER:
CAMELOT VENTURES, LLC
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
(print)
Title: Manager
Address: 000 Xxxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx
Facsimile Number: (000) 000-0000
SIGNATURE PAGE TO WARRANT PURCHASE AGREEMENT
