Exhibit 4.2
EXHIBIT A
FORM OF WARRANT
EXHIBIT A
WARRANT
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO THE WARRANT UNDER SUCH ACT AND APPLICABLE
LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED.
No. 1 of 1
Dated: , 2000
------------------
Warrant to Purchase Shares of Common
Stock (subject to adjustment)
WARRANT TO PURCHASE COMMON STOCK
OF
ZENGINE, INC.
VOID AFTER __, 2003
This certifies that, for value received, XXX Stores Corporation ("RSC")
and its permitted and registered assigns ("Holder") is entitled, subject to the
terms set forth below, to purchase from ZENGINE, INC. (the "Company"), a
Delaware corporation, a number of unregistered shares of the common stock, no
par value per share ("Common Stock"), of the Company equal to 1.7% of the number
of shares of Common Stock which are issued and outstanding on the day
immediately following the date the Company's Common Stock is issued and sold as
a result of the Company's initial public offering (not including the
underwriters' overallotment option) ("IPO"), as constituted on the date thereof,
upon surrender hereof, at the principal office of the Company referred to below,
with the subscription form attached hereto duly executed, and simultaneous
payment therefor in lawful money of the United States or otherwise as
hereinafter provided, at the Exercise Price as set forth in Section 2 below. The
number, character and Exercise Price of such shares of Common Stock are subject
to adjustment as provided below. The term "Warrant" as used herein shall include
this Warrant, and any warrants delivered in substitution or exchange therefor as
provided herein.
1. TERM OF WARRANT. Subject to the terms and conditions set forth
herein, this Warrant shall be exercisable, in whole or in part, during the term
commencing on the date of issue set forth on the face of this Warrant (the
"Warrant Issue Date") and ending at 5:00 p.m., Pacific time, on the earlier of:
(i) the termination of the Software Services Agreement by and among the Company,
xxxxxxxxx.xxx, Inc. and RSC dated January 21, 2000 prior to the expiration of
the Term (as defined therein); or (ii) on __, 2003, and shall be void
thereafter. This Warrant shall not be exercisable unless and until Zengine
completes an IPO.
2. EXERCISE PRICE. The Exercise Price at which this Warrant may be
exercised shall be the price per share of a share of Company Common Stock sold
in the Company's IPO, as adjusted from time to time pursuant to Section 11
hereof.
EXERCISE OF WARRANT.
(a) The purchase rights represented by this Warrant are
exercisable by the Holder in whole or in part, but not for less than five
hundred (500) shares at a time (or such lesser number of shares which may then
constitute the maximum number purchasable; such number being subject to
adjustment as provided in Section 11 below), at any time, or from time to time,
during the term hereof as described in Section 1 above, by the surrender of this
Warrant and the Notice of Exercise annexed hereto duly completed and executed on
behalf of the Holder, at the office of the Company (or such other office or
agency of the Company as it may designate by notice in writing to the Holder at
the address of the Holder appearing on the books of the Company), upon payment
(i) in cash or by check acceptable to the Company, (ii) by cancellation by the
Holder of indebtedness or other obligations of the Company to the Holder, (iii)
by a combination of (i) and (ii), of the purchase price of the shares to be
purchased, or (iv) as set forth in Section 3(c), below.
(b) This Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for
exercise as provided above, and the person entitled to receive the shares of
Common Stock issuable upon such exercise shall be treated for all purposes as
the holder of record of such shares as of the close of business on such date. As
promptly as practicable on or after such date and in any event within ten (10)
days thereafter, the Company at its expense shall issue and deliver to the
person or persons entitled to receive the same a certificate or certificates for
the number of shares issuable upon such exercise. In the event that this Warrant
is exercised in part, the Company at its expense will execute and deliver a new
warrant of like tenor exercisable for the number of shares for which this
Warrant may then be exercised.
(c) NET ISSUE EXERCISE. Notwithstanding any provisions herein
to the contrary, if the fair market value of one share of Common Stock is
greater than the Exercise Price (at the date of calculation as set forth below),
in lieu of exercising this Warrant for cash, the Holder may elect to receive
shares equal to the value (as determined below) of this Warrant (or the portion
thereof being canceled) by surrender of this Warrant at the principal office of
the Company together with
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the properly endorsed Notice of Exercise and notice of such election in which
event the Company shall issue to the Holder a number of shares of Common Stock
computed using the following formula:
Y (A-B)
-------
X = A
Where X = the number of shares of Common Stock to be issued to
the holder;
Y = the number of shares of Common Stock purchasable
under the Warrant or, if only a portion of the
Warrant is being exercised, the portion of the
Warrant being canceled (at the date of such
calculation);
A = the fair market value of one share of the Company's
Common Stock (at the date of such calculation); and,
B = Exercise Price (as adjusted to the date of such
calculation).
For purposes of the above calculation, fair market value of one share of Common
Stock shall be determined by the Company's Board of Directors in good faith;
provided, however, that where there exists a public market for the Company's
Common Stock at the time of such exercise, the fair market value per share shall
be the average of the closing bid and asked prices of the Common Stock quoted in
the Over-The-Counter Market Summary or the last reported sale price of the
Common Stock or the closing price quoted on the Nasdaq National Market or on any
exchange on which the Common Stock is listed, whichever is applicable, as
published in the Eastern Edition of THE WALL STREET JOURNAL for the five (5)
trading days prior to the date of determination of fair market value.
Notwithstanding the foregoing, in the event the Warrant is exercised in
connection with the Company's initial public offering of Common Stock, the fair
market value per share shall be the per share offering price to the public of
the Company's initial public offering.
4. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise be
entitled, the Company shall make a cash payment equal to the Exercise Price
multiplied by such fraction.
5. REPLACEMENT OF WARRANT. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement and bond reasonably satisfactory in form and substance to
the Company or, in the case of mutilation, on surrender and cancellation of this
Warrant, the Company at its expense shall execute and deliver, in lieu of this
Warrant, a new warrant of like tenor and amount.
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6. RIGHTS OF STOCKHOLDERS. Subject to Sections 9 and 11 of this
Warrant, the Holder shall not be entitled to vote or receive dividends or be
deemed the holder of Common Stock or any other securities of the Company that
may at any time be issuable on the exercise hereof for any purpose, 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 for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of stock, change
of par value, or change of stock to no par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until the Warrant shall have been
exercised as provided herein.
7. TRANSFER OF WARRANT.
(a) WARRANT REGISTER. The Company will maintain a register
(the "Warrant Register") containing the names and addresses of the Holder or
Holders. Any Holder of this Warrant or any portion thereof may change his or her
address as shown on the Warrant Register by written notice to the Company
requesting such change. Any notice or written communication required or
permitted to be given to the Holder may be delivered or given by mail to such
Holder as shown on the Warrant Register and at the address shown on the Warrant
Register. Until this Warrant is transferred on the Warrant Register of the
Company, the Company may treat the Holder as shown on the Warrant Register as
the absolute owner of this Warrant for all purposes, notwithstanding any notice
to the contrary.
(b) WARRANT AGENT. The Company may, by written notice to the Holder,
appoint an agent for the purpose of maintaining the Warrant Register referred to
in Section 7(a) above, issuing the Common Stock or other securities then
issuable upon the exercise of this Warrant, exchanging this Warrant, replacing
this Warrant, or any or all of the foregoing. Thereafter, any such registration,
issuance, exchange, or replacement, as the case may be, shall be made at the
office of such agent.
(c) TRANSFERABILITY AND NONNEGOTIABILITY OF WARRANT. This Warrant may
not be transferred or assigned in whole or in part without the prior written
consent of the Company, which shall not be unreasonably withheld, except that
RSC may transfer this Warrant to any affiliate (as such term is defined by the
Securities Exchange Act of 1934, as amended) of RSC which is majority owned by
RSC. All transfers must comply with all applicable federal and state securities
laws by the transferor and the transferee (including the delivery of investment
representation letters and legal opinions reasonably satisfactory to the
Company, if such are requested by the Company). Subject to the provisions of
this Warrant with respect to compliance with the Securities Act of 1933, as
amended (the "Act") and with the limitations on assignments and transfers set
forth above, title to this Warrant may be transferred by endorsement (by the
Holder executing the Assignment Form annexed hereto) and delivery in the same
manner as a negotiable instrument transferable by endorsement and delivery.
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(d) EXCHANGE OF WARRANT UPON A TRANSFER. On surrender of this Warrant
for exchange, properly endorsed on the Assignment Form and subject to the
provisions of this Warrant with respect to compliance with the Act and with the
limitations on assignments and transfers contained in this Section 7, the
Company at its expense shall issue to or on the order of the Holder a new
warrant or warrants of like tenor, in the name of the Holder or as the Holder
(on payment by the Holder of any applicable transfer taxes) may direct, for the
number of shares issuable upon exercise hereof.
(e) COMPLIANCE WITH SECURITIES LAWS.
(i) The Holder of this Warrant, by acceptance hereof,
acknowledges that this Warrant and the shares of Common Stock to be issued upon
exercise hereof are being acquired solely for the Holder's own account and not
as a nominee for any other party, and for investment, and that the Holder will
not offer, sell or otherwise dispose of this Warrant or any shares of Common
Stock to be issued upon exercise hereof except under circumstances that will not
result in a violation of the Act or any state securities laws. Upon exercise of
this Warrant, the Holder shall, if requested by the Company, confirm in writing,
in a form satisfactory to the Company, that the shares of Common Stock so
purchased are being acquired solely for the Holder's own account and not as a
nominee for any other party, for investment, and not with a view toward
distribution or resale.
(ii) This Warrant and all shares of Common Stock issued upon
exercise hereof shall be stamped or imprinted with a legend in substantially the
following form (in addition to any legend required by state securities laws):
"THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED OR ANY APPLICABLE STATE SECURITIES
LAWS. SUCH SECURITIES AND ANY SECURITIES ISSUED HEREUNDER OR
THEREUNDER MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND
APPLICABLE LAWS. COPIES OF THE WARRANT AGREEMENT COVERING THE
PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR TRANSFER OR
SALE MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE
HOLDER OF RECORD HEREOF TO THE SECRETARY OF THE COMPANY AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY."
8. RESERVATION OF STOCK. The Company covenants that during the term
this Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this Warrant and, from time to time, will
take all steps necessary to amend its Certificate of Incorporation (the
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"Certificate") to provide sufficient reserves of shares of Common Stock issuable
upon exercise of the Warrant. The Company further covenants that all shares that
may be issued upon the exercise of rights represented by this Warrant and
payment of the Exercise Price, all as set forth herein, will be free from all
taxes, liens and charges in respect of the issue thereof (other than taxes in
respect of any transfer occurring contemporaneously or otherwise specified
herein). The Company agrees that its issuance of this Warrant shall constitute
full authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for shares of
Common Stock upon the exercise of this Warrant.
9. NOTICES.
(a) Whenever the Exercise Price or number of shares
purchasable hereunder shall be adjusted pursuant to Section 11 hereof, the
Company shall issue a certificate signed by its Chief Financial Officer setting
forth, in reasonable detail, the event requiring the adjustment, the amount of
the adjustment, the method by which such adjustment was calculated, and the
Exercise Price and number of shares purchasable hereunder after giving effect to
such adjustment, and shall cause a copy of such certificate to be mailed (by
first-class mail, postage prepaid) to the Holder of this Warrant.
(b) In case:
(i) the Company shall take a record of the holders of
its Common Stock (or other stock or securities at the time receivable upon the
exercise of this Warrant) for the purpose of entitling them to receive any
dividend or other distribution, or any right to subscribe for or purchase any
shares of stock of any class or any other securities, or to receive any other
right, or
(ii) of any capital reorganization of the Company,
any reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance of all
or substantially all of the assets of the Company to another corporation, or
(iii) of any voluntary dissolution, liquidation or
winding-up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Holder or Holders a notice specifying, as the case may be, (A) the date on which
a record is to be taken for the purpose of such dividend, distribution or right,
and stating the amount and character of such dividend, distribution or right, or
(B) the date on which such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding-up is to take place, and
the time, if any is to be fixed, as of which the holders of record of Common
Stock (or such stock or securities at the time receivable upon the exercise of
this Warrant) shall be entitled to exchange their shares of Common Stock (or
such other stock or securities) for securities or other property deliverable
upon
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such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up. Such notice shall be mailed at least 15
days prior to the date therein specified.
(c) All such notices, advices and communications shall be
deemed to have been received (i) in the case of personal delivery, on the date
of such delivery, and (ii) in the case of mailing, on the third business day
following the date of such mailing.
10. AMENDMENTS.
(a) Any term of this Warrant may be amended only with the
written consent of the Company and the Holder. Any amendment effected in
accordance with this Section 10 shall be binding upon each holder of any of the
warrants outstanding for the Common Stock relating to this Warrant (the "Common
Stock Warrants"), and the Company; provided, however, that no special
consideration or inducement may be given to any such holder in connection with
such consent that is not given ratably to all such holders, and that such
amendment must apply to all such holders equally and ratably in accordance with
the number of shares of Common Stock issuable upon exercise of their Common
Stock Warrants. The Company shall promptly give notice to all holders of Common
Stock Warrants of any amendment effected in accordance with this Section 10.
(b) No waivers of, or exceptions to, any term, condition or
provision of this Warrant, in any one or more instances, shall be deemed to be,
or construed as, a further or continuing waiver of any such term, condition or
provision.
11. ADJUSTMENTS. The Exercise Price and the number of shares
purchasable hereunder are subject to adjustment from time to time as follows:
11.1 MERGER, SALE OF ASSETS, ETC. If at any time while this
Warrant, or any portion hereof, is outstanding and unexpired there shall be (i)
a reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Company with or into another corporation in which the
Company is not the surviving entity, or a reverse triangular merger in which the
Company is the surviving entity but the shares of the Company's capital stock
outstanding immediately prior to the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash, or
otherwise, or (iii) a sale or transfer of the Company's properties and assets
as, or substantially as, an entirety to any other person, then, as a part of
such reorganization, merger, consolidation, sale or transfer, lawful provision
shall be made so that the holder of this Warrant shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified herein and
upon payment of the Exercise Price then in effect, the number of shares of stock
or other securities or property of the successor corporation resulting from such
reorganization, merger, consolidation, sale or transfer that a holder of the
shares deliverable upon exercise of this Warrant would have been entitled to
receive in such reorganization, consolidation, merger, sale or transfer if this
Warrant had been exercised immediately before such reorganization, merger
consolidation, sale or transfer, all subject to further adjustment as provided
in this Section 11. The foregoing provisions of this Section 11.1 shall
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similarly apply to successive reorganizations, consolidations, mergers, sales
and transfers and to the stock or securities of any other corporation that
are at the time receivable upon the exercise of this Warrant. If the
per-share consideration payable to the holder hereof for shares in connection
with any such transaction is in a form other than cash or marketable
securities, then the value of such consideration shall be determined in good
faith by the Company's Board of Directors. In all events, appropriate
adjustment (as determined in good faith by the Company's Board of Directors)
shall be made in the application of the provisions of this Warrant with
respect to the rights and interests of the Holder after the transaction, to
the end that the provisions of this Warrant shall be applicable after that
event, as near as reasonably may be, in relation to any shares or other
property deliverable after that event upon exercise of this Warrant.
11.2 RECLASSIFICATION, ETC. If the Company, at any time while this
Warrant, or any portion hereof, remains outstanding and unexpired by
reclassification of securities or otherwise, shall change any of the securities
as to which purchase rights under this Warrant exist into the same or a
different number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities that were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 11.
11.3 SPLIT, SUBDIVISION OR COMBINATION OF SHARES. If the Company at any
time while this Warrant, or any portion hereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which purchase
rights under this Warrant exist, into a different number of securities of the
same class, the Exercise Price for such securities shall be proportionately
decreased in the case of a split or subdivision or proportionately increased in
the case of a combination.
11.4 ADJUSTMENTS FOR DIVIDENDS IN STOCK OR OTHER SECURITIES OR
PROPERTY. If while this Warrant, or any portion hereof, remains outstanding and
unexpired, the holders of the securities as to which purchase rights under this
Warrant exist at the time shall have received, or, on or after the record date
fixed for the determination of eligible stockholders, shall have become entitled
to receive, without payment therefor, other or additional stock or other
securities or property (other than cash) of the Company by way of dividend, then
and in each case, this Warrant shall represent the right to acquire, in addition
to the number of shares of the security receivable upon exercise of this
Warrant, and without payment of any additional consideration therefor, the
amount of such other or additional stock or other securities or property (other
than cash) of the Company that such holder would hold on the date of such
exercise had it been the holder of record of the security receivable upon
exercise of this Warrant on the date hereof and had thereafter, during the
period from the date hereof to and including the date of such exercise, retained
such shares and/or all other additional stock available by it as aforesaid
during such period, giving effect to all adjustments called for during such
period by the provisions of this Section 11.
11.5 CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 11, the Company at its
expense shall promptly compute such
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adjustment or readjustment in accordance with the terms hereof and furnish to
each Holder of this Warrant a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Company shall, upon the written request, at any time,
of any such Holder, furnish or cause to be furnished to such Holder a like
certificate setting forth: (i) such adjustments and readjustments; (ii) the
Exercise Price at the time in effect; and (iii) the number of shares and the
amount, if any, of other property that at the time would be received upon the
exercise of the Warrant.
11.6 NO IMPAIRMENT. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Section 11 and in
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holder of this Warrant against impairment.
12. MISCELLANEOUS.
12.1 GENERAL DISPUTE PRINCIPLES. (a) All disputes between the
parties under this Warrant shall be settled, if possible, through good faith
negotiations between the relevant parties. In the event such disputes cannot be
so resolved, such disputes shall be resolved as provided in Section 12.1(b).
(b) The parties shall submit any controversy or claim
arising out of, relating to or in connection with this Warrant, or the breach
hereof or thereof ("Demand for Arbitration"), to arbitration administered by the
American Arbitration Association ("AAA") in accordance with its Commercial
Arbitration Rules then in effect (collectively, "AAA Rules") and judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
(c) The place of arbitration shall be Dayton, Ohio.
(d) The parties shall attempt, by agreement, to
nominate a sole arbitrator for confirmation by the AAA. If the parties fail to
so nominate a sole arbitrator within thirty (30) days from the date when the
Demand for Arbitration has been communicated by the initiating party, the
arbitrator shall be appointed by the AAA in accordance with the AAA Rules. For
purposes of this Section, the "commencement of the arbitration proceeding" shall
be deemed to be the date upon which the Demand for Arbitration has been
delivered to the parties in accordance with this Section 12.1. A hearing on the
matter in dispute shall commence within thirty (30) days following selection of
the arbitrator, and the decision of the arbitrator shall be rendered no later
than sixty (60) days after commencement of such hearing.
(e) An award rendered in connection with an
arbitration pursuant to this Section shall be final and binding upon the
parties, and the parties agree and consent that the arbitral award shall be
conclusive proof of the validity of the determinations of the arbitrator set
forth in the
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award and any judgment upon such an award may be entered and enforced in any
court of competent jurisdiction.
(f) The parties agree that the award of the arbitral
tribunal will be the sole and exclusive remedy between them regarding any and
all claims and counterclaims between them with respect to the subject matter of
the arbitrated dispute. The parties hereby waive all IN PERSONAM jurisdictional
defenses in connection with any arbitration hereunder or the enforcement of an
order or award rendered pursuant thereto (assuming that the terms and conditions
of this arbitration clause have been complied with).
(g) The arbitrator shall issue a written explanation
of the reasons for the award and a full statement of the facts as found and the
rules of law applied in reaching his decision to both parties. The arbitrator
shall apportion to each party all costs (including attorneys' and witness fees,
if any) incurred in conducting the arbitration in accordance with what the
arbitrator deems just and equitable under the circumstances. Any provisional
remedy which would be available to a court of law shall be available from the
arbitrator pending arbitration of the dispute. Either party may make an
application to the arbitrator seeking injunctive or other interim relief, and
the arbitrator may take whatever interim measures he deems necessary in respect
of the subject matter of the dispute, including measures to maintain the status
quo until such time as the arbitration award is rendered or the controversy is
otherwise resolved. The arbitrator shall only have the authority to award any
remedy or relief (except EX PARTE relief) that a Court of Common Pleas of the
State of Ohio could order or grant, including, without limitation, specific
performance of any obligation created under this Agreement, the issuance of an
injunction, or the imposition of sanctions for abuse or frustration of the
arbitration process, but specifically excluding punitive damages.
(h) Either party may file an application in any
proper court for a provisional remedy in connection with an arbitrable
controversy, but only upon the ground that the award to which the application
may be entitled may be rendered ineffectual without provisional relief. The
parties may also commence legal action in lieu of any arbitration under this
Section 12.1 in connection with any third party litigation proceedings.
(i) For purposes of any suit, action or legal
proceeding permitted under this Section 12.1, each party (a) hereby irrevocably
submits itself to and consents to the non-exclusive jurisdiction of the courts
of the State of Ohio or, if it has or can require jurisdiction, United States
District Court for the Southern District (Western Division) of Ohio for the
purposes of any suit, action or legal proceeding in connection with this Warrant
including to enforce an arbitral resolution, settlement, order or award made
pursuant to this Warrant (including pursuant to the U.S. Arbitration Act or
otherwise), and (b) the extent permitted by applicable law, hereby waives, and
agrees not to assert, by way of motion, as a defense, or otherwise, in any such
suit, action or legal proceeding pending in such event, any claim that it is not
personally subject to the jurisdiction of such court, that the suit, action or
legal proceeding is brought in an inconvenient forum or that the venue of the
suit, action or legal proceeding is improper. Each party hereby agrees to the
entry of an order to enforce any resolution, settlement, order or award made
pursuant to this Section by the courts of the State of Ohio or, if it has or can
require jurisdiction, the United States District Court
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for the Southern District (Western Division) of Ohio and in connection therewith
hereby waives, and agrees not to assert by way of motion, as a defense, or
otherwise, any claim that such resolution, settlement, order or award is
inconsistent with or violative of the laws or public policy of the laws of the
State of Ohio or any other jurisdiction.
12.2 GOVERNING LAW. This Warrant shall be governed by the laws of the
State of Ohio without regard to choice of law provisions thereof.
12.3 ENTIRE AGREEMENT; AMENDMENT. This Warrant and the attachments
hereto together with the Software Services Agreement by and among the Company,
xxxxxxxxx.xxx, Inc. and RSC dated January 21, 2000, constitute the full and
entire agreement between the parties with respect to the subject matter hereof,
and supersede all prior oral and written agreements and understandings between
the parties. Except as expressly provided in this Warrant, neither this Warrant
nor any term hereof may be amended, waived, discharged or terminated other than
by a written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought.
12.4 NOTICES, ETC. All notices and other communications hereunder shall
be deemed given if given in writing and delivered by hand, prepaid express or
courier delivery service or by facsimile transmission confirmed electronically
or by voice or mailed by registered or certified mail (return receipt
requested), or postage fees prepaid, to the party to receive the same at the
respective addresses set forth below (or at such other address as may from time
to time be designated by such Party in accordance with this Section 12.4):
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If to XXX Stores Corporation :
XXX Stores Corporation
0000 Xxxxxxxx Xxxx
Xxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx Xxxxxxxxx, Vice President-Finance
With copies to:
Xxxxxxxxx, Xxxxxx & Xxxxx, P.L.L.
00 Xxxxxxxxxx Xxxxx, XX
Xxxxx 0000
Xxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
If to Zengine:
Zengine, Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx, President
With copies to:
Xxxxx, Xxxx, Xxxxxxx & Xxxxxxx L.L.P.
000 00xx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
All such notices and communications hereunder shall for all purposes of
this Warrant be treated as effective or having been given when delivered if
delivered personally, or, if sent by mail, at the earlier of its receipt or
seventy-two (72) hours after the same has been deposited in a regularly
maintained receptacle for the deposit of United States mail, addressed and
postage prepaid as
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aforesaid. For purposes of this Warrant, "Business Day" is any day that banks
are open for business in the State of Ohio.
12.5 EXPENSES. Each of the parties shall bear all legal, accounting and
other transaction expenses incurred by it in connection with the negotiation,
execution, delivery and performance of this Warrant.
12.6 COUNTERPARTS. This Warrant may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
12.7 SEVERABILITY. In the event that any provision of this Warrant
becomes or is declared by an arbitrator or a court of competent jurisdiction to
be illegal, unenforceable or void, this Warrant shall continue in full force and
effect without said provision; provided that such remainder shall be interpreted
by the parties so as best to reasonably affect the intent of the parties and to
maintain the economic benefit of this Warrant to all parties.
12.8 TITLES AND SUBTITLES. The titles and subtitles used in this
Warrant are used for convenience only and are not considered in construing or
interpreting this Warrant.
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IN WITNESS WHEREOF, the parties hereto have caused this Warrant to be
executed by their respective officers thereunto duly authorized.
HOLDER: XXX STORES CORPORATION ISSUER: ZENGINE, INC.
By: ____________________________ By: ______________________
Name: ____________________________ Name: _____________________
Title: ____________________________ Title: __________________
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NOTICE OF EXERCISE
To: ZENGINE, INC.
(1) The undersigned hereby (A) elects to purchase ______ shares of
Common Stock of Zengine, Inc., pursuant to the provisions of Section 3(a) of the
attached Warrant, and tenders herewith payment of the purchase price for such
shares in full, or (B) elects to exercise this Warrant for the purchase of
______ shares of Common Stock, pursuant to the provisions of Section 3(c) of the
attached Warrant.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of the Common Stock to be issued upon exercise
thereof are being acquired solely for the account of the undersigned and not as
a nominee for any other party, and for investment, and that the undersigned will
not offer, sell or otherwise dispose of any such shares of Common Stock except
under circumstances that will not result in a violation of the Securities Act of
1933, as amended, or any applicable state securities laws.
(3) Please issue a certificate or certificates representing said shares
of Common Stock in the name of the undersigned or in such other name as is
specified below:
(4) Please issue a new Warrant for the unexercised portion of the
attached Warrant, if any, in the name of the undersigned or in such other name
as is specified in the space following:
-------------------------------------------------------------------------------
----------------------------- -----------------------------
(Date) (Name)
------------------------------
(Signature)
------------------------------
(Address)
------------------------------
(Telephone No./Facsimile No.)
------------------------------
(Tax payer Identification No.)
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under the within Warrant, with respect to the number
of shares of Common Stock set forth below:
NAME OF ASSIGNEE ADDRESS TAXPAYER I.D. NO. NO. OF SHARES
--------------------------------------------------------------------------------
and does hereby irrevocably constitute and appoint ______________ Attorney to
make such transfer on the books of ZENGINE, INC., maintained for the purpose,
with full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the
Assignee has acknowledged to it in writing that this Warrant and the shares of
stock to be issued upon exercise hereof are being acquired for investment and
that the Assignee will not offer, sell or otherwise dispose of this Warrant or
any shares of stock to be issued upon exercise hereof except under circumstances
which will not result in a violation of the Securities Act of 1933, as amended,
or any state securities laws. Further, the Assignee has acknowledged that upon
exercise of this Warrant the Assignee shall, if requested by the Company,
confirm in writing, in a form satisfactory to the Company, that the shares of
stock so purchased are being acquired for investment and not with a view toward
distribution or resale.
XXX Stores Corporation
Dated: _________________________
Signature of Holder
Name: ______________________________
Title: _____________________________
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