Exhibit 9.2
NOTE AND WARRANT PURCHASE AGREEMENT
THIS NOTE AND WARRANT PURCHASE AGREEMENT (this "Agreement") is made as
of the 12th day of November, 2002 (the "Effective Date") by and among PARK CITY
GROUP. INC. a Nevada corporation (the "Company"), and A (the "Purchaser").
In consideration of the mutual covenants and agreements herein
contained, the parties hereto hereby agree as follows:
1. AMOUNT AND TERMS OF THE LOAN
1.1. The Loan. Subject to the terms of this Agreement, the
Purchaser agrees to purchase, for $30,000 (the "Loan Amount"),
and the return to the Company of its note in favor of the
Purchaser, dated August 16, 2002, having a face amount of
$________________ (the "Original Convertible Promissory
Note"), a new note from the Company having a face value equal
to $ B plus accrued interest under the Original Convertible
Promissory Note as of date hereof (the "Principal Amount") and
shall receive, upon the purchasing of such note and in
consideration therefor:
1.1.1. A promissory note in substantially the form attached
hereto as Exhibit A (the "Note").
1.1.2. A warrant (the "Warrant") to purchase C shares (the
"Warrant Share Number") of common stock, par value
$.01 per share, of the Company (the "PCG Common
Stock"). The Warrant shall be in substantially the
form attached hereto as Exhibit B.
1.1.3. Value of Note and Warrant. The Company and the
Purchaser, having adverse interests and as a result
of arm's length bargaining, agree that Neither the
Purchaser nor any affiliated company has rendered any
services to the Company in connection with this
Agreement. The aggregate fair market value of the
Note, if issued apart from the Warrant is D , and the
aggregate fair market value of the Warrant, if issued
apart from the Note is E .
2. THE CLOSING
2.1. Closing Date. The closing of the purchase and sale of the Note
and the Warrant (the "Closing") shall be held on the Effective
Date, or at such other time as the Company and the Purchaser
shall agree (the "Closing Date").
2.2. Delivery. At the Closing (i) the Purchaser will deliver to the
Company, (a) a check or wire transfer of funds in the amount
of the Loan Amount, (b) the original Convertible Promissory
Note and (c) the original Warrant to Purchase Common Stock;
and (ii) the Company shall issue and deliver to the Purchaser
(a) a Note in favor of the Purchaser payable in the principal
amount of the Principal Amount, (b) a Warrant issued in the
name of Purchaser and exercisable for the Warrant Share Number
of shares of Fields Common Stock and (c) a second warrant, to
replace the warrant delivered by Purchaser pursuant to
provision 2.2.(c)above, identical in all respects except that
the exercise price is $0.04 per share.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as follows:
3.1. Corporate Power. The Company has, and will have at the Closing
Date, all requisite corporate power to execute and deliver
this Agreement and to carry out and perform its obligations
under the terms of this Agreement.
3.2. Authorization. All corporate action on the part of the
Company, its directors and its stockholders necessary for the
authorization, execution, delivery and performance of this
Agreement by the Company and the performance of the Company's
obligations hereunder, has been taken.
3.3. Offering. Assuming the accuracy of the representations and
warranties of the Purchaser contained in Section 4 hereof, the
offer, issue, and sale of the Notes and Warrants are and will
be exempt from the registration and prospectus delivery
requirements of the Securities Act of 1933, as amended (the
"1933 Act"), and have been registered or qualified (or are
exempt from registration and qualification) under the
registration, permit, or qualification requirements of all
applicable state securities laws.
3.4. Financial Statements. The Company has previously made
available to the Purchaser, or indicated the online location
of, a copy of its audited financial statements (i) as of and
for the fiscal year ended December 31, 2000 and 1999 certified
by Xxxxxxxx, Xxxxx & Co. the "Audited 2000 Financials", and
(ii) as of and for the six months ended June 30, 2001 (the
Audited 2001 Financials") certified by Xxxxxx & Co., and with
true and complete copies of each registration statement and
proxy statement (including supplements and amendments thereto)
filed by the Company with the Securities and Exchange
Commission (the "SEC") since June 30, 2001 and of the
following reports filed by the Company with the SEC: the
Company's Annual Reports on Form 10-K[SB] for each of the two
fiscal years in the periods ended December 31, 1999, and 2000,
and the six months ending June 30, 2001, and all Quarterly
Reports on Form 10-QSB and all Current Reports on Form 8-K
filed after June 30, 2001 (the "SEC Filings"). The Company
Financial Statements and the audited year-end and unaudited
interim financial statements and schedules contained in the
SEC Filings (or incorporated therein by reference) were
prepared in accordance with the books and records of the
Company in all material respects and were prepared in
accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods involved,
except as otherwise noted therein and except that the
unaudited interim financial statements were or are subject to
normal year-end and audit adjustments that in the aggregate
are not material. Each of the financial statements referred to
above fairly presents the financial position of the Company as
of the respective dates set forth therein or the results of
operations and changes in financial position of the Company
for the respective fiscal periods or as of the respective
dates set forth therein, except that the unaudited interim
financial statements were or are subject to normal year-end
and audit adjustments that in the aggregate are not material.
Each such registration statement, proxy statement and SEC
Filing did not, on the date of effectiveness in the case of
such registration statements, on the date of mailing and on
the date of any stockholder meetings in the case of such proxy
statements and on the date of filing in the case of such SEC
Filings, contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Each
SEC filing, as of the date of its filing, complied as to form
with the requirements of the Securities Exchange Act of 1934,
as amended.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Company as follows:
4.1. Purchase for Own Account. The Purchaser is acquiring the Note, the
equity securities into which the Note may be converted, the Warrant and
the Fields Common Stock issuable upon exercise of the Warrant
(collectively, the "Securities") solely for its own account and
beneficial interest for investment and not for sale or with a view to
distribution of the Securities or any part thereof, has no present
intention of selling (in connection with a distribution or otherwise),
granting any participation in, or otherwise distributing the same, and
does not presently have reason to anticipate a change in such
intention. The Purchaser understands that the Securities have not been
registered under the 1933 Act and applicable state securities laws and,
therefore, cannot be resold unless they are subsequently registered
under the 1933 Act and applicable state securities laws or unless an
exemption from such registration is available. The Purchaser further
understands and agrees that, until so registered or transferred
pursuant to the provisions of Rule 144 under the Securities Act, such
securities shall bear a legend, prominently stamped or printed thereon,
reading substantially as follows:
"These securities have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or
applicable state securities laws. These securities have been
acquired for investment and not with a view to their
distribution or resale, and may not be sold, pledged, or
otherwise transferred without an effective registration
statement for such securities under the Securities Act and
applicable state securities laws, or an opinion of counsel
satisfactory to the Corporation to the effect that such
registration is not required."
Such legend shall be removed when such securities may be sold pursuant
to Rule 144(k).
4.2. Information and Sophistication. The Purchaser acknowledges
that it has made inquiry concerning the Company, its business,
operations, financial condition and its personnel and received
all the information it has requested from the Company that it
considers necessary or appropriate for deciding whether to
acquire the Securities. The officers of the Company have made
available to the Purchaser any and all written information
which the Purchaser has requested and have answered to the
Purchaser's satisfaction all inquiries made by the Purchaser.
The Purchaser represents that it has had an opportunity to ask
questions and receive answers from the Company regarding the
terms and conditions of the offering of the Securities and to
obtain any additional information necessary to verify the
accuracy of the information given the Purchaser. The Purchaser
further represents that it has such knowledge and experience
in financial and business matters that it is capable of
evaluating the merits and risk of this investment and that the
Purchaser has the capacity to protect its own interests in
connection with the purchase of the Securities by reason of
the Purchaser's business or financial experience.
4.3. Ability to Bear Economic Risk. The Purchaser acknowledges that
investment in the Securities involves a high degree of risk,
and represents that it is able, without materially impairing
its financial condition, to hold the Securities for an
indefinite period of time and to suffer a complete loss of its
investment.
4.4. Risk. The Company's operations are subject to all of the risks
inherent in any early-stage business enterprise and the
likelihood of the success of the Company must be evaluated in
light of various factors, including the need for additional
capital to fund the Company's activities, working capital
deficits, competition with established and well-financed
entities, the need for further refinements of the Company's
products and services, changes in technology, reliance on key
personnel, changes in markets generally for the Company's
products and services, and changes and uncertainties in the
securities markets. There can be no assurance that the Company
will be able to generate sufficient revenues to support its
operations and/or achieve profitable results.
4.5. Accredited Investor Status. The Purchaser is an "accredited
investor" as such term is defined in Rule 501 under the
Securities Act.
4.6. Further Assurances. The Purchaser agrees and covenants that at
any time and from time to time it will promptly execute and
deliver to the Company such further instruments and documents
and take such further action as the Company may reasonably
require in order to carry out the full intent and purpose of
this Agreement.
5. MISCELLANEOUS
5.1. Binding Agreement. 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 third party any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
5.2. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Utah as applied to
agreements among Utah residents, made and to be performed
entirely within the State of Utah.
5.3. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
5.4. 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.
5.5. Notices. Any notice required or permitted under this Agreement
shall be given in writing and shall be deemed effectively
given upon personal delivery or upon deposit with the United
States Post Office, postage prepaid, addressed to the Company
000 Xxxx Xxxxxx Xxxxx #000; X.X. Xxx 0000; Xxxx Xxxx, XX
00000, or to the Purchaser at fill in , or at such other
address as such party may designate by ten (10) days advance
written notice to the other party.
5.6. Modification; Waiver. No modification or waiver of any
provision of this Agreement or consent to departure therefrom
shall be effective unless in writing and approved by the
Company and the Purchaser.
5.7 Entire Agreement. This Agreement and the Exhibits hereto
constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and no
party shall be liable or bound to any other in any manner by
any representations, warranties, covenants and agreements
except as specifically set forth herein.
5.8 Purchaser's Expenses. The Company will pay Purchaser's
reasonable out-of-pocket expenses associated with this Loan,
including, but not limited to, expenses of counsel; provided,
however, that all Purchasers work with the Company's financial
advisor and such advisor's counsel in such efforts.
IN WITNESS WHEREOF, the parties have executed this NOTE AND WARRANT PURCHASE
AGREEMENT as of the date first written above.
COMPANY:
PARK CITY GROUP INC.
By:_________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer,
President
PURCHASER:
NAME - fill in
By: ________________________________
Name:
Title: An Individual
