EX-4.1
2
digitalpost_8k-ex0401.htm
FORM OF CONVERTIBLE NOTE AND WARRANT AGREEMENT
Exhibit
4.1
CONVERTIBLE
NOTE AND WARRANT PURCHASE AGREEMENT
This
Convertible Note and Warrant Purchase Agreement ("Agreement") is made and
entered into as of October __, 2007 (“Effective Date”) by and between
DigitalPost Interactive, Inc., a
Nevada corporation ("Company"), and [Name]
("Purchaser").
WHEREAS,
the
Company
desires
to sell to the Purchaser, and the Purchaser desires to purchase from
the
Company,
a 8%
convertible promissory note in the principal amount of $[Amount] (“Investment”)
in the form attached hereto as Exhibit
A
("Note")
with a conversion at any time during the Term by Purchaser into the common
stock
of the Company (“Common Stock”) at a fixed price of $0.40 per share (“Conversion
Price”), and a 24 month maturity (“Term”).
WHEREAS,
as an inducement for the Purchaser to enter into this Agreement, the Company
shall grant to the Purchaser on the date of this Agreement a warrant to purchase
[Amount] of shares of the Company's common stock (“Warrant Shares”, collectively
with the shares issued upon conversion of the Note: (“Shares”)), with [Amount]
warrant shares vesting on the Effective Date and the remaining [Amount] shares
vesting pro rata as the Note is converted to Common Stock; all Warrant Shares
have an exercise price of $0.50 (“Exercise Price”) and are exercisable for a
term of five years by cash exercise only. The form of warrant is attached hereto
as Exhibit
B
("Warrant").
NOW,
THEREFORE, in consideration of the foregoing recitals and the representations,
warranties, covenants and agreements set forth herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. PURCHASE
AND SALE OF
NOTES; GRANT OF WARRANTS.
(a)
Purchase and Sale of Note. Simultaneously with the execution and delivery of
this Agreement, the Purchaser shall deliver the Investment to the Company
against delivery of the Note to the Purchaser by the
Company.
(b)
Grant
of Warrants. On the date of this Agreement, the
Company
shall
grant to the Purchaser, and the Purchaser shall accept from the
Company,
the
Warrant.
2. CLOSING
DATE. The closing
of the purchase and sale of the Note shall take place at the offices of the
Company, or by electronic means, on the date of this Agreement.
3. REPRESENTATIONS
AND
WARRANTIES OF THE
COMPANY.
The
Company
hereby
represents and warrants to the Purchaser, as of the date hereof:
(a)
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
Nevada and has all corporate power and authority required to
(i)
carry on its business
as
currently conducted and as proposed to be conducted by the
Company
in its
Company Reports (as defined in Section 3(d)(iii) hereof) and (ii) enter into
this Agreement, the Note and the Warrant and consummate the transactions
contemplated hereby and thereby. Each of the
Company
and its
subsidiaries is qualified to do business
and is
in good standing in each jurisdiction in which the failure to so qualify would
have a Material Adverse Effect on the
Company.
As used
in this Agreement, "Material Adverse Effect" means a material adverse effect
on,
or a material adverse change in, or a series of events which, in the aggregate,
has a material adverse effect on or change in, the business,
financial condition, results of operations, assets or liabilities of the
applicable party and its subsidiaries, taken as a whole.
(b)
Capitalization. As of October __, 2007, the authorized capital stock of
the
Company
consisted of: (i) 72,000,000 shares of Common Stock, of which approximately
52,833,385 shares are issued and outstanding; (ii) 692,150 shares of Common
Stock previously subscribed and to be issued and (ii) 20,000,000 shares of
preferred stock, of which none are issued and outstanding. All of such shares
of
capital stock have been duly authorized for issuance, and all of such shares
which are issued and outstanding have been validly issued and are fully paid,
non-assessable and free
of any
liens or encumbrances other than any liens or encumbrances created by or imposed
upon the Purchasers thereof.
(c)
Due
Authorization. All corporate action on the part of the Company necessary for
the
authorization, execution and delivery of, and the performance of all obligations
of the
Company
under,
this Agreement, the Note and the Warrant has been taken, and this Agreement,
the
Note and the Warrant constitute valid and legally binding obligations of the
Company, enforceable against the
Company
in
accordance with their terms, except (i) as may be limited by (A) applicable
bankruptcy,
insolvency, reorganization or others laws of general application relating to
or
affecting the enforcement of creditors' rights generally and (B) the effects
of
rules of law governing the availability of equitable remedies and (ii) as rights
to indemnity or contribution may be limited under federal or state securities
laws or by principles of public policy thereunder.
(d)
SEC
Reports; Financial Statements. The
Company
has
previously furnished or made available to the Purchaser its reports as filed
with the Securities and Exchange Commission (the "SEC") since January 2007,
in
each case, as amended through the date hereof (collectively, the "Company
Reports").
(e)
Valid
Issuance of Stock.
(i)
Valid
Issuance. The Shares have been duly and validly reserved for issuance and,
upon
issuance, sale and delivery in accordance with the terms of the Warrant and
Note, as the case may be, will be duly and validly issued, fully paid,
non-assessable and free
of
preemptive rights binding on the
Company.
(ii)
Compliance with Securities Laws. The Note and Warrant will be issued to the
Purchaser in compliance with applicable exemptions from (A) the registration
and
prospectus delivery requirements of the Securities Act of 1933, as amended
(the
"Securities Act") and (B) the registration and qualification requirements of
all
applicable securities laws of the states of the United
States.
(f)
Non-Contravention. The execution, delivery and performance by the Company of
this Agreement, the Note and the Warrant, and the consummation by the
Company
of the
transactions contemplated hereby and thereby, do not: (i) contravene or conflict
with the Company's Certificate of Incorporation, as amended (the "Certificate"),
or the Company's By-Laws; (ii) constitute a violation of any provision of any
federal, state, local or foreign law or rule, regulation or requirement binding
upon or applicable to the
Company
or any
of its subsidiaries; (iii) constitute a violation of any rule, regulation or
requirement of the National Association of Securities Dealers, Inc. ("NASD");
or
(iv) constitute a default or require any consent under, give rise to any right
of termination, cancellation or acceleration of, or to a loss of any benefit
to
which the
Company
or any
of its subsidiaries is entitled under, or result in the creation or imposition
of any lien, claim or encumbrance on any assets of the
Company
or any
such subsidiary under, any contract to which the
Company
or such
subsidiary is a party or any permit, license or similar right relating to
the
Company
or such
subsidiary or by which the
Company
or such
subsidiary may be bound or affected, except any such default, consent, right
of
termination, cancellation or acceleration, loss or lien, claim or encumbrance
which, individually or in the aggregate, would not have a Material Adverse
Effect on the
Company.
(g)
Litigation. Except as disclosed in the
Company
Reports,
there is no action, suit, proceeding, claim, arbitration or investigation (each,
an "Action") pending or, to the Company's best knowledge, threatened: (i)
against the
Company
or any
of its subsidiaries, or any officer, director or employee of the
Company
or any
of its subsidiaries in connection with such officer's, director's or employee's
relationship with, or actions taken on behalf of, the Company or such
subsidiary; or (ii) against the
Company
or any
of its subsidiaries, or any officer, director or employee of the
Company
or any
of its subsidiaries that seeks to prevent, enjoin, alter or delay any of the
transactions contemplated by this Agreement.
(h)
Registration Rights. Except as provided in the Note and Warrant, the
Company
has not
granted or agreed to grant to Purchaser any rights to have any securities of
the
Company
registered with the SEC or registered or qualified with any other governmental
authority.
(i)
Brokers and Finders. The
Company
has
incurred the following brokerage or finders' fees or agents' commissions or
other similar payment in connection with this Agreement:
________________________________________
4. REPRESENTATIONS
AND
WARRANTIES OF THE PURCHASER. The Purchaser hereby represents and warrants to
the
Company,
as of
the date hereof, that:
(a)
Purchase for Own Account. The Shares will be acquired for investment for the
Purchaser's own account, not as a nominee or agent, and not with a view to
the
public resale or distribution thereof within the meaning of the Securities
Act,
and the Purchaser has no present intention of selling, granting any
participation in or otherwise distributing the same. The Purchaser has not
been
formed for the specific purpose of acquiring the Shares.
(b)
Investment Experience. The Purchaser understands that the acquisition of the
Shares involves substantial risk. The Purchaser has experience as an Purchaser
in securities of companies and acknowledges that it is able to fend for itself,
can bear the economic risk of its investment and has such knowledge and
experience in financial or business
matters
that it is capable of evaluating the merits and risks of its investment and
protecting its own interests in connection with this investment.
(c)
Accredited Purchaser Status. The Purchaser is an "accredited Purchaser" within
the meaning of Regulation D promulgated under the Securities Act.
(d)
Restricted Securities. The Purchaser understands that (i) the Shares are
characterized as "restricted securities" under the Securities Act, inasmuch
as
they are being acquired from the
Company
in a
transaction not involving a public offering and (ii) under the Securities Act
and applicable rules and regulations thereunder, such securities may be resold
without registration under the Securities Act only in certain limited
circumstances. The Purchaser is familiar with Rule 144 under the Securities
Act,
as presently in effect, and understands the resale limitations imposed thereby
and by the Securities Act.
5. ANTIDILUTION
PROVISIONS.
(a)
Reorganization, Reclassification or Recapitalization of the Company. In case
of
(i) a capital reorganization, reclassification or recapitalization of the Common
Stock (other than in the cases referred to in Section 2(c) hereof), (ii) the
Company's consolidation or merger with or into another corporation in which
the
Company is not the surviving entity, or a merger in which the Company is the
surviving entity but the shares of the Company's Common 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)
the sale or transfer of all or substantially all of the Company's assets, then,
as part of such reorganization, reclassification, recapitalization, merger,
consolidation, sale or transfer, lawful provision shall be made so that there
shall thereafter be deliverable upon the conversion of the Note or exercise
of
the Warrant or any portion thereof (in lieu of or in addition to the number
of
shares of Common Stock theretofore deliverable, as appropriate) and without
payment of any additional consideration, the number of shares of stock or other
securities of property to which the holder of the number of shares of Common
Stock which would otherwise have been deliverable upon the conversion of the
Note or exercise of the Warrant or any portion thereof at the time of such
reorganization, reclassification, recapitalization, consolidation, merger,
sale
or transfer would have been entitled to receive in such reorganization,
reclassification, recapitalization, consolidation, merger, sale or transfer.
This Section 2(a) shall apply to successive reorganizations, reclassifications,
recapitalizations, consolidations, mergers, sales and transfers and to the
stock
or securities of any other corporation that are at the time receivable upon
the
conversion of the Note or exercise of the Warrant or any portion thereof. If
the
per share consideration payable to the Purchaser for Shares in connection with
any transaction described in this Section 2(a) 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.
(b)
Splits and Combinations. If the Company at any time or from time to time after
the date of the Agreement subdivides any of its outstanding shares of Common
Stock into a greater number of shares, the Conversion Price and Exercise Price
in effect immediately prior to such subdivision shall be proportionately
reduced, and, conversely, if the outstanding shares of Common Stock are combined
into a smaller number of shares, the Conversion Price and Exercise Price in
effect immediately prior to such combination shall be proportionately
increased.
(c)
Reclassifications. If the Company reclassifies or otherwise changes any of
the
Shares into the same or a different number of securities of any other class
or
classes, the Shares shall thereafter be convertible into such number and kind
of
securities as would have been issuable as the result of such change with respect
to the Shares immediately prior to such reclassification or other change and
the
Conversion Price and Exercise Price therefore shall be appropriately
adjusted.
(d)
Liquidation; Dissolution. If the Company shall dissolve, liquidate or wind
up
its affairs, the Purchaser shall have the right, but not the obligation, to
convert the Note and exercise the Warrant effective as of the date of such
dissolution, liquidation or winding up.
(e)
Adjustment Certificates. Upon any adjustment of the Conversion Price and
Exercise Price or the number of Shares issuable upon exercise or conversion,
a
certificate, signed by (i) the Company's Chief Financial Officer or (ii) any
independent firm of certified public accountants of recognized national standing
the Company selects at its own expense, setting forth in reasonable detail
the
events requiring the adjustment and the method by which such adjustment was
calculated, shall be mailed to the Purchaser at the address set forth in Section
6 hereof and shall specify the adjusted Conversion Price and Exercise Price
and
the number of Shares issuable after giving effect to the
adjustment.
(f)
No
Impairment. The Company shall not, by amendment of its Certificate of
Incorporation or through any reorganization, recapitalization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or
any
other 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
shall
at all times in good faith assist in the carrying out of all provisions of
this
Section 2 and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Purchaser against impairment.
(g)
Future Securities Sales. For a period of 12 months after the Effective Date,
if
the Company sells Common Stock at a price per share below the Conversion Price,
the Conversion Price will adjust accordingly downward to the new lower sale
price.
(h)
Application. Except as otherwise provided herein, all subsections of this
Section 2 are intended to operate independently of one another. If an event
occurs that requires the application of more than one subsection, all applicable
subsections shall be given independent effect.
6. MISCELLANEOUS.
(a)
Legends. Unless registered with the SEC, any certificates for the Shares will
bear a legend in substantially the following form:
"The
shares represented hereby have not been registered under the Securities Act
of
1933, as amended, and may not be transferred or otherwise disposed of unless
they have been registered under such Act or pursuant to an exemption from
registration under such Act."
Furthermore,
the
Company
shall
place on each Share certificate any legend required by applicable state
securities laws. In addition, the Purchaser agrees that the
Company
may
place stop transfer orders with its transfer agent with respect to such
certificates. The legend set forth above shall be removed by the
Company
from any
certificate evidencing the Shares upon delivery to the
Company
of an
opinion by counsel, reasonably satisfactory to the
Company,
that a
registration statement under the Securities Act is at that time in effect with
respect to the legended security or that such security can be freely transferred
in a public sale without such a registration statement being in effect and
that
such transfer will not jeopardize the exemption or exemptions from registration
pursuant to which the
Company
issued
the Shares.
(b)
Governing Law. This Agreement shall be governed by and construed under the
internal laws of the State of
Nevada, without reference to principles of
conflict of laws or choice of laws.
(c)
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.
(d)
Amendments and Waivers. This Agreement may be amended and the observance of
any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of the
Company
and the
Purchaser.
(e)
Severability. If any provision of this Agreement is held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement
and
the balance of the Agreement shall be interpreted as if such provision were
so
excluded and shall be enforceable in accordance with its terms.
(f)
Entire Agreement. This Agreement, together with all exhibits and schedules
hereto, constitutes the entire agreement and understanding of the parties with
respect to the subject matter hereof and supersedes any and all prior
negotiations, correspondence, agreements, understandings, duties or obligations
between the parties with respect to the subject matter hereof.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
and year first above written.
DigitalPost
Interactive, Inc.
/s/ Xxxxxxx
Xxxxxxx
Xxxxxxx
Xxxxxxx
Chief
Executive Officer
PURCHASER
_________________________ ________________________________
Name:
Social
Security No./Tax ID No.: _________________________
Address:
______________________________________________________________________
Fax
No.
______________________________
EXHIBIT
A
CONVERTIBLE PROMISSORY
NOTE
DigitalPost
Interactive, Inc.
8.0%
Convertible Promissory Note
Maturity
Date: October __, 2009
THIS
CONVETIBLE PROMISSORY NOTE AND ANY SECURITIES ISSUABLE UPON THE CONVERSION
OF
THIS CONVETIBLE PROMISSORY NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF
UNLESS THEY HAVE BEEN REGISTERED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION
FROM
REGISTRATION UNDER SUCH ACT.
This
Note
is being delivered pursuant to that certain
Convertible Note and Warrant
Purchase Agreement, dated as of October __, 2007, between the Purchaser and
the
Company (the "Agreement"). All capitalized terms used but not otherwise defined
herein shall have the meaning ascribed to such terms in the
Agreement.
FOR
VALUE
RECEIVED, the Company hereby promises to pay to Purchaser, the Investment of
the
Investment, or such lesser amount as may then be outstanding, together with
accrued but unpaid interest thereon, on October __, 2009 ("Maturity Date").
Interest on the outstanding Investment shall be at a rate of 8.0% per annum
("Interest"). If all or a portion of the Investment and/or Interest shall not
be
paid when due at maturity, the Company hereby promises to pay, on demand,
interest on such overdue amount from and including the due date to, but
excluding, the date such amount is paid in full at 11% per annum (and until
the
date such overdue amount is paid in full, "Interest" on such overdue amount
shall mean interest at such rate).
1. Conversion.
Subject
to the terms herein, Purchaser has the right at any time prior to the Maturity
Date to convert the Investment, in part or in full, or such lesser amount as
may
then be outstanding, together with accrued but unpaid Interest thereon, into
shares of restricted Common Stock of the Company by surrendering this Note
to
the
Company,
together with an executed Notice of Conversion substantially in the form
attached hereto as Exhibit
3.
Upon
receipt of such Notice of Conversion, the Company shall deliver to the Purchaser
within a reasonable time, without payment by the Purchaser of any cash
or other
consideration, that number of shares of Common Stock computed using the
following formula:
X
=
Y/B
Where:
X = the number of shares of Common Stock to be issued to the
Purchaser
Y = Investment or such lesser amount as may then be outstanding, together with
accrued but unpaid Interest thereon - or such part of the Investment being
converted.
B = $0.40.
2. Payment.
(a)
Payment of the Investment and any accrued Interest on the Maturity Date shall
be
made by certified or bank cashier's check
payable
to the Purchaser,
or by
bank wire transfer, in immediately available funds, to the account so specified,
in lawful money
of the
United States of America. If the Maturity Date occurs on a date that is not
a
Business
Day then
the Investment or Interest then due shall be paid on the next succeeding
Business
Day.
"Business
Day"
shall mean any day other than Saturday, Sunday or any day upon which banks
are
authorized or required to be closed.
(b)
Prepayment. The Company may prepay and the holder may request prepayment of
this
Note at any time subsequent to the Company receiving investment financing of
a
minimum of $4 million USD, without premium or penalty, in whole or in part,
with
accrued interest to the date of such payment on the amount prepaid. Prior to
utilizing this prepayment option, the Company must give Purchaser 10 days
written notice in order for Purchaser to have the option to convert the Note
prior to prepayment. All Warrant Shares will “accelerate” and fully vest upon
full Prepayment of the Note.
(c)
Interest. Interest shall be paid to the Purchaser in cash, or in stock pursuant
to Section 2(d) below, on a quarterly basis (with the first quarter ending
on
December 31, 2007) for the term of the Note.
(d)
Stock
Payment for Interest. At the Company’s option, the Interest may be paid in
restricted Common Stock at a valuation per share of 50% of the average of the
closing prices of DGLP.OB, as reported on the OTCBB, for the five (5) trading
days prior to each Interest due date (quarter end). Any stock issued pursuant
to
this Section will have the piggyback registration rights according to Section
4
herein.
3. Default
and
Remedies.
(a)
If
any of the following events or conditions (each an "Event of Default") shall
occur and be continuing:
(i)
The
Company shall fail to pay the Investment and any Interest due (or any lesser
amount due) 30 days subsequent to the Maturity Date;
(ii)
an
involuntary proceeding shall be commenced or an involuntary petition shall
be
filed in a court of competent jurisdiction seeking (A) relief in respect of
the
Company, or of a substantial part of the property or assets of the Company,
under Title 11 of the United
States
Code, as
now constituted or hereafter amended, or any successor to or replacement of
such
statute, or any other Federal or state bankruptcy,
insolvency, receivership or similar law, (B) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Company or for a substantial part of the properties or assets of the Company
or
(C) the winding-up, liquidation or dissolution of the Company; and such
proceeding or petition shall continue undismissed for 90 days or an order or
decree approving or ordering any of the foregoing shall be entered;
or
(iii)
the
Company (A) voluntarily commences any proceeding or files any petition seeking
relief under Title 11 of the United
States
Code, as
now constituted or hereafter amended, or any successor to or replacement of
such
statute, or any other Federal or state bankruptcy,
insolvency, receivership or similar law, (B) consents to, or fails to contest
in
a timely and appropriate manner, the commencement against of any proceeding
or
the filing of any petition described in clause (v) above, (C) applies for or
consents to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or for a substantial part of
the
properties or assets of the Company, (D) files an answer admitting the material
allegations of a petition filed against it in any such proceeding, (E) makes
a
general assignment for the benefit of creditors, (F) becomes unable, admits
in
writing its inability or fails generally to pay its debts as they become due
or
(G) takes any action for the purpose of effecting any of the foregoing; then,
(x) in the case of an Event of Default specified in clause (a)(i), (ii), or
(iii) above, the Purchaser
may, at
any time during the continuance of such Event of Default, by written notice
to
the Company, declare the entire outstanding Investment, together with all
accrued and unpaid Interest, to be due and payable and (y) in the case of an
Event of Default specified in clauses (a)(iv) or (v) above, the entire
outstanding Investment, together with all accrued and unpaid Interest, shall
automatically forthwith become due and payable without presentment, protest
or
notice of any kind, all of which are hereby expressly waived by the
Company.
(iv)
The
Company shall fail to pay any quarterly Interest due 30 days subsequent to
the
due date (quarter end).
(b)
Subject to the other terms of this Note, if an Event of Default occurs and
is
continuing, the Purchaser
may
pursue any available remedy to collect the payment of the Investment or Interest
or to enforce the performance of any provision of this Note. If an Event of
Default occurs and is continuing, the Purchaser
may
proceed to protect and enforce its rights by any action at law, suit in equity
or other appropriate proceeding. In the case of a default in the payment of
the
Investment or Interest, the Company will pay to the Purchaser
such
further amount as shall be sufficient to cover the costs and expenses of
collection, including, without limitation, reasonable attorneys' fees, expenses
and disbursements.
(c)
Default Interest. If an Event of Default occurs, the Interest will increase
to
12% per annum subsequent to the date of Event of Default.
(d)
Default Note Conversion Price and Warrant Exercise Price. If an Event of Default
occurs under Section 3(a)(iv) above only, the Note Conversion Price and the
Warrant Exercise Price will be lowered to $0.25 per Share.
(e)
Security Interest. Upon the occurrence of an uncured Event of Default, Purchaser
shall have the right to an unsubordinated senior security interest in all of
the
Company’s assets. Purchaser agrees that this security interest may become
subordinated to future investors of the Company that have individually or
collectively as a class of security invested at least four (4) million dollars
after the signing date of this agreement.
4. Piggy-Back
Registration Rights. If the Company shall file a registration statement with
the
SEC (“Company Registration”), except for a Company Registration on Form S-4 or
S-8, subsequent to the Effective Date, the Company shall include the Shares
underlying the Note (“Registrable Shares”). The Company shall use its reasonable
efforts to cause all Registrable Shares attributable to the Purchaser to be
included in the Company Registration and any related offering, all to the extent
requisite to permit the sale by the Purchaser of such Registrable Shares in
accordance with the method of sale applicable to the other shares of Common
Stock included in the Company Registration.
5. Notices
All
notices, instructions and other communications given hereunder or in
connection herewith shall be in writing. Any such notice, instruction or
communication shall be sent to:
| If to the Company to: |
Digital
Post Interactive, Inc.
|
| | 0000 Xx Xxxxxx Xxxx, Xxxxx
000 |
| | Xxxxxx, XX 00000 |
| | Attention: Chief Executive
Officer |
| | Facsimile: (000) 000-0000 |
| | |
| If to the Purchaser
to: |
As
written on signatory page of the
Agreement
|
6. Miscellaneous.
This
Note
shall be construed and enforced in accordance with the laws of the State of
Nevada, without regard to its conflicts of laws rules. The Company waives
presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default and enforcement
of this Note. The Company hereby irrevocably and unconditionally submits, for
itself and its property, to the non-exclusive jurisdiction of the courts of
the
State of California and of the United
States
District
Court for the Central District of California, and any appellate court of such
courts, in any action or proceeding arising out of or relating to this Note,
or
for recognition or enforcement of any judgment, and the Company hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such California court (or,
to the extent permitted by law, in such federal court). The Company agrees
that
a final, unappealable judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or
in any other manner provided by law. Nothing in this Note shall affect any
right
that the Purchaser
may
otherwise have to bring any action or proceeding relating to this Note against
the Company or its properties in the courts of any jurisdiction.
If
any
provision of this Note shall be held invalid or unenforceable by any court
of
competent jurisdiction, that holding shall not invalidate or render
unenforceable any other provision hereof.
This
Note
may not be changed, amended or modified except by agreement in writing signed
by
the Company and the Purchaser.
IN
WITNESS WHEREOF, the Company has caused this Note to be signed on its behalf,
in
its corporate name, by its duly authorized officer as an instrument under seal,
as of October __, 2007.
| |
DigitalPost
Interactive, Inc.
/s/ Xxxxxxx
Xxxxxxx
Xxxxxxx
Xxxxxxx
Chief
Executive Officer
|
EXHIBIT
B
DIGITALPOST
INTERACTIVE, INC.
COMMON
STOCK WARRANT
THIS
COMMON STOCK WARRANT AND ANY SECURITIES ISSUABLE UPON THE EXERCISE OF THIS
COMMON STOCK WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY
HAVE
BEEN REGISTERED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT.
Issued:
October __, 0000
Xxxxxxx
to Purchase [Amount] Shares of Common Stock
Expiration
Date: October __, 2012
DigitalPost
Interactive, Inc. ("Company"), hereby certifies that, for value received, [Name]
(“Purchaser”) is entitled, on the terms set forth below, to purchase from the
Company at any time until 5:00 p.m., PCT, on the Expiration Date [Amount] fully
paid and nonassessable shares of the Common Stock of the
Company,
at a
price per share of $0.50 ("Purchase Price" - subject to Section 3(d) of the
Note).
This
Warrant is being issued pursuant to the Convertible Note and Warrant Agreement
dated October __, 2007 between the
Company
and
Purchaser (the "Agreement"). All capitalized terms used but not otherwise
defined herein shall have the meaning ascribed to such terms in the
Agreement.
1. Vesting;
Exercise of Warrant; Transfer of Warrant.
(a)
Vesting. The Warrant Shares vest as follows and constitute Vested Shares:
[Amount] Warrant Shares vesting on the Effective Date and the remaining [Amount]
Warrant Shares vest pro rata as the Note is converted to Common Stock or
matures. All Warrant Shares will “accelerate” and fully vest upon full
Prepayment of the Note (Section 2(b) of the Note).
(b)
Exercise of Warrant. At any time prior to 5:00 p.m. on the Expiration Date,
the
Vested Shares may be exercised by the Purchaser, in whole or in part, upon
surrender of this Warrant to the
Company,
together with an executed Notice of Exercise, substantially in the form attached
hereto as Exhibit
1,
at the
Company's primary executive office, with payment by check
to
the
Company
of the
amount obtained by multiplying the number of shares of Common Stock with respect
to which this Warrant is being exercised by the Purchase Price.
(c)
Partial Exercise. Upon any partial exercise or conversion, the Company will
issue to the Purchaser a new Warrant for the number of Warrant Shares as to
which this Warrant was not exercised or converted on the same terms
herein.
(d)
Fractional Shares. No fractional shares of Common Stock shall be issued upon
any
exercise or conversion of this Warrant. Instead of any fractional share which
would otherwise be issuable upon exercise or conversion, the
Company
shall
pay a cash
amount
in respect of each fractional share at a price equal to an amount calculated
by
multiplying such fractional share (calculated to the nearest 1/100th of a share)
by the Fair Market Value of a share of Common Stock on the date of exercise
or
conversion, as applicable, minus the Purchase Price. Payment of such amount
shall be made in cash
or by
check
payable
to the order of the Purchaser at the time of delivery of any certificate or
certificates arising upon such exercise or conversion.
(e)
Taxes. The
Company
will not
be required to pay any tax
imposed
in connection with any transfer involved in the issuance of a Warrant or a
certificate for shares of Common Stock in any name other than that of the
Purchaser hereof, and in such case, the
Company
will not
be required to issue or deliver any stock certificate or Warrant until such
tax
is
paid.
(f)
Transfer of Warrant. Transfer of this Warrant to a third party shall be effected
by execution and delivery of the Notice of Assignment attached hereto as
Exhibit
2
and
surrender of this Warrant for registration of transfer of this Warrant at the
primary executive office of the
Company,
together with funds sufficient to pay any applicable transfer tax.
Upon
receipt of the duly executed Notice of Assignment and the necessary transfer
tax
funds,
if any, the Company, at its expense, shall execute and deliver, in the name
of
the designated transferee or transferees, one or more new Warrants representing
the right to purchase a like aggregate number of shares of Common
Stock.
2. Piggy-Back
Registration Rights. If the Company shall file a registration statement with
the
SEC (“Company Registration”), except for a Company Registration on Form S-4 or
S-8, subsequent to the Effective Date, the Company shall include the Shares
underlying the Warrant (“Registrable Shares”). The Company shall use its
reasonable efforts to cause all Registrable Shares attributable to the Purchaser
to be included in the Company Registration and any related offering, all to
the
extent requisite to permit the sale by the Purchaser of such Registrable Shares
in accordance with the method of sale applicable to the other shares of Common
Stock included in the Company Registration.
3. INTENTIONALLY
LEFT BLANK
4. Notices
of
Record Date. In case (a) the
Company
takes a
record of the Purchasers of the Common Stock 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; (b) 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 (c) of any voluntary
dissolution, liquidation or winding-up of the
Company;
then,
in each such case, the
Company
will
mail or cause to be mailed to each Purchaser of a Warrant at the time
outstanding a notice specifying, as the case may be, (i) 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
(ii) the date on which such reorganization, reclassification, consolidation,
merger,
conveyance, dissolution, liquidation or winding-up is to take place, and time,
if any is to be fixed, as of which the Purchasers of record of Common Stock
(or
such other stock or securities at the time receivable upon the exercise or
conversion of the Warrant) will be entitled to exchange their shares of Common
Stock (or such other stock or securities) for securities or other property
deliverable upon such reorganization, reclassification, consolidation,
merger,
conveyance, dissolution, liquidation or winding-up, and, in the case of a
reorganization, consolidation,
merger
or conveyance, the fair market value of such securities or other property as
determined by the Board. Such notice shall be mailed at least ten days prior
to
the date specified therein.
5. Replacement
of Warrant. Upon 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) upon delivery of an indemnity agreement in such reasonable
amount as the Company may determine, or (in the case of mutilation) upon
surrender and cancellation thereof, the
Company
at its
expense, will issue a replacement.
6. Transferability
of
Warrant; No Redemption. This Warrant and all rights hereunder are freely
transferable by the Purchaser, subject to compliance with applicable state
and
federal securities laws. This Warrant shall not be redeemable by the
Company,
in
whole or in part, at any time.
7. Notices.
All
notices, instructions and other communications given hereunder or in connection
herewith shall be sent to:
| If to the Company to: |
Digital
Post Interactive, Inc.
|
| | 0000 Xx Xxxxxx Xxxx, Xxxxx
000 |
| | Xxxxxx, XX 00000 |
| | Attention: Chief Executive
Officer |
| | Facsimile: (000) 000-0000 |
| | |
| If to the Purchaser
to: |
As
written on signatory page of the
Agreement
|
8. Change;
Waiver. This Warrant except by agreement may not be changed, amended or modified
in writing signed by the
Company
and the
Purchaser.
9. No
Rights as
Purchaser. This Warrant does not entitle the Purchaser to any voting rights
or
other rights as a Purchaser of the
Company
prior to
the exercise of this Warrant.
10. Headings.
The
headings in this Warrant are for purposes of reference only and shall not be
deemed to constitute a part hereof.
11. Governing
Law. This
Warrant shall be construed in accordance with and governed by the laws of
Nevada
without regard to its conflicts of laws rules.
Dated:
October __ , 2007
| |
DigitalPost
Interactive, Inc.
/s/ Xxxxxxx
Xxxxxxx
Xxxxxxx
Xxxxxxx
Chief
Executive Officer
|
EXHIBIT
1
NOTICE
OF EXERCISE OF WARRANT
TO:
DigitalPost Interactive, Inc.
1. The
undersigned hereby
elects to receive __________ shares of Common Stock of DigitalPost Interactive,
Inc., pursuant to the terms of the attached Warrant.
2. Exercise.
The undersigned
tenders herewith payment in full for the purchase price of the shares being
purchased, together with all applicable transfer taxes, if any.
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:
_________________________________
(Name)
_________________________________
_________________________________
(Address)
4. The
undersigned
represents that the aforesaid shares of Common Stock are being acquired for
the
account of the undersigned for investment and not with a view to, or for resale
in connection with, the distribution thereof and that the undersigned has no
present intention of distributing or reselling such shares.
All
capitalized terms used but not otherwise defined herein shall have the meaning
ascribed to such terms in the Warrant.
_________________________________
Name
of
Purchaser
_________________________________
Signature
of
Authorized Signatory
_________________________________
Print
Name and
Title
_________________________________
Date
EXHIBIT
2
WARRANT
ASSIGNMENT FORM
(To
be
executed only upon the assignment of the within Warrant)
FOR
VALUE
RECEIVED, the undersigned registered Purchaser of the within Warrant hereby
sells, assigns and transfers unto _____________________, whose address is
___________________ all of the rights of the undersigned under the within
Warrant, with respect to shares of Common Stock (as defined within the Warrant)
of DigitalPost Interactive, Inc., and, if such shares of Common Stock shall
not
include all the shares of Common Stock issuable as provided in the within
Warrant, that a new Warrant of like tenor for the number of shares of Common
Stock not being transferred hereunder be issued in the name of and delivered
to
the undersigned, and does hereby irrevocably constitute and appoint
_________________ attorney to register such transfer on the books
of
DigitalPost Interactive, Inc. maintained for that purpose, with full power
of
substitution in the premises.
Dated:_____________
By:________________________________
(Signature
of Registered Purchaser)
Title:_____________________________
| NOTICE: | The signature to this Notice of Assignment
must correspond with
the name upon the face of the within Warrant in every particular,
without alteration or enlargement or any change
whatever. |
EXHIBIT
3
NOTICE
OF CONVERSION OF NOTE
TO:
DigitalPost Interactive, Inc.
1. The
undersigned hereby
elects to receive __________ shares of Common Stock of DigitalPost Interactive,
Inc., pursuant to the terms of the attached Note.
2. Conversion.
The
undersigned elects to convert the attached Note with Interest by means of the
conversion provision of Section 1 of the Note and tenders herewith payment
in
full for all applicable transfer taxes, if any.
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:
_________________________________
(Name)
_________________________________
_________________________________
(Address)
4. The
undersigned
represents that the aforesaid shares of Common Stock are being acquired for
the
account of the undersigned for investment and not with a view to, or for resale
in connection with, the distribution thereof and that the undersigned has no
present intention of distributing or reselling such shares.
All
capitalized terms used but not otherwise defined herein shall have the meaning
ascribed to such terms in the Note.
_________________________________
Name
of
Purchaser
_________________________________
Signature
of
Authorized Signatory
_________________________________
Print
Name and
Title
_________________________________
Date
