EXHIBIT 4.2.82
--------------
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement") is made as of June 4,
2004 between Salon Media Group, Inc., a Delaware corporation (the "Company"),
and each of the signatories hereto (each, the "Purchaser"). The parties hereby
agree as follows:
RECITAL
-------
On the terms and subject to the conditions set forth herein, Purchaser is
willing to purchase from the Company, and the Company is willing to sell to
Purchaser, the number shares of the Company's Series D-1 Preferred Stock, Series
D-2 Preferred Stock, Series D-3 Preferred Stock, Series D-4 Preferred Stock and
Series D-5 Preferred Stock (collectively, the "Shares"), and a warrant
substantially in the form attached hereto as Exhibit A (the "Warrant") to
purchase the number of shares of the Company's Common Stock (the "Warrant
Shares"), set forth opposite Purchaser's name on Schedule A hereto.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the foregoing, and the representations,
warranties, and conditions set forth below, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Sale and Issuance of the Shares; Consideration. Subject to the terms and
conditions hereof, at the Closing (as defined below), the Company will issue and
sell to the Purchaser and the Purchaser will purchase from the Company the
Shares at a purchase price of $1,200 per share (the "Purchase Price") and, for
no additional consideration, the Warrant. In consideration for the Shares and
Warrant, the Purchaser at the Closing will pay the appropriate purchase price by
delivery of a check, payable to the order of the Company, or by wire transfer at
such Closing.
The Purchaser shall not sell or transfer any of the Shares, Warrant or
Warrant Shares (collectively, the "Securities") other than to an affiliate of
Purchaser prior to the first anniversary of the Closing Date. Any such affiliate
shall be subject to such restriction on transfer. For the purposes of this
Agreement, an "affiliate" shall mean any partner, limited partner or member of
Purchaser or any person or entity that directly or indirectly through one or
more intermediaries controls or is controlled by or is under common control with
Purchaser.
2. Agreement of the Company and Purchaser. The Company and the Purchaser,
having adverse interests and as a result of arm's length bargaining, agree that:
(1) Neither the Purchaser nor any affiliated company has rendered any
services to the Company in connection with this Agreement;
(2) The Warrant is not being issued as compensation;
1
(3) The aggregate fair market value of the Shares, if issued apart
from the Warrant and the aggregate fair market value of the Warrant, if issued
apart from the Shares, are set forth herein; and
(4) All tax returns and other information returns of each party
relative to this Agreement and Warrant issued pursuant hereto shall consistently
reflect the matters agreed to in (1) through (3) above.
3. Closing; Delivery.
3.1 Closing. The closing of the sale and purchase of shares of Series
D-1 Preferred Stock and the Warrants shall take place at the offices of Xxxx
Xxxx Xxxx & Freidenrich LLP, 0000 Xxxxxxxxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxxxxxxxx
00000 on the date hereof or such later date as shall be mutually acceptable to
the Company and the Purchaser (the "First Closing"). Thereafter, on or before
the 10th calendar day of the final month of each fiscal quarter up until the
first quarter of Fiscal Year 2006, the Company may deliver notice pursuant to
the provisions hereof indicating its desire to have the Purchaser purchase
shares of Series D-2 Preferred Stock, Series D-3 Preferred Stock, Series D-4
Preferred Stock and/or Series D-5 Preferred Stock and Warrants. The Purchaser
shall then, by the 25th calendar day of the final month of each such quarter,
purchase its pro-rata portion (based on the number of Shares purchased by such
Purchaser relative to the number of Shares purchased by all Purchasers) of the
shares of Series D-2 Preferred Stock, Series D-3 Preferred Stock, Series D-4
Preferred Stock and/or Series D-5 Preferred Stock, as the case may be, offered
for sale at any subsequent Closing. Each sale of Shares and Warrants pursuant to
this Section 3.1 shall be deemed a "Closing" for purposes hereunder. Schedule A
to this Agreement shall be updated to reflect the number of Shares and Warrants
purchased at each Closing.
3.2 Delivery. At the Closing, on the terms and subject to the
conditions hereof, Purchaser shall pay to the Company, by check or wire transfer
of immediately available funds, the aggregate Purchase Price, and in exchange
for and upon receipt or confirmation of such payment, the Company will issue and
deliver to Purchaser a stock certificate representing the Shares purchased by
Purchaser and a Warrant for the Warrant Shares.
4. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchaser that, as of the First Closing, unless
otherwise set forth below:
4.1 Organization and Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to carry on its
businesses as now conducted and as proposed to be conducted.
4.2 Corporate Power. The Company has all requisite corporate power
necessary for the authorization, execution and delivery of this Agreement and
the Warrant, to sell and issue the Shares and the Warrant hereunder, and to
carry out and perform all of its obligations under the terms of this Agreement,
the Warrant and the Certificate of Designation of Preferences and Rights of the
Series D-1 Preferred Stock, Series D-2 Preferred Stock, Series D-3
2
Preferred Stock, Series D-4 Preferred Stock and Series D-5 Preferred Stock, and
to carry on its business as presently conducted and as presently proposed to be
conducted, and such other agreements and instruments. Each of the Agreement and
the Warrant is a valid and binding obligation of the Company, enforceable in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, moratorium, and other laws of general application affecting the
enforcement of creditors' rights.
4.3 Capitalization. As of March 31, 2004, the authorized capital stock
of the Company is 50,000,000 shares of Common Stock and 5,000,000 shares of
Preferred Stock, and there are issued and outstanding (i) 14,155,276 shares of
the Common Stock, (ii) 809 shares of Series A Preferred Stock, (iii) 125 shares
of Series B Preferred Stock, (iv) 6,618 shares of Series C Preferred Stock, (v)
no shares of Series D-1 Preferred Stock, Series D-2 Preferred Stock, Series D-3
Preferred Stock, Series D-4 Preferred Stock or Series D-5 Preferred Stock, (vi)
warrants to purchase an aggregate of 24,259,739 shares of Common Stock, and
(vii) options to purchase 3,951,261 shares of Common Stock granted to employees
pursuant to the Company's 1995 Stock Option Plan. All such issued and
outstanding shares have been duly authorized and validly issued, are fully paid
and nonassessable, and were issued in compliance with all applicable state and
federal laws concerning the issuance of securities.
4.4 Authorization.
(1) Corporate Action. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the sale and
issuance of the Shares and the Warrant and the authorization, execution and
performance of the Company's obligations hereunder and under the Warrant has
been taken.
(2) Valid issuance. The Securities, when issued in compliance
with the provisions of this Agreement and the Warrant, will be validly issued,
fully paid and nonassessable and will be free of restrictions on transfer other
than restrictions under the Warrant and under applicable federal and state
securities laws.
4.5 Compliance with Other Instruments. The execution, delivery and
performance of and compliance with this Agreement or the Warrant by the Company,
and the issuance and sale of Securities, will not result in any violation of the
Certificate of Incorporation or Bylaws of the Company.
4.6 Offering. In reliance on the representations and warranties of the
Purchaser in Section 6 hereof, the offer, sale and issuance of Securities in
conformity with the terms of this Agreement and the Warrant will not result in a
violation of the Securities Act of 1933, as amended (the "Securities Act"), or
any state securities laws, including the qualification or registration
requirements of applicable blue sky laws.
4.7 Company Reports; Disclosure
(a) Company Reports. For the purposes of this Agreement, the
term "Company Reports" shall mean, collectively, each registration statement,
report, proxy statement or information statement filed with the Securities and
Exchange Commission (the "SEC") since January 1, 1999, in the form (including
exhibits, annexes and any amendments thereto) filed with
3
the SEC. As of their respective dates, the Company Reports complied in all
material respects with the requirements of the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and did not 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 made therein, in light of
the circumstances in which they were made, not misleading. Nothing has occurred
since February 10, 2004 which would require the filing of any additional report
or of any amendment to any of the Company Reports with the SEC, or which would
cause any of the Company Reports to 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 made therein, in light of the circumstances in which they
were made, not misleading.
(b) Disclosure. No representation or warranty by the Company
in this Agreement, or in any document or certificate furnished or to be
furnished to the Purchaser pursuant hereto or in connection with the
transactions contemplated hereby, when taken together, contains or will contain
any untrue statement of a material fact or omits or will omit to state a
material fact necessary to make the statements made herein and therein, in the
light of the circumstances under which they were made herein and therein, in the
light of the circumstances under which they were made, not misleading. The
Company has either filed with the SEC or fully provided the Purchaser with all
the information necessary for the Purchaser to decide whether to purchase the
Shares.
5. Representations and Warranties of the Purchaser and Restrictions on
transfer Imposed by the Securities Act. Purchaser represents and warrants to the
Company as to itself as follows:
5.1 Power. Purchaser has all requisite corporate power necessary for
the authorization, execution and delivery of the Agreement and Warrant to which
it is a party. Each of the Agreement and the Warrant to which the Purchaser is a
party is a valid and binding obligation of the Purchaser, enforceable against
the Purchaser in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, moratorium, and other laws of general application
affecting the enforcement of creditors' rights.
5.2 Authorization. All corporate action on the part of the Purchaser,
its officers, directors and stockholders necessary for the authorization,
execution and performance of the Purchaser's obligations hereunder and under the
Warrant to which it is a party have been taken.
5.3 Compliance with Other Instruments. The execution, delivery and
performance of and compliance with this Agreement and the Warrant to which
Purchaser is a party will not result in any violation of or default in any
material respect under the terms of any mortgage, indenture, contract,
agreement, instrument, judgment or decree to which the Purchaser is a party or
is otherwise subject.
5.4 Consents. No consent, approval or authorization of or designation,
declaration or filing with any governmental authority or other third party on
the part of the Purchaser is required in connection with the valid execution and
delivery of the Warrant to which it is a party.
4
5.5 Investment Intent. This Agreement is made with the Purchaser in
reliance upon the Purchaser's representation to the Company, evidenced by the
Purchaser's execution of this Agreement, that the Purchaser is acquiring the
Shares for investment for the Purchaser's own account, and not with a view to,
or for resale in connection with, any distribution or public offering thereof
within the meaning of the Securities Act.
5.6 Shares Not Registered. The Purchaser understands and acknowledges
that the offering of the Shares and Warrant issued pursuant to this Agreement
will not be registered under the Securities Act or qualified under applicable
blue sky laws on the grounds that the offering and sale of securities
contemplated by this Agreement are exempt from registration under the Securities
Act and exempt from qualifications available under applicable blue sky laws, and
that the Company's reliance upon such exemptions is predicated upon the
Purchaser's representations set forth in this Agreement. The Purchaser
acknowledges and understands that, except for transfers to Affiliates of the
Purchaser, the Securities must be held for at least 12 months after Closing and
thereafter indefinitely unless the Securities are registered under the
Securities Act and qualified under applicable blue sky laws or an exemption from
such registration and such qualification is available.
5.7 Knowledge and Experience. The Purchaser (i) has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of the Purchaser's prospective investment in the Shares; (ii)
has the ability to bear the economic risks of the Purchaser's prospective
investment; and (iii) has not been offered the Shares by any form of
advertisement, article, notice or other communication published in any
newspaper, magazine, or similar media or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any such media.
5.8 Accredited Investor. The Purchaser is an "accredited investor" as
that term is defined in Rule 501(a) under the Securities Act.
5.9 Legends. Each certificate representing the Shares may be endorsed
with the following legends:
(1) Federal Legend. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT") AND ARE "RESTRICTED SECURITIES" AS DEFINED IN RULE 144
PROMULGATED UNDER THE ACT. THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR
OTHERWISE DISTRIBUTED EXCEPT (i) IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SHARES UNDER THE ACT OR (ii) IN COMPLIANCE WITH RULE 144, OR
(iii) PURSUANT TO AN OPINION OF COUNSEL, THAT SUCH REGISTRATION OR COMPLIANCE IS
NOT REQUIRED AS TO SAID SALE, OFFER OR DISTRIBUTION.
(2) Other Legends. Any other legends required by applicable
state blue sky laws. The Company need not register a transfer of legended
Shares, and may also instruct its transfer agent not to register the transfer of
the Shares, unless the conditions specified in each of the foregoing legends are
satisfied.
5
5.10 Removal of Legend and Transfer Restrictions. Any legend endorsed
on a certificate pursuant to subsection 5.9(1) and the stop transfer
instructions with respect to such legend Shares shall be removed, and the
Company shall issue a certificate without such legend to the holder of such
Shares if such Shares are registered under the Securities Act and a prospectus
meeting the requirements of Section 10 of the Securities Act is available or if
such holder satisfies the requirements of Rule 144(k).
6. Conditions to Closing.
6.1 Conditions to the Purchaser's Obligations. The obligation of the
Purchaser to purchase the Securities at the Closing is subject to the
fulfillment to the Purchaser's satisfaction, on or prior to the Closing, of the
following conditions, any of which may be waived by the Purchaser.
(1) Representations and Warranties Correct; Performance of
Obligations. The representations and warranties made by the Company in Section 4
hereof shall be true and correct when made, and shall be true and correct in all
material respects on the Closing with the same force and effect as if they had
been made on and as of said date (except to the extent any such representation
or warranty expressly speaks of an earlier date). The Company shall have
performed in all material respects all obligations and conditions herein
required to be performed or observed by it on or prior to the Closing.
(2) Warrant. The Company shall have executed the Warrant.
7. Conditions to Obligations of the Company. The Company's obligation to
sell and issue the shares at the Closing is subject to the fulfillment to the
satisfaction of the Company on or prior to the Closing of the following
condition, which may be waived by the Company: The representations and
warranties made by the Purchaser in Section 5 hereof shall be true and correct
when made, and shall be true and correct on the Closing with the same force and
effect as if they had been made on and as of said date (except to the extent any
such representation or warranty expressly speaks of an earlier date). The
Purchaser shall have performed in all material respects all obligations and
conditions herein required to be performed or observed by it on or prior to the
Closing.
8. Affirmative Covenants of the Company - Registration Rights. The Company
represents that, within one hundred eighty (180) days from the initial Closing,
the Company will file a registration statement covering the shares of Common
Stock issued upon conversion of the Shares, and will use its best efforts to
cause such registration statement to be declared effective as soon as possible
thereafter.
9. Miscellaneous.
9.1 Governing Law. This Agreement shall be governed in all respects by
the laws of the State of California.
9.2 Survival. The representations, warranties, covenants and
agreements made herein shall survive the Closing of the transactions
contemplated hereby, notwithstanding any investigation made by the Purchaser.
All statements as to factual matters contained in any
6
certificates or other instrument delivered by or on behalf of the Company
pursuant hereto or in connection with the transactions contemplated hereby shall
be deemed to be representations and warranties by the Company hereunder as of
the date of such certificate or instrument.
9.3 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
9.4 Entire Agreement. This Agreement and the other documents delivered
pursuant hereto constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof and they
supersede, merge and render void every other prior written and/or oral
understanding or agreement among or between the parties hereto. Any term of 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 holders of a
majority of the Common Stock issued or issuable upon conversion of the Shares
then outstanding. Any amendment or waiver effected in accordance with this
Section 9.4 shall be binding upon the Company, the Purchaser and each future
holder of Securities acquired hereunder.
9.5 Notices, etc. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed effectively given: (i)
upon personal delivery to the party to be notified, (ii) when sent by confirmed
electronic mail or facsimile if sent during normal business hours of the
recipient; if not, then on the next business day, (iii) five (5) days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (iv) one (1) day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent to the respective parties at the
addresses set forth on the signature pages attached hereto (or at such other
addresses as shall be specified by notice given in accordance with this Section
9.5), and if to the Company, addressed to Salon Media Group, Inc., 00 Xxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000 Attention: Chief Financial Officer.
9.6 Severability. In case any provision of this Agreement shall be
found by a court of law to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not n any way be affected or impaired thereby.
9.7 Finder's Fees and Other Fees.
(1) The Company (i) represents and warrants that it has retained
no finder or broker in connection with the transactions contemplated by this
Agreement and, (ii) hereby agrees to indemnify and to hold the Purchaser
harmless from and against any liability for commission or compensation in the
nature of a finder's fee to any broker or other person or firm (and the costs
and expenses of defending against such liability or asserted liability) for
which the Company, or any of its employees or representatives, are responsible.
(2) Each Purchaser (i) represents and warrants that it has
retained no finder or broker in connection with the transactions contemplated by
this Agreement and (ii) hereby agrees to indemnify and to hold the Company
harmless from and against any liability
7
for any commission or compensation in the nature of a finder's fee to any broker
or other person or firm (and the costs and expenses of defending against such
liability or asserted liability) for which such Purchaser, or any of its
employees or representatives, are responsible.
9.8 Expenses. The Company and each Purchaser shall each bear their own
expenses and legal fees in connection with the consummation of this transaction.
9.9 Titles and Subtitles. The titles of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
9.10 Non-Recourse. No partner, limited partner, member, officer,
director, shareholder, employee or agent or other holder of an ownership
interest in any party to this Agreement shall have any liability in respect of
any such party's obligations under this Agreement by reason of his or her status
as such partner, limited partner, member, officer, director, shareholder,
employee or agent or other holder of an ownership interest in any party to this
Agreement. The obligations under this Agreement shall be limited to the assets
of each of the Purchaser and shall not exceed the Purchase Price.
9.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
9.12 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to the Company or to any holder of any securities
issued or to be issued hereunder shall impair any such right, power or remedy of
the Company or such holder, nor shall it be construed to be a waiver of any
breach or default under this Agreement, or an acquiescence therein, or of or in
any similar breach or default thereafter occurring; nor shall any delay or
omission to exercise any right, power or remedy or any waiver of any single
breach or default be deemed a waiver of any other right, power or remedy or
breach or default theretofore or thereafter occurring. All remedies, either
under this Agreement, or by law otherwise afforded to the Company or any holder,
shall be cumulative and not alternative.
9.13 Attorneys' Fees. If any action at law or in equity is necessary
to enforce or interpret the terms of any of the Transaction Agreements, the
prevailing party shall be entitled to reasonable attorneys' fees, costs and
disbursements in addition to any other relief to which such party may be
entitled.
9.14 Venue. The parties hereby irrevocably submit to the jurisdiction
of the courts of the State of California and the Federal courts of the United
States of America located in the State of California solely in respect of the
interpretation and enforcement of the provisions of the Warrant, and in respect
of the transactions contemplated hereby, and hereby waive, and agree not to
assert, as a defense in any action, suit or proceeding for the interpretation or
enforcement hereof or of any such document, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable
in said courts or that the venue thereof may not be appropriate or that the
Warrant may not be enforced in or by such courts, and the parties hereto
irrevocably agree that all claims with respect to such action or proceeding
shall be
8
heard and determined in such a California state or Federal court. The parties
hereby consent to and grant any such court jurisdiction over the person of such
parties and over the subject matter of such dispute and agree that mailing of
process or other papers in connection with any such action or proceeding in the
manner provided in Section 9.5 hereof shall be valid ad sufficient service
thereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
9
IN WITNESS WHEREOF, the parties hereto have executed this Securities
Purchase Agreement as of the date first written above.
SALON MEDIA GROUP, INC.
By: /s/ Xxxxxxxxx Xxxxxxxxx
--------------------------------
Xxxxxxxxx Xxxxxxxxx
President & Chief Financial Officer
[COUNTERPART SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
10
PURCHASER
By:________________________________
Name:______________________________
Title:_____________________________
Address:___________________________
[COUNTERPART SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
11
SCHEDULE A
----------
Purchaser Purchase Price Shares Warrants
-------------------------------------- -------------- ------ ----------
Xxxx Xxxxxxx 249,600.00 208 402,580
The Xxxxxxxxx 1980 Revocable Trust 175,200.00 146 282,580
HAMCO Capital Corporation 50,400.00 42 81,290
Xxxxxxx X Xxxxx Holdings, Inc. 25,200.00 21 40,645
-------------- ------ ----------
500,400.00 417 807,095
============== ====== ==========
