SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) August 27, 1999
UBARTER.COM INC.
(Exact name of registrant as specified in its charter)
NEVADA 0-24005 91-1739746
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
21400 International Blvd. #207
Seattle, WA 98198
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (206) 870-9290
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Item 5. Other Events.
On August 27, 1999, Ubarter.com Inc. ("Ubarter") raised $1 million of
short-term financing from Alpine Capital Group, LLC, a New York limited
liability company ("Alpine"). Ubarter issued to Alpine a $1 million Convertible
Promissory Note (the "Note") convertible into 1,333,333 shares of Ubarter common
stock in the event the Note is not repaid in full by June 1, 2000, and a warrant
(the "Warrant") to purchase 183,333 shares of Ubarter common stock at an
exercise price of $2.00 per share. A copy of the Note and the Warrant are filed
as exhibits to this Form 8-K.
Ubarter will use the proceeds to continue to fund development of its
e-commerce site for barter, for salaries and other employment expenses and for
working capital purposes. Ubarter continues to pursue additional financing
activities. Unless it is successful in raising additional capital, Ubarter will
not be able to achieve its expansion goals, including development of its
e-commerce site for barter. In addition, Ubarter will need to raise capital in
order to repay the Note. If Ubarter were unable to repay the Note by June 1,
2000, Alpine would have the right to convert the Note into 1,333,333 shares, or
approximately 22% of Ubarter's common stock based on the number of shares
outstanding at September 1, 1999. Excluding accrued interest owing on the Note
at the time of conversion, the conversion price per share of common stock would
be $.75. Accordingly, current shareholders of Ubarter would, in the event the
Note is converted, experience significant dilution of their investment in
Ubarter.
A summary of the principal terms of the Note is as follows:
o Interest accrues at 5.5% per annum.
o Due and payable on September 1, 2002.
o Ubarter must repay the Note in full if Ubarter raises [an aggregate
of] $2.5 million through a public or private sale of its equity or
debt securities on or before June 1, 2000.
o Ubarter may prepay the Note, in whole or in part, on or before June 1,
2000, without premium or penalty. If the Note is not paid in full by
June 1, 2000, Alpine shall have the right to convert the unpaid
principal balance into 1,333,333 shares of Ubarter's common stock (the
"Conversion Shares") at an effective purchase price of $.75 per share.
o After June 1, 2000, Alpine shall have demand registration rights with
respect to any Conversion Shares.
o The Conversion Shares are subject to adjustment in the event of
certain stock splits, reclassifications and other changes to Ubarter's
common stock.
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A summary of the principal terms of the Warrant is as follows:
o The Warrant is exercisable, in whole or in part, at $2.00 per share of
Ubarter common stock (subject to adjustment in the case of certain
changes to Ubarter's common stock).
o The Warrant is exercisable from September 1, 1999 through and
including September 1, 2004.
o The shares issuable upon exercise of the Warrant shall have certain
piggyback registration rights in the event Ubarter files a
registration statement to complete an offering of its common stock.
o Ubarter may, at its option, require Alpine to exercise the Warrant if
during any consecutive 20 business day period during the exercise
period of the Warrant, (i) the average of the averaged daily high and
low prices of Ubarter's common stock exceeds $5.25 per share and (ii)
the daily volume of common stock traded is not less than 30,000
shares. If Ubarter requires Alpine to exercise the Warrant, Alpine
shall have demand registration rights with respect to the shares
acquired upon exercise.
o The Warrant is not transferable.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
4.1 Convertible Promissory Note dated August 27, 1999.
4.2 Warrant to purchase 183,333 shares of common stock dated August
27, 1999.
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: September 13, 1999 UBARTER.COM INC.
By (s) Steven M. White
-----------------------------------
Name: Steven M. White
President and Chief Executive Officer
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EXHIBIT INDEX
Exhibit Number Exhibit Description
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4.1 Convertible Promissory Note dated August 27, 1999
4.2 Warrant to purchase 183,333 shares of common stock
dated August 27, 1999
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EXHIBIT 4.1
THE SECURITIES REPRESENTED BY THIS NOTE AND ANY SECURITIES ISSUABLE UPON
CONVERSION THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED ("SECURITIES ACT"). THE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, ENCUMBERED
OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES
ACT, OR AN OPINION OF COUNSEL IN FORM, SUBSTANCE AND SCOPE REASONABLY
ACCEPTABLE TO THE MAKER THAT REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT.
UBARTER.COM INC.
CONVERTIBLE PROMISSORY NOTE
I. Principal. FOR VALUE RECEIVED, the undersigned, Ubarter.Com Inc., a
Nevada corporation (the "Maker") with a principal place of business at 21400
International Boulevard, Suite 207, Seattle, WA 98198, hereby unconditionally
promises to pay to Alpine Capital Group, LLC, a New York limited liability
company (the "Payee") with a principal place of business at 152 East 65th
Street, Suite 400, New York, NY 10021, the aggregate principal sum of One
Million and 00/100 (US $1,000,000.00) Dollars.
II. Interest. This Note will accrue interest at the rate of five and
one-half (5.5%) percent per annum. Notwithstanding any other provisions of this
Note, interest fees and other charges payable by reason of the indebtedness
evidenced hereby will not exceed the maximum, if any, limited by any governing
law.
III. Time of Payment. Payment of the unpaid principal amount and interest
of this Note shall be due and payable on September 1, 2002.
IV. Place of Payment. The principal of this Note shall be payable at such
bank account as may be designated by the Payee by written notice to the Maker.
V. Payment Without Setoff. The principal of this Note shall be paid without
setoff or counterclaim and free and clear of and exempt from, and without
deduction for or on account of, any present or future taxes, levies, imposts,
duties, deductions, withholdings or other charges of whatsoever nature imposed,
levied, collected, withheld or assessed by any government or any political
subdivision or taxing authority thereof. In the event that, subject to the
provisions of the preceding sentence, any payments made under this Note on
account of principal shall not be made free and clear and exempt from and
without deduction for, or on account of, any such taxes, then in any such event
the Maker shall pay such additional amounts as may be necessary in order that
each net payment made hereunder, after payment or deduction or withholding for,
or on account of, any such taxes will not be less than the amount otherwise
provided in this Note to be then due and payable.
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VI. Mandatory Prepayment. If the Maker closes a financing or financings in
the aggregate amount of at least US $2,500,000.00 through public or private sale
of its debt or equity securities on or before June 1, 2000, the Maker will repay
any unpaid principal and interest of this Note within five (5) business days of
such closing. With respect to any such debt closings, the said US $2,500,000.00
amount shall not apply to the refinancing of any currently existing lines of
credit or commercial credit facilities maintained by the Maker, except to the
extent that the principal amount of any such lines of credit or commercial
credit facilities are increased as a result of such closings.
VII. Optional Prepayments. Until 5:00 p.m., New York Time, on June 1, 2000,
the Maker shall have the right on two (2) days' prior written notice to the
Payee, to prepay this Note in whole or in part without premium or penalty
together with all accrued interest thereon.
VIII. Optional Conversion. If, at 5:00 p.m., New York Time, on June 1,
2000, there remains unpaid principal on this Note, the Payee shall have the
option ("Conversion Option"), exercisable at any time thereafter but not later
than September 1, 2002, to convert such unpaid principal into 1,333,333 shares
of the common stock of the Maker (such amount of common stock of Maker is
hereinafter referred to as "Conversion Shares"). The Conversion Option shall be
exercised by the completion by the Payee of the conversion notice annexed hereto
as Exhibit "A", which shall be delivered by certified mail, return receipt
requested, or overnight delivery service such as Federal Express, to the office
of the Maker as herein above set forth. Any notice under this paragraph VIII
will be deemed made when received by the Maker.
IX. Registration Rights. The Maker shall, at its own expense, no later than
thirty (30) days after written demand by Payee, made at any time prior to
September 1, 2002, file such registration statement and/or make such disclosures
under the Securities Act as may be required with respect to registration of the
Conversion Shares, including, without limitation, Payee's option to convert the
unpaid principal of the Note into the Conversion Shares, provided however, the
Maker shall not be required to file any such registration statement prior to
June 1, 2000. In the event of such demand by Payee, Maker shall further use
reasonable efforts to cause any such registration statement to become effective
as soon as possible after the demand thereof, and in any event to have such
registration statement effective no later than ninety (90) days from the date of
such demand.
X. Investment Purpose. The Payee represents and warrants to the Maker that
it:
(i) is purchasing this Note (and will accede to any Conversion Shares)
for its own account for investment only and not with a present view towards the
public sale or distribution thereof, except pursuant to sales registered under
the Securities Act of 1933;
(ii) is an "accredited investor" as that term is defined in Rule 501
(a) of Regulation D;
(iii) has sufficient experience in evaluating companies similar to
Maker to
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enable Payee to evaluate the merits and risks of Payee's investment in Maker and
has the capacity to protect Payee's own interests and to bear the economic risk
of holding the Conversion Shares or losing Payee's entire investment;
(iv) has had an opportunity to discuss Maker's business, management
and financial affairs with Maker's management and Payee acknowledges that Maker
has fully provided Payee and Payee's counsel with (x) all material information
which Payee has requested for deciding whether to acquire the Conversion Shares
and (y) all material information which Payee believes is reasonably necessary to
make Payee's investment decision;
(v) had access to such additional information, if any, concerning
Maker as Payee considered necessary in connection with an investment in Maker,
and has been advised to seek business, tax and legal counsel in such regard;
(vi) acknowledges that neither Maker nor any representative of Maker
has made any representation or warranty concerning the condition or prospects of
Maker or the Conversion Shares;
(vii) acknowledges the Note and Conversion Shares, upon conversion,
have not been registered under the Securities Act, and are being issues in
reliance upon an exemption from registration available under Rule 506 of
Regulation D promulgated under the Securities Act and similar exemptions from
registration under the laws of the State of New York; and
(viii) is aware that there may be material, legal and tax consequences
under United States federal, state or local tax law to the Payee for the
acquisition, ownership and disposition of the Convertible Shares, and Maker
gives no opinion and makes no representation with respect to such consequences.
The Payee acknowledges that it has consulted its own legal and tax advisors
about the foregoing matters.
XI. Governing Law. This Note shall be construed in accordance with and
governed by the laws of the State of New York.
XII. No Waiver. No course of dealings between the Maker and the Payee or
any delay on the part of the Payee in exercising any rights hereunder shall
operate as a waiver of any rights of the Payee, except to the extent expressly
waived in writing by the Payee.
XIII. Loss, Theft, Destruction or Mutilation of Note. Upon receipt by the
Maker of evidence reasonably satisfactory to the Maker of the loss, theft,
destruction or mutilation of this Note, and, in case of loss, theft,
destruction, upon receipt of indemnity or security reasonably satisfactory to
the Maker or, in the case of mutilation, upon surrendering of this Note for
cancellation, and upon reimbursement to the Maker of all reasonable expenses
incidental thereto, the Maker will make and deliver a new note of like tenor in
lieu of this Note.
XIV. Legal Holidays. In any case where the date of maturity of the
principal of this Note or the date fixed for payment or prepayment of this Note
shall be, at any place of payment, a Sunday, a legal holiday or a day on which
banking institutions are authorized or obligated by
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law or regulation to close, then payment of principal need not be made on such
date at such place but may be made on the next succeeding day that is not at
such place of payment a Sunday, a legal holiday or a day on which banking
institutions are authorized or obligated by law or regulation to close, with the
same force and effect as if made on the date of maturity or the date fixed for
payment or prepayment.
XV. Waiver of Presentment, etc. The Maker hereby waives presentment, demand
for payment, notice of dishonor, notice of protest and protest, and all other
notices or demands in connection with the delivery, acceptance, performance or
default of this Note, except as herein set forth.
XVI. Headings. The headings of the paragraphs and subparagraphs of this
Note are for convenience only and shall not be deemed to constitute a part
hereof.
XVII. Assignment. The Payee may pledge, assign or otherwise transfer this
Note, in whole or in part, at any time, subject to the written consent of the
Maker, which shall not be unreasonably withheld or delayed. The Maker may not
assign this Note without the prior written consent of the Payee. The obligations
of this Note shall bind the respective successors and assigns of the Maker and
the Payee.
XVIII. Concerning this Note and Conversion Shares. This Note and the
Conversion Shares may not be sold or transferred unless (i) they first shall
have been registered under the Securities Act and applicable state securities
laws, as and to the extent required; or (ii) the Maker has been furnished with
an opinion of legal counsel to the effect that such sale or transfer is exempt
from the registration requirements of the Securities Act.
Any Conversion Shares not subject to an effective registration
statement issued upon conversion of this Note shall bear a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES ACT, OR AN OPINION OF COUNSEL IN FORM, SUBSTANCE AND SCOPE
REASONABLY ACCEPTABLE TO THE MAKER THAT REGISTRATION IS NOT REQUIRED UNDER
THE SECURITIES ACT. ANY SUCH SALE, ASSIGNMENT OR TRANSFER MUST ALSO COMPLY
WITH STATE SECURITIES LAWS.
Upon the request of a holder of certificates representing Conversion
Shares, the Maker shall remove the foregoing legend from the certificate or
issue a new certificate to such holder free of any transfer legend if (i) with
such request, the Maker shall have received either (A) an opinion of counsel,
reasonably satisfactory to the Maker in form, substance and scope, to the effect
that the legend may be removed from such certificate, or (B) satisfactory
representations from the holder that such holder is eligible immediately to sell
all of the Conversion Shares pursuant to Rule 144 (or a successor rule) or (ii)
a registration statement under the Securities Act
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covering such securities is in effect. Nothing in this Note shall affect in any
way the Payee's obligations to comply with applicable securities laws upon any
resale of this Note or the Conversion Shares.
XIX. Effect of Stock Changes. If, at any time or from time to time Maker,
by stock dividend, stock split, subdivision, reverse split, consolidation,
reclassification of shares, or otherwise, changes as a whole its outstanding
common stock into a different number or class of shares, then, immediately upon
the occurrence of the change:
(i) The class of shares into which the common stock has been changed
shall replace the common stock, for the purposes of Payee's conversion rights
and the terms and conditions hereof, so that Payee shall be entitled to receive,
and shall receive upon exercise of the Conversion Option, shares of the class of
stock into which the common stock had been changed; and
(ii) The number of Conversion Shares obtainable by Payee upon exercise
of the Conversion Option shall be proportionately adjusted to reflect such stock
split.
XX. Effect of Merger. If at any time during the term hereof, another
corporation merges into Maker, the Payee shall be entitled, immediately after
the merger becomes effective and upon exercise of the Conversion Option, to
obtain the same number of shares of common stock of the Maker (or shares into
which the common stock has been changed as provided in paragraph XIX hereof
covering changes) that Payee was entitled upon the exercise hereof to obtain
immediately before the merger became effective. Maker shall take any and all
steps necessary in connection with the merger to assure that sufficient shares
of common stock to satisfy all conversion and purchase rights represented by
outstanding convertible securities, options and warrants, including the
conversion rights hereunder, are available so that these convertible notes,
convertible securities, options etc., including, without limitation, the within
Conversion Option, may be exercised.
XXI. Default. If any of the following occur ("Event of Default"), the
entire unpaid principal of this Note together with interest calculated at the
default rate of interest, as hereinafter provided, from the date hereof, shall
be immediately due and payable. Any notice of default hereinafter provided for
shall be made in writing delivered by certified mail, return receipt requested,
or overnight delivery service such as Federal Express, to the office of the
Maker as herein above set forth. Any such notice shall be made when received by
the Maker.
(i) Default in the payment of the principal and interest under this
Note which continues after ten (10) days written notice.
(ii) Default in the observance or performance of any covenant, term,
provision or condition to be performed by Maker hereunder, if such default shall
continue after fifteen (15) days written notice.
(iii) Maker commences any voluntary proceeding seeking relief or
protection
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under any bankruptcy, reorganization, arrangement, insolvency, readjustment or
debt, receivership, or liquidation law or statute, of any jurisdiction, whether
not or subsequently in effect, or Maker is adjudicated insolvent or bankrupt by
a court of competent jurisdiction; or Maker petitions or applies for, acquiesces
in, or consents to the appointment of any receiver or trustee of Maker or for
all or substantially all of its property or assets; or Maker makes an assignment
for the benefit of its creditors; or Maker admits in writing its inability to
pay its debts as they mature; or the filing of any involuntary bankruptcy
petition against Maker not dismissed within sixty (60) days after the filing
thereof.
(iv) If any of the representations of warranties of Maker made herein
or in the warrant to purchase common stock ("Warrant") of even date herewith by
and between Maker, company, and Payee, registered owner, shall have been
incorrect when made in any material respect.
(v) If the common stock of Maker is delisted from trading on the
NASDAQ exchange, or if Maker shall have received notice of final action
concerning delisting from the NASDAQ exchange and the common stock of Maker has
not been relisted within ten (10) days thereafter.
(vi) If Maker shall have failed to deliver to Payee the Conversion
Shares within ten (10) business days following the exercise by Payee of the
Conversion Option.
(vii) The failure of the Maker to timely file a Registration Statement
with respect to the Conversion shares after demand by Payee pursuant to
paragraph IX, hereof.
(viii) If the Registration Statement with respect to the Conversion
Shares has not been declared effective ninety (90) days from the filing thereof.
(ix) If the effectiveness of the Registration Statement with respect
to the Conversion Shares, as and to the extent demanded by Payee, shall be
suspended for a period of five (5) business days and the effectiveness of such
Registration Statement is not reinstated within thirty (30) days thereafter.
(x) If the Maker shall have defaulted under the Warrant, which default
shall continue uncured for fifteen (15) days after written notice.
In the event of any Event of Default, interest on the principal sum of this
Note shall be eighteen (18%) percent per annum, calculated from the date hereof.
In addition, in the event of an Event of Default, Payee shall be entitled to
receive all reasonable costs and expenses incurred in connection therewith,
including reasonable attorney fees.
IN WITNESS WHEREOF, the Maker and Payee have duly executed this Note on the
27th day of August, 1999.
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ALPINE CAPITAL GROUP, LLC UBARTER.COM INC.
By: /s/ By: /s/ Steven White
----------------------------------- -------------------------------
Name: Name: Steven White
----------------------------------- -------------------------------
Title: President Title: CEO/President
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CONVERSION NOTICE
Exhibit "A"
Date: ------------
Ubarter.Com Inc.
21400 International Boulevard
Suite 207
Seattle, WA 98198
Dear Sir/Madam:
The undersigned hereby elects to convert that certain convertible
promissory note ("Note") dated August ,1999 in the principal amount of
$1,000,000.00 by and between Ubarter.Com Inc., Maker (hereinafter the
"Company"), and Alpine Capital Group, LLC, payee, into 1,333,333 shares of the
common stock of the Company.
Very truly yours,
ALPINE CAPITAL GROUP, LLC
By: ------------------------------------
152 East 65th Street, Suite 400
New York, NY 10021
EIN:
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EXHIBIT 4.2
Warrant No.
THIS WARRANT IS NON-TRANSFERRABLE AND HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF.
Right to Purchase 183,333 Shares
UBARTER.COM INC.
Warrant to Purchase Common Stock
Registered Owner: Alpine Capital Group, LLC, 152 East 65th Street, Suite
400, New York, NY 10021 (hereinafter "Registered Owner").
For value received, Ubarter.Com Inc., a Nevada corporation (the "Company")
grants the following rights to the Registered Owner:
(a) Issue. Upon tender to the Company (as defined in paragraph (e) hereof),
the Company shall issue to the Registered Owner hereof the number of shares
specified in paragraph (b) hereof of fully paid and nonassessable shares of
Common Stock of the Company that the Registered Owner is otherwise entitled to
purchase.
(b) Number of Shares. The number of shares of Common Stock of the Company
that the Registered Owner is entitled to receive upon exercise of this Warrant
is 183,333 shares ("Warrant Shares"). The Company shall at all times reserve and
hold available sufficient shares of Common Stock to satisfy all conversion and
purchase rights represented by outstanding convertible securities, options and
warrants, including this Warrant. The Company covenants and agrees that all
shares of Common Stock that may be issued upon the exercise of this Warrant
shall, upon issuance, be duly and validly issued, free of any restrictions,
fully paid and nonassessable, and free from all taxes, liens and charges with
respect to the purchase and the issuance of the shares.
(c) Exercise Price. The exercise price of this Warrant, the price at which
the Warrant Shares purchasable upon exercise of this Warrant may be purchased,
is Two and 00/100 ($2.00) Dollars per share.
(d) Exercise Period. This Warrant may only be exercised from September 1,
1999 through and including September 1, 2004, both dates inclusive ("Exercise
Period"). If not exercised during the said Exercise Period, this Warrant and all
rights granted under this Warrant shall expire and lapse.
(e) Tender. The exercise of this Warrant must be accomplished by actual
delivery of the Exercise Price in cash, certified check or official bank draft
in lawful money of the United States of America, and by actual delivery of a
duly executed exercise form, a copy of which is attached
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to this Warrant as Exhibit "A" properly executed by the registered owner of this
Warrant, and by surrender of this Warrant. The payment and exercise form must be
delivered, personally or by mail, to the offices of the Company at 21400
International Boulevard, Suite 207, Seattle, WA 98198. Documents sent by mail
shall be deemed to be delivered when they are received by the Company.
(f) Partial Exercise of Warrant. This Warrant may be exercised during its
exercise period by the Registered Owner, and at its option, as to the whole at
any time or in part from time to time. If this Warrant is exercised at one time
for less than the maximum number of shares of Common Stock purchasable upon the
exercise hereof, the Company shall issue to the Registered Owner a new warrant
of like tenor and date representing the number of shares of Common Stock equal
to the difference between the number of shares purchasable upon full exercise of
this Warrant and the number of shares that were purchased upon the exercise of
this Warrant.
(g) Effect of Stock Changes. If, at any time or from time to time the
Company, by stock dividend, stock split, subdivision, reverse split,
consolidation, reclassification of shares, or otherwise, changes as a whole its
outstanding Common Stock into a different number or class of shares, then,
immediately upon the occurrence of the change:
(i) The class of shares into which the Common Stock has been changed
shall replace the Common Stock, for the purposes of this Warrant and the terms
and conditions hereof, so that the registered owner or owners of this Warrant
shall be entitled to receive, and shall receive upon exercise of this Warrant,
shares of the class of stock into which the Common Stock had been changed;
(ii) The number of Warrant Shares purchasable upon exercise of this
Warrant shall be proportionately adjusted to reflect such stock split; and
(iii) The purchase price per Warrant Share shall be proportionately
adjusted.
Irrespective of any adjustment or change in the number or class of
shares purchasable under this or any other Warrant of like tenor, or in the
purchase price per share, this Warrant, as well as any other warrant of like
tenor, may continue to express the purchase price per share and the number and
class of shares purchasable upon exercise of this Warrant as the purchase price
per share and the number and class of shares purchasable were expressed in this
Warrant when it was initially issued.
(h) Effect of Merger. If at any time while this Warrant is outstanding
another corporation merges into the Company, the Registered Owner shall be
entitled, immediately after the merger becomes effective and upon exercise of
this Warrant, to obtain the same number of shares of Common Stock of the Company
(or shares into which the Common Stock has been changed as provided in the
paragraph of this Warrant covering changes) that the owner or owners were
entitled upon the exercise hereof to obtain immediately before the merger became
effective at the same exercise price. The Company shall take any and all steps
necessary in connection with the merger to assure that sufficient shares of
Common Stock to satisfy all conversion and purchase rights represented by
outstanding convertible securities, options and warrants, including this
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Warrant, are available so that these convertible securities, options and
warrants, including this Warrant, may be exercised.
(i) Piggyback Registration Rights. Upon exercise of this Warrant,
including, without limitation, a fractional exercise thereof, and in the event
the Company files a registration statement to complete a registered offering of
any of its Common Stock under the Securities Act of 1933, as amended
("Securities Act") ("Registered Offering"), the Registered Owner shall be
entitled to "piggyback" registration rights with respect to the Common Stock
acquired pursuant to this Warrant and held from the time of such exercise by the
Registered Owner. The Company shall provide written notice to the Registered
Owner not later than thirty (30) days prior to the filing of any such
registration statement of the Company's intent to complete a registered offering
of its Common Stock ("Registration Notice"). Within ten (10) days following the
Registered Owner's receipt of the Registration Notice, the Registered Owner may
upon written notice to the Company, demand such piggyback registration rights,
in which event the Company shall cause the Warrant Shares to be registered with
the U.S. Securities and Exchange Commission in the Registered Offering.
(j) Company's Right to Require Exercise of Warrant.
(i) Anything herein to the contrary notwithstanding, in the event that
during any non-consecutive twenty (20) business day period during the term
hereof, (x) the average of the averaged daily high and low prices of the Common
Stock, as reported by Bloomberg Information Services, Inc., exceeds Five and
25/100 ($5.25) dollars and (y) the daily volume of Common Stock traded, as
reported by Bloomberg Information Services, Inc., is not less than 30,000
shares, the Company may, at its option, upon written notice to Registered Owner,
made by certified, mail, return receipt requested, or overnight delivery service
such as Federal Express, not later than ten (10) days following such twenty (20)
consecutive business day period ("Warrant Exercise Notice"), require the
Registered Owner to exercise this Warrant within twenty (20) days following the
Registered Owner's receipt of the Warrant Exercise Notice.
(ii) In the event the Company requires the Registered Owner of this
Warrant to exercise this Warrant pursuant to Paragraph (j) (i), hereof, the
Registered Owner of this Warrant, may upon written notice to the Company made
within ninety (90) days following the Registered Owner's receipt of the Warrant
Exercise Notice, demand that the Company file such registration statement and/or
make such disclosures under the Securities Act as may be required with respect
to the Warrant Shares, in which event the Company, shall file such registration
statement and/or make such disclosures no later than thirty (30) days after such
written demand by the Registered Owner, and shall further use reasonable efforts
to cause any such registration statement to become effective as soon as possible
after the demand thereof, and in any event to have such registration statement
effective no later than ninety (90) days from the date of such demand.
(k) The Warrants represented by this Warrant Certificate are
non-transferable. Any common shares issued pursuant to this Warrant shall bear
the following legend:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
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AMENDED (THE "SECURITIES ACT"). THESE SECURITIES MAY BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (a) TO THE COMPANY, (b) IN COMPLIANCE
WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
U.S. SECURITIES ACT, AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS, OR (c) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE
U.S. SECURITIES ACT OR ANY APPLICABLE STATE LAWS AND REGULATION GOVERNING
THE OFFER, AND SALE OF SECURITIES, AND THE HOLDER HAS, PRIOR TO SUCH SALE,
FURNISHED TO THE COMPANY AN OPINION OF COUNSEL, OF RECOGNIZED STANDING, OR
OTHER EVIDENCE OF EXEMPTION, REASONABLY SATISFACTORY TO THE COMPANY."
IN WITNESS WHEREOF, the Company has signed this Warrant by its duly
authorized officers this 27th day of August, 1999.
By: /s/ Steven M. White
---------------------------------------
Chief Executive Officer
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EXERCISE FORM
Exhibit "A"
(To be completed and executed by the holder of the warrant to which this
exhibit is attached in order to exercise the warrant and to purchase the
stock purchasable upon exercise of the warrant.)
ALPINE CAPITAL GROUP, LLC
The undersigned hereby: (1) irrevocably subscribes for and offers to
purchase 183,333 (or part thereof) shares of Common Stock of UBARTER.COM
INC., pursuant to the warrant to which this exhibit is attached; (2)
encloses payment of $366,666.00 (or such lesser amount in the case of a
partial exercise) for these shares at a price of $2.00 per share; and (3)
requests that a certificate for the shares to be issued in the name of the
undersigned and delivered to the undersigned at the address specified
below.
ALPINE CAPITAL GROUP, LLC
By: ------------------------------------
152 East 65th Street, Suite 400
New York, NY 10021
EIN:
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