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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES OF SMALL BUSINESS ISSUERS
Under Section 12(b) or (g) of the Securities Exchange Act of 1934
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FINANCIALWEB.COM, INC.
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(Name of Small Business Issuer in its charter, as amended)
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Nevada 93-1202428
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
201 Park Place, Altamonte Springs, Florida 32701
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(Address of principal executive offices) (Zip code)
(407) 834-4443
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(Issuer's telephone number)
Securities to be registered under Section 12(b) of the Act:
Title of each class Name of each exchange on which
To be so registered each class is to be registered
N/A N/A
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Securities to be registered under Section 12(g) of the Act:
Common Stock, par value $.001 per share
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(Title of class)
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FINANCIALWEB.COM, INC.
FORM 10-SB
TABLE OF CONTENTS
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Page
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PART I......................................................................................... 1
ITEM 1 - DESCRIPTION OF BUSINESS............................................................... 1
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND PLAN OF
OPERATIONS..................................................................................... 12
ITEM 3 - DESCRIPTION OF PROPERTY............................................................... 14
ITEM 4 - SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT........................ 15
ITEM 5 - DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS.......................... 16
ITEM 6 - EXECUTIVE COMPENSATION................................................................ 19
ITEM 7 - CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS.................................. 20
ITEM 8 - LEGAL PROCEEDINGS..................................................................... 20
ITEM 9 - MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.............................. 20
ITEM 10 - RECENT SALES OF UNREGISTERED SECURITIES.............................................. 21
ITEM 11 - DESCRIPTION OF SECURITIES............................................................ 22
ITEM 12 - INDEMNIFICATION OF DIRECTORS AND OFFICERS............................................ 23
ITEM 12 - INDEMNIFICATION OF DIRECTORS AND OFFICERS............................................ 23
ITEM 13 - FINANCIAL STATEMENTS................................................................. 25
ITEM 14 - CHANGES IN AND DISAGREEMENT WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE........................................................................... 25
ITEM 15 - FINANCIAL STATEMENTS AND EXHIBITS.................................................... 25
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PART I
ITEM 1- DESCRIPTION OF BUSINESS
Corporate History
FinancialWeb.com, Inc. ("FWEB," "FinancialWeb," or the "Company") is a
publicly traded company (OTC BB: FWEB). It was originally incorporated in Utah
as Vital Technologies, Inc., in 1983, then redomiciled in the State of Nevada in
1988. The Company was inactive from 1991 through 1996. Prior to its association
with current management, the Company was known as Peppermint Park Productions,
Inc., a development stage company with no significant assets.
In March of 1997, the Company focused on the development of Internet media
publishing and communications, at which time it adopted the name Axxess, Inc.,
and elected a new management team. On January 4, 1999, the Company adopted its
current name, in order to more accurately reflect its core business.
Business and Properties
Industry Overview
The Internet is rapidly growing into a significant global medium for
communications, news, information and commerce, particularly in the United
States. An estimated 25% of U.S. households now use the Internet, which is
projected to rise to 33% in 1999 and to 66% by 2003/1/. Some 55% of the U.S.
adult population (108 million) accessed the Internet during the final three
months of 1998, up from 40% in the first three months of the year/2/.
The Internet offers advertisers the ability to target their messages and to
make changes quickly and frequently in response to market factors, current
events and consumer feedback. Ad effectiveness is measured by the number of
"impressions" delivered to customers and the "click-through" rate to
advertisers' web sites. This level of targetability, flexibility, and
measurability is not available through traditional print or broadcast media.
Online advertising revenue was estimated at $266.9 million in 1996, $907
million in 1997/3/, and $2.1 billion in 1998. Web ad revenue of $5.5 billion is
predicted for 1999, which represents a 161.9% increase over last year/4/. Online
ad spending is expected to reach $7.1 billion by 2002/5/, and will climb to an
estimated $15 billion by 2003/6/. Online advertising is showing significantly
stronger yearly growth than television advertising/7/, has proven to be
efficacious/8/, and continues to gain ground on print advertising, as people
move from the newspaper to the Internet for news and information. Its 240%
projected growth rate has dwarfed cable television's 15.5% growth rate/9/.
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/1/ Yankee Group survey, March, 1999.
/2/ INTECO Corp. survey, January, 1999.
/3/ Fox Market Wire: "1997 a Breakthrough Year of Online Advertising", April 8,
1998, citing figures compiled by Coopers and Lybrand.
/4/ Simba Information report: "Web Advertising 1998-1999 Market Analysis and
Forecast", February, 1999 (including $2.1 billion figure for 1998); earlier
reports predicted $3.8 billion in ad revenues by the year 2000 (6th E Overview
Report of eMarketer, August, 1998). Another study by eMarketer estimates ad
revenues as follows: 1998: $1.5 billion, 1999: $2.61 billion, 2000: $4.2
billion, 2001: $6.7 billion, 2002: $8.9 billion. (CyberAtlas: Advertising:
"Increase in Ad Spending Predicted" March 25, 1999).
/5/ Supra
/6/ PC World: "Online Advertising to Increase Tenfold", August 21, 1998, citing
Forrester Research, Inc. report.
/7/ Internet Advertising Bureau, press release, April 8, 1998, citing figures
compiled by Coopers & Lybrand.
/8/ The Ipsos-ASI/AOL study of February 1999 shows that consumers are as likely
to remember an online banner ad as a television commercial; the Netratings
survey of October, 1998, concludes that "Web banner ads significantly increase
the audience reach of a product", and the February, 1999 study of online brand
loyalty by Cyber Dialogue, found that one third of consumers have changed their
perception of a brand because of online advertising.
/9/ Coopers and Lybrand report, April 1998.
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More than 38% of all U.S. financial household assets are in stocks, an
all-time high/10/. Dubbed "America's new national pastime"/11/, trading stocks
has become an online hobby for some 2.4 million American households/12/. The
number of online investors increased by 2.2 million in 1998, to more than
5.2 million/13/. The online brokerage industry as a whole accumulated
3.6 million new accounts in 1998, to end the year with 7.3 million accounts,
representing some 4.4 million investors/14/. Internet financial sites are
uniquely suited to provide on-line traders with essential information, since
print media cannot offer real-time data and broadcasters offer limited depth of
content. Many analysts believe the Internet has substantially stimulated the
recent surge in trading activity, which rose 34% in the final three months of
1998 and comprised one of every seven trades/15/.
The growing availability of online trading services and instant stock
information is allowing investors to bypass traditional stockbrokers and take
control of their own portfolios/16/. This investment population is growing/17/,
and represents a valuable demographic for potential advertisers. Online
investors have an average net worth of over $236,000, and on average have
invested more than $90,000 of their assets online/18/.
While many financial-oriented Internet sites have been developed, the
Company believes that a significant opportunity exists for an online "one-stop
shop" for investors that features unique editorial content and proprietary
analytical features, creating a targeted and demographically desirable audience
that is highly attractive to advertisers.
General Business
FWEB pursues commercial opportunities in the Internet publishing business.
The Company continues to enhance its online destination for financial
information through a network of Internet sites under the brand
"FinancialWeb(TM)." The sites provide visitors with extensive and useful
financial and investment information free of charge.
The business strategy is to gain market share by enhancing existing Company
sites, developing new Company sites, and acquiring and improving popular online
news and financial publications, market data services and related applications.
Further, the Company plans to aggressively market the content, features and
brand awareness of its products to online consumers in order to gain market
share. An easy-to-use site with strong content that is easy to download are the
core ingredients necessary to build and maintain a loyal, online audience./19/.
On March 22, 1999, FWEB entered into an agreement with Blue Hyper Media Inc. of
New York, N.Y., to redesign its site, in furtherance of its policy of close
adherence to the aforementioned criteria.
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/10/ Ned Davis Research report, March, 1999.
/11/ Cyber Atlas: Finance: "Online Investing Goes Mainstream", March 11, 1999.
/12/ Forrester Technographics Report, March 1999.
/13/ NFO Interactives study: "Online Brokerage Market: Consumers, Web Sites and
Competition," 2nd Edition, December , 1998.
/14/ Cyber Atlas: Finance: "More Than 5 Million Invest Online", February 11,
1999, citing Piper Jaffray research.
/15/ Bloomberg News: "One Third Increase in Online Traders", January 29, 1999,
citing a Credit Suisse First Boston Corp. report.
/16/ Survey results show that 40% of Americans who access the Internet do so to
obtain product information, 27% to obtain investment data and advice, and 14%
for online services. (Find/SVP: "US Internet Users Prefer Local Content",
September, 1997). Forty percent of the over 13 million US adults over the age
of 50 who have Internet access use it to help them make better investment
decisions. ( SeniorNet and Charles Schwab, Inc. study, October, 1998.)
/17/ In ZDNeT's Internet Trak Survey of January, 1999 5.1 million people said
they are very likely to trade stocks or bonds online, a 70% increase over the 3
million who traded during the 3 months before the survey was conducted.
/18/ See note 11.
/19/ Respondents cited high quality content (75%), ease of use (66%), quick
download time (58%) and frequent updates (54%) as the principal reasons for
returning to a web site. (Forrester Research: "Strong Content Means a Loyal
Audience", January 27, 1999).
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The Company plans to generate revenues principally through the sale of
advertising and sponsorships, and from the sale of products and services
marketed through its Internet sites. Additional revenues in the form of
licensing fees and commissions are anticipated through the sale of ancillary and
value-added products developed by the Company or by third parties.
FWEB's presence on the Internet currently consists of seventeen (17) web
sites united as a network under the domain name "www.FinancialWeb.com." In
addition to FinancialWeb.com, these sites include: "The SmallCap Investor" (TM),
"Quote Central" (TM), "Stock Detective" (TM), "Wall Street Guru" (TM), "Rapid
Research" (TM), "StockTools" (TM), "InvesToons" (TM), "NewsVest" (TM), "Mr.
EDGAR" (TM), "YourFunds.com" (TM), "Annual Reports OnLine" (TM), "Strike Price"
(TM), FinancialWeb University" (TM), "Bull Mart" (TM), "The Bear Tracker" (TM)
and "FWEB Weather" (TM). Five additional sites offering financial information
are under development for inclusion in the FinancialWeb.com family. As of
March 31, 1999, the sites generated over 4,000,000 page views monthly. As a
result of the recent acquisition of the DailyStocks.com sites, and current usage
growth Management anticipates that total monthly page views may increase to
7,000,000 by May of 1999. By improving these sites through the expansion of
editorial content and market data features, marketing the sites to potential new
users, raising awareness of the FinancialWeb.com brand, and acquiring sites with
substantial established traffic and related content, Management expects page
views to continue to grow.
FWEB develops content and programs for its web sites from available data,
information and software platforms and its own proprietary technology, research
and editorial resources. The Company believes that the basic technology
platforms required to implement its business plan are readily available at cost-
effective rates due to the increasing competition among computer equipment
manufacturers, Internet service providers and local and national
telecommunications companies. Nevertheless, FWEB recognizes the need for
independence. The Company maintains its own servers and Internet connections for
data development and control purposes and will seek additional external server
and Internet connections for enhanced systems redundancy. In addition, FWEB has
developed internal software to add value to FWEB's products and services and
create proprietary assets.
As the need for future software development programming, as well as sales
and administrative support, grows in significance, FWEB believes that the hiring
and retention of talented personnel will be the key to a more successful
enterprise. In order to achieve these personnel needs, FWEB has located its
corporate headquarters and base of operations in Altamonte Springs, Florida. The
Company believes this location's proximity to Orlando, Florida, provides an
attractive source of educated personnel at competitive wages. Within a year,
FWEB anticipates increasing its staff from 25, in March 1999, to approximately
35-50 full time employees. Further, the nature of its business allows FWEB the
option of retaining or contracting for personnel in such areas as editorial,
graphic arts and programming through telecommuting.
Overview
FWEB presently operates a network of seventeen (17) Internet sites united
under the domain name "www.FinancialWeb.com." In 1998, FWEB upgraded these sites
and released FinancialWeb version 2.0, which resulted in integration of standard
navigation and design elements among all FinancialWeb sites. Management believes
this has improved cross-site traffic and enhanced the network organization of
the related financial sites, which can be generally separated into two
complementary categories: editorial and market data.
Market data include, but are not limited to, the following:
. Delayed stock, bond, options and mutual fund quotes for all North
American exchanges;
. Real-time stock quotes for all U.S. exchanges during market hours;
. Portfolio tracking tools for stocks and options;
. Fundamental and technical stock screening tools;
. A variety of charting features including intra-day charts, one- and
five-year charts, plus a custom charting feature which allows for
overlaying charts of up to five securities at a time;
. Mutual fund reports and fund screening tools;
. Daily earnings announcements;
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. Analyst recommendations and opinions;
. News on individual securities;
. General market news wire stories;
. Results of major indices;
. Industry groupings;
. Stock market gainers and losers;
. Historical stock and options price and volume data;
. Economic announcements;
. Stock splits;
. SEC filings
Management believes that this collective offering of market data is
currently competitive with that offered by other leading financial sites.
Management intends to further cater to its target audience by making available
additional market data information, such as advanced portfolio tracking tools,
advanced custom charting features, stock and bond guides, commodities quotes and
charts, IPO data, and insider transaction data.
The role of editorial content is considered equally important in attracting
and retaining site visitors. Unique and proprietary editorial content is often a
lightning rod for publicity and a principal attraction for branding,
distribution and syndication. FWEB provides such content through its in-house
research, reporting and editorial staff, as well as independent contractors and
contributors. FWEB's Editor-in-Chief oversees the publication of all editorial
content.
FWEB's Stock Detective (www.stockdetective.com) site illustrates the
potential of unique editorial content. Stock Detective, which publishes original
investigative reports uncovering potential securities fraud and articles
educating investors to the dangers of excessively risky and potentially
fraudulent investments, has been featured by CBNC, Smart Money, Forbes,
Money.com and CBS MarketWatch. This publicity increases awareness of
FinancialWeb.com among its target audience while enhancing its reputation among
current users. Other original content featured on other FWEB sites includes
"Daily Guru," "The 5 O'clock Shadow," "Your Funds Daily" and "SmallCap Story
Stocks" (daily columns); "Joe Knows" (weekly); and "The SmallCap Investor Stock
of the Month" and "Bear of the Month." (monthly)
To supplement its original editorial content, FWEB provides original and
reprinted or syndicated content through independent contributors on a regular
recurring basis and from time to time as special features. Regular contributors
include well-known experts Ralph Acampora, Senior Technical Analyst at
Prudential Securities; Charles Carlson, author and syndicated financial
columnist; Al Frank, editor of The Prudent Speculator newsletter; Sheldon
Jacobs, editor of The No-Load Fund Investor newsletter; and Douglas Pike,
cartoonist and financial humorist. Occasional contributors Mark Hulbert, Forbes
columnist and editor of The Hulbert Financial Digest; James Oberweis, editor of
the Oberweis Report newsletter; Lynn O'Shaughnessy, veteran mutual fund writer;
and Geraldine Weiss, publisher of the Investment Quality Trends newsletter.
FinancialWeb intends to increase its use of well-known financial columnists and
attract and retain talented editorial staff in order to increase the quantity
and quality of its original editorial content.
Over time, FWEB has successfully acquired and incorporated web sites such
as "The SmallCap Investor" and "StockTools" into its financial information
family and intends to continue such acquisitions in the future. The Company also
plans to develop additional sites to enhance its utility to its target audience.
In 1999, FWEB expects to launch several new additions to the FinancialWeb
network including: "IPO-Zone," a comprehensive IPO site including analysis and
commentary on the companies, underwriters and industries surrounding recent
public offerings; "StreetChat," a live chat and message board service; "The
Higher Yield," providing research and editorial commentary on bonds and other
fixed-income products; and "The Stock Reporter," providing original and
exclusive editorial feature stories.
The Company believes ancillary sites designed around the target audience's
day-to-day needs will encourage visitors to remain logged on to the
FinancialWeb.com network, reinforce the FWEB brand and increase advertisers'
available inventory for ad banner sales. Utilizing the results of an extensive
survey of current FWEB users indicating the most frequently requested ideas for
new sites, the Company has developed and launched a web
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site providing weather information (weather.financialweb.com). The Company also
plans to develop search engines, sports news, yellow pages, maps, travel and
flight information, restaurant and dining guides, theater and movie guides, etc.
Furthermore, FWEB is exploring plans to develop a fully functional Financial
Services Center, which may include online trading of stocks, bonds and futures,
as well as bill-paying, credit card and transactional banking services.
E-commerce, including a corporate "gift shop" uniquely suited to the FWEB
consumer, is also under study/21/. Finally, the high level of expertise among
FWeb's computer programmers, combined with the current high demand for web-site
consulting services creates a natural niche for FWeb to provide consulting
services to other businesses, as means to generate cash flow. A consulting
service pilot project is under study.
Despite the usefulness of ancillary content, FWEB's network of financial
web sites will remain the principal focus of the Company. Management will
curtail the development of these ancillary sites in the event that the
development of these sites interferes with the progress of the financial
products.
Individual Web Sites
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The following is a description of existing and planned web sites:
Organizational Web Site
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FINANCIALWEB HOME PAGE (www.FinancialWeb.com)
LAUNCHED: March 1997
DESCRIPTION: The FinancialWeb home page serves primarily as a table of contents
to the various sites comprising the FinancialWeb network and to highlights new
features and editorial content to aid in the navigation of the sites. Its name
and address are designed to attract first-time visitors to the various
FinancialWeb sites and become a "bookmark" for Internet users. The domain name
was purchased by FWEB from its original registrant in 1997.
Current Web Sites Offering Market Data
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STRIKE PRICE (www.strikeprice.com)
LAUNCHED: November 1998
DESCRIPTION: Surveys indicate that as many as 20% of FinancialWeb site
investors invest in options. Presently, there are few sites on the Internet
offering comprehensive information for options investors. FWEB has developed
Strike Price to fill this gap, and believes that the site may become the leading
options web site by offering extensive options quote information, including
delayed options strings, option quotes, option portfolio monitoring and alert
features, plus original and contributed options editorial and educational
information. Options quote data is provided under agreements with North American
Quotations and S&P Comstock.
ANNUAL REPORTS ONLINE (www.AROL.com)
LAUNCHED: August 1998
DESCRIPTION: While many corporations offer their annual reports on their own
web sites and distributors will forward requested reports via the mail, Annual
Reports OnLine (AROL) provides an efficient central "hosting" location that
allows investors to quickly access several annual reports at once. AROL
reproduces the company's annual report in full with pictures, graphs and text,
and provides instant access to each company's current stock quote via FWEB's
Quote Central data engine and fundamental data via FWEB's Rapid Research web
site.
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/21/ Ernst & Young estimates that 38% of US Internet users made an online
purchase in 1998, and that net consumers remain considerably wealthier than the
average citizen, with 46% reporting income in excess of $50,000. Online retail
sales are expected to jump from an estimated $7.8 billion in 1998 to an
estimated $108 billion by 2003. (Forrester Research study, November, 1998.)
DeLoitte & Touche predicts a four fold increase in e-commerce over the next two
years. (The Independent: "E-commerce Explosion DeLoitte & Touche", May 27,
1998.) Price Waterhouse projects that trading in goods and services online will
revenue $434 billion by 2002. ("1998 Annual Technology Forecast").
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YOUR FUNDS.COM (www.yourfunds.com.)
LAUNCHED: August 1998
DESCRIPTION: Mutual funds account for more investor activity and advertising
dollars than perhaps any other category of personal finance. A full 44% of U.S.
households own mutual funds, according to a USA Today/Gallup poll conducted in
early 1999. YourFunds.com provides editorial coverage of the mutual fund
industry and a searchable database providing detailed, comprehensive data on
thousands of mutual funds. Fund data is accessible through a variety of
directory and fund screening applications on the site. Editorial content
currently includes regular columns contributed by George Benigno, YourFunds.com
editor and former research editor at Mutual Fund Magazine; Joseph Duarte, editor
of The Wall Street Detective web site; and Sheldon Jacobs. The site was
developed in-house and data content is obtained through a non-exclusive, non-
transferable and worldwide license with ValueLine Publishing in exchange for an
annual fee. The agreement with ValueLine expires June 1, 1999.
MR. EDGAR (www.mredgar.com)
LAUNCHED: April 1998
DESCRIPTION: A free alternative to accessing the SEC's EDGAR, Mr. EDGAR
provides access to SEC filings in easy-to-use, browser formatted web pages.
Content for Mr. EDGAR is provided by Parties Corporation, publisher of the
FreeEDGAR.com web site. While Mr. EDGAR is essentially a private-label version
of FreeEDGAR.com, it provides FinancialWeb with an alternative to referring
visitors away its own sites to obtain the same information. The agreement with
Partes Corporation requires a monthly fee and expires April 1, 1999, subject to
renewal.
STOCKTOOLS (www.stocktools.com)
LAUNCHED: February 1998
DESCRIPTION: StockTools was acquired from its original developer in February
1998. With nearly one-half million monthly page views, StockTools was one of the
first public web sites to provide free quote and graph pages inclusive of all
U.S. and Canadian stock exchanges. StockTools' proprietary programs include
"Graph Wizard," a stock graphing tool allowing a user to graph a security
against up to four other securities or industry groups. StockTools also offers a
free historical stock data tool as well as a portfolio management tool.
StockTools is scheduled for significant feature upgrades, including additional
advanced graphing capabilities that will compete with graphing features offered
by other stock sites. Data content is obtained through a non-exclusive license
with North American Quotations. The license expires on February 29, 2000,
subject to renewal.
RAPID RESEARCH (www.rapidresearch.com)
LAUNCHED: December 1997
DESCRIPTION: Completely developed in-house by FWEB's technical staff, Rapid
Research offers two stock screening modules and detailed fundamental stock
reports for approximately 8,000 listed equity securities on all U.S. exchanges.
Each Rapid Research stock report contains over 150 points of current and
historical fundamental performance data and comparative performance data
encompassing up to five years. Each report also contains an interactive
price/volume chart with five years of data. Using Java technology, the user can
zoom in on a portion of the chart for an expanded view and can point to a data
bar for a "pop-up" view of the underlying chart values. The renewable, non-
exclusive license with Media General requires a monthly fee and continues
through September 2000 under its present terms. Rapid Research has received
favorable publicity from CNBC, the Wall Street Journal, Barron's and
TheStreet.com.
QUOTE CENTRAL (www.quotecentral.com)
LAUNCHED: April 1997
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DESCRIPTION: Quote Central provides a variety of detailed and historical stock
and index quote information and links those quotes to additional information
about each security to its charts, news, research, fundamental data and other
corresponding information on the FinancialWeb network. Delayed quotes are
available for securities listed on all U.S. and Canadian exchanges and free
real-time quotes are available during market hours for all securities listed on
the U.S. exchanges. Quote Central also provides users with free portfolio
tracking tools, symbol searching tools and comparative quote data, including
intra-day market leaders and laggards. FinancialWeb plans to integrate a new
product called "FinancialWeb Anywhere" that would include portable quote and
portfolio data to be emailed, faxed or delivered to a user's pager or other
digital communications. Quote data is provided to FWEB under agreements with
North American Quotations and S&P Comstock.
Current Web Sites Offering Editorial Content
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BULL MART (www.bullmart.com)
LAUNCHED: December 1998
DESCRIPTION: FWEB management believes that its visitor demographics, consistent
with the nature of the sites' content, can be characterized as having
significant disposable income. As the Internet is increasingly used as a point-
of-purchase marketplace, the Company believes BullMart can capitalize on the
purchasing power of its target audience by selling financially related goods
such as books and software. Revenues from Bull Mart sales will be derived from
commissions, markup or from gross sales for products distributed by FinancialWeb
and in cooperation with various merchandising partners. FWEB has contracted with
Amazon.com, Enews and T. shipley for sales of books, magazines and business
accessories.
FINANCIAL WEB UNIVERSITY (www.fwuniversity.com)
LAUNCHED: September 1998
DESCRIPTION: An increasing number of consumers accessing the Internet are
relative novices to the ways of investing. Others are eager to enhance or hone
their skills. FinancialWeb University (FWU) seeks to appeal to both groups while
enhancing the attraction of every web site in the FinancialWeb family. Presently
in an early stage of development, FWU will be segregated into three categories:
an interactive glossary, the FWU's University curriculum and a question-and-
answer forum. FWU will seek contributions from leading financial analysts and
personalities to lend additional credibility and attraction to FWU. Planned
curriculum will consist of a four-tier "college" divided into freshman,
sophomore, junior and senior courses. Each course will be followed by an
interactive, on-line exam and the student's progress will be tracked through his
or her own cyber-transcript, complete with grades and a cumulative grade-point
average. Students completing the curriculum and a final exam will be awarded a
virtual diploma that can be printed from the user's browser.
NEWSVEST (www.newsvest.com)
LAUNCHED: July 1998
DESCRIPTION: While financial news sites are common, FinancialWeb integrates
such content into its existing web sites and on a separate branded site,
NewsVest.com. By integrating news to other sites and features, management
believes visitors are likely to stay longer within the FinancialWeb network,
thus increasing page views. Additionally, by having its own branded news site,
FWEB hopes to attract new users and compete for market share with established
online and off-line news distributors by offering unique or convenient features.
Raw news data is
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provided through a non-exclusive license from the Comtex Scientific Corporation
in exchange for a monthly fee. The agreement expires February 25, 1999, subject
to renewal.
THE BEAR TRACKER (www.beartracker.com)
LAUNCHED: February 1998
DESCRIPTION: This site offers researched editorial content targeted to
investors seeking "contrary" or short sell investment strategies. BearTracker's
main feature is a monthly article centering on a short sell evaluation of a
widely followed stock. Additional articles suggest other short sell candidates
and provide extensive educational content about short selling. BearTracker is
licensed by FinancialWeb.com, Inc. under an agreement with its owner and editor
for a monthly fee. The license expires December 23, 1999.
INVESTOONS (www.investoons.com)
LAUNCHED: February 1998
DESCRIPTION: Launched in February 1998, FWEB has obtained an exclusive license
with Douglas Pike, whose "Doubtful Accounts" cartoon is gaining popularity among
cyber-investors. Additional cartoons and text-based humor, including financial
parodies, jokes and related content, are featured or being developed. The
license expires on December 19, 1999.
WALL STREET GURU (www.wallstreetguru.com)
LAUNCHED: October 1997
DESCRIPTION: Wall Street Guru offers a free and searchable database of stock
recommendations from dozens of top investment analysts and editors covering
thousands of securities. Wall Street Guru also includes a daily service that
provides brokerage upgrades and downgrades, public-company earnings
announcements, market headlines and commentaries, plus regular and special
articles from well-known financial analysts and editors including Ralph
Acampora, Charles Carlson and Al Frank.
STOCK DETECTIVE (www.stockdetective.com)
LAUNCHED: May 1997
DESCRIPTION: Stock Detective is an investigative and educational news journal
featuring original content dedicated to exposing potential investment scandals
and stock fraud. The site has been featured in Money, Forbes, CNBC, Smart Money
and Worth magazines, and has become a point-of-entry for first time visitors to
the FinancialWeb network. In addition, the Stock Detective has gone offline as a
monthly column in OnLine Investor magazine.
THE SMALLCAP INVESTOR (www.smallcapinvestor.com)
LAUNCHED: December 1995.
DESCRIPTION: The SmallCap Investor is the oldest site in the FinancialWeb
network. The SmallCap Investor features comprehensive information on small- and
micro-capitalization stocks, including research, IPO information, educational
tools, a Stock of the Month selection and its own trademarked stock index called
The MicroCap50. A companion newsletter, started in April 1997, is e-mailed
weekly to over 20,000 subscribers. The newsletter adds revenues by providing
special merchandise and subscription offers to its readers. The SmallCap
Investor has been featured in articles in Individual Investor magazine and
Barron's. The SmallCap Investor site was purchased in 1997.
Financial Web Sites in Development (in order of proposed development)
---------------------------------------------------------------------
IPO-ZONE (www.ipo-zone.com)
ESTIMATED LAUNCH: spring 1999
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DESCRIPTION: FWEB is developing IPO-Zone to provide timely and comprehensive
information about upcoming offerings, new issues and the progress of recent
IPOs. In addition, management plans to feature articles and columns about IPO
markets and investing in IPOs by staff writers and independent contributors.
STREET CHAT (www.streetchat.com)
ESTIMATED LAUNCH: spring 1999
DESCRIPTION: Internet discussion applications, both live "chat" and "message
boards," have proven successful in generating substantial traffic for several
web sites. However, chat rooms have become ubiquitous and many have little or no
significant activity. Nevertheless, FWEB believes it can successfully offer
discussion applications by offering access to targeted interests through its own
sites that have gained audience traffic and loyalty.
THE HIGHER YIELD (www.higheryield.com)
ESTIMATED LAUNCH: spring/summer 1999
DESCRIPTION: Management believes there is little information about fixed-income
securities, including corporate and municipal bonds, on the Internet. At the
same time, most off-line resources are expensive and less timely. With a large
portion of the population approaching retirement, the demand for information
about fixed-income investments is expected to increase significantly.
Alternatively, when interest rates increase or equity markets sour, investors
often turn attention to fixed-income opportunities. The Company plans to develop
Higher Yield to provide an extensive data base of bond information, including
detailed reports, quotes, screening tools, performance data and editorial and
educational content.
THE STOCK REPORTER (www. thestockreporter.com)
ESTIMATED LAUNCH: spring/summer 1999
DESCRIPTION: A publishing enterprise is usually judged by the quality of its
editorial content. While each site in the FinancialWeb family contains content
unique to its character, topic or identity, the Stock Reporter is planned to
encompass all topics of interest to the investing public. Original articles and
columns by FWEB staff writers and outside contributors will regularly feature
topics ranging from personal finance to technical analysis, economics and market
outlooks.
Ancillary Content Web Sites
---------------------------
CELEBRITY SLUG FEST (www.slugfest.com)
ESTIMATED LAUNCH: spring/summer 1999
DESCRIPTION: An ancillary site concept used to draw visitors interested in
entertainment and games, Celebrity SlugFest will feature downloadable games
portraying a variety of celebrity characters which users can play against in a
simulated boxing match. Celebrity SlugFest was available online for
approximately two years and had as many as 3 million monthly page views before
it was temporarily discontinued. The site's content and domain name are being
acquired by FWEB from its creator who is also developing additional financial-
theme celebrity characters for inclusion in FWEB's InvesToons Internet site.
WEATHER@FINANCIALWEB ([email protected])
LAUNCH DATE: December 1998
DESCRIPTION: FWEB Weather is the first of several planned ancillary sites.
Designed around the target audience's day-to-day needs, the Company believes
such ancillary sites will deter visitors from leaving the FinancialWeb.com
domain in search of non-financial information. By offering information that is
frequently sought on the Internet, the Company hopes to increase both its
potential pageviews and its attractiveness to advertisers.
Competition
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Because of the Internet's relative infancy, rapidly changing
characteristics and low cost of entry, significant competition exists and will
continue to exist in the area of Internet publishing. Currently, competitive
force comes from on-line networks, search engines and financial Internet
publishers. Examples of these competitors are as follows: networks (America
Online, Microsoft Network, etc.); search engines (Yahoo, Infoseek, etc.); and
financial Internet publishers (Hoover's, Wall Street City, The Wall Street
Journal Interactive, CBS MarketWatch, Motley Fool, TheStreet.com, etc.). The
Company believes some of these are as comprehensive as the FinancialWeb network
of sites, but require subscriptions and payments for certain information. FWEB
management does not presently know of any other vertically integrated Internet
publishing network of financial sites offering as much information free of
charge as the Company. As investors increase their use of the Internet, FWEB
believes it can draw new Internet users and acquire users from competitors.
One of the key components of FWEB's sites is the development of new and
proprietary products. FWEB currently licenses a portion of its data and
applications from external information vendors for redistribution. These
licensing agreements provide FWEB's web publications with sophisticated and
extensive news and market data content, immediately enhancing its appeal to a
wider target audience. However, by further developing its own proprietary
content, FWEB will be able to reduce its dependency on third-party information
providers while continuing to build content, circulation and revenues without
unnecessary interruption.
REVENUE SOURCES
Banner Advertising.
The competition for advertising dollars is intense, but the dollars
available are growing. Jupiter Communications, a leading Internet research firm,
estimates that Web advertising in the U.S. will grow from $940 million in 1997
to over $7.6 billion by the year 2002. Ad rates for many web sites have remained
stable at $10 to $50 per 1,000 pages viewed, but significant discounting is
prevalent in the market. Because FWEB's financial content attracts a competitive
market demographic, it can generally command a higher advertising rate per ad
unit than web sites with content focused on less wealthy users. FWEB's rate of
$40 per 1,000 pages viewed has received little or no resistance from potential
or present ad buyers, but management has offered discounts in exchange for such
items as extended contracts.
OEM Products, Licensing & Redistribution.
As an Original Equipment Manufacturer (OEM) of financial content web pages
and Internet sites, FWEB believes it can increase available advertising page
inventory, enhance its brand recognition and earn revenues from creating and
hosting private label and co-branded web pages and web sites. Markets for these
products include other businesses wanting to provide financial information on
their own sites, including stock quotes, portfolio tools and other market data
and editorial content. The Company believes these businesses include, but are
not limited to, stock brokerages, mutual fund companies, insurance companies,
newspaper publishers, magazines, Internet Service providers (ISPs), universities
and libraries. Revenue models will vary, ranging from fee-only-based models to
joint ventures based on advertising revenue sharing.
E-Commerce & Subscriptions.
Analysts expect that, within seven years, as much as 10% of all retail
sales transactions will occur over the Internet. The Internet as a point-of-sale
commerce vehicle provides profit opportunity for all online publishers and
content providers. Thus, FWEB views its web sites not only as hosts for
advertisers and a source of OEM products, but also as an e-commerce portal
trafficked by hundreds of thousands of consumers with significant disposable
incomes. FWEB's initial foray into e-commerce is the creation of Bull Mart, an
online store catering specifically to the needs of consumers visiting the
FinancialWeb network of sites. FWEB expects to develop additional e-commerce
sites or joint ventures which will take advantage of the captive audience of
consumers visiting FinancialWeb sites.
Further revenue may be earned through the distribution and sale of branded
financial information products and services to individual consumers and
businesses. Management believes such products will be necessary to meet
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the evolving needs of its target audience and will provide a means of leveraging
the brand identity of FWEB. Examples of branded products include applications of
live-streaming quotes, news and analysis that are not dissimilar to products
which are currently sold by established financial information companies. These
premium services would be generally superior in technology and in features to
those offered for free by the FinancialWeb network.
PATENTS, TRADEMARKS, LICENSES, FRANCHISES, CONCESSIONS, ROYALTY, AGREEMENTS AND
LABOR CONTRACTS
Perhaps the singular most important and costly part of developing Internet
publications is the acquisition of content. FWEB's long-term goal is to create
increasing amounts of original, proprietary content. Currently, FWEB has several
licensing agreements with owners of copyrighted published materials to add to
the current content on the FinancialWeb web sites. These include: (1) a
Distributor Agreement with Media General Financial Services (MGFS) that grants
the Company a non-exclusive license to install, market and distribute selected
elements of MGFS's database of common stock information in exchange for monthly
fees; (2) a Distributor Agreement with North American Quotations, Inc. that
grants the Company a non-exclusive license to receive and redistribute real-time
and delayed quote data from U.S. and Canadian exchanges in exchange for monthly
royalties and fees; (3) a Distributor Agreement with S&P Comstock that grants
the Company a non-exclusive license to receive and redistribute real-time and
delayed quote data from U.S. and Canadian exchanges in exchange for monthly
fees; (4) a Distributor Agreement with Comtex Scientific Corporation that grants
the Company a non-exclusive right to market and distribute Comtex news data in
exchange for monthly fees; (5) a Distributor Agreement with ValueLine Publishing
that grants the Company a non-exclusive, non-transferable and worldwide license
to promote, distribute and market ValueLine data in exchange for an annual fee;
(6) a Content Licensing Agreement with Douglas Pike that expires December 19,
1999, and grants the Company an exclusive license to install, market and
distribute editorial content known as "Doubtful Accounts" in exchange for a
monthly royalty fee; (7) a Content Licensing Agreement with Nathaniel Cohen that
grants the Company an exclusive license to install, market and distribute
editorial content known as "Bear Tracker" in exchange for a portion of the
advertising revenues associated with his articles; (8) a Linking Agreement with
Partes Corporation that grants the Company a non-exclusive license and right to
market and distribute Partes' SEC EDGAR data in exchange for a licensing fee;
(9) a License Agreement with SportsTicker Enterprises that grants to the Company
a non-exclusive right to store, display distribute and transmit SportsTicker's
sports-related information in exchange for a monthly service fee; (10) a License
Agreement with Infoseek Corporation that allows the Company to customize
Infoseek software; and (11) a License Agreement with Weathernews, Inc., that
grants FWEB a non-exclusive license to distribute weather information and
forecasts in exchange for a monthly fee.
GOVERNMENT APPROVAL AND REGULATION
There are currently few laws or regulations specifically regulating the
Internet. However, the government is grappling with the effect of the emergence
of the Internet, and laws and regulations may be adopted in the future
addressing issues such as user privacy, pricing, usage and distribution. For
example: the Telecommunications Act sought to prohibit transmitting certain
types of information and content over the Web; the Federal Communications
Commission has been asked to regulate Internet services in a manner similar to
long distance telephone carriers and to impose access fees on these companies;
and the Securities and Exchange Commission has discussed the appropriateness of
information distributed over the Internet regarding publicly traded companies
and has discussed problems associated with chat rooms and message board services
in particular. Regulation in these and other areas could result in increased
costs of transmitting data over the Internet or the imposition of other
restrictions adversely affecting FWEB. Moreover, it may take years to determine
the extent to which existing laws relating to issues such as property ownership,
libel and personal privacy are applicable to the Internet
RESEARCH AND DEVELOPMENT EXPENSES
FWEB does not presently budget or isolate all its research and development
costs. These costs are generally included in overhead as they are attributed
principally to salary and other expenses associated with maintaining programming
personnel who spend varying amounts of time dedicated to both research and
development of new online features and applications and to the administration
and maintenance of those sites and applications.
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<PAGE>
COSTS AND EFFECTS OF COMPLIANCE WITH ENVIRONMENTAL LAW
FWEB is not aware of any significant present or future impact on its
business due to compliance with environmental laws.
EMPLOYEES
As of March 15, 1999, FWEB employed twenty-five (25) persons, including
twenty-three (23) full-time employees; three (3) are executives of FWEB. The
Company is not a party to any material labor contract or collective bargaining
agreement. To date, FWEB has experienced no labor stoppages and management
believes that relations with employees are satisfactory.
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND PLAN OF
OPERATIONS
The following discussion contains forward-looking statements that are
subject to significant risks and uncertainties. There are several important
factors that could cause actual results to differ materially from historical
statements. The Company has sought to identify the most significant risks to its
business, but cannot predict whether or to what extent any of such risks may be
realized nor can there be any assurance that the Company has identified all
possible risks that might arise.
OVERVIEW
The Company, through its current operations and new management, researches,
develops and publishes audio/visual, electronic and print media. From March of
1997 to date, the Company's operating activities have related primarily to
developing its Internet products, recruiting personnel and purchasing operating
assets. The Company derives its revenues primarily from the sale of advertising.
RESULTS OF OPERATIONS
The Company began its Internet business in March of 1997. The Company
expects to experience significant fluctuations in operating results in future
periods due to a variety of factors, including, but not limited to: (i) the
Company's ability to create, license, and deliver compelling financial and other
content; (ii) the level of traffic on the Company's websites' (iii) intense
competition from other providers of similar content over the Internet; (iv)
delays or errors in the Company's ability to effect electronic commerce
transactions; (v) the Company's ability to upgrade and develop its systems and
infrastructure in a timely and effective manner: (vi) technical difficulties,
system downtime or Internet brownouts; (vii) the Company's ability to attract
customers at a steady rate and maintain customer satisfaction; (viii)
seasonality of advertising sales; (ix) Company promotions and sales programs;
(x) the amount and timing of operating costs and capital expenditures relating
to expansion of the Company's business, operations, and infrastructure and the
implementation of marketing programs, key agreements and strategic alliances;
(xi) the level of returns experienced by the Company; and (xii) general economic
conditions and economic conditions specific to the Internet, online commerce,
and the financial industry.
NET REVENUE
The Company earned net revenue of $68,977 in 1997 and $159,529 in 1998. The
Company believes that future revenues will result largely from the sale of
advertising space on the Company's website, and related sponsorship programs and
from its emerging e-commerce business.
COST OF REVENUES
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<PAGE>
For the fiscal years ended December 31, 1997, and 1998, the Company
incurred costs of revenues of $54,454 and $218,562, respectively. The Company
expects that future costs of revenues will consist of payments to third parties
for fulfillment of customer orders, royalties, copyrights, credit card
processing charges, and profit participation payable to strategic alliance
partners and others.
PRODUCT DEVELOPMENT EXPENSES
Product development expenses consist principally of website and other
software engineering, audio and video production, graphic design, certain
non-recoverable advances to editorial contributors, contributor relations,
telecommunications charges, and the cost of computer operations, including
related salaries, rent, and depreciation, that support the Company's business.
The Company began its development efforts in March 1997, incurring costs
related to software and hardware engineering, graphic design and editorial
content development of the Company's Internet sites. The Company is dependent
upon raising additional financing in order to continue or increase its product
development activities and website acquisition. The level of product development
and website acquisition that the Company pursues will be substantially impacted
by the amount of additional financing, if any, that the Company is able to
raise.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
For the fiscal years ended December 31, 1997 and December 31, 1998, the
Company incurred selling, general and administrative expenses of $383,928 and
$1,165,302, respectively. The Company is dependent upon raising additional
financing in order to continue or increase the level of sales and marketing
activities from that undertaken by the Company to date. The level of sales and
marketing activities that the Company pursues will be substantially impacted by
the amount of additional financing, if any, that the Company is able to raise.
Assuming that adequate funding is available, the Company currently intends,
among other matters, to promote its websites through strategic alliances,
external advertising, website direct promotion, and trade shows. The Company
expects that the costs related to such activities will consist principally of
advertising, personnel, and consulting expenses.
General and administrative expenses consist of executive management,
accounting, legal, and expenditures for applicable overhead costs, including
related rent, insurance, and depreciation. The Company expects general and
administrative expenses to continue to increase in absolute dollars as the
Company expands its staff and incurs additional costs related to the grown of
its business.
LIQUIDITY AND CAPITAL RESOURCES
The Company received $560,000 and $1,726,653 from its financing activities
for the fiscal years ended 1997 and 1998. Net cash used by operating activities
for those years was $356,672 and $1,244,413, respectively.
The Company has approximately $1,650,000 cash on hand, which is considered
sufficient to continue current operations for at least 12 months. The Company
will require additional funds to expand its sales and marketing, research and
development activities and its strategic alliances and website acquisitions.
Management is in the process of pursuing additional equity financing, although
there is no assurance that such efforts will be successful. Adequate funds for
these and other purposes, whether through additional equity financing, debt
financing or other sources, may not be available when needed or on terms
acceptable to the Company, or may result in significant dilution to existing
stockholders. The inability to obtain sufficient funds from operations and
external sources would have a material adverse effect on the Company's business,
results of operations and financial condition.
RISKS ASSOCIATED WITH THE YEAR 2000
The Year 2000 issue is the result of computer programs written using
two digits rather than four to define the applicable year. As a result,
date-sensitive software may recognize a date using "00" as the year 1900 rather
than the year 2000. This could result in system failures or miscalculations
causing disruptions of operations,
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including, among others, a temporary inability to process transactions, send
invoices, or engage in similar normal business activities.
Since the Company's systems and software are relatively new, management
does not expect Year 2000 issues related to its own internal systems to be
significant and does not anticipate that it will incur significant operating
expenses or be required to invest heavily in computer systems improvements to be
Year 2000 compliant. As the Company makes arrangements with significant
suppliers and service providers, the Company intends to determine the extent to
which the Company's interface systems may be vulnerable should those third
parties fail to address and correct their own Year 2000 issues. The Company
anticipates that this will be an ongoing process as the Company begins to
implement supplier and service provider arrangements through 1999. There can be
no assurance that the systems of suppliers or other companies on which the
Company relies will be converted in a timely manner and will not have a material
adverse effect on the Company's systems. Additionally, there can be no assurance
that the computer systems necessary to maintain the viability of the Internet or
any of the Web sites that direct consumers to the Company's websites will be
Year 2000 compliant. As part of the Company's Year 2000 compliance plan, the
Company is developing plans to operate its websites from different systems
and/or at a different location in the event of any significant disruption as a
result of the Year 2000 issues. The Company believes it is taking the steps
necessary regarding Year 2000 compliance with respect to matters within its
control. However, no assurance can be given that the Company's systems will be
made Year 2000 compliant in a timely manner or that the Year 2000 problem will
not have a material adverse effect on the Company's business, financial
condition and results of operations.
ITEM 3 - DESCRIPTION OF PROPERTY
OFFICE SPACE
FWEB leases approximately 3,700 square feet of office space at 201 Park
Place, Altamonte Springs, Florida, 32701 for $4,400 per month. The lease is for
one year, but is renewable at FWEB's option for an additional year. Currently,
the facility is adequate for the Company's operations, but Management expects
that additional facilities will be needed prior to the expiration of the lease.
OTHER
FWEB owns or leases various computer equipment, telecommunications
equipment, furniture and office machinery at its location on Altamonte Springs.
The Company has leased a 1999 Acura automobile for 24 months, expiring October
2000.
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ITEM 4 - SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
(a) The following individuals hold five percent (5%) or more of the
outstanding voting stock of the Company. No other individual or any group is
known to the Company to be the beneficial owner of more than five percent (5%)
if any class of the Company's voting securities.
<TABLE>
<CAPTION>
NAME AND ADDRESS OF AMOUNT AND NATURE OF PERCENT OF
TITLE OF CLASS BENEFICIAL OWNER BENEFICIAL OWNER CLASS
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Masada I, L.P. 950,385 (1) 19.21%
c/o Howard Schwartz, Esq.
Boca Corp Center
2101 Corporate Blvd. Ste. 204
Boca Raton, FL 33431
Common John J. Katsock, Jr. 1,109,386 (2) 18.46%
277 Park Avenue
27th Floor
New York, NY 10172
Common Kevin A. Lichtman 907,000 (3) 18.33%
201 Park Place
Altamonte Springs, FL 32701
Common Glenn B. Laken 1,000,000 pursuant to a warrant 16.81%
30 S. Wacker, Ste. 1606 exercisable at $4.00 per share
Chicago, Il 60606
Common Frank Musolino 1,000,000 pursuant to a promissory 16.81%
1623 North Riverhills Dr. note convertible at $.50 per share
Temple Terrace, FL 33617
Common Allen & Company Incorporated 979,321 pursuant to a warrant 16.52%
711 5th Avenue exercisable at $4.00 per share
New York, New York 10022
Common Hampton Venture Capital I, L..P. 457,000 owned directly 9.24%
c/o FinancialWeb.com, Inc.
201 Park Place
Altamonte Springs, FL 32701
Common Cacique Partners, LP 402,000 owned directly 8.12%
c/o FinancialWeb.Com, Inc.
201 Park Place
Altamonte Springs, FL 32701
Common Web Venture Capital, Inc. 301,000 owned directly 6.08%
c/o FinancialWeb.com, Inc.
201 Park Place
Altamonte Springs, FL 32701
(1) Excludes 175,000 shares of Common Stock owned by The Harmat Organization, Inc. The chief executive officer and
principal shareholder of The Harmat Organization, Inc. is related to persons who may be deemed to beneficially
own or control Masada I, L.P. These persons deny any group control of their respective shares.
(2) Includes 1,000,000 shares issuable upon conversion of a warrant, 62,500 shares issuable upon the conversion
of certain notes payable, and 46,886 other shares.
(3) Includes 500,000 shares owned directly, 402,000 shares controlled as general partner of Cacique Partners, LP,
and 5,000 shares owned by his wife Rocio Lichtman, of which shares he denies beneficial ownership.
</TABLE>
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<PAGE>
(b) The following includes beneficial ownership information for all
current executive officers and directors and all who served as directors or
executive officers in 1997 and 1998. Tabular information is provided for
outstanding securities plus any securities that a person has a right to acquire
within 60 days pursuant to options, warrants, conversion privileges or other
rights.
<TABLE>
<CAPTION>
NAME AND ADDRESS OF AMOUNT AND NATURE OF PERCENT OF
TITLE OF CLASS BENEFICIAL OWNER BENEFICIAL OWNER CLASS
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Kevin A. Lichtman, 907,000 (1) 18.33%
President/Director
201 Park Place
Altamonte Springs, FL 32701
Common Jeffrey Grossman 110,000 direct 2.22%
Vice President/Director
(March 1997 to March 1999)
201 Park Place
Altamonte Springs, FL 32701
Common Martin Averbuch 50,000 (2) 1.00%
Director
c/o FinancialWeb.com, Inc.
201 Park Place
Altamonte Springs, FL 32701
Common John D. Bergen 55,000, (3) 1.10%
Director
1789 Wrightstown Road
Newtown, PA 18940
Common James P. Gagel 10,000 (4) 0.20%
Executive Vice President/Director
201 Park Place
Altamonte Springs, FL 32701
Common All directors and executive 1,145,000 22.86%
officers as a group (7 persons)
(1) Includes 500,000 shares owned directly, 402,000 shares controlled as general partner of Cacique Partners, LP.
and 5,000 shares owned by his wife Rocio Lichtman, of which shares he denies beneficial ownership.
(2) Pursuant to a Director Service Agreement, Mr. Averbuch has options to purchase 100,000 shares of Common Stock
vesting 25,000 on execution and 25,000 each quarter of 1999, exercisable at $5.00 per share; 50,000 are exercisable in
the next 60 days.
(3) Includes 5,000 shares owned directly and 50,000 options exercisable in the next 60 days under a Director
Service Agreement that grants a total of 100,000 options vesting 25,000 on execution and 25,000 each quarter of 1999
exercisable at $5.00 per share. Mr. Bergen also owns a limited partnership interest in Prime Equity Fund, L.P., a
beneficial owner of Common Stock and an entity controlled by John J. Katsock, Jr.
(4) Pursuant to an option to purchase 10,000 shares of Common Stock for $0.75 a share exercisable as of 2/4/99.
Mr. Gagel has also been granted an option to purchase 25,000 shares of Common Stock for $3.94 a share exercisable as
of 12/1/99.
</TABLE>
(c) Management knows of no arrangements that may result in a change of
control of the Company.
ITEM 5 - DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS
The following presents directors, executive officers, promoters and control
persons of the Company as of April 1, 1999.
Name Age Title Term of Office
Kevin A. Lichtman 38 President Indefinite
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Chairman of the Board 3 Years
James Gagel 43 Executive Vice-President Indefinite
Secretary Indefinite
Director 3 Years
Martin Averbuch 47 Director 2 Years
John D. Bergen 56 Director 2 Years
Jeffrey Abbott 42 Chief Information Officer Indefinite
John Keating 38 Vice President Marketing Indefinite
Carl Surran 41 Managing Editor Indefinite
KEVIN A. LICHTMAN. Mr. Lichtman has been President and Chairman of the
Board of FWEB and has been since March 3, 1997. From 1995 to 1997 Mr. Lichtman
was Director of Marketing for a financial public relations firm. From 1990 to
1995, Mr. Lichtman was National Sales Manager of a financial publishing company.
From 1987 to 1990, Mr. Lichtman was an investor correspondent with the National
Corporation for Housing Partnerships. Mr. Lichtman has over 14 years experience
in publishing and corporate communications. Mr. Lichtman has been involved in
the development, management and marketing of financial publications, trade shows
and electronic media. Mr. Lichtman holds a bachelors degree in Government and
Politics from the University of Maryland.
JAMES GAGEL. Mr. Gagel was named a Director and Secretary of FWEB on
February 5, 1998, Corporate Counsel on December 1, 1998, and Executive Vice
President on March 1, 1999. He is responsible for matters pertaining to
corporate governance, contracts, acquisitions, intellectual property, licensing,
libel law, labor issues, insurance, litigation, and compliance with local, state
and federal laws. Prior to joining FWEB, Mr. Gagel was in private practice in
Washington, D.C., where he specialized in representing development stage
companies in domestic and international markets. A former Fulbright Scholar, Mr.
Gagel is a graduate of Duke University and Rutgers University Law School. He is
a member of the bars of New York, New Jersey, the District of Columbia, and is
awaiting admission to the Florida Bar.
MARTIN AVERBUCH. Mr. Averbuch was named a director of FWEB on March 18,
1999. He is currently President and CEO of Adirondack Trading Partners, LLC, a
consortium formed to finance the International Securities Exchange. Mr. Averbuch
is a founder of the International Securities Exchange the first fully electronic
options exchange in the United States. Mr. Averbuch was with E*TRADE Group, Inc.
between August 1993 and August 1998 and served in various capacities, including,
Vice President On-Line Ventures, Vice President Special Projects, and President
of E*TRADE Capital, Inc. a subsidiary of E*TRADE Group, Inc. In addition, Mr.
Averbuch has served on the Advisory Board of Roundtable Partners LLC, and is
currently on the Board of Directors for Knight/Trimark Group, Inc. Mr. Averbuch
has experience in international business development as well as entrepreneurial
experience in several manufacturing companies. Mr. Averbuch served as a
professor at Hofstra University in the Department of Finance from 1977 to 1978.
He received a B.S. in Economics from the Wharton School of Finance at the
University of Pennsylvania in 1974 and M.B.A. and J.D. degrees from the
University of Chicago in 1977.
JOHN D. BERGEN. Mr. Bergen was named a director of FWEB on March 18, 1999.
Mr. Bergen is currently President of the Council of Public Relations Firms. He
joined the Council from CBS Corporation, where he directed the company's
external and internal communications, including public and investor relations,
government affairs, corporate marketing, and employee communications. Mr. Bergen
previously served as President and Chief Executive Officer of GCI Group, the
International Public Relations and Government Affairs arm of Grey Advertising.
He taught English, philosophy and ethics at West Point and was a strategic
planner in the Pentagon and chief speech writer to Secretary of Defense Caspar
Weinberger during the Reagan administration. Mr. Bergen completed his master's
degree in English at Indiana University and completed his undergraduate work at
West Point. He is the editor of the Corporate Communications sections of the
Management Handbook, published by the
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<PAGE>
American Management Association, and an author of a Test for Technology, a book
on electronic warfare and technology in the Vietnam war.
JEFFREY ABBOTT. Mr. Abbott is the Chief Information Officer of FWEB. Prior
to his joining the Company in 1998, Mr. Abbott held key management and technical
positions with several Fortune 500 companies, including Microsoft Corporation,
Federal Express, and Hughes Supply Inc. Mr. Abbott holds a B.S. in Business
Administration from Chadwick University, is a Microsoft Certified Solution
Developer, and a Microsoft Certified Trainer. His most recent achievements
include being recognized in 1996 and 1997 as a Microsoft MVP (most valuable
professional), and in 1998 leading a development team to the finals in the
Windows World Open.
JOHN KEATING. Mr. Keating is Vice president of Sales and Marketing. He is
principally responsible for managing and expanding the Company's advertising
revenue. Mr. Keating brings marketing and sales experience in both the
publishing and financial services industries. Prior to joining the Company in
1998, Mr. Keating was President of Guidera Communications Corporation. Mr.
Keating holds a Bachelors degree from Wilkes University in Wilkes-Barre,
Pennsylvania.
CARL SURRAN. Mr. Surran is the Editor-in-chief at FWEB and brings 18 years
of experience to the Company. Prior to joining FWEB, Mr. Surran served as
editor-in-chief of Personal Investing News, and International Money &Politics.
Previously, he edited several nationally-distributed financial newsletters.
Mr. Surran also served as an aid to U.S. Senator Paula Hawkins from 1981-87.
Mr. Surran is a graduate of Duke University with an MBA from Rollins College.
Mr. Gagel is Mr. Lichtman's brother-in-law. As of April 15, l999, there
were no other family relationships among the directors and executive officers.
Further, no director, executive officer, promoter or control person has been
involved in any legal proceedings during the past five years that are material
to an evaluation of the ability or integrity of such director, person nominated
to become a director, executive officer, promoter or control person of the
Company. None of the individuals listed in this Item 5 has had a bankruptcy
petition filed by or against any business of which such person was a general
partner or executive officer either at the time of such bankruptcy, if any, or
within two years prior to that time. No director, executive officer, promoter or
control person was or has been convicted in a criminal proceeding or is subject
to a pending criminal proceeding or subject to any order, judgment, or decree,
not subsequently reversed, suspended, or vacated, of any court of competent
jurisdiction, permanently or temporarily enjoining, borrowing, or otherwise
limiting his or her involvement in any type of business, securities or banking
activities. No director, executive officer, promoter or control person has been
found by a court of competent jurisdiction in a civil action to have violated
federal or state securities or commodities laws.
18
<PAGE>
ITEM 6 - EXECUTIVE COMPENSATION
The following table sets forth the compensation that the Company paid
during its last two fiscal years to its chief executive officer and the most
highly compensated executive officers and directors. No information has been
shown for executive officers and directors receiving less than $100,000
compensation in the last fiscal year. The current executive officers have only
served since 1997. The Company has conducted its present business since that
time.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
Annual compensation Long term compensation
Awards Payouts
Securities
Restricted stock underlying Other
Name and principal position Year Salary Bonus Total award(s) options/SARs Compensation
<S> <C> <C> <C> <C> <C> <C> <C>
($) ($) ($) ($) (#)
(a) (b) (c) (d) (e) (f) (g)
Kevin A. Lichtman,
President 1997 $120,000 5,000
1998 $135,000 13,749.72 (1)
(1) 1999 Acura leased by the Company at approximately $625 per month beginning October 1998.
</TABLE>
EMPLOYMENT CONTRACTS
On April 1, 1997, the Company entered into an Employment Agreement with
Kevin A. Lichtman, the President of FWEB for a term of three (3) years subject
to renewal. The agreement was amended on November 4, 1998. Pursuant to the
Agreement the Company pays to Mr. Lichtman a gross salary of One Hundred Twenty
Thousand ($120,000) Dollars per annum for the first year, One Hundred Thirty-
Five Thousand ($135,000) Dollars for the second year and One Hundred Fifty
Thousand ($150,000) Dollars each year thereafter. In addition to the annual wage
the Company is to provide hospitalization and medical coverage, which shall
cover Mr. Lichtman and his family, and reimbursement for all reasonable expenses
incurred by him in the performance of his duties. Mr. Lichtman is entitled to
three (3) weeks paid vacation each year. In the event that during the term of
his employment, should he become incapacitated he will continue to receive his
salary for a period of three (3) months. In the event of termination, his salary
and benefits are guaranteed for sixteen (16) months, regardless of employment
status. Mr. Lichtman would also be reimbursed for all reasonable job search
costs.
On December 1, 1998, the Company entered into an employment agreement with
James P. Gagel, the Executive Vice President, Secretary and General Counsel of
FWEB for a term of three (3) years subject to renewal. The agreement was amended
on February 1, 1999. Pursuant to the amendment, the Company pays to Mr. Gagel a
gross salary of $86,000 per annum for the first year, $98,000 per annum for the
second year, and $112,000 per annum for each year thereafter. In addition to the
annual wage, the Company is to provide hospitalization and medical coverage for
Mr. Gagel and reimburse all reasonable expenses incurred by him in the
performance of his duties. Mr. Gagel is entitled to fifteen (15) days paid
vacation each year. In the event of termination, Mr. Gagel's salary and benefits
are guaranteed for eighteen (18) months, regardless of employment status. Mr.
Gagel was also given an option to purchase 25,000 shares of Common Stock on
December 1, 1998 at a closing price of $3.94 per share, 25,000 shares at the
closing price of December 1, 1999, and 25,000 shares at the closing price of
December 1, 2000.
On October 1, 1998, the Company entered into an Employment Agreement with
Jeffrey Abbott, the Chief Information Officer of the Company. The Agreement is
for a term of three (3) years commencing October 1, 1998, and ending on
September 31, 2001. The Agreement is automatically renewed for successive one
(1) year periods unless either the Company or Mr. Abbott delivers written notice
that the Agreement will not be extended. The
19
<PAGE>
Company pays to Mr. Abbott a gross salary of Eighty Thousand and No/100 Dollars
($80,000.00) in the first year, with increases determined upon the performance
of Mr. Abbott and the Company. In addition, Mr. Abbott was granted an option to
purchase 10,000 shares of the Company's Common Stock at $3.37-1/2 per share to
vest on September 30, 1999. Options are likewise granted for the purchase of
10,000 shares of the Company's Common Stock at the closing price on October 1,
1999 and another 10,000 shares at the closing price on October 1, 2000, which
vest on September 30, 2000 and September 30, 2001, respectively. Furthermore,
Mr. Abbott is provided with medical insurance coverage for himself and fifteen
(15) days of vacation each calendar year. Unless terminated for cause, Mr.
Abbott, is also guaranteed his salary for eight (8) months after his
termination, plus reimbursement for all reasonable job search and placement
costs.
On February 9, 1998, the Company entered into an Employment Agreement with
John Keating, the Vice President in charge of Sales and Marketing. Mr. Keating
is employed at will by the Company and receives a commission on of the gross
amount of the revenue from the sales of advertising, website design, and in-site
hosting services attributed to Mr. Keating's, with a minimum annual salary. In
addition, Mr. Keating is entitled to receive a bonus if certain performance
goals are met.
On July 21, 1997, the Company entered into an Employment Agreement with
Carl Surran, the Managing Editor of the Company. Mr. Surran is an employee at
will but the agreement specifies his annual salary
ITEM 7 - CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
On March 3, 1997, the Company purchased the Internet web site "The SmallCap
Investor" and the domain "financialweb.com" from Jeffrey A. Grossman for $60,000
and 10,000 shares of Common Stock. Mr. Grossman was a Vice President and a
director of the Company until March 2, 1999.
The Company owes $150,436 in principal amount under a promissory note
payable to The Harmat Organization, Inc., at an annual interest rate of 9.75%,
which is due upon the Company's raising of at least $5,000,000 or on
December 14, 1999 whichever comes first. The chief executive officer and
principal shareholder of The Harmat Organization, Inc. is related to persons who
may be deemed to beneficially own or control Masada I, L.P., a major shareholder
of this Company
ITEM 8 - LEGAL PROCEEDINGS
Currently, there are two claims against the Company. The first complaint
was filed by DNA Medical Technologies, Inc., against FWEB, Kevin Lichtman and
Forbes, Inc., in the United States District Court for the Northern District of
Iowa on November 16, 1998. The suit alleges that FWEB and Forbes defamed the
plaintiff by publishing information harmful to its business. The allegedly
defamatory statements were published by FWEB on its StockDetective.com web site
and republished by Forbes on November 10 and November 16, 1998. FWEB has reached
a settlement agreement, in principle, with plaintiff's counsel whereby FWEB
would publish a clarifying statement about the plaintiff with no payment of
monetary damages.
The second complaint was filed by Great White Marine and Recreation, Inc.,
and Colin Alvis Smith against FWEB and Lynn Duke in the 74th Judicial District
Court of McLennan County, Texas, on November 19, 1998. The suit claims that FWEB
and Ms. Duke defamed the plaintiffs by publishing information alleging that the
plaintiffs had engaged in dishonest and criminal acts. The allegedly defamatory
statements were published by FWEB on its StockDetective.com web site on or about
October 29, 1998 and on or about November 2, 1998. The plaintiffs claim
unspecified damages. FWEB management believes that it has meritorious defenses
and that it will successfully defend the suit.
ITEM 9 - MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
At the time of filing, only a limited market existed for common shares of
the Company. As of April 7, 1999, the Company had outstanding 4,948,385 shares
of Common Stock with a par value of $ .001 per share.
20
<PAGE>
According to the records of the Company's transfer agent, AlphaTech Stock
Transfer, a total of 2,093,979 of those shares were freely tradeable over the
counter.
(a) The Common Stock has been traded on the over the counter market since
March of 1997. The high and low bid prices, in fraction and decimal form,
for 1997, 1998 and the first quarter of 1999 are as follows:
1997
----
High Low
1st Quarter (March 3 to March 31) 10 (10.000) 6 (6.000)
2nd Quarter 7 1/2 (7.500) 5 (5.000)
3rd Quarter 8 5/8 (8.625) 6 (6.000)
4th Quarter 8 3/4 (8.750) 1/4 (0.250)
1998
----
High Low
1st Quarter 3 5/8 (3.625) 5/16 (0.3125)
2nd Quarter 7/8 (0.875) 1/4 (0.250)
3rd Quarter 3 1/2 (3.500) 3/8 (0.375)
4th Quarter 11 1/8 (11.125) 2 1/4 (2.250)
1999
----
High Low
1st Quarter 27 3/4 (27.750) 10 1/2 (10.500)
The quotations above reflect interdealer prices without retail markup, mark down
or commission, and may not represent actual transactions.
(b) As of April 7, 1999, the Company had 167 Shareholders of record of its
common stock.
(c) FWEB has not previously paid cash dividends on its Common Stock. The
payment of cash dividends from current earnings is not prohibited by any
agreements to which FWEB is a party, but is subject to the discretion of the
Board of Directors and will be dependent upon many factors, including FWEB's
earnings, its capital needs and its general financial condition. FWEB currently
does not intend to pursue a policy of payment of dividends, but rather to
utilize any excess proceeds to finance the development and expansion of its
business.
ITEM 10 - RECENT SALES OF UNREGISTERED SECURITIES
From March of 1997 through March of 1998, the Company sold a total of
1,200,000 shares of its Common Stock, $.001 par value, at a price of $.50 per
share. These shares were sold under Rule 504 of Regulation D of the Securities
Act of 1933 for a total consideration of $600,000. The proceeds were used for
working capital and the acquisition of web sites. The shares were sold by the
Company and no commissions or discounts were paid.
In July of 1998, the Company sold an additional 400,000 shares of its
Common Stock, $.001 par value, under Rule 504 at a price of $1.00 per share. No
commissions or discounts were paid and the proceeds of $400,000 were used by the
Company for working capital and web site acquisitions.
21
<PAGE>
The exemption under Rule 504, is available to any issuer who is not a
reporting company pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, or not a development stage company that either
has no specific business plan or purpose or has indicated that its business plan
is to engage in a merger or acquisition with an unidentified company or
companies, or other entity or person. Rule 504 allowed companies to sell up to
$1,000,000 of its securities within a 12-month period in an exempt transaction
to an unlimited number of investors without regard to the investment
sophistication of the investor. In the registration provisions which require the
delivery of a prospectus before sale, there was no restriction on resale of the
securities by investors. Thus, the Common Stock issued under the Rule 504
exemption was "free-trading" and not restricted under federal law.
In March of 1997, the Company issued 10,000 shares of its Common Stock,
$.001 par value, to Jeffrey Grossman as part of the consideration for "The
SmallCap Investor" web site and domain name "financialweb.com". Also in March of
1997, the Company issued 1,000 shares of its Common Stock to Gene Homicki under
a Domain Purchase Agreement as part of the consideration for the Internet web
site and domain name "financialweb.com." In May of 1998, the Company issued
100,000 shares of its Common Stock to Randall B. Shepardson under the terms of a
Purchase Agreement as part of the consideration for the Internet web site and
domain name "stocktools.com." Under an Agreement dated April 1, 1999, the
Company will issue up to 130,000 shares of its Common Stock to DailyStocks, Inc.
and Mr. Mike Onghai for the Internet websites and domain names
"DailyStocks.com," and "DailyStocks.net." The Company relied upon the private
placement exemption under Section 4(2) of the Act, including Regulation D, for
these transactions.
In December of 1998, 100,000 shares of Common Stock, $.001 were issued
to Rock Company, Inc. in full settlement of $292,367.12 of debt. Pursuant to a
warrant agreement exercised on December 28, 1998, the Company issued 775,385
shares of Common Stock to Masada I, L.P.; the exercise was cashless. On
December 15, 1998, 175,000 shares of Common Stock were issued to The Harmat
Organization, Inc. pursuant to the exercise of a warrant at $.25 per share. The
Company cancelled $43,750 of its outstanding debt to The Harmat Organization,
Inc. in exchange for the total exercise price. As consideration for financial
services under a letter agreement dated August 20, 1998, the Company promised
Spencer Trask Securities, Inc. a warrant to purchase 200,000 shares of Common
Stock at $.50 per share. This letter agreement is currently in dispute and no
warrant certificate has been issued. On March 31, 1999, the Company signed an
engagement letter with Allen & Company Incorporated as exclusive financial
advisor. Under this agreement, Allen & Company Incorporated will receive
warrants to purchase 979,321 shares of Common Stock at $4.00 per share. The
Company relied upon the private placement exemption under Section 4(2) of the
Act, including Regulation D, for both the original warrant issuances and their
subsequent exercise. The warrants were issued to "accredited investors" as that
term is defined by Rule 501 of the Securities Act for investment purposes,
without solicitation or advertisement by the Company.
In December 1998, the Company executed a promissory note for $500,000 in
principal amount, payable to Frank Musolino and convertible into Common Stock at
an exercise price of $.50 per share, subject to adjustment. In January and March
of 1999 the Company issued two warrants for 1,000,000 shares of Common Stock
each exercisable at $4.00 per share to Glenn B. Laken and to John J. Katsock,
Jr., respectively, under the terms of Consulting Agreements with those
individuals. In February of 1999 the Company executed promissory notes for
$500,000 in principal amount convertible at $4.00 per share subject to
adjustment, and in March of 1999 an additional $1,500,000 in principal amount at
the same conversion price. The Company paid a commission of $150,000 on the
placement of the March notes. FWeb also executed two notes in March each for
$150,000 in principal amount, convertible at $4.50 per share. The Company has
relied upon the private placement exemption under Section 4(2) of the Act for
the above transactions. These notes and warrants were sold to "accredited
investors" as that term is defined by Rule 501, for investment purposes, without
solicitation or advertisement by the Company.
In 1998 the Company issued 118,000 shares of Common Stock to employees
under compensation arrangements. The Company relied on Rule 701 and the private
placement exemptions of the Act for these issuances.
ITEM 11 - DESCRIPTION OF SECURITIES
The Company is authorized to issue 100,000,000 shares of Common Stock, par
value $.001 per share. As of April 7, 1999, 4,948,385 shares of Common Stock are
outstanding, held of record by approximately 167 persons. The holders of Common
Stock are entitled to one vote for each share held of record on all matters to
be voted on by stockholders. There is cumulative voting with respect to the
election of directors, with the result that the holders of less than 50% of the
shares voting for the election of directors can elect some of the directors. The
holders of
22
<PAGE>
Common Stock are entitled to receive dividends when, as and if declared by the
Board of Directors out of the funds legally available therefor. In the event of
the liquidation, dissolution or winding up of the Company, the holders of Common
Stock are entitled to share ratably in all assets remaining available for
distribution after payment of liabilities and after provision has been made for
each class of stock, if any, having preference over the Common Stock. Holders of
shares of Common Stock, as such, have no conversion, preemptive or other
subscription rights, and there are no redemption provisions applicable to the
Common Stock, except by agreement.
Various registration rights are outstanding with respect to the Common
Stock. The Company has agreed to register the shares issuable upon exercise of a
warrant held by John J. Katsock Jr., within 30 days after the effectiveness of
this Form 10-SB. Some of the convertible notes entered into in March of 1999
provide for demand registration of the underlying shares. All the convertible
noteholders have the right to "piggy-back" onto a registration of the Company's
securities, other than in connection with a merger or pursuant to Form S-8
or S-4. Masada I, L.P., The Harmat Organization, Inc., Frank Musolino, Gary
Gould, Alcott Simpson & Co., Inc., Rock Company, Inc. and Stewart International
Investments, Ltd. also have piggy-back registration rights. In a few cases the
Company is liable for a loss of profit to the holders of such registrable
securities, if it does not timely file a registration statement or expeditiously
prepare amendments or supplements thereto. With respect to the shares issuable
upon exercise of the warrant held by Glenn B. Laken and John J. Katsock, Jr.,
the Company might also be required to redeem any issued shares at market price
or any warrants at the difference between exercise price and market price, if it
does not timely file a registration statement for the underlying shares.
The Company through its Board of Directors is also authorized to issue up
to 10,000,000 shares of Preferred Stock, none of which are currently
outstanding. The Preferred Stock when issued may have dividend, voting,
liquidation and other rights superior to the Common Stock.
The Company has never paid any dividends. Future dividends, if any, will be
contingent upon the Company's revenues and earnings, if any, capital
requirements and general financial condition subsequent to the consummation of a
business combination. The payment of dividends is within the discretion of the
Company's Board of Directors. The Company presently intends to retain all
earnings, if any, for use in the Company's business operations and accordingly,
the Board does not anticipate declaring any dividends in the foreseeable future.
However, there are no current restrictions on the payment of dividends either by
contract or regulation.
ITEM 12 - INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is incorporated in Nevada. Under Sections 78.7502 and 78.751 of
the Nevada Revised Statutes, a Nevada Company may, under specified
circumstances, indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the Company, or is
or was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement, actually and reasonably incurred by a director,
officer, employee or agent of the Company in connection with the action, suit or
proceeding, provided that such provision shall not eliminate or limit the
liability of an individual applying for indemnification if, unless otherwise
ordered by a court, a final adjudication establishes that (i) his acts or
omissions involved intentional misconduct, fraud, or a knowing violation of the
law and (ii) the act or omission was material to the cause of action.
FWEB's Articles of Incorporation and Bylaws provide that the Company may
indemnify its officers, directors, employees and agents to the fullest extent
permissible under Nevada law. Directors and officers shall be, and employees and
agents may be, upon adoption of a resolution of the Board of Directors,
indemnified if made a party or threatened to be made a party, or involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, arbitrative or investigative, or any appeal of such an
action or any inquiry or investigation that could lead to such an action,
against judgments, penalties (including excise and similar taxes and punitive
damages), fines, settlements and reasonable expenses (including, without
limitation, attorneys' fees) actually incurred in connection with such action.
The Board of Directors has the option of making any indemnification payments in
advance and to purchase and maintain insurance to protect itself and its
officers, directors, employees and agents. These indemnification rights are
non-exclusive, but they will not eliminate or limit
23
<PAGE>
the liability of any directors, officer, employee or agent to the extent that
such person is found liable for: (i) a breach of a duty of loyalty to the
Company or its members; (ii) an act or omission not in good faith that
constitutes a breach of duty to the Company or involves intentional misconduct
or a knowing or reckless violation of the law; (iii) a transaction from which
the director, officer, employee or agent received an improper benefit, whether
or not the benefit resulted from an action taken within the scope of the
individual's duties; or (iv) an act or omission for which liability is expressly
provided by an applicable statute.
The Company currently maintains a Directors and Officers liability
insurance policy with an annual aggregate limit of $5,000,000.
24
<PAGE>
ITEM 13 - FINANCIAL STATEMENTS
(a) Annual Financial Statements
Following are annual financial statements for the years ended 1997 and
1998. The Company has conducted its current business since March of 1997.
(b) Interim Financial Statements
[None]
25
<PAGE>
FINANCIALWEB.COM, INC.
FINANCIAL STATEMENTS
DECEMBER 31, 1998
26
<PAGE>
FINANCIALWEB.COM, INC.
DECEMBER 31, 1998
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
- --------------------------------------------------------------------------------
Page
Auditor's Report 3
Balance Sheets 4
Statements of Operations 5 - 6
Statements of Cash Flows 7
Statements of Changes in Stockholders' Equity 8
Notes to Financial Statements 9 - 13
27
<PAGE>
Jere J. Jane
Certified Public Accountant
2901 NW 112 Avenue
Coral Spring, FL 33065
Tele: (954) 340-2848 / Fax: (954) 340-7519
INDEPENDENT AUDITOR'S REPORT
To the Board of Directors and Stockholders' of
FinancialWeb.com, Inc.
f/k/a Axxess, Inc.
201 Park Place, Suite 321
Altamonte Springs, FL 32701
I have audited the accompanying balance sheets of FinancialWeb.com, Inc., f/k/a
Axxess, Inc. (the Company) as of December 31, 1998 and 1997, and the related
statements of operations, cash flows and stockholders' equity for the years then
ended. These financial statements are the responsibility of the Company's
management. My responsibility is to express an opinion of these financial
statements based on my audit.
I conducted my audit in accordance with generally accepted auditing standards.
Those standards require that I plan and perform the audit to obtain reasonable
assurance about whether the consolidated financial statements are free of
material misstatement. An audit includes examining on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management as well as evaluating the overall financial statement
presentation. I believe that my audit provides a reasonable basis for my
opinion.
In my opinion, the financial statements referred to above present fairly in all
respects the financial position of FinancialWeb.com, Inc., f/k/a Axxess, Inc.,
as of December 31, 1998 and 1997 and the results of its operations and cash
flows for the years then ended in conformity with generally accepted accounting
principles.
April 14, 1999
Coral Springs, Florida
28
<PAGE>
FINANCIALWEB.COM, INC.
BALANCE SHEETS
DECEMBER 31, 1998 AND 1997
<TABLE>
<CAPTION>
ASSETS
1998 1997
-------------- --------------
<S> <C> <C>
CURRENT ASSETS:
Cash $ 322,480 $ 82,802
Stock Subscription Receivable 200,000 -
Prepaid Expenses 113,515 147,389
Deposits 5,580 2,150
-------------- --------------
Total Current Assets 641,575 232,341
PROPERTY AND EQUIPMENT 188,745 46,540
OTHER ASSETS:
Intellectual Property 186,947 62,833
-------------- --------------
TOTAL ASSETS $ 1,017,267 $ 341,714
============== ==============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accrued Expenses $ 266,203 $ 150,436
Notes Payable 750,436 260,000
-------------- --------------
Total Current Liabilities 1,016,639 410,436
-------------- --------------
TOTAL LIABILITIES 1,016,639 410,436
STOCKHOLDERS' EQUITY:
Common Stock, $.001 Par Value, 100,000,000 Shares Authorized,
4,973,000 and 2,680,000 Shares, Respectively, Issued and Outstanding 4,973 2,680
Discount on Common Stock (216) (1,167)
Additional Paid-In Capital 1,672,688 338,746
Accumulated (Deficit) (1,676,817) (408,981)
-------------- --------------
TOTAL STOCKHOLDERS' EQUITY 628 (68,722)
-------------- --------------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 1,017,267 $ 341,714
============== ==============
</TABLE>
The accompanying notes are an integral part of
the financial statements.
29
<PAGE>
FINANCIALWEB.COM, INC.
STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31, 1998 AND 1997
<TABLE>
<CAPTION>
1998 1997
------------ ---------
<S> <C> <C>
NET REVENUES $ 159,529 $ 68,977
Cost of Revenues 218,562 54,454
----------- ---------
GROSS MARGIN (59,033) 14,523
Selling, General and Administrative Expenses 1,165,302 383,298
Interest Expense 43,501 4,324
----------- ---------
NET (LOSS) $(1,267,836) $(373,099)
=========== =========
</TABLE>
The accompanying notes are an integral part of
the financial statements.
30
<PAGE>
FINANCIALWEB.COM, INC.
STATEMENT OF OPERATIONS (CONTINUED)
FOR THE YEARS ENDED DECEMBER 31, 1998 AND 1997
<TABLE>
<CAPTION>
1998 1997
----------- ---------
BASIC (LOSS) PER COMMON SHARE
(Loss) available to Common Stockholders $(1,267,836) $(373,099)
=========== =========
Weighted Weighted
Shares Fraction Average Shares Fraction Average
Dates Outstanding Outstanding of Period Shares Outstanding of Period Shares
----------- --------- ------ ------------ --------- ------
<S> <C> <C> <C> <C> <C> <C>
January 1 - February 5 2,680,000 36 / 365 264,329 80,000 36 / 365 7,890
February 6 - March 2 2,880,000 25 / 365 197,260 80,000 25 / 365 5,479
March 3 - March 26 2,880,000 24 / 365 189,370 2,080,000 24 / 365 136,767
March 27 - April 23 2,880,000 28 / 365 220,932 2,380,000 28 / 365 182,575
April 24 - May 19 3,098,000 26 / 365 220,679 2,380,000 26 / 365 169,534
May 20 - July 14 3,498,000 56 / 365 536,679 2,380,000 56 / 365 365,151
July 15 - September 8 3,498,000 56 / 365 536,679 2,680,000 56 / 365 411,178
September 9 -November 30 3,898,000 83 / 365 886,395 2,680,000 83 / 365 609,425
December 1 - December 14 3,998,000 14 / 365 153,348 2,680,000 14 / 365 102,795
December 15 - December 27 4,173,000 13 / 365 148,627 2,680,000 13 / 365 95,452
December 28 - December 31 4,973,000 4 / 365 54,499 2,680,000 4 / 365 29,370
------------ ------------
Weighted-average shares 3,408,797 2,115,616
============ ============
BASIC (LOSS) PER COMMON SHARE $(0.37) $(0.18)
====== ======
The equation for computing basic loss per common share is:
Loss available to common stockholders / Weighted-average shares
</TABLE>
The accompanying notes are an integral part of
the financial statements.
31
<PAGE>
FINANCIALWEB.COM, INC.
STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1998 AND 1997
<TABLE>
<CAPTION>
1998 1997
----------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net (Loss) $(1,267,836) $(373,099)
Adjustments to reconcile Net (Loss)
to Net Cash Used by Operating Activities
Depreciation and Amortization 77,212 13,530
(Increase) in Stock Subscription Receivable (200,000) -
(Increase) Decrease in Prepaid Expenses 33,874 (147,389)
(Increase) in Deposits (3,430) (2,150)
Decrease in Loans Receivable - 2,000
Increase in Accrued Expenses 115,767 150,436
----------- ---------
Net Cash Used by Operating Activities (1,244,413) (356,672)
----------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital Expenditures (242,562) (122,070)
----------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Increase in Notes Payable 490,436 260,000
Stock Issuances 1,236,217 300,000
----------- ---------
Net Cash Flows from Financing Activities 1,726,653 560,000
----------- ---------
NET DECREASE IN CASH 239,678 81,258
CASH AT BEGINNING OF YEAR 82,802 1,544
----------- ---------
CASH AT DECEMBER 31, 1998 AND 1997 $ 322,480 $ 82,802
=========== =========
</TABLE>
The accompanying notes are an integral part of
the financial statements.
32
<PAGE>
FINANCIALWEB.COM, INC.
STATEMENTS OF STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1998 AND 1997
<TABLE>
<CAPTION>
Discount on Additional Total
Common Common Paid-In Accumulated Stockholders'
Stock Stock Capital Deficit Equity
----------- ------------ -------------- ------------- --------------
<S> <C> <C> <C> <C> <C>
BALANCES AT JANUARY 1, 1997 $ 2,000 $ 37,426 $ (35,882) $ 3,544
Net (Loss) for the Year Ended
December 31, 1997 (373,099) (373,099)
Private Placement of 200,000 Shares 200 99,800 100,000
Stock Issued to Officers and Directors 2,000 $ (2,000)
Stock Issued for Services 400 199,600 200,000
Amortization of Stock Discount 833 833
Effective Change in Common Stock
in Connection with Reverse Stock Split (1,920) 1,920
----------- ------------ -------------- ------------- --------------
BALANCES AT DECEMBER 31, 1997 2,680 (1,167) 338,746 (408,981) (68,722)
Net (Loss) for the Year Ended
December 31, 1998 (1,267,836) (1,267,836)
Private Placement of 1,100,000 Shares 1,100 991,267 992,367
Stock Issued for Services 118 (118)
Stock Issued for Intellectual Property 100 99,900 100,000
Stock Issued Pursuant to Exercise of Warrants 975 242,775 243,750
Amortization of Stock Discount 1,069 1,069
----------- ------------ -------------- ------------- --------------
BALANCES AT DECEMBER 31, 1998 $ 4,973 $ (216) $ 1,672,688 $(1,676,817) $ 628
=========== ============ ============== ============= ==============
</TABLE>
The accompanying notes are an integral part of
the financial statements.
33
<PAGE>
FINANCIALWEB.COM, INC.
NOTES TO FINANCIAL STATEMENTS
ORGANIZATION BACKGROUND
FinancialWeb.com, Inc., f/k/a Axxess, Inc. , designs, develops, purchases and
manages internet based business publications. The Company's corporate offices
are in Altamonte Springs, Florida.
The Company was incorporated on May 16, 1983 in the State of Utah under the name
of Vital Technologies, Inc., then re-domiciled itself in Nevada in 1988. The
Company was inactive from 1991 through 1996. On March 3, 1997 the Company
changed its name to Axxess, Inc., reverse split the issued and outstanding
shares in a one for twenty-five transaction, changed directors and entered the
business of multimedia publishing and communications. On January 4, 1999 the
Company adopted its current name, in order to more accurately reflect its core
business.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Cash -- The Company considers all highly liquid debt instruments purchased with
a maturity of ninety days or less to be the equivalent of cash for financial
statement purposes.
Property and Equipment -- Property and Equipment are stated at cost.
Depreciation is calculated on the various asset classes over their estimated
useful lives as follows:
Equipment, Furniture and Fixtures 5 - 7
Computer Equipment 5
Intellectual Property -- Intellectual Property is stated at cost. Amortization
is computed using the straight-line method over five years.
Revenue and Cost Recognition -- Revenues and the related Cost of Revenues are
recognized upon publication of the customer's advertising on the Company's web
sites or for design services pursuant to agreement.
Income Taxes -- The Company accounts for income taxes pursuant to Statement of
Financial Accounting Standards No. 109. Under such standard, deferred taxes are
computed based on the tax liability or benefit in future years of the reversal
of temporary differences in the recognition of income or deduction of expenses
between financial and tax reporting purposes. The principal item resulting in
the difference is depreciation. The net difference, if any, between the
provision for taxes and taxes currently payable is reflected in the balance
sheet as deferred income taxes. Deferred tax assets and/or liabilities are
classified as current or noncurrent based on the classification of the related
asset or liability for financial reporting purposes, or on the expected reversal
date for deferred taxes that are not related to an asset or liability. A
valuation allowance is provided for deferred tax assets that do not meet a "more
likely than not" criterion.
Use of Estimates -- Management of the Company uses estimates and assumptions in
preparing financial statements in accordance with generally accepted accounting
principles. Those estimates and assumptions affect the reported amounts of
assets and liabilities as well as revenues and expenses. Actual results could
vary from the estimates management has utilized.
34
<PAGE>
FINANCIALWEB.COM, INC.
NOTES TO FINANCIAL STATEMENTS
PREPAID EXPENSES
Prepaid Expenses includes consulting fees, professional fees and rent paid in
advance. On March 8, 1997 the Company entered into a consulting agreement for
various advisory services. The Company tendered 400,000 shares of $.001 par
value common stock, valued at $.50 per share, for the services, which are being
amortized over the term of the agreement.
Prepaid Expenses consists of the following as of December 31, 1998:
Consulting Fees $ 77,777
Professional Fees 22,700
Prepaid Automobile Lease 13,038
--------
Prepaid Expenses $113,515
========
PROPERTY AND EQUIPMENT
Property and Equipment consists of the following as of December 31, 1998:
Equipment, Furniture and Fixtures $ 39,276
Computer Equipment 177,607
--------
Total Property and Equipment 216,883
Less: Accumulated Depreciation 28,138
--------
Property and Equipment $188,745
========
INTELLECTUAL PROPERTY
Intellectual Property consists of the following as of December 31, 1998:
Internet Web Sites $237,650
SQL Data Base 10,000
--------
Total Intellectual Property 247,650
Less: Accumulated 40,723
Amortization --------
$186,947
Intellectual Property ========
35
<PAGE>
FINANCIALWEB.COM, INC.
NOTES TO FINANCIAL STATEMENTS
NOTES PAYABLE
Notes Payable including Accrued Interest consists of the following as of
December 31, 1998:
Note payable, due December 14, 1999, including $2,667
accrued interest thereon at 12% $502,667
Note payable, due on demand, including
$611 accrued interest thereon at 9.75% 151,047
Note Payable, due August 12, 1999, including
$1,869 accrued interest thereon at 9.75% 51,869
Note Payable, due on demand , including
$5,063 accrued interest thereon at 9.75% 30,063
Note Payable, due on demand, including $1,063 imputed
interest thereon at 9.75%
26,063
Total Notes Payable and Accrued Interest --------
$761,709
========
INCOME TAXES
The Company neither incurred an expense for nor benefit from any current or
deferred income taxes for the year ended December 31, 1998, based on the more
likely than not criterion of Statement of Financial Accounting Standards No.
109. The Company has approximately $1,600,000 of loss carryforwards to offset
future taxable income expiring through the year 2013.
CAPITAL STOCK TRANSACTIONS
Preferred Stock -- During the year ended December 31, 1997 the Company
authorized a class of Preferred Stock consisting of 10,000,000 shares at $.001
par value, with characteristics to be determined later by the Board of
Directors. No Preferred stock has been issued as of the date of this financial
statement.
Common Stock Issuances -- During the year ended December 31, 1998 the Company
issued 1,100,000 shares of its $.001 par value common stock through private
placements, 118,000 shares of its $.001 par value common stock to employees in
exchange for services, 100,000 shares of its $.001 par value common stock for a
web site and 975,000 shares of its $.001 par value common stock pursuant to
tendered warrants.
Stock Purchase Warrants -- On August 15, 1997 the Company authorized and issued
to The Harmat Organization , Inc. the rights to purchase ("warrants") 1,000,000
shares of the $.001 par value common stock of FinancialWeb.com, Inc. on payment
of $.50 per share so purchased, subject to certain terms and conditions. The
warrants were issued simultaneous with a loan agreement wherein Harmat agreed to
provide funds for FinancialWeb. The original warrants were subsequently returned
to the Company as part
36
<PAGE>
FINANCIALWEB.COM, INC.
NOTES TO FINANCIAL STATEMENTS
of a new agreement between the parties. On July 13, 1998 the Company issued to
Harmat the rights to purchase 175,000 shares of the $.001 par value common stock
of FinancialWeb.com, Inc. on payment of $.25 per share so purchased , subject to
certain terms and conditions. All of the warrants were exercised on December 15,
1998 by The Harmat Organization.
Stock Purchase Warrants -- On July 1, 1998 the Company authorized and issued to
Masada I, L.P. the rights to purchase ("warrants") 800,000 shares of the $.001
par value common stock of FinancialWeb.com, Inc. on payment of $.25 per share so
purchased, subject to certain terms and conditions. The warrants were issued in
connection with a consulting agreement executed on that date wherein Masada I,
L.P. agreed to provide certain advisory services related to identifying and
negotiating mergers and acquisitions, reviewing acquisition documents, reviewing
and negotiating licensing agreements and assisting in identifying capital and
lending sources. All of the warrants were exercised on December 28, 1998 by
Masada I, L.P..
Convertible Debt -- On December 14, 1998 the Company received $500,000 pursuant
to the provisions of a convertible note agreement, wherein, the note holder has
the option to convert the principal and accrued interest of any portion of the
note at the rate of $.50 of principal for each share of Common Stock which price
per share shall be payable by surrender of such portion of the convertible note.
COMMITMENTS AND CONTINGENCIES
Employment Agreements -- The Company has employment agreements with its officers
providing for base salaries totaling $305,083, $214,500 and $170,834 in the
years ending December 31, 1999, 2000 and 2001 respectively. Additionally, the
Company had an agreement with a consultant totaling $10,000 per month that
expired in March, 1999.
Facilities Lease -- FinancialWeb.com, Inc. leases its office space pursuant to
an agreement dated September 30, 1998. The lease commenced October 1, 1998 for a
period of one year with an additional one year option available to the Company.
Monthly payments amount to $4,119 in the initial year and $4,325 in the option
year. Rent expense for the years ended December 31, 1997 and 1998 was $11,043
and $48,292, respectively.
Litigation -- The Company is presently defending two separate claims brought by
plaintiffs alleging defamation resulting from published reports on
FinancialWeb's StockDetective.com web site. In management's opinion, based on
the advise of legal counsel, the ultimate outcome of these lawsuits will not
have a material adverse effect on the Company's financial statements.
Disputes -- The Company is currently disputing the validity of a letter
agreement with a consultant wherein the consultant was to receive the right to
purchase ("warrants") 200,000 shares of the $.001 par value common stock off
FinancialWeb.com, Inc. on payment of $.50 per share. No warrant certificate has
been issued regarding this agreement as of the date of these financial
statements.
SUBSEQUENT EVENTS
Subsidiaries -- On February 3, 1999 the Company filed Articles of Incorporation
for SlugFest.com, Inc. and StockDetective.com, Inc., Nevada subsidiaries, each
authorized to issue 100,000 shares of their respective no par common stock and
10,000 shares of their respective no par preferred stock.
37
<PAGE>
FINANCIALWEB.COM, INC.
NOTES TO FINANCIAL STATEMENTS
Convertible Debt -- On February 11, 1999, March 24, 1999 and April 14, 1999 the
Company received, net of commissions, $500,000, $300,000 and $1,350,000 pursuant
to several new 9.75% one year convertible notes amounting to $500,000, $300,000
and $1,500,000, respectively. The note holders have the option to convert the
principal and accrued interest of any portion of the notes at the rate of $4.00
of principal for each share of Common Stock, which price per share shall be
payable by surrender of such portion of the convertible notes.
Stock Purchase Warrants -- Pursuant to various post year ended December 31, 1998
agreements the Company authorized and issued additional rights to purchase
("warrants") shares of the $.001 par value common stock of FinancialWeb.com,
Inc. as follows:
<TABLE>
<CAPTION>
Exercise
Number of Date of Expiration Price
Description Warrants Issue Date per Share
- ------------------------ --------------- ---------------------- ---------------------- --------------
<S> <C> <C> <C> <C>
Consulting Agreement 1,000,000 January 6, 1999 January 5, 2000 $4.00
Consulting Agreement 1,000,000 March 10, 1999 March 9, 2004 $4.00
Directors Services 100,000 March 24, 1999 March 23, 2004 $5.00
Financial Advisor 979,321 March 31, 1999 March 30, 2009 $4.00
</TABLE>
38
<PAGE>
ITEM 14 - CHANGES IN AND DISAGREEMENT WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
The Company has had no disagreements with its accountants regarding
accounting or financial disclosure matters.
ITEM 15 - FINANCIAL STATEMENTS AND EXHIBITS
(a) List of Financial Statements
Auditor's Report Fiscal Year Ended December 31, 1998
Audited Balance Sheet for the Fiscal Year Ended December 31, 1998 and
1997
Audited Statement of Operations for the December 31, 1998 and 1997
Audited Statement of Cash Flows for the December 31, 1998 and 1997
Audited Statement of Changes In Stockholders' Equity for December 31,
1998 and 1997
Notes to 1998 and 1997 Financial Statements
(b) List of Exhibits
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
NUMBER -----------
-------
<S> <C>
3.1 - Amended and Restated Articles of Incorporation of
FinancialWeb.com, Inc.
3.2 - Bylaws of FinancialWeb.com, Inc.
4.1 - Articles IV, VI & VII of the Amended and Restated Articles of
Incorporation of FinancialWeb.com, Inc. (see Exhibit 3.1)
4.2 - Articles 2, 6, and 7 of the Bylaws of FinancialWeb.com, Inc. (see
Exhibit 3.2)
4.3 - Purchase Agreement with Jeffrey A. Grossman, dated March 3, 1997
4.4 - Registration Rights Agreement with Alcott Simpson & Co., Inc.,
dated March 10, 1997
4.5 - Registration Rights Agreement with Stewart International
Investments, Ltd., dated March 10, 1997
4.6 - Warrant to Purchase Common Stock for Masada I, L.P. and
Registration Rights Agreement, dated July 1, 1998
4.7 - Warrant to Purchase Common Stock for The Harmat Organization,
Inc. and Registration Rights Agreement, dated July 13, 1998
4.8 - Registration Rights Agreement with Alcott Simpson & Co., Inc.,
</TABLE>
39
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
dated July 17, 1997
4.9 - Registration Rights Agreement with Rock Company, Inc., dated July
17, 1997
4.10 - Convertible Note payable to Frank Musolino due December 14, 1999
4.11 - Warrant Agreement with Glenn B. Laken, dated January 6, 1999
4.12 - Warrant Agreement with John J. Katsock, dated March 10, 1999
4.13 - Convertible Note payable to Larry Riesberg , dated February 12, 1999
4.14 - Convertible Note payable to Donald Sliter, dated February 12, 1999
4.15 - Convertible Note payable to Steven Muslin, dated February 12, 1999
4.16 - Convertible Note payable to Dr. Thwack, an Illinois general
partnership, dated February 12, 1999
4.17 - Convertible Note payable to Steven F. Story, Revocable Trust of
8/9/95, dated March 25, 1999
4.18 - Convertible Note payable to Banning Enterprises Ltd., dated March
25, 1999
4.19 - Convertible Note payable to Anson McCoy Beard, Jr, dated March
30, 1999
4.20 - Convertible Note payable to the Prime Equity Fund, L.P., dated
March 30, 1999
4.21 - Convertible Note payable to Adel R.B. Kellel, dated March 30, 1999
4.22 - Convertible Note payable to Dogwood Bonsai Opportunity Fund,
L.P., dated March 30, 1999
4.23 - Convertible Note payable to Adel R.B. Kellel, dated March 30, 1999
4.24 - Convertible Note payable to Bluewater Consulting, Inc., dated March
30, 1999
4.25 - Consulting Agreement with registration rights, with Gary Gould,
dated March 1, 1999
4.26 - Director Services Agreement with Martin Averbuch, dated March 24,
1999
10.1 - Employment Agreement with Kevin Lichtman dated April 1, 1997,
and amendment thereto, dated November 4, 1998
10.2 - Employment Agreement with James P. Gagel dated December 1,
1998, and amendment thereto, dated February 1, 1999
10.3 - Employment Agreement with Jeffrey Abbott, dated October 1, 1998
10.4 - Employment Agreement with John Keating, dated February 9, 1998
10.5 - Employment Agreement with Carl Surran, dated July 21, 1997
10.6 - Director Services Agreement with Martin Averbuch, dated March 24,
1999 (see Exhibit 4.26)
10.7 - Asset Purchase Agreement with Jeffrey A. Grossman, dated March 3,
1997 (see Exhibit 4.3)
10.8 - Asset Purchase Agreement with Gene Homicki, dated March 3, 1997
10.9 - Asset Purchase Agreement with Randall Shepardson, dated January
11, 1998
10.10 - Asset Purchase Agreement with Patrick Welsh, dated February 17,
1999
10.11 - Asset Purchase Agreement with Michael Onghai and Daily Stocks,
Inc., dated April 7, 1999
10.12 - License Agreement with Thomson Investors Network, dated
September 15, 1997
10.13 - License Agreement with Media General Financial Services, Inc.,
dated September 17, 1997
10.14 - License Agreement with Douglas Pike, dated December 3, 1997
10.15 - License Agreement with Nathaniel Cohen, dated December 23, 1997
</TABLE>
40
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
10.16 - License Agreement with North American Quotations, Inc., dated
February 24, 1998
10.17 - License Agreement with Comtex Scientific Corporation, dated
February 25, 1998
10.18 - License Agreement with Partes Corporation, dated April 1, 1998
10.19 - License Agreement with ValueLine Publishing, Inc., dated June 1,
1998
10.20 - License Agreement with SportsTicker Enterprises, L.P., dated August
13, 1998
10.21 - License Agreement with InfoSeek Corporation, dated August 28,
1998
10.22 - License Agreement with S&P Comstock, Inc., dated October 4, 1998
10.23 - License Agreement with Weathernews, Inc., dated December 1, 1998
10.24 - Distribution Agreement with Pace Financial Network, LLC, dated
March 15, 1999
10.25 - Consulting Agreement with Spencer Trask Securities Inc., dated July
2, 1998, and amendment thereto, dated August 20, 1998
10.26 - Consulting Agreement with Glenn B. Laken, dated January 6, 1999
10.27 - Consulting Agreement with John J. Katsock, dated March 10, 1999
10.28 - Consulting Agreement with Allen & Company Incorporated, dated
March 31, 1999
10.29 - Convertible Note payable to Larry Riesberg, dated February 12, 1999
(see Exhibit 4.13)
10.30 - Convertible Note payable to Donald Sliter, dated February 12, 1999
(see Exhibit 4.14)
10.31 - Convertible Note payable to Steven Muslin, dated February 12, 1999
(see Exhibit 4.15)
10.32 - Convertible Note payable to Dr. Thwack, an Illinois general
partnership, dated February 12, 1999 (see Exhibit 4.16)
10.33 - Convertible Note payable to Steven F. Story, Revocable Trust of
8/9/95, dated March 25, 1999 (see Exhibit 4.17)
10.34 - Convertible Note payable to Banning Enterprises Ltd., dated March
25, 1999 (see Exhibit 4.18)
10.35 - Convertible Note payable to Anson McCoy Beard, Jr., dated March
30, 1999 (see Exhibit 4.19)
10.36 - Convertible Note payable to Prime Equity Fund, L.P., dated March
30, 1999 (see Exhibit 4.20)
10.37 - Convertible Note payable to Adel R. B. Kellel, dated March 30, 1999
(see Exhibit 4.21)
10.38 - Convertible Note payable to Dogwood Bonsai Opportunity Fund,
L.P., dated March 30, 1999 (see Exhibit 4.22 )
10.39 - Convertible Note payable to Adel R.B. Kellel, dated March 30, 1999
(see Exhibit 4.23)
10.40 - Convertible Note payable to Bluewater Consulting, Inc., dated March
30, 1999 (see Exhibit 4.24)
10.41 - Promissory Note payable to The Harmat Organization, Inc., dated
December 15, 1998
21 - Subsidiaries
27 - Financial Data Schedule
</TABLE>
41
<PAGE>
SIGNATURES
In accordance with Section 12 of the Securities Exchange Act of 1934,
the registrant caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized.
FINANCIALWEB.COM, INC.
Date: April 15, 1999 By: /s/ Kevin A. Lichtman
-------------------------------
Kevin A. Lichtman, President
42
<PAGE>
EXHIBIT 3.1
CERTIFICATE OF
AMENDED & RESTATED
ARTICLES OF INCORPORATION
OF
FINANCIALWEB.COM, INC.
I, THE UNDERSIGNED, James P. Gagel, Executive Vice President and
Secretary of FinancialWeb.com, Inc. do hereby certify that the Board of
Directors of said Corporation at a meeting duly converted, held on the 12th day
of March, 1999, adopted a resolution to amend and restate the original Articles
of Incorporation as follows:
ARTICLE I - NAME
The name of the Corporation is FinancialWeb.Com, Inc.
ARTICLE II - DURATION
The duration of the Corporation is perpetual.
ARTICLE III - PURPOSES
The purpose or purposes for which this Corporation is engaged is the
transaction of any and all lawful business for which corporations may be
incorporated under the laws of the State of Nevada.
ARTICLE IV - STOCK
The aggregate number of shares which this Corporation shall have
authority to issue is One Hundred Million (100,000,000) shares of Common
Stock having a par value of $.001 per share and Ten Million (10,000,000) shares
of Preferred Stock having a par value of $.001 per share. All common stock of
the Corporation shall have the same rights and preferences. Fully-paid stock of
this Corporation shall not be liable to any further call or assessment.
The Preferred Stock may be issued by the Corporation from time to time
in one or more series and in such amounts as may be determined by the Board of
Directors. The designations, voting rights, amounts of preference upon
distribution of assets, rates of dividends, premiums of redemption, conversion
rights and other variations, if any, the qualifications, limitations or
restrictions thereof, if any, of the Preferred Stock, and of each series
thereof, shall be such as are fixed by the Board of Directors, authority so to
do being hereby expressly granted, and as are stated and expressed in a
resolution or resolutions adopted by the Board of Directors providing for the
issue of such series of Preferred Stock.
1
<PAGE>
ARTICLE V - AMENDMENT
These Articles of Incorporation may be amended by the affirmative vote
of a majority of the shares entitled to vote on each such amendment.
ARTICLE VI - SHAREHOLDERS RIGHTS
The authorized and treasury stock of this Corporation may be issued at
such time, upon such terms and conditions and for such consideration as the
Board of Directors shall determine. Shareholders shall not have pre-emptive
rights to acquire unissued shares of the stock of this Corporation.
ARTICLE VII - CUMULATIVE VOTING
At all elections of the Board of Directors of the Corporation, each
shareholders possessing voting power is entitled to apportion as he desires as
many votes as equal the number of his shares of stock multiplied by the number
of directors to be elected after at least one stockholder gives written notice
of his desire to vote cumulatively to the President or Secretary of the
Corporation. Such notice must be given not less than 48 hours before the time
fixed for a meeting at which directors will be elected if notice of the meeting
has been given at least ten days beforehand, and otherwise not less than 24
hours before the meeting. Before commencement of voting for the election of the
directors, an announcement of the notice of cumulative voting must be made by
the chairman or the secretary of the meeting, or by or on the behalf of the
stockholder giving the notice of cumulative voting. Notice to the stockholders
of the requirements of this Article VII must be contained in the notice calling
the meeting or in the proxy material accompanying such notice.
ARTICLE VIII - CAPITALIZATION
This Corporation will not commence business until consideration of a
value of at least $1,000 has been received for the issuance of said shares.
ARTICLE IX - DIRECTORS
The directors are hereby given the authority to do any act on behalf of
the Corporation by law and in each instance where the Business Corporation Act
provides that the directors may act in certain instances where the Articles of
Incorporation authorize such action by the directors, the directors are hereby
given authority to act in such instances without specifically numerating such
potential action or instance herein.
The directors are specifically given the authority to mortgage or pledge
any or all assets of the business without shareholder approval.
The Board of Directors shall consist of one or more members. The number
of directors shall be fixed from time to time by resolution of the Board of
Directors.
2
<PAGE>
The Board of Directors shall have the power to adopt, amend, or repeal
Bylaws of the Corporation.
No Director shall be removed by consent, unless otherwise provided by
Bylaws promulgated by the Board of Directors or by resolution of the Board of
Directors.
ARTICLE X - COMMON DIRECTORS -- TRANSACTIONS BETWEEN CORPORATION
No contract or other transaction between this Corporation and any one or
more of its directors or any other Corporation, firm, association, or entity in
which one or more of its directors or officers are financially interested, shall
be either void or voidable because of such relationship or interest, or because
such director or directors are present at the meeting of the Board of Directors,
or a committee thereof, which authorizes, approves, or ratifies such contract or
transaction, or because his or their votes are counted for such purpose if: (a)
the fact of such relationship or interest is disclosed or known to the Board of
Directors or committee which authorizes, approves, or ratifies the contract or
transaction by vote or consent sufficient for the purpose without counting the
votes or consents of such interested director; or (b) the fact of such
relationship or interest is disclosed or known to the Stockholders entitled to
vote and they authorize, approve, or ratify such contract or transaction by vote
or written consent, or (c) the contract or transaction is fair and reasonable to
the Corporation.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or committee thereof
which authorizes, approves, or ratifies such contract or transaction.
ARTICLE XI - INDEMNIFICATION
To the fullest extent permitted by law, no director of the Corporation
shall be personally liable for monetary damages for breach of fiduciary duty as
a director. Without limiting the effect of the preceding sentence, if the Nevada
Corporation Law is hereafter amended to authorize the further elimination or
limitation of the liability of a director, then the liability of a director of
the corporation shall be eliminated or limited to the fullest extent permitted
by the law, as so amended. Neither any amendment nor repeal of this Article XI,
nor the adoption of any provision of these Articles of Incorporation
inconsistent with this Article XI, shall eliminate, reduce or otherwise
adversely affect any limitation on the personal liability of a director of the
Corporation existing at the time of such amendment, repeal or adoption of such
an inconsistent provision.
The Corporation may, pursuant to a Resolution of the Board of Directors,
and in accordance with the Bylaws, indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative by
reason of the
3
<PAGE>
fact that he is or was an officer, employee or agent to the Corporation, or is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys' fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred by a director,
officer, employee or agent of the Corporation in connection with the action,
suit or proceeding.
This Article XI does not eliminate or limit the liability of a director,
officer, employee, or agent of the Corporation to the extent that the director,
officer, employee, or agent is found liable for:
(a) A breach of the duty of loyalty to the Corporation or its members;
(b) An act or omission not in good faith that constitutes a breach of
duty to the Corporation or an act or omission that involves
international misconduct, or a knowing or reckless violation of the
law,;
(c) A transaction from which the director, officer, employee or agent
received an improper benefit, whether or not the benefit resulted
from an action taken within the scope of the individual's duties; or
(d) An act or omission for which liability is expressly provided by an
applicable statute.
/s/ James P. Gagel
-------------------------
James P. Gagel, Secretary
4
<PAGE>
EXHIBIT 3.2
BYLAWS OF
FINANCIAL WEB.COM, INC.
TABLE OF CONTENTS
Article 1: Offices
1.01 Principal Office
1.02 Other Offices
Article 2: Meetings of Stockholders
2.01 Place
2.02 Annual Meeting
2.03 Special Meetings
2.04 Notice of Meetings
2.05 Business Transacted
2.06 Quorum
2.07 Required Vote
2.08 Vote Per Share
2.09 Proxy
2.10 Action Without Meeting
2.11 Telephone Meetings
Article 3: Directors
3.01 Number
3.02 Staggered Term
3.03 Election
3.04 Vacancies
3.05 Management
3.06 Place of Meetings
3.07 Initial Meeting
3.08 Regular Meetings
3.09 Special Meetings
3.10 Quorum; Required Vote; Action by Consent
3.11 Telephone Meetings
3.12 Committees of Directors
3.13 Compensation
Article 4: Notices
4.01 Delivery
4.02 Consent to Irregular Meeting
4.03 Waiver of Notice
1
<PAGE>
Article 5: Officers
5.01 Appointment of Executive Officers
5.02 Other Officers
5.03 Officers Salaries
5.04 Term
5.05 Authority to Execute Documents
5.06 Power to Designate Agents
5.07 Duties and Powers
5.08 Chairman of the Board
5.09 President
5.10 The Executive Vice President and Vice Presidents
5.11 Secretary
5.12 Treasurer
5.13 Bonds
Article 6: Certificates of Stock
6.01 Certificate Certifying Shares
6.02 Statement of Designations, Preferences and Rights
6.03 Facsimile Signatures
6.04 Lost Certificates
6.05 Transfer of Shares
6.06 Closing of Transfer Books
6.07 Registered Stockholders
6.08 Restriction on Transfer
6.09 Lien
Article 7: General Provisions
7.01 Dividends
7.02 Reserves
7.03 Checks
7.04 Fiscal Year
7.05 Seal
7.06 Special Voting Provisions
7.07 Amendment of Bylaws
7.08 Construction
7.09 Relation to Articles of Incorporation
Article 8: Indemnification
8.01 Right to Indemnification
8.02 Advanced Payment
8.03 Indemnification of Employees and Agents
8.04 Indemnification of Other Appearance as a Witness
8.05 Nonexclusivity of Rights
8.06 Insurance
8.07 Savings Clause
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BYLAWS OF
FINANCIALWEB.COM, INC.
(a Nevada corporation)
ARTICLE I
OFFICES
1.01 Principal Office. The principal office of the Corporation shall be
at 502 East John Street, Room E, Carson City, State of Nevada.
1.02 Other Offices. The Corporation may also have offices at such other
places both within and without the State of Nevada as the Board of Directors may
from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.01 Place. All annual meetings of the stockholders shall be held at such
place within or without the State of Nevada as shall be determined by the Board
of Directors and specified in the notice of the meeting, or in a duly executed
waiver of notice thereof. Special meetings of the stockholders may be held at
such time and place within or without the State of Nevada as shall be stated in
the notice of the meeting, or in a duly executed waiver of notice thereof.
2.02 Annual Meeting. Annual meetings of stockholders shall be held in the
month, on a date, at a time and at a place as shall be determined by the Board
of Directors and specified in a notice of the meeting, at which meeting the
stockholders shall elect by a plurality vote members of the Board of Directors
to fill seats which have or are about to expire, and transact such other
business as may properly be brought before the meeting.
2.03 Special Meetings. Special meetings of the stockholders for any
purpose or purposes, unless otherwise prescribed by statute or the Articles of
Incorporation, may be called by the Chairman of the Board, or the President, or
by resolution of the Board of Directors, and shall be called by the Chairman,
the President or the Secretary at the request to any of them in writing of a
majority of the Board of Directors, or at such request in writing of the holder
or holders of a majority of the shares of capital stock of the Corporation.
Such request shall state the purpose or purposes of the proposed meeting.
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The date, time and location of special meetings shall be determined by a
majority vote of the Executive Committee of the Board of Directors.
2.04 Notice of Meetings. Notices of meetings shall be in writing and in
the name of the Chairman of the Board, the President or a Vice President, the
Secretary or an Assistant Secretary or by such other person or persons as the
Board of Directors shall designate. Such notice shall generally state the
purpose or purposes for which the meeting is called and the time when and the
place, which may be within or without the State of Nevada, where it is to be
held. A copy of such notice shall be either delivered personally or shall be
sent by mail, fax or e-mail, to each stockholder of record entitled to vote at
such meeting not less than ten nor more than sixty days before such meeting. If
sent by mail, fax or e-mail, it shall be directed to a stockholder at his
address, fax number, or e-mail address as it appears upon the records of the
Corporation, and upon such sending of any such notice, the service thereof shall
be complete and the time of the notice shall begin to run from the date upon
which such notice is sent to such stockholder. The personal delivery, or
sending by mail, fax or e-mail of any notice to any officer of a Corporation or
association, or to any member of a partnership, shall constitute delivery of
such notice to such Corporation, association or partnership. In the event of
the transfer of stock after delivery or sending of the notice of and prior to
the holding of the meeting, it shall not be necessary to deliver or send notice
of the meeting to the transferee.
2.05 Business Transacted. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
2.06 Quorum. At any meeting of the stockholders, except as otherwise
provided by law, the presence in person or by proxy of the holders of shares
entitled to cast a majority of all the votes which could be cast at such meeting
by the holders of all the outstanding shares of stock in the Corporation
entitled to vote at such meeting, shall constitute a quorum. If, however, such
quorum shall not be present or represented at any meeting of the stockholders,
the stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified.
2.07 Required Vote. When a quorum is present or represented at any
meeting, the vote of the holders of shares entitled to cast a majority of the
votes represented by the stock of stockholders present in person or by proxy at
such meeting shall decide any matter coming before such meeting, unless some
other vote may be required by law or by the Articles of Incorporation to decide
such matter.
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2.08 Vote Per Share. Every stockholder of record of the Corporation shall
be entitled, at each meeting of the stockholders, to one vote for each share of
stock standing in his name on the books of the Corporation, except as otherwise
provided in the Articles of Incorporation or in any resolution or resolutions of
the Board of Directors creating any series of Preferred Stock pursuant to the
Articles of Incorporation.
2.09 Proxy. At any meeting of the stockholders, any stockholder may be
represented and vote by a proxy or proxies appointed by an instrument in
writing. In the event that any such instrument in writing shall designate two
or more persons to act as proxies, a majority of such persons present at the
meeting, or if only one shall be present, then that one shall have and may
exercise all of the powers conferred by such written instrument upon all of the
persons so designated, unless the instrument shall otherwise provide. Any proxy
designated by such an instrument shall have the power of substituting another
proxy for himself to exercise any and all powers vested in him by such
instrument, unless such instrument shall otherwise provide. No proxy shall be
valid after the expiration of six (6) months from the date of its execution,
unless coupled with an interest, or unless the person executing it specifies
therein the length of time for which it is to continue in force, which in no
case shall exceed seven (7) years from the date of its execution. Subject to
the preceding sentence, any proxy duly executed is not revoked and continues in
full force and effect until an instrument revoking it or a duly executed proxy
bearing a later date is filed with the Secretary of the Corporation.
2.10 Action Without Meeting. With the exception of the removal of a
director, any action which may be taken by the vote of the Stockholders at a
meeting may be taken without a meeting if authorized by written consent of the
Stockholders holding at least a majority of the voting power, unless the
provisions of the statutes, the Articles of Incorporation, or these Bylaws
require a greater portion of voting power to authorize such action, in which
case such greater proportion of written consents shall be required.
2.11 Telephone Meetings. Stockholders may participate in and hold a
meeting by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other.
Participation in such a meeting shall constitute presence in person at the
meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
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ARTICLE III
DIRECTORS
3.01 Number. The number of directors on the Board of Directors may be fixed
from time to time exclusively by the Executive Committee of the Board of
Directors pursuant to a resolution adopted by a majority of the Committee. The
number of directors on the Board of Directors shall not be reduced so as to
shorten the term of any director at the time in office.
3.02 Staggered Term. The Board of Directors shall be divided into three
classes, with a maximum of three directors in each class. The term of office of
one class will expire each year. At the annual meeting of stockholders in 1999,
or at a special meeting called in 1999 for the purpose of electing directors,
directors of the first class shall be elected to hold office for a term expiring
at the next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office for a
term expiring at the third succeeding annual meeting. At each annual meeting of
the stockholders, the successors to the class of directors whose term shall then
expire shall be elected to hold office for a term expiring at the third
succeeding annual meeting.
3.03 Election. The directors shall be chosen at the annual meeting of the
stockholders by a plurality of the votes cast at the election. If for any reason
the directors are not chosen at the annual meeting of stockholders, they may be
elected at any special meeting of the stockholders called and held for that
purpose. In the event the number of directors set by the Board of Directors is
less than four, the stockholders will elect directors of the third class only.
If the total number of directors authorized by the Board of Directors is more
than three but less than six, the stockholders will initially elect directors of
the third class, and then elect directors of the second class. If the total
number of directors authorized by the Board of Directors is more than six, the
stockholders will initially elect directors of the third class, then elect
directors of the second class, and any remaining directors elected will be of
the first class.
3.04 Vacancies. Any vacancies in the Board of Directors for any reason,
and any directorships resulting from any increase in the number of directors,
may be filled by the Executive Committee of the Board of Directors acting by a
majority of said Committee. Any director chosen to fill a vacancy created
through the resignation or removal of a director shall hold office as a member
of the class of the vacating director and until his successor shall be elected
and qualified at an election of that class. In the event vacancies are created
through an increase in the number of directors, The Executive Committee of the
Board of Directors will appoint directors of the second class before appointing
directors of the first class.
3.05 Management. The business of the Corporation shall be managed by its
Board of Directors which may exercise all such powers of the Corporation and do
all such lawful acts and things as are not by statute or the Articles of
Incorporation or these Bylaws directed or required to be exercised or done by
the stockholders.
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3.06 Place of Meetings. The Board of Directors of the Corporation may
hold meetings, both regular and special, either within or without the State of
Nevada.
3.07 Initial Meeting. The first meeting of each newly elected Board of
Directors shall be held at such time and place as shall be fixed by the vote of
the stockholders at the annual meeting, and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of
stockholders to fix the time or place of such first meeting of the newly elected
Board of Directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held immediately
following the meeting of the stockholders in the place in which the stockholders
held their meeting, or in such other place and at such time as to which a
majority of the newly elected directors shall then and there adjourn the
meeting, or at such time and place as shall be specified in a notice given as
hereinafter provided for special meetings of the Board of Directors (which
notice may be given prior to the stockholders' meeting and be subject to the
election of the directors as such), or as shall be specified in a written waiver
signed by all of the newly elected directors, or by so many of them as shall not
have received such notice.
3.08 Regular Meetings. Regular meetings of the Board of Directors may be
held without notice at such time and place as shall from time to time be
determined by the Board.
3.09 Special Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board, the President, any Vice President or the
Secretary and shall be called by the Secretary on the written request of a
majority of the directors. Written notice of any special meeting of the Board
of Directors shall be given to each director at least ten (10) days before the
date of the meeting and that any such notice shall specify the purpose of the
meeting.
3.10 Quorum; Required Vote; Action by Consent. A majority of the Board of
Directors, including at least one (1) member of the Executive Committee, at a
duly assembled meeting, shall constitute a quorum for the transaction of
business. Except as otherwise provided herein or in a certificate of
Incorporation, or as required by law, the vote of a majority of the directors
present at any meeting at which a quorum is present shall be the act of the
Board of Directors. Any action required or permitted to be taken at any meeting
of the Board of Directors, or of any Committee thereof, may be taken without a
meeting if all the members of the Board or such Committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of the proceeding of the Board or Committee respectively.
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3.11 Telephone Meetings. Directors and committee members may participate in
and hold a meeting by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other. Participation in such a meeting shall constitute presence in person
at the meeting, except where a person participates in the meeting for the
express purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened.
3.12 Committees of Directors. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate an Executive Committee, an
Audit Committee, a Compensation Committee or any additional committees deemed
desirable, as permitted by Section 125, Chapter 78, Title 7 of the Nevada
Revised Statutes. Each committee shall consist of one or more directors of the
Corporation. The committees shall keep regular minutes of their proceedings and
report the same to the Board when required.
(a) The Executive Committee, to the extent provided in such resolution,
shall have and may exercise all of the authority of the Board of Directors in
the management of the business and affairs of the corporation, including the
selection, determination of functions and qualifications of all committees,
except where action of the full Board of Directors is required by statute or the
Articles of Incorporation.
(b) The Audit Committee, shall have at least the responsibility to annually
recommend to the Board independent public accountants and to review with the
Corporation's independent public accountants and with the Corporation's chief
financial officer, or such other officer as may be appropriate, the following
matters:
(1) the Corporation's general policies and procedures with respect
to audits, accounting and financial controls;
(2) The financial accounting and reporting principles and practices
which shall be applied in preparing the Corporation's financial statements
and in conducting financial audits of its affairs.
(3) Related party transactions and all other potential conflict of
interest situations where appropriate.
(c) The Compensation Committee, to the extent provided by resolution, shall
have such responsibility as the Board may determine over remuneration of
officers and employees of the corporation.
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3.13 Compensation. As shall be prescribed from time to time by resolution
of the Board of Directors, the directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors, a stated salary as
director, or such other compensation as may be provided for by Agreement between
the Corporation and said director. Except to the extent otherwise provided by
resolution of the Board of Directors, no such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may in similar
fashion be allowed like compensation for attending committee meetings.
ARTICLE IV
NOTICES
4.01 Delivery. Notices to directors and stockholders shall be in writing
and delivered personally, or sent by mail, fax or e-mail to the directors or
stockholders at the addresses and numbers appearing on the books of the
Corporation. Notice shall be deemed to be given at the time same is properly
addressed and dispatched for delivery or sent. Computations of periods of
notice shall exclude the day of giving the notice but shall include the date of
the meeting or event with respect to which notice is given.
4.02 Consent to Irregular Meeting. Whenever all parties entitled to vote
at any meeting, whether of directors or stockholders, consent, either by a
writing on the records of the meeting or filed with the Secretary, or by
presence at such meeting and oral consent entered on the minutes, or by taking
part in the deliberations at such meeting without objection, the doings of such
meeting shall be as valid as if had at a meeting regularly called and noticed;
and at such meeting any business may be transacted which is not excepted from
the written consent or to the consideration of which no objection for want of
notice is made at the time; and if any meeting be irregular for want of notice
or of such consent, provided a quorum was present at such meeting, the
proceedings of said meeting may be ratified and approved and rendered likewise
valid and the irregularity or defect therein waived by a writing signed by all
parties having the right to vote at such meeting; and such consent or approval
of stockholders may be by proxy or attorney, but all such proxies and powers of
attorney must be in writing.
4.03 Waiver of Notice. Whenever any notice whatever is required to be
given under the provisions of the statutes, the Articles of Incorporation or
these Bylaws, a waiver in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
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ARTICLE V
OFFICERS
5.01 Appointment of Executive Officers. The Executive Committee of the
Corporation at its first meeting after each annual meeting of the Stockholders
shall appoint the executive officers of the Corporation, which will include a
Chairman of the Board, a Chief Executive Officer, a President, a Secretary, a
Treasurer, and may include one or more Vice Presidents. None of the executive
officers, except for the Chairman of the Board, need to be a member of the board
of directors. Any person may hold two or more offices, except that the offices
of president and vice president shall not be held by the same person.
5.02 Other Officers. The Executive Committee may choose such other
officers, servants and agents as it shall deem necessary, including assistants
to any Vice President, the Secretary, or the Treasurer. All such officers,
servants, and agents shall hold their offices for such terms and exercise such
powers and perform such duties as shall be determined from time to time by the
Executive Committee.
5.03 Officers' Salaries. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors.
5.04 Term. The officers of the Corporation shall hold office until
their successors are chosen and qualified. Any officer, servant or agent of the
Corporation may be removed at any time by the affirmative vote of the majority
of the Executive Committee. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise may be filled by the
Executive Committee.
5.05 Authority to Execute Documents. The Chairman of the Board, the
President, the Vice Presidents and such other officers as are authorized
thereunto by resolution of the Board of Directors may execute bonds, mortgages,
contracts, leases, agreements and other instruments requiring a seal under the
seal of the Corporation, and may execute such documents where not requiring a
seal, except where such documents are required by law to be otherwise signed and
executed, and except where the signing and execution thereof shall be delegated
to some other officer or agent of the Corporation. The Chairman of the Board,
the President or any Vice President may execute, on behalf of the Corporation,
without further authorization of the Board of Directors, any contract, lease,
agreement or other instrument within the ordinary course of business of the
Corporation.
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5.06 Power to Designate Agents. The Chairman of the Board, President or
any Vice President and the Secretary or any Assistant Secretary shall be duly
authorized, without special authorization by the Board of Directors, in the name
of and on behalf of the Corporation, to designate and name general or special
agents, representatives and attorneys to represent the Corporation in the United
States or any foreign country or countries; to assign, limit and define the
powers and obligations of such agents, representatives or attorneys; and to make
substitutions, revocations or cancellations, in whole or in part, of any power
or authorization conferred upon any such agents, representatives or attorneys.
All powers of attorney or other documents by which any such agents,
representatives or attorneys shall be named or designated shall be executed by
the Chairman of the Board, the President or any Vice President and the Secretary
or any Assistant Secretary and shall have affixed thereto the corporate seal.
Any substitution, revocation or cancellation thereof shall be executed in
similar form, and any such agent, representative or attorney, when authorized to
do so by the instrument designating him as such, may substitute or delegate, in
whole or in part, the powers granted to him, and may revoke and cancel such
substitutions or delegations.
5.07 Duties and Powers. The duties and powers of the officers of the
Corporation shall be as provided in these Bylaws or as provided for pursuant to
these Bylaws, or (except to the extent inconsistent with these Bylaws or with
any provisions made pursuant hereto) shall be those customarily exercised by
corporate officers holding such offices.
5.08 Chairman of the Board. The Chairman of the Board shall preside at
all meetings of the stockholders and the Board of Directors, and shall perform
such other duties as the Board of Directors may from time to time prescribe.
The Chairman of the Board shall see that all orders and resolutions of the Board
of Directors are carried into effect.
5.09 President. The President shall be the chief executive officer of the
Corporation and shall have general and active management of the operations of
the Corporation and, subject to the authority of the Chairman of the Board,
shall see that all orders and resolutions of the Board of Directors are carried
into effect. The President shall preside at all meetings of the stockholders
and Board of Directors in the absence of the Chairman of the Board.
5.10 The Executive Vice President and Vice Presidents. The Executive
Vice President shall, in the absence or disability of the President, perform the
duties and exercise the powers of the President, and all Vice Presidents shall
be subordinate to the Executive Vice President, but the Executive Vice President
shall not succeed to the title and office of President except by election
thereto by the Board of Directors. The Vice Presidents shall perform such duties
as ordinarily pertain to their offices and such other duties as the Board of
Directors from time to time may prescribe by standing or special resolution, or
as the President or Executive Vice President may from time to time provide,
subject to the powers of the Board of Directors.
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5.11 Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings of
the meetings of the Corporation and of the Board of Directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
of the Board when required, without prejudice to the powers of such committees
to appoint other persons to perform such duties. He shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
Board of Directors and shall perform such other duties as may be prescribed by
the Board of Directors, the Chairman of the Board or the President, under whose
supervision he shall be. He shall keep in safe custody the seal of the
Corporation and, when authorized by the Board of Directors, affix the same to
any instrument requiring it, and when so affixed, it shall be attested by his
signature or by the signature of the Treasurer, or of an Assistant Secretary or
Assistant Treasurer, or of any other person thereunto authorized by the Board of
Directors.
5.12 Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories, or invest the same in such manner, as may be designated or
approved by the Board of Directors. He shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, taking proper vouchers
for such disbursements, and shall render to the Chairman of the Board, the
President and the Board of Directors, at the regular meetings of the Board, or
when the Board of Directors so requires, an account of all his transactions as
Treasurer of the financial condition of the Corporation.
5.13 Bonds. If required by the Board of Directors, officers of the
Corporation shall give the Corporation a bond in such sum and with such surety
or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of their offices and for the restoration to the
Corporation, in case of their death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in their possession or under their control belonging to the Corporation.
ARTICLE VI
CERTIFICATES OF STOCK
6.01 Certificate Certifying Shares. Every stockholder shall be entitled
to have a certificate, signed by the Chairman of the Board or the President or a
Vice President and the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary of the Corporation, certifying the number of shares owned
by him in the Corporation.
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6.02 Statement of Designations, Preferences and Rights. When the
Corporation is authorized to issue shares of more than one class or more than
one series of any class, there shall be set forth upon the face or back of the
certificate or the certificate shall have a statement that the Corporation will
furnish to any stockholder upon request and without charge, a full or summary
statement of the designations, preferences and relative, participating, optional
or other special rights of the various classes of stock or series thereof and
the qualifications, limitations or restrictions of such rights, and if the
Corporation shall be authorized to issue only special stock, such certificate
shall set forth full or summarize the rights of the holders of such stock.
6.03 Facsimile Signatures. Whenever any certificate is countersigned or
otherwise authenticated by a transfer agent or transfer clerk, and by a
registrar, then a facsimile of the signatures of the officers or agents of the
Corporation may be printed or lithographed upon such certi9ficate in lieu of the
actual signatures. In case any officer or officers who shall have signed, or
whose facsimile signature or signatures shall have been used on, any such
certificate or certificates shall cease to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, before such
certificate or certificates shall have been delivered by the Corporation, such
certificate or certificates may nevertheless be adopted by the Corporation and
be issued and delivered as though the person or persons who signed such
certificate or certificates, or whose facsimile signature or signatures shall
have been used thereon, had not ceased to be the officer or officers of the
Corporation.
6.04 Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation, or by any Corporation of
which the Corporation is the lawful successor, alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost or destroyed. When authorizing such issue
of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost or destroyed certificate or certificates, or his legal
representatives, to advertise the same in such manner as it shall require and/or
give the Corporation an affidavit of loss and indemnity and/or a bond in such
sum as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost or
destroyed and to satisfy such other reasonable requirements as may be imposed by
the Corporation. The Board of Directors may, in its discretion, by standing
resolution, authorize designated officers of the Corporation to direct the
issuance of a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation, or by any
corporation of which the Corporation is the lawful successor, upon the
fulfillment of certain specified conditions (to be described in such resolution)
as upon which the Board of Directors might itself, by resolution pursuant to
this section, have directed the issuance of a new certificate or certificates.
A new certificate may be issued without requiring any bond when, in the judgment
of the Board of Directors, it is proper to do so.
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6.05 Transfer of Shares. Upon surrender to the Corporation or a transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
6.06 Closing of Transfer Books. The Board of Directors may prescribe a
period not exceeding sixty (60) days prior to any meeting of the stockholders
during which no transfer of stock on the books of the Corporation may be made,
or may fix a day not more than sixty (60) days prior to the holding of any such
meeting as the day as of which stockholders entitled to notice of and to vote at
such meeting shall be determined, and only stockholders of record on such day
shall be entitled to notice of or to vote at such meeting.
6.07 Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owners, and to hold liable
for calls and assessments (if provided by law) a person registered on its books
as the owner of shares, and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Nevada.
6.08 Restrictions on Transfer. If the Corporation issues any shares which
are not registered under the Securities Act of 1933 and registered or qualified
under any applicable state securities laws, the Corporation may restrict
transfer of the shares and may place an appropriate legend on the certificates
representing the shares restricting transfer and requiring an opinion of counsel
acceptable to the Corporation before transmitting any transfer regarding
compliance with applicable securities laws.
6.09 Lien. For any indebtedness of a shareholder to the Corporation, the
Corporation shall have a first and prior lien on all shares of its stock owned
by him and on all dividends or other distributions declared thereon.
ARTICLE VII
GENERAL PROVISIONS
7.01 Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Articles of Incorporation, may be declared by
the Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property or in shares of the Corporation's own
stock, subject to the provisions of the Articles of Incorporation.
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7.02 Reserves. Before payment of any dividend, there may be set aside out
of any funds of the Corporation available for dividends such sum or sums as the
Board of Directors from time to time, in their absolute discretion, think proper
as a reserve or reserves to meet contingencies, or for equalizing dividends, or
for such other purpose as the Board of Directors shall think conducive to the
interests of the Corporation, and the Board of Directors may modify or abolish
any such reserve in the manner in which it was created.
7.03 Checks. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate.
7.04 Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors; unless otherwise fixed, it shall be the
calendar year.
7.05 Seal. The Board of Directors may adopt a corporate seal for the
Corporation. Any such corporate seal shall have inscribed thereon the name of
the Corporation, the year of its incorporation and the words "Corporate Seal,
Nevada."
7.06 Special Voting Provisions. Whenever under the provisions of the
Articles of Incorporation or by law, the holders of shares of stock of the
Corporation of any class or series are entitled to vote as a separate class or
series on any matter, then, notwithstanding any other provision of these Bylaws
to the contrary, such holders shall be entitled to so vote, and to the extent
the Articles of Incorporation contain any provision with respect to the calling
or holding of, or the quorum for, any meeting for the purpose of such vote, such
provisions of the Articles of Incorporation shall govern. Applicable provisions
of these Bylaws shall be deemed to refer to voting by separate classes or series
where required by law or the Articles of Incorporation.
7.07 Amendment of Bylaws. These Bylaws may be altered, amended or
repealed at any regular meeting of the stockholders or of the Board of
Directors, or at any special meeting of the stockholders or of the Board of
Directors. Bylaws adopted by the stockholders may be altered, amended or
repealed by the Board of Directors unless the Bylaws so adopted by the
stockholders expressly provides to the contrary.
7.08 Construction. Whenever the context so requires, the masculine shall
include the feminine and neuter, and the singular shall include the plural, and
conversely. If any portion of these Bylaws shall be invalid or inoperative,
then, so far as it is reasonable and possible, the remainder of these Bylaws
shall be considered valid and operative, and effect shall be given to the intent
manifested by the portion held invalid or inoperative. The table of contents
and headings used in these Bylaws have been inserted for convenience only and do
not constitute matter to be construed in interpretation.
7.09 Relation to Articles of Incorporation. These Bylaws are subject to,
and governed by, the Articles of Incorporation.
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ARTICLE VIII
INDEMNIFICATION
8.01 Right to Indemnification. Subject to the limitations and conditions
as provided in this Article, each person who was or is made a party or is
threatened to be made a party to or is involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
arbitrative or investigative (hereinafter a "Proceeding"), or any appeal in such
a Proceeding or any inquiry or investigation that could lead to such a
Proceeding, by reason of the fact that he or she is or was a director or officer
of the Corporation shall be indemnified by the Corporation to the fullest extent
permitted by Nevada Business Corporation Act (the "NCBA"), as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment provides for broader indemnification rights) against
judgments, penalties (including excise and similar taxes and punitive damages),
fines, settlements and reasonable expenses (including, without limitation,
attorneys' fees) actually incurred in connection with such Proceeding, and
indemnification under this Article VIII shall extend to each director or officer
who has ceased to serve in the capacity which initially entitled them to
indemnity hereunder. The rights granted pursuant to this Article VIII shall be
deemed contract rights, and no amendment, modification or repeal of this Article
VIII shall have the effect of limiting or denying any such rights with respect
to actions taken or Proceedings arising prior to any such amendment,
modification or repeal.
8.02 Advance Payment. The right to indemnification shall include the
right to be paid or reimbursed by the Corporation the reasonable expenses
incurred by an individual entitled to be indemnified under Section 8.01 who was,
is or is threatened to be made a named defendant or respondent in a Proceeding,
or an inquiry or investigation that could lead to such a Proceeding, in advance
of the final disposition of the Proceeding and without any determination as to
the director's or officer's ultimate entitlement to indemnification; provided,
however, that the payment of such expenses in advance of the final disposition
of a Proceeding, shall be made only upon delivery to the Corporation of a
written affirmation of the director's or officer's good faith belief that he has
met the standard of conduct necessary for indemnification under this Article
VIII and in accordance with Title 7, Chapter 78, Section 7502 of the Nevada
Revised Statutes, and a written undertaking, by or on behalf of such director or
officer, to repay all amounts so advanced if it shall ultimately be determined
that such indemnified director or officer is not entitled to be indemnified as
set forth herein or otherwise.
8.03 Indemnification of Employees and Agents. The Corporation, by
adoption of a resolution of the Board of Directors, may indemnify and advance
expenses to an employee or agent of the Corporation to the same extent and
subject to the same conditions under which it may indemnify and advance expenses
to director and officers under this Article VIII; and,
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8.04 Indemnification of Other Appearance as a Witness. Notwithstanding any
other provision of this Article VIII, the Corporation may pay or reimburse
expenses incurred by an individual named in Section 8.01 in connection with his
appearance as a witness or other participation in a Proceeding at a time when he
is not a named defendant or respondent in the Proceeding.
8.05 Nonexclusivity of Rights. The right to indemnification and the
advancement and payment of expenses conferred in this Article VIII shall not be
exclusive of any other right which an individual indemnified pursuant to Section
8.01 may have or hereafter acquire under any law (common or statutory),
provision of the Articles or these Bylaws, agreement, vote of Shareholders or
disinterested director or otherwise.
8.06 Insurance. The Corporation may purchase and maintain insurance, at
its expense, to protect itself and any director or President whether or not the
Corporation would have the power to indemnify such director or President against
such expense, liability or loss under this Article VIII.
8.07 Savings Clause. If this Article VIII or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify and hold harmless each director or
President indemnified pursuant to this Article VIII as to costs, charges and
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative to the fullest extent permitted by any
applicable portion of this Article VIII that shall not have been invalidated and
to the fullest extent permitted by applicable law.
CERTIFICATION OF BYLAWS OF FINANCIALWEB.COM, INC. (a Nevada Corporation) I James
P. Gagel, certify that I am Secretary of FinancialWeb.com, Inc. a Nevada
Corporation (the "Company"), that I am duly authorized to make and deliver this
certification, that the attached Bylaws are true and correct copy of the Bylaws
of the Company in effect as of the date of this certificate.
Dated: March 17, 1999
------------------------------
James P. Gagel, Secretary
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EXHIBIT 4.3
AGREEMENT
THIS AGREEMENT, is made at Altamonte Springs, Florida, as of the 3rd day of
March, 1997, by and between AXXESS, INC., a Nevada corporation, with offices at
445 Douglas Avenue, Altamonte Springs, Florida, 32714 (hereinafter called
"AXXS"), and JEFFREY A. GROSSMAN, an individual residing at 51c Grandview Drive,
Farmington, Connecticut, 06032, (hereinafter called "JAGR").
RECITALS
JAGR and AXXS (hereinafter called "The Parties"), have read this Agreement
(hereinafter called "Agreement") and understand and accept the terms,
conditions, and covenants contained in this Agreement as being reasonably
necessary to maintain AXXS's standards and business practices as it relates to
the retaining of consultants employees of AXXS.
JAGR has investigated and become familiar with AXXS and desires upon the terms
and conditions set forth herein to furnish services as specifically requested by
AXXS. JAGR acknowledges that it is essential to the maintenance of the high
standards of AXXS, that JAGR maintain and adhere to the standards, procedures
and policies described herein.
THEREFORE, The Parties, intending to be legally bound, for and in consideration
of the mutual covenants hereinafter following, do mutually covenant and agree:
JAGR understands that AXXS, its affiliates, and other subsidiaries, may in the
future retain other firms or individuals for similar services to that of JAGR.
JAGR agrees that AXXS, its subsidiaries and affiliates may do so at any location
at any time.
JAGR understands and agrees that its authority hereunder is non-exclusive, to
the extent that AXXS has and retains the foregoing rights under this Agreement.
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TERM
A. Initial Term
The initial term of this Agreement shall be for a period commencing on the date
first mentioned above, subject to the terms and conditions set forth herein and
terminating after the 12 month period immediately following the signing of this
Agreement.
B. Renewal Option
The Parties shall not have the option to renew this Agreement for additional
periods, unless specified in writing. In the event the Parties would like to
continue their relationship, said relationship would require a separate
agreement which sets for the specific terms and conditions for future services
to be performed by JAGR.
CONVEYANCE OF PROPERTY, RETENTION AND DESCRIPTION OF SERVICES
Upon execution of this agreement JAGR will convey to AXXS all claims of title,
ownership, license and property, intellectual or otherwise to a world wide web
site on the internet known as the "The SmallCap Investor" (hereinafter "Web
Site") located at the domain name, "financialweb.com". It is further understood
that said conveyance is inclusive of the transfer of domain name ownership of
financialweb.com to AXXS, which is contingent upon separate agreement by AXXS
with Mr. Gene W. Homicki, dba FinancialWeb Services.
During the term of this Agreement, JAGR will maintain an internet web site, more
specifically, which is known as "The SmallCap Investor" and located at the
domain name, "financialweb.com", as specifically requested by AXXS, its
officers, directors and employees. The services will relate to the updating of
data, product content and all other services that would reasonably be expected
to maintain the Web Site. All such categories are within the area of JAGR's
technical competence.
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WHERE SERVICES ARE TO BE PERFORMED
JAGR's services will be performed at JAGR's facilities and such other places
that are appropriate and are mutually agreed to by JAGR and AXXS.
REIMBURSEMENT OF EXPENSES
AXXS will reimburse JAGR for all external fees and expenses incurred by JAGR in
connection with the furnishing of services under this Agreement, but only upon
written approval by AXXS, which approval shall not unreasonably be withheld.
Reimbursement of said fees shall be made on the basis of itemization, submitted
by JAGR and including, whenever possible, actual bills, receipts, or other
evidence of expenditures.
JAGR AN EMPLOYEE OF AXXS
During the term of this Agreement, JAGR will be engaged as an employee of AXXS
and will hold the title of Vice President. It is further understood, and
evidenced by separate agreement, that JAGR will be director of AXXS. JAGR will
receive compensation for his employment in the aggregate sum of $18,000 per
annum, to be paid monthly, in coincidence with the term of this agreement, at
the rate of $1,500.
JAGR NOT TO ENGAGE IN CONFLICTING ACTIVITIES
During the term of this Agreement, JAGR will not enter into any activity,
employment, or business arrangement that conflicts with AXXS's interests or
JAGR's obligations under this Agreement except for those previously disclosed or
entered into prior to the signing of this Agreement. In view of the sensitive
nature of JAGR's status, AXXS shall have the option of terminating this
Agreement at any time, if in AXXS's full judgement, a conflict of interest
exists or is imminent.
JAGR will advise AXXS of JAGR's position with respect to any activity,
employment or business arrangement contemplated by JAGR that might be relevant
to the immediately preceding paragraph.
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For this purpose, JAGR agrees to disclose any such plans to AXXS prior to
implementation. It is further understood that JAGR's current activity in
connection with Cybernet Data Systems, does not violate the terms of this
Agreement.
TRADE SECRETS
JAGR will treat as proprietary, any information belonging to AXXS, AXXS's
affiliated company's, or any third party, disclosed to JAGR in the course of
JAGR's services. JAGR assigns and agrees to assign to AXXS or AXXS's nominees
all rights in proprietary information conceived by JAGR during the term of this
Agreement, with respect to any work that JAGR performs under this Agreement.
COMPENSATION
In Connection with the conveyance of property as defined earlier in CONVEYANCE
OF PROPERTY, RETENTION AND DESCRIPTION OF SERVICES, AXXS will pay JAGR a fee of
sixty thousand ($60,000) dollars in cash and ten (10,000) restricted common
shares of AXXS common stock as follows:
Five thousand ($5,000) dollars and the issuance of ten (10,000) restricted
common shares of AXXS, upon signing of this Agreement by JAGR and AXXS, and
eleven (11) subsequent payments of five thousand ($5,000) dollars per month due
and payable on the first of each month commencing April 1, 1997 and each of the
remaining months thereafter.
In connection with the issuance of 10,000 shares, it is understood, and
evidenced by separate agreement that JAGR will have the option to put all or a
lesser number of said shares to AXXS at a strike price of $5 per share providing
those shares have been owned by Mr. Grossman for a minimum of 24 months and a
maximum of 48 months from the date of the Agreement.
AXXS understands that JAGR may contract outside firms to assist in the
furnishing of
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representation services for the benefit of AXXS. AXXS will bear all
responsibilities for all costs associated with such subcontracting of services,
but only upon AXXS's prior written approval AXXS will not be liable directly or
indirectly to such contractors as a result of work performed by contractor
without said approvals, [which approvals shall not unreasonably be withheld.]
AXXS's sole responsibilities and liabilities are specified in this Agreement and
may only be modified in a writing signed and agreed to by AXXS and JAGR.
CONSIDERATION
JAGR hereby acknowledges and agrees that the authority granted herein and the
undertakings and agreements of AXXS contained in this Agreement constitute the
sole and only consideration, except as may be otherwise provided in this
Agreement or other agreements between JAGR and AXXS.
During the term hereof, JAGR shall deliver to AXXS a report of the work
performed by JAGR on behalf of AXXS, for the prior month, which shall be
accompanied by any receipts for which JAGR seeks reimbursement, as provided for
in this Agreement, no later than ten (10) days after the end of the then
applicable calendar month. In addition, JAGR shall supply, upon AXXS's written
request documentation supporting the information disclosed on the monthly
reports.
FALSE STATEMENTS
Any intentionally false statements in any reports provided to AXXS shall be
grounds for AXXS to terminate this Agreement.
DEFAULT
The occurrence of any of the following events shall constitute a default by The
Parties under this Agreement:
A. Acts of Immediate Termination
If during any period in which this Agreement is in effect, there occurs any of
the following events,
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immediate notice of termination, without an opportunity to cure, shall be deemed
reasonable:
(1) Repeated Failures to Comply
The Parties, after curing any failure in accordance with this Agreement, engage
in the same non-compliance, whether or not such non-compliance is corrected
after notice, or either of The Parties, repeatedly fail to comply with one or
more requirements of this Agreement, whether or not corrected after notice.
B. Acts Requiring Period to Cure Before Termination
In the event either of The Parties is in default in the performance of any of
the terms of this Agreement (other than those calling for immediate termination
set forth above), including, but not limited to, the acts set forth hereinafter,
defaultee, in addition to all remedies that defaultee has available to it at law
or in equity, may declare this Agreement automatically terminated, unless such
default is cured within thirty (30) days (or a lesser stated period) after
written notice thereof from defaultee to defaulter, unless the default is of
such a nature that more than thirty (30) days are reasonably required to effect
a cure. In such event, defaulter shall commence to cure the default within said
thirty (30) day period, if any, designated by defaultee as the allowable
additional time within which the cure must be accomplished. Subject to the
aforesaid right to cure, defaultee may terminate this Agreement under the
following circumstances and conditions:
(1) Other Agreements
Default under any other agreement between JAGR and AXXS, which default is not
cured within the period required in said agreement(s).
(2) Transfer Without Prior Consent
Any purported assignment or transfer of this Agreement, without the prior
written consent of AXXS.
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(3) Failure to Comply
Failure to comply with other terms of this Agreement, whether or not such other
terms specifically provide for termination of non-compliance. If either of The
Parties shall repeatedly fail to comply with such terms, whether cured or
uncured, after receipt of notice thereof, then, in addition to all other
remedies available at law or in equity, the defaultee may immediately declare
this Agreement terminated.
(4) Failure to Pay Obligations to JAGR
If AXXS fails to pay any amounts due to JAGR or an affiliate of JAGR within ten
(10) days after receiving written notice that such amounts are overdue or if
AXXS fails to cure any default as prescribed in this Agreement, then all claims
of title, ownership, license and property, intellectual or otherwise to the web
site known as "The SmallCap Investor" and located at the domain name,
"financialweb.com" will become the property of JAGR.
REMEDIES AND TERMINATION
TERMINATION
AXXS or JAGR shall have the right each in its own discretion, to unilaterally
terminate this Agreement upon 120 days written notice. The Parties need no
specific cause to affect such termination and such termination may not be
contested by either of the Parties.
However, upon termination by AXXS less than one year after the signing of this
agreement, AXXS shall have the option to keep title to the web site by paying
the unpaid balances of the employee compensation and the compensation for the
conveyance of the web site to JAGR, or of returning title to the web site to
JAGR.
In the event that title to the web site is returned to JAGR, it is further
understood that any
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payment(s) previously made to JAGR by AXXS in connection with this agreement are
non-refundable.
A. Monetary Obligations Upon Termination
In the event of termination or expiration, all obligations of The Parties,
pursuant to the terms of this Agreement shall become due and payable.
NOTICES
All notices, requests, demands, payments, consents and other communications
hereunder shall be transmitted in writing and shall be deemed to have been duly
given when sent by registered certified United States mail, postage prepaid, or
other form of delivery which provides for a receipt, addressed as follows:
JAGR: JEFFREY A. GROSSMAN
51c Grandview Drive
Farmington, Ct. 06032
AXXS: AXXESS, INC.
445 Douglas Avenue, Ste 2205-G
Altamonte Springs, Florida 32714
A. Address Change
Either of The Parties may change his address by giving notice of such change of
address to the other, but must comply with all other terms of this Agreement.
B. Notice by Telegram or Facsimile.
In the case of any notice required to be given by The Parties to each other,
telegraphic notice or facsimile transmission, with delivery verified, shall be
sufficient notice hereunder.
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C. Mailed Notice
Mailed notices shall be deemed communicated within three (3) days from the time
of mailing, if mailed as provided in this paragraph, regardless if delivery
shall be refused by addressee.
D. Additional Actions
The Parties agree to execute such other documents and perform such further acts
as may be necessary or desirable to carry out the purposes of this Agreement.
E. Heirs, Successors, and Assigns
This Agreement shall be binding and inure to the benefit of the parties, their
heirs, successors, and assigns.
F. Entire Agreement
THE UNDERSIGNED ACKNOWLEDGES THAT THEY, AND EACH OF THEM, HAVE READ THIS
AGREEMENT IN FULL; ARE COGNIZANT OF EACH AND EVERY ONE OF THE TERMS AND
PROVISIONS HEREOF AND ARE AGREEABLE THERETO; THAT NO REPRESENTATIONS OR
AGREEMENTS, WHETHER ORAL OR WRITTEN, EXCEPT AS HEREINAFTER SET FORTH, HAVE BEEN
MADE OR RELIED UPON; THAT ANY AND ALL PRIOR AGREEMENTS OR UNDERSTANDINGS BETWEEN
THE PARTIES, WHETHER ORAL OR WRITTEN ARE AUTOMATICALLY CANCELED BY THE EXECUTION
OF THIS AGREEMENT AND THE UNDERSIGNED HEREBY RELEASE EACH OTHER AND THEIR AGENTS
AND EMPLOYEES, RESPECTIVELY, FROM ANY AND ALL CLAIMS, DEMANDS, AGREEMENTS AND
LIABILITIES OF EVERY DESCRIPTION WHATSOEVER, WHICH THE UNDERSIGNED EVER HAD, NOW
HAS OR HEREAFTER MAY HAVE, AGAINST ANY OF THE FOREGOING BY REASON OF ANY MATTER,
CAUSE OR THING OCCURRING PRIOR TO THE DATE OF THIS AGREEMENT; THAT THE
SIGNATURES AFFIXED HERETO WERE AFFIXED AS THE WHOLLY VOLUNTARY ACT OF THE
PERSONS WHO SIGNED THIS AGREEMENT, AND THAT THE TERMS AND PROVISIONS OF THIS
AGREEMENT CANNOT BE CHANGED OR MODIFIED UNLESS IN WRITING SIGNED BY AN
AUTHORIZED CORPORATE OFFICER OF AXXS AND JAGR;
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G. Waiver of Rights
Failure by either of The Parties to enforce any rights under this Agreement
shall not be construed as the waiver of such rights. Any waiver, including
waiver of default, in any one instance, shall not constitute a continuing waiver
or a waiver in any other instance. Any acceptance of money or other performance
by either of The Parties, shall not constitute a waiver of any default, except
as to the payment of the particular payment or performance so received.
H. Validity of Parts
Any invalidity of any portion of this Agreement shall not affect the validity of
the remaining portion, and unless substantial performance of this Agreement is
frustrated by any such invalidity, this Agreement shall continue in effect.
I. Headings
The headings used herein are for purposes of convenience only and shall not be
used in interpreting the provisions hereof. As used herein, the male gender
shall include the female and neuter genders; the singular shall include the
plural, the plural, the singular and termination shall include expiration.
J. Execution By The Parties
This Agreement shall not be binding on either of The Parties, unless and until
it shall have been accepted and signed by an authorized officer of AXXS and
JAGR.
K. Attorneys' Fees
If either of The Parties becomes a party to any litigation concerning this
Agreement, AXXS or JAGR, by reason of any act or omission of either of The
Parties or its representatives, the responsible of
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The Parties, shall be liable to the other for reasonable attorneys' fees and
court costs incurred in such litigation, at all trial and appellate levels.
If either of The Parties hereto commences an action against the other, arising
out of or in connection with this Agreement, the prevailing of The Parties shall
be entitled to have and recover from the other Party its reasonable attorneys'
fees and costs at all trial and appellate levels.
L. Governing Law
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Florida; however, since this Agreement concerns an
individual in a state other than Florida, and the laws of that state might
require terms other than those or in addition to those contained herein, then
this Agreement shall be deemed modified so as to comply with the appropriate
laws of such state, but only to the extent necessary to prevent the invalidity
of this Agreement or any provision hereof, the imposition of fines or penalties,
or the creation of civil or criminal liability on account thereof. Any provision
of this Agreement which may be determined by competent authority to be
prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of the prohibition or unenforceability, without
invalidating the remaining provisions of this Agreement. Any prohibition against
or unenforceability of any provision of this Agreement in any jurisdiction,
including the state whose law governs this Agreement, shall not invalidate the
provision or render it unenforceable in any other jurisdiction. To the extent
permitted by applicable law, the Parties waive any provision of law which
renders any provision of this Agreement prohibited or unenforceable in any
respect.
NO PROJECTIONS OR REPRESENTATIONS
The Parties acknowledge and represent that no projections or representations
regarding the amount of income, sale, or profits they can expect to earn or
receive by virtue of this Agreement other than
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as provided herein, has been received from either of The Parties. The Parties
acknowledge that no representations or warranties inconsistent with this
Agreement were made to induce each other to execute this Agreement.
The Parties acknowledge that neither of the Parties nor any other person can
guarantee the success of the business. The undersigned, by signing this
Agreement, acknowledge that they have read same and that it has been requested
to state in writing hereafter any terms, claims, covenants, promises, or
representations, including representations as to any income, sales, or profit
projections, that were made by either of the parties or its representatives
contrary to the provisions of this Agreement, including the persons making same,
the location, and date thereof. If no such representations were made the
undersigned is to write the word: "NONE".
(AXXS Initials)
/s/ K.L.
/s/ J.G.
- -------------------
(JAGR Initials)
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ACKNOWLEDGMENTS
The Parties acknowledge that each has conducted an independent investigation of
the business contemplated by this Agreement and recognizes that the nature of
the business to be conducted may evolve and change over time; that the business
involves business risks and that the success of the venture depends primarily
upon each of The Parties business ability and efforts. No representations have
been made by either of The Parties, or by its officers, directors, shareholders,
employees, or agents, respectively, that are contrary to the statements made in
this Agreement. In all of their dealings with each other, the officers,
directors, employees, and agents of The Parties are acting only in a
representative capacity, not in an individual capacity, and that this Agreement,
and all business dealings between The Parties and such individuals as result of
this Agreement, are solely between JAGR and AXXS.
AXXS and JAGR have all requisite authority to enter into this Agreement, whether
arising under applicable Federal or State laws, rules or regulations, to which
either of The Parties may be subject to.
IN WITNESS WHEREOF, The Parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
JEFFREY A. GROSSMAN
BY: /s/ Jeffrey A. Grossman
AXXESS, INC.
By: /s/ [Signature Appears Here]
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EXHIBIT 4.4
AXXESS, INC.
REGISTRATION RIGHTS AGREEMENT
March 10, 1997
To the Purchasers of the Unit (s)
of Axxess, Inc.
Reference is made to the Private Placement Memorandum (the
"Memorandum") of Axxess, Inc. (the "Company") dated March 10, 1997. Pursuant to
the Memorandum, you (the "Holder") have purchased one or more Units (the
"Units") offered by the Company, each Unit consisting of 100,000 shares of
AXXS's common stock, $0.001 par value (the "Common Stock"). The Common Stock
will have certain piggyback registration rights as defined in this Registration
Rights Agreement to be entered into between AXXS and holders of the Units;
indicated on the signature page hereof on the terms and conditions described
herein and in the Private Placement Memorandum dated March 10, 1997 (together
with all amendments thereof and supplements and exhibits thereto, the "Private
Placement Memorandum"), a copy of which has been received by the undersigned.
This sets forth the agreement of the Company to register the shares of Common
Stock, under the Securities Act of 1933), as amended.
W I T N E S S E T H:
WHEREAS, the Company will issue to Holder shares of the Company's Common
Stock (the "Shares") more specifically identified in the Memorandum.
WHEREAS, the Holder is willing to subscribe for the Shares subject to
the terms and conditions set forth herein,
NOW THEREFORE, in consideration of the agreements set forth herein the
parties agree as follows:
1. Piggyback Registration. If the Company at any time during the year
three year period commencing on the date the Company becomes subject to the
reporting requirements of the Securities Exchange Act of 1934 (the "Exchange
Act"), proposes to register any of its securities under the Securities Act of
1933, as amended (the "1933 Act"), other than pursuant to Forms S-4, S-8 or
other comparable form, the Company shall include the shares of Common Stock
issued to the Holder (the "Registrable Securities"), in such registration. The
Company shall at such time give prompt written notice to all Holders of its
intention to effect such registration and of such Holders' rights under such
proposed registration, and upon the request of any Holder delivered to the
Company within twenty (20) days after giving of such notice (which request shall
specify the Registrable Securities intended to be disposed of by such Holder and
the intended method of disposition thereof), the Company shall include such
Registrable Securities held by each such Holder requested to be included in such
registration; provided, however, that if, at any time after giving such written
notice of the Company's intention to register any of the Holder's Registrable
Securities and prior to the effective date
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of the registration statement filed in connection such registration, the Company
shall determine for any reason not to register or to delay the registration of
such Registrable Securities, the Company may give written notice of such
determination to each Holder and thereupon shall be relieved of its obligation
to register any Registrable Securities issued or issuable in connection with
such registration (but not from its obligation to pay registration expenses in
connection therewith or to register the Registrable Securities in a subsequent
registration); and in the case of a determination to delay a registration shall
thereupon be permitted to delay registering any Registrable Securities for the
same period as the delay in respect of securities being registered for the
Company's own account. The Holder shall not be required to give any notice in
connection with the Company's initial public offering, in which case, the
Registrable Securities shall be automatically included in Registration
Statement.
Except in connection with the Company's initial public offering, if, in
the good faith judgment of the managing underwriter of an underwritten offering,
the inclusion of all of the Registrable Securities originally covered by a
request for registration would reduce the number of shares to be offered by the
Company or interfere with the successful. marketing of the shares of Common
Stock to be offered by the Company, the number of shares to be included in such
offering may be reduced in the following manner: (i) any shares of Common Stock
to be offered by the officers or directors of the Company shall be excluded from
such offering to the extent required by the managing underwriter, and (ii) if a
further reduction in the number of shares is required, such shares shall be
selected pro rata, among all selling stockholders whose shares are included in
such registration statement (based upon the number of shares of each stockholder
to be included in such registration statement).
2. Option to Include Registrable Securities in Offering. Notwithstanding
anything contained in Section I of this Agreement, the Company shall not be
required to include any of the Holders' Registrable Securities in an
underwritten offering of the Company's securities unless such Holders accept the
terms of the underwriting as agreed upon between the Company and the
underwriters selected by it (provided such terms are usual and customary for
selling stockholders) and the Holders agree to execute and/or deliver such
documents in connection with such registration as the Company or the managing
underwriter may reasonably request. Nothing contained herein however, shall
require any Holder to execute an agreement to refrain from selling the
Registrable Securities, except as set forth in the Subscription Agreement.
3. Cooperation with Company. Holders will cooperate with the Company in
all respects in connection with this Agreement, including, timely supplying all
information reasonably requested by the Company and executing and returning all
documents reasonably requested in connection with the registration and sale of
the Registrable Securities.
4. Registration Procedures. If and whenever the Company is required by
any of the provisions of this Agreement to use its best efforts to effect the
registration of any of the Registrable Securities under the 1933 Act, the
Company shall (except as otherwise provided in this Agreement), as expeditiously
as possible:
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a. prepare and file with the Securities and Exchange Commission (the
"Commission") a registration statement and shall use its best
efforts to cause such registration statement to become effective
and remain effective until all the Registrable Securities are sold
or become capable of being publicly sold without registration under
the 1933 Act; provided, however, the Company may suspend or
terminate the use of any such registration statement for a period
of up to 30 days to permit the orderly dissemination of significant
business developments.
b. prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions
of the 1933 Act with respect to the sale or other disposition of
all securities covered by such registration statement whenever the
Holder or Holders of such securities shall desire to sell or
otherwise dispose of the same (including prospectus supplements
with respect to the sales of securities from time to time in
connection with a registration statement pursuant to Rule 415 of
the Commission);
c. furnish to each Holder such numbers of copies of a summary
prospectus or other prospectus, including a preliminary prospectus
or any amendment or supplement to any prospectus, in conformity
with the requirements of the 1933 Act, and such other documents, as
such Holder may reasonably request in order to facilitate the
public sale or other disposition of the securities owned by such
Holder;
d. use its best efforts to register and qualify the securities covered
by such registration statement under such other securities or blue
sky laws of such jurisdictions as each Holder shall reasonably
request, and do any and all other acts and things which may be
necessary or advisable to enable such Holder to consummate the
public sale or other disposition in such jurisdiction of the
securities owned by such Holder, except that the Company shall not
for any such purpose be required to qualify to do business as a
foreign corporation in any jurisdiction wherein it is not so
qualified or to file therein any general consent to service of
process;
e. use its best efforts to list such securities on any securities
exchange on which any securities of the Company is then listed, if
the listing of such securities is then permitted under the rules of
such exchange;
f. enter into and perform its obligations under an underwriting
agreement, if the offering is an underwritten offering, in usual
and customary form, with the managing underwriter or underwriters
of such underwritten offering;
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g. Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating
thereto covered by such registration statement is required to be
delivered under the 1933 Act, of the happening of any event of
which it has knowledge as a result of which the prospectus included
in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances
then existing; and
h. furnish, at the request of any Holder on the date such Registrable
Securities are delivered to the underwriters for sale pursuant to
such registration or, if such Registrable Securities are not being
sold through underwriters, on the date the registration statement
with respect to such Registrable Securities becomes effective, (i)
an opinion, dated such date, of the counsel representing the
Company for the purpose of such registration, addressed to the
underwriters, if any, and to the Holder making such request,
covering such legal matters with respect to the registration in
respect of which such opinion is being given as the Holder of such
Registrable Securities may reasonably request and are customarily
included in such an opinion and (ii) letters, dated, respectively,
(1) the effective date of the registration statement and (2) the
date such Registrable Securities are delivered to the underwriters,
if any, for sale pursuant to such registration from a firm of
independent certified public accountants of recognized standing
selected by the Company, addressed to the underwriters, if any, and
to the Holder making such request, covering such financial,
statistical and accounting matters with respect to the registration
in respect of which such letters are being given as the Holder of
such Registrable Securities may reasonably request and are
customarily included in such letters; and
i. take such other actions as shall be reasonably requested by any
Holder to facilitate the registration and sale of the Registrable
Securities; provided, however, that the Company shall not be
obligated to take any actions not specifically required elsewhere
herein which in the aggregate would cost in excess of $5,000.
5. Expenses. All expenses incurred in any registration of the Holders'
Registrable Securities under this Agreement shall be paid by the Company,
including, without limitation, printing expenses, fees and disbursements of
counsel for the Company, expenses of any audits to which the Company shall agree
or which shall be necessary to comply with governmental requirements in
connection with any such registration, all registration and filing fees for the
Holders' Registrable Securities under federal and State securities laws, and
expenses of complying with the securities or blue sky laws of any jurisdictions;
provided, however, the Company shall not be liable for (a) any discounts or
commissions to any
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underwriter, (b) any stock transfer taxes incurred with respect to Registrable
Securities sold in the Offering or (c) the fees and expenses of counsel for any
Holder, provided that the Company will pay the costs and expenses of Company
counsel if the Company's counsel is representing any or all selling security
holders.
6. Indemnification. In the event any Registrable Securities are included
in a registration statement pursuant to this Agreement:
a. Company Indemnity. Without limitation of any other indemnity
provided to any Holder, either in connection with the
Offering or otherwise, to the extent permitted by law, the
Company shall indemnify and hold harmless each Holder, the
affiliates, officers, directors and partner of each holder,
any underwriter (as defined in the 1933 Act) for such Holder,
and each person, if any, who controls such Holder or
underwriter (within the meaning of the 1933 Act or the
Exchange Act, against any losses, claims, damages or
liabilities (joint or several) to which they may become
subject under the 1933 Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of
or are based upon any of the following statements, omissions
or violations (collectively a "Violation"): (i) any untrue
statement or alleged untrue statement f material fact
contained in such registration statement including any
preliminary prospectus or final prospectus contained therein
or any amendments or supplements thereto, (ii) the omission
or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements
therein not misleading, (iii) any violation or alleges
violation by the Company of the 1933 Act, the Exchange Act,
or (iv) any state securities law or any rule or regulation
promulgated under the 1933 Act, the Exchange Act or any
state securities law, and the Company shall reimburse each
such Holder, affiliate, officer or director or partner,
underwriter or controlling person for any reasonable legal or
other expenses incurred by them in connection with
investigating or defending any such loss, claim, damage,
liability or action provided, however, that the Company shall
not be liable to any Holder in any such case for any such
loss, claim, damage, liability or action to the extent that
it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information
furnished expressly for the use in connection with such
registration by any such Holder or any other officer,
director or controlling person thereof.
b. Holder Indemnity. Each Holder shall indemnify and hold
harmless the Company, its affiliates, its counsel,
underwriter (as defined in the 1933 Act) and each person, if
any, who controls the Company or the underwriter (within the
meaning of the 1933 Act or liabilities (joint or several) to
which they may become subject under the 1933 Act, the
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Exchange Act or any state securities law, and the Holder
shall reimburse the Company, affiliate, officer or director
or partner, underwriter or controlling person for any legal
or other expenses incurred by them in connection with
investigating or defending any such loss, claim, damage,
liability or action; insofar as such losses, claims, damages
or liabilities (or actions and respect thereof) arise out of
or are based upon any statements or information provided by
such Holder to the Company in connection with the offer or
sale of Registrable Securities.
c. Notice Right to Defend. Promptly after receipt by an
indemnified party under this Section 6 of Notice of the
Commencement of any action (including any governmental
action), such indemnified party shall, if a claim in respect
thereof is to be made against any indemnifying party under
this Section 6 deliver to the indemnifying party a written
notice of the commencement thereof and the indemnifying party
agrees in writing that it will be responsible for any costs,
expenses, judgments, damages and losses incurred by the
indemnified party with respect to such claim, jointly with
any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the
parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the reasonable
fees and expenses to be paid by the indemnifying party, if
counsel to the indemnified party reasonably believes that
representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due
to actual or potential differing interests between such
indemnified party and any other party represented by such
counsel in such proceeding, provided, however, that the
indemnifying party shall be responsible for one counsel. The
failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such
action shall relieve such indemnifying party of any liability
that it may have to any indemnified party otherwise than
under this Agreement.
d. Contribution. If the indemnification provided for in this
Agreement is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss,
liability, claim, damage or expense referred to therein, then
the indemnifying party in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such
loss, liability, claim, damage or expense in such proportion
as is appropriate to reflect the relative fault of, or
benefit to, the indemnifying party on the one hand and the
indemnified party on the other hand in connection with the
statements or omissions which resulted in such loss,
liability, claim damage or expense as well as any of the
relevant equitable considerations. The relevant fault of the
indemnifying party and the indemnified part shall be
determined by
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reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
to state a material fact relates to information supplied by
the indemnifying party or by the indemnified, party and the
parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission. Notwithstanding the foregoing, the amount any
Holder shall be obligated to contribute pursuant to the
Agreement shall be limited to an amount equal to the proceeds
to such Holder of the Registrable Securities sold pursuant to
the registration statement which gives rise to such
obligation to contribute (less the aggregate amount of any
damages which the Holder has otherwise been required to pay
in respect of such loss, claim, damage, liability or action
or any substantially similar loss, claim, damage, liability
or action arising from the sale of such registrable
Securities). Notwithstanding any indemnification provided for
in this Section 6, in the event it is finally bad faith,
wilful misconduct or gross negligence of an indemnified
party, such indemnified party shall repay to the indemnifying
party all amounts previously paid on behalf of the
indemnified party in connection with the defense of such
Violation.
e. Survival of Indemnity. The indemnification provided by this
Agreement shall be a continuing right to indemnification and
shall survive the registration and sale of any Registrable
Securities by any person entitled to indemnification
hereunder and the expiration or termination of this
Agreement.
7. Limitation on Other Registration Rights. Except as otherwise set
forth in this Agreement, the Company shall not, without the prior written
consent of the Holders of Registrable Securities representing a majority thereof
held by all the Holders, file any registration statement filed on behalf of any
person (including the Company) other than a Holder to become effective during
any period when the Company is not in compliance with this Agreement.
8. Remedies.
a. Remedies Upon Default or Delay. The Company acknowledges the
breach of any part of this Agreement may cause irreparable harm
to a Holder and that monetary damages alone may be inadequate.
The Company therefore agrees that the Holder shall be entitled
to injunctive relief or such other applicable remedy as a court
of competent jurisdiction may provide. Nothing contained herein
will be construed to limit a Holder's right to any remedies at
law, including recovery of damages for breach of any part of
this Agreement.
9. Notices. All communications under this Agreement shall be in writing
and shall be mailed by first class mail, postage prepaid, or telegraphed or
telexed with confirmation of receipt or delivered by hand or by overnight
delivery service. Any notice, when mailed by
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<PAGE>
registered or certified mail shall be deemed to be given three days after so
mailed, when telegraphed or telexed shall be deemed to be given when
transmitted, or when delivered by hand or overnight shall be deemed to be given
when delivered.
10. Successors and Assigns. Except as other wise expressly provided
herein, this Agreement shall inure to the benefit of and be binding upon the
successors and permitted assigns of the Company and each of the Holders.
11. Amendment and Waiver. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, but only with the
written consent of the Company and the Holder's of securities representing a
majority of the Registrable Securities; provided, however, that no such
amendment or waiver shall take away any registration right of any Holder of
Registrable Securities or reduce the amount f reimbursable costs to any Holder
of Registrable Securities in connection with any registration hereunder without
the consent of such Holder; further provided, however, that without the consent
of any other Holder of Registrable Securities, any Holder may from time to time
enter into one or more agreements amending, modifying or waiving the provisions
of this Agreement if such action does not adversely affect the rights or
interest of any other Holder of Registrable Securities. No delay on the part of
any party in the exercise of any right, power or remedy shall operate as a
waiver thereof, nor shall any single or partial exercise by any party of any
right, power or remedy preclude any other or further exercise thereof, or the
exercise of any other right, power or remedy.
12. Counterparts. One or more counterparts of this Agreement may be
signed by the parties, each of which shall be an original but all of which
together shall constitute one and same instrument.
13. Governing Law. This Agreement shall be construed in accordance with
and governed by the internal laws of the State of Nevada, without giving effect
to conflicts of law principles.
14. Invalidityly of Provisions. If any provisions of this Agreement is
or becomes invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not be affected thereby.
15. Headings. The headings in this Agreement are for convenience of
reference only and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
l0th day of March, 1997.
AXXESS, INC.
By: /s/ Kevin A. Lichtman Alcott Simpson & Co., Inc.
---------------------------- ------------------------------
Kevin A. Lichtman, President Name of Holder
/s/ [Signature appears here]
------------------------------
Signature of Holder
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<PAGE>
EXHIBIT 4.5
AXXESS, INC.
REGISTRATION RIGHTS AGREEMENT
March 10, 1997
To the Purchasers of the Unit(s)
of Axxess
Reference is made to the Private Placement Memorandum (the "Memorandum")
of Axxess, (the "Company") dated March 10, 1997. Pursuant to the Memorandum, you
(the "Holder") have purchased one or more Units (the "Units") offered by the
Company, each Unit consisting of 100,000 shares of AXXS's common stock, $0.001
par value (the "Common Stock"). The Common Stock will have certain piggyback
registration rights as defined in this Registration Rights Agreement to be
entered into between AXXS and holders of the Units; indicated on the signature
page hereof on the terms and conditions described herein and in the Private
Placement Memorandum dated March 10, 1997 (together with all amendments thereof
and supplements and exhibits thereto, the "Private Placement Memorandum"), a
copy of which has been received by the undersigned. This sets forth the
agreement of the Company to register the shares of Common Stock, under the
Securities Act of 1933, as amended.
WITNESSETH:
WEMREAS, the Company will issue to Holder shares of the Company's Common
Stock (the "Shares") more specifically identified in the Memorandum.
WHEREAS, the Holder is willing to subscribe for the Shares subject to
the terms and conditions set forth herein,
NOW THEREFORE, in consideration of the agreements set forth herein the
parties agree as follows:
1. Piggyback Registration. If the Company at any time during the year
three year period cornmencing on the date the Company becomes subject to the
reporting requirements of the Securities Exchange Act of 1934 (the "Exchange
Act"), proposes to register any of its securities under the Securities Act of
1933, as amended (the "1933 Act"), other than pursuant to Forms S-4, S-8 or
other comparable form, the Company shall include the shares of Common Stock
issued to the Holder (the "Registrable Securities"), in such registration. The
Company shall at such time give prompt written notice to all Holders of its
intention to effect such registration and of such Holders' rights under such
proposed registration, and upon the request of any Holder delivered to the
Company within twenty (20) days after giving of such notice (which request shall
specify the Registrable Securities intended to be disposed of by such Holder and
the intended method of disposition thereof), the Company shall include such
Registrable Securities held by each such Holder requested to be included in such
registration; provided, however, that if, at any time after giving such written
notice of the Company's intention to register any of the Holder's Registrable
Securities and prior to the effective date
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of the registration statement filed in connection such registration, the Company
shall determine for any reason not to register or to delay the registration of
such Registrable Securities, the Company may give written notice of such
determination to each Holder and thereupon shall be relieved of its obligation
to register any Registrable Securities issued or issuable in connection with
such registration (but not from its obligation to pay registration expenses in
connection therewith or to register the Registrable Securities in a subsequent
registration); and in the case of a determination to delay a registration shall
thereupon be permitted to delay registering any Registrable Securities for the
same period as the delay in respect of securities being registered for the
Company's own account. The Holder shall not be required to give any notice in
connection with the Company's initial public offering, in which case, the
Registrable Securities shall be automatically included in Registration
Statement.
Except in connection with the Company's initial public offering, if, in the
good faith judgment of the managing underwriter of an underwritten offering, the
inclusion of all of the Registrable Securities originally covered by a request
for registration would reduce the number of shares to be offered by the Company
or interfere with the successful marketing of the shares of Common Stock to be
offered by the Company, the number of shares to be included in such offering may
be reduced in the following manner: (i) any shares of Common Stock to be offered
by the officers or directors of the Company shall be excluded from such offering
to the extent required by the managing underwriter, and (ii) if a further
reduction in the number of shares is required, such shares shall be selected pro
rata among all selling stockholders whose shares are included in such
registration statement (based upon the number of shares of each stockholder to
be included in such registration statement).
2. Option to Include Registrable Securities in Offering. Notwithstanding
anyting contained in Section 1 of this Agreement, the Company shall not be
required to include any of the Holders' Registrable Securities in an
underwritten offering of the Company's securities unless such Holders accept the
terms of the underwriting as agreed upon between the Company and the
underwriters selected by it (provided such terms are usual and customary for
selling stockholders) and the Holders agree to execute and/or deliver such
documents in connection with such registration as the Company or the managing
underwriter may reasonably request. Nothing contained herein however, shall
require any Holder to execute an agreement to refrain from selling the
Registrable Securities, except as set forth in the Subscription Agreement.
3. Cooperation with Company. Holders will cooperate with the Company in all
respects in connection with this Agreement, including, timely supplying all
information reasonably requested by the Company and executing and returning all
documents reasonably requested in connection with the registration and sale of
the Registrable Securities.
4. Registration Procedures. If and whenever the Company is required by any
of the provisions of this Agreement to use its best efforts to effect the
registration of any of the Registrable Securities under the 1933 Act, the
Company shall (except as otherwise provided in this Agreement), as expeditiously
as possible:
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a. prepare and file with the Securities and Exchange Commission (the
"Commission") a registration statement and shall use its best efforts to
cause such registration statement to become effective and remain effective
until all the Registrable Securities are sold or become capable of being
publicly sold without registration under the 1933 Act; provided, however, the
Company may suspend or terminate the use of any such registration statement
for a period of up to 30 days to permit the orderly dissemination of
significant business developments.
b. prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective and to
comply with the provisions of the 1933 Act with respect to the sale or other
disposition of all securities covered by such registration statement whenever
the Holder or Holders of such securities shall desire to sell or otherwise
dispose of the same (including prospectus supplements with respect to the
sales of securities from time to time in connection with a registration
statement pursuant to Rule 415 of the Commission);
c. furnish to each Holder such numbers of copies of a summary prospectus or
other prospectus, including a preliminary prospectus or any amendment or
supplement to any prospectus, in conformity with the requirements of the 1933
Act, and such other documents, as such Holder may reasonably request in order
to facilitate the public sale or other disposition of the securities owned by
such Holder;
d. use its best efforts to register and qualify the securities covered by
such registration statement under such other securities or blue sky laws of
such jurisdictions as each Holder shall reasonably request, and do any and
all other acts and things which may be necessary or advisable to enable such
Holder to consummate the public sale or other disposition in such
jurisdiction of the securities owned by such Holder, except that the Company
shall not for any such purpose be required to qualify to do business as a
foreign corporation in any jurisdiction wherein it is not so qualified or to
file therein any general consent to service of process;
e. use its best efforts to list such securities on any securities exchange on
which any securities of the Company is then listed, if the listing of such
securities is then permitted under the rules of such exchange;
f. enter into and perform its obligations under an underwriting agreement, if
the offering is an underwritten offering, in usual and customary form, with
the managing underwriter or underwriters of such underwritten offering;
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g. Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating
thereto covered by such registration statement is required to be
delivered under the 1933 Act, of the happening of any event of which
it has knowledge as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary or make the statements
therein not misleading in the light of the circumstances then
existing; and
h. furnish, at the request of any Holder on the date such Registrable
Securities are delivered to the underwriters for sale pursuant to
such registration or, if such Registrable Securities are not being
sold through underwriters, on the date the registration statement
with respect to such Registrable Securities becomes effective, (i)
an opinion, dated such date, of the counsel representing the Company
for the purpose of such registration, addressed to the underwriters,
if any, and to the Holder making such request, covering such legal
matters with respect to the registration in respect of which such
opinion is being given as the Holder of such Registrable Securities
may reasonably request and are customarily included in such an
opinion and (ii) letters, dated, respectively, (1) the effective
date of the registration statement and (2) the date such Registrable
Securities are delivered to the underwriters, if any, for sale
pursuant to such registration from a firm of independent certified
public accountants of recognized standing selected by the Company,
addressed to the underwriters, if any, and to the Holder making such
request, covering such financial, statistical and accounting matters
with respect to the registration in respect of which such letters
are being given as the Holder of such Registrable Securities may
reasonably request and are customarily included in such letters; and
i. take such other actions as shall be reasonably requested by any
Holder to facilitate the registration and sale of the Registrable
Securities; provided, however, that the Company shall not be
obligated to take any actions not specifically required elsewhere
herein which in the aggregate would cost in excess of $5,000.
5. Expenses. All expenses incurred in any registration of the Holders'
Registrable Securities under this Agreement shall be paid by the Company,
including, without limitation, printing expenses, fees and disbursements of
counsel for the Company, expenses of any audits to which the Company shall agree
or which shall be necessary to comply with governmental requirements in
connection with any such registration, all registration and filing fees for the
Holders' Registrable Securities under federal and State securities laws, and
expenses of complying with the securities or blue sky laws of any jurisdictions;
provided, however, the Company shall not be liable for (a) any discounts or
commissions to any
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underwriter, (b) any stock transfer taxes incurred with respect to Registrable
Securities sold in the Offering or (c) the fees and expenses of counsel for any
Holder, provided that the Company will pay the costs and expenses of Company
counsel if the Company's counsel is representing any or all selling security
holders.
6. Indemnification. In the event any Registrable Securities are included
in a registration statement pursuant to this Agreement:
a. Company Indemnity. Without limitation of any other indemnity
provided to any Holder, either in connection with the Offering or
otherwise, to the extent permitted by law, the Company shall indemnify
and hold harmless each Holder, the affiliates, officers, directors and
partner of each holder, any underwriter (as defined in the 1933 Act)
for such Holder, and each person, if any, who controls such Holder or
underwriter (within the meaning of the 1933) Act or the Exchange Act,
against any losses, claims, damages or liabilities (joint or several)
to which they may become subject under the 1933 Act, the Exchange Act
or other federal or state law, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of material fact contained in such registration
statement including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein not
misleading, (iii) any violation or alleges violation by the Company of
the 1933 Act, the Exchange Act, or (iv) any state securities law or
any rule or regulation promulgated under the 1933 Act, the Exchange
Act or any state securities law, and the Company shall reimburse each
such Holder, affiliate, officer or director or partner, underwriter or
controlling person for any reasonable legal or other expenses incurred
by them in connection with investigating or defending any such loss,
claim, damage, liability, or action provided, however, that the
Company shall not be liable to any holder in any such case for any
such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance
upon and in conformity with written information furnished expressly
for the use in connection with such registration by any such Holder or
any other officer, director or controlling person thereof.
b. Holder Indemnity. Each Holder shall indemnify and hold harmless the
Company, its affiliates, its counsel, underwriter (as defined in the
1933 Act) and each person, if any, who controls the Company or the
underwriter (within the meaning of the 1933 Act or liabilities (joint
or several) to which they may become subject under the 1933 Act, the
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Exchange Act or any state securities law, and the Holder shall
reimburse the Company, affiliate, officer or director or partner,
underwriter or controlling person for any legal or other expenses
incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; insofar as such losses,
claims, damages or liabilities (or actions and respect thereof) arise
out of or are based upon any statements or information provided by
such Holder to the Company in connection with the offer or sale of
Registrable Securities.
c. Notice: Right to Defend. Promptly after receipt by an indemnified
party under this Section 6 of Notice of the Commencement of any
action (including any governmental action), such indemnified party
shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 6 deliver to the indemnifying
party a written notice of the commencement thereof and the
indemnifying party agrees in writing that it will be responsible for
any costs, expenses, judgments, damages and losses incurred by the
indemnified party with respect to such claim, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof
with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own
counsel, with the reasonable fees and expenses to be paid by the
indemnifying party, if counsel to the indemnified party reasonably
believes that representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party
and any other party represented by such counsel in such proceeding;
provided, however, that the indemnifying party shall be responsible
for one counsel. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any
such action shall relieve such indemnifying party of any liability
that it may have to any indemnified party otherwise than under this
Agreement.
d. Contribution. If the indemnification provided for in this Agreement is
held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage
or expense referred to therein, then the indemnifying party, in lieu
of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of
such loss, liability, claim, damage or expense in such proportion as
is appropriate to reflect the relative fault of, or benefit to, the
indemnifying party on the one hand and the indemnified party on the
other hand in connection with the statements or omissions which
resulted in such loss, liability, claim damage or expense as well as
any of the relevant equitable considerations. The relevant fault of
the indemnifying party and the indemnified part shall be determined by
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reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the
indemnified Party and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. Notwithstanding the foregoing, the amount any Holder shall
be obligated to contribute pursuant to the Agreement shall be limited
to an amount equal to the proceeds to such Holder of the Registrable
Securities sold pursuant to the registration statement which gives
rise to such obligation to contribute (less the aggregate amount of
any damages which the Holder has otherwise been required to pay in
respect of such loss, claim, damage, liability or action or any
substantially similar loss, claim, damage, liability or action
arising from the sale of such registrable Securities).
Notwithstanding any indemnification provided for in this Section 6, in
the event it is finally bad faith, wilful misconduct or gross
negligence of an indemnified party, such indemnified party shall repay
to the indemnifying party all amounts previously paid on behalf of the
indemnified party in connection with the defense of such Violation.
e. Survival of Indemnity. The indemnification provided by this
Agreement shall be a continuing right to indemnification and shall
survive the registration and sale of any Registrable Securities by any
person entitled to indemnification hereunder and the expiration or
termination of this Agreement.
7. Limitation on Other Registration Rights. Except as otherwise set forth
in this Agreement, the Company shall not, without the prior written consent of
the Holders of Registrable Securities representing a majority thereof held by
all the Holders, file any registration statement filed on behalf of any person
(including the Company) other than a Holder to become effective during any
period when the Company is not in compliance with this Agreement
8. Remedies
a. Remedies Upon Default or Delay. The Company acknowledges the
breach of any part of this Agreement may cause irreparable harm to a
Holder and that monetary damages alone may be inadequate. The Company
therefore agrees that the Holder shall be entitled to injunctive
relief or such other applicable remedy as a court of
competent jurisdiction may provide. Nothing contained herein will be
construed to limit a Holder's right to any remedies at law, including
recovery of damages for breach of any part of this Agreement.
9. Notices. All communications under this Agreement shall be in writing and
shall be mailed by first class mail postage prepaid, or telegraphed or telexed
with confirmation of receipt or delivered by hand or by overnight delivery
service. Any notice, when mailed by
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registered, or certified mail shall be deemed to be given three days after so
mailed, when telegraphed or telexed shall be deemed to be given when
transmitted, or when delivered by hand or overnight shall be deemed to be given
when delivered.
10. Successors and Assigns. Except as otherwise expressly provided herein,
this Agreement shall inure to the of and be binding upon the successors and
permitted assigns of the Company and each of the Holders.
11. Amendment and Waiver. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, but only with the
written consent ofthe Company and the Holders of securities representing a
majority of the Registrable Securities; provided, however, that no such
amendment or waiver shall take away any registration right of, any Holder of
Registrable Securities or reduce the amount of reimbursable costs to any Holder
of Registrable Securities in connection with any registration hereunder without
the consent of such Holder; further provided, however, that without the consent
of any other Holder of Registrable Securities any Holder may from time to time
enter into one or more agreements amending, modifying or waiving the provisions
of this Agreement if such action does not adversely affect the rights or
interest of any other Holder of Registrable Securities. No delay on the part of
any party in the exercise of any right, power or remedy shall operate as a
waiver thereof, nor shall any single or partial exercise by any party of any
right, power or remedy preclude any other or further exercise thereof, or the
exercise of any other right, power or remedy.
12. Counterparts. One or more counterparts of this Agreement may be
signed by the parties, each of which shall be an original but all of which
together shall constitute one and same instrument.
13. Governing Law. This Agreement shall be construed in accordance with and
governed by the internal laws of the State of Nevada. without giving effect to
conflicts of law principles.
14. Invalidity of Provisions. If any provisions of this Agreement is or
becomes invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not be
affected thereby.
15. Headings. The headings in this Agreement are for convenience of
reference only and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
IN WITINTSS WHEREOF, the parties have executed this Agreement as of the
10th day of March, 1997.
AXXESS, INC.
By: /s/ Kevin A. Lichman Stewart Int'l Investments, Ltd.
------------------------------- -------------------------------
Kevin A. Lichman, President Name of Holder
[signature appears here]
--------------------------------
Signature of Holder
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EXHIBIT 4.6
WARRANTS TO PURCHASE COMMON STOCK
The terms and conditions with respect to the holding and exercise of these
Stock Purchase Warrants are as follows.
1. Number of Shares Acquirable upon Exercise; Certain Adjustments.
(a) Masada shall be initially entitled to receive, upon exercise
hereof, up to Eight Hundred Thousand (800,000) shares of the
Company's Common Stock, subject, however, to adjustment as provided
below.
(b) If, following the date hereof and prior to the Expiration Time (as
defined below), the outstanding shares of the Company's Common
Stock shall be increased or decreased through a stock split, stock
dividend, stock consolidation, or otherwise, without consideration
to the Company, an appropriate and proportionate adjustment shall
be made in the number and kind of shares as to which the Warrants
may be exercised. By way of example only, if the Company should
undergo a two-for-one stock split of its outstanding shares of
Common Stock, the number shares for which the Warrants may be
exercised would thereupon increase to 1,600,000 shares.
(c) Any increase or decrease in the number of shares obtainable through
the exercise of the Warrants shall become effective immediately
following the effective time of the stock split or consolidation
causing such increase or decrease, or in the case of an increase
required by the stock dividend, shall become effective as of the
payment or distribution date of such dividend.
(d) No fractional shares of stock shall be issued or made available
under the Plan on account of any such adjustment, and fractional
share interests shall be disregarded.
2. Exercise Price; Adjustment in Certain Events.
(a) The Warrants shall be initially exercisable for a purchase price of
$.25 per Share, subject to the adjustments set forth below (the
"Exercise Price"). The Exercise Price shall remain unchanged until
the occurrence of one of the events described in Section 1(b),
above.
(b) In the event of a change in the number of shares of Common Stock
which may be caused by any event described in Section 1(b), above,
a corresponding adjustment changing the exercise price per share of
Common Stock attributable to any unexercised Warrants shall
likewise be made. By way of
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example, only, if the Company should undergo a two-for-one stock split
of its outstanding shares of Common Stock as described in Section 1(b),
above, then in addition to the change in number of shares for which the
Warrants may be exercised as described in Section 1(b), the exercise
price for each share of Common Stock for which a Warrant may thereafter
be exercised thereafter would be reduced from $.25 to $.125 per share.
3. Method of Exercise. Masada may exercise its right to purchase Shares
pursuant to this Warrant at any time prior to the Expiration Time, by (a)
completing in the manner indicated, and executing, the attached Subscription
Form for that number of Shares which it is entitled, and desires, to
purchase; (b) surrendering the Warrant to the Company at its principal place
of business in Altamonte Springs, Florida; and (c) paying the appropriate
purchase price for the Shares, by cash, money order, bank draft, or business
in Altamonte Springs, Florida. Upon such surrender and payment, the Company
will issue to Masada the number of Shares so subscribed for.
4. Effect of Exercise. Upon surrender of this Warrant and due payment of the
exercise price, the Company will issue to Masada the number of shares of
Common Stock subscribed for, and Masada will be a shareholder of the Company
in respect of such Common Stock as of the date on which the shares
representing such Common Stock are issued by the Company's Transfer Agent
and Registrar.
5. No Rights as Shareholder Prior to Exercise. No person or entity shall be
considered to be shareholder of the Company for any purpose until the
exercise of the Warrant as provided herein Agent and Registrar thereupon.
6. No Rights After the Expiration Time. Nothing contained in this Warrant, or
in any instrument evidencing the Warrant, shall confer on any person or
entity any right to subscribe for or purchase, after the Expiration Time,
any security of or issued by the Company. From and after the Expiration
Time, this Warrant and all rights hereunder shall be valueless,
unexercisable, void, and no further force or effect.
7. Transferability. This Warrant shall be transferable, and any attempt to
sell, assign, transfer, hypothecate, or otherwise convey or encumber any
interest herein or therein shall be acceptable. The Company shall have an
obligation to recognize any such sale, assignment, transfer, hypothecation,
or other conveyance or encumbrance, to reflect such transaction on the
official records of the Company, or to issue Warrants or shares of its
Common Stock to any party as long as it is not in violation of any other
provision herein.
8. Subdivision. This Warrant may be divided and subdivided into two or more
certificates, evidencing the total number of Warrants provided herein, upon
written demand therefor delivered to the Company. This Warrant may be
exercised for all
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or any part of the Shares, and in such event the Company shall issue a new
Warrant Certificate, evidencing the balance of the shares not previously
subscribed for. Notwithstanding the foregoing sentences, however, no Warrant
Certificate shall be issued, and no exercise of a Warrant shall be
permitted, involving any fraction of one Share.
9. Registration Privileges
(a) Certain Definitions.
As used hereinafter, the following terms shall have the following
respective meanings:
"Commission" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar Federal Statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time,
be in effect.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of
securities of the Company (other than a registration statement on Form
S-8 or Form S-4, or their successors, or any other form for a limited
purpose, or any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another
corporation).
"Registration Expenses" means the expenses described in paragraph iv.
"Registration Shares" means (i) the Shares of Common Stock underlying
the Warrants issued to Masada herein, and (ii) any other shares
(because of stock splits, stock dividends, reclassification,
recapitalization, or similar events); provided, however, that shares of
Common Stock which are Registrable Shares shall cease to the
Registrable Shares upon any sale pursuant to a Registration Statement,
Section 4 (1) of the Securities Act or Rule 144 under the Securities
Act.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may from time to time,
be in effect.
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(b) "Piggy-back" Registration.
(i) When the Company proposes to file a Registration Statement for a
public offering, it will prior to such filing, give written
notice to Masada of its intention to do so and, upon the written
request of Masada of its intention to do so and, upon the written
request of Masada given within twenty (20) days after the Company
provides such notice, the Company shall cause all Registrable
Shares which the company has been requested by Masada to register
to be registered under the Securities Act to the extent necessary
to permit their sale or other disposition in accordance with the
intended method of distribution specified in the request of
Masada, provided that the Company shall have the right to
postpone or withdraw any registration effected without obligation
to Masada.
(ii) Masada's rights under this paragraph shall be subject of the
limitation that, in the event that the Company files a
Registration Statement for an underwritten public offering the
inclusion of the Registrable Shares shall be upon the condition
that: (a) if requested by the managing underwriter as a condition
of the offering, they be sold through the underwriters on the
same terms and conditions as are applicable to the Company or all
other selling stockholder of the Company; or (b) if such
condition is imposed by the managing underwriter, and Masada does
not wish to sell the Registrable Shares upon such terms and
conditions, Masada will agree not to transfer or otherwise
dispose of any Registrable Shares for a period of time from the
effective date of the Registration Statement (not to exceed 120
days) specified by the managing underwriter.
(c) Registration Procedures.
If and whenever the Company is required by the provisions of this Stock
Purchase Warrant to use its best efforts to effect the registration of any
of the Registrable Shares under the Securities Act, the Company shall:
(i) file with the Commission a Registration Statement with respect to
such Registrable Shares and use its best efforts to cause that
Registration Statement to become and remain effective;
(ii) as expeditiously as possible prepare and file with the Commission
any amendments and supplements to the Registration Statement and
the prospectus included in the Registration Statements as may be
necessary to keep the Registration Statement effective for a
period of not less than nine months from the effective date;
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(iii) as expeditiously as possible furnish to Masada such reasonable
numbers of copies of the prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities
Act, and such other documents as Masada may reasonably request in
order to facilitate the public sale or other disposition of the
Registrable Shares owned Masada; and
(iv) as expeditiously as possible use its best efforts to register or
qualify the Registrable Shares covered by the Registration
Statement under the securities or Blue Sky laws of such states as
Masada shall reasonably request, and do any and all other acts
and things that may be necessary or desirable to enable Masada to
consummate the public sale or other disposition in such states of
the Registrable Shares owned by Masada, provided, however, that
the Company shall not be required in connection with this
paragraph (iv) to qualify as a foreign corporation or execute a
general consent to service of process in any jurisdiction.
If the Company has delivered preliminary or final prospectuses to
Masada and, after having done so, the prospectus is amended to comply
with the requirements of the Securities Act, the Company shall promptly
notify Masada and, if requested, Masada shall immediately cease making
offers of Registrable Shares and return all prospectuses to the
Company. The Company shall promptly provide Masada with revised
prospectuses and, following receipt of the revised prospectuses, Masada
shall be free to resume making offers of the Registrable Shares.
(d) Allocation of Expenses.
The Company will pay all Registration Expenses of all registrations
under this Stock Purchase Warrant; provided, however, that if a registration
is withdrawn at the request of Masada (other than as a result of information
concerning the business or financial condition of the Company which is made
known to Masada after the date on which such registration was requested) and
if Masada elects not to have such registration counted as a registration
requested under paragraph (b), Masada shall pay the portion of Registration
Expenses in the proportion that the market value of their Registrable Shares
included in such registration bear to all of securities included therein.
For purposes of this Section, the term "Registration Expenses" shall mean
all expenses incurred by the Company in complying with this Stock Purchase
Warrant, including, without fees, printing expenses, fees and disbursements
of counsel for the Company state Blue Sky fees and expenses, and the expense
of any special audits incident to or required by any such registration, but
excluding underwriting discounts, selling commissions and the fees and
expenses of Masada's own counsel.
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(e) Indemnification.
In the event of any registration of any of the Registrable Shares under
the Securities Act pursuant to this Stock Purchase Warrant, the Company will
indemnify and hold harmless the seller of such Registrable Shares, each
underwriter of such Registrable Shares, and each other person, if any, who
controls such seller or underwriter within the meaning of the Securities Act
or the Exchange Act against any losses, claims, damages or liabilities,
joint or several, to which such seller, underwriter or controlling person
may become subject under the Securities Act, the Exchange Act, state
securities or Blue Sky laws or otherwise, in so far as much losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement under which such Registrable
Shares were registered under the Securities Act, any preliminary prospectus
or final prospectus contained in the Registration Statement, or any
amendment or supplement to such Registration Statement, or arise out of or
are based upon the omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and the Company will reimburse such seller, underwriter and
each such controlling person for any legal or any other expenses reasonably
incurred by such seller, underwriter or controlling person in connection
with investing or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out
of or is based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or prospectus, or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to the Company, in writing by or on behalf of such seller,
underwriter or controlling person specifically for use in the preparation
thereof.
In the event of any registration of any of the Registrable Shares under
the Securities Act pursuant to this Stock Purchase Warrant, each seller of
Registrable Shares, severally and not jointly, will indemnify and hold
harmless the Company, each of its directors, and officers and each
underwriter (if any) and each person, if any, who controls the Company or
any such underwriter within the meaning of the Securities Act or the
Exchange Act, against any losses, claims, damages or liabilities, joint or
several, to which the Company, such directors and officers, underwriters or
controlling person may become subject under the Securities Act, Exchange
Act, state securities or Blue Sky laws or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement under which such
Registrable Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained in the Registration Statement, or
any amendment or supplement to the Registration Statement, or arise out of
or are based upon any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein
not
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misleading, if the statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of such seller, specifically for use in connection with the
preparation of such Registration Statement, prospectus, amendment or
supplement; provided, however, that the obligations of such Stockholders
hereunder shall be limited to an amount equal to the proceeds to each
Stockholder of Registrable Shares sold as contemplated herein.
Each party entitled to Indemnification under this paragraph (e) (the
"Indemnification Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting therefrom; providing, that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified party (whose approval shall
not be unreasonably withheld); and, provided, further, that the failure of
any Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this Stock Purchase Warrant.
The indemnified party may participate in such defense at such party's
expense; provided, however, that the Indemnifying Party shall pay such
expenses if representation of such Indemnified party by the counsel retained
by the Indemnifying Party would be inappropriate due to actual or potential
differing interest between the Indemnified Party and any other party
represented by such counsel in such proceedings. No Indemnifying Party, in
the defense of any such claim or litigation shall, except with the consent
of each Indemnified party, consent to entry of any judgement or enter into
any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release
from all liability in respect of such claim or litigation, and no
Indemnified Party shall consent to entry of any judgement or settle such
claim or litigation without the prior written consent of the Indemnifying
Party.
(f) Indemnification with Respect to Underwritten Offering.
In the event that Registrable Shares are sold pursuant to a
Registration Statement in an underwritten offering, the Company agrees to
enter into an underwriting agreement containing customary representations
and warranties with respect to the business and operations of an issuer of
the securities being registered and customary covenants and agreements to be
performed by such issuer, including without limitation customary provisions
with respect to indemnification by the Company of the underwriters of such
offering.
(g) Information by Masada.
Masada shall furnish to the Company such information regarding such
holder and the distribution proposed by such holder as the Company may
request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Stock Purchase
Warrant.
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(h) Selection of Underwriter.
In the case of any registration effected pursuant to this Stock
Purchase Warrant, the Company shall have the right to designate the managing
underwriter in any underwritten offering.
(i) Further Assurances.
From and after the date hereof, all persons subject to or bound by this
Stock Purchase Warrant shall from time to time, at the request of any such
other person and without further consideration, do, execute and deliver, or
cause to be done, executed and delivered, all such further acts, things and
instruments as may reasonably be requested or required more effectively to
evidence and give effect to the provisions, intent and purposes of this
Stock Purchase Warrant (including, without limitation, certificates to the
effect that this Stock Purchase Warrant continues operative and as to any
defaults hereunder or modifications hereof).
10. Governing Law; Interpretation.
(a) This Stock Purchase Warrant shall be governed by and construed and
enforced in accordance with the laws of the State of Florida applicable to
contracts made and to be performed exclusively therein as to all matters.
(b) All pronouns and words shall be read in appropriate number and gender,
the masculine, feminine and neuter shall be interpreted interchangeably and
singular shall include the plural and vice versa, as the circumstances may
require.
11. Miscellaneous.
(a) This Warrant shall be governed by and construed in accordance with the
internal laws of the State of Florida, without reference to the choice of
laws provisions thereof.
(b) The captions set forth in this Warrant are for convenience only, and
shall not be used in the construction hereof.
(c) If this Warrant, or any paragraph, sentence, term, or provision hereof,
is invalidated on any ground by any court of competent jurisdiction, the
remainder hereof shall, notwithstanding such invalidation, remain in full
force in effect, and each other provision of this Warrant shall thereafter
be construed and enforced in such a manner as to give the fullest possible
effect to the intention and purposes expressed herein.
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EXHIBIT 4.7
WARRANTS TO PURCHASE COMMON STOCK
The terms and conditions with respect to the holding and exercise of these
Stock Purchase Warrants are as follows.
1. Number of Shares Acquirable upon Exercise; Certain Adjustments.
(a) Harmat shall be initially entitled to receive, upon exercise
hereof, up to One Hundred Thousand (175,000) shares of the
Company's Common Stock, subject, however, to adjustment as provided
below.
(b) If, following the date hereof and prior to the Expiration Time (as
defined below), the outstanding shares of the Company's Common
Stock shall be increased or decreased through a stock split, stock
dividend, stock consolidation, or otherwise, without consideration
to the Company, an appropriate and proportionate adjustment shall
be made in the number and kind of shares as to which the Warrants
may be exercised. By way of example only, if the Company should
undergo a two-for-one stock split of its outstanding shares of
Common Stock, the number shares for which the Warrants may be
exercised would thereupon increase to 350,000 shares.
(c) Any increase or decrease in the number of shares obtainable through
the exercise of the Warrants shall become effective immediately
following the effective time of the stock split or consolidation
causing such increase or decrease, or in the case of an increase
required by the stock dividend, shall become effective as of the
payment or distribution date of such dividend.
(d) No fractional shares of stock shall be issued or made available
under the Plan on account of any such adjustment, and fractional
share interests shall be disregarded.
2. Exercise Price; Adjustment in Certain Events.
(a) The Warrants shall be initially exercisable for a purchase price of
$.25 per Share, subject to the adjustments set forth below (the
"Exercise Price"). The Exercise Price shall remain unchanged until
the occurrence of one of the events described in Section 1(b),
above.
(b) In the event of a change in the number of shares of Common Stock
which may be caused by any event described in Section 1(b), above,
a corresponding adjustment changing the exercise price per share of
Common Stock attributable to any unexercised Warrants shall
likewise be made. By way of
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example, only, if the Company should undergo a two-for-one stock split
of its outstanding shares of Common Stock as described in Section 1(b),
above, then in addition to the change in number of shares for which the
Warrants may be exercised as described in Section 1(b), the exercise
price for each share of Common Stock for which a Warrant may thereafter
be exercised thereafter would be reduced from $.25 to $.125 per share.
3. Method of Exercise. Harmat may exercise its right to purchase Shares
pursuant to this Warrant at any time prior to the Expiration Time, by (a)
completing in the manner indicated, and executing, the attached Subscription
Form for that number of Shares which it is entitled, and desires, to
purchase; (b) surrendering the Warrant to the Company at its principal place
of business in Altamonte Springs, Florida; and (c) paying the appropriate
purchase price for the Shares, by cash, money order, bank draft, or business
in Altamonte Springs, Florida. Upon such surrender and payment, the Company
will issue to Masada the number of Shares so subscribed for.
4. Effect of Exercise. Upon surrender of this Warrant and due payment of the
exercise price, the Company will issue to Harmat the number of shares of
Common Stock subscribed for, and Harmat will be a shareholder of the Company
in respect of such Common Stock as of the date on which the shares
representing such Common Stock are issued by the Company's Transfer Agent
and Registrar.
5. No Rights as Shareholder Prior to Exercise. No person or entity shall be
considered to be shareholder of the Company for any purpose until the
exercise of the Warrant as provided herein Agent and Registrar thereupon.
6. No Rights After the Expiration Time. Nothing contained in this Warrant, or
in any instrument evidencing the Warrant, shall confer on any person or
entity any right to subscribe for or purchase, after the Expiration Time,
any security of or issued by the Company. From and after the Expiration
Time, this Warrant and all rights hereunder shall be valueless,
unexercisable, void, and no further force or effect.
7. Transferability. This Warrant shall be transferable, and any attempt to
sell, assign, transfer, hypothecate, or otherwise convey or encumber any
interest herein or therein shall be acceptable. The Company shall have an
obligation to recognize any such sale, assignment, transfer, hypothecation,
or other conveyance or encumbrance, to reflect such transaction on the
official records of the Company, or to issue Warrants or shares of its
Common Stock to any party as long as it is not in violation of any other
provision herein.
8. Subdivision. This Warrant may be divided and subdivided into two or more
certificates, evidencing the total number of Warrants provided herein, upon
written demand therefor delivered to the Company. This Warrant may be
exercised for all
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or any part of the Shares, and in such event the Company shall issue a new
Warrant Certificate, evidencing the balance of the shares not previously
subscribed for. Notwithstanding the foregoing sentences, however, no Warrant
Certificate shall be issued, and no exercise of a Warrant shall be
permitted, involving any fraction of one Share.
9. Registration Privileges
(a) Certain Definitions.
As used hereinafter, the following terms shall have the following
respective meanings:
"Commission" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar Federal Statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time,
be in effect.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of
securities of the Company (other than a registration statement on Form
S-8 or Form S-4, or their successors, or any other form for a limited
purpose, or any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another
corporation).
"Registration Expenses" means the expenses described in paragraph iv.
"Registration Shares" means (i) the Shares of Common Stock underlying
the Warrants issued to Harmat herein, and (ii) any other shares
(because of stock splits, stock dividends, reclassification,
recapitalization, or similar events); provided, however, that shares of
Common Stock which are Registrable Shares shall cease to the
Registrable Shares upon any sale pursuant to a Registration Statement,
Section 4 (1) of the Securities Act or Rule 144 under the Securities
Act.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may from time to time,
be in effect.
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(b) "Piggy-back" Registration.
(i) When the Company proposes to file a Registration Statement for a
public offering, it will prior to such filing, give written
notice to Harmat of its intention to do so and, upon the written
request of Harmat of its intention to do so and, upon the written
request of Harmat given within twenty (20) days after the Company
provides such notice, the Company shall cause all Registrable
Shares which the company has been requested by Harmat to register
to be registered under the Securities Act to the extent necessary
to permit their sale or other disposition in accordance with the
intended method of distribution specified in the request of
Harmat, provided that the Company shall have the right to
postpone or withdraw any registration effected without obligation
to Harmat.
(ii) Harmat's rights under this paragraph shall be subject of the
limitation that, in the event that the Company files a
Registration Statement for an underwritten public offering the
inclusion of the Registrable Shares shall be upon the condition
that: (a) if requested by the managing underwriter as a condition
of the offering, they be sold through the underwriters on the
same terms and conditions as are applicable to the Company or all
other selling stockholder of the Company; or (b) if such
condition is imposed by the managing underwriter, and Harmat does
not wish to sell the Registrable Shares upon such terms and
conditions, Harmat will agree not to transfer or otherwise
dispose of any Registrable Shares for a period of time from the
effective date of the Registration Statement (not to exceed 120
days) specified by the managing underwriter.
(c) Registration Procedures.
If and whenever the Company is required by the provisions of this Stock
Purchase Warrant to use its best efforts to effect the registration of any
of the Registrable Shares under the Securities Act, the Company shall:
(i) file with the Commission a Registration Statement with respect to
such Registrable Shares and use its best efforts to cause that
Registration Statement to become and remain effective;
(ii) as expeditiously as possible prepare and file with the Commission
any amendments and supplements to the Registration Statement and
the prospectus included in the Registration Statements as may be
necessary to keep the Registration Statement effective for a
period of not less than nine months from the effective date;
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(iii) as expeditiously as possible furnish to Harmat such reasonable
numbers of copies of the prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities
Act, and such other documents as Harmat may reasonably request in
order to facilitate the public sale or other disposition of the
Registrable Shares owned Harmat; and
(iv) as expeditiously as possible use its best efforts to register or
qualify the Registrable Shares covered by the Registration
Statement under the securities or Blue Sky laws of such states as
Harmat shall reasonably request, and do any and all other acts
and things that may be necessary or desirable to enable Harmat to
consummate the public sale or other disposition in such states of
the Registrable Shares owned by Harmat, provided, however, that
the Company shall not be required in connection with this
paragraph (iv) to qualify as a foreign corporation or execute a
general consent to service of process in any jurisdiction.
If the Company has delivered preliminary or final prospectuses to
Harmat and, after having done so, the prospectus is amended to comply
with the requirements of the Securities Act, the Company shall promptly
notify Harmat and, if requested, Harmat shall immediately cease making
offers of Registrable Shares and return all prospectuses to the
Company. The Company shall promptly provide Harmat with revised
prospectuses and, following receipt of the revised prospectuses, Harmat
shall be free to resume making offers of the Registrable Shares.
(d) Allocation of Expenses.
The Company will pay all Registration Expenses of all registrations
under this Stock Purchase Warrant; provided, however, that if a registration
is withdrawn at the request of Harmat (other than as a result of information
concerning the business or financial condition of the Company which is made
known to Harmat after the date on which such registration was requested) and
if Harmat elects not to have such registration counted as a registration
requested under paragraph (b), Harmat shall pay the portion of Registration
Expenses in the proportion that the market value of their Registrable Shares
included in such registration bear to all of securities included therein.
For purposes of this Section, the term "Registration Expenses" shall mean
all expenses incurred by the Company in complying with this Stock Purchase
Warrant, including, without fees, printing expenses, fees and disbursements
of counsel for the Company state Blue Sky fees and expenses, and the expense
of any special audits incident to or required by any such registration, but
excluding underwriting discounts, selling commissions and the fees and
expenses of Harmat's own counsel.
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(e) Indemnification.
In the event of any registration of any of the Registrable Shares under
the Securities Act pursuant to this Stock Purchase Warrant, the Company will
indemnify and hold harmless the seller of such Registrable Shares, each
underwriter of such Registrable Shares, and each other person, if any, who
controls such seller or underwriter within the meaning of the Securities Act
or the Exchange Act against any losses, claims, damages or liabilities,
joint or several, to which such seller, underwriter or controlling person
may become subject under the Securities Act, the Exchange Act, state
securities or Blue Sky laws or otherwise, in so far as much losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement under which such Registrable
Shares were registered under the Securities Act, any preliminary prospectus
or final prospectus contained in the Registration Statement, or any
amendment or supplement to such Registration Statement, or arise out of or
are based upon the omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and the Company will reimburse such seller, underwriter and
each such controlling person for any legal or any other expenses reasonably
incurred by such seller, underwriter or controlling person in connection
with investing or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out
of or is based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or prospectus, or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to the Company, in writing by or on behalf of such seller,
underwriter or controlling person specifically for use in the preparation
thereof.
In the event of any registration of any of the Registrable Shares under
the Securities Act pursuant to this Stock Purchase Warrant, each seller of
Registrable Shares, severally and not jointly, will indemnify and hold
harmless the Company, each of its directors, and officers and each
underwriter (if any) and each person, if any, who controls the Company or
any such underwriter within the meaning of the Securities Act or the
Exchange Act, against any losses, claims, damages or liabilities, joint or
several, to which the Company, such directors and officers, underwriters or
controlling person may become subject under the Securities Act, Exchange
Act, state securities or Blue Sky laws or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement under which such
Registrable Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained in the Registration Statement, or
any amendment or supplement to the Registration Statement, or arise out of
or are based upon any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein
not
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misleading, if the statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of such seller, specifically for use in connection with the
preparation of such Registration Statement, prospectus, amendment or
supplement; provided, however, that the obligations of such Stockholders
hereunder shall be limited to an amount equal to the proceeds to each
Stockholder of Registrable Shares sold as contemplated herein.
Each party entitled to Indemnification under this paragraph (e) (the
"Indemnification Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting therefrom; providing, that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified party (whose approval shall
not be unreasonably withheld); and, provided, further, that the failure of
any Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this Stock Purchase Warrant.
The indemnified party may participate in such defense at such party's
expense; provided, however, that the Indemnifying Party shall pay such
expenses if representation of such Indemnified party by the counsel retained
by the Indemnifying Party would be inappropriate due to actual or potential
differing interest between the Indemnified Party and any other party
represented by such counsel in such proceedings. No Indemnifying Party, in
the defense of any such claim or litigation shall, except with the consent
of each Indemnified party, consent to entry of any judgement or enter into
any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release
from all liability in respect of such claim or litigation, and no
Indemnified Party shall consent to entry of any judgement or settle such
claim or litigation without the prior written consent of the Indemnifying
Party.
(f) Indemnification with Respect to Underwritten Offering.
In the event that Registrable Shares are sold pursuant to a
Registration Statement in an underwritten offering, the Company agrees to
enter into an underwriting agreement containing customary representations
and warranties with respect to the business and operations of an issuer of
the securities being registered and customary covenants and agreements to be
performed by such issuer, including without limitation customary provisions
with respect to indemnification by the Company of the underwriters of such
offering.
(g) Information by Masada.
Harmat shall furnish to the Company such information regarding such
holder and the distribution proposed by such holder as the Company may
request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Stock Purchase
Warrant.
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(h) Selection of Underwriter.
In the case of any registration effected pursuant to this Stock
Purchase Warrant, the Company shall have the right to designate the managing
underwriter in any underwritten offering.
(i) Further Assurances.
From and after the date hereof, all persons subject to or bound by this
Stock Purchase Warrant shall from time to time, at the request of any such
other person and without further consideration, do, execute and deliver, or
cause to be done, executed and delivered, all such further acts, things and
instruments as may reasonably be requested or required more effectively to
evidence and give effect to the provisions, intent and purposes of this
Stock Purchase Warrant (including, without limitation, certificates to the
effect that this Stock Purchase Warrant continues operative and as to any
defaults hereunder or modifications hereof).
10. Governing Law; Interpretation.
(a) This Stock Purchase Warrant shall be governed by and construed and
enforced in accordance with the laws of the State of Florida applicable to
contracts made and to be performed exclusively therein as to all matters.
(b) All pronouns and words shall be read in appropriate number and gender,
the masculine, feminine and neuter shall be interpreted interchangeably and
singular shall include the plural and vice versa, as the circumstances may
require.
11. Miscellaneous.
(a) This Warrant shall be governed by and construed in accordance with the
internal laws of the State of Florida, without reference to the choice of
laws provisions thereof.
(b) The captions set forth in this Warrant are for convenience only, and
shall not be used in the construction hereof.
(c) If this Warrant, or any paragraph, sentence, term, or provision hereof,
is invalidated on any ground by any court of competent jurisdiction, the
remainder hereof shall, notwithstanding such invalidation, remain in full
force in effect, and each other provision of this Warrant shall thereafter
be construed and enforced in such a manner as to give the fullest possible
effect to the intention and purposes expressed herein.
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EXHIBIT 4.8
AXXESS, INC
REGISTRATION RIGHTS AGREEMENT
July 17, 1997
To the Purchasers of the Unit(s)
of Axxess, Inc.
Reference is made to the Private Placement Memorandum (the
"Memorandum"). of Axxess, Inc. (the "Company") dated March 10, 1997. Pursuant to
the Memorandum, you (the "Holder") have purchased one or more Units (the
"Units") offered by the Company, each Unit consisting of 100,000 shares of
AXXS's common stock, $0.001 par value (the "Common Stock"). The Common Stock
will have certain piggyback registration rights as defined in this Registration
Rights Agreement to be entered into between AXXS and holders of the Units;
indicated on the signature page hereof on the terms and conditions described
herein and in the Private Placement Memorandum dated March 10, 1997 (together
with all amendments thereof and supplements and exhibits thereto, the "Private
Placement Memorandum"), a copy of which has been received by the undersigned.
This sets forth the agreement of the Company to register the shares of Common
Stock, under the Securities Act of 1933, as amended.
W I T N E S S E T H:
WHEREAS, the Company will issue to Holder shares of the Company's Common
Stock (the "Shares") more specifically identified in the Memorandum.
WHEREAS, the Holder is willing to subscribe for the Shares subject to
the terms and conditions set forth herein,
NOW THEREFORE, in consideration of the agreements set forth herein the
parties agree as follows:
1. Piggyback Registration. If the Company at any time during the year
three year period commencing on the date the Company becomes subject to the
reporting requirements of the Securities Exchange Act of 1934 (the "Exchange
Act"), proposes to register any of its securities under the Securities Act of
1933, as amended (the "1933 Act"), other than pursuant to Forms S-4, S-8 or
other comparable form, the Company shall include the shares of Common Stock
issued to the Holder (the "Registrable Securities"), in such registration. The
Company shall at such time give prompt written notice to all Holders of its
intention to effect such registration and of such Holders' rights under such
proposed registration, and upon the request of any Holder delivered to the
Company within twenty (20) days after giving of such notice (which request shall
specify the Registrable Securities intended to be disposed of by such Holder and
the intended method of disposition thereof), the Company shall include such
Registrable Securities held by each such Holder requested to be included in such
registration; provided, however, that if, at any time after giving such written
notice of the Company's intention to register any of the Holder's Registrable
Securities and prior to the effective date
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of the registration statement filed in connection such registration, the Company
shall determine for any reason not to register or to delay the registration of
such Registrable Securities, the Company may give written notice of such
determination to each Holder and thereupon shall be relieved of its obligation
to register any Registrable Securities issued or issuable in connection with
such registration (but not from its obligation to pay registration expenses in
connection therewith or to register the Registrable Securities in a subsequent
registration); and in the case of a determination to delay a registration shall
thereupon be permitted to delay registering any Registrable Securities for the
same period as the delay in respect of securities being registered for the
Company's own account. The Holder shall not be required to give any notice in
connection with the Company's initial public offering, in which case, the
Registrable Securities shall be automatically included in Registration
Statement.
Except in connection with the Company's initial public offering, if, in
the good faith judgment of the managing underwriter of an underwritten offering,
the inclusion of all of the Registrable Securities originally covered by a
request for registration would reduce the number of shares to be offered by the
Company or interfere with the successful marketing of the shares of Common Stock
to be offered by the Company, the number of shares to be included in such
offering may be reduced in the following manner: (i) any shares of Common Stock
to be offered by the officers or directors of the Company shall be excluded from
such offering to the extent required by the managing underwriter, and (ii) if a
further reduction in the number of shares is required, such shares shall be
selected pro rata among all selling stockholders whose shares are included in
such registration statement (based upon the number of shares of each stockholder
to be included in such registration statement).
2. Option to Include Registrable Securities in Offering. Notwithstanding
anything contained in Section 1 of this Agreement, the Company shall not be
required to include any of the Holders' Registrable Securities in an
underwritten offering of the Company's securities unless such Holders accept the
terms of the underwriting as agreed upon between the Company and the
underwriters selected by it (provided such terms are usual and customary for
selling stockholders) and the Holders agree to execute and/or deliver such
documents in connection with such registration as the Company or the managing
underwriter may reasonably request. Nothing contained herein however, shall
require any Holder to execute an agreement to refrain from selling the
Registrable Securities, except as set forth in the Subscription Agreement.
3. Cooperation with Company. Holders will cooperate with the Company in
all respects in connection with this Agreement, including, timely supplying all
information reasonably requested by the Company and executing and returning all
documents reasonably requested in connection with the registration and sale of
the Registrable Securities.
4. Registration Procedures. If and whenever the Company is required by
any of the provisions of this Agreement to use its best efforts to effect the
registration of any of the Registrable Securities under the 1933 Act, the
Company shall (except as otherwise provided in this Agreement), as expeditiously
as possible:
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a. prepare and file with the Securities and Exchange Commission (the
"Commission") a registration statement and shall use its best efforts to
cause such registration statement to become effective and remain effective
until all the Registrable Securities are sold or become capable of being
publicly sold without registration under the 1933 Act; provided, however,
the Company may suspend or terminate the use of any such registration
statement for a period of up to 30 days to permit the orderly dissemination
of significant business developments.
b. prepare and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may
be necessary to keep such registration statement effective and to comply with
the provisions of the 1933 Act with respect to the sale or other disposition
of all securities covered by such registration statement whenever the Holder
or Holders of such securities shall desire to sell or otherwise dispose of
the same (including prospectus supplements with respect to the sales of
securities from time to time in connection with a registration statement
pursuant to Rule 415 of the Commission);
c. furnish to each Holder such numbers of copies of a summary prospectus or
other prospectus, including a preliminary prospectus or any amendment or
supplement to any prospectus, in conformity with the requirements of the 1933
Act, and such other documents, as such Holder may reasonably request in order
to facilitate the public sale or other disposition of the securities owned by
such Holder,
d. use its best efforts to register and qualify the securities covered by such
registration statement under such other securities or blue sky laws of such
jurisdictions as each Holder shall reasonably request, and do any and all
other acts and things which may be necessary or advisable to enable such
Holder to consummate the public sale or other disposition in such
jurisdiction of the securities owned by such Holder, except that the Company
shall not for any such purpose be required to qualify to do business as a
foreign corporation in any jurisdiction wherein it is not so qualified or to
file therein any general consent to service of process;
e. use its best efforts to list such securities on any securities exchange on
which any securities of the Company is then listed, if the listing of such
securities is then permitted under the rules of such exchange;
f. enter into and perform its obligations under an underwriting agreement, if
the offering is an underwritten offering, in usual and customary form, with
the managing underwriter or underwriters of such underwritten offering;
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g. Notify each Holder of Registrable Securities covered by such registration
statement, at any time when a prospectus relating thereto covered by such
registration statement is required to be delivered under the 1933 Act, of the
happening of any event of which it has knowledge as a result of which the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing; and
h. furnish, at the request of any Holder on the date such Registrable Securities
are delivered to the underwriters for sale pursuant to such registration or,
if such Registrable Securities are not being sold through underwriters, on
the date the registration statement with respect to such Registrable
Securities becomes effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purpose of such registration, addressed to
the underwriters, if any, and to the Holder making such request, covering
such legal matters with respect to the registration in respect of which such
opinion is being given as the Holder of such Registrable Securities may
reasonably request and are customarily included in such an opinion and (ii)
letters, dated, respectively, (1) the effective date of the registration
statement and (2) the date such Registrable Securities are delivered to the
underwriters, if any, for sale pursuant to such registration from a firm of
independent certified public accountants of recognized standing selected by
the Company, addressed to the underwriters, if any, and to the Holder making
such request, covering such financial, statistical and accounting matters
with respect to the registration in respect of which such letters are being
given as the Holder of such Registrable Securities may reasonably request and
are customarily included in such letters; and
i. take such other actions as shall be reasonably requested by any Holder to
facilitate the registration and sale of the Registrable Securities; provided,
however, that the Company shall not be obligated to take any actions not
specifically required elsewhere herein which in the aggregate would cost in
excess of $5,000.
5. Expenses. All expenses incurred in any registration of the Holders'
Registrable Securities under this Agreement shall be paid by the Company,
including, without limitation, printing expenses, fees and disbursements of
counsel for the Company, expenses of any audits to which the Company shall agree
or which shall be necessary to comply with governmental requirements in
connection with any such registration, all registration and filing fees for the
Holders' Registrable Securities under federal and State securities laws, and
expenses of complying with the securities or blue sky laws of any jurisdictions;
provided, however, the Company shall not be liable for (a) any discounts or
commissions to any
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underwriter, (b) any stock transfer taxes incurred with respect to Registrable
Securities sold in the Offering or (c) the fees and expenses of counsel for any
Holder, provided that the Company will pay the costs and expenses of Company
counsel if the Company's counsel is representing any or all selling security
holders.
6. Indemnification. In the event any Registrable Securities are included
in a registration statement pursuant to this Agreement:
a. Company Indemnity. Without limitation of any other indemnity provided to any
Holder, either in connection with the Offering or otherwise, to the extent
permitted by law, the Company shall indemnify and hold harmless each Holder,
the affiliates, officers, directors and partner of each holder, any
underwriter (as defined in the 1933 Act) for such Holder, and each person, if
any, who controls such Holder or underwriter (within the meaning of the 1933
Act or the Exchange Act), against any losses, claims, damages or liabilities
(joint or several) to which they may become subject under the 1933 Act, the
Exchange Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of material fact contained in such registration statement including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, (iii) any violation or alleges
violation by the Company of the 1933 Act, the Exchange Act, or (iv) any state
securities law or any rule or regulation promulgated under the 1933 Act, the
Exchange Act or any state securities law, and the Company shall reimburse
each such Holder, affiliate, officer or director or partner, underwriter or
controlling person for any reasonable legal or other expenses incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action provided, however, that the Company shall not be
liable to any Holder in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished expressly for the use in connection with such
registration by any such Holder or any other officer, director or controlling
person thereof
b. Holder Indemnity. Each Holder shall indemnify and hold harmless the Company,
its affiliates, its counsel, underwriter (as defined in the 1933 Act) and
each person, if any, who controls the Company or the underwriter (within the
meaning of the 1933 Act or liabilities (joint or several) to which they may
become subject under the 1933 Act, the
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Exchange Act or any state securities law, and the Holder shall reimburse the
Company, affiliate, officer or director or partner, underwriter or
controlling person for any legal or other expenses incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; insofar as such losses, claims, damages or liabilities
(or actions and respect thereof) arise out of or are based upon any
statements or information provided by such Holder to the Company in
connection with the offer or sale of Registrable Securities.
c. Notice: Right to Defend. Promptly after receipt by an indemnified party under
this Section 6 of Notice of the Commencement of any action (including any
governmental action), such indemnified party shall, if a claim in respect
thereof is to be made against any indemnifying party under this Section 6
deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party agrees in writing that it will be
responsible for any costs, expenses, judgments, damages and losses incurred
by the indemnified party with respect to such claim, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an
indemnified party shall have the right to retain its own counsel, with the
reasonable fees and expenses to be paid by the indemnifying party, if counsel
to the indemnified party reasonably believes that representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding; provided, however, that the indemnifying party shall be
responsible for one counsel. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall relieve such indemnifying party of any liability that it may
have to any indemnified party otherwise than under this Agreement.
d. Contribution. If the indemnification provided for in this Agreement is held
by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred
to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such loss, liability, claim, damage
or expense in such proportion as is appropriate to reflect the relative fault
of, or benefit to, the indemnifying party on the one hand and the indemnified
party on the other hand in connection with the statements or omissions which
resulted in such loss, liability, claim damage or expense as well as any of
the relevant equitable considerations. The relevant fault of the indemnifying
party and the indemnified part shall be determined by
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reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates
to information supplied by the indemnifying party or by the indemnified party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. Notwithstanding
the foregoing, the amount any Holder shall be obligated to contribute
pursuant to the Agreement shall be limited to an amount equal to the proceeds
to such Holder of the Registrable Securities sold pursuant to the
registration statement which gives rise to such obligation to contribute
(less the aggregate amount of any damages which the Holder has otherwise been
required to pay in respect of such loss, claim, damage, liability or action
or any substantially similar loss, claim, damage, liability or action arising
from the sale of such registrable Securities). Notwithstanding any
indemnification provided for in this Section 6, in the event it is finally
bad faith, wilful misconduct or gross negligence of an indemnified party,
such indemnified party shall repay to the indemnifying party all amounts
previously paid on behalf of the indemnified party in connection with the
defense of such Violation.
e. Survival of Indemnity. The indemnification provided by this Agreement shall
be a continuing right to indemnification and shall survive the registration
and sale of any Registrable Securities by any person entitled to
indemnification hereunder and the expiration or termination of this Agreement
7. Limitation on Other Registration Rights. Except as otherwise set
forth in this Agreement, the Company shall not, without the prior written
consent of the Holders of Registrable Securities representing a majority thereof
held by all the Holders, file any registration statement filed on behalf of any
person (including the Company) other than a Holder to become effective during
any period when the Company is not in compliance with this Agreement.
8. Remedies.
a. Remedies Upon Default or Delay. The Company acknowledges the breach of any
part of this Agreement may cause irreparable harm to a Holder and that
monetary damages alone may be inadequate. The Company therefore agrees that
the Holder shall be entitled to injunctive relief or such other applicable
remedy as a court of competent jurisdiction may provide. Nothing contained
herein will be construed to limit a Holder's right to any remedies at law,
including recovery of damages for breach of any part of this Agreement.
9. Notices. All communications under this Agreement shall be in writing
and shall be mailed by first class mail, postage prepaid, or telegraphed or
telexed with confirmation of receipt or delivered by hand or by overnight
delivery service. Any notice, when mailed by
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registered or certified mail shall be deemed to be given three days after so
mailed, when telegraphed or telexed shall be deemed to be given when
transmitted, or when delivered by hand or overnight shall be deemed to be given
when delivered.
10. Successors and Assigns. Except as otherwise expressly provided
herein, this Agreement shall inure to the benefit of and be binding upon the
successors and permitted assigns of the Company and each of the Holders.
11. Amendment and Waiver. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, but only with the
written consent of the Company and the Holders of securities representing a
majority of the Registrable Securities; provided, however, that no such
amendment or waiver shall take away any registration right of any Holder of
Registrable Securities or reduce the amount of reimbursable costs to any Holder
of Registrable Securities in connection with any registration hereunder without
the consent of such Holder, further provided, however, that without the consent
of any other Holder of Registrable Securities, any Holder may from time to time
enter into one or more agreements amending, modifying or waiving the provisions
of this Agreement if such action does not adversely affect the rights or
interest of any other Holder of Registrable Securities. No delay on the part of
any party in the exercise of any right, power or remedy shall operate as a
waiver thereof, nor shall any single or partial exercise by any party of any
right, power or remedy preclude any other or further exercise thereof, or the
exercise of any other right, power or remedy.
12. Counterparts. One or more counterparts of this Agreement may be
signed by the parties, each of which shall be an original but all of which
together shall constitute one and same instrument.
13. Governing Law. This Agreement shall be construed in accordance with
and governed by the internal laws of the State of Nevada, without giving effect
to conflicts of law principles.
14. Invalidity of Provisions. If any provisions of this Agreement is or
becomes invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not be
affected thereby.
15. Headings. The headings in this Agreement are for convenience of
reference only and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
17th day of July, 1997.
AXXESS, INC.
/s/ Kevin A. Lichtman Alcott Simpson & Co., Inc.
By:________________________________ _______________________________
Kevin A. Lichtman, President Name of Holder
/s/ [Signature Appears Here]
_______________________________
Signature of Holder
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EXHIBIT 4.9
AXXESS, INC.
REGISTRATION RIGHTS AGREEMENT
July 17, 1997
To the Purchasers of the Unit(s)
of Axxess
Reference is made to the Private Placement Memorandum (the
"Memorandum") of Axxess, (the "Company") dated March 10, 1997. Pursuant to the
Memorandum, you (the "Holder") have purchased one or more Units (the "Units")
offered by the Company, each Unit consisting of 100,000 shares of AXXS's common
stock, $0.001 par value (the "Common Stock"). The Common Stock will have certain
piggyback registration rights as defined in this Registration Rights Agreement
to be entered into between AXXS and holders of the Units; indicated on the
signature page hereof on the terms and conditions described herein and in the
Private Placement Memorandum dated March 10, 1997 (together with all amendments
thereof and supplements and exhibits thereto, the "Private Placement
Memorandum"), a copy of which has been received by the undersigned. This sets
forth the agreement of the Company to register the shares of Common Stock, under
the Securities Act of 1933, as amended.
W I T N E S S E T H:
WHEREAS, the Company will issue to Holder shares of the Company's Common
Stock (the "Shares") more specifically identified in the Memorandum.
WHEREAS, the Holder is willing to subscribe for the Shares subject to
the terms and conditions set forth herein,
NOW THEREFORE, in consideration of the agreements set forth herein the
parties agree as follows:
1. Piggyback Registration. If the Company at any time during the year
three year period commencing on the date the Company becomes subject to the
reporting requirements of the Securities Exchange Act of 1934 (the "Exchange
Act"), proposes to register any of its securities under the Securities Act of
1933, as amended (the "1933 Act"), other than pursuant to Forms S-4, S-8 or
other comparable form, the Company shall include the shares of Common Stock
issued to the Holder (the "Registrable Securities" in such registration. The
Company shall at such time give prompt written notice to all Holders of its
intention to effect such registration and of such Holders' rights under such
proposed registration, and upon the request of any Holder delivered to the
Company within twenty (20) days after giving of such notice (which request shall
specify the Registrable Securities intended to be disposed of by such Holder and
the intended method of disposition thereof), the Company shall include such
Registrable Securities held by each such Holder requested to be included in such
registration; provided, however, that if, at any time after giving such written
notice of the Company's intention to register any of the Holder's Registrable
Securities and prior to the effective date
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of the registration statement filed in connection such registration, the Company
shall determine for any reason not to register or to delay the registration of
such Registrable Securities, the Company may give written notice of such
determination to each Holder and thereupon shall be relieved of its obligation
to register any Registrable Securities issued or issuable in connection with
such registration (but not from its obligation to pay registration expenses in
connection therewith or to register the Registrable Securities in a subsequent
registration); and in the case of a determination to delay a registration shall
thereupon be permitted to delay registering any Registrable Securities for the
same period as the delay in respect of securities being registered for the
Company's own account. The Holder shall not be required to give any notice in
connection with the Company's initial public offering, in which case, the
Registrable Securities shall be automatically included in Registration
Statement.
Except in connection with the Company's initial public offering, if, in
the good faith judgment of the managing underwriter of an underwritten offering,
the inclusion of all of the Registrable Securities originally covered by a
request for registration would reduce the number of shares to be offered by the
Company or interfere with the successful marketing of the shares of Common Stock
to be offered by the Company, the number of shares to be included in such
offering may be reduced in the following manner: (i) any shares of Common Stock
to be offered by the officers or directors of the Company shall be excluded from
such offering to the extent required by the managing underwriter, and (ii) if a
further reduction in the number of shares is required, such shares shall be
selected pro rata among all selling stockholders whose shares are included in
such registration statement (based upon the number of shares of each stockholder
to be included in such registration statement).
2. Option to Include Registrable Securities in Offering. Notwithstanding
anything contained in Section I of this Agreement, the Company shall not be
required to include any of the Holders' Registrable Securities in an
underwritten offering of the Company's securities unless such Holders accept the
terms of the underwriting as agreed upon between the Company and the
underwriters selected by it (provided such terms are usual and customary for
selling stockholders) and the Holders agree to execute and/or deliver such
documents in connection with such registration as the Company or the managing
underwriter may reasonably request. Nothing contained herein however, shall
require any Holder to execute an agreement to refrain from selling the
Registrable Securities, except as set forth in the Subscription Agreement.
3. Cooperation with Company. Holders will cooperate with the Company in
all respects in connection with this Agreement, including, timely supplying all
information reasonably requested by the Company and executing and returning all
documents reasonably requested in connection with the registration and sale of
the Registrable Securities.
4. Registration Procedures. If and whenever the Company is required by
any of the provisions of this Agreement to use its best efforts to effect the
registration of any of the Registrable Securities under the 1933 Act, the
Company shall (except as otherwise provided in this Agreement), as expeditiously
as possible:
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a. prepare and file with the Securities and Exchange Commission
(the "Commission") a registration statement and shall use its
best efforts to cause such registration statement to become
effective and remain effective until all the Registrable
Securities are sold or become capable of being publicly sold
without registration under the 1933 Act; provided, however,
the Company may suspend or terminate the use of any such
registration statement for a period of up to 30 days to
permit the orderly dissemination of significant business
developments.
b. prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the
provisions of the 1933 Act with respect to the sale or
other disposition of all securities covered by such
registration statement whenever the Holder or Holders of such
securities shall desire to sell or otherwise dispose of the
same (including prospectus supplements with respect to the
sales of securities from time to time in connection with a
registration statement pursuant to Rule 415 of the
Commission);
c. furnish to each Holder such numbers of copies of a summary
prospectus or other prospectus, including a preliminary
prospectus or any amendment or supplement to any prospectus,
in conformity with the requirements of the 1933 Act, and such
other documents, as such Holder may reasonably request in
order to facilitate the public sale or other disposition of
the securities owned by such Holder;
d. use its best efforts to register and qualify the securities
covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as each
Holder shall reasonably request, and do any and all other
acts and things which may be necessary or advisable to enable
such Holder to consummate the public sale or other
disposition in such jurisdiction of the securities owned by
such Holder, except that the Company shall not for any such
purpose be required to qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so
qualified or to file therein any general consent to service
of process;
e. use its best efforts to list such securities on any
securities exchange on which any securities of the Company is
then listed, if the listing of such securities is then
permitted under the rules of such exchange;
f. enter into and perform its obligations under an underwriting
agreement, if the offering is an underwritten offering, in
usual and customary form, with the managing underwriter or
underwriters of such underwritten offering;
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g. Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus
relating thereto covered by such registration statement is
required to be delivered under the 1933 Act, of the happening
of any event of which it has knowledge as a result of which
the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing;
and
h. furnish, at the request of any Holder on the date such
Registrable Securities are delivered to the underwriters for
sale pursuant to such registration or, if such Registrable
Securities are not being sold through underwriters, on the
date the registration statement with respect to such
Registrable Securities becomes effective, (i) an opinion,
dated such date, of the counsel representing the Company for
the purpose of such registration, addressed to the
underwriters, if any, and to the Holder making such request,
covering such legal matters with respect to the registration
in respect of which such opinion is being given as the Holder
of such Registrable Securities may reasonably request and are
customarily included in such an opinion and (ii) letters,
dated, respectively, (1) the effective date of the
registration statement and (2) the date such Registrable
Securities are delivered to the underwriters, if any, for
sale pursuant to such registration from a firm of independent
certified public accountants of recognized standing selected
by the Company, addressed to the underwriters, if any, and to
the Holder making such request, covering such financial,
statistical and accounting matters with respect to the
registration in respect of which such letters are being given
as the Holder of such Registrable Securities may reasonably
request and are customarily included in such letters; and
i. take such other actions as shall be reasonably requested by
any Holder to facilitate the registration and sale of the
Registrable Securities; provided, however, that the Company
shall not be obligated to take any actions not specifically
required elsewhere herein which in the aggregate would cost
in excess of $5,000.
5. Expenses. All expenses incurred in any registration of the Holders'
Registrable Securities under this Agreement shall be paid by the Company,
including, without limitation, printing expenses, fees and disbursements of
counsel for the Company, expenses of any audits to which the Company shall agree
or which shall be necessary to comply with governmental requirements in
connection with any such registration, all registration and filing fees for the
Holders' Registrable Securities under federal and State securities laws, and
expenses of complying with the securities or blue sky laws of any jurisdictions;
provided, however, the Company shall not be liable for (a) any discounts or
commissions to any
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underwriter, (b) any stock transfer taxes incurred with respect to Registrable
Securities sold in the Offering or (c) the fees and expenses of counsel for any
Holder, provided that the Company will pay the costs and expenses of Company
counsel if the Company's counsel is representing any or all selling security
holders.
6. Indemnification. In the event any Registrable Securities are included
in a registration statement pursuant to this Agreement:
a. Company Indemnity. Without limitation of any other indemnity
provided to any Holder, either in connection with the
Offering or otherwise, to the extent permitted by law, the
Company shall indemnify and hold harmless each Holder, the
affiliates, officers, directors and partner of each holder,
any underwriter (as defined in the 1933 Act) for such Holder,
and each person, if any, who controls such Holder or
underwriter (within the meaning of the 1933 ) Act or the
Exchange Act, against any losses, claims, damages or
liabilities (joint or several) to which they may become
subject under the 1933 Act, the Exchange Act or other federal
or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue
statement or alleged untrue statement of material fact
contained in such registration statement including any
preliminary prospectus or final prospectus contained therein
or any amendments or supplements thereto, (ii) the omission
or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements
therein not misleading, (iii) any violation or alleges
violation by the Company of the 1933 Act, the Exchange Act,
or (iv) any state securities law or any rule or regulation
promulgated under the 1933 Act, the Exchange Act or any state
securities law, and the Company shall reimburse each such
Holder, affiliate, officer or director or partner,
underwriter or controlling person for any reasonable legal or
other expenses incurred by them in connection with
investigating or defending any such loss, claim, damage,
liability or action provided, however, that the Company shall
not be liable to any Holder in any such case for any such
loss, claim, damage, liability or action to the extent that
it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information
furnished expressly for the use in connection with such
registration by any such Holder or any other officer,
director or controlling person thereof.
b. Holder Indemnity. Each Holder shall indemnify and hold
harmless the Company, its affiliates, its counsel,
underwriter (as defined in the 1933 Act) and each person, if
any, who controls the Company or the underwriter (within the
meaning of the 1933) Act or liabilities (joint or several)
to which they may become subject under the 1933 Act, the
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Exchange Act or any state securities law, and the Holder
shall reimburse the Company, affiliate, officer or director
or partner, underwriter or controlling person for any legal
or other expenses incurred by them in connection with
investigating or defending any such loss, claim, damage,
liability or action; insofar as such losses, claims, damages
or liabilities (or actions and respect thereof) arise out of
or are based upon any statements or information provided by
such Holder to the Company in connection with the offer or
sale of Registrable Securities.
c. Notice: Right to Defend. Promptly after receipt by an
indemnified party under this Section 6 of Notice of the
Commencement of any action (including any governmental
action), such indemnified party shall, if a claim in respect
thereof is to be made against any indemnifying party under
this Section 6 deliver to the indemnifying party a written
notice of the commencement thereof and the indemnifying party
agrees in writing that it will be responsible for any costs,
expenses, judgments, damages and losses incurred by the
indemnified party with respect to such claim, jointly with
any other indemnifying party similarly noticed, to assilme
the defense thereof with counsel mutually satisfactory to the
parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the reasonable
fees and expenses to be paid by the indemnifying party, if
counsel to the indemnified party reasonably believes that
representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due
to actual or potential differing interests between such
indemnified party and any other party represented by such
counsel in such proceeding; provided, however, that the
indemnifying party shall be responsible for one counsel. The
failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such
action shall relieve such indemnifying party of any liability
that it may have to any indemnified party otherwise than
under this Agreement.
d. Contribution. If the indemnification provided for in this
Agreement is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss,
liability, claim, damage or expense referred to therein, then
the indemnifying party, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such
loss, liability, claim, damage or expense in such proportion
as is appropriate to reflect the relative fault of, or
benefit to, the indemnifying party on the one hand and the
indemnified party on the other hand in connection with the
statements or omissions which resulted in such loss,
liability, claim damage or expense as well as any of the
relevant equitable considerations. The relevant fault of the
indemnifying party and the indemnified part shall be
determined by
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reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
to state a material fact relates to information supplied by
the indemnifying party or by the indemnified party and the
parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission. Notwithstanding the foregoing, the amount any
Holder shall be obligated to contribute pursuant to the
Agreement shall be limited to an amount equal to the proceeds
to such Holder of the Registrable Securities sold pursuant to
the registration statement which gives rise to such
obligation to contribute (less the aggregate amount of any
damages which the Holder has otherwise been required to pay
in respect of such loss, claim, damage, liability or action
or any substantially similar loss, claim, damage, liability
or action arising from the sale of such registrable
Securities). Notwithstanding any indemnification provided for
in this Section 6, in the event it is finally bad faith,
wilful misconduct or gross negligence of an indemnified
party, such indemnified party shall repay to the indemnifying
party all amounts previously paid on behalf of the
indemnified party in connection with the defense of such
Violation.
e. Survival of Indemnity. The indemnification provided by this
Agreement shall be a continuing right to indemnification and
shall survive the registration and sale of any Registrable
Securities by any person entitled to indemnification
hereunder and the expiration or termination of this
Agreement.
7. Limitation on Other Registration Rights. Except as otherwise set
forth in this Agreement, the Company shall not, without the prior written
consent of the Holders of Registrable Securities representing a majority thereof
held by all the Holders, file any registration statement filed on behalf of any
person (including the Company) other than a Holder to become effective during
any period when the Company is not in compliance with this Agreement.
8. Remedies.
a. Remedies Upon Default or Delay. The Company acknowledges the
breach of any part of this Agreement may cause irreparable harm to
a Holder and that monetary damages alone may be inadequate. The
Company therefore agrees that the Holder shall be entitled to
injunctive relief or such other applicable remedy as a court of
competent jurisdiction may provide. Nothing contained herein will
be construed to limit a Holder's right to any remedies at law,
including recovery of damages for breach of any part of this
Agreement.
9. Notices. All communications under this Agreement shall be in writing
and shall be mailed by first class mail, postage prepaid, or telegraphed or
telexed with confirmation of receipt or delivered by hand or by overnight
delivery service. Any notice, when mailed by
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registered or certified, mad shall be deemed to be given three days after so
mailed, when telegraphed or telexed shall be deemed to be given when
transmitted, or when delivered by hand or overnight shall be deemed to be given,
when delivered.
10. Successors and Assigns. Except as other wise expressly provided
herein, this Agreement shall inure to the benefit of and be binding upon the
successors and permitted assigns of the Company and each of the Holders.
11. Amendment and Waiver. This Agreement may be amended, and the
observance of any term a Agreement may be waived, but only with the written
consent of the Company and the Holders of securities representing a majority of
the Registrable Securities; provided, however, that no such amendment or waver
shall take away any registration right of any Holder of Registrable Securities
or reduce the amount of reimbursable costs to any Holder of Registrable
Securities in connection with any reigistration hereunder without the consent of
such Holder; further provided, however, that without the consent of any other
Holder of Registrable Securities any Holder may from time to time enter into one
or more agreements amending, modifying or waving the provisions of this
Agreement if such action does not adversely affect the rights or interest of any
other Holder of Registrable Securities. No delay on the part of any party in the
exercise of any right, power or remedy shall operate as a waiver thereof, nor
shall any single or partial exercise by any party of any right, power or remedy
preclude any other or further exercise thereof, or the exercise of any other
right, power or remedy.
12. Counterparts. One or more counterparts of this Agreement may be
signed by the parties, each of which shall be an original but all of which
together shall constitute one and same instrument.
13. Governing Law. This Agreement shall be construed in accordance with
and governed by the internal laws of the State of Nevada, without giving effect
to conflicts of law principies.
14. Invalidity of Provisions. If any provisions of this Agreement is or
becomes invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contatined herein shall not be
affected thereby.
15. Headings. The headings in this Agreement are for convenience of
reference only and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
17th day of July, 1997.
AXXESS, INC.
By: /s/ Kevin A. Lichtman Rock Company, Inc.
---------------------------- ---------------------------
Kevin A. Lichtman, President Name of Holder
/s/ [Signature Appears Here]
----------------------------
Signature of Holder
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EXHIBIT 4.10
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD, OFFERED
FOR SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS THEY ARE SO REGISTERED OR
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
AXXESS, INC.
12% SECURED CONVERTIBLE NOTE DUE DECEMBER 14, 1999
Principal Amount $500,000
AXXESS, INC., a Utah corporation (the "Company"), for value received,
hereby promises to pay to Frank Musolino (the "Lender"), or registered assigns,
on December 14, 1999, the principal amount of Five Hundred Thousand Dollars
($500,000) (or so much thereof as shall not have been prepaid or surrendered for
conversion) in such coin or currency of the United States of America as of the
time of payment shall be legal tender for the payment of public and private
debts, at the offices of the Lender 1623 North Riverhills Drive, Temple Terrace,
FL 33617, together with interest (computed on the basis of 360-day year of
twelve 30-day months) on the unpaid portion of the principal amount hereof at
the annual rate of twelve per cent (12%) from the date hereof until the date
such unpaid portion of such principal amount shall have become due and payable.
Section 1. THE NOTES.
Section 1.01. Registration, Transfer and Exchange of Convertible Notes. The
Company shall keep at its principal office a register in which the Company will
provide for registration, transfer and exchange of Convertible Notes. Subject to
compliance with applicable securities laws, the Holder (as defined below) of any
Convertible Note may, at its option and either in person or by duly authorized
attorney, surrender the same at said office for registration of transfer or
exchange, accompanied, if surrendered for transfer, by a written instrument of
transfer duly executed by said Holder or attorney. If any Holder shall so
request transfer or exchange of a Convertible Note held by it, the Company
shall, within a reasonable time thereafter, without expense to such Holder
(other than transfer taxes, if any) deliver to or upon its order one or more
Convertible Notes in the same unpaid aggregate principal amount as the
Convertible Note so surrendered, each dated the date to which interest has been
paid on the Convertible Note so surrendered, each dated the date to which
interest has been paid on the Convertible Note so surrendered, in the principal
amount of $5,000 or any multiple thereof, and registered in such name or names,
or payable to such Person or Persons, or order, as shall be specified by the
Holder making such request. The Company may deem and treat the Holder of any
Convertible Note as the absolute owner of such Convertible Note for the purpose
of receiving payment of or on account of the principal of (and premium, if any)
and interest on, such Convertible Note and for the purposes of any notices,
waivers or consent thereunder, and payment of any Convertible Note shall be made
only to or upon the order in writing of such Holder.
Section 1.02. Loss, Theft, Destruction of Convertible Notes. Upon receipt
of evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Convertible Note and, in the case of any such loss, theft or
destruction, upon receipt of indemnity reasonably satisfactory to the Company,
or in the case of any such mutilation, upon surrender and cancellation of this
Convertible Note, the Company will make and deliver, in lieu of such lost,
stolen, destroyed or mutilated Convertible Note, a new Convertible Note of like
tenor and unpaid principal amount and dated as of the date from which unpaid
interest has then accrued on the Convertible Note so lost, stolen, destroyed or
mutilated.
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Section 2. DEFINITIONS
Section 2.01. Terms Defined. The terms defined in this Section 2.01 (except
as herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Convertible Note shall have the respective meanings
specified in this Section 2.01.
Common Stock: The term "Common Stock" means shares of the Company's Common
Stock, par value $.001 per share.
Collateral: The term "Collateral" means all rights now or hereafter owned
by the Company in any tradename, trademark, design, invention, copyright, patent
and any license or application for any of the foregoing.
Company: The term "Company" means AXXESS, INC., a Utah corporation, and any
successor corporation to the Company (including the corporation surviving any
subsequent merger).
Current Conversion Price: The term "Current Conversion Price" means the
Conversion Price as most recently adjusted pursuant to Section 6.06.
Default: The term "Default" means an event which with notice or upon the
lapse of time or both would become an Event of Default.
Event of Default: The term "Event of Default" means any event specified in
Section 5.01, continued for the period of time, if any, and after the giving of
notice, if any, therein designated.
Holder: The term "Holder" means the Person in whose name such Convertible
Note is registered in the register maintained by the Company pursuant to Section
1.01.
Maturity: The term "Maturity" when used with respect to any Convertible
Note means the date on which the principal (and premium, if any) of such
Convertible Note becomes due and payable as herein provided, whether at (a)
December 14, 1999, (b) declaration of acceleration or (c) otherwise.
Section 3. CERTAIN COVENANTS.
Section 3.01. Payment of Convertible Notes. The Company will duly and
punctually pay or cause to be paid the principal of (and premium, if any) and
the interest on each of the Convertible Notes at the time and place and in the
manner provided herein.
Section 3.02. General Covenants. The Company will:
(a) promptly pay and discharge or cause to be paid and discharged all
lawful taxes, assessments, and governmental charges or levies imposed upon the
Company upon the income or profits of the Company or upon any property, real,
personal or mixed, belonging to the Company or upon any part thereof, before the
same shall become in default, as well as all lawful claims for labor, material
and supplies which, if unpaid, might become a lien or charge upon such
properties or any part thereof; except that the Company shall not be required to
pay and discharge or to cause to be paid and discharged any such tax,
assessment, charge, levy or claim so long as the validity thereof shall be
contested in good faith by appropriate proceedings and the Company as the case
may be, shall set aside on its books such reserves, if any, as shall be deemed
by it adequate with respect to any such tax, assessment, charge, levy or claim
so contested;
(b) do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises, and comply
with all laws applicable to the Company as its counsel may advise; except that
nothing in this subsection (b) shall prevent a liquidation or dissolution of, or
a sale, transfer or disposition of the property and assets of, or a merger or
consolidation of, the Company or any Affiliate not prohibited by the provisions
of Section 3.04; and
(c) at all times maintain, preserve, protect and keep, or cause to be
maintained, preserved, protected and kept, its property used or useful in the
conduct of the business of the Company in good repair, working order and
condition, and from time to time make, or cause to be made, all necessary and
proper repairs, renewals, replacements, betterments and improvements thereto, so
that
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the business carried on in connection therewith may be properly and
advantageously conducted at all times.
Section 3.03. Notice of Defaults. In the event that any Event of Default
shall have occurred, the Company will promptly give written notice thereof to
each Holder of a Convertible Note.
Section 3.04. Mergers, etc. Subject to Section 3.02, the Company may not
consolidate with or merge or into, or transfer all or substantially all its
assets to, another corporation unless (a) the resulting, surviving or transferee
corporation assumes in writing all the obligations of the Company under the
Convertible Notes and (b) no Event of Default shall have occurred and be
continuing. Upon any consolidation or merger, or any transfer of all or
substantially all the assets of the Company in accordance with this Section
3.04, the successor corporation formed by such consolidation or with or into
which the Company is merged or to which such transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Convertible Note with the same effect as if such successor
corporation had been named as the Company herein.
Section 3.05. Notice of Mergers. the Company shall, within ten business
days after the effective date of each merger or consolidation of the Company,
notify each Holder of the Convertible Notes that such merger or consolidation
has occurred and shall specify such effective date.
Section 3.06. Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of any stay or extension or any usury law or other law, which would
prohibit or forgive the Company from paying all or any portion of the principal
of (and premium, if any) or interest on the Convertible Notes or both as
contemplated therein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Convertible Note
and hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Holder hereof, but will suffer and permit the execution of
such power as though no such law had been enacted.
Section 4. OPTIONAL PREPAYMENTS.
Section 4.01. Optional Prepayments. The Company shall have the
privilege, at any time and from time to time prior to Maturity of prepaying the
outstanding Convertible Notes, either in whole or in part by payment of the
principal amount of each Convertible Note, or portion thereof to be prepaid, and
accrued interest thereon to the date of such prepayment, without premium or
penalty.
Section 4.02. Notice of Prepayments. The Company will give notice of any
prepayment of the Convertible Notes pursuant to Section 4.01 to each holder
thereof not less than 30 days nor more than 60 days before the date fixed for
such optional prepayment ("Prepayment Date") specifying (i) the Prepayment Date,
(ii) the principal amount of the holder's Convertible Notes to be prepaid on the
Prepayment Date and (iii) the accrued interest applicable to the prepayment.
Notice of prepayment having been so given, the aggregate principal amount of the
Convertible Notes specified in such notice, together with the premium, if any,
and accrued interest, thereon shall become due and payable on the Prepayment
Date.
Section 4.03. Allocation of Prepayments. All partial prepayments
pursuant to Section 4.01 shall be applied on all outstanding Convertible Notes
ratably in accordance with the unpaid principal amounts thereof.
Section 5. REMEDIES.
Section 5.01. Events of Default. An "Event of Default" occurs if one or
more of the following shall happen (for any reason whatsoever and whether such
happening shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) if default be made in the punctual payment of the principal
of (or premium, if any) on any of the Convertible Notes when and as the same
shall become due and payable, whether at the fixed maturity of said Convertible
Notes; or
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(b) if default be made in the payment of any installment of
interest on any of the Convertible Notes and such default shall continue for a
period of 3 days after notice; or
(c) if default be made in the due observance or performance of
any covenant, condition or agreement contained in Sections 3.02 to 3.06, both
inclusive, and such default shall have continued for a period of 30 days after
the Holders of a majority of the principal amount of the Convertible Notes then
outstanding shall have given notice to the Company (which notice shall specify
the default, demand that it be remedied and state that the notice is a "Notice
of Default"); or
(d) the Company pursuant to or within the meaning of any
Bankruptcy Law; (i) commences a voluntary case, (ii) consents to the entry of an
order for relief against it in an involuntary case, (iii) to the appointment of
a Custodian of it or for any substantial part of its property, (iv) makes a
general assignment for the benefit of its creditors; or
(e) a court of competent jurisdiction enters and order or decree
under any Bankruptcy Law that: (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company or for any
substantial part of its property, (iii) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 30 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under
any Bankruptcy Law.
Section 5.02. Acceleration. If an Event of Default (other than an Event
of Default specified in Section 5.01(d) of (e)) occurs and is continuing then,
at the option of the Holder of this Convertible Note, exercised by written
notice to the Company, the principal (and premium, if any) of this Convertible
Note shall forthwith become due and payable, together with the interest accrued
hereon. If an Event of Default specified in Section 5.01(d) or (e) occurs at any
time, such an amount shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Holder of this
Convertible Note.
The provisions of this Section 5.02 are subject, however, to the
condition that if, at any time after any Convertible Note shall have so become
due and payable, the Company shall pay all arrears of interest on the
Convertible Notes and all payments on account of the principal (and premium, if
any) of the Convertible Notes which shall have become due otherwise than by
acceleration (with interest on such principal), and all Events of Default (other
than nonpayment of principal of and premium, if any, and accrued interest on
Convertible Notes due and payable by virtue or acceleration) shall be remedied
or waived pursuant to Section 8.04, then, and in every such case, subject to
Section 8.04(b), the Holder or Holders of at least 66 2/3% in aggregate
principal amount of all Convertible Notes at the time outstanding, by written
notice to the Company, may rescind and annul such acceleration and its
consequences; but no such action shall affect any subsequent Default or Event of
Default or impair any right consequent thereon.
Section 5.03. Other Remedies. Subject to the provisions of Section 5.02,
in case any one or more of the Events of Default specified in Section 5.01 shall
have occurred and be continuing, the Holder of this Convertible Note may proceed
to protect and enforce its rights by suit in equity, action at law or by other
appropriate proceedings or both, whether for the specific performance of any
covenant or agreement contained in this Convertible Note or in aid of the
exercise of any power granted in this Convertible Note, or may proceed to
enforce the payment of this Convertible Note or to enforce any other legal or
equitable right of the Holder of this Convertible Note.
Section 5.04. Notice by the Company of Acceleration or Other Action by
Convertible Noteholders or Holders of Other Indebtedness. If any Holder of a
Convertible Note shall give any notice to the Company with respect to any Event
of Default (or with respect to any event which with notice of the lapse of time,
or both, would be an Event of Default), or accelerate the maturity thereof or
take any other action in respect of an Event of Default or such event, or if the
holder of any bond, debenture, note or other similar evidence of indebtedness
(other than the Convertible Notes) of, or secured or guaranteed by, the Company,
shall give any notice to the Company in respect of any default thereunder or
under any agreement pursuant to which such bond, debenture, note or other
evidence or indebtedness is issued, the Company shall forthwith give written
notice to all Holders of Convertible Notes, specifying such action and the
nature and status of such Event of Default or event or other default.
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Section 5.05. Remedies Cumulative. No remedy herein conferred upon the
Holder of this Convertible Note is intended to be exclusive of any other remedy
and each and every such remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise.
Section 5.06. Enforcement. If there shall be any Default under this
Convertible Note and this Convertible Note shall be placed in the hands of an
attorney for collection, or shall be collected through any court, including any
bankruptcy court, the Company promises to pay to the order of the Holder hereof
such Holder's reasonable attorneys' fees and court costs incurred in collecting
or attempting to collect or securing or attempting to secure this Convertible
Note or enforcing the holder's rights with respect to any collateral securing
this Convertible Note, to the extent allowed by the laws of the State of Florida
or any state in which any collateral for this Note shall be situated.
Section 6. CONVERSION
Section 6.01. Right of Conversion; Conversion Price. Subject to and upon
compliance with the provisions of this Section 6, the Holder shall have the
right, at his option, at any time during usual business hours (including the
period between the date on which the Company gives notice of prepayment and the
Prepayment Date) to convert the principal and accrued interest of any
Convertible Note owned by such Holder into fully paid and nonassessable shares
of Common Stock at the rate of $0.50 of principal for each share of Common Stock
(the "Conversion Price") which price per share shall be payable by surrender of
such Convertible Note.
(a) The Company represents and warrants that as of the date
hereof, the authorized and outstanding capital stock of the Company is as
described on Schedule A hereto.
Section 6.02. Manner of Exercise.
(a) In order to exercise the conversion right, the Holder of
any Convertible Note to be converted shall surrender such Convertible Note at
the office of the Company, accompanied by written notice to the Company stating
(i) that the Holder elects to convert such Convertible Note or, if less than the
entire principal amount of a Convertible Note is to be converted, the portion
thereof (a multiple of $1,000) to be converted, and (ii) the name or names (with
addresses) in which the certificate or certificates for shares of Common Stock
issuable on such conversion shall be issued. Convertible Notes surrendered for
conversion shall be accompanied by proper assignment thereof to the Company or
in blank for transfer if the shares are to be issued in a name other than that
of the Holder.
(b) In the case of any Convertible Note which is converted in
part only, upon such conversion the Company shall execute and deliver to the
Holder thereof, at the expense of the Company, a new Convertible Note or
Convertible Notes of authorized denominations in principal amount equal to the
unconverted portion of such Convertible Note.
Section 6.03. Issuance of Shares of Common Stock on Conversion.
(a) As promptly as practicable after the receipt of such notice
and the surrender of such Convertible Note as aforesaid, the Company shall
issue, at its expense, and shall deliver to such Holder, or on his written
order, at the aforesaid office of the Company (i) a certificate or certificates
for the number of full shares of Common Stock issuable upon the conversion of
such Convertible Note (or specified portion thereof), and (ii) a certificate or
certificates for any fractional shares of Common Stock issuable upon conversion
of such Convertible Note (or specified portion thereof) or, at the Company's
option, cash in lieu of scrip for any fraction of a share to which such Holder
is entitled upon conversion as provided in Section 6.05.
(b) Such conversion shall be deemed to have been effected
immediately prior to the close of business on the date ("Conversion Date") on
which the Company shall have received both such notice and the surrendered
Convertible Note as aforesaid, and at such time the rights of the Holder of such
Convertible Note shall cease and the Person or Persons in whose name or names
any certificate or certificates for shares of Common Stock shall be issuable
upon such conversion shall be deemed to have become the holder or holders of
record of the shares represented thereby.
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Section 6.04. No Adjustments for Interest or Dividends. No payment or
adjustment shall be made by or on behalf of the Company on account of any
interest accrued on any Convertible Notes surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon such
conversion which were declared for payment to holder of shares of Common Stock
of record as of a date prior to the Conversion Date. All payments of accrued
interest on any Convertible Note shall be made in cash or additional stock at
the Conversion Price, at Lender's option.
Section 6.05. Fractional Shares. The Company, at its option, may issue
fractional shares of Common Stock upon any conversion of Convertible Notes or,
in lieu of any fraction of a share of Common Stock to which any Holder would
otherwise be entitled upon conversion of any Convertible Notes (or specified
portions thereof), the Company may pay a cash adjustment for such fraction in an
amount equal to same fraction of the Conversion Price per share.
Section 6.06. Adjustment of Conversion Price. The Conversion Price
shall be adjusted as set forth in this section.
(a) In the event that the Company shall make any distribution of
its assets upon or with respect to its shares of Common Stock, as a liquidating
or partial liquidating dividend, or other than as a dividend payable out of
earnings or any surplus legally available for dividends under the laws of the
state of incorporation of the Company, each Holder of any Convertible Note then
outstanding shall, upon the exercise of his right to convert after the record
date for such distribution or, in the absence of a record date, after the date
of such distribution, receive, in addition to the shares subscribed for, the
amount of such assets (or, at the option of the Company, a sum equal to the
value thereof at the time of distribution as determined by the Board of
Directors in its sole discretion) which would have been distributed to such
Holder if he had exercised his right to convert immediately prior to the record
date for such distribution or, in the absence of a record date, immediately
prior to the date of such distribution.
(b) In case at any time the Company shall subdivide its
outstanding shares of Common Stock into a greater number of shares, the Current
Conversion Price in effect immediately prior to such subdivision shall be
proportionately reduced and conversely, in case the outstanding shares of Common
Stock of the Company shall be combined into a smaller number of shares, the
Current Conversion Price in effect immediately prior to such combination shall
be proportionately increased.
(c) If any capital reorganization or reclassification of the
capital stock of the Company, or consolidation or merger of the Company with
another corporation, or the sale, transfer or lease of all or substantially all
of its assets to another corporation, shall be effected in such a way that
holders of shares of Common Stock shall be entitled to receive shares,
securities or assets with respect to or in exchange for shares of Common Stock,
then, as a condition of such reorganization, reclassification, consolidation,
merger or sale, the Company or such successor or purchasing corporation, as the
case may be, shall execute an amendment to the Convertible Notes providing that
the Holder of each Convertible Note then outstanding shall have the right
thereafter and until the expiration of the period of convertibility to convert
such Convertible Note into the kind and amount of shares, securities or assets
receivable upon such reorganization, reclassification, consolidation, merger or
sale by a holder of the number of shares of Common Stock into which such
Convertible Note might have been converted immediately prior to such
reorganization, reclassification, consolidation, merger or sale, subject to
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 6.
(d) In case the Company shall at any time after the date hereof
issue or sell any shares of Common Stock, including shares held in the Company's
treasury and shares of Common Stock issued upon the exercise of any options,
rights or warrants to subscribe for shares of Common Stock and shares of Common
Stock issued upon the direct or indirect conversion or exchange of securities
for shares of Common Stock, for a consideration per share less than the then
Current Conversion Price in effect immediately prior to the issuance or sale of
such shares or without consideration, then forthwith upon such issuance or sale,
the Conversion Price shall (until another such issuance or sale) be reduced to
the price (calculated to the nearest full cent), determined by dividing (i) an
amount equal to the sum of (A) the number of shares of Common Stock outstanding
immediately prior to such issuance or sale multiplied by the then existing
Conversion Price, and (B) the aggregate amount of the consideration, if any,
received by the Company upon such issuance or sale by, (ii) the total number of
shares of Common Stock outstanding immediately after such issuance or sale;
provided,
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that in no event shall the Conversion Price be adjusted pursuant to this
computation to an amount in excess of the Conversion Price in effect immediately
prior to such computation, except in the case of a combination of outstanding
shares of Common Stock, as provided by Section 6.06(b) hereof.
For purposes of any computation to be made in accordance with this
Section 6.06(d), the following provisions shall apply:
(i) In case of the issuance or sale (otherwise than as a
dividend or other distribution on any stock of the Company) of shares of Common
Stock for a consideration part or all of which shall be other than cash, the
amount of the consideration therefor other than cash shall be deemed to be the
value of such consideration as determined in good faith by the Board of
Directors of the Company.
(ii) The number of shares of Common Stock at any one
time outstanding shall include the aggregate number of shares issued or issuable
(subject to readjustment upon the actual issuance thereof) upon the exercise of
options, rights, warrants and upon the conversion or exchange of convertible or
exchangeable securities.
(e) In case the Company shall at any time after the date hereof
issue options, rights or warrants to subscribe for shares of Common Stock or
issue any securities convertible into or exchangeable for shares of Common
Stock, for a consideration per share less than the then Current Conversion Price
in effect immediately prior to the issuance of such options, rights or warrants,
or such convertible or exchangeable securities, or without consideration, the
Conversion Price in effect immediately prior to the issuance of such options,
rights or warrants, or such convertible or exchangeable securities, as the case
may be, shall be reduced to a price determined by making a computation in
accordance with the provisions of Section 6.06(d) hereof; provided, that:
(i) If any change shall occur in the price per share
provided for in any of such options, rights or warrants, or in the price per
share at which such securities are convertible or exchangeable, such options,
rights or warrants or conversion or exchange rights, as the case may be, shall
be deemed to have expired or terminated on the date when such price change
became effective in respect of shares not therefore issued pursuant to the
exercise or conversion or exchange thereof, and the Company shall be deemed to
have issued upon such date new options, rights or warrants or convertible or
exchangeable securities at the new price in respect of the number of shares
issuable upon the exercise of such options, rights or warrants or the conversion
or exchange or such convertible or exchangeable securities.
(f) Upon such adjustment of the Conversion Price pursuant to the
provisions of this Section 6.06, the number of shares issuable upon conversion
of this Note shall be adjusted to the nearest full amount by multiplying a
number equal to the Conversion Price in effect immediately prior to such
adjustment by the number of shares of Common Stock issuable upon exercise of
this Note immediately prior to such adjustment and dividing the product so
obtained by the adjusted Conversion Price.
Section 6.07. Covenant to Reserve Shares for Conversion.
The Company covenants that it will at all times reserve and keep
available out of its authorized shares of Common Stock, such number of shares of
Common Stock as shall then be deliverable upon the conversion of all outstanding
Convertible Notes. All shares of Common Stock which shall be deliverable shall
be duly and validly issued and fully paid and nonassessable.
Section 6.08. Notice of Change of Conversion Price. Whenever the
Conversion Price is adjusted, as herein provided, the Company shall promptly
send to each Holder a certificate of a firm of independent public accountants
(who may be the accountants regularly employed by the Company) selected by the
Board of Directors setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment. Such
certificate shall be conclusive evidence of the correctness of such adjustment.
Section 7. REGISTRATION RIGHTS.
Section 7.01. Piggy-Back. If the Company proposes to file, on its behalf
and/or on behalf of any of its securities holders, a Registration Statement
under the Securities Act of 1933, as
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amended (the "Securities Act") other than in connection with a dividend
reinvestment, employee stock purchase, option or similar plan or in connection
with a merger, consolidation or reorganization, the Company shall give written
notice to each Holder at least 30 days before the filing with the Securities and
Exchange Commission ("SEC") of such Registration Statement. Each Holder who
desires to include any of its shares of Common Stock into which the Convertible
Notes are convertible, whether or not already converted, (the "Registrable
Securities") in such Registration Statement shall give written notice to the
Company within 20 days after the date of mailing of such offer, and shall
deliver to the Company a letter from counsel selected by such Holder to the
effect that registration under the Securities Act is required. The Company shall
thereupon include in such filing the shares of Common Stock designated by such
Holder and, subject to its right to withdraw such filing, shall use its best
efforts to effect registration under the Securities Act of such shares of Common
Stock.
Section 7.02. Conditions. The right of the Holders to have shares
included in any Registration Statement in accordance with the provisions of this
Section 7 shall be subject to the following conditions:
(a) The Company shall have the right to require that the Holders
participating in such Registration Statement agree to refrain from offering or
selling (other than in a private sale) any shares of Common Stock that they own
which are not included in any such Registration Statement in accordance with
this Section 7 for any time period (not to exceed 180 days) specified in writing
by any managing underwriter of the offering to which such Registration Statement
relates;
(b) If any managing underwriter of the offering to which the
Registration Statement relates informs the Company in writing that the total
number of shares of Common Stock requested by the Holders to be included in the
Registration Statement is sufficiently large to affect the success of such
offering adversely, then the Company will include only the number of shares, if
any, in the Registration Statement that such managing underwriter shall advise
the Company will not so affect the offering, and reductions in the number of
shares of Common Stock owned by the Holders and other persons who have elected
to have shares of Common Stock included in such Registration Statement will be
made proportionate to their respective percentages of ownership of shares to be
included in the Registration Statement;
(c) The Company shall furnish Holders who have shares included
in a Registration Statement pursuant to this Section 7 with such number of
copies of the prospectus relating to the offering (the "Prospectus") (including
any preliminary prospectus or supplemental or amended prospectus) as such Holder
may reasonably request in order to facilitate the sale and distribution of its
shares; and
Section 7.03. Right to Terminate. Notwithstanding the foregoing, the
Company in its sole discretion may determine not to file the Registration
Statement or proceed with the offering as to which the notice specified herein
is given without any liability to Holders.
Section 7.04. Number of Shares. Each Holder shall have the right to
register shares of Common Stock under this Section 7 on an unlimited number of
occasions.
Section 7.05. "No Action" Letter; Opinion of Counsel. No Holder shall
have registration rights under this Section with respect to any sales proposed
by them of shares as to which sales (i) a "no action" letter is received from
the SEC or its staff confirming the availability of an exemption from the
requirements of the Securities Act or (ii) an unqualified opinion of counsel to
the Company is rendered to the effect that registration of such shares for such
sales is not required; provided that in both cases (i) and (ii) above, the
volume limitations of Rule 144(e) under the Securities Act shall not limit the
amount of shares of Common Stock that the Holders are entitled to offer and sell
without registration under the Securities Act.
Section 7.06. Recall of Prospectuses, etc. With respect to a
Registration Statement or amendment thereto filed pursuant to this Section, if,
at any time, the Company notifies the selling Holder that an amendment or
supplement to such Registration Statement or amendment or the prospectus
included therein is necessary or appropriate, the selling Holder will forthwith
cease selling and distributing shares thereunder and will forthwith redeliver to
the Company all copies of such Registration Statement and prospectuses then in
their possession or under their control.
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Section 7.07. Cooperation of Holders. The Company shall be entitled to
require that each selling Holder cooperate with the Company in connection with a
registration of shares of Common Stock pursuant to this Section and furnish such
information, representations, undertakings and agreements regarding such selling
Holder and the distribution as may be reasonably required by the Company or as
required by law in connection therewith.
Section 7.08. Expenses. The Company will bear all the expenses in
connection with any Registration Statement under this Section 7 (including the
fees and expenses of a single counsel to the Holders) other than transfer taxes
payable on the sale of such shares and fees and commissions of broker, dealers
and underwriters.
Section 7.09. Indemnification. In the event of the registration of any
securities under the Securities Act pursuant to this Section, the Company and
the Holders shall provide to each other customary indemnification to the extent
of any loss, claim, damage, liability or expense arising out of such
registration.
Section 7.10. Greater Rights. If, in connection with any offering of the
securities of the Company, the Company shall grant to the purchasers thereof any
greater rights with respect to registration than are provided hereunder, the
Lender, and, to the extent assigned by the Lender, each Holder, shall
automatically be entitled to such greater rights as though fully set forth
herein. In the event that the Company shall no consummate an offering within 90
days of the date hereof providing for the registration of the Registrable
Securities upon the demand of the holders thereof, the Holders of a majority of
the principal amount of the Convertible Notes then outstanding shall thereupon
have the right to demand one registration of their Registrable Securities at the
Company's expense.
Section 8. MISCELLANEOUS
Section 8.01. Governing Law. This Convertible Note shall be construed in
accordance with the laws of the State of Florida applicable to contracts entered
into and to be performed wholly within said State.
Section 8.02. Successors and Assigns. All the covenants, stipulations,
promises and agreements in the Convertible Notes contained by or on behalf of
the Company shall bind its successors and assigns, whether so expressed or not.
Section 8.03. Course of Dealing; No Waiver. No course of dealing between
the Company and the Holder hereof shall operate as a waiver of any right of any
Holder hereof and no delay on the part of the Holder in exercising any right
hereunder shall so operate.
Section 8.04. Waiver of Compliance.
(a) Any term, covenant, agreement or condition hereof may be
amended, or compliance therewith may be waived (either generally or in a
particular instance and either retroactively or prospectively), if the Company
shall have obtained the agreement or consent in writing of the Holders of at
least 51% in aggregate principal amount of all outstanding Convertible Notes;
except that without the agreement or consent in writing of the Holders of all
outstanding Convertible Notes, no such amendment or waiver shall;
(i) change the amount or maturity of any principal of (or
premium, if any) on the Convertible Notes or change the rate or extend
the time of payment of interest on the Convertible Notes or reduce the
amount of principal thereof or modify any of the provisions of the
Convertible Notes with respect to the payment or prepayment thereof;
(ii) give to any Convertible Note any preference or
priority over any other Convertible Note; or
(iii) reduce the percentage of Holders of the Convertible
Notes required to approve any such amendment or effectuate any such
waiver.
(b) In determining whether the Holders of the requisite
principal amount of outstanding Convertible Notes have given any authorization,
consent or waiver under this Section 8.04 or under Section 5.02, Convertible
Notes owned by the Company or any Affiliate thereof shall be
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disregarded and deemed not to be outstanding.
(c) Any such amendment or waiver shall apply equally to all the
Holders of the Convertible Notes and shall be binding upon them, upon each
future Holder of any Convertible Note and upon the Company, whether or not such
Convertible Note shall have been marked to indicate such amendment or waiver. No
such amendment or waiver shall extend to or affect any obligation not expressly
amended or waived or impair any right consequent thereon.
Section 8.05. Manner of Giving Notices. Any notice required to be given
to the Holder hereof by the Company hereunder shall be given by certified
registered mail to the Holder at its address designated on the register referred
to in Section 1.01 on the date of such notice.
Section 8.06. Expenses in Preparation. All expenses of the Lender in the
negotiation, preparation, execution and delivery of this Convertible Note shall
be paid by the Company.
Section 8.07. Other Provisions. The Company waives demand, presentment,
protest, notice of dishonor and any other form of notice, that may be required
to hold the Company liable on this Note.
Section 8.08. Security Interest. The Company hereby grants the Lender
and any Holder a security interest in the Collateral as security for the payment
and performance of all of the Company's obligations under this Convertible Note.
IN WITNESS WHEREOF, the undersigned has caused this Convertible Note to
be signed in its corporate name by one of its officers thereunto duly
authorized, and to be dated as of the date first written above.
AXXESS, INC.
By:
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Title:
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EXHIBIT 4.11
WARRANT AGREEMENT
WARRANT AGREEMENT dated as of January 6, 1999, between FINANCIALWEB.COM,
INC., a Nevada corporation (the "Company"), and GLENN B. LAKEN ("Laken").
WITNESSETH
WHEREAS, the Company proposes to issue to Laken, or his designees, warrants
("Warrants") to purchase one million (1,000,000) shares of common stock, $.001
par value, of the Company ("Common Stock"); and
WHEREAS, the Warrants to be issued pursuant to this Agreement will be issued
by the Company to Laken, or his designees, in consideration for, and as part of
Laken's compensation in connection with an Agreement between the Company and
Laken dated January 6, 1999 (the "Agreement Date");
NOW, THEREFORE, in consideration of the premises, the payment by Laken to
the Company of ONE DOLLAR, the agreements herein set forth and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant. The Holders (as defined below) are hereby granted the right to
purchase, at any time from the date thereof until 5:30 p.m., New York
time, on the fifth anniversary of this Agreement, one million
(1,000,000) shares of Common Stock at an initial exercise price
(subject to adjustment as provided in Section 7 hereof) of $4.00 per
share of Common Stock, subject to the terms and conditions of this
Agreement.
2. Warrant Certificates. The Warrant certificates (the "Warrant
Certificates") delivered and to be delivered pursuant to this Agreement
shall be in the form set forth in Exhibit A, attached hereto and made a
part hereof, with such appropriate insertions, omissions,
substitutions, and other variations as required or permitted by this
Agreement.
3. Exercise of Warrant.
3.1 Method of Exercise. The Warrants are exercisable at an initial exercise
price (subject to adjustment as provided in Section 7 hereof) of $4.00
per share of Common Stock payable by certified or official bank check
in New York Clearing House funds. Upon surrender of a Warrant
Certificate with the annexed Form of Election to Purchase duly
executed, together with payment of the Exercise Price (as hereinafter
defined) for the shares of Common Stock issuable upon exercisable of
the Warrants (the "Warrant Shares") at the Company's principal offices
at 201 Park Place Altamonte Springs, Florida, 32701, the registered
holder of a Warrant Certificate ("Holder" or "Holders") shall be
entitled to receive a certificate or
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certificates for the shares of Common Stock so purchased. The purchase
rights represented by each Warrant Certificate are exercisable at the
option of the Holder thereof, in whole or in part (but not as to
fractional shares of the Common Stock underlying the Warrants).
Warrants may be exercised to purchase all or part of the shares of
Common Stock purchasable under any Warrant Certificate, the Company
shall cancel said Warrant Certificate upon the surrender thereof and
shall execute and deliver a new Warrant Certificate of like tenor for
the balance of the shares of Common Stock.
3.2 Exercise by Surrender of Warrant. In addition to the method of payment
set forth in Section 3.1 and in lieu of any cash payment required
thereunder, the Holder(s) of the Warrant shall have the right at any
time and from time to time, provided that the Common Stock is
registered under the Securities and Exchange Act of 1934 (the "Exchange
Act"), to exercise the Warrants in full or in part by surrendering the
Warrant Certificate in the manner specified in Section 3.1 in exchange
for the number of shares of Common Stock equal to the product of (x)
the number of shares as to which the Warrants are being exercised
multiplied by (y) a fraction, the numerator of which is the Market
Price [as defined in Section 7.1 (vi) hereof] of the Common Stock less
the Exercise Price and the denominator of which is such Market Price.
Solely for the purposes of this Section 3.2, Market Price shall be
calculated either (i) on the date on which the annexed Form of Election is
deemed to have been sent to the Company pursuant to Section 14 hereof ("Notice
Date") or (ii) as the average of the Market Price for each of the five (5)
trading days preceding the Notice Date, whichever of (i) or (ii) is greater.
4. Issuance of Certificates. Upon the exercise of the Warrants, the
issuance of certificates for shares of Common Stock or other
securities, properties or rights underlying such Warrants shall be made
forthwith (as in any event such issuance shall be made within five
business days thereafter) without charge to the Holder thereof
including, without limitation, any tax which may be payable in respect
of the issuance thereof, and such certificates shall (subject to the
provisions of Section 5 and 7 hereof) be issued in the name of, or in
such names as may be directed by, the Holder thereof; provided,
however, that the Company shall not be required to pay any tax which
may be payable in respect to any transfer involved in the issuance and
delivery of any such certificates in a name other than that of the
Holder and the Company shall not be required to issue or deliver such
certificates unless or until the person or people requesting the
issuance thereof shall have paid to the Company the amount of such tax
or shall be established to the satisfaction of the Company that such
tax has been paid.
The Warrant Certificates and the certificates representing the shares of
Common Stock (and/or other securities, property or rights issuable upon exercise
of the Warrants) shall be executed on behalf of the Company by the manual or
facsimile signature of the then present Chairman or Vice Chairman of the Board
of Directors or President or Vice President of the Company under its corporate
seal reproduced thereon, attested to by the manual or facsimile signature of the
then
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present Secretary or Assistant Secretary of the Company. Warrant Certificates
shall be dated the date of execution by the Company upon initial issuance,
division, exchange, substitution or transfer.
5. Exercise Price.
5.1 Initial and Adjusted Exercise Price. Except otherwise provided in
Section 7 hereof, the Warrants shall be exercisable to purchase Common
Stock at a price of $4.00 per share. The adjusted exercise price shall
be the price which shall result from time to time from any and all
adjustments of the initial exercise price in accordance with the
provisions of Section 7 hereof.
5.2 Exercise Price. The term "Exercise Price" herein shall mean the
initial exercise price or the adjusted exercise price, depending upon
the context.
6. Registration.
6.1 Registration Under the Securities Act of 1933. The Warrants and the
Warrant Shares (collectively, the "Warrant Securities") have not been
registered under the Securities Act of 1933 (the "Act") for public
resale. Upon exercise, in part of in whole, of the Warrants,
certificates representing the shares of Common Stock and any of the
other securities issuable upon exercise of the Warrants shall bear the
following legend:
The Securities represented by this certificate have not been registered
under the Securities Act of 1933 ("Act") for public resale, and may not be
offered or sold except pursuant to (i) an effective registration statement
under the Act, (ii) to the extent applicable, Rule 144 under the Act (or any
similar rule under such Act relating to the disposition of securities), or
(iii) an opinion of counsel, if such opinion shall be reasonably
satisfactory to the issuer, that an exemption from registration under such
Act is available.
6.2 Piggyback Registration. If, at any time commencing after the date
hereof until the expiration of the Warrant Exercise Term, the Company
proposes to register any of its securities under the Act (other than in
connection with a merger or pursuant to Form S-7, S-4 or comparable
registration statement) it will give written notice by registered mail,
at least thirty (30) days prior to the filing of each such registration
statement, to Laken and to all other Holders of the Warrant Securities,
of its intention to do so. If Laken or other Holders of the Warrant
Securities notify the Company within twenty (20) days after receipt of
any such notice of its or their desire to include any Warrant Shares in
such proposed registered statement, the Company shall afford Laken and
such Holders of the Warrant Securities the opportunity to have any such
Warrant Shares registered under such registration statement.
Notwithstanding the provisions of this Section 6.2, the Company shall have
the right to any time after it shall have given written notice pursuant to this
Section 6.2 (irrespective of whether a written request for inclusion of any
such securities shall have been made) to elect to postpone or not to file any
such proposed registration statement, or to withdraw the same after filing but
prior to the effective date thereof.
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6.3 Demand Registration.
(a) So long as the Company shall have any of its securities registered
under the Act of the Exchange Act, at any time commencing after
the date hereof until expiration of the Warrant Exercise Term, the
Holder of the Warrant Securities representing a "Majority" (as
hereinafter defined) of such securities (assuming the exercise of
all of the then outstanding Warrants) shall have the right (which
right is in addition to the registration rights under Section 6.2
hereof), exerciseable by written notice to the Company, to have
the Company prepare and file with Securities and Exchange
Commission (the "Commission"), on two (2) occasions, a
registration statement and such other documents, including a
prospectus, as may be necessary in the opinion of both counsel for
the Company and the counsel for the Agent and Holders, in order to
comply with the provisions of the Act, so as to permit a public
offering and sale of their respective Warrant Shares for one
hundred twenty (120) days by such Holder and any other Holders of
the Warrants and/or Warrant Shares who notify the Company within
ten (10) days after receiving notice from the Company of such
request.
(b) The Company covenants and agrees to give written notice of any
registration request under this Section 6.3 by any Holder or
Holders to all other registered Holders of the Warrants and the
Warrant Shares within ten (10) days from the date of the receipt
of any such registration request.
(c) All expenses (other than underwriting discounts and commissions)
incurred in connection with registration, filings or qualification
pursuant to the first registration request made pursuant to the
subsection (a) of this Section 6.3, including, without limitation,
all registration, listing, filing, and qualification fees,
printers and accounting fees and the fees and disbursements of
counsel for the Holders shall be borne by the Company. Upon a
second registration request pursuant to subsection (a) of this
Section 6.3, the Holders requesting registration shall bear such
costs on a pro-rata basis with respect to the Warrant Shares in
respect of which they are requesting registration.
(d) Notwithstanding anything to the contrary contained herein, if the
Company shall not have filed a registration statement for the
Warrant Shares within the time period specified in Section 6.4 (a)
hereof pursuant to the written notice specified in Section 6.3 (a)
of a Majority of the Holders of the Warrants and/or Warrant
Shares, the Company agrees that upon the written notice of
election of a Majority of the Holders of the Warrants and/or
Warrant Shares it shall repurchase (i) any and all Warrant
Securities at the higher of the Market Price [as defined in
Section 7.1 (vi)] per share of Common Stock on (x) the date of the
notice sent pursuant to Section 6.3 (a) or (y) the expiration of
the one-hundred-twenty-day (120-day) period specified in Section
6.4 (a) and (ii) any and all Warrants at such Market Price less
the exercise price of such Warrant. Such repurchase shall be in
immediately available funds and shall close within two (2) days
after the later of (i) the expiration of the period
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specified in Section 6.4(a) or (ii) the delivery of the written
notice of election specified in this Section 6.3(d).
6.4 Covenants of the Company with Respect to Registration. In connection
with any registration under Sections 6.2 or 6.3 hereof, the Company
covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration
statement within forty-five (45) days of receipt of any demand
therefor, shall use its best efforts to have any registration
statement declared effective at the earliest possible time, and
shall furnish each Holder desiring to sell Warrant Shares such
number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs [excluding fees and expenses of
Holder(s)' counsel and any underwriting or selling commissions or
other charges of any broker-dealer acting on behalf of Holder(s)],
fees and expenses in connection with all registration statements
filed pursuant to Section 6.2 and 6.3(a) hereof including, without
limitation, the Company's legal and accounting fees, printing
expenses, blue sky fees and expenses. The Holder(s) will pay all
costs, fees and expenses in connection with any registration
statement filed pursuant to Section 6.3(c). If the Company shall
fail to comply with the provisions of Section 6.4(a), the Company
shall, in addition to any other equitable or other relief
available to the Holder(s), be liable for any or all damages due
to loss of profit sustained by the Holder(s) requesting
registration of their Warrant Securities.
(c) The Company will take all necessary action which may be required
in qualifying or registering the Warrant Shares included in the
registration statement for offering and sale under the securities
or blue sky laws of such states as reasonably are requested by the
Holder(s), provided that the Company shall not be obligated to
execute or file any general consent to service or process or to
qualify as a foreign corporation to do business under the laws of
any such jurisdiction.
(d) The Company shall indemnify the Holder(s) of the Warrant Shares to
be sold pursuant to any registration statement and each person, if
any, who controls such Holders within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act, against all loss,
claim, damage, expense or liability (including all expenses
reasonably incurred in investigating, preparing or defending
against any claim whatsoever) to which any of them may become
subject.
(e) The Holder(s) of the Warrant Shares to be sold pursuant to a
registration statement, and their successors and assigns, shall
severally, and not jointly, indemnify the Company, its officers
and directors and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of
the Exchange Act, against all loss, claim, damage or
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expense or liability (including all expenses reasonably incurred
in investigating, preparing or defending against any claim
whatsoever) to which they may become subject under the Act, the
Exchange Act or otherwise, arising from information furnished by
or on behalf of such Holders, or their successors or assigns, for
specific inclusion in such a registration statement.
(f) Nothing contained in this Agreement shall be construed as
requiring the Holder(s) to exercise their Warrants prior to the
initial filing of any registration statement of the effectiveness
thereof.
(g) The Company shall not permit any securities other than the
Warrant Shares to be included in any registration statement filed
pursuant to Section 6.3 hereof, or permit any other registration
statement to be or remain effective during the effectiveness of a
registration statement filed pursuant to Section 6.3 hereof,
without the prior written consent of the Holders of the Warrant
Securities representing a Majority of such securities (assuming
an exercise of all of the Warrants).
(h) The Company shall furnish to each Holder participating in an
offering including Warrant Shares, pursuant to Sections 6.2 or
6.3 hereof, and to each underwriter, if any, a signed
counterpart, addressed to such Holder or underwriter, of (i) an
opinion of counsel to the Company, dated the effective date of
such registration statement (and, if such registration includes
an underwritten public offering, an opinion dated the date of the
closing under the underwriting agreement), and (ii) a "cold
comfort" letter dated the effective date of such registration
statement (and, if such registration includes an underwritten
public offering, a letter dated the date of the closing under the
underwriting agreement) signed by the independent public
accountants who have issued a report on the Company's financial
statements included in such registration statement, in each case
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and,
in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to underwriters in underwritten
public offerings of securities.
(i) The Company shall as soon as practicable after the effective date
of a registration statement relating to any Warrant Shares
pursuant to Section 6.2 or 6.3 hereof, and in any event within
fifteen (15) months thereafter, make "generally available to its
security holders" (within the meaning of Rule 157 under the Act)
an earnings statement (which need not be audited) complying with
Section 11(a) of the Act and covering a period of at least twelve
(12) consecutive months beginning after the effective date of the
registration statement.
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(j) The Company shall deliver promptly to each Holder participating in
an offering including any Warrant Shares pursuant to Sections 6.2
or 6.3 hereof, who so requests, and to the managing underwriter,
copies of all correspondence between the Commission and the
Company, its counsel or auditors and all memoranda relating to
discussions with the Commission or its staff with respect to the
registration statement and permit each Holder and underwriter to
do such investigation, upon reasonable advance notice, with
respect to information contained in or omitted from the
registration statement as it deems reasonably necessary to comply
with applicable securities laws or rules of the National
Association of Securities Dealers, Inc. ("NASD"). Such
investigation shall include access to books, records and
properties and opportunities to discuss the business of the
Company and its officers and independent auditors, all to such
reasonable extent and at such reasonable times and as often as any
such Holder shall reasonably request as it deems necessary to
comply with applicable securities laws and NASD rules.
(k) With respect to a registration pursuant to Section 6.3 hereof, the
Company shall enter into an underwriting agreement with the
managing underwriter selected for such underwriting by Holders
holding a Majority of the Warrant Shares requested to be included
in such underwriting. Such managing underwriter(s) shall be
satisfactory to the Company and each Holder and such agreement
shall be satisfactory in form and substance to the Company, each
Holder and such managing underwriters, and shall contain such
representations, warranties and covenants by the Company and such
other terms as are customarily contained in agreements of that
type used by the managing underwriter. The Holders shall be
parties to any underwriting agreement relating to an underwritten
sale of their Warrant Shares and may, at their option, require
that any or all the representations, warranties and covenants of
the Company to or for the benefit of such underwriters shall also
be made to and for the benefit of such Holders. Such Holders shall
not be required to make any representations or warranties to or
agreements with the Company or the Underwriters except as they may
relate to such Holders and their intended methods of distribution.
(l) In addition to the Warrant Shares, upon the written request
therefor by any Holder(s), the Company shall include in the
registration statement any other securities of the Company held by
such Holder(s) as of the date of filing of such registration
statement, including without limitation, restricted shares of
Common Stock, options, warrants or any other securities
convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference
to the Holders of Warrants or Warrant Shares, shall mean in excess
of fifty percent (50%) of the outstanding Warrants or Warrant
Shares that (i) are not held by the Company, an affiliate
(excluding the Agent and any affiliate of the Agent), officer,
creditor, employee or agent thereof or any of their respective
affiliates, members of their family, persons acting as nominees or
in
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conjunction therewith or (ii) have not been resold to the public
pursuant to a registration statement filed with the Commission
under the Act.
7. Adjustments to Exercise Price and Number of Securities.
7.1 Computation of Adjusted Exercise Price. Except as hereinafter provided,
in case the Company shall at any time after the date hereof issue or
sell any shares of Common Stock (other than the issuance or sales
referred to in Section 7.6 hereof), including shares held in the
Company's treasury and shares of Common Stock issued upon the exercise
of any options, rights or warrants, to subscribe for shares of Common
Stock and shares of Common Stock issued upon the direct or indirect
conversion or exchange of securities for shares of Common Stock, for a
consideration per share less than the Exercise Price in effect
immediately prior to the issuance or sale of such shares or the "Market
Price" [as defined in Section 7.1(vi) hereof] per share of Common Stock
on the date immediately prior to the issuance of sale of such shares, or
without consideration, then forthwith upon such issuance or sale, the
Exercise Price shall (until another such issuance or sale) be reduced to
the price (calculated to the nearest full cent) equal to the quotient
derived by dividing (A) an amount equal to the sum of (X) the product of
(a) the lower of (i) the Exercise Price in effect immediately prior to
such issuance or sale and (ii) the Market Price per share of Common
Stock on the date immediately prior to the issuance or sale of such
shares, in either event, reduced, but not to a number which is below
.001, by the positive difference, if any, between the (u) Market Price
per share of Common Stock on the date immediately prior to the issuance
or sale and (v) the amount per share received in connection with such
issuance or sale, multiplied by (b) the total number of shares of Common
Stock outstanding immediately prior to such issuance or sale, plus (Y)
the aggregate of the amount of all consideration, if any, received by
the Company upon such issuance or sale, by (B) the total number of
shares of Common Stock outstanding immediately after such issuance or
sale; provided, however, that in no event shall the Exercise Price be
adjusted pursuant to this computation to an amount in excess of the
Exercise Price in effect immediately prior to such computation, except
in the case of a combination of outstanding shares of Common Stock, as
provided by Section 7.3 hereof.
For the purposes of this Section 7 the term Exercise Price shall mean the
Exercise Price per share of Common Stock set forth in Section 6 hereof, as
adjusted from time to time pursuant to the provisions of this Section 7.
For purposes of any computation to be made in accordance with this Section
7.1, the following provisions shall be applicable:
(i) In case of the issuance or sale of shares of Common Stock for a
consideration part or all of which shall be cash, the amount of the cash
consideration, therefor shall be deemed to be the amount of cash
received by the Company for such shares (or, if shares of Common Stock
are offered by the Company for subscription, the subscription price, or,
if either of such securities shall be sold to underwriters or dealers
for public offering without a subscription offering, the public offering
price,
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before deducting therefrom any compensation paid or discount allowed
in the sale, underwriting or purchase thereof by underwriters or
dealers or other performing similar services, or any expenses incurred
in connection therewith and less any amounts payable to security
holders or any affiliate thereof, including without limitation, any
employment agreement, royalty, consulting agreement, covenant not to
compete, earnout or contingent payment right or similar arrangement,
agreement or understanding, whether oral or written; all such amounts
shall be valued at the aggregate amount payable thereunder whether
such payments are absolute or contingent and irrespective of the
period or uncertainty of payment, the rate of interest, if any, or the
contingent nature thereof.
(ii) In case of the issuance or sale (otherwise than as a dividend or other
distribution on any stock of the Company) of shares of Common Stock
for a consideration part or all of which shall be other than cash, the
amount of the consideration therefor other than cash shall be deemed
to be the value of such consideration as determined in good faith by
the Board of Directors of the Company.
(iii) Shares of Common Stock issuable by way of dividend or other
distribution on any stock of the Company shall be deemed to have been
issued immediately after the opening of business on the day following
the record date for the determination of stockholders entitled to
receive such dividend or other distribution and shall be deemed to
have been issued without consideration.
(iv) The reclassification of securities of the Company other than shares of
Common Stock into securities including shares of Common Stock shall be
deemed to involve the issuance of such shares of Common Stock for a
consideration other than cash immediately prior to the close of
business on the date fixed for the determination of security holders
entitled to receive such shares, and the value of the consideration
allocable to such shares of Common Stock shall be determined as
provided in subsection (ii) of this Section 7.1.
(v) The number of shares of Common Stock at any one time outstanding shall
include the aggregate number of shares issued or issuable (subject to
readjustment upon the actual issuance thereof) upon the exercise of
then outstanding options, rights, warrants and upon the conversion or
exchange of then outstanding convertible or exchangeable securities.
(vi) As used herein, the phrase "Market Price" at any date shall be deemed
to be the last reported sale price, or, in case no such reported sale
takes place on such day, the average of the last reported sale prices
for the last three (3) trading days, in either case of officially
reported by the principal securities exchange on which the Common
Stock is listed or admitted to trading, or, if the Common Stock is not
listed or admitted to trading on any national securities exchange, the
average closing bid price as furnished by the NASD through NASDAQ or
similar organization if NASDAQ is no longer reporting such
information, or if the Common Stock is not quoted on NASDAQ, as
determined in good faith by resolution of the Board of Directors of
the company, based on the best information available to it.
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7.2 Options, Rights, Warrants and Convertible and Exchangeable Securities.
In case the Company shall at any time after the date hereof issue
options, rights or warrants to subscribe for shares of Common Stock, or
issue any securities convertible into or exchangeable for shares of
Common Stock, for a consideration per share less than the Exercise
Price in effect or the Market Price immediately prior to the issuance
of such options, rights or warrants, or such convertible or
exchangeable securities, or without consideration, the Exercise Price
in effect immediately prior to the issuance of such options, rights or
warrants, or such convertible or exchangeable securities, as the case
may be, shall be reduced to a price determined by making a computation
in accordance with the provisions of Section 7.1 hereof, provided that:
(a) The aggregate maximum number of shares of Common Stock, as the
case may be, issuable under such options, rights or warrants shall
be deemed to be issued and outstanding at the time such options,
rights or warrants were issued, and for a consideration equal to
the minimum purchase price per share provided for in such options,
rights or warrants at the time of issuance, plus the consideration
(determined in the same manner as consideration received on the
issue or sale of shares in accordance with the terms of the
Warrants), if any, received by the Company for such options,
rights or warrants.
(b) The aggregate maximum number of shares of Common Stock issuable
upon conversion or exchange of any convertible or exchangeable
securities shall be deemed to be issued and outstanding at the
time of issuance of such securities, and for a consideration equal
to the consideration (determined in the same manner as
consideration received on the issue or sale of shares of Common
Stock in accordance with the terms of the Warrants) received by
the Company for such securities, plus the minimum consideration,
if any, receivable by the Company upon the conversion or exchange
thereof.
(c) If any change shall occur in the price per share provided for in
any of the options, rights or warrants referred to in subsection
(a) of this Section 7.2, or in the price per share at which the
securities referred to in subsection (b) of this Section 7.2 are
convertible or exchangeable, such options, rights or warrants or
conversion or exchange rights, as the case may be, shall be deemed
to have expired or terminated on the date when such price change
became effective in respect to shares not theretofore issued
pursuant to the exercise or conversion or exchange thereof, and
the Company shall be deemed to have issued upon such date new
options, rights or warrants or convertible or exchangeable
securities at the new price in respect of the number of shares
issuable upon the exercise of such options, rights or warrants or
the conversion or exchangeable such convertible or exchangeable
securities.
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7.3 Subdivision and Combination. In case the Company shall at any time
subdivide or combine the outstanding shares of Common Stock, the
Exercise Price shall forthwith be proportionately decreased in the case
of subdivision or increased in the case of combination.
7.4 Adjustment in Number of Securities. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Section 7, the number
of securities issuable upon the exercise of each Warrant shall be
adjusted to the nearest full amount by multiplying a number equal to
the Exercise Price in effect immediately prior to such adjustment by
the number of Warrant Securities issuable upon exercise of the Warrants
immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.
7.5 Definition of Common Stock. For the purpose of this Agreement, the term
"Common Stock" shall mean (i) the class of stock designated as Common
Stock in the Certificate of incorporation of the Company as may be
amended as of the date hereof, or (ii) any other class of stock
resulting from successive changes or reclassifications of such Common
Stock consisting solely of changes in par value, or from par value to
no par value, or from no par value to par value. In the event that the
Company shall after the date hereof issue securities with greater or
superior voting rights than the shares of Common Stock outstanding as
of the date hereof, the Holder, at its option, may receive upon
exercise of any Warrants either shares of Common Stock or a like number
of such securities with greater or superior voting rights.
7.6 Merger or Consolidation. In case of any consolidation of the Company
with, or merger of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger which does
not result in any reclassification or change of the outstanding Common
Stock), the corporation formed by such consolidation or merger shall
execute and deliver to the Holder a supplemental warrant agreement
providing that the holder of each Warrant then outstanding or to be
outstanding shall have the right thereafter (until the expiration of
such Warrant) to receive, upon exercise of such warrant, the kind and
amount of shares of stock and other securities and property receivable
upon such consolidation or merger, by a property receivable upon such
consolidation or merger, by a holder of the number of shares of Common
Stock of the Company for which such warrant might have been exercised
immediately prior to such consolidation, merger, sale or transfer. Such
supplemental warrant agreement shall provide for adjustments which
shall be identical to the adjustments provided in Section 7. The above
provision of this Subsection shall similarly apply to successive
consolidations or mergers.
7.7 No Adjustment of Exercise Price in Certain Cases. No adjustment of the
Exercise Price shall be made:
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(a) Upon issuance or sale of the Warrants or the shares of Common
Stock issuable upon the exercise of the Warrants.
(b) If the amount of said adjustment shall be less than two cents
($0.02) per security issuable upon exercise of the Warrants,
provided, however, that in such case any adjustment that would
otherwise be required then to be made shall be carried forward and
shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment so carried forward,
shall amount to at least two cents ($0.02) per security issuable
upon exercise of the Warrants.
7.8 Dividends and Other Distributions. In the event that the Company shall
at any time prior to the exercise of all Warrants declare a dividend
(other than a dividend consisting solely of shares of Common Stock) or
otherwise distribute to its stockholders any assets, properties,
rights, evidence of indebtedness, securities (other than shares of
Common Stock), whether issued by the Company or by another, or any
other thing of value, the Holders of the unexercised Warrants shall
thereafter be entitled, in addition to the shares of Common Stock or
other securities and property receivable upon the exercise thereof, to
receive, upon the exercise of such Warrants, the same property, assets,
rights, evidences of indebtedness, securities or any other thing of
value that they would have been entitled to receive at the time of such
dividend or distribution as if the Warrants had been exercised
immediately prior to such dividend or distribution. At the time of any
such dividend or distribution, the Company shall make appropriate
reserves to ensure the timely performance of the provisions of this
Subsection 7.7.
8. Exchange and Replacement of Warrant Certificates. Each Warrant
Certificate is exchangeable without expense, upon the surrender thereof
by the registered Holder at the principal office of the Company, for a
new Warrant Certificate of like tenor and date representing in the
aggregate the right to purchase the same number of securities in such
denominations as shall be designated by the Holder thereof at the time
of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of the
loss, theft, destruction or mutilation of any Warrant Certificate, and, in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory
to it, and reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender and cancellation of the Warrants, if mutilated, the
Company will make and deliver a new Warrant Certificate of like tenor, in lieu
thereof.
9. Elimination of Fractional Interests. The Company shall not be required
to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Warrants, nor shall it be required to issue
script or pay cash in lieu of fractional interests, it being the intent
of the parties that all fractional interests shall be eliminated by
rounding any fraction up to the nearest whole number or shares of
Common Stock or other securities, properties or rights.
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10. Reservation of Listing of Securities. The Company shall at times
reserve and keep available out of its authorized shares of Common
Stock, solely for the purpose of issuance upon the exercise of the
Warrants, such number of shares of Common Stock or other securities,
properties or rights as shall be issuable upon the exercise thereof.
The Company covenants and agrees that, upon exercise of the Warrants
and payment of the Exercise Price therefor, all shares of Common Stock
and other securities issuable upon such exercise shall be duly and
validly issued, fully paid, non-assessable and not subject to the
preemptive rights of any stockholder. As long as the Warrants shall be
outstanding and the Company shall have a class of its securities
registered under the Act or the Exchange Act, the Company shall use its
best efforts to cause all shares of Common Stock issuable upon the
exercise of the Warrants to be listed (subject to official notice of
issuance) on all security exchanges on which the Common Stock issued to
the public in connection herewith may then be listed and/or quoted on
NASDAQ.
11. Notices to Warrant Holders. Nothing contained in this Agreement shall
be constructed as conferring upon the Holders the right to vote or to
consent or to receive notice of stockholder in respect of any meetings
of stockholders for the election of directors or any other matter, or
as having any rights whatsoever as a stockholder of the Company. If,
however, at any time prior to the expiration of the Warrants and their
exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a
dividend or distribution payable otherwise than in cash, or a cash
dividend or distribution payable otherwise than out of current or
retained earnings, as indicated by the accounting treatment of
such dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of
the Company, or any option right or warrant to subscribe therefor;
or
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of
all or substantially all of its property, assets and business as
an entirety shall be proposed;
then, in any one or more of said events, the Company shall give written notice
of such event at least fifteen (15) days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
convertible or exchangeable securities or subscription rights, or entitled to
vote on such proposed dissolution, liquidation, winding up or sale. Such notice
shall specify such record date or the date of closing the transfer books, as the
case may be. Failure to give such notice or any defect therein shall not affect
the validity of any action taken in connection with the declaration of payment
of any such dividend, or the issuance of any convertible or exchangeable
securities or subscription rights, options or warrants, or any proposed
dissolution, winding up or sale.
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12. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly
made when delivered, or mailed by registered or certified mail, return
receipt requested:
(a) If to the registered Holder of the Warrants, to the address of
such Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3 hereof or
to such other address as the Company may designate by notice to
the Holders.
13. Supplements and Amendments. The Company and Laken may from time to time
supplement or amend this Agreement without the approval of any holders
of Warrant Certificates (other than Laken) in order to cure any
ambiguity, to correct or supplement any provision contained herein
which may be defective or inconsistent with any provision herein, or to
make any other provisions in regard to matters or questions arising
hereunder which the Company and Laken may deem necessary or desirable
and which the Company and Laken deem shall not adversely affect the
interests of the Holders of Warrant Certificates. Other amendments to
this Agreement may be made only with the written consent of the Holders
of the Majority of the Warrant Securities.
14. Successors. All the covenants and provisions of this Agreement shall be
binding upon and inure to the benefit of the Company, the Holders and
their respective successors and assigns hereunder.
15. Termination. This Agreement shall terminate at the close of business on
the fifth anniversary of the date hereof. Notwithstanding the
foregoing, the indemnification provisions of Section 6 shall survive
such termination until the close of business on the eighth anniversary
of the date hereof.
16. Governing Law: Submission to Jurisdiction. This Agreement and each
Warrant Certificate issued hereunder shall be deemed to be a contract
made under the laws of the State of New York and for all purposes shall
be construed in accordance with the laws of said State without giving
effect to the rules of said State governing the conflicts of laws.
The Company, Laken and the Holders hereby agree that any action, proceeding
or claim against it arising out of, or relating in any way to, this Agreement
shall be brought and enforced in the courts of the State of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
The Company, Laken and the Holders hereby irrevocably waive any objection to
such exclusive jurisdiction or inconvenient forum. Any such process or summons
to be served upon any of the Company, Laken and the Holders (at the option of
the party bringing such action, proceeding or claim) may be served by
transmitting a copy thereof, by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address as set forth in
Section 13 hereof. Such mailing shall be deemed personal service and shall be
legal and binding upon the party
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so served in any action, proceeding or claim. The Company, Laken and the Holders
agree that the prevailing party(ies) in any such action or proceeding shall be
entitled to recover from the other party(ies) all of its/their reasonable legal
costs and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.
17. Entire Agreement; Modification. This Agreement contains the entire
understanding between the parties hereto with respect to the subject
matter hereof and may not be modified or amended except by a writing
duly signed by the party against whom enforcement of the modification
or amendment is sought.
18. Severability. If any provision of this Agreement shall be held to be
invalid and unenforceable, such invalidity or unenforceability shall
not affect any other provision of this Agreement.
19. Captions. The caption headings of the Sections of this Agreement are
for convenience of reference only and are not intended, nor should they
be construed as, a part of this Agreement and shall be given no
substantive effect.
20. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company
and Laken and any other registered Holder(s) of the Warrant
Certificates or Warrant Shares any legal or equitable right, remedy or
claim under this Agreement; and this Agreement shall be for the sole
and exclusive benefit of the Company and Laken and any other Holder(s)
of the Warrant Certificates or Warrant Shares.
21. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, as of the day and year first written.
[SEAL] /s/ Kevin A. Lichtman
By: ___________________________________
Kevin A. Lichtman, President
ATTEST:
/s/ SIGNATURE APPEARS HERE
____________________________________
Secretary
Glenn B. Laken
/s/ Glenn B. Laken
By: ___________________________________
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EXHIBIT 4.12
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED
TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
FINANCIALWEB.COM, INC.
WARRANT TO PURCHASE COMMON STOCK
WARRANT AGREEMENT dated as of March 10th, 1999, between
FINANCIALWEB.COM, INC., a Nevada corporation (the "Company"), and JOHN J.
KATSOCK, JR. ("Katsock").
WITNESSETH
WHEREAS, this Warrant (this or the "Warrant" or, upon partial transfer
or exercise creating more than one Warrant, the "Warrants") is issued by the
Company to Katsock, or his designees, in consideration for, and as part of
Katsock's compensation in connection with a Consulting Agreement between the
Company and Katsock dated March 10th, 1999;
NOW THEREFORE, in consideration of the premises, the payment by
Katsock to the Company of One Dollar, the Consulting Agreement entered into
between the parties, the agreements herein set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. GRANT. For value received, the Company hereby certifies that
Katsock or his assignees (the "Holder") is entitled to purchase from the
Company, at any time from the date hereof until 5:30 p.m., New York time, on the
fifth anniversary of this Agreement, one million (1,000,000) shares of Common
Stock at an initial exercise price (subject to adjustment as provided in Section
7 hereof) of $4.00 per share of Common Stock, subject to the terms and
conditions of this Warrant. The grant of this Warrant is irrevocable by the
Company.
2. COMPANY REPRESENTATION. The Company represents that it has the
requisite authority to issue this Warrant and the Warrant Shares (as defined
below), that this Warrant is valid, binding and enforceable against the Company
and that the Warrant Shares, when issued pursuant to the exercise of this
Warrant, will be validly issued, fully paid and nonassessable.
<PAGE>
3. EXERCISE OF WARRANT.
3.1 METHOD OF EXERCISE. This Warrant is exercisable at an initial
exercise price (subject to adjustment as provided in Section 7 hereof) of $4.00
per share of Common Stock payable by certified or official bank check in New
York Clearing House funds. Upon surrender of this Warrant with the annexed
Warrant Subscription Form duly executed, together with payment of the Exercise
Price (as hereinafter defined) for the shares of Common Stock issuable upon
exercise of the Warrant (the "Warrant Shares") at the Company's principal
offices at 201 Park Place, Altamonte Springs, Florida, 32701, the registered
holder of a Warrant ("Holder" or "Holders") shall be entitled to receive a
certificate or certificates for the shares of Common Stock so purchased. The
purchase rights represented by the Warrant are exercisable at the option of the
Holder thereof, in whole or in part (but not as to fractional shares of the
Common Stock underlying the Warrant). The Warrant may be exercised to purchase
all or part of the shares of Common Stock purchasable under the Warrant, the
Company shall cancel said Warrant upon the surrender thereof and shall execute
and deliver a new Warrant of like tenor for the balance of the shares of Common
Stock.
3.2 EXERCISE BY SURRENDER OF WARRANT. In addition to the method
of payment set forth in Section 3.1 and in lieu of any cash payment required
thereunder, the Holder(s) of the Warrant shall have the right at any time and
from time to time, provided that the Common Stock is registered under the
Securities and Exchange Act of 1934 (the "Exchange Act"), to exercise the
Warrant in full or in part by surrendering the Warrant in the manner specified
in Section 3.1 in exchange for the number of shares of Common Stock equal to the
product of (x) the number of shares as to which the Warrant is being exercised
multiplied by (y) a fraction, the numerator of which is the Market Price (as
defined in Section 7.1(vi) hereof) of the Common Stock less the Exercise Price
and the denominator of which is such Market Price.
Solely for the purposes of this Section 3.2, Market Price shall be
calculated either (i) on the date on which the annexed Warrant Subscription Form
is deemed to have been sent to the Company pursuant to Section 12 hereof
("Notice Date") or (ii) as the average of the Market Price for each of the five
(5) trading days preceding the Notice Date, whichever of (i) or (ii) is greater.
4. ISSUANCE OF CERTIFICATES. Upon the exercise of this Warrant, the
issuance of certificates for shares of Common Stock or other securities,
properties or rights underlying this Warrant shall be made forthwith (and in any
event such issuance shall be made within five business days thereafter) without
charge to the Holder thereof including, without limitation, any tax which may be
payable in respect of the issuance thereof, and such certificates shall (subject
to the provisions of Section 5 and 7 hereof) be issued in the name of, or in
such names as may be directed by, the Holder thereof; provided, however, that
the Company shall not be required to pay any tax which may be payable in respect
to any transfer involved in the issuance and delivery of any such certificates
in a name other than that of the Holder and the Company shall not be required to
issue or deliver such certificates unless or until the person or people
requesting the
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issuance thereof shall have paid to the Company the amount of such tax or it
shall be established to the satisfaction of the Company that such tax has been
paid.
This Warrant and the certificates representing the shares of Common
Stock (and/or other securities, property or rights issuable upon exercise of
this Warrant) shall be executed on behalf of the Company by the manual or
facsimile signature of the then present Chairman or Vice Chairman of the Board
of Directors or President or Vice President of the Company under its corporate
seal reproduced thereon, attested to by the manual or facsimile signature of the
then present Secretary or Assistant Secretary of the Company. This Warrant
shall be dated the date of execution by the Company upon initial issuance,
division, exchange, substitution or transfer.
5. EXERCISE PRICE.
5.1 INITIAL AND ADJUSTED EXERCISE PRICE. Except as otherwise
provided in Section 7 hereof, this Warrant shall be exercisable to purchase
Common Stock at a price of $4.00 per share. The adjusted exercise price shall be
the price which shall result from time to time from any and all adjustments of
the initial exercise price in accordance with the provisions of Section 7
hereof.
5.2 EXERCISE PRICE. The term "Exercise Price" herein shall mean
the initial exercise price or the adjusted exercise price, depending upon the
context.
6. RESTRICTION AND REGISTRATION.
6.1 RESTRICTION. Subject to the fulfillment of the registration
obligations set forth below, this Warrant and the Warrant Shares (collectively,
the "Warrant Securities") have not been registered under the Securities Act of
1933 (the "Act") for public resale. Upon exercise, in part or in whole, of this
Warrant, certificates representing the shares of Common Stock and any of the
other securities issuable upon exercise of this Warrant shall bear the following
legend:
The Securities represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act") for public
resale, and may not be offered or sold except pursuant to (i) an
effective registration statement under the Act, (ii) to the extent
applicable, Rule 144 under the Act (or any similar rule under such
Act relating to the disposition of securities), or (iii) an opinion
of counsel, if such opinion shall be reasonably satisfactory to the
issuer, that an exemption from registration under such Act is
available.
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6.2 REGISTRATION.
(1) RESALE REGISTRATION. Within 30 days of the effectiveness
of its registration statement pursuant to the Securities Exchange Act of 1934
(the "Exchange Act") on Form 10-SB, the Company shall file a registration
statement on Form S-1, S-8 or SB-2 or other appropriate form with the Securities
Exchange Commission (the "Commission") registering the Warrant Shares for resale
and will use its best efforts to cause such registration statement to become
effective as soon thereafter as possible.
(2) PIGGYBACK REGISTRATION. If, at any time commencing after
the date hereof until the expiration of the Warrant Exercise Term, the Company
proposes to register any of its securities under the Act (other than in
connection with a merger or pursuant to Form S-8, S-4 or comparable registration
statement) it will give written notice by registered mail, at least thirty (30)
days prior to the filing of each such registration statement, to Katsock and to
all other Holders of the Warrant Securities, of its intention to do so. If
Katsock or other Holders of the Warrant Securities notify the Company within
twenty (20) days after receipt of any such notice of its or their desire to
include any Warrant Shares in such proposed registration statement, the Company
shall afford Katsock and such Holders of the Warrant Securities the opportunity
to have any such Warrant Shares registered under such registration statement.
Notwithstanding the provisions of this Section 6.2(b), the Company shall have
the right at any time after it shall have given written notice pursuant to this
Section 6.2(b) (irrespective of whether a written request for inclusion of any
such securities shall have been made) to elect to postpone or not to file any
such proposed registration statement, or to withdraw the same after filing but
prior to the effective date thereof.
6.3 DEMAND REGISTRATION
(1) So long as the Company shall have any of its securities
registered under the Exchange Act, at any time commencing after the date hereof
until expiration of the Warrant Exercise Term, the Holders of the Warrant
Securities representing a "Majority" (as hereinafter defined) of such securities
(assuming the exercise of all of the then outstanding Warrants) shall have the
right (which right is in addition to the registration rights under Section 6.2
hereof), exercisable by written notice to the Company, to have the Company
prepare and file with the Commission, on two (2) occasions, a registration
statement and such other documents, including a prospectus, as may be necessary
in the opinion of counsel for the Holders, in order to comply with the
provisions of the Act, so as to permit a public offering and sale of their
respective Warrant Shares for up to two (2) years by such Holder and any other
Holders of the Warrants and/or Warrant Shares who notify the Company within ten
(10) days after receiving notice from the Company of such request.
(2) The Company covenants and agrees to give written notice
of any registration request under this Section 6.3 by any Holder or Holders to
all other registered Holders of the Warrant Securities within ten (10) days form
the date of the receipt of any such
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registration request.
(3) All expenses (other than underwriting discounts and
commissions) incurred in connection with registration, filings or qualification
pursuant to the first registration request made pursuant to subsection (a) of
this Section 6.3, including, without limitation, all registration, listing,
filing, and qualification fees, printers and accounting fees and the fees and
disbursements of counsel for the Holders shall be borne by the Company. Upon a
second registration request pursuant to subsection (a) of this Section 6.3, the
Holders requesting registration shall bear such costs on a pro-rata basis with
respect to the Warrant Shares in respect of which they are requesting
registration.
(4) Notwithstanding anything to the contrary contained herein,
if the Company shall not have filed a registration statement for the Warrant
Shares within the time period specified in Section 6.4(a) hereof pursuant to the
written notice specified in Section 6.3(a) of a Majority of the Holders of the
Warrant Securities, the Company agrees that upon the written notice of election
of a Majority of the Holders of the Warrant Securities it shall repurchase (i)
any and all Warrant Securities at the higher of the Market Price (as defined in
Section 7.1(vi) per share of Common Stock on (x) the date of the notice sent
pursuant to Section 6.3(a) or (y) the expiration of the forty-five (45) day
period specified in Section 6.4(a) and (ii) any and all Warrants at such Market
Price less the exercise price of such Warrant. Such repurchase shall be in
immediately available funds and shall close within two (2) days after the later
of (i) the expiration of the period specified in Section 6.4(a) or (ii) the
delivery of the written notice of election specified in this Section 6.3(d).
6.4 COVENANTS OF THE COMPANY WITH RESPECT TO REGISTRATION. In
connection with any registration under Sections 6.2 or 6.3 hereof, the Company
covenants and agrees as follows:
(1) The Company shall use its best efforts to file a
registration statement within forty-five (45) days of receipt of any demand
therefor, shall use its best efforts to have any registration statement declared
effective at the earliest possible time, and shall furnish each Holder desiring
to sell Warrant Shares such number of prospectuses as shall reasonably be
requested.
(2) As expeditiously as possible prepare and file with the
Commission any amendments and supplements to the registration statement and the
prospectus included therein as may be necessary to keep the registration
statement effective until the later of (i) the date when all Warrant Shares
registered have been sold, or (ii) two years from the effective date of the
registration statement.
(3) The Company shall pay all costs (excluding any
underwriting or selling commissions or other charges of any broker-dealer acting
on behalf of Holder(s), fees and expenses in connection with all registration
statements filed pursuant to
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Section 6.2 and 6.3(a) hereof including, without limitation, the Company's legal
and accounting fees. If the Company shall fail to comply with the provisions of
Section 6.4(a) or (b), the Company shall, in addition to any other equitable or
other relief available to the Holder(s), be liable for any or all damages due to
loss of profit sustained by the Holder(s) requesting registration of their
Warrant Securities.
(4) The Company shall take all necessary action which may
be required in qualifying or registering the Warrant Shares included in the
registration statement for offering and sale under the securities or blue sky
laws of such states as reasonably are requested by the Holder(s), provided that
the Company shall not be obligated to execute or file any general consent to
service of process or to qualify as a foreign corporation to do business under
the laws of any such jurisdiction.
(5) The Company shall indemnify the Holder(s) of the Warrant
Shares to be sold pursuant to any registration statement and each person, if
any, who controls such Holders within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage, expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which any of them may
become subject.
(6) The Holder(s) of the Warrant Shares to be sold pursuant
to a registration statement, and their successors and assigns, shall severally,
and not jointly, indemnify the Company, its officers and directors and each
person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or
expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which
they may become subject under the Act, the Exchange Act or otherwise, arising
from written information furnished by or on behalf of such Holders, or their
successors or assigns, for specific inclusion in such a registration statement.
(7) Nothing contained in this Agreement shall be construed
as requiring the Holder(s) to exercise their Warrant prior to the initial filing
of any registration statement or the effectiveness thereof.
(8) The Company shall not permit any securities other than
the Warrant Shares to be included in any registration statement filed pursuant
to Section 6.3 hereof, or permit any other registration statement to be or
remain effective during the effectiveness of a registration statement filed
pursuant to Section 6.3 hereof, without the prior written consent of the Holders
of the Warrant Securities representing a Majority of such securities (assuming
an exercise of all of the Warrants if there is more than one).
(9) The Company shall furnish to each Holder participating
in an offering including Warrant Shares, pursuant to Sections 6.2 or 6.3 hereof,
and to each
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underwriter, if any, a signed counterpart, addressed to such Holder or
underwriter, of (i) an opinion of counsel to the Company, dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, an opinion dated the date of the closing under the
underwriting agreement), and (ii) a "cold comfort" letter dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, a letter dated the date of the closing under the
underwriting agreement) signed by the independent public accountants who have
issued a report on the Company's financial statements included in such
registration statement, in each case covering substantially the same matters
with respect to such registration statement (and the prospectus included
therein) and, in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements, as are customarily covered
in opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities.
(10) The Company shall as soon as practicable after the
effective date of a registration statement relating to any Warrant Shares
pursuant to Section 6.2 or 6.3 hereof, and in any event within fifteen (15)
months thereafter, make "generally available to its security holders" (within
the meaning of Rule 158 under the Act) an earnings statements (which need not be
audited) complying with Section 11(a) of the Act and covering a period of at
least twelve (12) consecutive months beginning after the effective date of the
registration statement.
(11) The Company shall deliver promptly to each Holder
participating in an offering including any Warrant Shares pursuant to Sections
6.2 and 6.3 hereof, who so requests, and to the managing underwriter, copies of
all correspondence between the Commission and the Company, its counsel or
auditors and all memoranda relating to discussions with the Commission or its
staff with respect to the registration statement and permit each Holder and
underwriter to do such investigation, upon reasonable advance notice, with
respect to information contained in or omitted from the registration statement
as it deems reasonably necessary to comply with applicable securities laws or
rules of the National Association of Securities Dealers, Inc. ("NASD"). Such
investigation shall include access to books, records and properties and
opportunities to discuss the business of the Company with its officers and
independent auditors, all to such reasonable extent and at such reasonable times
and as often as any such Holder shall reasonably request as it deems necessary
to comply with applicable securities laws and NASD rules.
(12) With respect to a registration pursuant to Section 6.3
hereof, if requested by the Holders holding a Majority of the Warrant Shares,
the Company shall enter into an underwriting agreement with the managing
underwriter selected for such underwriting by Holders holding a Majority of the
Warrant Shares requested to be included in such underwriting. Such managing
underwriter(s) shall be satisfactory to the Company and each Holder and such
agreement shall be satisfactory in form and substance to the Company, each
Holder and such managing underwriters, and shall contain such representations,
warranties and covenants by the Company and such other terms as are customarily
contained in agreements of
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that type used by the managing underwriter. The Holders shall be parties to any
underwriting agreement relating to an underwritten sale of their Warrant Shares
and may, at their option, require that any or all the representations,
warranties and covenants of the Company to or for the benefit of such Holders.
Such Holders shall not be required to make any representations or warranties to
or agreements with the Company or the underwriters except as they may relate to
such Holders and their intended methods of distribution.
(13) In addition to the Warrant Shares, upon the written
request therefor by any Holder(s), the Company shall include in the registration
statement any other securities of the Company held by such Holder(s) as of the
date of filing of such registration statement, including without limitation,
restricted shares of Common Stock, options, warrants or any other securities
convertible into shares of Common Stock.
(14) For purposes of this Agreement, the term "Majority" in
reference to the Holders of Warrants or Warrant Shares, shall mean in excess of
fifty percent (50%) of the outstanding Warrants or Warrant Shares that (i) are
not held by the Company, an affiliate (excluding Katsock), officer, creditor,
employee or agent thereof or any of their respective affiliates, members of
their family, persons acting as nominees or in conjunction therewith or (ii)
have not been resold to the public pursuant to a registration statement filed
with the Commission under the Act.
7. ADJUSTMENTS TO EXERCISE PRICE AND NUMBER OF SECURITIES.
7.1 COMPUTATION OF ADJUSTED EXERCISE PRICE. Except as
hereinafter provided, in case the Company shall at any time after the date
hereof issue or sell any shares of Common Stock (other than the issuance or
sales referred to in Section 7.6 hereof), including shares held in the Company's
treasury and shares of Common Stock issued upon the exercise of any options,
rights or warrants, to subscribe for shares of Common Stock and shares of Common
Stock issued upon the direct or indirect conversion or exchange of securities
for shares of Common Stock, for a consideration per share less than the Exercise
Price in effect immediately prior to the issuance or sale of such shares or the
"Market Price" as defined in Section 7.1(vi) hereof per share of Common Stock on
the date immediately prior to the issuance of sale of such shares, or without
consideration, then forthwith upon such issuance or sale, the Exercise Price
shall (until another such issuance or sale) be reduced to the price (calculated
to the nearest full cent) equal to the quotient derived by dividing (A) an
amount equal to the sum of (X) the product of (a) the lower of (i) the Exercise
Price in effect immediately prior to such issuance or sale and (ii) the Market
Price per share of Common Stock on the date immediately prior to the issuance or
sale of such shares, in either event, reduced, but not to a number which is
below .001, by the positive difference, if any, between the (u) Market Price per
share of Common Stock on the date immediately prior to the issuance or sale and
(v) the amount per share received in connection with such issuance or sale,
multiplied by (b) the total number of shares of Common Stock outstanding
immediately prior to such issuance or sale, plus (Y) the aggregate of the amount
of all consideration, if any, received by the Company upon such issuance or
sale, by (B) the total
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number of shares of Common Stock outstanding immediately after such issuance or
sale; provided, however, that in no event shall the Exercise Price be adjusted
pursuant to this computation to an amount in excess of the Exercise Price in
effect immediately prior to such computation, except in the case of a
combination of outstanding shares of Common Stock, as provided by Section 7.3
hereof.
For the purposes of this Section 7 the term Exercise Price shall mean
the Exercise Price per share of Common Stock set forth in Section 5 hereof, as
adjusted from time to time pursuant to the provisions of this Section 7.
For purposes of any computation to be made in accordance with this
Section 7.1, the following provisions shall be applicable:
(1) In case of the issuance or sale of shares of Common Stock
for a consideration part or all of which shall be cash, the amount of the cash
consideration, therefor shall be deemed to be the amount of cash received by the
Company for such shares (or, if shares of Common Stock are offered by the
Company for subscription, the subscription price, or, if either of such
securities shall be sold to underwriters or dealers for public offering without
a subscription offering, the public offering price, before deducting therefrom
any compensation paid or discount allowed in the sale, underwriting or purchase
thereof by underwriters or dealers or others performing similar services, or any
expenses incurred in connection therewith and less any amounts payable to
security holders or any affiliate thereof, including without limitation, any
employment agreement, royalty, consulting agreement, covenant not to compete,
earnout or contingent payment right or similar arrangement, agreement or
understanding, whether oral or written; all such amounts shall be valued at the
aggregate amount payable thereunder whether such payments are absolute or
contingent and irrespective of the period or uncertainty of payment, the rate of
interest, if any, or the contingent nature thereof.
(2) In case of the issuance or sale (otherwise than as a
dividend or other distribution on any stock of the Company) of shares of Common
Stock for a consideration part or all of which shall be other than cash, the
amount of the consideration therefor other than cash shall be deemed to be the
value of such consideration as determined in good faith by the Board of
Directors of the Company.
(3) Shares of Common Stock issuable by way of dividend or
other distribution on any stock of the Company shall be deemed to have been
issued immediately after the opening of business on the day following the record
date for the determination of stockholders entitled to receive such dividend or
other distribution and shall be deemed to have been issued without
consideration.
(4) The reclassification of securities of the Company other
than shares of Common Stock into securities including shares of Common Stock
shall be deemed to involve the issuance of such shares of Common Stock for a
consideration other than
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cash immediately prior to the close of business on the date fixed for the
determination of security holders entitled to receive such shares, and the value
of the consideration allocable to such shares of Common Stock shall be
determined as provided in subsection (ii) of this Section 7.1.
(5) The number of shares of Common Stock at any one time
outstanding shall include the aggregate number of shares issued or issuable
(subject to readjustment upon the actual issuance thereof) upon the exercise of
then outstanding options, rights, warrants and upon the conversion or exchange
of then outstanding convertible or exchangeable securities.
(6) As used herein the phrase "Market Price" at any date
shall be deemed to be the last reported sale price, or, in case no such reported
sale takes place on such day, the average of the last reported sale prices for
the last three (3) trading days, in either case officially reported by the
principal securities exchange on which the Common Stock is listed or admitted to
trading, or, if the Common Stock is not listed or admitted to trading on any
national securities exchange, the average closing bid price as furnished by the
NASD through NASDAQ or similar organization if NASDAQ is no longer reporting
such information, or if the Common Stock is not quoted on NASDAQ, the average
closing bid price of the Common Stock quoted on the OTC Bulletin Board or by the
National Quotation Bureau or similar service, or if not quoted by such service,
determined in good faith by resolution of the Board of Directors of the Company,
based on the best information available to it.
7.2 OPTIONS, RIGHTS, WARRANTS AND CONVERTIBLE AND EXCHANGEABLE
SECURITIES. In case the Company shall at any time after the date hereof issue
options, rights or warrants to subscribe for shares of Common Stock, or issue
any securities convertible into or exchangeable for shares of Common Stock, for
a consideration per share less than the Exercise Price in effect or the Market
Price immediately prior to the issuance of such options, rights or warrants, or
such convertible or exchangeable securities, or without consideration, the
Exercise Price in effect immediately prior to the issuance of such options,
rights or warrants, or such convertible or exchangeable securities, as the case
may be, shall be reduced to a price determined by making a computation in
accordance with the provisions of Section 7.1 hereof, provided that:
(1) The aggregate maximum number of shares of Common Stock,
as the case may be, issuable under such options, rights or warrants shall be
deemed to be issued and outstanding at the time such options, rights or warrants
were issued, and for a consideration equal to the minimum purchase price per
share provided for in such options, rights or warrants at the time of issuance,
plus the consideration (determined in the same manner as consideration received
on the issue or sale of shares in accordance with the terms of the Warrant), if
any, received by the Company for such options, rights or warrants.
(2) The aggregate maximum number of shares of Common Stock
issuable upon conversion or exchange of any convertible or exchangeable
securities shall be deemed to be issued and outstanding at the time of issuance
of such securities, and for a
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consideration equal to the consideration (determined in the same manner as
consideration received on the issue or sale of shares of Common Stock in
accordance with the terms of the Warrant) received by the Company for such
securities, plus the minimum consideration, if any, receivable by the Company
upon the conversion or exchange thereof.
(3) If any change shall occur in the price per share provided
for in any of the options, rights or warrants referred to in subsection (a) of
this Section 7.2, or in the price per share at which the securities referred to
in subsection (b) of this Section 7.2 are convertible or exchangeable, such
options, rights or warrants or conversion or exchange rights, as the case may
be, shall be deemed to have expired or terminated on the date when such price
change became effective in respect to shares not theretofore issued pursuant to
the exercise or conversion or exchange thereof, and the Company shall be deemed
to have issued upon such date new options, rights or warrants or convertible or
exchangeable securities at the new price in respect of the number of shares
issuable upon the exercise of such options, rights or warrants or the conversion
or exchange of such convertible or exchangeable securities.
7.3 SUBDIVISION AND COMBINATION. In case the Company shall at any
time subdivide or combine the outstanding shares of Common Stock, the Exercise
Price shall forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination.
7.4 ADJUSTMENT IN NUMBER OF SECURITIES. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Section 7, the number of
securities issuable upon the exercise of the Warrant shall be adjusted to the
nearest full amount by multiplying a number equal to the Exercise Price in
effect immediately prior to such adjustment by the number of Warrant Securities
issuable upon exercise of the Warrant immediately prior to such adjustment and
dividing the product so obtained by the adjusted Exercise Price.
7.5 DEFINITION OF COMMON STOCK. For the purpose of this Agreement,
the term "Common Stock" shall mean (i) the class of stock designated as Common
Stock in the Certificate of Incorporation of the Company as may be amended as of
the date hereof, or (ii) any other class of stock resulting from successive
changes or reclassifications of such Common Stock consisting solely of changes
in par value, or from par value to no par value, or from no par value to par
value. In the event that the Company shall after the date hereof issue
securities with greater or superior voting rights than the shares of Common
Stock outstanding as of the date hereof, the Holder, at its option, may receive
upon exercise of the Warrant either shares of Common Stock or a like number of
such securities with greater or superior voting rights.
7.6 MERGER OR CONSOLIDATION. In case of any consolidation of the
Company with, or merger of the Company with or into, another corporation (other
than a consolidation or merger which does not result in any reclassification or
change of the outstanding Common Stock), the corporation formed by such
consolidation or merger shall execute and deliver to the Holder a supplemental
warrant agreement providing that the holder of each
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Warrant then outstanding or to be outstanding shall have the right thereafter
(until the expiration of such Warrant) to receive upon exercise of such warrant,
the kind and amount of shares of stock and other securities and property
receivable upon such consolidation or merger, by a holder of the number of
shares of Common Stock of the Company for which such Warrant might have been
exercised immediately prior to such consolidation, merger, sale or transfer.
Such supplemental warrant agreement shall provide for adjustments which shall be
identical to the adjustments provided in Section 7. The above provision of this
subsection shall similarly apply to successive consolidations or mergers.
7.7 NO ADJUSTMENT OF EXERCISE PRICE IN CERTAIN CASES. No adjustment
of the Exercise Price shall be made:
(1) Upon issuance or sale of the Warrant or the shares of
Common Stock issuable upon the exercise of the Warrant; or
(2) If the amount of said adjustment does not amount to at
least two cents ($0.02) per security issuable upon exercise of the Warrant,
provided, however, that in such case any adjustment that would otherwise be
required then to be made shall be carried forward and shall be made at the time
of and together with the next subsequent adjustment which, together with any
adjustment so carried forward, shall amount to at least two cents ($0.02) per
security issuable upon exercise of the Warrant.
7.8 DIVIDENDS AND OTHER DISTRIBUTIONS. In the event that the
Company shall at any time prior to the exercise of the Warrants declare a
dividend (other than a dividend consisting solely of shares of Common Stock) or
otherwise distribute to its stockholders any assets, properties, rights,
evidence of indebtedness, securities (other than shares of Common Stock),
whether issued by the Company or by another, the Holders of the unexercised
Warrants shall thereafter be entitled, in addition to the shares of Common Stock
or other securities and property receivable upon the exercise thereof, to
receive, upon the exercise of such Warrants, the same property, assets, rights,
evidences of indebtedness, securities or any other thing of value that they
would have been entitled to receive at the time of such dividend or distribution
as if the Warrants had been exercised immediately prior to such dividend or
distribution. At the time of any such dividend or distribution, the Company
shall make appropriate reserves to ensure the timely performance of the
provisions of this Subsection 7.8.
8. EXCHANGE AND REPLACEMENT OF WARRANT. This Warrant is exchangeable
without expense, upon its surrender by the registered Holder at the principal
office of the Company, for a new Warrant of like tenor and date representing in
the aggregate the right to purchase the same number of securities in such
denominations as shall be designated by the Holder thereof at the time of such
surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of any Warrant, and, in case of
loss, theft or destruction, of
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indemnity or security reasonably satisfactory to it, and reimbursement to the
Company of all reasonable expenses incidental thereto, and upon surrender and
cancellation of the Warrant, if mutilated, the Company will make and deliver a
new Warrant of like tenor, in lieu thereof.
9. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required to
issue certificates representing fractions of shares of Common Stock upon the
exercise of the Warrant, nor shall it be required to issue script or pay cash in
lieu of fractional interests, it being the intent of the parties that all
fractional interests shall be eliminated by rounding any fraction up to the
nearest whole number or shares of Common Stock or other securities, properties
or rights.
10. RESERVATION AND LISTING OF SECURITIES. The Company shall at all times
reserve and keep available out of its authorized shares of Common Stock, solely
for the purpose of issuance upon the exercise of the Warrant, such number of
shares of Common Stock or other securities, properties or rights as shall be
issuable upon the exercise thereof. The Company covenants and agrees that, upon
exercise of the Warrant and payment of the Exercise Price therefor, all shares
of Common Stock and other securities issuable upon such exercise shall be duly
and validly issued, fully paid, non-assessable and not subject to the preemptive
rights of any stockholder. As long as the Warrant shall be outstanding and the
Company shall have a class of its securities registered under the Act or the
Exchange Act, the Company shall use its best efforts to cause all shares of
Common Stock issuable upon the exercise of the Warrant to be listed (subject to
official notice of issuance) on all security exchanges on which the Common Stock
issued to the public in connection herewith may then be listed and/or quoted on
NASDAQ.
11. NOTICES TO WARRANT HOLDERS. Nothing contained in this Warrant shall be
constructed as conferring upon the Holders the right to vote or to consent or to
receive notice of stockholder in respect of any meetings of stockholders for the
election of directors or any other matter, or as having any rights whatsoever as
a stockholder of the Company. If, however, at any time prior to the expiration
of the Warrant and its exercise, any of the following events shall occur:
(1) the Company shall take a record of the holders of its
shares of Common Stock for the purpose of entitling them to receive a dividend
or distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings, as
indicated by the accounting treatment of such dividend or distribution on the
books of the Company; or
(2) the Company shall offer to all the holders of its Common
Stock any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company, or
any option right or warrant to subscribe therefor; or
(3) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale of all or
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substantially all of its property, assets and business as an entirety shall be
proposed;
then, in any one or more of said events, the Company shall give written notice
of such event at least fifteen (15) days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
convertible or exchangeable securities or subscription rights, or entitled to
vote on such proposed dissolution, liquidation winding up or sale. Such notice
shall specify such record date or the date of closing the transfer books, as the
case may be. Failure to give such notice or any defect therein shall not affect
the validity of any action taken in connection with the declaration or payment
of any such dividend, or the, issuance of any convertible or exchangeable
securities or subscription rights, options or warrants, or any proposed
dissolution, winding up or sale.
12. NOTICES. All notices, requests, consent sand other communications
hereunder shall be in writing and shall be deemed to have been duly made when
delivered, or mailed by registered or certified mail, return receipt requested:
(1) If to the registered Holder of the Warrant, to the address
of such Holder as shown on the books of the Company; or
(2) If to the Company, to the address set forth in Section 3
hereof or to such other address as the Company may designate by notice to the
Holders.
13. SUPPLEMENTS AND AMENDMENTS. The Company and Katsock may from time to
time supplement or amend this Warrant without the approval of any Holders of the
Warrants (other than Katsock) in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be defective or inconsistent
with any provision herein, or to make any other provisions in regard to matters
or questions arising hereunder which the Company and Katsock may deem necessary
or desirable and which the Company and Katsock deem shall not adversely affect
the interests of the Holders of a Warrant. Other amendments to this Agreement
may be made only with the written consent of the Holders of the Majority of the
Warrants.
14. SUCCESSORS. All the covenants and provisions of this Agreement shall be
binding upon and inure to the benefit of the Company, the Holders and their
respective successors and assigns hereunder.
15. TERMINATION. This Warrant shall terminate on the fifth anniversary of
the date hereof. Notwithstanding the foregoing, the indemnification provisions
of Section 6 shall survive such termination until the close of business on the
eighth anniversary of the date hereof.
16. GOVERNING LAW: SUBMISSION TO JURISDICTION. This Warrant and any other
Warrants issued hereunder shall be deemed to be a contract made under the laws
of the State of New York and for all purposes shall be construed in accordance
with the laws of said
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State without giving effect to the rules of said State governing the conflicts
of laws.
The Company, Katsock and the Holders hereby agree that any action,
proceeding or claim against it arising out of, or relating in any way to, this
Warrant shall be brought and enforced in the courts of the State of New York,
and irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company, Katsock and the Holders hereby irrevocably waive any
objection to such exclusive jurisdiction or inconvenient forum. Any such process
or summons to be served upon any of the Company, Katsock and the Holders (at the
option of the party bringing such action, proceeding or claim) may be served by
transmitting a copy thereof, by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address as set forth in
Section 12 hereof. Such mailing shall be deemed personal service and shall be
legal and binding upon the party so served in any action, proceeding or claim.
The Company, Katsock and the Holders agree that the prevailing party(ies) in any
such action or proceeding shall be entitled to recover from the other party(ies)
all of its/their reasonable legal costs and expenses relating to such action or
proceeding and/or incurred in connection with the preparation therefor.
17. ENTIRE AGREEMENT; MODIFICATION. This Warrant contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and, subject to Section 13 hereof, may not be modified or amended except
by a writing duly signed by the party against whom enforcement of the
modification or amendment is sought.
18. SEVERABILITY. If any provision of this Warrant shall be held to be
invalid and unenforceable, such invalidity or unenforceability shall not affect
any other provision of this Warrant.
19. CAPTIONS. The caption headings of the Sections of this Agreement are for
convenience of reference only and are not intended, nor should they be construed
as, a part of this Agreement and shall be given no substantive effect.
20. BENEFITS OF THIS WARRANT. Nothing in this Warrant shall be construed to
give to any person or corporation other than the Company and Katsock and any
other registered Holders(s) of the Warrants or Warrant Shares any legal or
equitable right, remedy or claim under this Warrant; and this Warrant shall be
for the sole and exclusive benefit of the Company and Katsock and any other
Holder(s) of the Warrants.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its authorized officer and properly attested, as of the day and year
first written.
FINANCIALWEB.COM, INC.
By: _________________________________
Kevin A. Lichtman, President
[SEAL] ATTEST:
________________________________
Secretary
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FINANCIALWEB.COM, INC.
WARRANT SUBSCRIPTION FORM
STOCK PURCHASE WARRANT DATED AS OF FEBRUARY __, 1999
To: FinancialWeb.com, Inc.
Attention: Kevin A. Lichtman
201 Park Place
Altamonte Springs, Florida 32701
Re: EXERCISE OF WARRANT TO PURCHASE COMMON STOCK
Pursuant to the terms of that certain Warrant to Purchase Common
Stock, dated as of February __, 1999 (the "Warrant"), which Warrant is attached
to this Subscription Form, the undersigned hereby subscribes for
whole shares of the Company's $.001 par value Common Stock, at a price of $4.00
per share or at such other price as may be applicable in accordance with the
terms of the Warrant.
TOTAL SUBSCRIPTION PRICE: $______________________________
The undersigned hereby directs and requires that the shares of the
Common Stock being subscribed for hereby may be issued and delivered as follows:
Full Name of Shareholder: ______________________________________
Full Address: __________________________________________________
Number of Shares for which Subscribed: _________________________
DATED:_______________________________
___________________________
John J. Katsock, Jr.
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NOTE: Unless exercised alternatively by surrender of the Warrant pursuant
to Section 3.2 of the Warrant, the Subscription Form must be signed
and accompanied by payment to FinancialWeb.com, Inc. in full, of the
appropriate subscription price, in cash or by money order, bank draft,
or certified check, payable to the Company at its principal place of
business in Altamonte Springs, Florida, and must be received by the
Company prior to 5:00 p.m., New York time, on _______________, 2004
(the "Expiration Date"), after which time all rights represented by
the attached Stock Purchase Warrant will expire.
FinancialWeb.com, Inc. accepts no responsibility for the
delivery to it of this Subscription Form or the accompanying Stock
Purchase Warrant. Sufficient time should be allowed for the delivery
of these documents prior to the Expiration Date.
Upon surrender of this Subscription Form and the Stock
Purchase Warrant, and payment of the subscription price as provided
therein, the Company will issue the number of shares of Common Stock
subscribed for, and such persons or entities will thereupon be
subscribed for that number of shares described in the Stock Purchase
Warrant. The Company shall issue a further Stock Purchase Warrant in
respect of the unsubscribed shares of Common Stock not subscribed for
hereby.
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EXHIBIT 4.13
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD, OFFERED
FOR SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS THEY ARE SO REGISTERED OR
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
FINANCIALWEB. COM, INC.
CONVERTIBLE NOTE DUE FEBRUARY 11, 2000
Principal Amount: $50,000.
FINANCIALWEB. COM, INC. a Nevada corporation (the "Company"), for value
received, hereby promises to pay Mr. Larry Riesberg (the "Holder)", or
registered assigns, on February 11, 2000, the principal amount of Fifty thousand
dollars ($50,000) (or so much thereof as shall not have been prepaid or
surrendered for conversion) in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, at the offices of the Holder located at 69
Lincolnshire Rd., Lincolnshire, IL. 60609 together with interest (computed on
the basis of 360-day year on twelve 30 days months) on the unpaid portion of the
principal amount hereof at the interest rate of the Chase Manhattan Bank, New
York prime rate (as amended from time to time) plus two (2%) per annum (the
"Interest Rate").
Section 1. THE NOTES.
Section 1.01. Registration. Transfer and Exchange of Convertible Notes.
The Company shall keep at its principal office a register in which the Company
will provide for registration, transfer and exchange of Convertible Notes.
Subject to compliance with applicable securities laws, the Holder (as defined
below) of any Convertible Note may, at its option and either in person or by
duly authorized attorney, surrender the same at said office for registration of
transfer or exchange, accompanied, if surrendered for transfer, by a written
instrument of transfer duly executed by said Holder or attorney. If any Holder
shall so request transfer or exchange of a Convertible Note held by it, the
Company shall, within a reasonable time thereafter, without expense to such
Holder (other than transfer taxes, if any) deliver to or upon its order one or
more Convertible Notes in the same unpaid aggregate principal amount as the
Convertible Note so surrendered, each dated the date to which interest has been
paid on the Convertible Note so surrendered, in the principal amount of $5,000
or any multiple thereof, and registered in such name or names, or payable to
such Person or Persons, or order, as shall be specified by the Holder making
such request. The Company may deem and treat the Holder of any Convertible Note
as the absolute owner of such Convertible Note for the purpose of receiving
payment of or on account of the principal and interest on such Convertible Note
and for the purposes of any notices, waivers or consent thereunder, and payment
of any Convertible Note shall be made only to or upon the order in writing of
such Holder.
Section 1.02. Loss. Theft. Destruction or Convertible Notes. Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of this Convertible Note and, in the case of any such loss, theft
or destruction, upon receipt of indemnity reasonably satisfactory to the
Company, or in the case of any such mutilation, upon surrender and cancellation
of this Convertible Note, the Company will make and deliver, in lieu of such
lost, stolen, destroyed or mutilated Convertible Note, a new Convertible Note of
like tenor and unpaid principal amount and dated as of the date from which
unpaid interest has then accrued on the Convertible Note so lost, stolen,
destroyed or mutilated.
Section 2. DEFINITIONS.
Section 2.01. Terms Defined. The terms defined in this Section 2.01
(except as herein otherwise expressly provided) or unless the context otherwise
requires for all purposes of this Convertible Note shall have the respective
meanings specified in this Section 2.01.
Common Stock: The term "Common Stock" means shares of the Company's
Common Stock, par value $.001 per share.
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Company: The term "Company" means FINANCIALWEB. COM, INC. a Nevada
corporation, and any successor corporation to the Company (including the
corporation surviving any subsequent merger).
Current Conversion Price: The term "Current Conversion Price" means the
Conversion Price as most recently adjusted pursuant to Section 6.06.
Default: The term "Default" means an event which with notice or upon the
lapse of time or both would become an Event of Default.
Event of Default: The term "Event of Default" means any event specified
in Section 5.01, continued for the period of time, if any, and after the giving
of notice, if any, therein designated.
Holder: The term "Holder" means the Person in whose name such
Convertible Note is registered in the register maintained by the Company
pursuant to Section 1.01.
Maturity: The term "Maturity" when used with respect to any Convertible
Note means the date of which the principal (and interest,) of such Convertible
Note becomes due and payable as herein provided, whether at February 11, 2000,
(b) declaration of acceleration or (c) otherwise.
Section 3. CERTAIN COVENANTS.
Section 3.01. Payment of Convertible Notes. The Company will duly and
punctually pay or cause to be paid in cash the principal and the interest on
each of the Convertible Notes at the time and place and in the manner provided
herein.
Section 3.02. General Covenants. The Company will:
(a) promptly pay and discharge or cause to be paid and discharged all
lawful taxes, assessments, and governmental charges or levies imposed upon the
Company upon the income of profits of the Company or upon any property, real
personal or mixed, belonging to the Company or upon any part thereof, before the
same shall become in default as well as all lawful claims for labor, material
and supplies which, if unpaid, might become a lien or charge upon such
properties or any part thereof, except that the Company shall not be required to
pay and discharge or to cause to be paid and discharged any such tax, assessment
charge, levy or claim so long as the validity thereof shall be contested in good
faith by appropriate proceedings and the Company as the case may be, shall set
aside on its books such reserves, if any, as shall be deemed by it adequate with
respect to any such tax, assessment, charge, levy or claim so contested.
(b) do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises, and comply
with all laws applicable to the Company as its counsel may advise; except that
nothing in this subsection (b) shall prevent a liquidation or dissolution of, or
a sale, transfer or disposition of the property and assets of, or a merger or
consolidation of, the Company or any Affiliate not prohibited by the provisions
of Section 3.04; and
(c) at all times maintain, preserve, protect and keep, or cause to be
maintained, preserved, protected and kept, its property used or useful in the
conduct of the business of the Company in good repair, working order and
condition, and from time to time make, or cause to be made, all necessary and
proper repairs, renewals, replacements betterment and improvements thereto, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
Section 3.03. Notice of Defaults. In the event that any Event of Default
shall have occurred, the Company will promptly give written notice thereof to
each Holder of a Convertible Note.
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Section 3.04. Mergers, etc. Subject to Section 3.02, the Company may not
consolidate with or merge into, or transfer all or substantially all its assets
to, another corporation unless (a) the resulting, surviving or transferee
corporation assumes in writing all the obligations of the Company under the
Convertible Notes and (b) no Event of Default shall have occurred and be
continuing. Upon any consolidation or merger, or any transfer of all or
substantially all the assets of the Company in accordance with this Section
3.04, the successor corporation formed by such consolidation or with or into
which the Company is merged or to which such transfer is made shall succeed to,
and be, substituted for, and may exercise every right and power off the Company
under the Convertible Note with the same effect as if such successor corporation
has been named as the Company herein.
Section 3.05. Notice of Mergers. The Company shall, within ten business
days after the effective date of each merger or consolidation of the Company,
notify each Holder of the Convertible Notes that such merger or consolidation
has occurred and shall specify such effective date.
Section 4. OPTIONAL PREPAYMENTS.
Section 4.0 1. Optional Prepayments. The Company shall have the
privilege, at any time and from time to time prior to Maturity of prepaying the
outstanding Convertible Notes, either in whole or in part by payment of the
principal amount of each Convertible Note, or portion thereof to be prepaid, and
accrued interest thereon to the date of such prepayment, without premium or
penalty.
Section 4.02. Allocation of Prepayments. All partial prepayments
pursuant to Section 4.01 shall be applied on all outstanding Convertible Notes
ratable in accordance with the unpaid principal amounts thereof.
Section 5. REMEDIES.
Section 5.01 Events of Default. An "Event of Default" occurs if one or
more of the following shall happen (for any reason whatsoever and whether such
happening shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) if default be made in the punctual payment of the principal on any
of the Convertible Notes when and as the same shall become due and payable,
whether at the fixed maturity of said Convertible Notes; or
(b) if default be made in the payment of any installment of interest on
any of the Convertible Notes and such default shall continue for a period of 90
days after notice; or
(c) if default be made in the due observance or performance of any
covenant, condition or agreement contained in Section 3.02 to 3.05, both
inclusive, and such default shall have continued for a period of 30 days after
the Holders of a majority of the principal amount of the Convertible Notes then
outstanding shall have given notice to the Company (which notice shall specify
the default, demand that it be remedied and state that the notice is a "Notice
of Default); or
(d) the Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case, (ii) consents to the entry of an order for
relief against it in any involuntary case, (iii) consents to the appointment of
a Custodian of it or for any substantial part of its property, (iv) makes a
general assignment for the benefit of its creditors; or
(e) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that: (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company or for any substantial part of
its property, (iii) orders the liquidation of the Company; and the order or
decree remains unstayed and in effect for 30 days.
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The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
federal state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under
any Bankruptcy Law.
Section 5.02. Acceleration. If an Event of Default (other than an Event
of Default specified in Section 5.01 (d) or (e)) occurs and is continuing then,
at the option of the Holder of this Convertible Note, exercised by written
notice to the Company, the principal of this Convertible Note shall forthwith
become due and payable, together with the interest accrued hereon. If an Event
of Default specified in Section 5.01 (d) or (e) occurs at anytime, such an
amount shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Holder of this Convertible Note.
The provisions of this Section 5.02 are subject, however, to the
condition that if, at any time after any Convertible Note shall have so become
due and payable, the Company shall pay all arrears of interest on the
Convertible Notes and all payments on account of the principal (and accrued
interest on Convertible Notes due and payable by virtue of acceleration) shall
be remedied or waived pursuant to Section 9.04, then, and in every such case,
subject to Section 9.04 (b), the Holder or Holders of at least 66-2/3% in
aggregate principal amount of all Convertible Notes at the time outstanding, by
written notice to the company, may rescind and annul such acceleration and its
consequences; but no such action shall affect any subsequent Default or Event of
Default or impair any right consequent thereon.
Section 5.03. Other Remedies. Subject to the provisions of Section 5.02,
in case any one or more of the Events of Default specified in Section 5.01 shall
have occurred and be continuing, the Holder of this Convertible Note may proceed
to protect and enforce its rights by suit in equity, action at law or by other
appropriate proceedings or both, whether for the specific performance of any
covenant or agreement contained in this Convertible Note or in aid of the
exercise of any power granted in this Convertible Note, or may proceed to
enforce the payment of this Convertible Note or to enforce any other legal or
equitable right of the Holder of this Convertible Note.
Section 5.04. Notice by the Company of Acceleration or Other Action by
Convertible Noteholders or Holders of Other Indebtedness. If any Holder of a
Convertible Note shall give any notice to the Company with respect to any Event
of Default (or with respect to any event which with notice or the lapse of time,
or both, would be an Event of Default), or accelerate the maturity thereof or
take any other action in respect of an Event of Default or such event, or if the
holder of any bond, debenture, note or other similar evidence of indebtedness
(other than the Convertible Notes) of, or secured or guaranteed by, the Holder
shall give any notice to the Company in respect of any default thereunder or
under any agreement pursuant to which such bond, debenture, note or other
evidence or indebtedness is issued, the Company shall forthwith give written
notice to all Holders of Convertible Notes, specifying such action and the
nature and status of Event of Default or event or other default.
Section 5.05. Remedies Cumulative. No remedy herein conferred upon the
Holder of this Convertible Note is intended to be exclusive of any other remedy
and each and every such remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise.
Section 5.06. Enforcement. If there shall be any Default under this
Convertible Note and this Convertible Note shall be placed in the hands of an
attorney for collection, or shall be collected through any court, including any
bankruptcy court, the Company promises to pay to the order of the Holder hereof
such Holder's reasonable attorneys' fees and court costs incurred in collecting
or attempting to collect or securing or attempting to secure this Convertible
Note or enforcing the Holder's rights with respect to any collateral securing
this Convertible Note, to the extent allowed by the laws of the State of Florida
or any state in which any collateral for this Note shall be situated.
Section 6. CONVERSION.
Section 6.01. Right of Conversion, Conversion Price. Subject to and upon
compliance with the provisions of this Section 6, the Holder shall have the
right, at his option, at any time during usual
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business hours (including the period between the date on which the Company gives
notice of prepayment and the Prepayment Date) to convert the principal and
accrued interest of any Convertible Note owned by such Holder into fully paid
and in nonassessable shares of Common Stock at the rate of $4.00 for each share
of common Stock (the "Conversion Price") which price per share shall be payable
by surrender of such convertible Note.
(a) As of the date hereof, the authorized and outstanding capital stock
of the Company is 4,973,000 (four million nine hundred seventy three thousand)
shares.
Section 6.02. Manner of Exercise.
(a) In order to exercise the conversion right the Holder of any
Convertible Note to be converted shall surrender such Convertible Note at the
office of the Company, accompanied by written notice to the Company stating (i)
that the Holder elects to convert such Convertible Note or, if less than the
entire principal amount of a Convertible Note is to be converted, the portion
thereof (a multiple of $1,000) to be converted, and (ii) the name or names (with
addresses) in which the certificate or certificates for shares of Common Stock
issuable on such conversion shall be issued. Convertible Notes surrendered for
conversion shall be accompanied by proper assignment thereof to the Company or
in blank for transfer if the shares are to be issued in a name other than that
of the Holder.
(b) In the case of any Convertible Note which is converted in part only,
upon such conversion the Company shall execute and deliver to the Holder thereof
at the expense of the Company, a new Convertible Note or Convertible Notes of
authorized denominations in principal amount equal to the unconverted portions
of such Convertible Note.
Section 6.03. Issuance of Shares of Common Stock on Conversion.
(a) As promptly as practicable after the receipt of such notice and the
surrender of such convertible Note as aforesaid, the Company shall issue, at its
expense, and shall deliver to such Holder, or on his written order, at the
aforesaid office of the Company (i) a certificate or certificates for the number
of full shares of Common Stock issuable upon the conversion of such Convertible
Note (or specified portion thereof), and (ii) a certificate or certificates for
any fractional shares of Common Stock issuable upon conversion of such
Convertible Note (or specified portion thereof) or, at the Company's option,
cash in lieu of script for any fraction of a share to which such Holder is
entitled upon conversion as provided in Section 6.05.
(b) Such conversion shall be deemed to have been effected immediately
prior to the close of business on the date ("Conversion Date") on which the
Company shall have received both such notice and the surrendered Convertible
Note as aforesaid, and at such time the rights of the Holder of such Convertible
Note shall cease and the Person or Persons in whose name or names any
certificate or certificates for shares of common Stock shall be issuable upon
such conversion shall be deemed to have become the holder of holders of record
of the shares represented thereby.
Section 6.04 No Adjustments for Interest or Dividends. No payment or
adjustment shall be made by or on behalf of the Company on account of any
interest accrued on any Convertible Notes surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon such
conversion which were declared for payment to holders of shares of Common Stock
or record as of a date prior to the Conversion Date. All payments of accrued
interest on any Convertible Note shall be made in cash or additional stock at
the Conversion Price, at Company's option.
Section 6.05. Fractional Shares. The Company, at its option, may issue
fractional shares of common Stock upon any conversion of Convertible Notes or,
in lieu of any fraction of a share of Common Stock to which any Holder would
otherwise be entitled upon conversion of any Convertible Notes (or specified
portions thereof), the Company may pay a cash adjustment for such fraction in an
amount equal to same fraction of the conversion price per share.
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Section 6.06 Adjustment of Conversion Price. The Conversion Price shall
be adjusted as set forth in this section.
(a) In the event that the Company shall make any distribution of its
assets upon or with respect to its shares of Common Stock, as a liquidating or
partial liquidating dividend, or other than as a dividend payable out of
earnings or any surplus legally available for dividends under the laws of the
state of incorporation of the Company, each Holder of any Convertible Note then
outstanding shall, upon the exercise of his right to convert after the record
date for such distribution or, in the absence of a record date, after the date
of such distribution receive; in addition to the shares subscribed for, the
amount of such assets (or, at the option of the Company, a sum equal to the
value thereof at the time of distribution as determined by the Board of
Directors in its sole discretion) which would have been distributed to such
Holder if he had exercised his right to convert immediately prior to the record
date for such distribution or, in the absence of a record date, immediately
prior to the date of such distribution.
(b) In case at any time the Company shall subdivide its outstanding
shares of Common Stock into a greater number of shares, the current Conversion
Price in effect immediately prior to such subdivision shall be proportionately
reduced and conversely, in case the outstanding shares of Common Stock of the
company shall be combined into a smaller number of shares, the Current
Conversion Price in effect immediately prior to such combination shall be
proportionately increased.
(c) If any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the company with another
corporation, or the sale transfer or lease of all or substantially all of its
assets to another corporation, shall be effected in such a way that holders of
shares of Common Stock shall be entitled to receive shares, securities or assets
with respect to or in exchange for shares of Common Stock, then, as a condition
of such reorganization, reclassification, consolidation, merger or sale, the
Company or such successor or purchasing corporation, as the case may be, shall
execute an amendment to the Convertible Notes providing that the Holder of each
Convertible Note then outstanding shall have the right thereafter and until the
expiration of the period of convertibility to convert such Convertible Note into
the kind and amount of shares, securities or assets receivable upon such
reorganization, reclassification, consolidation, merger or sale by a holder of
the number of shares of common Stock into which such convertible Note might have
been converted immediately prior to such reorganization, reclassification,
consolidation, merger or sale, subject to adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Section 6.
(d) Upon such adjustment of the Conversion Price pursuant to the
provisions of this Section 6.06, the number of shares issuable upon conversion
of this Note shall be adjusted to the nearest fall amount by multiplying a
number equal to the Conversion Price in effect immediately prior to such
adjustment by the number of shares of Common Stock issuable upon exercise of
this Note immediately prior to such adjustment and dividing the product so
obtained by the adjusted Conversion Price.
Section 6.07. Covenant to Reserve Shares for Conversion. The Company
convenants that it will at all times reserve and keep available out of its
authorized shares of Common Stock, such number of shares of Common Stock as
shall then be deliverable upon the conversion of all outstanding Convertible
Notes. All shares of Common Stock, which shall be deliverable, shall be duly and
validly issued and fully paid and nonassessable.
Section 6.08. Notice of Change of Conversion Price. Whenever the
Conversion Price is adjusted, as herein provided, the Company shall promptly
send to each Holder a certificate of a firm or independent public accountants
(who may be the accountants regularly employee by the Company) selected by the
Board of Directors setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment. Such
certificate shall be conclusive evidence of the correctness of such adjustment.
Section 7. REGISTRATION RIGHTS.
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Section 7.01. Piggy-Back. If the Company proposes to file, on its behalf
and/or on behalf of any of its securities holders, a Registration Statement
under the Securities Act of 1933, as amended (the "Securities Act") other than
in connection with a dividend reinvestment, employee stock purchase, option or
similar plan or in connection with a merger, consolidation or reorganization,
the Company shall give written notice to each Holder at least 30 days before the
filing with the Securities and Exchange Commission ("SEC") of such Registration
Statement. Each Holder who desires to include any of its shares of Common Stock
into which the Convertible Notes are convertible, whether or not already
converted, (the "Registrable Securities") in such Registration Statement shall
give written notice to the Company within 20 days after the date of mailing of
such offer, and shall deliver to the Company a letter from counsel selected by
such Holder to the effect that registration under the Securities Act is
required. The Company shall thereupon include in such filing the shares of
Common Stock designated by such Holder and, subject to its right to withdraw
such filing, shall use its best efforts to effect registration under the
Securities Act of such shares of Common Stock.
Section 7.02. Conditions. The right of the Holders to have shares
included in any registration Statement in accordance with the provision of this
Section 7 shall be subject to the following conditions:
(a) The Company shall have the right to require that the Holders
participating in such registration Statement agree to refrain from offering or
selling (other than in a private sale) any shares of Common Stock that they own
which are not included in any such Registration Statement in accordance with
this Section 7 for any time period specified in writing by any managing
underwriter of the offering to which such registration Statement relates;
(b) If any managing underwriter of the offering to which the
Registration Statement relates informs the Company in writing that the total
number of shares of Common Stock requested by the Holders to be included in the
Registration Statement is sufficiently large to affect the success of such
offering adversely, then the Company will include only the number of shares, if
any, in the Registration Statement that such managing underwriter shall advise
the Company will not so affect the offering, and reductions in the number of
shares of Common Stock owned by the Holders and other persons who have elected
to have shares Common Stock included in such Registration Statement will be made
proportionate to their respective percentages of ownership of shares to be
included in the Registration Statement;
(c) The Company shall furnish Holders who have shares included in a
Registration Statement pursuant to this Section 7 with such number of copies of
the prospectus relating to the offering (the "Prospectus") (including any
preliminary prospectus or supplemental or amended prospectus) as such Holder may
reasonably request in order to facilitate the sale and distribution of its
shares; and
Section 7.03. Registration or Offering. The Company shall use its best
efforts to prepare and file the Registration Statement or proceed with the
Offering as to which the notice specified herein is given.
Section 7.04 "No Action" Letter Opinion of Counsel. No Holder shall
have registration rights under this Section with respect to any sales proposed
by them of shares as to which sales (i) a "no action" letter is received from
the SEC or its staff confirming the availability of an exemption from the
requirements of the Securities Act or (ii) an unqualified opinion of counsel to
the Company is rendered to the effect that registration of such shares for such
sales is not required, provided that in both cases (i) and (ii) above, the
volume limitations of Rule 144(e) under the Securities Act shall not limit the
amount of shares of Common Stock that the Holders are entitled to offer and sell
without registration under the Securities Act.
Section 7.05. Recall of Prospectuses, etc. With respect to a
Registration Statement or amendment thereto filed pursuant to this Section, if,
at any time, the Company notifies the selling Holder that an amendment or
supplement to such Registration Statement or amendment or the prospectus
included therein is necessary or appropriate, the selling Holder will forthwith
cease selling and distributing shares thereunder and will forthwith redeliver to
the Company all copies of such registration Statement and prospectuses then in
their possession or under their control.
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Section 7.06. Cooperation of Holders. The Company shall be entitled to
require that each selling Holder cooperate with the Company in connection with a
registration of shares of Common Stock pursuant to this Section and furnish
such information, representations, undertakings and agreements regarding such
selling Holder and the distribution as may be reasonably required by the Company
or as required by law in connection therewith.
Section 7.07. Expenses. The Company will bear all the expenses in
connection with any Registration Statement under this Section 7 (including the
fees and expenses of a single counsel to the Holders) other than transfer taxes
payable on the sale of such shares and fees and commissions of brokers, dealers
and underwriters.
Section 7.08. Indemnification. In the event of the registration of any
securities under the Securities Act pursuant to this Section, the Company and
the Holders shall provide to each other customary indemnification to the extent
of any loss, claim, damage, liability or expense arising out of such
registration.
Section 8: Status of the Holder:
Section 8.0 1. The Holder has such knowledge and experience in financial
and business matters that the Holder is capable of evaluating the merits and
risks of this Convertible Note. The Holder is able to bear the economic risk of
this Note. no Holder has had the opportunity to consult with the Holder's own
attorney, accountant and/or purchaser representative regarding this Note and the
suitability of this transaction, and to the extent necessary, the Holder has
retained, at Holder's own expense, and relied upon, appropriate professional
advice regarding this Note, the investment it represents, tax and legal merits,
risks and consequences of this Note and of purchasing and owning the Shares.
Section 8.02. The Holder represents that the Holder is an "Accredited
Investor", as that term is defined below, and that at least one of the
categories set forth in (a) through (h) below applies to the Holder. The Holder
is one or more of the following:
(a) a natural person whose individual net worth, or joint net worth with
that person's spouse, exceeds $1,000,000;
(b) a natural person who had an individual income in excess of $200,000
in each of the two most recent years or joint income with that persons spouse in
excess of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year.
(c) a bank as defined in Section 3(a)(2) of the Securities Act or a
savings and loan association or other institution as defined in Section 3(a)
(5)(A) of the Securities Act; whether acting in its individual or fiduciary
capacity; a broker or dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934; an insurance company as defined in Section 2(13) of the
Securities Act; an investment company registered under the Investment Company
Act of 1940 (the "1940 Act") or a business development company as defined in
Section 2(a)(48) of the 1940 Act; a Small Business Investment Company licensed
by the U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958; or an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974
("ERISA"), if the investment decision is made by a plan fiduciary, as defined in
Section 3(21) of ERISA, which fiduciary is either a bank, savings and loan
association, insurance company or registered investment adviser, or if the
employee benefit plan has total assets in excess of S5,000,000 or if a self-
directed plan, with investment decisions made solely by persons that are
Accredited Investors (as listed in categories (a) - (h) herein);
(d) a private business development company as defined in Section
202(a)(22) of the 1940 Act;
(e) an organization described in Section 501 (c)(3) of the Internal
Revenue Code, a corporation, Massachusetts or similar business trust or a
partnership, with total assets in excess of $5,000,000, and which was not formed
for the specific purpose of engaging in this transaction;
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(f) a trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of engaging in this transaction, which is directed by a
person who has such knowledge and experience in financial and business matters
that he is capable of evaluating the merits and risks of this investment;
(g) a director or executive officer of the Company, or
(h) an entity in which all of the equity owners are Accredited Investors
[as listed in categories (a) - (h)].
Section 9. MISCELLANEOUS
Section 9.01. Governing Law. This Convertible Note shall be construed in
accordance with the laws of the State of Florida applicable to contracts entered
into and to be performed wholly within said State.
Section 9.02. Successors and Assigns. All the covenants, stipulations,
promises and agreements in the Convertible Notes held by or on behalf of the
Company shall bind its successors and assigns, whether so expressed or not.
Section 9.03 Course of Dealing; No Waiver. No course of dealing between
the Company and the Holder hereof shall operate as a waiver of any right of any
holder hereof and no delay on the part of the Holder in exercising any right
hereunder shall so operate.
Section 9.04. Waiver of Compliance.
(a) Any term, covenant, agreement or condition hereof may be amended, or
compliance therewith may be waived (either generally or in a particular instance
and either retroactively or prospectively), if the Company shall have obtained
the agreement or consent in writing of the Holders of at least 51% in
aggregate principal amount of all outstanding Convertible Notes, but no such
amendment or waiver shall:
(i) change the amount or maturity of any principal on the Convertible
Notes or change the rate or extend the time of payment of interest on the
Convertible Notes or reduce the amount of principal thereof or modify any of the
provisions of the Convertible Notes with respect to the payment or prepayment
thereof.
(ii) give to any Convertible Note any preference or priority over any
other Convertible Note; or
(iii) reduce the percentage of Holders of the Convertible Notes required
to approve any such amendment or effectuate any such waiver.
(b) In determining whether the Holders of the requisite principal amount
of outstanding Convertible Notes have given any authorization, consent or waiver
under this Section 9.04 or under Section 5.02, Convertible Notes owned by the
Company or any Affiliate thereof shall be disregarded and deemed not to be
outstanding.
Section 9.05. Manner of giving Notices. Any notice required to be given
to the Holder hereof by the Company hereunder shall be given by certified
registered mail to the Holder at its address designated on the register referred
to in Section 1.01 on the date of such notice.
Section 9.06. Expenses in Preparation. All expenses of the Holder in the
negotiation, preparation, execution and delivery of this Convertible Note shall
be paid by the Company.
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Section 9.07. Other Provisions. The Company waives demand, presentment,
protest, notice of dishonor and any other form of notice, that may be required
to hold the Company liable on this Note.
IN WITNESS WHEREOF, the undersigned has caused this Convertible Note to
be signed in its corporate name by one of its officers thereunto duly
authorized, and to be dated as of the date first written above.
Witness: FINANCIALWEB.COM, INC.
/s/ James P. Cagel /s/ Kevin Lichtman
By: _________________________ By: ____________________________
James P. Cagel Kevin Lichtman
Title: Secretary Title: President
______________________ _________________________
Date: February 12, 1999
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EXHIBIT 4.14
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD, OFFERED
FOR SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS THEY ARE SO REGISTERED OR
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
FINANCIALWEB.COM, INC.
CONVERTIBLE NOTE DUE FEBRUARY 11, 2000
Principal Amount: $250,000.
FINANCIALWEB.COM, INC. a Nevada corporation (the "Company"), for value
received, hereby promises to pay Mr. Donald Sliter (the "Holder"), or registered
assigns, on February 11, 2000, the principal amount of Two hundred fifty
thousand dollars ($250,000) (or so much thereof as shall not have been prepaid
or surrendered for conversion) in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, at the offices of the Holder located at 30 South
Wacker Drive, Chicago, IL. 60603 together with interest (computed on the basis
of 360-day year on twelve 30 days months) on the unpaid portion of the principal
amount hereof at the interest rate of the Chase Manhattan Bank, New York prime
rate (as amended from time to time) plus two (2%) per annum (the "Interest
Rate").
Section 1. THE NOTES.
Section 1.01. Registration, Transfer and Exchange of Convertible Notes. The
Company shall keep at its principal office a register in which the Company will
provide for registration, transfer and exchange of Convertible Notes. Subject to
compliance with applicable securities laws, the Holder (as defined below) of any
Convertible Note may, at its option and either in person or by duly authorized
attorney, surrender the same at said office for registration of transfer or
exchange, accompanied, if surrendered for transfer, by a written instrument of
transfer duly executed by said Holder or attorney. If any Holder shall so
request transfer or exchange of a Convertible Note held by it, the Company
shall, within a reasonable time thereafter, without expense to such Holder
(other than transfer taxes, if any) deliver to or upon its order one or more
Convertible Notes in the same unpaid aggregate principal amount as the
Convertible Note so surrendered, each dated the date to which interest has been
paid on the Convertible Note so surrendered, in the principal amount of $5,000
or any multiple thereof, and registered in such name or names, or payable to
such Person or Persons, or order, as shall be specified by the Holder making
such request. The Company may deem and treat the Holder of any Convertible Note
as the absolute owner of such Convertible Note for the purpose of receiving
payment of or on account of the principal and interest on such Convertible Note
and for the purposes of any notices, waivers or consent thereunder, and payment
of any Convertible Note shall be made only to or upon the order in writing of
such Holder.
Section 1.02. Loss, Theft, Destruction or Convertible Notes. Upon receipt of
evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Convertible Note and, in the case of any such loss, theft or
destruction, upon receipt of indemnity reasonably satisfactory to the Company,
or in the case of any such mutilation, upon surrender and cancellation of this
Convertible Note, the Company will make and deliver, in lieu of such lost,
stolen, destroyed or mutilated Convertible Note, a new Convertible Note of like
tenor and unpaid principal amount and dated as of the date from which unpaid
interest has then accrued on the Convertible Note so lost, stolen, destroyed or
mutilated.
Section 2. DEFINITIONS.
Section 2.01. Terms Defined. The terms defined in this Section 2.01 (except as
herein otherwise expressly provided or unless the context otherwise requires for
all purposes of this Convertible Note shall have the respective meanings
specified in this Section 2.01.
Common Stock: The term "Common Stock means shares of the Company's Common
Stock, par value $.001 per share.
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Company: The term "Company" means FINANCIALWEB.COM, INC. a Nevada
corporation, and any successor corporation to the Company (including the
corporation surviving any subsequent merger).
Current Conversion Price: The term "Current Conversion Price" means the
Conversion Price as most recently adjusted pursuant to Section 6.06.
Default: The term "Default" means an event which with notice or upon the lapse
of time or both would become an Event of Default.
Event of Default: The term "Event of Default" means any event specified in
Section 5.01, continued for the period of time, if any, and after the giving of
notice, if any, therein designated.
Holder: The term "Holder" means the Person in whose name such Convertible Note
is registered in the register maintained by the Company pursuant to Section
1.01.
Maturity: The term "Maturity" when used with respect to any Convertible Note
means the date of which the principal (and interest,) of such Convertible Note
becomes due and payable as herein provided, whether at February 11, 2000, (b)
declaration of acceleration or (c) otherwise.
Section 3. CERTAIN COVENANTS.
Section 3.01. Payment of Convertible Notes. The Company will duly and
punctually pay or cause to be paid in cash the principal and the interest on
each of the Convertible Notes at the time and place and in the manner provided
herein.
Section 3.02. General Covenants. The Company will:
(a) promptly pay and discharge or cause to be paid and discharged all lawful
taxes, assessments, and governmental charges or levies imposed upon the Company
upon the income of profits of the Company or upon any property, real, personal
or mixed, belonging to the Company or upon any part thereof, before the same
shall become in default, as well as all lawful claims for labor, material and
supplies which, if unpaid, might become a lien or charge upon such properties or
any part thereof, except that the Company shall not be required to pay and
discharge or to cause to be paid and discharged any such tax, assessment,
charge, levy or claim so long as the validity thereof shall be contested in good
faith by appropriate proceedings and the Company as the case may be, shall set
aside on its books such reserves, if any, as shall be deemed by it adequate with
respect to any such tax, assessment, charge, levy or claim so contested.
(b) do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights and franchises, and comply with
all laws applicable to the Company as its counsel may advise; except that
nothing in this subsection (b) shall prevent a liquidation or dissolution of, or
a sale, transfer or disposition of the property and assets of, or a merger or
consolidation of, the Company or any Affiliate not prohibited by the provisions
of Section 3.04; and
(c) at all times maintain, preserve, protect and keep, or cause to be
maintained, preserved, protected and kept, its property used or useful in the
conduct of the business of the Company in good repair, working order and
condition, and from time to time make, or cause to be made, all necessary and
proper repairs, renewals, replacements betterment and improvements thereto, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
Section 3.03. Notice of Defaults. In the event that any Event of Default shall
have occurred, the Company will promptly give written notice thereof to each
Holder of a Convertible Note.
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Section 3.04. Mergers, etc. Subject to Section 3.02, the Company may not
consolidate with or merge into, or transfer all or substantially all its assets
to, another corporation unless (a) the resulting, surviving or transferee
corporation assumes in writing all the obligations of the Company under the
Convertible Notes and (b) no Event of Default shall have occurred and be
continuing. Upon any consolidation or merger, or any transfer of all or
substantially all the assets of the Company in accordance with this Section
3.04, the successor corporation formed by such consolidation or with or into
which the Company is merged or to which such transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under the Convertible Note with the same effect as if such successor corporation
has been named as the Company herein.
Section 3.05. Notice of Mergers. The Company shall, within ten business days
after the effective date of each merger or consolidation of the Company, notify
each Holder of the Convertible Notes that such merger or consolidation has
occurred and shall specify such effective date.
Section 4. OPTIONAL PREPAYMENTS.
Section 4.01. Optional Prepayments. The Company shall have the privilege, at
any time and from time to time prior to Maturity of prepaying the outstanding
Convertible Notes, either in whole or in part by payment of the principal amount
of each Convertible Note, or portion thereof to be prepaid, and accrued interest
thereon is the date of such prepayment, without premium or penalty.
Section 4.02. Allocation of Prepayments. All partial prepayments pursuant to
Section 4.01 shall be applied on all outstanding Convertible Notes ratable in
accordance with the unpaid principal amounts thereof.
Section 5. REMEDIES.
Section 5.01. Events of Default. An "Event of Default" occurs if one or more
of the following shall happen (for any reason whatsoever and whether such
happening shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) if default be made in the punctual payment of the principal on any of the
Convertible Notes when and as the same shall become due and payable, whether at
the fixed maturity of said Convertible Notes; or
(b) if default be made in the payment of any installment of interest on any of
the Convertible Notes and such default shall continue for a period of 90 days
after notice; or
(c) if default be made in the due observance or performance of any covenant,
condition or agreement contained in Section 3.02 to 3.05, both inclusive, and
such default shall have continued for a period of 30 days after the Holders of a
majority of the principal amount of the Convertible Notes then outstanding shall
have given notice to the Company (which notice shall specify the default, demand
that it be remedied and state that the notice is a "Notice of Default"); or
(d) the Company pursuant to or within the meaning of any Bankruptcy Law: (i)
commences a voluntary case, (ii) consents to the entry of an order for relief
against it in any involuntary case, (iii) consents to the appointment of a
Custodian of it or for any substantial part of its property, (iv) makes a
general assignment for the benefit of its creditors; or
(e) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that: (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company or for any substantial part of
its property, (iii) orders the liquidation of the Company; and the order or
decree remains unstayed and in effect for 30 days.
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The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator, sequestrator or similar official under any
Bankruptcy Law.
Section 5.02. Acceleration. If an Event of Default (other than an Event of
Default specified in Section 5.01 (d) or (e)) occurs and is continuing then, at
the option of the Holder of this Convertible Note, exercised by written notice
to the Company, the principal of this Convertible Note shall forthwith become
due and payable, together with the interest accrued hereon. If an Event of
Default specified in Section 5.01(d) or (e) occurs at any time, such an amount
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Holder of this Convertible Note.
The provisions of this Section 5.02 are subject, however, to the condition
that if, at any time after any Convertible Note shall have so become due and
payable, the Company shall pay all arrears of interest on the Convertible Notes
and all payments on account of the principal (and accrued interest on
Convertible Notes due and payable by virtue of acceleration) shall be remedied
or waived pursuant to Section 9.04, then, and in every such case, subject to
Section 9.04(b), the Holder or Holders of at least 66-2/3% in aggregate
principal amount of all Convertible Notes at the time outstanding, by written
notice to the company, may rescind and annul such acceleration and its
consequences; but no such action shall affect any subsequent Default or Event of
Default or impair any right consequent thereon.
Section 5.03. Other Remedies. Subject to the provisions of Section 5.02, in
case any one or more of the Events of Default specified in Section 5.01 shall
have occurred and be continuing, the Holder of this Convertible Note may proceed
to protect and enforce its rights by suit in equity, action at law or by other
appropriate proceedings or both, whether for the specific performance of any
covenant or agreement contained in this Convertible Note or in aid of the
exercise of any power granted in this Convertible Note, or may proceed to
enforce the payment of this Convertible Note or to enforce any other legal or
equitable right of the Holder of this Convertible Note.
Section 5.04. Notice by the Company of Acceleration or Other Action by
Convertible Noteholders or Holders of Other Indebtedness. If any Holder of a
Convertible Note shall give any notice to the Company with respect to any Event
of Default (or with respect to any event which with notice or the lapse of time,
or both, would be an Event of Default), or accelerate the maturity thereof or
take any other action in respect of an Event of Default or such event, or if the
holder of any bond, debenture, note or other similar evidence of indebtedness
(other than the Convertible Notes) of, or secured or guaranteed by, the Holder
shall give any notice to the Company in respect of any default thereunder or
under any agreement pursuant to which such bond, debenture, note or other
evidence or indebtedness is issued, the Company shall forthwith give written
notice to all Holders of Convertible Notes, specifying such action and the
nature and status of Event of Default or event or other default.
Section 5.05. Remedies Cumulative. No remedy herein conferred upon the Holder
of this Convertible Note is intended to be exclusive of any other remedy and
each and every such remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or otherwise.
Section 5.06. Enforcement. If there shall be any Default under this
Convertible Note and this Convertible Note shall be placed in the hands of an
attorney for collection, or shall be collected through any court, including any
bankruptcy court, the Company promises to pay to the order of the Holder hereof
such Holder's reasonable attorneys' fees and court costs incurred in collecting
or attempting to collect or securing or attempting to secure this Convertible
Note or enforcing the Holder's rights with respect to any collateral securing
this Convertible Note, to the extent allowed by the laws of the State of Florida
or any state in which any collateral for this Note shall be situated.
Section 6. CONVERSION.
Section 6.01. Right of Conversion, Conversion Price. Subject to and upon
compliance with the provisions of this Section 6, the Holder shall have the
right, at his option, at any time during usual
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business hours (including the period between the date on which the Company gives
notice of prepayment and the Prepayment Date) to convert the principal and
accrued interest of any Convertible Note owned by such Holder into fully paid
and in nonassessable shares of Common Stock at the rate of $4.00 for each share
of common Stock (the "Conversion Price") which price per share shall be payable
by surrender of such convertible Note.
(a) As of the date hereof, the authorized and outstanding capital stock of the
Company is 4,973,000 (four million nine hundred seventy three thousand) shares.
Section 6.02. Manner of Exercise.
(a) In order to exercise the conversion right, the Holder of any Convertible
Note to be converted shall surrender such Convertible Note at the office of the
Company, accompanied by written notice to the Company stating (i) that the
Holder elects to convert such Convertible Note or, if less than the entire
principal amount of a Convertible Note is to be converted, the portion thereof
(a multiple of $1,000) to be converted, and (ii) the name or names (with
addresses) in which the certificate or certificates for shares of Common Stock
issuable on such conversion shall be issued. Convertible Notes surrendered for
conversion shall be accompanied by proper assignment thereof to the Company or
in blank for transfer if the shares are to be issued in a name other than that
of the Holder.
(b) In the case of any Convertible Note which is converted in part only, upon
such conversion the Company shall execute and deliver to the Holder thereof, at
the expense of the Company, a new Convertible Note or Convertible Notes of
authorized denominations in principal amount equal to the unconverted portions
of such Convertible Note.
Section 6.03. Issuance of Shares of Common Stock on Conversion.
(a) As promptly as practicable after the receipt of such notice and the
surrender of such Convertible Note as aforesaid, the Company shall issue, at its
expense, and shall deliver to such Holder, or on his written order, at the
aforesaid office of the Company (i) a certificate or certificates for the number
of full shares of Common Stock issuable upon the conversion of such Convertible
Note (or specified portion thereof), and (ii) a certificate or certificates for
any fractional shares of Common Stock issuable upon conversion of such
Convertible Note (or specified portion thereof) or, at the Company's option,
cash in lieu of script for any fraction of a share to which such Holder is
entitled upon conversion as provided in Section 6.05.
(b) Such conversion shall be deemed to have been effected immediately prior to
the close of business on the date ("Conversion Date") on which the Company shall
have received both such notice and the surrendered Convertible Note as
aforesaid, and at such time the rights of the Holder of such Convertible Note
shall cease and the Person or Persons in whose name or names any certificate or
certificates for shares of common Stock shall be issuable upon such conversion
shall be deemed to have become the holder of holders of record of the shares
represented thereby.
Section 6.04. No Adjustments for Interest or Dividends. No payment or
adjustment shall be made by or on behalf of the Company on account of any
interest accrued on any Convertible Notes surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon such
conversion which were declared for payment to holders of shares of Common Stock
or record as of a date prior to the Conversion Date. All payments of accrued
interest on any Convertible Note shall be made in cash or additional stock at
the Conversion Price, at Company's option.
Section 6.05. Fractional Shares. The Company, at its option, may issue
fractional shares of Common Stock upon any conversion of Convertible Notes or,
in lieu of any fraction of a share of Common Stock to which any Holder would
otherwise be entitled upon conversion of any Convertible Notes (or specified
portions thereof), the Company may pay a cash adjustment for such fraction in an
amount equal to same fraction of the conversion price per share.
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Section 6.06 Adjustment of Conversion Price. The Conversion Price shall be
adjusted as set forth in this section.
(a) In the event that the Company shall make any distribution of its assets
upon or with respect to its shares of Common Stock, as a liquidating or partial
liquidating dividend, or other than as a dividend payable out of earnings or any
surplus legally available for dividends under the laws of the state of
incorporation of the Company, each Holder of any Convertible Note then
outstanding shall, upon the exercise of his right to convert after the record
date for such distribution or, in the absence of a record date, after the date
of such distribution receive, in addition to the shares subscribed for, the
amount of such assets (or, at the option of the Company, a sum equal to the
value thereof at the time of distribution as determined by the Board of
Directors in its sole discretion) which would have been distributed to such
Holder if he had exercised his right to convert immediately prior to the record
date for such distribution or, in the absence of a record date, immediately
prior to the date of such distribution.
(b) In case at any time the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares, the current Conversion Price in
effect immediately prior to such subdivision shall be proportionately reduced
and conversely, in case the outstanding shares of Common Stock of the company
shall be combined into a smaller number of shares, the Current Conversion Price
in effect immediately prior to such combination shall be proportionately
increased.
(c) If any capital reorganization or reclassification of the capital stock of
the Company, or consolidation or merger of the company with another corporation,
or the sale transfer or lease of all or substantially all of its assets to
another corporation, shall be effected in such a way that holders of shares of
Common Stock shall be entitled to receive shares, securities or assets with
respect to or in exchange for shares of Common Stock, then, as a condition of
such reorganization, reclassification, consolidation, merger or sale, the
Company or such successor or purchasing corporation, as the case may be, shall
execute an amendment to the Convertible Notes providing that the Holder of each
Convertible Note then outstanding shall have the right thereafter and until the
expiration of the period of convertibility to convert such Convertible Note into
the kind and amount of shares, securities or assets receivable upon such
reorganization, reclassification, consolidation, merger or sale by a holder of
the number of shares of Common Stock into which such convertible Note might have
been converted immediately prior to such reorganization, reclassification,
consolidation, merger or sale, subject to adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
6.
(d) Upon such adjustment of the Conversion Price pursuant to the provisions of
this Section 6.06, the number of shares issuable upon conversion of this Note
shall be adjusted to the nearest full amount by multiplying a number equal to
the Conversion Price in effect immediately prior to such adjustment by the
number of shares of Common Stock issuable upon exercise of this Note immediately
prior to such adjustment and dividing the product so obtained by the adjusted
Conversion Price.
Section 6.07. Covenant to Reserve Shares for Conversion, The Company
covenants that it will at all times reserve and keep available out of its
authorized shares of Common Stock, such number of shares of Common Stock as
shall then be deliverable upon the conversion of all outstanding Convertible
Notes. All shares of Common Stock, which shall be deliverable, shall be duly and
validly issued and fully paid and nonassessable.
Section 6.08. Notice of Change of Conversion Price. Whenever the Conversion
Price is adjusted, as herein provided, the Company shall promptly send to each
Holder a certificate of a firm or independent public accountants (who may be the
accountants regularly employee by the Company) selected by the Board of
Directors setting forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment. Such certificate
shall be conclusive evidence of the correctness of such adjustment.
Section 7. REGISTRATION RIGHTS.
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Section 7.01. Piggy-Back. If the Company proposes to file, on its behalf
and/or on behalf of any of its securities holders, a Registration Statement
under the Securities Act of 1933, as amended (the "Securities Act") other than
in connection with a dividend reinvestment, employee stock purchase, option or
similar plan or in connection with a merger, consolidation or reorganization,
the Company shall give written notice to each Holder at least 30 days before the
filing with the Securities and Exchange Commission ("SEC") of such Registration
Statement. Each Holder who desires to include any of its shares of Common Stock
into which the Convertible Notes are convertible, whether or not already
converted, (the "Registrable Securities" in such Registration Statement shall
give written notice to the Company within 20 days after the date of mailing of
such offer, and shall deliver to the Company a letter from counsel selected by
such Holder to the effect that registration under the Securities Act is
required. The Company shall thereupon include in such filing the shares of
Common Stock designated by such Holder and, subject to its right to withdraw
such filing, shall use its best efforts to effect registration under the
Securities Act of such shares of Common Stock.
Section 7.02. Conditions. The right of the Holders to have shares included in
any registration Statement in accordance with the provision of this Section 7
shall be subject to the following conditions:
(a) The Company shall have the right to require that the Holders participating
in such registration Statement agree to refrain from offering or selling (other
than in a private sale) any shares of Common Stock that they own which are not
included in any such Registration Statement in accordance with this Section 7
for any time period specified in writing by any managing underwriter of the
offering to which such registration Statement relates;
(b) If any managing underwriter of the offering to which the Registration
Statement relates informs the Company in writing that the total number of shares
of Common Stock requested by the Holders to be included in the Registration
Statement is sufficiently large to affect the success of such offering
adversely, then the Company will include only the number of shares, if any, in
the Registration Statement that such managing underwriter shall advise the
Company will not so affect the offering, and reductions in the number of shares
of Common Stock owned by the Holders and other persons who have elected to have
shares Common Stock included in such Registration Statement will be made
proportionate to their respective percentages of ownership of shares to be
included in the Registration Statement;
(c) The Company shall furnish Holders who have shares included in a
Registration Statement pursuant to this Section 7 with such number of copies of
the prospectus relating to the offering (the "Prospectus") (including any
preliminary prospectus or supplemental or amended prospectus) as such Holder may
reasonably request in order to facilitate the sale and distribution of its
shares; and
Section 7.03. Registration or Offering. The Company shall use its best efforts
to prepare and file the Registration Statement or proceed with the Offering as
to which the notice specified herein is given.
Section 7.04. "No Action" Letter: Opinion of Counsel. No Holder shall have
registration rights under this Section with respect to any sales proposed by
them of shares as to which sales (i) a "no action" letter is received from
the SEC or its staff confirming the availability of an exemption from the
requirements of the Securities Act or (ii) an unqualified opinion of counsel to
the Company is rendered to the effect that registration of such shares for such
sales is not required, provided that in both cases (i) and (ii) above, the
volume limitations of Rule 144(e) under the Securities Act shall not limit the
amount of shares of Common Stock that the Holders are entitled to offer and sell
without registration under the Securities Act.
Section 7.05. Recall of Prospectuses, etc. With respect to a Registration
Statement or amendment thereto filed pursuant to this Section, if, at any time,
the Company notifies the selling Holder that an amendment or supplement to such
Registration Statement or amendment or the prospectus included therein is
necessary or appropriate, the selling Holder will forthwith cease selling and
distributing shares thereunder and will forthwith redeliver to the Company all
copies of such registration Statement and prospectuses then in their possession
or under their control.
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Section 7.06. Cooperation of Holders. The Company shall be entitled to require
that each selling Holder cooperate with the Company in connection with a
registration of shares of Common Stock pursuant to this Section and furnish
such information, representations, undertakings and agreements regarding such
selling Holder and the distribution as may be reasonably required by the Company
or as required by law in connection therewith.
Section 7.07. Expenses. The Company will bear all the expenses in connection
with any Registration Statement under this Section 7 (including the fees and
expenses of a single counsel to the Holders) other than transfer taxes payable
on the sale of such shares and fees and commissions of brokers, dealers and
underwriters.
Section 7.08. Indemnification. In the event of the registration of any
securities under the Securities Act pursuant to this Section, the Company and
the Holders shall provide to each other customary indemnification to the extent
of any loss, claim, damage, liability or expense arising out of such
registration.
Section 8: STATUS OF THE HOLDER:
Section 8.01. The Holder has such knowledge and experience in financial and
business matters that the Holder is capable of evaluating the merits and risks
of this Convertible Note. The Holder is able to bear the economic risk of this
Note. The Holder has had the opportunity to consult with the Holder's own
attorney, accountant and/or purchaser representative regarding this Note and the
suitability of this transaction, and to the extent necessary, the Holder has
retained, at Holder's own expense, and relied upon, appropriate professional
advice regarding this Note, the investment it represents, tax and legal merits,
risks and consequences of this Note and of purchasing and owning the Shares.
Section 8.02. The Holder represents that the Holder is an "Accredited
Investor", as that term is defined below, and that at least one of the
categories set forth in (a) through (h) below applies to the Holder. The Holder
is one or more of the following:
(a) a natural person whose individual net worth, or joint net worth with that
person's spouse, exceeds S1,000,000;
(b) a natural person who had an individual income in excess of $200,000 in
each of the two most recent years or joint income with that person's spouse in
excess of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year.
(c) a bank as defined in Section 3(a)(2) of the Securities Act or a savings
and loan association or other institution as defined in Section 3(a) (5)(A)
of the Securities Act, whether acting in its individual or fiduciary capacity;
a broker or dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934; an insurance company as defined in Section 2(13) of the
Securities Act; an investment company registered under the Investment Company
Act of 1940 (the "1940 Act") or a business development company as defined in
Section 2(a)(48) of the 1940 Act; a Small Business Investment Company licensed
by the U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958; or an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974
("ERISA"), if the investment decision is made by a plan fiduciary, as defined in
Section 3(21) of ERISA, which fiduciary is either a bank, savings and loan
association, insurance company or registered investment adviser, or if the
employee benefit plan has total assets in excess of $5,000,000 or if a self-
directed plan, with investment decisions made solely by persons that are
Accredited Investors (as listed in categories (a) - (h) herein);
(d) a private business development company as defined in Section 202(a)(22) of
the 1940 Act;
(e) an organization described in Section 501 (c)(3) of the Internal Revenue
Code, a corporation, Massachusetts or similar business trust or a partnership,
with total assets in excess of $5,000,000, and which was not formed for the
specific purpose of engaging in this transaction;
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(f) a trust, with total assets in excess of $5,000,000, not formed for the
specific purpose of engaging in this transaction, which is directed by a person
who has such knowledge and experience in financial and business matters that he
is capable of evaluating the merits and risks of this investment;
(g) a director or executive officer of the Company; or
(h) an entity in which all of the equity owners are Accredited Investors [as
listed in categories (a) - (h)].
Section 9. MISCELLANEOUS
Section 9.01. Governing Law. This Convertible Note shall be construed in
accordance with the laws of the State of Florida applicable to contracts entered
into and to be performed wholly within said State.
Section 9.02. Successors and Assigns. All the covenants, stipulations,
promises and agreements in the Convertible Notes held by or on behalf of the
Company shall bind its successors and assigns, whether so expressed or not
Section 9.03 Course of Dealing: No Waiver. No course of dealing between the
Company and the Holder hereof shall operate as a waiver of any right of any
holder hereof and no delay on the part of the Holder in exercising any right
hereunder shall so operate.
Section 9.04. Waiver of Compliance.
(a) Any term, covenant, agreement or condition hereof may be amended, or
compliance therewith may be waived (either generally or in a particular instance
and either retroactively or prospectively), if the Company shall have obtained
the agreement or consent in writing of the Holders of at least 51% in
aggregate principal amount of all outstanding Convertible Notes, but no such
amendment or waiver shall:
(i) change the amount or maturity of any principal on the Convertible Notes or
change the rate or extend the time of payment of interest on the Convertible
Notes or reduce the amount of principal thereof or modify any of the provisions
of the Convertible Notes with respect to the payment or prepayment thereof:
(ii) give to any Convertible Note any preference or priority over any other
Convertible Note; or
(iii) reduce the percentage of Holders of the Convertible Notes required to
approve any such amendment or effectuate any such waiver.
(b) In determining whether the Holders of the requisite principal amount of
outstanding Convertible Notes have given any authorization, consent or waiver
under this Section 9.04 or under Section 5.02, Convertible Notes owned by the
Company or any Affiliate thereof shall be disregarded and deemed not to be
outstanding.
Section 9.05. Manner of giving Notices. Any notice required to be given to the
Holder hereof by the Company hereunder shall be given by certified registered
mail to the Holder at its address designated on the register referred to in
Section 1.01 on the date of such notice.
Section 9.06. Expenses in Preparation. All expenses of the Holder in the
negotiation, preparation, execution and delivery of this Convertible Note shall
be paid by the Company.
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Section 9.07. Other Provisions. The Company waives demand, presentment,
protest, notice of dishonor and any other form of notice, that may be required
to hold the Company liable on this Note.
IN WITNESS WHEREOF, the undersigned has caused this Convertible Note to be
signed in its corporate name by one of its officers thereunto duly authorized,
and to be dated as of the date first written above.
Witness: FINANCIALWEB.COM, INC.
By: /s/ James P. Gagel By: /s/ Kevin Lichman
----------------------------- ----------------------------
James P. Gagel Kevin Lichman
Title: Secretary Title: President
Date: February 12, 1999
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EXHIBIT 4.15
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD, OFFERED
FOR SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS THEY ARE SO REGISTERED OR
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
FINANCIALWEB. COM, INC.
CONVERTIBLE NOTE DUE FEBRUARY 11, 2000
Principal Amount: $100,000.
FINANCIALWEB. COM, INC. a Nevada corporation (the "Company"), for value
received, hereby promises to pay Mr. Steven Muslin, Esq. registered assigns, on
February 11, 2000, the principal amount of One hundred thousand dollars
($100,000) (or so much thereof as shall not have been prepaid or surrendered for
conversion) in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts, at the offices of the Holder located at 19 South LaSalle St., Suite 700,
Chicago, IL. 60603 together with interest (computed on the basis of 360-day year
on twelve 30 days months) on the unpaid portion of the principal amount hereof
at the interest rate of the Chase Manhattan Bank, New York prime rate (as
amended from time to time) plus two (2%) per annum (the "Interest Rate").
Section 1. THE NOTES.
Section 1.01. Registration, Transfer and Exchange of Convertible Notes. The
Company shall keep at its principal office a register in which the Company will
provide for registration, transfer and exchange of Convertible Notes. Subject to
compliance with applicable securities laws, the Holder (as defined below) of any
Convertible Note may, at its option and either in person or by duly authorized
attorney, surrender the same at said office for registration of transfer or
exchange, accompanied, if surrendered for transfer, by a written instrument of
transfer duly executed by said Holder or attorney. If any Holder shall so
request transfer or exchange of a Convertible Note held by it, the Company
shall, within a reasonable time thereafter, without expense to such Holder
(other than transfer taxes, if any) deliver to or upon its order one or more
Convertible Notes in the same unpaid aggregate principal amount as the
Convertible Note so surrendered, each dated the date to which interest has been
paid on the Convertible Note so surrendered, in the principal amount of $5,000
or any multiple thereof, and registered in such name or names, or payable to
such Person or Persons, or order, as shall be specified by the Holder making
such request The Company may deem and treat the Holder of any Convertible Note
as the absolute owner of such Convertible Note for the purpose of receiving
payment of or on account of the principal and interest on such Convertible Note
and for the purposes of any notices, waivers or consent thereunder, and payment
of any Convertible Note shall be made only to or upon the order in writing of
such Holder.
Section 1.02. Loss. Theft. Destruction or Convertible Notes. Upon receipt of
evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Convertible Note and, in the case of any such loss, theft or
destruction, upon receipt of indemnity reasonably satisfactory to the Company,
or in the case of any such mutilation, upon surrender and cancellation of this
Convertible Note, the Company will make and deliver, in lieu of such lost
stolen, destroyed or mutilated Convertible Note, a new Convertible Note of like
tenor and unpaid principal amount and dated as of the date from which unpaid
interest has then accrued on the Convertible Note so lost, stolen, destroyed or
mutilated.
Section 2. DEFINITIONS.
Section 2.01. Terms Defined. The terms defined in this Section 2.01 (except as
herein otherwise expressly provided or unless the context otherwise requires for
all purposes of this Convertible Note shall have the respective meanings
specified in this Section 2.01.
Common Stock: The term "Common Stock" means shares of the Company's Common
Stock, par value $.001 per share.
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<PAGE>
Company: The term "Company" means FINANCIALWEB. COM, INC. a Nevada
corporation, and any successor corporation to the Company (including the
corporation surviving any subsequent merger).
Current Conversion Price: The term "Current Conversion Price" means the
Conversion Price as most recently adjusted pursuant to Section 6.06.
Default: The term "Default" means an event which with notice or upon the
lapse of time or both would become an Event of Default.
Event of Default: The term "Event of Default" means any event specified in
Section 5.01, continued for the period of time, if any, and after the giving of
notice, if any, therein designated.
Holder: The term "Holder", means the Person in whose name such Convertible
Note is registered in the register maintained by the Company pursuant to Section
1.01.
Maturity: The term "Maturity" when used with respect to any Convertible
Note means the date of which the principal (and interest,) of such Convertible
Note becomes due and payable as herein provided, whether at February 11, 2000,
(b) declaration of acceleration or (c) otherwise.
Section 3. CERTAIN COVENANTS.
Section 3.01. Payment of Convertible Notes. The Company will duly and
punctually pay or cause to be paid in cash the principal and the interest on
each of the Convertible Notes at the time and place and in the manner provided
herein.
Section 3.02. General Covenants. The Company Will:
(a) promptly pay and discharge or cause to be paid and discharged all
lawful taxes, assessments, and governmental charges or levies imposed upon the
Company upon the income of profits of the Company or upon any property, real,
personal or mixed, belonging to the Company or upon any part thereof, before the
same shall become in default, as well as all lawful claims for labor, material
and supplies which, if unpaid, might become a lien or charge upon such
properties or any part thereof, except that the Company shall not be required to
pay and discharge or to cause to be paid and discharged any such tax,
assessment, charge, levy or claim so long as the validity thereof shall be
contested in good faith by appropriate proceedings and the Company as the case
may be, shall set aside on its books such reserves, if any, as shall be deemed
by it adequate with respect to any such tax, assessment, charge, levy or claim
so contested.
(b) do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises, and comply
with all laws applicable to the Company as its counsel may advise; except that
nothing in this subsection (b) shall prevent a liquidation or dissolution of, or
a sale, transfer or disposition of the property and assets of, or a merger or
consolidation of, the Company or any Affiliate not prohibited by the provisions
of Section 3.04; and
(c) at all times maintain, preserve, protect and keep, or cause to be
maintained, preserved, protected and kept, its property used or useful in the
conduct of the business of the Company in good repair, working order and
condition, and from time to time make, or cause to be made, all necessary and
proper repairs, renewals, replacements betterment and improvements thereto, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
Section 3.03. Notice of Defaults In the event that any Event of Default shall
have occurred, the Company will promptly give written notice thereof to each
Holder of a Convertible Note.
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Section 3.04. Mergers, etc. Subject to Section 3.02, the Company may not
consolidate with or merge into, or transfer all or substantially all its assets
to, another corporation unless (a) the resulting, surviving or transfer
corporation assumes in writing all the obligations of the Company under the
Convertible Notes and (b) no Event of Default shall have occurred and be
continuing. Upon any consolidation or merger, or any transfer of all or
substantially all the assets of the Company in accordance with this Section
3.04, the successor corporation formed by such consolidation or with or into
which the Company is merged or to which such transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under the Convertible Note with the same effect as if such successor corporation
has been named as the Company herein.
Section 3.05. Notice of Mergers. The Company shall, within ten business days
after the effective date of each merger or consolidation of the Company, notify
each Holder of the Convertible Notes that such merger or consolidation has
occurred and shall specify such effective date.
Section 4. OPTIONAL PREPAYMENTS.
Section 4.01. Optional Prepayments. The Company shall have the privilege, at
any time and from time to time prior to Maturity of prepaying the outstanding
Convertible Notes, either in whole or in part by payment of the principal amount
of each Convertible Note, or portion thereof to be prepaid, and accrued interest
thereon to the date of such prepayment, without premium or penalty.
Section 4.02. Allocation of Prepayments. All partial prepayments pursuant to
Section 4.01 shall be applied on all outstanding Convertible Notes ratable in
accordance with the unpaid principal amounts thereof.
Section 5. REMEDIES.
Section 5.01. Events of Default. An "Event of Default" occurs if one or more
of the following shall happen (for any reason whatsoever and whether such
happening shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) if default be made in the punctual payment of the principal on any of
the Convertible Notes when and as the same shall become due and payable, whether
at the fixed maturity of said Convertible Notes; or
(b) if default be made in the payment of any installment of interest on any
of the Convertible Notes and such default shall continue for a period of 90 days
after notice; or
(c) if default be made in the due observance or performance of any
covenant, condition or agreement contained in Section 3.02 to 3.05, both
inclusive, and such default shall have continued for a period of 30 days after
the Holders of a majority of the principal amount of the Convertible Notes then
outstanding shall have given notice to the Company (which notice shall specify
the default, demand that it be remedied and state that the notice is a "Notice
of Default"); or
(d) the Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case, (ii) consents to the entry of an order for
relief against it in any involuntary case, (iii) consents to the appointment of
a Custodian of it or for any substantial part of its property, (iv) makes a
general assignment for the benefit of its creditors; or
(e) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that: (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company or for any substantial part of
its property, (iii) orders the liquidation of the Company; and the order or
decree remains unstayed and in effect for 30 days.
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The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator, sequestrator or similar official under any
Bankruptcy Law.
Section 5.02. Acceleration. If an Event of Default (other than an Event of
Default specified in Section 5.01 (d) or (e)) occurs and is continuing then, at
the option of the Holder of this Convertible Note, exercised by written notice
to the Company, the principal of this Convertible Note shall forthwith become
due and payable, together with the interest accrued hereon. If an Event of
Default specified in Section 5.01 (d) or (e) occurs at any time, such an amount
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Holder of this Convertible Note.
The provisions of this Section 5.02 are subject, however, to the condition
that if, at any time after any Convertible Note shall have so become due and
payable, the Company shall pay all arrears of interest on the Convertible Notes
and all payments on account of the principal (and accrued interest on
Convertible Notes due and payable by virtue of acceleration) shall be remedied
or waived pursuant to Section 9.04, then, and in every such case, subject to
Section 9.04 (b), the Holder or Holders of at least 66-2/3% in aggregate
principal amount of all Convertible Notes at the time outstanding, by written
notice to the company, may rescind and annul such acceleration and its
consequences; but no such action shall affect any subsequent Default or Event of
Default or impair any right consequent thereon.
Section 5.03. Other Remedies. Subject to the provisions of Section 5.02, in
case any one or more of the Events of Default specified in Section 5.01 shall
have occurred and be continuing, the Holder of this Convertible Note may proceed
to protect and enforce its rights by suit in equity, action at law or by other
appropriate proceedings or both, whether for the specific performance of any
covenant or agreement contained in this Convertible Note or in aid of the
exercise of any power granted in this Convertible Note, or may proceed to
enforce the payment of this Convertible Note or to enforce any other legal or
equitable right of the Holder of this Convertible Note.
Section 5.04. Notice by the Company of Acceleration or Other Action by
Convertible Noteholders or Holders of Other Indebtedness. If any Holder of a
Convertible Note shall give any notice to the Company with respect to any Event
of Default (or with respect to any event which with notice or the lapse of time,
or both, would be an Event of Default), or accelerate the maturity thereof or
take any other action in respect of an Event of Default or such event, or if the
holder of any bond, debenture, note or other similar evidence of indebtedness
(other than the Convertible Notes) of, or secured or guaranteed by, the Holder
shall give any notice to the Company in respect of any default thereunder or
under any agreement pursuant to which such bond, debenture, note or other
evidence or indebtedness is issued, the Company shall forthwith give written
notice to all Holders of Convertible Notes, specifying such action and the
nature and status of Event of Default or event or other default.
Section 5.05. Remedies Cumulative. No remedy herein conferred upon the Holder
of this Convertible Note is intended to be exclusive of any other remedy and
each and every such remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or otherwise.
Section 5.06. Enforcement. If there shall be any Default under this
Convertible Note and this Convertible Note shall be placed in the hands of an
attorney for collection, or shall be collected through any court, including any
bankruptcy court, the Company promises to pay to the order of the Holder hereof
such Holder's reasonable attorneys' fees and court costs incurred in collecting
or attempting to collect or securing or attempting to secure this Convertible
Note or enforcing the Holder's rights with respect to any collateral securing
this Convertible Note, to the extent allowed by the laws of the State of Florida
or any state in which any collateral for this Note shall be situated.
Section 6. CONVERSION.
Section 6.01. Right of Conversion, Conversion Price. Subject to and upon
compliance with the provisions of this Section 6, the Holder shall have the
right, at his option, at any time during usual
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business hours (including the period between the date on which the Company gives
notice of prepayment and the Prepayment Date) to convert the principal and
accrued interest of any Convertible Note owned by such Holder into fully paid
and in nonassessable shares of Common Stock at the rate of $4.00 for each share
of common Stock (the "Conversion Price") which price per share shall be payable
by surrender of such convertible Note.
(a) As of the date hereof, the authorized and outstanding capital stock of the
Company is 4,973,000 (four million nine hundred seventy three thousand) shares.
Section 6.02. Manner of Exercise.
(a) In order to exercise the conversion right, the Holder of any Convertible
Note to be converted shall surrender such Convertible Note at the office of the
Company, accompanied by written notice to the Company stating (i) that the
Holder elects to convert such Convertible Note or, if less than the entire
principal amount of a Convertible Note is to be converted, the portion thereof
(a multiple of $1,000) to be converted, and (ii) the name or names (with
addresses) in which the certificate or certificates for shares of Common Stock
issuable on such conversion shall be issued. Convertible Notes surrendered for
conversion shall be accompanied by proper assignment thereof to the Company or
in blank for transfer if the shares are to be issued in a name other than that
of the Holder.
(b) In the case of any Convertible Note which is converted in part only, upon
such conversion the Company shall execute and deliver to the Holder thereof, at
the expense of the Company, a new Convertible Note or Convertible Notes of
authorized denominations in principal amount equal to the unconverted portions
of such Convertible Note.
Section 6.03. Issuance of Shares of Common Stock on Conversion.
(a) As promptly as practicable after the receipt of such notice and the
surrender of such convertible Note as aforesaid, the Company shall issue, at its
expense, and shall deliver to such Holder, or on his written order, at the
aforesaid office of the Company (i) a certificate or certificates for the number
of full shares of Common Stock issuable upon the conversion of such Convertible
Note (or specified portion thereof), and (ii) a certificate or certificates for
any fractional shares of Common Stock issuable upon conversion of such
Convertible Note (or specified portion thereof) or, at the Company's option,
cash in lieu of script for any fraction of a share to which such Holder is
entitled upon conversion as provided in Section 6.05.
(b) Such conversion shall be deemed to have been effected immediately prior to
the close of business on the date ("Conversion Date") on which the Company shall
have received both such notice and the surrendered Convertible Note as
aforesaid, and at such time the rights of the Holder of such Convertible Note
shall cease and the Person or Persons in whose name or names any certificate or
certificates for shares of common Stock shall be issuable upon such conversion
shall be deemed to have become the holder of holders of record of the shares
represented thereby.
Section 6.04. No Adjustments for Interest or Dividends. No payment or
adjustment shall be made by or on behalf of the Company on account of any
interest accrued on any Convertible Notes surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon such
conversion which were declared for payment to holders of shares of Common Stock
or record as of a date prior to the Conversion Date. All payments of accrued
interest on any Convertible Note shall be made in cash or additional stock at
the Conversion Price, at Company's option.
Section 6.05. Fractional Shares. The Company, at its option, may issue
fractional shares of common Stock upon any conversion of Convertible Notes or,
in lieu of any fraction of a share of Common Stock to which any Holder would
otherwise be entitled upon conversion of any Convertible Notes (or specified
portions thereof), the Company may pay a cash adjustment for such fraction in an
amount equal to same fraction of the conversion price per share.
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Section 6.06. Adjustment of Conversion Price. The Conversion Price shall be
adjusted as set forth in this section.
(a) In the event that the Company shall make any distribution of its assets
upon or with respect to its shares of Common Stock, as a liquidating or partial
liquidating dividend, or other than as a dividend payable out of earnings or any
surplus legally available for dividends under the laws of the state of
incorporation of the Company, each Holder of any Convertible Note then
outstanding shall, upon the exercise of his right to convert after the record
date for such distribution or, in the absence of a record date, after the date
of such distribution receive, in addition to the shares subscribed for, the
amount of such assets (or, at the option of the Company, a sum equal to the
value thereof at the time of distribution as determined by the Board of
Directors in its sole discretion) which would have been distributed to such
Holder if he had exercised his right to convert immediately prior to the record
date for such distribution or, in the absence of a record date, immediately
prior to the date of such distribution.
(b) In case at any time the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares, the current Conversion Price in
effect immediately prior to such subdivision shall be proportionately reduced
and conversely, in case the outstanding shares of Common Stock of the company
shall be combined into a smaller number of shares, the Current Conversion Price
in effect immediately prior to such combination shall be proportionately
increased.
(c) If any capital reorganization or reclassification of the capital stock of
the Company, or consolidation or merger of the company with another corporation,
or the sale transfer or lease of all or substantially all of its assets to
another corporation, shall be effected in such a way that holders of shares of
Common Stock shall be entitled to receive shares, securities or assets with
respect to or in exchange for shares of Common Stock, then, as a condition of
such reorganization, reclassification, consolidation, merger or sale, the
Company or such successor or purchasing corporation, as the case may be, shall
execute an amendment to the Convertible Notes providing that the Holder of each
Convertible Note then outstanding shall have the right thereafter and until the
expiration of the period of convertibility to convert such Convertible Note into
the kind and amount of shares, securities or assets receivable upon such
reorganization, reclassification, consolidation, merger or sale by a holder of
the number of shares of common Stock into which such convertible Note might have
been converted immediately prior to such reorganization, reclassification,
consolidation, merger or sale, subject to adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
6.
(d) Upon such adjustment of the Conversion Price pursuant to the provisions of
this Section 6.06, the number of shares issuable upon conversion of this Note
shall be adjusted to the nearest full amount by multiplying a number equal to
the Conversion Price in effect immediately prior to such adjustment by the
number of shares of Common Stock issuable upon exercise of this Note immediately
prior to such adjustment and dividing the product so obtained by the adjusted
Conversion Price.
Section 6.07. Covenant to Reserve Shares for Conversion. The Company
convenants that it will at all times reserve and keep available out of its
authorized shares of Common Stock, such number of shares of Common Stock as
shall then be deliverable upon the conversion of all outstanding Convertible
Notes. All shares of Common Stock, which shall be deliverable, shall be duly and
validly issued and fully paid and nonassessable.
Section 6.08. Notice of Change of Conversion Price. Whenever the Conversion
Price is adjusted, as herein provided, the Company shall promptly send to each
Holder a certificate of a firm or independent public accountants (who may be the
accountants regularly employee by the Company) selected by the Board of
Directors setting forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment. Such certificate
shall be conclusive evidence of the correctness of such adjustment.
Section 7. REGISTRATION RIGHTS.
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Section 7.01. Piggy-Back. If the Company proposes to file, on its behalf
and/or on behalf of any of its securities holders, a Registration Statement
under the Securities Act of 1933, as amended (the "Securities Act") other than
in connection with a dividend reinvestment, employee stock purchase, option or
similar plan or in connection with a merger, consolidation or reorganization,
the Company shall give written notice to each Holder at least 30 days before the
filing with the Securities and Exchange Commission ("SEC") of such Registration
Statement. Each Holder who desires to include any of its shares of Common Stock
into which the Convertible Notes are convertible, whether or not already
converted, (the "Registrable Securities") in such Registration Statement shall
give written notice to the Company within 20 days after the date of mailing of
such offer, and shall deliver to the Company a letter from counsel selected by
such Holder to the effect that registration under the Securities Act is
required. The Company shall thereupon include in such filing the shares of
Common Stock designated by such Holder and, subject to its right to withdraw
such filing, shall use its best efforts to effect registration under the
Securities Act of such shares of Common Stock.
Section 7.02. Conditions. The right of the Holders to have shares included in
any registration Statement in accordance with the provision of this Section 7
shall be subject to the following conditions:
(a) The Company shall have the right to require that the Holders
participating in such registration Statement agree to refrain from offering or
selling (other than in a private sale) any shares of Common Stock that they own
which are not included in any such Registration Statement in accordance with
this Section 7 for any time period specified in writing by any managing
underwriter of the offering to which such registration Statement relates;
(b) If any managing underwriter of the offering to which the Registration
Statement relates informs the Company in writing that the total number of shares
of Common Stock requested by the Holders to be included in the Registration
Statement is sufficiently large to affect the success of such offering
adversely, then the Company will include only the number of shares, if any, in
the Registration Statement that such managing underwriter shall advise the
Company will not so affect the offering, and reductions in the number of shares
of Common Stock owned by the Holders and other persons who have elected to have
shares Common Stock included in such Registration Statement will be made
proportionate to their respective percentages of ownership of shares to be
included in the Registration Statement;
(c) The Company shall furnish Holders who have shares included in a
Registration Statement pursuant to this Section 7 with such number of copies of
the prospectus relating to the offering (the "Prospectus") (including any
preliminary prospectus or supplemental or amended prospectus) as such Holder may
reasonably request in order to facilitate the sale and distribution of its
shares; and
Section 7.03. Registration or Offering. The Company shall use its best efforts
to prepare and file the Registration Statement or proceed with the Offering as
to which the notice specified herein is given.
Section 7.04. "No Action" Letter: Opinion of Counsel. No Holder shall have
registration rights under this Section with respect to any sales proposed by
them of shares as to which sales (i) a "no action" letter is received from the
SEC or its staff confirming the availability of an exemption from the
requirements of the Securities Act or (ii) an unqualified opinion of counsel to
the Company is rendered to the effect that registration of such shares for such
sales is not required; provided that in both cases (i) and (ii) above, the
volume limitations of Rule 144(e) under the Securities Act shall not limit the
amount of shares of Common Stock that the Holders are entitled to offer and
sell without registration under the Securities Act.
Section 7.05. Recall of Prospectuses, etc. With respect to a Registration
Statement or amendment thereto filed pursuant to this Section, if, at any time,
the Company notifies the selling Holder that an amendment or supplement to such
Registration Statement or amendment or the prospectus included therein is
necessary or appropriate, the selling Holder will forthwith cease selling and
distributing shares thereunder and will forthwith redeliver to the Company all
copies of such registration Statement and prospectuses then in their possession
or under their control.
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Section 7.06. Cooperation of Holders. The Company shall be entitled to require
that each selling Holder cooperate with the Company in connection with a
registration of shares of Common Stock pursuant to this Section and furnish such
information, representations, undertakings and agreements regarding such selling
Holder and the distribution as may be reasonably required by the Company or as
required by law in connection therewith.
Section 7.07. Expenses. The Company will bear all the expenses in connection
with any Registration Statement under this Section 7 (including the fees and
expenses of a single counsel to the Holders) other than transfer taxes payable
on the sale of such shares and fees And commissions of brokers, dealers and
underwriters.
Section 7.08. Indemnification. In the event of the registration of any
securities under the Securities Act pursuant to this Section, the Company and
the Holders shall provide to each other customary indemnification to the extent
of any loss, claim, damage, liability or expense arising out of such
registration.
Section 8: STATUS OF THE HOLDER:
Section 8.01. The Holder has such knowledge and experience in financial
and business matters that the Holder is capable of evaluating the merits and
risks of this Convertible Note. The Holder is able to bear the economic risk of
this Note. The Holder has had the opportunity to consult with the Holder's own
attorney, accountant and/or purchaser representative regarding this Note and the
suitability of this transaction, and to the extent necessary, the Holder has
retained, at Holder's own expense, and relied upon, appropriate professional
advice regarding this Note, the investment it represents, tax and legal merits,
risks and consequences of this Note and of purchasing and owning the Shares.
Section 8.02. The Holder represents that the Holder is an "Accredited
Investor", as that term is defined below, and that at least one of the
categories set forth in (a) through (h) below applies to the Holder. The Holder
is one or more of the following:
(a) a natural person whose individual net worth, or joint net worth with
that person's spouse, exceeds $1,000,000;
(b) a natural person who had an individual income in excess of $200,000 in
each of the two most recent years or joint income with that person's spouse in
excess of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year.
(c) a bank as defined in Section 3(a)(2) of the Securities Act or a savings
and loan association or other institution as defined in Section 3(a) (5)(A) of
the Securities Act, whether acting in its individual or fiduciary capacity; a
broker or dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934; an insurance company as defined in Section 2(13) of the Securities
Act; an investment company registered under the Investment Company Act of 1940
(the "1940 Act") or a business development company as defined in Section
2(a)(48) of the 1940 Act; a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958; or an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974 ("ERISA"), if
the investment decision is made by a plan fiduciary, as defined in Section 3(21)
of ERISA, which fiduciary is either a bank, savings and loan association,
insurance company or registered investment adviser, or if the employee benefit
plan has total assets in excess of $5,000,000 or if a self-directed plan, with
investment decisions made solely by persons that am Accredited Investors (as
listed in categories (a)-(h) herein);
(d) a private business development company as defined in Section 202(a)(22)
of the 1940 Act;
(e) an organization described in Section 501(c)(3) of the Internal Revenue
Code, a corporation, Massachusetts or similar business trust or a partnership,
with total assets in excess of $5,000,000, and which was not formed for the
specific purpose of engaging in this transaction;
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(f) a trust, with total assets in excess of $5,000,000, not formed for the
specific purpose of engaging in this transaction, which is directed by a person
who has such knowledge and experience in financial and business matters that he
is capable of evaluating the merits and risks of this investment;
(g) a director or executive officer of the Company; or
(h) an entity in which all of the equity owners are Accredited Investors
[as listed in categories (a)-(h)]
Section 9. MISCELLANEOUS
Section 9.01. Governing Law. This Convertible Note shall be construed in
accordance with the laws of the State of Florida applicable to contracts entered
into and to be performed wholly within said State.
Section 9.02. Successors and Assigns. All the covenants, stipulations,
promises and agreements in the Convertible Notes held by or on behalf of the
Company shall bind its successors and assigns, whether so expressed or not.
Section 9.03. Course of Dealing: No Waiver. No course of dealing between the
Company and the Holder hereof shall operate as a waiver of any right of any
holder hereof and no delay on the part of the Holder in exercising any right
hereunder shall so operate.
Section 9.04. Waiver of Compliance
(a) Any term, covenant, agreement or condition hereof may be amended, or
compliance therewith may be waived (either generally or in a particular instance
and either retroactively or prospectively), if the Company shall have obtained
the agreement or consent in writing of the Holders of at least 51% in aggregate
principal amount of all outstanding Convertible Notes, but no such amendment or
waiver shall:
(i) change the amount or maturity of any principal on the Convertible Notes
or change the Note or extend the time of payment of interest on the Convertible
Notes or reduce the amount of principal thereof or modify any of the provisions
of the Convertible Notes with respect to the payment or prepayment thereof,
(ii) give to any Convertible Note any preference or priority over any
other Convertible Note; or
(iii) reduce the percentage of Holders of the Convertible Notes required to
approve any such amendment or effectuate any such waiver.
(b) In determining whether the Holders of the requisite principal amount of
outstanding Convertible Notes have given any authorization, consent or waiver
under this Section 9.04 or under Section 5.02, Convertible Notes owned by the
Company or any Affiliate thereof shall be disregarded and deemed not to be
outstanding.
Section 9.05. Manner of giving Notices. Any notice required to be given to the
Holder hereof by the Company hereunder shall be given by certified registered
mail to the Holder at its address designated on the register referred to in
Section 1.01 on the date of such notice.
Section 9.06. Expenses in Preparation. All expenses of the Holder in the
negotiation, preparation, execution and delivery of this Convertible Note shall
be paid by the Company.
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Section 9.07. Other Provisions. The Company waives demand, presentment,
protest, notice of dishonor and any other form of notice, that may be required
to hold the Company liable on this Note.
IN WITNESS WHEREOF, the undersigned has caused this Convertible Note to be
signed in its corporate name by one of its officers thereunto duly authorized,
and to be dated as of the date first written above.
Witness: FINANCIALWEB. COM INC.
By: /s/ James P. Gagel By: /s/ Kevin Lichtman
-------------------------- -------------------------
James P. Gagel Kevin Lichtman
Title: Secretary Title: President
----------------------- ----------------------
Date: February 12, 1999
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EXHIBIT 4.16
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD, OFFERED
FOR SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS THEY ARE SO REGISTERED OR
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
FINANCIALWEB. COM, INC.
CONVERTIBLE NOTE DUE FEBRUARY 11, 2000
Principal Amount: $100,000.
FINANCIAL,WEB. COM, INC. a Nevada corporation (the "Company"), for value
received, hereby promises to pay Dr. Thwack, an Illinois General Partnership
(represented by General Partner Steven Hagler, Esq.) (the "Holder"), or
registered assigns, on February 11, 2000, the principal amount of One hundred
thousand dollars ($100,000) (or so much thereof as shall not have been prepaid
or surrendered for conversion) in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, at the offices of the Holder located at 3000 Dundee
Rd., Suite 105, North Brook, IL. 60062 together with interest (computed on the
basis of 360-day year on twelve 30 days months) on the unpaid portion of the
principal amount hereof at the interest rate of the Chase Manhattan Bank, New
York prime rate (as amended from time to time) plus two (2%) per annum (the
"Interest Rate").
Section 1. THE NOTES.
Section 1.01. Registration, Transfer and Exchange of Convertible Notes. The
Company shall keep at its principal office a register in which the Company will
provide for registration, transfer and exchange of Convertible Notes. Subject to
compliance with applicable securities laws, the Holder (as defined below) of any
Convertible Note may, at its option and either in person or by duly authorized
attorney, surrender the same at said office for registration of transfer or
exchange, accompanied, if surrendered for transfer, by a written instrument of
transfer duly executed by said Holder or attorney. If any Holder shall so
request transfer or exchange of a Convertible Note held by it, the Company
shall, within a reasonable time thereafter, without expense to such Holder
(other than transfer taxes, if any) deliver to or upon its order one or more
Convertible Notes in the same unpaid aggregate principal amount as the
Convertible Note so surrendered, each dated the date to which interest has been
paid on the Convertible Note so surrendered, in the principal amount of $5,000
or any multiple thereof, and registered in such name or names, or payable to
such Person or Persons, or order, as shall be specified by the Holder making
such request. The Company may deem and treat the Holder of any Convertible Note
as the absolute owner of such Convertible Note for the purpose of receiving
payment of or on account of the principal and interest on such Convertible Note
and for the purposes of any notices, waivers or consent thereunder, and payment
of any Convertible Note shall be made only to or upon the order in writing of
such Holder.
Section 1.02. Loss, Theft, Destruction or Convertible Notes. Upon receipt of
evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Convertible Note and, in the case of any such loss, theft or
destruction, upon receipt of indemnity reasonably satisfactory to the Company,
or in the case of any such mutilation, upon surrender and cancellation of this
Convertible Note, the Company will make and deliver, in lieu of such lost
stolen, destroyed or mutilated Convertible Note, a new Convertible Note of like
tenor and unpaid principal amount and dated as of the date from which unpaid
interest has then accrued on the Convertible Note so lost, stolen, destroyed or
mutilated.
Section 2. DEFINITIONS.
Section 2.01. Terms Defined. The terms defined in this Section 2.01 (except as
herein otherwise expressly provided or unless the context otherwise requires for
all purposes of this Convertible Note shall have the respective meanings
specified in this Section 2.01.
Common Stock: The term "Common Stock means shares of the Company's Common
Stock, par value $.001 per share.
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Company: The term "Company" means FINANCIALWEB. COM, INC. a Nevada
corporation, and any successor corporation to the Company (including the
corporation surviving any subsequent merger).
Current Conversion Price: The term "Current Conversion Price" means the
Conversion Price as most recently adjusted pursuant to Section 6.06.
Default: The term "Default" means an event which with notice or upon the
lapse of time or both would become an Event of Default.
Event of Default: The term "Event of Default" means any event specified in
Section 5.01, continued for the period of time, if any, and after the giving of
notice, if any, therein designated.
Holder: The term "Holder" means the Person in whose name such Convertible
Note is registered in the register maintained by the Company pursuant to
Section 1.01.
Maturity: The term "Maturity" when used with respect to any Convertible
Note means the date of which the principal (and interest,) of such Convertible
Note becomes due and payable as herein provided, whether at February 11, 2000,
(b) declaration of acceleration or (c) otherwise.
Section 3. CERTAIN COVENANTS.
Section 3.01. Payment of Convertible Notes. The Company will duly and
punctually pay or cause to be paid in cash the principal and the interest on
each of the Convertible Notes at the time and place and in the manner provided
herein.
Section 3.02. General Covenants. The Company will:
(a) promptly pay and discharge or cause to be paid and discharged all
lawful taxes, assessments, and governmental charges or levies imposed upon the
Company upon the income of profits of the Company or upon any property, real,
personal or mixed, belonging to the Company or upon any part thereof, before the
same shall become in default, as well as all lawful claims for labor, material
and supplies which, if unpaid, might become a lien or charge upon such
properties or any part thereof, except that the Company shall not be required to
pay and discharge or to cause to be paid and discharged any such tax,
assessment, charge, levy or claim so long as the validity thereof shall be
contested in good faith by appropriate proceedings and the Company as the case
may be, shall set aside on its books such reserves, if any, as shall be deemed
by it adequate with respect to any such tax, assessment, charge, levy or claim
so contested.
(b) do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises, and comply
with all laws applicable to the Company as its counsel may advise; except that
nothing in this subsection (b) shall prevent a liquidation or dissolution of, or
a sale, transfer or disposition of the property and assets of, or a merger or
consolidation of, the Company or any Affiliate not prohibited by the provisions
of Section 3.04; and
(c) at all times maintain, preserve, protect and keep, or cause to be
maintained, preserved, protected and kept, its property used or useful in the
conduct of the business of the Company in good repair, working order and
condition, and from time to time make, or cause to be made, all necessary and
proper repairs, renewals, replacements betterment and improvements thereto, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
Section 3.03. Notice of Defaults In the event that any Event of Default shall
have occurred, the Company will promptly give written notice thereof to each
Holder of a Convertible Note.
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Section 3.04. Mergers, etc. Subject to Section 3.02, the Company may not
consolidate with or merge into, or transfer all or substantially all its assets
to, another corporation unless (a) the resulting, surviving or transferee
corporation assumes in writing all the obligations of the Company under the
Convertible Notes and (b) no Event of Default shall have occurred and be
continuing. Upon any consolidation or merger, or any transfer of all or
substantially all the assets of the Company in accordance with this Section
3.04, the successor corporation formed by such consolidation or with or into
which the Company is merged or to which such transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under the Convertible Note with the same effect as if such successor corporation
has been named as the Company herein.
Section 3.05. Notice of Mergers. The Company shall, within ten business days
after die, effective date of each merger or consolidation of the Company, notify
each Holder of the Convertible Notes that such merger or consolidation has
occurred and shall specify such effective date.
Section 4. OPTIONAL PREPAYMENTS.
Section 4.01. Optional Prepayments. The Company shall have the privilege, at
any time and from time to time prior to Maturity of prepaying the outstanding
Convertible Notes, either in whole or in part by payment of the principal amount
of each Convertible Note, or portion thereof to be prepaid, and accrued interest
thereon to the date of such prepayment, without premium or penalty.
Section 4.02. Allocation of Prepayments. All partial prepayments pursuant to
Section 4.01 shall be applied on all outstanding Convertible Notes ratable in
accordance with the unpaid principal amounts thereof.
Section 5. REMEDIES.
Section 5.01 Events of Default. An "Event of Default occurs if one or more of
the following shall happen (for any reason whatsoever and whether such happening
shall be voluntary or involuntary or come about or be effected by operation of
law or pursuant to or in compliance with any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) if default be made in the punctual payment of the principal on any of
the Convertible Notes when and as the same shall become due and payable, whether
at the fixed maturity of said Convertible Notes; or
(b) if default be made in the payment of any installment of interest on any
of the Convertible Notes and such default shall continue for a period of 90 days
after notice; or
(c) if default be made in the due observance or performance of any covenant,
condition or agreement contained in Section 3.02 to 3.05, both inclusive, and
such default shall have continued for a period of 30 days after the Holders of a
majority of the principal amount of the Convertible Notes then outstanding shall
have given notice to the Company (which notice shall specify the default, demand
that it be remedied and state that the notice is a "Notice of Default"); or
(d) the Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case, (ii) consents to the entry of an order for
relief against it in any involuntary case, (iii) consents to the appointment of
a Custodian of it or for any substantial part of its property, (iv) makes a
general assignment for the benefit of its creditors; or
(e) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that: (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company or for any substantial part of
its property, (iii) orders the liquidation of the Company; and the order or
decree remains unstayed and in effect for 30 days.
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The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator, sequestrator or similar official under any
Bankruptcy Law.
Section 5.02. Acceleration. If an Event of Default (other than an Event of
Default specified in Section 5.01 (d) or (e)) occurs and is continuing then, at
the option of the Holder of this Convertible Note, exercised by written notice
to the Company, the principal of this Convertible Note shall forthwith become
due and payable, together with the interest accrued hereon. If an Event of
Default specified in Section 5.01 (d) or (e) occurs at any time, such an amount
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Holder of this Convertible Note.
The provisions of this Section 5.02 are subject, however, to the condition
that if, at any time after any Convertible Note shall have so become due and
payable, the Company shall pay all arrears of interest on the Convertible Notes
and all payments on account of the principal (and accrued interest on
Convertible Notes due and payable by virtue of acceleration) shall be remedied
or waived pursuant to Section 9.04, then, and in every such case, subject to
Section 9.04 (b), the Holder or Holders of at least 66 2/3% in aggregate
principal amount of all Convertible Notes at the time outstanding, by written
notice to the company, may rescind and annul such acceleration and its
consequences; but no such action shall affect any subsequent Default or Event of
Default or impair any right consequent thereon.
Section 5.03. Other Remedies. Subject to the provisions of Section 5.02, in
case any one or more of the Events of Default specified in Section 5.01 shall
have occurred and be continuing, the Holder of this Convertible Note may proceed
to protect and enforce its rights by suit in equity, action at law or by other
appropriate proceedings or both, whether for the specific performance of any
covenant or agreement contained in this Convertible Note or in aid of the
exercise of any power granted in this Convertible Note, or may proceed to
enforce the payment of this Convertible Note or to enforce any other legal or
equitable right of the Holder of this Convertible Note.
Section 5.04. Notice by the Company of Acceleration or Other Action by
Convertible Noteholders or Holders of Other Indebtedness. If any Holder of a
Convertible Note shall give any notice to the Company with respect to any Event
of Default (or with respect to any event which with notice or the lapse of time,
or both, would be an Event of Default), or accelerate the maturity thereof or
take any other action in respect of an Event of Default or such event, or if the
holder of any bond, debenture, note or other similar evidence of indebtedness
(other than the Convertible Notes) of, or secured or guaranteed by, the Holder
shall give any notice to the Company in respect of any default thereunder or
under any agreement pursuant to which such bond, debenture, note or other
evidence or indebtedness is issued, the Company shall forthwith give written
notice to all Holders of Convertible Notes, specifying such action and the
nature and status of Event of Default or event or other default.
Section 5.05. Remedies Cumulative. No remedy herein conferred upon the Holder
of this Convertible Note is intended to be exclusive of any other remedy and
each and every such remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or otherwise.
Section 5.06. Enforcement. If there shall be any Default under this
Convertible Note and this Convertible Note shall be placed in the hands of an
attorney for collection, or shall be collected through any court, including any
bankruptcy court, the Company promises to pay to the order of the Holder hereof
such Holder's reasonable attorneys' fees and court costs incurred in collecting
or attempting to collect or securing or attempting to secure this Convertible
Note or enforcing the Holder's rights with respect to any collateral securing
this Convertible Note, to the extent allowed by the laws of the State of Florida
or any state in which any collateral for this Note shall be situated.
Section 6. CONVERSION.
Section 6.01. Right of Conversion, Conversion Price. Subject to and upon
compliance with the provisions of this Section 6, the Holder shall have the
right, at his option, at any time during usual
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business hours (including the period between the date on which the Company gives
notice of prepayment and the Prepayment Date) to convert the principal and
accrued interest of any Convertible Note owned by such Holder into fully paid
and in nonassessable shares of Common Stock at the rate of $4.00 for each share
of Common Stock (the "Conversion Price") which price per share shall be payable
by surrender of such convertible Note.
(a) As of the date hereof, the authorized and outstanding capital stock of the
Company is 4,973,000 (four million nine hundred seventy three thousand) shares .
Section 6.02. Manner of Exercise.
(a) In order to exercise the conversion right, the Holder of any Convertible
Note to be converted shall surrender such Convertible Note at the office of the
Company, accompanied by written notice to the Company stating (i) that the
Holder elects to convert such Convertible Note or, if less than the entire
principal amount of a Convertible Note is to be converted, the portion thereof
(a multiple of $1,000) to be converted, and (ii) the name or names (with
addresses) in which the certificate or certificates for shares of Common Stock
issuable on such conversion shall be issued. Convertible Notes surrendered for
conversion shall be accompanied by proper assignment thereof to the Company or
in blank for transfer if the shares are to be issued in a name other than that
of the Holder.
(b) In the case of any Convertible Note which is converted in part only, upon
such conversion the Company shall execute and deliver to the Holder thereof, at
the expense of the Company, a new Convertible Note or Convertible Notes of
authorized denominations in principal amount equal to the unconverted portions
of such Convertible Note.
Section 6.03. Issuance of Shares of Common Stock on Conversion.
(a) As promptly as practicable after the receipt of such notice and the
surrender of such convertible Note as aforesaid, the Company shall issue, at its
expense, and shall deliver to such Holder, or on his written order, at the
aforesaid office of the Company (i) a certificate or certificates for the number
of full shares of Common Stock issuable upon the conversion of such Convertible
Note (or specified portion thereof), and (ii) a certificate or certificates for
any fractional shares of Common Stock issuable upon conversion of such
Convertible Note (or specified portion thereof) or, at the Company's option,
cash in lieu of script for any fraction of a share to which such Holder is
entitled upon conversion as provided in Section 6.05.
(b) Such conversion shall be deemed to have been effected immediately prior to
the close of business on the date ("Conversion Date") on which the Company shall
have received both such notice and the surrendered Convertible Note as
aforesaid, and at such time the rights of the Holder of such Convertible Note
shall cease and the Person or Persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such conversion
shall be deemed to have become the holder of holders of record of the shares
represented thereby.
Section 6.04. No Adjustments for Interest or Dividends. No payment or
adjustment shall be made by or on behalf of the Company on account of any
interest accrued on any Convertible Notes surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon such
conversion which were declared for payment to holders of shares of Common Stock
or record as of a date prior to the Conversion Date. All payments of accrued
interest on any Convertible Note shall be made in cash or additional stock at
the Conversion Price, at Company's option.
Section 6.05. Fractional Shares. The Company, at its option, may issue
fractional shares of Common Stock upon any conversion of Convertible Notes or,
in lieu of any fraction of a share of Common Stock to which any Holder would
otherwise be entitled upon conversion of any Convertible Notes (or specified
portions thereof), the Company may pay a cash adjustment for such fraction in an
amount equal to same fraction of the conversion price per share.
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Section 6.06. Adjustment of Conversion Price. The Conversion Price shall be
adjusted as set forth in this section.
(a) In the event that the Company shall make any distribution of its assets
upon or with respect to its shares of Common Stock, as a liquidating or partial
liquidating dividend, or other than as a dividend payable out of earnings or any
surplus legally available for dividends under the laws of the state of
incorporation of the Company, each Holder of any Convertible Note then
outstanding shall, upon the exercise of his right to convert after the record
date for such distribution or, in the absence of a record date, after the date
of such distribution receive, in addition to the shares subscribed for, the
amount of such assets (or, at the option of the Company, a sum equal to the
value thereof at the time of distribution as determined by the Board of
Directors in its sole discretion) which would have been distributed to such
Holder if he had exercised his right to convert immediately prior to the record
date for such distribution or, in the absence of a record date, immediately
prior to the date of such distribution.
(b) In case at any time the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares, the current Conversion Price in
effect immediately prior to such subdivision shall be proportionately reduced
and conversely, in case the outstanding shares of Common Stock of the company
shall be combined into a smaller number of shares, the Current Conversion Price
in effect immediately prior to such combination shall be proportionately
increased.
(c) If any capital reorganization or reclassification of the capital stock of
the Company, or consolidation or merger of the company with another corporation,
or the sale transfer or lease of all or substantially all of its assets to
another corporation, shall be effected in such a way that holders of shares of
Common Stock shall be entitled to receive shares, securities or assets with
respect to or in exchange for shares of Common Stock, then, as a condition of
such reorganization, reclassification, consolidation, merger or sale, the
Company or such successor or purchasing corporation, as the case may be, shall
execute an amendment to the Convertible Notes providing that the Holder of each
Convertible Note then outstanding shall have the right thereafter and until the
expiration of the period of convertibility to convert such Convertible Note into
the kind and amount of shares, securities or assets receivable upon such
reorganization, reclassification, consolidation, merger or sale by a holder of
the number of shares of Common Stock into which such convertible Note might have
been converted immediately prior to such reorganization, reclassification,
consolidation, merger or sale, subject to adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Section 6.
(d) Upon such adjustment of the Conversion Price pursuant to the provisions of
this Section 6.06, the number of shares issuable upon conversion of this Note
shall be adjusted to the nearest full amount by multiplying a number equal to
the Conversion Price in effect immediately prior to such adjustment by the
number of shares of Common Stock issuable upon exercise of this Note
immediately prior to such adjustment and dividing the product so obtained by the
adjusted Conversion Price.
Section 6.07. Covenant to Reserve Shares for Conversion. The Company
convenants that it will at all times reserve and keep available out of its
authorized shares of Common Stock, such number of shares of Common Stock as
shall then be deliverable upon the conversion of all outstanding Convertible
Notes. All shares of Common Stock, which shall be deliverable, shall be duly and
validly issued and fully paid and nonassessable.
Section 6.08. Notice of Change of Conversion Price. Whenever the Conversion
Price is adjusted, as herein provided, the Company shall promptly send to each
Holder a certificate of a firm or independent public accountants (who may be the
accountants regularly employee by the Company) selected by the Board of
Directors setting forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment. Such certificate
shall be conclusive evidence of the correctness of such adjustment.
Section 7. REGISTRATION RIGHTS.
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Section 7.01. Piggy-Back. If the Company proposes to file, on its behalf
and/or on behalf of any of its securities holders, a Registration Statement
under the Securities Act of 1933, as amended (the "Securities Act") other than
in connection with a dividend reinvestment, employee stock purchase, option or
similar plan or in connection with a merger, consolidation or reorganization,
the Company shall give written notice to each Holder at least 30 days before the
filing with the Securities and Exchange Commission ("SEC") of such Registration
Statement. Each Holder who desires to include any of its shares of Common Stock
into which the Convertible Notes are convertible, whether or not already
converted, (the "Registrable Securities") in such Registration Statement shall
give written notice to the Company within 20 days after the date of mailing of
such offer, and shall deliver to the Company a letter from counsel selected by
such Holder to the effect that registration under the Securities Act is
required. The Company shall thereupon include in such filing the shares of
Common Stock designated by such Holder and, subject to its right to withdraw
such filing, shall use its best efforts to effect registration under the
Securities Act of such shares of Common Stock.
Section 7.02. Conditions. The right of the Holders to have shares included in
any registration Statement in accordance with the provision of this Section 7
shall be subject to the following conditions:
(a) The Company shall have the right to require that the Holders
participating in such registration Statement agree to refrain from offering or
selling (other than in a private sale) any shares of Common Stock that they own
which are not included in any such Registration Statement in accordance with
this Section 7 for any time period specified in writing by any managing
underwriter of the offering to which such registration Statement relates;
(b) If any managing underwriter of the offering to which the Registration
Statement relates informs the Company in writing that the total number of shares
of Common Stock requested by the Holders to be included in the Registration
Statement is sufficiently large to affect the success of such offering
adversely, then the Company will include only the number of shares, if any, in
the Registration Statement that such managing underwriter shall advise the
Company will not so affect the offering, and reductions in the number of shares
of Common Stock owned by the Holders and other persons who have elected to have
shares Common Stock included in such Registration Statement will be made
proportionate to their respective percentages of ownership of shares to be
included in the Registration Statement;
(c) The Company shall furnish Holders who have shares included in a
Registration Statement pursuant to this Section 7 with such number of copies of
the prospectus relating to the offering (the "Prospectus") (including any
preliminary prospectus or supplemental or amended prospectus) as such Holder may
reasonably request in order to facilitate the sale and distribution of its
shares; and
Section 7.03. Registration or Offering. The Company shall use its best
efforts to prepare and file the Registration Statement or proceed with the
Offering as to which the notice specified herein is given.
Section 7.04 "No Action" Letter: Opinion of Counsel. No Holder shall have
registration rights under this Section with respect to any sales proposed by
them of shares as to which sales (i) a "no action" letter is received from the
SEC or its staff confirming the availability of an exemption from the
requirements of the Securities Act or (ii) an unqualified opinion of counsel to
the Company is rendered to the effect that registration of such shares for such
sales is not required; provided that in both cases (i) and (ii) above, the
volume limitations of Rule 144(e) under the Securities Act shall not limit the
amount of shares of Common Stock that the Holders are entitled to offer and
sell without registration under the Securities Act.
Section 7.05. Recall of Prospectuses, etc. With respect to a Registration
Statement or amendment thereto filed pursuant to this Section, if at any time,
the Company notifies the selling Holder that an amendment or supplement to such
Registration Statement or amendment or the prospectus included therein is
necessary or appropriate, the selling Holder will forthwith cease selling and
distributing shares thereunder and will forthwith redeliver to the Company all
copies of such registration Statement and prospectuses then in their possession
or under their control.
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Section 7.06. Cooperation of Holders. The Company shall be entitled to require
that each selling Holder cooperate with the Company in connection with a
registration of shares of Common Stock pursuant to this Section and furnish such
information, representations, undertakings and agreements regarding such selling
Holder and the distribution as may be reasonably required by the Company or as
required by law in connection therewith.
Section 7.07. Expenses. The Company will bear all the expenses in connection
with any Registration Statement under this Section 7 (including the fees and
expenses of a single counsel to the Holders) other than transfer taxes payable
on the sale of such shares and fees And commissions of brokers, dealers and
underwriters.
Section 7.08. Indemnification. In the event of the registration of any
securities under the Securities Act pursuant to this Section, the Company and
the Holders shall provide to each other customary indemnification to the extent
of any loss, claim, damage, liability or expense arising out of such
registration.
Section 8: STATUS OF THE HOLDER:
Section 8.01. The Holder has such knowledge and experience in financial
and business matters that the Holder is capable of evaluating the merits and
risks of this Convertible Note. The Holder is able to bear the economic risk of
this Note. The Holder has had the opportunity to consult with the Holder's own
attorney, accountant and/or purchaser representative regarding this Note and the
suitability of this transaction, and to the extent necessary, the Holder has
retained, at Holder's own expense, and relied upon, appropriate professional
advice regarding this Note, the investment it represents, tax and legal merits,
risks and consequences of this Note and of purchasing and owning the Shares.
Section 8.02. The Holder represents that the Holder is an "Accredited
Investor", as that term is defined below, and that at least one of the
categories set forth in (a) through (h) below applies to the Holder. The Holder
is one or more of the following:
(a) a natural person whose individual net worth, or joint net worth with that
person's spouse, exceeds $1,000,000;
(b) a natural person who had an individual income in excess of $200,000 in
each of the two most recent years or joint income with that person's spouse in
excess of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year.
(c) a bank as defined in Section 3(a)(2) of the Securities Act or a savings
and loan association or other institution as defined in Section 3(a) (5)(A) of
the Securities Act, whether acting in its individual or fiduciary capacity; a
broker or dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934; an insurance company as defined in Section 2(13) of the Securities
Act; an investment company registered under die Investment Company Act of 1940
(the "1940 Act") or a business development company as defined in
Section 2(a)(48) of the 1940 Act; a Small Business Investment Company licensed
by the U.S. Small Business Administration under Section 301(c) or (d) of the
Small, Business Investment Act of 1958; or an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974
("ERISA"), if the investment decision is made by a plan fiduciary, as defined in
Section 3(21) of ERISA, which fiduciary is either a bank, savings and loan
association, insurance company or registered investment adviser, or if the
employee benefit plan has total assets in excess of $5,000,000 or if a self-
directed plan, with investment decisions made solely by persons that am
Accredited Investors (as listed in categories (a)-(h) herein);
(d) a private business development company as defined in Section 202(a)22) of
the 1940 Act;
(e) an organization described in Section 501 (c)(3) of the Internal Revenue
Code, a corporation, Massachusetts or similar business trust or a partnership,
with total assets in excess of $5,000,000, and which was not formed for the
specific purpose of engaging in this transaction;
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(f) a trust, with total assets in excess of $5,000,000, not
formed for the specific purpose of engaging in this transaction, which is
directed by a person who has such knowledge and experience in financial and
business matters that he is capable if evaluating the merits and risks of this
investment;
(g) a director or executive officer of the Company; or
(h) an entity in which all of the equity owners are Accredited
Investors [as listed in categories(a)-(h)].
Section 9. MISCELLANEOUS
Section 9.01. Governing Law. This Convertible Note shall be construed
in accordance with the laws of the State of Florida applicable to contracts
entered into and to be performed wholly within said State.
Section 9.02. Successors and Assigns. All the covenants, stipulations,
promises and agreements in the Convertible Notes held by or on behalf of the
Company shall bind its successors and assigns, whether so expressed or not.
Section 9.03. Course of Dealing; No Waiver. No course of dealing between
the Company and the Holder hereof shall operate as a waiver of any right of any
holder hereof and no delay on the part of the Holder in exercising any right
hereunder shall so operate.
Section 9.04. Waiver of Compliance.
(a) Any term, covenant, agreement of condition hereof may be
amended, or compliance therewith may be waived (either generally or in a
particular instance and either retroactively or prospectively), if the Company
shall have obtained the agreement or consent in writing of the Holders of at
least 51% in aggregate principal amount of all outstanding Convertible Notes,
but no such amendment or waiver shall:
(i) change the amount or maturity of any principal on the
Convertible Notes or change the rate or extend the time of payment of interest
on the Convertible Notes or reduce the amount of principal thereof or modify any
of the provisions of the Convertible Notes with respect to the payment or
prepayment thereof:
(ii) give to any Convertible Note any preference or priority
over any other Convertible Note; or
(iii) reduce the percentage of Holders of the Convertible Notes
required to approve any such amendment or effectuate any such waiver.
(b) In determining whether the Holders of the requisite
principal amount of outstanding Convertible Notes have given any authorization,
consent or waiver under this Section 9.04 or under Section 5.02, Convertible
Notes owned by the Company or any Affiliate thereof shall be disregarded and
deemed not to be outstanding.
Section 9.05. Manner of giving Notices. Any notice required to be given
to the Holder hereof by the Company hereunder shall be given by certified
registered mail to the Holder at its address designated on the register referred
to in Section 1.01 on the date of such notice.
Section 9.06. Expenses in Preparation. All expenses of the Holder in the
negotiation preparation, execution and delivery of this Convertible Note shall
be paid by the Company.
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Section 9.07. Other Provisions. The Company waives demand, presentment,
protest, notice of dishonor and any other form of notice, that may be required
to hold the Company liable on this Note.
IN WITNESS WHEREOF, the undersigned has caused this Convertible Note to be
signed in its corporate name by one of its officers thereunto duly authorized,
and to be dated as of the date first written above.
Witness: FINANCIALWEB. COM INC.
By: /s/ James P. Gagel By: /s/ Kevin Lichtman
--------------------------- -----------------------------
James P. Gagel Kevin Lichtman
Title: Secretary Title: President
------------------------ --------------------------
Date: February 12, 1999
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EXHIBIT 4.17
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD, OFFERED
FOR SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS THEY ARE SO REGISTERED OR
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
FINANCIALWEB. COM, INC.
CONVERTIBLE NOTE DUE March 25, 2000
Principal Amount: $150,000
FINANCIALWEB. COM, INC. a Nevada corporation (the "Company"), for value
received, hereby promises to pay STEVEN F. STORY, REVOCABLE TRUST OF 8/9/95
(the "Holder)", or registered assigns, on March 25, 2000, the principal amount
of [amount written out] dollars ($150,000) (or so much thereof as shall not have
been prepaid or surrendered for conversion) in such coin or currency of the
United States of America as at the time of payment shall be legal tender for the
payment of public and private debts, at the offices of the Holder located at
16409 AVILA BLVD. TAMPA, FL. 33613 together with interest (computed on the
basis of 360-day year on twelve 30 days months) on the unpaid portion of the
principal amount hereof at the interest rate of the Chase Manhattan Bank, New
York prime rate (as amended from time to time) plus two (2%) per annum (the
"Interest Rate").
Section 1. THE NOTES.
Section 1.01. Registration, Transfer and Exchange of Convertible Notes.
The Company shall keep at its principal office a register in which the Company
will provide for registration, transfer and exchange of Convertible Notes.
Subject to compliance with applicable securities laws, the Holder (as defined
below) of any Convertible Note may, at its option and either in person or by
duly authorized attorney, surrender the same at said office for registration of
transfer or exchange, accompanied, if surrendered for transfer, by a written
instrument of transfer duly executed by said Holder or attorney. If any Holder
shall so request transfer or exchange of a Convertible Note held by it, the
Company shall, within a reasonable time thereafter, without expense to such
Holder (other than transfer taxes, if any) deliver to or upon its order one or
more Convertible Notes in the same unpaid aggregate principal amount as the
Convertible Note so surrendered, each dated the date to which interest has been
paid on the Convertible Note so surrendered, in the principal amount of $5,000
or any multiple thereof, and registered in such name or names, or payable to
such Person or Persons, or order, as shall be specified by the Holder making
such request. The Company may deem and treat the Holder of any Convertible Note
as the absolute owner of such Convertible Note for the purpose of receiving
payment of or on account of the principal and interest on such Convertible Note
and for the purposes of any notices, waivers or consent thereunder, and payment
of any Convertible Note shall be made only to or upon the order in writing of
such Holder.
Section 1.02. Loss, Theft, Destruction or Convertible Notes. Upon receipt
of evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Convertible Note and, in the case of any such loss, theft or
destruction, upon receipt of indemnity reasonably satisfactory to the Company,
or in the case of any such mutilation, upon surrender and cancellation of this
Convertible Note, the Company will make and deliver, in lieu of such lost,
stolen, destroyed or mutilated Convertible Note, a new Convertible Note of like
tenor and unpaid principal amount and dated as of the date from which unpaid
interest has then accrued on the Convertible Note so lost, stolen, destroyed or
mutilated.
Section 2. DEFINITIONS.
Section 2.01. Terms Defined. The terms defined in this Section 2.01
(except as herein otherwise expressly provided or unless the context otherwise
requires for all purposes of this Convertible Note shall have the respective
meanings specified in this Section 2.01.
Common Stock: The term "Common Stock" means shares of the Company's Common
Stock, par value $.001 per share.
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Company: The term "Company" means FINANCIALWEB. COM, INC. a Nevada
corporation, and any successor corporation to the Company (including the
corporation surviving any subsequent merger).
Current Conversion Price: The term "Current Conversion Price" means the
Conversion Price as most recently adjusted pursuant to Section 6.06.
Default: The term "Default" means an event which with notice or upon the
lapse of time or both would become an Event of Default.
Event of Default: The term "Event of Default" means any event specified in
Section 5.01, continued for the period of time, if any, and after the giving of
notice, if any, therein designated.
Holder: The term "Holder" means the Person in whose name such Convertible
Note is registered in the register maintained by the Company pursuant to Section
1.01.
Maturity: The term "Maturity" when used with respect to any Convertible
Note means the date of which the principal (and interest,) of such Convertible
Note becomes due and payable as herein provided, whether at March 25, 2000, (b)
declaration of acceleration or (c) otherwise.
Section 3. CERTAIN COVENANTS.
Section 3.01. Payment of Convertible Notes. The Company will duly and
punctually pay or cause to be paid in cash the principal and the interest on
each of the Convertible Notes at the time and place and in the manner provided
herein.
Section 3.02. General Covenants. The Company will:
(a) promptly pay and discharge or cause to be paid and
discharged all lawful taxes, assessments, and governmental charges or levies
imposed upon the Company upon the income of profits of the Company or upon any
property, real, personal or mixed, belonging to the Company or upon any part
thereof, before the same shall become in default, as well as all lawful claims
for labor, material and supplies which, if unpaid, might become a lien or charge
upon such properties or any part thereof, except that the Company shall not be
required to pay and discharge or to cause to be paid and discharged any such
tax, assessment, charge, levy or claim so long as the validity thereof shall be
contested in good faith by appropriate proceedings and the Company as the case
may be, shall set aside on its books such reserves, if any, as shall be deemed
by it adequate with respect to any such tax, assessment, charge, levy or claim
so contested.
(b) do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence, rights and franchises,
and comply with all laws applicable to the Company as its counsel may advise;
except that nothing in this subsection (b) shall prevent a liquidation or
dissolution of, or a sale, transfer or disposition of the property and assets
of, or a merger or consolidation of, the Company or any Affiliate not prohibited
by the provisions of Section 3.04; and
(c) at all times maintain, preserve, protect and keep, or cause
to be maintained, preserved, protected and kept, its property used or useful in
the conduct of the business of the Company in good repair, working order and
condition, and from time to time make, or cause to be made, all necessary and
proper repairs, renewals, replacements betterment and improvements thereto, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
Section 3.03. Notice of Defaults. In the event that any Event of Default
shall have occurred, the Company will promptly give written notice thereof to
each Holder of a Convertible Note.
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Section 3.04. Mergers, etc. Subject to Section 3.02, the Company may not
consolidate with or merge into, or transfer all or substantially all its assets
to, another corporation unless (a) the resulting, surviving or transferee
corporation assumes in writing all the obligations of the Company under the
Convertible Notes and (b) no Event of Default shall have occurred and be
continuing. Upon any consolidation or merger, or any transfer of all or
substantially all the assets of the Company in accordance with this Section
3.04, the successor corporation formed by such consolidation or with or into
which the Company is merged or to which such transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under the Convertible Note with the same effect as if such successor corporation
has been named as the Company herein.
Section 3.05. Notice of Mergers. The Company shall, within ten business
days after the effective date of each merger or consolidation of the Company,
notify each Holder of the Convertible Notes that such merger or consolidation
has occurred and shall specify such effective date.
Section 4. OPTIONAL PREPAYMENTS.
Section 4.01. Optional Prepayments. The Company shall have the
privilege, at any time and from time to time prior to Maturity of prepaying the
outstanding Convertible Notes, either in whole or in part by payment of the
principal amount of each Convertible Note, or portion thereof to be prepaid, and
accrued interest thereon to the date of such prepayment, without premium or
penalty.
Section 4.02. Allocation of Prepayments. All partial prepayments pursuant
to Section 4.01 shall be applied on all outstanding Convertible Notes ratable in
accordance with the unpaid principal amounts thereof.
Section 5. REMEDIES.
Section 5.01. Events of Default. An "Event of Default" occurs if one or
more of the following shall happen (for any reason whatsoever and whether such
happening shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) if default be made in the punctual payment of the principal
on any of the Convertible Notes when and as the same shall become due and
payable, whether at the fixed maturity of said Convertible Notes; or
(b) if default be made in the payment of any installment of
interest on any of the Convertible Notes and such default shall continue for a
period of 90 days after notice; or
(c) if default be made in the due observance or performance of
any covenant, condition or agreement contained in Section 3.02 to 3.05, both
inclusive, and such default shall have continued for a period of 30 days after
the Holders of a majority of the principal amount of the Convertible Notes then
outstanding shall have given notice to the Company (which notice shall specify
the default, demand that it be remedied and state that the notice is a "Notice
of Default"); or
(d) the Company pursuant to or within the meaning of any
Bankruptcy Law: (i) commences a voluntary case, (ii) consents to the entry of an
order for relief against it in any involuntary case, (iii) consents to the
appointment of a Custodian of it or for any substantial part of its property,
(iv) makes a general assignment for the benefit of its creditors; or
(e) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that: (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company or for any
substantial part of its property, (iii) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 30 days.
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The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator, sequestrator or similar official under any
Bankruptcy Law.
Section 5.02. Acceleration. If an Event of Default (other than an Event
of Default specified in Section 5.01 (d) or (e)) occurs and is continuing then,
at the option of the Holder of this Convertible Note, exercised by written
notice to the Company, the principal of this Convertible Note shall forthwith
become due and payable, together with the interest accrued hereon. If an Event
of Default specified in Section 5.01 (d) or (e) occurs at any time, such an
amount shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Holder of this Convertible Note.
The provisions of this Section 5.02 are subject, however, to the condition
that if, at any time after any Convertible Note shall have so become due and
payable, the Company shall pay all arrears of interest on the Convertible Notes
and all payments on account of the principal (and accrued interest on
Convertible Notes due and payable by virtue of acceleration) shall be remedied
or waived pursuant to Section 9.04, then, and in every such case, subject to
Section 9.04 (b), the Holder or Holders of at least 66-2/3% in aggregate
principal amount of all Convertible Notes at the time outstanding, by written
notice to the company, may rescind and annul such acceleration and its
consequences; but no such action shall affect any subsequent Default or Event of
Default or impair any right consequent thereon.
Section 5.03. Other Remedies. Subject to the provisions of Section 5.02,
in case any one or more of the Events of Default specified in Section 5.01 shall
have occurred and be continuing, the Holder of this Convertible Note may proceed
to protect and enforce its rights by suit in equity, action at law or by other
appropriate proceedings or both, whether for the specific performance of any
covenant or agreement contained in this Convertible Note or in aid of the
exercise of any power granted in this Convertible Note, or may proceed to
enforce the payment of this Convertible Note or to enforce any other legal or
equitable right of the Holder of this Convertible Note.
Section 5.04. Notice by the Company of Acceleration or Other Action by
Convertible Noteholders or Holders of Other Indebtedness. If any Holder of a
Convertible Note shall give any notice to the Company with respect to any Event
of Default (or with respect to any event which with notice or the lapse of time,
or both, would be an Event of Default), or accelerate the maturity thereof or
take any other action in respect of an Event of Default or such event, or if the
holder of any bond, debenture, note or other similar evidence of indebtedness
(other than the Convertible Notes) of, or secured or guaranteed by, the Holder
shall give any notice to the Company in respect of any default thereunder or
under any agreement pursuant to which such bond, debenture, note or other
evidence or indebtedness is issued, the Company shall forthwith give written
notice to all Holders of Convertible Notes, specifying such action and the
nature and status of Event of Default or event or other default.
Section 5.05. Remedies Cumulative. No remedy herein conferred upon the
Holder of this Convertible Note is intended to be exclusive of any other remedy
and each and every such remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise.
Section 5.06. Enforcement. If there shall be any Default under this
Convertible Note and this Convertible Note shall be placed in the hands of an
attorney for collection, or shall be collected through any court, including any
bankruptcy court, the Company promises to pay to the order of the Holder hereof
such Holder's reasonable attorneys' fees and court costs incurred in collecting
or attempting to collect or securing or attempting to secure this Convertible
Note or enforcing the Holder's rights with respect to any collateral securing
this Convertible Note, to the extent allowed by the laws of the State of Florida
or any state in which any collateral for this Note shall be situated.
Section 6. CONVERSION.
Section 6.01. Right of Conversion, Conversion Price. Subject to and upon
compliance with the provisions of this Section 6, the Holder shall have the
right, at his option, at any time during usual
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business hours (including the period between the date on which the Company gives
notice of prepayment and the Prepayment Date) to convert the principal and
accrued interest of any Convertible Note owned by such Holder into fully paid
and in nonassessable shares of Common Stock at the rate of $4.50 for each share
of common Stock (the "Conversion Price") which price per share shall be payable
by surrender of such convertible Note.
(a) As of the date hereof, the authorized and outstanding
capital stock of the Company is 4,973,000 (four million nine hundred seventy
three thousand) shares.
Section 6.02. Manner of Exercise.
(a) In order to exercise the conversion right, the Holder of any
Convertible Note to be converted shall surrender such Convertible Note at the
office of the Company, accompanied by written notice to the Company stating (i)
that the Holder elects to convert such Convertible Note or, if less than the
entire principal amount of a Convertible Note is to be converted, the portion
thereof (a multiple of $1,000) to be converted, and (ii) the name or names (with
addresses) in which the certificate or certificates for shares of Common Stock
issuable on such conversion shall be issued. Convertible Notes surrendered for
conversion shall be accompanied by proper assignment thereof to the Company or
in blank for transfer if the shares are to be issued in a name other than that
of the Holder.
(b) In the case of any Convertible Note which is converted in
part only, upon such conversion the Company shall execute and deliver to the
Holder thereof, at the expense of the Company, a new Convertible Note or
Convertible Notes of authorized denominations in principal amount equal to the
unconverted portions of such Convertible Note.
Section 6.03. Issuance of Shares of Common Stock on Conversion.
(a) As promptly as practicable after the receipt of such notice
and the surrender of such convertible Note as aforesaid, the Company shall
issue, at its expense, and shall deliver to such Holder, or on his written
order, at the aforesaid office of the Company (i) a certificate or certificates
for the number of full shares of Common Stock issuable upon the conversion of
such Convertible Note (or specified portion thereof), and (ii) a certificate or
certificates for any fractional shares of Common Stock issuable upon conversion
of such Convertible Note (or specified portion thereof) or, at the Company's
option, cash in lieu of script for any fraction of a share to which such Holder
is entitled upon conversion as provided in Section 6.05.
(b) Such conversion shall be deemed to have been effected
immediately prior to the close of business on the date ("Conversion Date") on
which the Company shall have received both such notice and the surrendered
Convertible Note as aforesaid, and at such time the rights of the Holder of such
Convertible Note shall cease and the Person or Persons in whose name or names
any certificate or certificates for shares of common Stock shall be issuable
upon such conversion shall be deemed to have become the holder of holders of
record of the shares represented thereby.
Section 6.04. No Adjustments for Interest or Dividends. No payment or
adjustment shall be made by or on behalf of the Company on account of any
interest accrued on any Convertible Notes surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon such
conversion which were declared for payment to holders of shares of Common Stock
or record as of a date prior to the Conversion Date. All payments of accrued
interest on any Convertible Note shall be made in cash or additional stock at
the Conversion Price, at Company's option.
Section 6.05. Fractional Shares. The Company, at its option, may issue
fractional shares of common Stock upon any conversion of Convertible Notes or,
in lieu of any fraction of a share of Common Stock to which any Holder would
otherwise be entitled upon conversion of any Convertible Notes (or specified
portions thereof), the Company may pay a cash adjustment for such fraction in an
amount equal to same fraction of the conversion price per share.
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Section 6.06. Adjustment of Conversion Price. The Conversion Price shall
be adjusted as set forth in this section.
(a) In the event that the Company shall make any distribution of
its assets upon or with respect to its shares of Common Stock, as a liquidating
or partial liquidating dividend, or other than as a dividend payable out of
earnings or any surplus legally available for dividends under the laws of the
state of incorporation of the Company, each Holder of any Convertible Note then
outstanding shall, upon the exercise of his right to convert after the record
date for such distribution or, in the absence of a record date, after the date
of such distribution receive, in addition to the shares subscribed for, the
amount of such assets (or, at the option of the Company, a sum equal to the
value thereof at the time of distribution as determined by the Board of
Directors in its sole discretion) which would have been distributed to such
Holder if he had exercised his right to convert immediately prior to the record
date for such distribution or, in the absence of a record date, immediately
prior to the date of such distribution.
(b) In case at any time the Company shall subdivide its
outstanding shares of Common Stock into a greater number of shares, the current
Conversion Price in effect immediately prior to such subdivision shall be
proportionately reduced and conversely, in case the outstanding shares of Common
Stock of the company shall be combined into a smaller number of shares, the
Current Conversion Price in effect immediately prior to such combination shall
be proportionately increased.
(c) If any capital reorganization or reclassification of the
capital stock of the Company, or consolidation or merger of the company with
another corporation, or the sale transfer or lease of all or substantially all
of its assets to another corporation, shall be effected in such a way that
holders of shares of Common Stock shall be entitled to receive shares,
securities or assets with respect to or in exchange for shares of Common Stock,
then, as a condition of such reorganization, reclassification, consolidation,
merger or sale, the Company or such successor or purchasing corporation, as the
case may be, shall execute an amendment to the Convertible Notes providing that
the Holder of each Convertible Note then outstanding shall have the right
thereafter and until the expiration of the period of convertibility to convert
such Convertible Note into the kind and amount of shares, securities or assets
receivable upon such reorganization, reclassification, consolidation, merger or
sale by a holder of the number of shares of common Stock into which such
convertible Note might have been converted immediately prior to such
reorganization, reclassification, consolidation, merger or sale, subject to
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 6.
(d) Upon such adjustment of the Conversion Price pursuant to the
provisions of this Section 6.06, the number of shares issuable upon conversion
of this Note shall be adjusted to the nearest full amount by multiplying a
number equal to the Conversion Price in effect immediately prior to such
adjustment by the number of shares of Common Stock issuable upon exercise of
this Note immediately prior to such adjustment and dividing the product so
obtained by the adjusted Conversion Price.
Section 6.07. Covenant to Reserve Shares for Conversion. The Company
convenants that it will at all times reserve and keep available out of its
authorized shares of Common Stock, such number of shares of Common Stock as
shall then be deliverable upon the conversion of all outstanding Convertible
Notes. All shares of Common Stock, which shall be deliverable, shall be duly
and validly issued and fully paid and nonassessable.
Section 6.08. Notice of Change of Conversion Price. Whenever the
Conversion Price is adjusted, as herein provided, the Company shall promptly
send to each Holder a certificate of a firm or independent public accountants
(who may be the accountants regularly employee by the Company) selected by the
Board of Directors setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment. Such
certificate shall be conclusive evidence of the correctness of such adjustment.
Section 7. REGISTRATION RIGHTS.
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Section 7.01. Piggy-Back. If the Company proposes to file, on its behalf
and/or on behalf of any of its securities holders, a Registration Statement
under the Securities Act of 1933, as amended (the "Securities Act") other than
in connection with a dividend reinvestment, employee stock purchase, option or
similar plan or in connection with a merger, consolidation or reorganization,
the Company shall give written notice to each Holder at least 30 days before the
filing with the Securities and Exchange Commission ("SEC") of such Registration
Statement. Each Holder who desires to include any of its shares of Common Stock
into which the Convertible Notes are convertible, whether or not already
converted, (the "Registrable Securities") in such Registration Statement shall
give written notice to the Company within 20 days after the date of mailing of
such offer, and shall deliver to the Company a letter from counsel selected by
such Holder to the effect that registration under the Securities Act is
required. The Company shall thereupon include in such filing the shares of
Common Stock designated by such Holder and, subject to its right to withdraw
such filing, shall use its best efforts to effect registration under the
Securities Act of such shares of Common Stock.
Section 7.02. Conditions. The right of the Holders to have shares
included in any registration Statement in accordance with the provision of this
Section 7 shall be subject to the following conditions:
(a) The Company shall have the right to require that the Holders
participating in such registration Statement agree to refrain from offering or
selling (other than in a private sale) any shares of Common Stock that they own
which are not included in any such Registration Statement in accordance with
this Section 7 for any time period specified in writing by any managing
underwriter of the offering to which such registration Statement relates;
(b) If any managing underwriter of the offering to which the
Registration Statement relates informs the Company in writing that the total
number of shares of Common Stock requested by the Holders to be included in the
Registration Statement is sufficiently large to affect the success of such
offering adversely, then the Company will include only the number of shares, if
any, in the Registration Statement that such managing underwriter shall advise
the Company will not so affect the offering, and reductions in the number of
shares of Common Stock owned by the Holders and other persons who have elected
to have shares Common Stock included in such Registration Statement will be made
proportionate to their respective percentages of ownership of shares to be
included in the Registration Statement;
(c) The Company shall furnish Holders who have shares included
in a Registration Statement pursuant to this Section 7 with such number of
copies of the prospectus relating to the offering (the "Prospectus") (including
any preliminary prospectus or supplemental or amended prospectus) as such Holder
may reasonably request in order to facilitate the sale and distribution of its
shares; and
Section 7.03. Registration or Offering. The Company shall use its best
efforts to prepare and file the Registration Statement or proceed with the
Offering as to which the notice specified herein is given.
Section 7.04. "No Action" Letter: Opinion of Counsel. No Holder shall
have registration rights under this Section with respect to any sales proposed
by them of shares as to which sales (i) a "no action" letter is received from
the SEC or its staff confirming the availability of an exemption from the
requirements of the Securities Act or (ii) an unqualified opinion of counsel to
the Company is rendered to the effect that registration of such shares for such
sales is not required; provided that in both cases (i) and (ii) above, the
volume limitations of Rule 144(e) under the Securities Act shall not limit the
amount of shares of Common Stock that the Holders are entitled to offer and sell
without registration under the Securities Act.
Section 7.05. Recall of Prospectuses, etc. With respect to a Registration
Statement or amendment thereto filed pursuant to this Section, if, at any time,
the Company notifies the selling Holder that an amendment or supplement to such
Registration Statement or amendment or the prospectus included therein is
necessary or appropriate, the selling Holder will forthwith cease selling and
distributing shares thereunder and will forthwith redeliver to the Company all
copies of such registration Statement and prospectuses then in their possession
or under their control.
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Section 7.06. Cooperation of Holders. The Company shall be entitled to
require that each selling Holder cooperate with the Company in connection with a
registration of shares of Common Stock pursuant to this Section and furnish such
information, representations, undertakings and agreements regarding such selling
Holder and the distribution as may be reasonably required by the Company or as
required by law in connection therewith.
Section 7.07. Expenses. The Company will bear all the expenses in
connection with any Registration Statement under this Section 7 (including the
fees and expenses of a single counsel to the Holders) other than transfer taxes
payable on the sale of such shares and fees and commissions of brokers, dealers
and underwriters.
Section 7.08. Indemnification. In the event of the registration of any
securities under the Securities Act pursuant to this Section, the Company and
the Holders shall provide to each other customary indemnification to the extent
of any loss, claim, damage, liability or expense arising out of such
registration.
Section 8. Status of the Holder:
Section 8.01. The Holder has such knowledge and experience in financial and
business matters that the Holder is capable of evaluating the merits and risks
of this Convertible Note. The Holder is able to bear the economic risk of this
Note. The Holder has had the opportunity to consult with the Holder's own
attorney, accountant and/or purchaser representative regarding this Note and
the suitability of this transaction, and to the extent necessary, the Holder has
retained, at Holder's own expense, and relied upon, appropriate professional
advice regarding this Note, the investment it represents, tax and legal merits,
risks and consequences of this Note and of purchasing and owning the Shares.
Section 8.02. The Holder represents that the Holder is an "Accredited
Investor", as that term is defined below, and that at least one of the
categories set forth in (a) through (h) below applies to the Holder. The Holder
is one or more of the following:
(a) a natural person whose individual net worth, or joint net
worth with that person's spouse, exceeds $1,000,000;
(b) a natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year;
(c) a bank as defined in Section 3(a)(2) of the Securities Act
or a savings and loan association or other institution as defined in Section
3(a) (5)(A) of the Securities Act, whether acting in its individual or fiduciary
capacity; a broker or dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934; an insurance company as defined in Section 2(13) of the
Securities Act; an investment company registered under the Investment Company
Act of 1940 (the "1940 Act") or a business development company as defined in
Section 2(a)(48) of the 1940 Act; a Small Business Investment Company licensed
by the U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958; or an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974
("ERISA"), if the investment decision is made by a plan fiduciary, as defined in
Section 3(21) of ERISA, which fiduciary is either a bank, savings and loan
association, insurance company or registered investment adviser, or if the
employee benefit plan has total assets in excess of $5,000,000 or if a self-
directed plan, with investment decisions made solely by persons that are
Accredited Investors (as listed in categories (a) - (h) herein);
(d) a private business development company as defined in Section
202(a)(22) of the 1940 Act;
(e) an organization described in Section 501 (c)(3) of the
Internal Revenue Code, a corporation, Massachusetts or similar business trust or
a partnership, with total assets in excess of $5,000,000, and which was not
formed for the specific purpose of engaging in this transaction;
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(f) a trust, with total assets in excess of $5,000,000, not
formed for the specific purpose of engaging in this transaction, which is
directed by a person who has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risks of this
investment;
(g) a director or executive officer of the Company; or
(h) an entity in which all of the equity owners are Accredited
Investors [as listed in categories (a) - (h)].
Section 9. MISCELLANEOUS
Section 9.01. Governing Law. This Convertible Note shall be construed in
accordance with the laws of the State of Florida applicable to contracts entered
into and to be performed wholly within said State.
Section 9.02. Successors and Assigns. All the covenants, stipulations,
promises and agreements in the Convertible Notes held by or on behalf of the
Company shall bind its successors and assigns, whether so expressed or not.
Section 9.03. Course of Dealing: No Waiver. No course of dealing between
the Company and the Holder hereof shall operate as a waiver of any right of any
holder hereof and no delay on the part of the Holder in exercising any right
hereunder shall so operate.
Section 9.04. Waiver of Compliance.
(a) Any term, covenant, agreement or condition hereof may be
amended, or compliance therewith may be waived (either generally or in a
particular instance and either retroactively or prospectively), if the Company
shall have obtained the agreement or consent in writing of the Holders of at
least 51% in aggregate principal amount of all outstanding Convertible Notes,
but no such amendment or waiver shall:
(i) change the amount or maturity of any principal on the
Convertible Notes or change the rate or extend the time of payment of interest
on the Convertible Notes or reduce the amount of principal thereof or modify any
of the provisions of the Convertible Notes with respect to the payment or
prepayment thereof:
(ii) give to any Convertible Note any preference or priority
over any other Convertible Note; or
(iii) reduce the percentage of Holders of the Convertible Notes
required to approve any such amendment or effectuate any such waiver.
(b) determining whether the Holders of the requisite
principal amount of outstanding Convertible Notes have given any authorization,
consent or waiver under this Section 9.04 or under Section 5.02, Convertible
Notes owned by the Company or any Affiliate thereof shall be disregarded and
deemed not to be outstanding.
Section 9.05. Manner of giving Notices. Any notice required to be given
to the Holder hereof by the Company hereunder shall be given by certified
registered mail to the Holder at its address designated on the register referred
to in Section 1.01 on the date of such notice.
Section 9.06. Expenses in Preparation. All expenses of the Holder in the
negotiation, preparation, execution and delivery of this Convertible Note shall
be paid by the Company.
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Section 9.07. Other Provisions. The Company waives demand, presentment,
protest, notice of dishonor and any other form of notice, that may be required
to hold the Company liable on this Note.
IN WITNESS WHEREOF, the undersigned has caused this Convertible Note to be
signed in its corporate name by one of its officers thereunto duly authorized,
and to be dated as of the date first written above.
Witness: FINANCIALWEB. COM, INC.
By: By:
---------------------------- -----------------------------
James P. Gagel Kevin Lichtman
Title: Secretary Title: President
Date: March 25, 1999
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EXHIBIT 4.18
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD, OFFERED
FOR SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS THEY ARE SO REGISTERED OR
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
FINANCIALWEB.COM, INC.
CONVERTIBLE NOTE DUE MARCH 25, 2000
Principal Amount: $150,000
FINANCIALWEB.COM, INC. a Nevada corporation (the "Company"), for value received,
hereby promises to pay BANNING ENTERPRISES LTD. (the "Holder)", or registered
assigns, on March 25, 2000, the principal amount of One Hundred Fifty Thousand
dollars ($150,000) (or so much thereof as shall not have been prepaid or
surrendered for conversion) in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, at the offices of the Holder located at 921 GUISANDO
DE AVILA, TAMPA, FLORIDA 33613 together with interest (computed on the basis of
360-day year on twelve 30 days months) on the unpaid portion of the principal
amount hereof at the interest rate of the Chase Manhattan Bank, New York prime
rate (as amended from time to time) plus two (2%) per annum (the "Interest
Rate").
Section 1. THE NOTES.
Section 1.01. Registration, Transfer and Exchange of Convertible Notes.
The Company shall keep at its principal office a register in which the Company
will provide for registration, transfer and exchange of Convertible Notes.
Subject to compliance with applicable securities laws, the Holder (as defined
below) of any Convertible Note may, at its option and either in person or by
duly authorized attorney, surrender the same at said office for registration of
transfer or exchange, accompanied, if surrendered for transfer, by a written
instrument of transfer duly executed by said Holder or attorney. If any Holder
shall so request transfer or exchange of a Convertible Note held by it, the
Company shall, within a reasonable time thereafter, without expense to such
Holder (other than transfer taxes, if any) deliver to or upon its order one or
more Convertible Notes in the same unpaid aggregate principal amount as the
Convertible Note so surrendered, each dated the date to which interest has been
paid on the Convertible Note so surrendered, in the principal amount of $5,000
or any multiple thereof, and registered in such name or names, or payable to
such Person or Persons, or order, as shall be specified by the Holder making
such request. The Company may deem and treat the Holder of any Convertible Note
as the absolute owner of such Convertible Note for the purpose of receiving
payment of or on account of the principal and interest on such Convertible Note
and for the purposes of any notices, waivers or consent thereunder, and payment
of any Convertible Note shall be made only to or upon the order in writing of
such Holder.
Section 1.02. Loss, Theft, Destruction or Convertible Notes. Upon receipt
of evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Convertible Note and, in the case of any such loss, theft or
destruction, upon receipt of indemnity reasonably satisfactory to the Company,
or in the case of any such mutilation, upon surrender and cancellation of this
Convertible Note, the Company will make and deliver, in lieu of such lost,
stolen, destroyed or mutilated Convertible Note, a new Convertible Note of like
tenor and unpaid principal amount and dated as of the date from which unpaid
interest has then accrued on the Convertible Note so lost, stolen, destroyed or
mutilated.
Section 2. DEFINITIONS.
Section 2.01. Terms Defined. The terms defined in this Section 2.01
(except as herein otherwise expressly provided or unless the context otherwise
requires for all purposes of this Convertible Note shall have the respective
meanings specified in this Section 2.01.
Common Stock: The term "Common Stock" means shares of the Company's Common
Stock, par value $.001 per share.
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Company: The term "Company" means FINANCIALWEB.COM, INC. a Nevada
corporation, and any successor corporation to the Company (including the
corporation surviving any subsequent merger).
Current Conversion Price: The term "Current Conversion Price" means the
Conversion Price as most recently adjusted pursuant to Section 6.06.
Default: The term "Default" means an event which with notice or upon the
lapse of time or both would become an Event of Default.
Event of Default: The term "Event of Default" means any event specified in
Section 5.01, continued for the period of time, if any, and after the giving of
notice, if any, therein designated.
Holder: The term "Holder" means the Person in whose name such Convertible
Note is registered in the register maintained by the Company pursuant to Section
1.01.
Maturity: The term "Maturity" when used with respect to any Convertible
Note means the date of which the principal (and interest,) of such Convertible
Note becomes due and payable as herein provided, whether at March 25, 2000, (b)
declaration of acceleration or (c) otherwise.
Section 3. CERTAIN COVENANTS.
Section 3.01. Payment of Convertible Notes. The Company will duly and
punctually pay or cause to be paid in cash the principal and the interest on
each of the Convertible Notes at the time and place and in the manner provided
herein.
Section 3.02. General Covenants. The Company will:
(a) promptly pay and discharge or cause to be paid and discharged all
lawful taxes, assessments, and governmental charges or levies imposed upon the
Company upon the income of profits of the Company or upon any property, real,
personal or mixed, belonging to the Company or upon any part thereof, before the
same shall become in default, as well as all lawful claims for labor, material
and supplies which, if unpaid, might become a lien or charge upon such
properties or any part thereof, except that the Company shall not be required to
pay and discharge or to cause to be paid and discharged any such tax,
assessment, charge, levy or claim so long as the validity thereof shall be
contested in good faith by appropriate proceedings and the Company as the case
may be, shall set aside on its books such reserves, if any, as shall be deemed
by it adequate with respect to any such tax, assessment, charge, levy or claim
so contested.
(b) do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence, rights and franchises, and
comply with all laws applicable to the Company as its counsel may advise; except
that nothing in this subsection (b) shall prevent a liquidation or dissolution
of, or a sale, transfer or disposition of the property and assets of, or a
merger or consolidation of, the Company or any Affiliate not prohibited by the
provisions of Section 3.04; and
(c) at all times maintain, preserve, protect and keep, or cause to be
maintained, preserved, protected and kept, its property used or useful in the
conduct of the business of the Company in good repair, working order and
condition, and from time to time make, or cause to be made, all necessary and
proper repairs, renewals, replacements betterment and improvements thereto, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
Section 3.03. Notice of Defaults. In the event that any Event of Default
shall have occurred, the Company will promptly give written notice thereof to
each Holder of a Convertible Note.
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Section 3.04. Mergers, etc. Subject to Section 3.02, the Company may not
consolidate with or merge into, or transfer all or substantially all its assets
to, another corporation unless (a) the resulting, surviving or transferee
corporation assumes in writing all the obligations of the Company under the
Convertible Notes and (b) no Event of Default shall have occurred and be
continuing. Upon any consolidation or merger, or any transfer of all or
substantially all the assets of the Company in accordance with this Section
3.04, the successor corporation formed by such consolidation or with or into
which the Company is merged or to which such transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under the Convertible Note with the same effect as if such successor corporation
has been named as the Company herein.
Section 3.05. Notice of Mergers. The Company shall, within ten business
days after the effective date of each merger or consolidation of the Company,
notify each Holder of the Convertible Notes that such merger or consolidation
has occurred and shall specify such effective date.
Section 4. OPTIONAL PREPAYMENTS.
Section 4.01. Optional Prepayments. The Company shall have the privilege,
at any time and from time to time prior to Maturity of prepaying the outstanding
Convertible Notes, either in whole or in part by payment of the principal amount
of each Convertible Note, or portion thereof to be prepaid, and accrued interest
thereon to the date of such prepayment, without premium or penalty.
Section 4.02. Allocation of Prepayments. All partial prepayments pursuant
to Section 4.01 shall be applied on all outstanding Convertible Notes ratable in
accordance with the unpaid principal amounts thereof.
Section 5. REMEDIES.
Section 5.01 Events of Default. An "Event of Default" occurs if one or more
of the following shall happen (for any reason whatsoever and whether such
happening shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) if default be made in the punctual payment of the principal on any
of the Convertible Notes when and as the same shall become due and payable,
whether at the fixed maturity of said Convertible Notes; or
(b) if default be made in the payment of any installment of interest on
any of the Convertible Notes and such default shall continue for a period of 90
days after notice; or
(c) if default be made in the due observance or performance of any
covenant, condition or agreement contained in Section 3.02 to 3.05, both
inclusive, and such default shall have continued for a period of 30 days after
the Holders of a majority of the principal amount of the Convertible Notes then
outstanding shall have given notice to the Company (which notice shall specify
the default, demand that it be remedied and state that the notice is a "Notice
of Default"); or
(d) the Company pursuant to or within the meaning of any Bankruptcy
Law: (i) commences a voluntary case, (ii) consents to the entry of an order for
relief against it in any involuntary case, (iii) consents to the appointment of
a Custodian of it or for any substantial part of its property, (iv) makes a
general assignment for the benefit of its creditors; or
(e) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that: (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company or for any substantial part of
its property, (iii) orders the liquidation of the Company; and the order or
decree remains unstayed and in effect for 30 days.
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The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator, sequestrator or similar official under any
Bankruptcy Law.
Section 5.02. Acceleration. If an Event of Default (other than an Event
of Default specified in Section 5.01 (d) or (e)) occurs and is continuing then,
at the option of the Holder of this Convertible Note, exercised by written
notice to the Company, the principal of this Convertible Note shall forthwith
become due and payable, together with the interest accrued hereon. If an Event
of Default specified in Section 5.01 (d) or (e) occurs at any time, such an
amount shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Holder of this Convertible Note.
The provisions of this Section 5.02 are subject, however, to the condition
that if, at any time after any Convertible Note shall have so become due and
payable, the Company shall pay all arrears of interest on the Convertible Notes
and all payments on account of the principal (and accrued interest on
Convertible Notes due and payable by virtue of acceleration) shall be remedied
or waived pursuant to Section 9.04, then, and in every such case, subject to
Section 9.04 (b), the Holder or Holders of at least 66-2/3% in aggregate
principal amount of all Convertible Notes at the time outstanding, by written
notice to the company, may rescind and annul such acceleration and its
consequences; but no such action shall affect any subsequent Default or Event of
Default or impair any right consequent thereon.
Section 5.03. Other Remedies. Subject to the provisions of Section 5.02,
in case any one or more of the Events of Default specified in Section 5.01 shall
have occurred and be continuing, the Holder of this Convertible Note may proceed
to protect and enforce its rights by suit in equity, action at law or by other
appropriate proceedings or both, whether for the specific performance of any
covenant or agreement contained in this Convertible Note or in aid of the
exercise of any power granted in this Convertible Note, or may proceed to
enforce the payment of this Convertible Note or to enforce any other legal or
equitable right of the Holder of this Convertible Note.
Section 5.04. Notice by the Company of Acceleration or Other Action by
Convertible Noteholders or Holders of Other Indebtedness. If any Holder of a
Convertible Note shall give any notice to the Company with respect to any Event
of Default (or with respect to any event which with notice or the lapse of time,
or both, would be an Event of Default), or accelerate the maturity thereof or
take any other action in respect of an Event of Default or such event, or if the
holder of any bond, debenture, note or other similar evidence of indebtedness
(other than the Convertible Notes) of, or secured or guaranteed by, the Holder
shall give any notice to the Company in respect of any default thereunder or
under any agreement pursuant to which such bond, debenture, note or other
evidence or indebtedness is issued, the Company shall forthwith give written
notice to all Holders of Convertible Notes, specifying such action and the
nature and status of Event of Default or event or other default.
Section 5.05. Remedies Cumulative. No remedy herein conferred upon the
Holder of this Convertible Note is intended to be exclusive of any other remedy
and each and every such remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise.
Section 5.06. Enforcement. If there shall be any Default under this
Convertible Note and this Convertible Note shall be placed in the hands of an
attorney for collection, or shall be collected through any court, including any
bankruptcy court, the Company promises to pay to the order of the Holder hereof
such Holder's reasonable attorneys' fees and court costs incurred in collecting
or attempting to collect or securing or attempting to secure this Convertible
Note or enforcing the Holder's rights with respect to any collateral securing
this Convertible Note, to the extent allowed by the laws of the State of Florida
or any state in which any collateral for this Note shall be situated.
Section 6. CONVERSION.
Section 6.01. Right of Conversion, Conversion Price. Subject to and upon
compliance with the provisions of this Section 6, the Holder shall have the
right, at his option, at any time during usual
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business hours (including the period between the date on which the Company gives
notice of prepayment and the Prepayment Date) to convert the principal and
accrued interest of any Convertible Note owned by such Holder into fully paid
and in nonassessable shares of Common Stock at the rate of $4.50 for each share
of common Stock (the "Conversion Price") which price per share shall be payable
by surrender of such convertible Note.
(a) As of the date hereof, the authorized and outstanding capital stock
of the Company is 4,973,000 (four million nine hundred seventy three thousand)
shares.
Section 6.02. Manner of Exercise.
(a) In order to exercise the conversion right, the Holder of any
Convertible Note to be converted shall surrender such Convertible Note at the
office of the Company, accompanied by written notice to the Company stating (i)
that the Holder elects to convert such Convertible Note or, if less than the
entire principal amount of a Convertible Note is to be converted, the portion
thereof (a multiple of $1,000) to be converted, and (ii) the name or names (with
addresses) in which the certificate or certificates for shares of Common Stock
issuable on such conversion shall be issued. Convertible Notes surrendered for
conversion shall be accompanied by proper assignment thereof to the Company or
in blank for transfer if the shares are to be issued in a name other than that
of the Holder.
(b) In the case of any Convertible Note which is converted in part
only, upon such conversion the Company shall execute and deliver to the Holder
thereof, at the expense of the Company, a new Convertible Note or Convertible
Notes of authorized denominations in principal amount equal to the unconverted
portions of such Convertible Note.
Section 6.03. Issuance of Shares of Common Stock on Conversion.
(a) As promptly as practicable after the receipt of such notice and the
surrender of such convertible Note as aforesaid, the Company shall issue, at its
expense, and shall deliver to such Holder, or on his written order, at the
aforesaid office of the Company (i) a certificate or certificates for the number
of full shares of Common Stock issuable upon the conversion of such Convertible
Note (or specified portion thereof), and (ii) a certificate or certificates for
any fractional shares of Common Stock issuable upon conversion of such
Convertible Note (or specified portion thereof) or, at the Company's option,
cash in lieu of script for any fraction of a share to which such Holder is
entitled upon conversion as provided in Section 6.05.
(b) Such conversion shall be deemed to have been effected immediately
prior to the close of business on the date ("Conversion Date") on which the
Company shall have received both such notice and the surrendered Convertible
Note as aforesaid, and at such time the rights of the Holder of such Convertible
Note shall cease and the Person or Persons in whose name or names any
certificate or certificates for shares of common Stock shall be issuable upon
such conversion shall be deemed to have become the holder of holders of record
of the shares represented thereby.
Section 6.04 No Adjustments for Interest or Dividends. No payment or
adjustment shall be made by or on behalf of the Company on account of any
interest accrued on any Convertible Notes surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon such
conversion which were declared for payment to holders of shares of Common Stock
or record as of a date prior to the Conversion Date. All payments of accrued
interest on any Convertible Note shall be made in cash or additional stock at
the Conversion Price, at Company's option.
Section 6.05. Fractional Shares. The Company, at its option, may issue
fractional shares of common Stock upon any conversion of Convertible Notes or,
in lieu of any fraction of a share of Common Stock to which any Holder would
otherwise be entitled upon conversion of any Convertible Notes (or specified
portions thereof), the Company may pay a cash adjustment for such fraction in an
amount equal to same fraction of the conversion price per share.
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Section 6.06 Adjustment of Conversion Price. The Conversion Price shall
be adjusted as set forth in this section.
(a) In the event that the Company shall make any distribution of its
assets upon or with respect to its shares of Common Stock, as a liquidating or
partial liquidating dividend, or other than as a dividend payable out of
earnings or any surplus legally available for dividends under the laws of the
state of incorporation of the Company, each Holder of any Convertible Note then
outstanding shall, upon the exercise of his right to convert after the record
date for such distribution or, in the absence of a record date, after the date
of such distribution receive, in addition to the shares subscribed for, the
amount of such assets (or, at the option of the Company, a sum equal to the
value thereof at the time of distribution as determined by the Board of
Directors in its sole discretion) which would have been distributed to such
Holder if he had exercised his right to convert immediately prior to the record
date for such distribution or, in the absence of a record date, immediately
prior to the date of such distribution.
(b) In case at any time the Company shall subdivide its outstanding
shares of Common Stock into a greater number of shares, the current Conversion
Price in effect immediately prior to such subdivision shall be proportionately
reduced and conversely, in case the outstanding shares of Common Stock of the
company shall be combined into a smaller number of shares, the Current
Conversion Price in effect immediately prior to such combination shall be
proportionately increased.
(c) If any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the company with another
corporation, or the sale transfer or lease of all or substantially all of its
assets to another corporation, shall be effected in such a way that holders of
shares of Common Stock shall be entitled to receive shares, securities or assets
with respect to or in exchange for shares of Common Stock, then, as a condition
of such reorganization, reclassification, consolidation, merger or sale, the
Company or such successor or purchasing corporation, as the case may be, shall
execute an amendment to the Convertible Notes providing that the Holder of each
Convertible Note then outstanding shall have the right thereafter and until the
expiration of the period of convertibility to convert such Convertible Note into
the kind and amount of shares, securities or assets receivable upon such
reorganization, reclassification, consolidation, merger or sale by a holder of
the number of shares of common Stock into which such convertible Note might have
been converted immediately prior to such reorganization, reclassification,
consolidation, merger or sale, subject to adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Section 6.
(d) Upon such adjustment of the Conversion Price pursuant to the
provisions of this Section 6.06, the number of shares issuable upon conversion
of this Note shall be adjusted to the nearest full amount by multiplying a
number equal to the Conversion Price in effect immediately prior to such
adjustment by the number of shares of Common Stock issuable upon exercise of
this Note immediately prior to such adjustment and dividing the product so
obtained by the adjusted Conversion Price.
Section 6.07. Covenant to Reserve Shares for Conversion. The Company
convenants that it will at all times reserve and keep available out of its
authorized shares of Common Stock, such number of shares of Common Stock as
shall then be deliverable upon the conversion of all outstanding Convertible
Notes. All shares of Common Stock, which shall be deliverable, shall be duly
and validly issued and fully paid and nonassessable.
Section 6.08. Notice of Change of Conversion Price. Whenever the
Conversion Price is adjusted, as herein provided, the Company shall promptly
send to each Holder a certificate of a firm or independent public accountants
(who may be the accountants regularly employee by the Company) selected by the
Board of Directors setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment. Such
certificate shall be conclusive evidence of the correctness of such adjustment.
Section 7. REGISTRATION RIGHTS.
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Section 7.01. Piggy-Back. If the Company proposes to file, on its behalf
and/or on behalf of any of its securities holders, a Registration Statement
under the Securities Act of 1933, as amended (the "Securities Act") other than
in connection with a dividend reinvestment, employee stock purchase, option or
similar plan or in connection with a merger, consolidation or reorganization,
the Company shall give written notice to each Holder at least 30 days before the
filing with the Securities and Exchange Commission ("SEC") of such Registration
Statement. Each Holder who desires to include any of its shares of Common Stock
into which the Convertible Notes are convertible, whether or not already
converted, (the "Registrable Securities") in such Registration Statement shall
give written notice to the Company within 20 days after the date of mailing of
such offer, and shall deliver to the Company a letter from counsel selected by
such Holder to the effect that registration under the Securities Act is
required. The Company shall thereupon include in such filing the shares of
Common Stock designated by such Holder and, subject to its right to withdraw
such filing, shall use its best efforts to effect registration under the
Securities Act of such shares of Common Stock.
Section 7.02. Conditions. The right of the Holders to have shares
included in any registration Statement in accordance with the provision of this
Section 7 shall be subject to the following conditions:
(a) The Company shall have the right to require that the Holders
participating in such registration Statement agree to refrain from offering or
selling (other than in a private sale) any shares of Common Stock that they own
which are not included in any such Registration Statement in accordance with
this Section 7 for any time period specified in writing by any managing
underwriter of the offering to which such registration Statement relates;
(b) If any managing underwriter of the offering to which the
Registration Statement relates informs the Company in writing that the total
number of shares of Common Stock requested by the Holders to be included in the
Registration Statement is sufficiently large to affect the success of such
offering adversely, then the Company will include only the number of shares, if
any, in the Registration Statement that such managing underwriter shall advise
the Company will not so affect the offering, and reductions in the number of
shares of Common Stock owned by the Holders and other persons who have elected
to have shares Common Stock included in such Registration Statement will be made
proportionate to their respective percentages of ownership of shares to be
included in the Registration Statement;
(c) The Company shall furnish Holders who have shares included in a
Registration Statement pursuant to this Section 7 with such number of copies of
the prospectus relating to the offering (the "Prospectus") (including any
preliminary prospectus or supplemental or amended prospectus) as such Holder may
reasonably request in order to facilitate the sale and distribution of its
shares; and
Section 7.03. Registration or Offering. The Company shall use its best
efforts to prepare and file the Registration Statement or proceed with the
Offering as to which the notice specified herein is given.
Section 7.04 "No Action" Letter: Opinion of Counsel. No Holder shall
have registration rights under this Section with respect to any sales proposed
by them of shares as to which sales (i) a "no action" letter is received from
the SEC or its staff confirming the availability of an exemption from the
requirements of the Securities Act or (ii) an unqualified opinion of counsel to
the Company is rendered to the effect that registration of such shares for such
sales is not required; provided that in both cases (i) and (ii) above, the
volume limitations of Rule 144(e) under the Securities Act shall not limit the
amount of shares of Common Stock that the Holders are entitled to offer and sell
without registration under the Securities Act.
Section 7.05. Recall of Prospectuses, etc. With respect to a Registration
Statement or amendment thereto filed pursuant to this Section, if, at any time,
the Company notifies the selling Holder that an amendment or supplement to such
Registration Statement or amendment or the prospectus included therein is
necessary or appropriate, the selling Holder will forthwith cease selling and
distributing shares thereunder and will forthwith redeliver to the Company all
copies of such registration Statement and prospectuses then in their possession
or under their control.
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Section 7.06. Cooperation of Holders. The Company shall be entitled to
require that each selling Holder cooperate with the Company in connection with a
registration of shares of Common Stock pursuant to this Section and furnish such
information, representations, undertakings and agreements regarding such selling
Holder and the distribution as may be reasonably required by the Company or as
required by law in connection therewith.
Section 7.07. Expenses. The Company will bear all the expenses in
connection with any Registration Statement under this Section 7 (including the
fees and expenses of a single counsel to the Holders) other than transfer taxes
payable on the sale of such shares and fees and commissions of brokers, dealers
and underwriters.
Section 7.08. Indemnification. In the event of the registration of any
securities under the Securities Act pursuant to this Section, the Company and
the Holders shall provide to each other customary indemnification to the extent
of any loss, claim, damage, liability or expense arising out of such
registration.
Section 8: Status of the Holder:
Section 8.01. The Holder has such knowledge and experience in financial and
business matters that the Holder is capable of evaluating the merits and risks
of this Convertible Note. The Holder is able to bear the economic risk of this
Note. The Holder has had the opportunity to consult with the Holder's own
attorney, accountant and/or purchaser representative regarding this Note and the
suitability of this transaction, and to the extent necessary, the Holder has
retained, at Holder's own expense, and relied upon, appropriate professional
advice regarding this Note, the investment it represents, tax and legal merits,
risks and consequences of this Note and of purchasing and owning the Shares.
Section 8.02. The Holder represents that the Holder is an "Accredited
Investor", as that term is defined below, and that at least one of the
categories set forth in (a) through (h) below applies to the Holder. The Holder
is one or more of the following:
(a) a natural person whose individual net worth, or joint net worth
with that person's spouse, exceeds $1,000,000;
(b) a natural person who had an individual income in excess of $200,000
in each of the two most recent years or joint income with that person's spouse
in excess of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year.
(c) a bank as defined in Section 3(a)(2) of the Securities Act or a
savings and loan association or other institution as defined in Section
3(a)(5)(A) of the Securities Act, whether acting in its individual or fiduciary
capacity; a broker or dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934; an insurance company as defined in Section 2(13) of the
Securities Act; an investment company registered under the Investment Company
Act of 1940 (the "1940 Act") or a business development company as defined in
Section 2(a)(48) of the 1940 Act; a Small Business Investment Company licensed
by the U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958; or an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974
("ERISA"), if the investment decision is made by a plan fiduciary, as defined in
Section 3(21) of ERISA, which fiduciary is either a bank, savings and loan
association, insurance company or registered investment adviser, or if the
employee benefit plan has total assets in excess of $5,000,000 or if a self-
directed plan, with investment decisions made solely by persons that are
Accredited Investors (as listed in categories (a) - (h) herein);
(d) a private business development company as defined in
Section 202(a)(22) of the 1940 Act;
(e) an organization described in Section 501(c)(3) of the Internal
Revenue Code, a corporation, Massachusetts or similar business trust or a
partnership, with total assets in excess of $5,000,000, and which was not formed
for the specific purpose of engaging in this transaction;
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(f) a trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of engaging in this transaction, which is directed by a
person who has such knowledge and experience in financial and business matters
that he is capable of evaluating the merits and risks of this investment;
(g) a director or executive officer of the Company; or
(h) an entity in which all of the equity owners are Accredited
Investors [as listed in categories (a) - (h)].
Section 9. MISCELLANEOUS
Section 9.01. Governing Law. This Convertible Note shall be construed in
accordance with the laws of the State of Florida applicable to contracts entered
into and to be performed wholly within said State.
Section 9.02. Successors and Assigns. All the covenants, stipulations,
promises and agreements in the Convertible Notes held by or on behalf of the
Company shall bind its successors and assigns, whether so expressed or not.
Section 9.03 Course of Dealing: No Waiver. No course of dealing between
the Company and the Holder hereof shall operate as a waiver of any right of any
holder hereof and no delay on the part of the Holder in exercising any right
hereunder shall so operate.
Section 9.04. Waiver of Compliance.
(a) Any term, covenant, agreement or condition hereof may be amended,
or compliance therewith may be waived (either generally or in a particular
instance and either retroactively or prospectively), if the Company shall have
obtained the agreement or consent in writing of the Holders of at least 51% in
aggregate principal amount of all outstanding Convertible Notes, but no such
amendment or waiver shall:
(i) change the amount or maturity of any principal on the
Convertible Notes or change the rate or extend the time of payment of
interest on the Convertible Notes or reduce the amount of principal thereof
or modify any of the provisions of the Convertible Notes with respect to
the payment or prepayment thereof:
(ii) give to any Convertible Note any preference or priority over
any other Convertible Note; or
(iii) reduce the percentage of Holders of the Convertible Notes
required to approve any such amendment or effectuate any such waiver.
(b) In determining whether the Holders of the requisite principal
amount of outstanding Convertible Notes have given any authorization, consent or
waiver under this Section 9.04 or under Section 5.02, Convertible Notes owned by
the Company or any Affiliate thereof shall be disregarded and deemed not to be
outstanding.
Section 9.05. Manner of giving Notices. Any notice required to be given
to the Holder hereof by the Company hereunder shall be given by certified
registered mail to the Holder at its address designated on the register referred
to in Section 1.01 on the date of such notice.
Section 9.06. Expenses in Preparation. All expenses of the Holder in the
negotiation, preparation, execution and delivery of this Convertible Note shall
be paid by the Company.
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Section 9.07. Other Provisions. The Company waives demand, presentment,
protest, notice of dishonor and any other form of notice, that may be required
to hold the Company liable on this Note.
IN WITNESS WHEREOF, the undersigned has caused this Convertible Note to be
signed in its corporate name by one of its officers thereunto duly authorized,
and to be dated as of the date first written above.
Witness: FINANCIALWEB.COM, INC.
By: By:
------------------------------ ------------------------------
James P. Gagel Kevin Lichtman
Title: Secretary Title: President
Date: March 25, 1999
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EXHIBIT 4.19
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD, OFFERED
FOR SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS THEY ARE SO REGISTERED OR
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
FINANCIALWEB. COM, INC.
CONVERTIBLE NOTE DUE March 30, 2000
Principal Amount; $250,000.
FINANCIALWEB. COM, INC. a Nevada corporation (the "Company"), for value
received, hereby promises to pay Mr. Anson McCoy Beard, Jr. (the "Holder)", or
registered assigns, on March 30, 2000 the principal amount of Two hundred fifty
thousand dollars ($250,000) (or so much thereof as shall not have been prepaid
or surrendered for conversion) in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, at the offices of the Holder located at Morgan Stanley
& Company, 1221 Avenue of the Americas, 3rd Floor, New York, NY 10172 together
with simple interest of 9.75% on the unpaid portion of the principal amount
thereof, calculated at the rate of .8125% monthly.
Section 1. THE NOTES.
Section 1.01. Registration, Transfer and Exchange of Convertible Notes. The
Company shall keep at its principal office a register in which the Company will
provide for registration, transfer and exchange of Convertible Notes. Subject to
compliance with applicable securities laws, the Holder (as defined below) of any
Convertible Note may, at its option and either in person or by duly authorized
attorney, surrender the same at said office for registration of transfer or
exchange, accompanied, if surrendered for transfer, by a written instrument of
transfer duly executed by said Holder or attorney. If any Holder shall so
request transfer or exchange of a Convertible Note held by it, the Company
shall, within a reasonable time thereafter, without expense to such Holder
(other than transfer taxes, if any) deliver to or upon its order one or more
Convertible Notes in the same unpaid aggregate principal amount as the
Convertible Note so surrendered, each dated the date to which interest has been
paid on the Convertible Note so surrendered, in the principal amount of $5,000
or any multiple thereof, and registered in such name or names, or payable to
such Person or Persons, or order, as shall be specified by the Holder making
such request The Company may demand treat the Holder of any Convertible Note as
the absolute owner of such Convertible Note for the purpose of receiving payment
of or on account of the principal and interest on such Convertible Note and for
the purposes of any notices, waivers or consent thereunder, and payment of any
Convertible Note shall be made only to or upon the order in writing of such
Holder.
Section 1.02. Loss, Theft, Destruction or Convertible Notes. Upon receipt of
evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Convertible Note and, in the case of any such loss, theft or
destruction, upon receipt of indemnity reasonably satisfactory to the Company,
or in the case of any such mutilation, upon surrender and cancellation of this
Convertible Note, the Company will make and deliver, in lieu of such lost,
stolen, destroyed or mutilated Convertible Note, a new Convertible Note of like
tenor and unpaid principal amount and dated as of the date from which unpaid
interest has then accrued on the Convertible Note so lost, stolen, destroyed or
mutilated.
Section 2. DEFINITIONS.
Section 2.01. Terms Defined. The terms defined in this Section 2.01 (except
as herein otherwise expressly provided or unless the context otherwise requires
for all purposes of this Convertible Note shall have the respective meanings
specified in this Section 2.01.
Common Stock: The term "Common Stock" means shares of the Company's Common
Stock, par value $.001 per share.
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Company: The term "Company" means FINANCIALWEB. COM, INC. a Nevada
corporation, and any successor corporation to the Company (including the
corporation surviving any subsequent merger).
Convertible Notes: The term "Convertible Notes" means this note and any one or
more notes created by transfer, succession, partial conversion or partial
prepayment as contemplated by this note.
Current Conversion Price: The term "Current Conversion Price" means the
Conversion Price as most recently adjusted pursuant to Section 6.06.
Default: The Term Default means an event which with notice or upon the lapse
of time or both would become an Event of Default.
Event of Default. The term "Event of Default" means any event specified in
Section 5.01, continued for the period of time, if any, and after the giving of
notice, if any, therein designated.
Holder: The term "Holder" means the Person in whose name such Convertible
Note is registered in the register maintained by the Company pursuant to
Section 1.01.
Maturity: The term "Maturity" when used with respect to any Convertible Note
means the date of which the principal (and interest) of such Convertible Note
becomes due and payable as herein provided, whether at February 11, 2000, (b)
declaration of acceleration or (c) otherwise.
Section 3. CERTAIN COVENANTS.
Section 3.01. Authority; Payment of Convertible Notes. The Company is dully
authorized to issue this Convertible Note and enter into the provisions
contained herein and the Convertible Note and its provisions constitute binding
valid and enforceable obligations of the Company. The Company will duly and
punctually pay or cause to be paid in cash the principal and the interest on
each of the Convertible Notes at the time and place and in the manner provided
herein.
Section 3.02. General Covenants. The Company will:
(a) promptly pay and discharge or cause to be paid and discharged all lawful
taxes, assessments, and governmental charges or levies imposed upon the Company
upon the income of profits of the Company or upon any property, real, personal
or mixed, belonging to the Company or upon any part thereof, before the same
shall become in default, as well as all lawful claims for labor, material and
supplies which, if unpaid, might become a lien or charge upon such properties or
any part thereof except that the Company shall not be required to pay and
discharge or to cause to be paid and discharged any such tax, assessment charge,
levy or claim so long as the validity thereof shall be contested in good faith
by appropriate proceedings and the Company as the case may be, shall set aside
on its books such reserves, if any, as shall be deemed by it adequate with
respect to any such tax, assessment, charge, levy or claim so contested.
(b) do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights and franchises, and comply with
all laws applicable to the Company as its counsel may advise; except that
nothing in this subsection (b) shall prevent a liquidation or dissolution of, or
a sale, transfer or disposition of the property and assets of, or a merger or
consolidation of, the Company or any Affiliate not prohibited by the provisions
of Section 3.04; and
(c) at all times maintain, preserve, protect and keep, or cause to be
maintained, preserved, protected and kept, its property used or useful in the
conduct of the business of the Company in good repair, working order and
condition, and from time to time make, or cause to be made, all necessary and
proper repairs, renewals, replacements betterment and improvements thereto, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
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Section 3.03. Notice of Defaults. In the event that any Event of Default shall
have occurred, the Company will promptly give written notice thereof to each
Holder of a Convertible Notes, which in no case will be given later than 10
calendar days after the Event of Default occurs.
Section 3.04. Mergers, etc. Subject to Section 3.02, the Company may not
consolidate with or merge into, or transfer all or substantially all its assets
to, another corporation unless (a) the resulting, surviving or transferee
corporation assumes in writing all the obligations of the Company under the
Convertible Notes and (b) no Event of Default shall have occurred and be
continuing. Upon any consolidation or merger, or any transfer of all or
substantially all the assets of the Company in accordance with this
Section 3.04, the successor corporation formed by such consolidation or with or
into which the Company is merged or to which such transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under the Convertible Note with the same effect as if such successor
corporation has been named as the Company herein.
Section 3.05. Notice Of Certain Actions. In case at any time:
(a) the Company shall declare any dividend upon its sham of capital stock
payable in securities or make any special dividend or other distribution (other
than a cash dividend to the holders of such shares);
(b) the Company shall offer for subscription pro rata to the holders of its
shares of capital stock for any additional securities of any class or other
rights;
(c) there shall be any capital reorganization, or reclassification of the
capital stock of the Company, or consolidation or merger of the Company with, or
sale of all or substantially all its assets to, another corporation or other
entity;
(d) there shall be a voluntary or involuntary dissolution, liquidation or
winding-up of the Company; or
(e) the Company shall enter into an agreement or adopt a plan for the
purpose of effecting a consolidation, merger, or sale of all or substantially
all of its assets: then, in any one or more of said cases, the Company shall
give written notice pursuant to the notice provisions contained in Section
[9.05] hereof, to the registered holder hereto of the date on which (a) the
books of the Company shall close or a record shall be taken for such dividend,
distribution or subscription rights, or (b) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up shall take place, as the case may be. Such notice shall also specify
the date as of which the holders of shares of record of capital stock shall
participate in such dividend, distribution or subscription rights, or shall be
entitles to exchange their shares for securities or other property deliverable
upon such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation, or winding-up, as the case may be. Such written notice
shall be given at least 30 days prior to the action in question and not less
than 30 days prior to the record date or the date on which the Company's
transfer books are closed in respect thereto.
Section 4. OPTIONAL PREPAYMENTS.
Section 4.01. Optional Prepayments. The Company shall have the privilege, at
any time and from time to time prior to Maturity of prepaying the outstanding
Convertible Notes, either in whole or in part by payment of the principal amount
of each Convertible Note, or portion thereof to be prepaid, and accrued interest
thereon to the date of such prepayment, without premium or penalty.
Section 4.02. Notice of Prepayments. The Company will give notice of any
prepayment of the Convertible Notes pursuant to Section 4.01 to each holder
thereof not less than 30 days nor more than 60 days before the date fixed for
such optional prepayment ("Prepayment Date") specifying (i) the Prepayment Date
(ii) the principal amount of the Holder's Convertible Notes to be prepaid on the
Prepayment Date and (iii) the accrued interest applicable to the prepayment.
Notice of prepayment having been so given, the aggregate principal amount of the
Convertible Notes specified in such notice, together with the premium, if any,
and accrued interest thereon shall become due and payable on the Prepayment
Date.
Section 4.03. Allocation of Prepayments. All partial prepayments pursuant to
Section 4.01 shall be applied on all outstanding Convertible Notes ratably in
accordance with the unpaid principal amounts thereof.
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Section 5. REMEDIES.
Section 5.01 Events of Default. An "Event of Default" occurs if one or more of
the following shall happen (for any reason whatsoever and whether such happening
shall be voluntary or involuntary or come about or be effected by operation of
law or pursuant to or in compliance with any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) if default be made in the punctual payment of the principal on any of the
Convertible Notes when and as the same shall become due and payable, whether at
the fixed maturity of said Convertible Notes or otherwise; or
(b) if default be made in the payment of any installment of interest on any of
the Convertible Notes and such default shall continue for a period of 30 days
after notice; or
(c) if default be made in the due observance or performance of any covenant,
condition or agreement contained in Section 3.02 to 3.05, both inclusive, and
such default shall have continued for a period of 30 days after the Holders of a
majority of the principal amount of the Convertible Notes then outstanding shall
have given notice to the Company (which notice shall specify the default demand
that it be remedied and state that the notice is a "Notice of Default"); or
(d) the Company pursuant to or within the meaning of any Bankruptcy Law: (i)
commences a voluntary case, (ii) consents to the entry of an order for relief
against it in any involuntary case, (iii) consents to the appointment of a
Custodian of it or for any substantial part of its property, (iv) makes a
general assignment for the benefit of its creditors; or
(e) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that: (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company or for any substantial part of
its property, (iii) orders the liquidation of the Company; and the order or
decree remains unstayed and in effect for 30 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator, sequestrator or similar official under any
Bankruptcy Law.
Section 5.02. Acceleration. If an Event of Default (other than an Event of
Default specified in Section 5.01 (d) or (e)) occurs and is continuing then, at
the option of the Holder of this Convertible Note, exercised by written notice
to the Company, the principal of this Convertible Note shall forthwith become
due and payable, together with the interest accrued hereon. If an Event of
Default specified in Section 5.01 (d) or (e) occurs at any time, such an amount
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Holder of this Convertible Note.
The provisions of this Section 5.02 are subject, however, to the condition
that it at any time after any Convertible Note shall have so become due and
payable, the Company shall pay all arrears of interest on the Convertible Notes
and all payments on account of the principal (and accrued interest on
Convertible Notes due and payable by virtue of acceleration) shall be remedied
or waived pursuant to Section 9.04, then, and in every such case, subject to
Section 9.04 (b), the Holder or Holders of at least 66-2/3% in aggregate
principal amount of the Convertible Notes at the time outstanding, by written
notice to the company, may rescind and annul such acceleration and its
consequences; but no such action shall affect any subsequent Default or Event of
Default or impair any right consequent thereon.
Section 5.03. Other Remedies. Subject to the provisions of Section 5.02, in
case any one or more of the Events of Default specified in Section 5.01 shall
have occurred and be continuing, the Holder of this Convertible Note may proceed
to protect and enforce its rights by suit in equity, action at law or by other
appropriate proceedings or both, whether for the specific performance of any
covenant or agreement contained in this Convertible Note or in aid of the
exercise of any power granted in this Convertible Note,
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or may proceed to enforce the payment of this Convertible Note or to enforce any
other legal or equitable right of the Holder of this Convertible Note.
The remedies of the holder provided herein shall be cumulative and concurrent
and may be pursued singly, successively, or together at the sole discretion of
the holder, and may be exercised as often as occasion therefor shall occur; and
the failure to exercise any such right or remedy shall in no event be construed
as a waiver or release thereof.
The Company hereby waives and releases all errors, defects and imperfections
in any proceedings instituted by the holder under the terms of this Convertible
Note, as well as all benefit that might accrue to the Company by virtue of any
present or future laws exempting any property, real or personal, or any part of
the proceeds arising from any sale of any such property, from attachment, levy,
or sale under execution, or providing for any stay of execution, exemption form
civil process or extension of time for payment and the Company agrees that any
real estate that may be levied upon pursuant to a judgment obtained by virtue
hereof, or any writ of execution issued thereon, may be sold upon any such writ
in whole or in part in any ordered desired by the holder.
The holder shall not be deemed, by any act of omission or commission, to have
waived any of its rights or remedies hereunder unless such waiver is in writing
and signed by the holder, and then only to the extent specifically set forth in
writing. A waiver of one event shall not be construed as continuing or as a bar
to or waiver of any right or remedy to a subsequent event.
Section 5.04. Notice by the Company of Acceleration or Other Action by
Convertible Noteholders or Holders of Other Indebtedness. If any Holder of a
Convertible Note shall give any notice to the Company with respect to any Event
of Default (or with respect to any event which with notice or the lapse of time,
or both, would be an Event of Default), or accelerate the maturity thereof or
take any other action in respect of an Event of Default or such event, or if the
holder of any bond, debenture, note or other similar evidence of indebtedness
(other than the Convertible Notes) of, or secured or guaranteed by, the Holder
shall give any notice to the Company in respect of any default thereunder or
under any agreement pursuant to which such bond, debenture, note or other
evidence or indebtedness is issued, the Company shall forthwith give written
notice to all Holders of Convertible Notes, specifying such action and the
nature and status of the Event of Default or event or other default.
Section 5.05. Remedies Cumulative. No remedy herein conferred upon the
Holder of this Convertible Note is intended to be exclusive of any other remedy
and each and every such remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise.
Section 5.06. Enforcement. If there shall be any Default under this
Convertible Note and this Convertible Note shall be placed in the hands of an
attorney for collection, or shall be collected through any court, including any
bankruptcy court, the Company promises to pay to the order of the Holder hereof
such Holder's reasonable attorneys' fees and court costs incurred in collecting
or attempting to collect or securing or attempting to secure this Convertible
Note or enforcing the Holder's rights with respect to any collateral securing
this Convertible Note, to the extent allowed by the laws of the State of Florida
or any state in which any collateral for this Note shall be situated.
Section 6. CONVERSION.
Section 6.01. Right of Conversion, Conversion Price. Subject to and upon
compliance with the provisions of this Section 6, the Holder shall have the
right; at his option, at any time during usual business hours (including the
period between the date on which the Company gives notice of prepayment and the
Prepayment Date) to convert the principal and accrued interest of any
Convertible Note owned by such Holder into fully paid and in nonassessable
shares of Common Stock at the rate of $4.00 for each share of common Stock (the
"Conversion Price" which price per share shall be payable by surrender of such
Convertible Note.
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(a) As of the date hereof, the authorized and outstanding capital stock of the
Company is 4,973,000 (four million nine hundred seventy three thousand) shares.
Section 6.02. Manner of Exercise.
(a) In order to exercise the conversion right, the Holder of any Convertible
Note to be converted shall surrender such Convertible Note at the office of the
Company, accompanied by written notice to the Company stating (i) that the
Holder elects to convert such Convertible Note or, if less than the entire
principal amount of a Convertible Note is to be converted, the portion thereof
(a multiple of $1,000) to be converted, and (ii) the name or names (with
addresses) in which the certificate or certificates for shares of Common Stock
issuable on such conversion shall be issued. Convertible Notes surrendered for
conversion shall be accompanied by proper assignment thereof to the Company or
in blank for transfer if the shares are to be issued in a name other than that
of the Holder.
(b) In the case of any Convertible Note which is converted in part only, upon
such conversion the Company shall execute and deliver to the Holder thereof, at
the expense of the Company, a new Convertible Note or Convertible Notes of
authorized denominations in principal amount equal to the unconverted portions
of such Convertible Note.
Section 6.03. Issuance of Shares of Common Stock on Conversion.
(a) As promptly as practicable after the receipt of such notice and the
surrender of such convertible Note as aforesaid, the Company shall issue, at its
expense, and shall deliver to such Holder, or on his written order, at the
aforesaid office of the Company (i) a certificate or certificates for the number
of full shares of Common Stock issuable upon the conversion of such Convertible
Note (or specified portion thereof), and (ii) a certificate or certificates for
any fractional shares of Common Stock issuable upon conversion of such
Convertible Note (or specified portion thereof) or, at the Company's option,
cash in lieu of script for any fraction of a share to which such Holder is
entitled upon conversion as provided in Section 6.05.
(b) Such conversion shall be deemed to have been effected immediately prior to
the close of business on the date ("Conversion Date") on which the Company shall
have received both such notice and the surrendered Convertible Note as
aforesaid, and at such time the rights of the Holder of such Convertible Note
shall cease and the Person or Persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such conversion
shall be deemed to have become the holder or holders of record of the shares
represented thereby.
Section 6.04. No Adjustments for Interest or Dividends. No payment or
adjustment shall be made by or on behalf of the Company on account of any
interest accrued on any Convertible Notes surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon such
conversion which were declared for payment to holders of shares of Common Stock
or record as of a date prior to the Conversion Date. All payments of accrued
interest on any Convertible Note shall be made in cash or additional stock at
the Conversion Price, at Company's option.
Section 6.05. Fractional Shares. The Company, at its option, may issue
fractional shares of common Stock upon any conversion of Convertible Notes or,
in lieu of any fraction of a share of Co a Stock to which any Holder would
otherwise be entitled upon conversion of any Convertible Notes (or specified
portions thereof), the Company may pay a cash adjustment for such fraction in an
amount equal to same fraction of the conversion price per share.
Section 6.06. Adjustment of Conversion Price. The Conversion Price shall be
adjusted as set forth in this section.
(a) In the event that the Company shall make any distribution of its assets
upon or with respect to its shares of Common Stock, as a liquidating or partial
liquidating dividend, or other than as a dividend payable out of earnings or any
surplus legally available for dividends under the laws of the state
Page 6 of 14
<PAGE>
of incorporation of the Company, each Holder of any Convertible Note then
outstanding shall, upon the exercise of his right to convert after the record
date for such distribution or, in the absence of a record date, after the date
of such distribution receive, in addition to the shares subscribed for, the
amount of such assets (or, at the option of the Company, a sum equal to the
value thereof at the time of distribution as determined by the Board of
Directors in its sole discretion) which would have been distributed to such
Holder if he had exercised his right to convert immediately prior to the record
date for such distribution or, in the absence of a record date, immediately
prior to the date of such distribution.
(b) In case at any time the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares, the current Conversion Price in
effect immediately prior to such subdivision shall be proportionately reduced
and conversely, in case the outstanding shares of Common Stock of the Company
shall be combined into a smaller number of shares, the Current Conversion Price
in effect immediately prior to such combination shall be proportionately
increased.
(c) If any capital reorganization or reclassification of the capital stock of
the Company, or consolidation or merger of the company with another corporation,
or the sale transfer or lease of all or substantially all of its assets to
another corporation, shall be effected in such a way that holders of shares of
Common Stock shall be entitled to receive shares, securities or assets with
respect to or in exchange for shares of Common Stock, then, as a condition of
such reorganization, reclassification, consolidation, merger or sale, the
Company or such successor or purchasing corporation, as the case may be, shall
execute an amendment to the Convertible Notes providing that the Holder of each
Convertible Note then outstanding shall have the right thereafter and until the
expiration of the period of convertibility to convert such Convertible Note into
the kind and amount of shares, securities or assets receivable upon such
reorganization, reclassification, consolidation, merger or sale by a holder of
the number of shares of Common Stock into which such Convertible Note might have
been converted immediately prior to such reorganization, reclassification,
consolidation, merger or sale, subject to adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Section 6.
(d) Upon such adjustment of the Conversion Price pursuant to the provisions of
this Section 6.06, the number of shares issuable upon conversion of this Note
shall be adjusted to the nearest full amount by multiplying a number equal to
the Conversion Price in effect immediately prior to such adjustment by the
number of shares of Common Stock issuable upon exercise of this Note immediately
prior to such adjustment and dividing the product so obtained by the adjusted
Conversion Price.
Section 6.07. Adjustment of Conversion Price - Share Issuances. If and
whenever on or after the date hereof the Company shall issue any shares of
Common Stock for a consideration per share less than the Conversion Price
(whether pursuant to a direct issuance or any option or warrant to acquire
shares) or issue any security convertible into shares of Common Stock at a
conversion value of less than the Conversion Price, then, forthwith upon such
issue or sale, the Conversion Price shall be reduced as follows:
(a) If the shares issued at such lower price shall have been issued in a
transaction or series of transactions occurring within any 18 month period and
shall have constituted 5% or more of the Company's then outstanding shares
(determined as set forth in (iv) below), the Conversion Price shall be reduced
to (i) the lowest prices at which such shares were offered in any one
transaction constituting 5% or more; or (ii) to the lowest weighted average
price per share in any series of transactions constituting 5% or more in which
no one transaction by itself constituted 5%; or
(b) If the shares issued at such lower price shall have been issued otherwise
than for 5% or more of the Company's then outstanding shares as stated in
subsection (a) above, the Conversion Price shall be reduced to a number
determined by multiplying then Conversion Price in effect immediately prior to
such issuance by the following fraction:
Page 7 of 14
<PAGE>
B
-
A+ C
------
A+D
wherein:
A = the number of outstanding shares of Common Stock
immediately prior to the subject issuance;
B = the aggregate consideration for the shares then being
issued,
C = the then Conversion Price; and
D = the number of shares then being issued.
The Conversion Price shall be further reduced from time to time thereafter
whenever any Shares are so issued or converted for a lower price than the then
Conversion Price, as adjusted prior to that date. However, no adjustment of the
conversion price shall be made in an amount less than $.02 share, but any such
lesser adjustment shall be carried forward and shall be made at the time and
together with the next subsequent adjustment which together with any adjustments
so carried forward shall amount to $.02 per share or more.
For the purposes of this Section 6.07, the following provisions (i) through
(iii) shall also be applicable:
(i) in case any shares shall be issued or sold for cash, the consideration
received therefor shall be deemed to be the amount received by the Company
therefor, without deduction therefrom of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the Company in
connection therewith. In case any shares shall be issued for a consideration
other than cash, the amount of the consideration other than cash received by the
Company shall be deemed to be the fair value of such consideration as determined
by the Board of Directors of the Company, without deduction of any expenses
incurred or any underwriting commissions or concessions paid or allowed by the
Company in connection therewith.
(ii) At no time shall the Conversion Price increase.
(iii) As used in this Section 6.07, the number of outstanding shares at any
given time shall be deemed to be the aggregate of the Company's then issued and
outstanding Shares, plus all shares into which the Holder of this Convertible
Note may then convert this Convertible Note pursuant to the terms hereof, plus
all Shares which the holders of any then outstanding options, warrants,
convertible preferred stock or other convertible securities and then or will be
entitled to acquire pursuant to their rights under those instruments (assuming
the Conversion Prices and ratios applicable to them at that time, irrespective
of whether such holders have rights to acquire such shares thereunder
immediately or at a later date, and without taking into consideration any change
in the Conversion Price relative to this Convertible Note or any other
instrument which could result from the subject issuance of Shares), but not
including the new shares then being issued by the Company pursuant to which the
aforesaid 5% test shall relate.
Section 6.08. Covenant to Reserve Shares for Conversion. The Company
covenants that it will at all times reserve and keep available out of its
authorized shares of Common Stock, such number of shares of Common Stock as
shall then be deliverable upon the conversion of all outstanding Convertible
Notes. All shares of Common Stock, which shall be deliverable, shall be duly and
validly issued and fully paid and nonassessable.
Section 6.09. Notice of Change of Conversion Price. Whenever the Conversion
Price is adjusted, as herein provided, the Company shall promptly send to each
Holder a certificate of a firm of
Page 8 of 14
<PAGE>
independent public accountants (who may be the accountants regularly employed by
the Company) selected by the Board of Directors setting forth the Conversion
Price after such adjustment and setting forth a brief statement of the facts
requiring such adjustment. Such certificate shall be conclusive evidence of the
correctness of such adjustment.
Section 7. REGISTRATION RIGHTS.
Section 7.01. Piggy-Back. If the Company proposes to file, on its behalf and
or on behalf of any of its securities holders, a Registration Statement under
the Securities Act of 1933, as amended (the "Securities Act") other than in
connection with a dividend reinvestment, employee stock purchase, option or
similar plan or in connection with a merger, consolidation or reorganization,
the Company shall give written notice to each Holder at least 30 days before the
filing with the Securities and Exchange Commission ("SEC") of such Registration
Statement. Each Holder who desires to include any of its shares of Common Stock
into which the Convertible Notes are convertible, whether or not already
converted, (the "Registrable Securities") in such Registration Statement shall
give written notice to the Company within 20 days after the date of receipt of
written notice from the Company. The Company shall then upon include in such
filing the shares of Common Stock designated by such Holder and, subject to its
right withdraw such filing, shall use its best efforts to effect registration
under the Securities Act of such shares of Common Stock.
Section 7.02. Conditions. The right of the Holders to have shares included in
any registration Statement in accordance with the provision of this Section 7
shall be subject to the following conditions:
(a) The Company shall have the right to require that the Holders participating
in such Registration Statement agree to refrain from offering or selling (other
than in a private sale) any shares of Common Stock that they own which are not
included in any such Registration Statement in accordance with this Section 7
for any time period specified in writing by any managing underwriter of the
offering to which such Registration Statement relates;
(b) If any managing underwriter of the offering to which the Registration
Statement relates informs the Company in writing that the total number of shares
of Common Stock requested by the Holders to be included in the Registration
Statement is sufficiently large to affect the success of such offering
adversely, then the Company will include only the number of shares, if any, in
the Registration Statement that such managing underwriter shall advise the
Company will not so affect the offering, and reductions in the number of shares
of Common Stock owned by the Holders and other persons who have elected to have
shares of Common Stock included in such Registration Statement will be made
proportionately to their respective percentages of ownership of shares to be
included in the Registration Statement; and
(c) The Company shall furnish Holders who have shares included in a
Registration Statement pursuant to this Section 7 with such number of copies of
the prospectus relating to the offering (the "Prospectus") (including any
preliminary prospectus or supplemental or amended prospectus) as such Holder may
reasonably request in order to facilitate the sale and distribution of its
shares.
Section 7.03. Registration Covenants of Company. The Company shall use its
best efforts to prepare and file the Registration Statement or proceed with the
Offering as to which the notice specified herein is given.
(a) The Company shall use its best efforts to file a registration statement
within forty-five (45) days of receipt of any demand therefor, shall use its
best efforts to have any registration statement declared effective at the
earliest possible time, and shall furnish each Holder desiring to sell
Registrable Securities such number of prospectuses as shall reasonably be
requested.
(b) As expeditiously as possible prepare and file with the Commission any
amendments and supplements to the registration statement and the prospectus
included therein.
Page 9 of 14
<PAGE>
as may be necessary to keep the registration statement effective until the later
of (i) the date when all Registrable Securities registered have been sold, or
(ii) two years from the effective date of the registration Statement.
(c) The Company shall pay all costs (excluding any underwriting or selling
commissions or other charges of any broker-dealer acting on behalf of Holder(s),
fees and expenses in connection with all registration statements filed pursuant
to Section 7 hereof including, without limitation, the Company's legal and
accounting fees. If the Company shall fail to comply with the provisions of
Section 7.03(a) or (b), the Company shall, in addition to any other equitable or
other relief available to the Holder(s), be liable for any or all damages due to
loss of profit sustained by the Holder(s) requesting registration of their
Registrable Securities.
(d) The Company shall take all necessary action which may be required in
qualifying or registering the Registrable Securities included in the
registration statement for offering and sale under the securities or blue sky
laws of such states as reasonably as requested by the Holder(s), provided that
the Company shall not be obligated to execute or file any general consent to
service of process or to qualify as a foreign corporation to do business under
the laws of any such jurisdiction.
(e) The Company shall indemnify the Holder(s) of the Registrable Securities to
be sold pursuant to any registration statement and each person, if any, who
controls such Holders within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage, expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to winch any of them may be
subject.
(f) The Holder(s) of the Registrable Securities to be sold pursuant to a
registration statement and their successors and assigns, shall severally, and
not jointly, indemnify the Company, its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from written
information furnished by or on behalf of such Holders, or their successors or
assigns, for specific inclusion in such a registration statement.
(g) Nothing contained in this Agreement shall be construed as requiring the
Holder(s) to convert their Notes prior to the initial filing of any registration
statement or the effectiveness thereof.
(h) The Company shall furnish to each Holder participating in an offering
including Registrable Securities, pursuant to Sections 7.01 hereof, and to each
underwriter, if any, a signed counterpart addressed to such Holder or
underwriter, of (i) an opinion of counsel to the Company, dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, an opinion dated the date of the closing under the
underwriting agreement), and (ii) a "cold comfort" letter dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, a letter dated the date of the closing under the
underwriting agreement) signed by the independent public accountants who have
issued a report on the Company's financial statements included in such
registration statement, in each case covering substantially the same matters
with respect to such registration statement (and the prospectus included
therein) and, in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements, as are customarily covered
in opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of a
registration statement relating to any Registrable Securities pursuant to
Section 7.01 hereof, and in any event within fifteen (15) months thereafter,
make "generally available to its security holders" (within the meaning of
Rule 158 under the Act) an earnings statement (which need not be audited)
complying with
Page 10 of 14
<PAGE>
Section 11(a) of the Act and covering a period of at least twelve (12)
consecutive months beginning after the effective date of the registration
statement.
(j) The Company shall deliver promptly to each Holder participating in an
offering including any Registrable Securities pursuant to Sections 7.01 hereof,
who so requests, and to the managing underwriter, copies of all correspondence
between the Commission and the Company, its counsel or auditors and all
memoranda relating to discussions with the Commission or its staff with respect
to the registration statement and permit each Holder and underwriter to do such
investigation, upon reasonable advance notice, with respect to information
contained in or omitted from the registration statement as it deems reasonably
necessary to comply with applicable securities laws or rules of the National
Association of Securities Dealers, Inc. ("NASD"). Such investigation shall
include access to books, records and properties and opportunities to discuss the
business of the Company with its officers and independent auditors, all to such
reasonable extent and at such reasonable times and as often as any such Holder
shall reasonably request as it deems necessary to comply with applicable
securities laws and NASD rules.
(k) With respect to a registration pursuant to Section 7.01 hereof, if
requested by the Holders holding a Majority of the Registrable Securities, the
Company may enter into an underwriting agreement with the managing underwriter
selected for such underwriting by Holders holding a Majority of the Registrable
Securities requested to be included in such underwriting. Such managing
underwriter(s) shall be satisfactory to the Company and each Holder and such
agreement shall be satisfactory in form and substance to the Company, each
Holder and such managing underwriters, and shall contain such representations,
warranties and covenants by the Company and such other terms as are customarily
contained in agreements of that type used by the managing underwriter. The
Holders may be parties to any underwriting agreement relating to an underwritten
sale of their Registrable Securities and may, at their option, require that any
or all the representations, warranties and covenants of the Company to or for
the benefit of such Holders. Such Holders shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters except as they may relate to such Holders and their intended
methods of distribution.
(l) Subject to the provisions of Section 7.02(a) or (b), upon the written
request therefor by any Holder(s), the Company may include in the registration
statement any other securities of the Company hold by such Holder(s) as of the
date of filing of such registration statement including without limitation,
restricted shares of Common Stock, options, warrants or any other securities
convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to the
Holders of Warrants or Registrable Securities, shall mean in excess of fifty
percent (50%) of the outstanding Warrants or Registrable Securities that (i) are
not held by the Company, an affiliate (excluding Katsock), officer, creditor,
employee or agent thereof or any of their respective affiliates, members of
their family, persons acting as nominees or in conjunction therewith or (ii)
have not been resold to the public pursuant to a registration statement filed
with the Commission under the Act.
Page 11 of 14
<PAGE>
Section 7.04 "No Action" Letter; Opinion of Counsel. No Holder shall have
registration rights under this Section with respect to any sales proposed by
them of shares as to which sales (i) a "no action" letter is received from the
SEC or its staff confirming the availability of an exemption from the
requirements of the Securities Act or (ii) an unqualified opinion of counsel to
the Company is rendered to the effect that registration of such shares for such
sales is not required; provided that in both cases (i) and (ii) above, the
volume limitations of Rule 144(e) under the Securities Act shall not limit the
amount of shares of Common Stock that the Holders are entitled to offer and sell
without registration under the Securities Act.
Section 7.05. Recall of Prospectuses, etc. With respect to a Registration
Statement or amendment thereto filed pursuant to this Section, if, at any time,
the Company notifies the selling Holder that an amendment or supplement to such
Registration Statement or amendment or the prospectus included therein is
necessary or appropriate, the selling Holder will forthwith cease selling and
distributing shares thereunder and will forthwith redeliver to the Company all
copies of such Registration Statement and prospectuses then in their possession
or under their control.
Section 7.06. Cooperation of Holders. The Company shall be entitled to require
that each selling Holder cooperate with the Company in connection with a
registration of shares of Common Stock pursuant to this Section and furnish such
information, representations, undertakings and agreements regarding such selling
Holder and the distribution as way be reasonably required by the Company or as
required by law in connection therewith.
Section 7.07. Expenses. The Company will bear all the expenses in connection
with any Registration Statement under this Section 7 (including the fees and
expenses of a single counsel to the Holders) other than transfer taxes payable
on the sale of such shares and fees and commissions of brokers, dealers and
underwriters.
Section 7.08. Indemnification. In the event of the registration of any
securities under the Securities Act pursuant to this Section, the Company and
the Holders shall provide to each other customary indemnification to the extent
of any loss, claim, damage, liability or expense arising out of such
registration.
Section 8: Status of the Holder:
Section 8.01. The Holder has such knowledge and experience in financial and
business matters that the Holder is capable of evaluating the merits and risks
of this Convertible Note. The Holder is able to bear the economic risk of this
Note. The Holder has had the opportunity to consult with the Holder's own
attorney, accountant and/or purchaser representative regarding this Note and the
suitability of this transaction, and to the extent necessary, the Holder has
retained, at Holder's own expense, and relied upon, appropriate professional
advice regarding this Note, the investment it represents, tax and legal merits,
risks and consequences of this Note and of purchasing and owning the Shares.
Section 8.02. The Holder represents that the Holder is an "Accredited
Investor", as that term is defined below, and that at least one of the
categories set forth in (a) through (h) below applies to the Holder. The Holder
is one or more of the following:
(a) a natural person whose individual net worth, or joint net worth with that
person's spouse, exceeds $1,000,000;
(b) a natural person who had an individual income in excess of $200,000 in
each of the two most recent years or joint income with that person's spouse in
excess of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year.
(c) a bank as defined in Section 3(a)(2) of the Securities Act or a savings
and loan association or other institution as defined in Section 3(a) (5)(A) of
the Securities Act, whether acting in its individual or fiduciary capacity; a
broker or dealer registered pursuant to Section 15 of the Securities Exchange
Page 12 of 14
<PAGE>
Act of 1934; an insurance company as defined in Section 2(13) of the Securities
Act; an investment company registered under the Investment Company Act of 1940
(the "1940 Act") or a business development company as defined in Section
2(a)(48) of the 1940 Act; a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958; or an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974 ("ERISA"), if
the investment decision is made by a plan fiduciary, as defined in Section 3(21)
of ERISA, which fiduciary is either a bank, savings and loan association,
insurance company or registered investment adviser, or if the employee benefit
plan has total assets in excess of $5,000,000 or if a self-directed plan, with
investment decisions made solely by persons that are Accredited Investors (as
listed in categories (a) - (h) herein);
(d) a private business development company as defined in Section 202(a)(22) of
the 1940 Act;
(e) an organization described in Section 501 (c)(3) of the Internal Revenue
Code, a corporation, Massachusetts or similar business trust or a partnership,
with total assets in excess of S5,000,000, and which was not formed for the
specific purpose of engaging in this transaction;
(f) a trust, with total assets in excess of $5,000,000, not formed for the
specific purpose of engaging in this transaction, which is directed by a person
who has such knowledge and experience in financial and business matters that he
is capable of evaluating the merits and risks of this investment;
(g) a director or executive officer of the Company; or
(h) an entity in which all of the equity owners are Accredited Investors [as
listed in categories (a) - (h)].
Section 9. MISCELLANEOUS.
Section 9.01. Governing Law. This Convertible Note shall be construed in
accordance with the laws of the State of Florida applicable to contracts
entered into and to be performed wholly within said State.
Section 9.02. Successors and Assigns. All the covenants, stipulations,
promises and agreements in the Convertible Notes held by or on behalf of the
Company shall bind its successors and assigns, whether so expressed or not.
Section 9.03 Course of Dealing: No Waiver. No course of dealing between the
Company and the Holder hereof shall operate as a waiver of any right of any
holder hereof and no delay on the part of the Holder in exercising any right
hereunder shall so operate.
Section 9.04. Waiver of Compliance.
(a) Any term, covenant, agreement or condition hereof may be amended, or
compliance therewith may be waived (either generally or in a particular instance
and either retroactively or prospectively), if the Company shall have obtained
the agreement or consent in writing of the Holders of at least 51% in aggregate
principal amount of all outstanding Convertible Notes, but no such amendment or
waiver shall:
(i) change the amount or maturity of any principal on the Convertible Notes or
change the rate or extend the time of payment of interest on the Convertible
Notes or reduce the amount of principal thereof or modify any of the provisions
of the Convertible Notes with respect to the payment or prepayment thereof:
(ii) give to any Convertible Note any preference or priority over any other
Convertible Note; or
Page 13 of 14
<PAGE>
(iii) reduce the percentage of Holders of the Convertible Notes required to
approve any such amendment or effectuate any such waiver.
(b) In determining whether the Holders of the requisite principal amount of
outstanding Convertible Notes have given any authorization, consent or waiver
under this Section 9.04 or under Section 5.02, Convertible Notes owned by the
Company shall be disregarded and deemed not to be outstanding.
Section 9.05. Manner of giving Notices. Any notice required to be given to the
Holder hereof by the Company hereunder shall be given by overnight delivery with
a reputable established courier service and by certified registered mail to the
Holder at its address designated on the register referred to in Section 1.01 on
the date of such notice.
Section 9.06. Expenses in Preparation. All expenses of the Holder in the
negotiation, preparation, execution and delivery of this Convertible Note,
including attorneys' fees shall be paid by the Company.
Section 9.07. Other Provision. The Company waives demand, presentment protest
notice of dishonor and any other form of notice that may be required to hold the
Company liable on this Note.
IN WITNESS WHEREOF, the undersigned has caused this Convertible Note to be
signed in its corporate name by one of its officers thereunto duly authorized,
and to be dated as of the date first written above.
FINANCIALWEB. COM, INC.
By: /s/ James P. Gagel
---------------------------------
James P. Gagel
Title: Executive Vice President
-----------------------------
Date: March 30, 1999
Page 14 of 14
<PAGE>
EXHIBIT 4.20
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD, OFFERED
FOR SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS THEY ARE SO REGISTERED OR
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
FINANCIALWEB. COM, INC.
CONVERTIBLE NOTE DUE March 30, 2000
Principal Amount: $250,000.
FINANCIALWEB. COM, INC. a Nevada corporation (the "Company"), for value
received, hereby promises to pay Prime Equity Fund, L.P. (c/o Mr. John J.
Katsock, Jr.) (the "Holder)", or registered assigns, on March 30, 2000 the
principal amount of Two hundred fifty thousand dollars ($250,000) (or so much
thereof as shall not have been prepaid or surrendered for conversion) in such
coin or currency of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts, at the offices of
the Holder located at 277 Park Avenue, 27th Floor, New York, NY 10172 together
with simple interest of 9.75% on the unpaid portion of the principal amount
thereof, calculated at the rate of .8125% monthly.
Section 1. THE NOTES.
Section 1.01. Registration, Transfer and Exchange of Convertible Notes. The
Company shall keep at its principal office a register in which the Company will
provide for registration, transfer and exchange of Convertible Notes. Subject to
compliance with applicable securities laws, the Holder (as defined below) of any
Convertible Note may, at its option and either in person or by duly authorized
attorney, surrender the same at said office for registration of transfer or
exchange, accompanied, if surrendered for transfer, by a written instrument of
transfer duly executed by said Holder or attorney. If any Holder shall so
request transfer or exchange of a Convertible Note held by it, the Company
shall, within a reasonable time thereafter, without expense to such Holder
(other than transfer taxes, if any) deliver to or upon its order one or more
Convertible Notes in the same unpaid aggregate principal amount as the
Convertible Note so surrendered, each dated the date to which interest has been
paid on the Convertible Note so surrendered, in the principal amount of $5,000
or any multiple thereof, and registered in such name or names, or payable to
such Person or Persons, or order, as shall be specified by the Holder making
such request. The Company may deem and treat the Holder of any Convertible Note
as the absolute owner of such Convertible Note for the purpose of receiving
payment of or on account of the principal and interest on such Convertible Note
and for the purposes of any notices, waivers or consent thereunder, and payment
of any Convertible Note shall be made only to or upon the order in writing of
such Holder.
Section 1.02. Loss, Theft, Destruction or Convertible Notes. Upon receipt
of evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Convertible Note and, in the case of any such loss, theft or
destruction, upon receipt of indemnity reasonably satisfactory to the Company,
or in the case of any such mutilation, upon surrender and cancellation of this
Convertible Note, the Company will make and deliver, in lieu of such lost,
stolen, destroyed or mutilated Convertible Note, a new Convertible Note of like
tenor and unpaid principal amount and dated as of the date from which unpaid
interest has then accrued on the Convertible Note so lost, stolen, destroyed or
mutilated.
Section 2. DEFINITIONS.
Section 2.01. Terms Defined. The terms defined in this Section 2.01 (except
as herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Convertible Note shall have the respective meanings
specified in this Section 2.01.
Common Stock: The term "Common Stock" means shares of the Company's Common
Stock, par value $.001 per share.
Page 1 of 14
<PAGE>
Company: The term "Company" means FINANCIALWEB. COM, INC. a Nevada
corporation, and any successor corporation to the Company (including the
corporation surviving any subsequent merger).
Convertible Notes: The term "Convertible Notes" means this note and any one or
more notes created by transfer, succession, partial conversion or partial
prepayment as contemplated by this note.
Current Conversion Price: The term "Current Conversion Price" means the
Conversion Price as most recently adjusted pursuant to Section 6.06.
Default: The term "Default" means an event which with notice or upon the
lapse of time or both would become an Event of Default.
Event of Default: The term "Event of Default" means any event specified in
Section 5.01, continued for the period of time, if any, and after the giving of
notice, if any, therein designated.
Holder: The term "Holder" means the Person in whose name such Convertible Note
is registered in the register maintained by the Company pursuant to
Section 1.01.
Maturity: The term "Maturity" when used with respect to any Convertible Note
means the date of which the principal (and interest,) of such Convertible Note
becomes due and payable as herein provided, whether at February 11, 2000, (b)
declaration of acceleration or (c) otherwise.
Section 3. CERTAIN COVENANTS.
Section 3.01. Authority: Payment of Convertible Notes. The Company is duly
authorized to issue this Convertible Note and enter into the provisions
contained herein and the Convertible Note and its provisions constitute binding
valid and enforceable obligations of the Company. The Company will duly and
punctually pay or cause to be paid in cash the principal and the interest on
each of the Convertible Notes at the time and place and in the manner provided
herein.
Section 3.02. General Covenants. The Company will:
(a) promptly pay and discharge or cause to be paid and discharged all
lawful taxes, assessments, and governmental charges or levies imposed upon the
Company upon the income of profits of the Company or upon any property, real,
personal or mixed, belonging to the Company or upon any part thereof, before the
same shall become in default as well as all lawful claims for labor, material
and supplies which, if unpaid, might become a lien or charge upon such
properties or any part thereof, except that the Company shall not be required to
pay and discharge or to cause to be paid and discharged any such tax,
assessment, charge, levy or claim so long as the validity thereof shill be
contested in good faith by appropriate proceedings and the Company as the case
may be, shall set aside on its books such reserves, if any, as shall be deemed
by it adequate with respect to any such tax, assessment, charge, levy or claim
so contested.
(b) do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises, and comply
with all laws applicable to the Company as its counsel may advise; except that
nothing in this subsection (b) shall prevent a liquidation or dissolution of, or
a sale, transfer or disposition of the property and assets of, or a merger or
consolidation of, the Company or any Affiliate not prohibited by the provisions
of Section 3.04; and
(c) at all times maintain, preserve, protect and keep, or cause to be
maintained, preserved, protected and kept, its property used or useful in the
conduct of the business of the Company in good repair, working order and
condition, and from time to time make, or cause to be made, all necessary and
proper repairs, renewals, replacements betterment and improvements thereto, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
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<PAGE>
Section 3.03. Notice of Defaults. In the event that any Event of Default shall
have occurred, the Company will promptly give written notice thereof to each
Holder of a Convertible Notes, which in no case will be given later than 10
calendar days after the Event of Default occurs.
Section 3.04. Mergers, etc. Subject to Section 3.02, the Company may not
consolidate with or merge into, or transfer all or substantially all its assets
to, another corporation unless (a) the resulting, surviving or transferee
corporation assumes in writing all the obligations of the Company under the
Convertible Notes and (b) no Event of Default shall have occurred and be
continuing. Upon any consolidation or merger, or any transfer of all or
substantially all the assets of the Company in accordance with this
Section 3.04, the successor corporation formed by such consolidation or with or
into which the Company is merged or to which such transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under the Convertible Note with the same effect as if such successor
corporation has been named as the Company herein.
Section 3.05. Notice of Certain Actions. In case at any time:
(a) the Company shall declare any dividend upon its shares of capital stock
payable in securities or make any special dividend or other distribution (other
than a cash dividend to the holders of such shares);
(b) the Company shall offer for subscription pro rata to the holders of its
shares of capital stock for any additional securities of any class or other
rights;
(c) there shall be any capital reorganization, or reclassification of the
capital stock of the Company, or consolidation or merger of the Company with, or
sale of all or substantially all its assets to, another corporation or other
entity;
(d) there shall be a voluntary or involuntary dissolution, liquidation or
winding-up of the Company; or
(e) the Company shall enter into an agreement or adopt a plan for the
purpose of effecting a consolidation, merger, or sale of all or substantially
all of its assets: then, in any one or more of said cases, the Company shall
give written notice pursuant to the notice provisions contained in Section
(9.05] hereof, to the registered holder hereof, of the date on which (a) the
books of the Company shall close or a record shall be taken for such dividend,
distribution or subscription rights, or (b) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up shall take place, as the case may be. Such notice shall also specify
the date as of which the holders of shares of record of capital stock shall
participate in such dividend, distribution or subscription rights, or shall be
entitles to exchange their shares for securities or other property deliverable
upon such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation, or winding-up, as the case may be. Such written notice
shall be given at least 30 days prior to the action in question and not less
than 30 days prior to the record date or the date on which the Company's
transfer books are closed in respect thereto.
Section 4. OPTIONAL PREPAYMENTS.
Section 4.01. Optional Prepayments. The Company shall have the privilege, at
any time and from time to time prior to Maturity of prepaying the outstanding
Convertible Notes, either in whole or in part by payment of the principal amount
of each Convertible Note, or portion thereof to be prepaid, and accrued interest
thereon to the date of such prepayment, without premium or penalty.
Section 4.02. Notice of Prepayments. The Company will give notice of any
prepayment of the Convertible Notes pursuant to Section 4.01 to each holder
thereof not less than 30 days nor more than 60 days before the date fixed for
such optional prepayment ("Prepayment Date") specifying (i) the Prepayment Date,
(ii) the principal amount of the Holder's convertible Notes to be prepaid on the
Prepayment Date, and (iii)the accrued interest applicable to the payment. Notice
of prepayment having been so given, the aggregate principal amount of the
Convertible Notes specified in such notice, together with the premium, if any,
and accrued interest thereon shall become due and payable on the Prepayment
Date.
Section 4.03. Allocation of Prepayments. All partial prepayments pursuant to
Section 4.01 shall be applied on all outstanding Convertible Notes ratably in
accordance with the unpaid principal amounts thereof.
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<PAGE>
Section 5. REMEDIES.
Section 5.01. Events of Default. An "Event of Default" occurs if one or more
of the following shall happen (for any reason whatsoever and whether such
happening shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) if default be made in the punctual payment of the principal on any of
the Convertible Notes when and as the same shall become due and payable, whether
at the fixed maturity of said Convertible Notes or otherwise; or
(b) if default be made in the payment of any installment of interest on any
of the Convertible Notes and such default shall continue for a period of 30 days
after notice; or
(c) if default be made in the due observance or performance of any
covenant, condition or agreement contained in Section 3.02 to 3.05, both
inclusive, and such default shall have continued for a period of 30 days after
the Holders of a majority of the principal amount of the Convertible Notes then
outstanding shall have given notice to the Company (which notice shall specify
the default, demand that it be remedied and state that the notice is a "Notice
of Default"; or
(d) the Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case, (ii) consents to the entry of an order for
relief against it in any involuntary case, (iii) consents to the appointment of
a Custodian of it or for any substantial part of its property, (iv) makes a
general assignment for the benefit of its creditors; or
(e) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that: (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company or for any substantial part of
its property, (iii) orders the liquidation of the Company; and the order or
decree remains unstayed and in effect for 30 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under
any Bankruptcy Law.
Section 5.02. Acceleration. If an Event of Default (other than an Event of
Default specified in Section 5.01 (d) or (e)) occurs and is continuing then, at
the option of the Holder of this Convertible Note, exercised by written notice
to the Company, the principal of this Convertible Note shall forthwith become
due and payable, together with the interest accrued hereon. If an Event of
Default specified in Section 5.01 (d) or (e) occurs at any time, such an amount
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Holder of this Convertible Note.
The provisions of this Section 5.02 are subject, however, to the condition
that if, at any time after any Convertible Note shall have so become due and
payable, the Company shall pay all arrears of interest on the Convertible Notes
and all payments on account of the principal (and accrued interest on
Convertible Notes due and payable by virtue of acceleration) shall be remedied
or waived pursuant to Section 9.04, then, and in every such case, subject to
Section 9.04 (b), the Holder or Holders of at least 66-2/3% in aggregate
principal amount of the Convertible Notes at the time outstanding, by written
notice to the company, may rescind and annul such acceleration and its
consequences; but no such action shall affect any subsequent Default or Event of
Default or impair any right consequent thereon.
Section 5.03. Other Remedies. Subject to the provisions of Section 5.02, in
case any one or more of the Events of Default specified in Section 5.01 shall
have occurred and be continuing, the Holder of this Convertible Note may proceed
to protect and enforce its rights by suit in equity, action at law or by other
appropriate proceedings or both, whether for the specific performance of any
covenant or agreement contained in this Convertible Note or in aid of the
exercise of any power granted in this Convertible Note,
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<PAGE>
EXHIBIT 4.16
or may proceed to enforce the payment of this Convertible Note or to enforce any
other legal or equitable right of the Holder of this Convertible Note.
The remedies of the holder provided herein shall be cumulative and
concurrent and may be pursued singly, successively, or together at the sole
discretion of the holder, and may be exercised as often as occasion therefor
shall occur; and the failure to exercise any such right or remedy shall in no
event be construed as a waiver or release thereof.
The Company hereby waives and releases all errors, defects and
imperfections in any proceedings instituted by the holder under the terms of
this Convertible Note, as well as all benefit that might accrue to the Company
by virtue of any present or future laws exempting any property, real or
personal, or any part of the proceeds arising from any sale of any such
property, from attachment levy, or sale under execution, or providing for any
stay of execution, exemption form civil process or extension of time for
payment; and the Company agrees that any real estate that may be levied upon
pursuant to a judgment obtained by virtue hereof, or any writ of execution
issued thereon, may be sold upon any such writ in whole or in part in any
ordered desired by the holder.
The holder shall not be deemed, by any act of omission or commission, to
have waived any of its rights or remedies hereunder unless such waiver is in
writing and signed by the holder, and then only to the extent specifically set
forth in writing. A waiver of one event shall not be construed as continuing or
as a bar to or waiver of any right or remedy to a subsequent event.
Section 5.04. Notice by the Company of Acceleration or Other Action by
Convertible Noteholders or Holders of Other Indebtedness. If any Holder of a
Convertible Note shall give any notice to the Company with respect to any Event
of Default (or with respect to any event which with notice or the lapse of time,
or both, would be an Event of Default), or accelerate the maturity thereof or
take any other action in respect of an Event of Default or such event, or if the
holder of any bond, debenture, note or other similar evidence of indebtedness
(other than the Convertible Notes) of, or secured or guaranteed by, the Holder
shall give any notice to the Company in respect of any default thereunder or
under any agreement pursuant to which such bond, debenture, note or other
evidence or indebtedness is issued, the Company shall forthwith give written
notice to all Holders of Convertible Notes, specifying such action and the
nature and status of the Event of Default or event or other default.
Section 5.05. Remedies Cumulative. No remedy herein conferred upon the
Holder of this Convertible Note is intended to be exclusive of any other remedy
and each and every such remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise.
Section 5.06. Enforcement. If there shall be any Default under this
Convertible Note and this Convertible Note shall be placed in the hands of an
attorney for collection, or shall be collected through any court, including any
bankruptcy court, the Company promises to pay to the order of the Holder hereof
such Holder's reasonable attorneys' fees and court costs incurred in collecting
or attempting to collect or securing or attempting to secure this Convertible
Note or enforcing the Holder's rights with respect to any collateral securing
this Convertible Note, to the extent allowed by the laws of the State of Florida
or any state in which any collateral for this Note shall be situated.
Section 6. CONVERSION.
Section 6.01. Right of Conversion, Conversion Price. Subject to and upon
compliance with the provisions of this Section 6, the Holder shall have the
right, at his option, at any time during usual business hours (including the
period between the date on which the Company gives notice of prepayment and the
Prepayment Date) to convert the principal and accrued interest of any
Convertible Note owned by such Holder into fully paid and in nonassessable
shares of Common Stock at the rate of $4.00 for each share of common Stock (the
"Conversion Price") which price per share shall be payable by surrender of such
Convertible Note.
Page 5 of 14
<PAGE>
(a) As of the date hereof, the authorized and outstanding capital stock of the
Company is 4,973,000 (four million nine hundred seventy three thousand) shares.
Section 6.02. Manner of Exercise.
(a) In order to exercise the conversion right, the Holder of any Convertible
Note to be converted shall surrender such Convertible Note at the office of the
Company, accompanied by written notice to the Company stating (i) that the
Holder elects to convert such Convertible Note or, if less than the entire
principal amount of a Convertible Note is to be converted, the portion thereof
(a multiple of $1,000) to be converted, and (ii) the name or names (with
addresses) in which the certificate or certificates for shares of Common Stock
issuable on such conversion shall be issued. Convertible Notes surrendered for
conversion shall be accompanied by proper assignment thereof to the Company or
in blank for transfer if the shares are to be issued in a name other than that
of the Holder.
(b) In the case of any Convertible Note which is converted in part only, upon
such conversion the Company shall execute and deliver to the Holder thereof, at
the expense of the Company, a new Convertible Note or Convertible Notes of
authorized denominations in principal amount equal to the unconverted portions
of such Convertible Note.
Section 6.03. Issuance of Shares of Common Stock on Conversion.
(a) As promptly as practicable after the receipt of such notice and the
surrender of such convertible Note as aforesaid, the Company shall issue, at its
expense, and shall deliver to such Holder, or on his written order, at the
aforesaid office of the Company (i) a certificate or certificates for the number
of full shares of Common Stock issuable upon the conversion of such Convertible
Note (or specified portion thereof), and (ii) a certificate or certificates for
any fractional shares of Common Stock issuable upon conversion of such
Convertible Note (or specified portion thereof) or, at the Company's option,
cash in lieu of script for any fraction of a share to which such Holder is
entitled upon conversion as provided in Section 6.05.
(b) Such conversion shall be deemed to have been effected immediately prior to
the close of business on the date ("Conversion Date") on which the Company shall
have received both such notice and the surrendered Convertible Note as
aforesaid, and at such time the rights of the Holder of such Convertible Note
shall cease and the Person or Persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such conversion
shall be deemed to have become the holder or holders of record of the shares
represented thereby.
Section 6.04. No Adjustments for Interest or Dividends. No payment or
adjustment shall be made by or on behalf of the Company on account of any
interest accrued on any Convertible Notes surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon such
conversion which were declared for payment to holders of shares of Common Stock
or record as of a date prior to the Conversion Date. All payments of accrued
interest on any Convertible Note shall be made in cash or additional stock at
the Conversion Price, at Company's option.
Section 6.05. Fractional Shares. The Company, at its option, may issue
fractional shares of common Stock upon any conversion of Convertible Notes or,
in lieu of any fraction of a share of Common Stock to which any Holder would
otherwise be entitled upon conversion of any Convertible Notes (or specified
portions thereof), the Company may pay a cash adjustment for such fraction in
an amount equal to same fraction of the conversion price per share.
Section 6.06. Adjustment of Conversion Price. The Conversion Price shall be
adjusted as set forth in this section.
(a) In the event that the Company shall make any distribution of its assets
upon or with respect to its shares of Common Stock, as a liquidating or partial
liquidating dividend, or other than as a dividend payable out of earnings or any
surplus legally available for dividends under the laws of the state
Page 6 of 14
<PAGE>
of incorporation of the Company, each Holder of any Convertible Note then
outstanding shall upon the exercise of his right to convert after the record
date for such distribution or, in the absence of a record date, after the date
of such distribution receive, in addition to the shares subscribed for, the
amount of such assets (or, at the option of the Company, a sum equal to the
value thereof at the time of distribution as determined by the Board of
Directors in its sole discretion) which would have been distributed to such
Holder if he had exercised his right to convert immediately prior to the record
date for such distribution or, in the absence of a record date, immediately
prior to the date of such distribution.
(b) In case at any time the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares, the current Conversion Price in
effect immediately prior to such subdivision shall be proportionately reduced
and conversely, in case the outstanding shares of Common Stock of the Company
shall be combined into a smaller number of shares, the Current Conversion Price
in effect immediately prior to such combination shall be proportionately
increased.
(c) If any capital reorganization or reclassification of the capital stock of
the Company, or consolidation or merger of the company with another corporation,
or the sale transfer or lease of all or substantially all of its assets to
another corporation, shall be effected in such a way that holders of shares of
Common Stock shall be entitled to receive shares, securities or assets with
respect to or in exchange for shares of Common Stock, then, as a condition of
such reorganization, reclassification, consolidation, merger or sale, the
Company or such successor or purchasing corporation, as the case may be, shall
execute an amendment to the Convertible Notes providing that the Holder of each
Convertible Note then outstanding shall have the right thereafter and until the
expiration of the period of convertibility to convert such Convertible Note into
the kind and amount of shares, securities or assets receivable upon such
reorganization, reclassification, consolidation, merger or sale by a holder of
the number of shares of Common Stock into which such Convertible Note might have
been converted immediately prior to such reorganization, reclassification,
consolidation, merger or sale, subject to adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Section 6.
(d) Upon such adjustment of the Conversion Price pursuant to the provisions of
this Section 6.06, the number of shares issuable upon conversion of this Note
shall be adjusted to the nearest full amount by multiplying a number equal to
the Conversion Price in effect immediately prior to such adjustment by the
number of shares of Common Stock issuable upon exercise of this Note immediately
prior to such adjustment and dividing the product so obtained by the adjusted
Conversion Price.
Section 6.07. Adjustment of Conversion Price - Share Issuances. If and
whenever on or after the date hereof the Company shall issue any shares of
Common Stock for a consideration per share less than the Conversion Price
(whether pursuant to a direct issuance or any option or warrant to acquire
shares) or issue any security convertible into shares of Common Stock at a
conversion value of less than the Conversion Price, then, forthwith upon such
issue or sale, the Conversion Price shall be reduced as follows:
(a) If the shares issued at such lower price shall have been issued in a
transaction or series of transactions occurring within any 18 month period and
shall have constituted 5% or more of the Company's then outstanding shares
(determined as set forth in (iv below), the Conversion Price shall be reduced to
(i) the lowest prices at which such shares were offered in any one transaction
constituting 5% or more; or (ii) to the lowest weighted average price per share
in any series of transactions constituting 5% or more in which no one
transaction by itself constituted 5%; or
(b) If the shares issued at such lower price shall have been issued otherwise
than for 5% or more of the Company's then outstanding shares as stated in
subsection (a) above, the Conversion Price shall be reduced to a number
determined by multiplying then Conversion Price in effect immediately prior to
such issuance by the following fraction:
Page 7 of 14
<PAGE>
B
-
A+ C
------
A+D
wherein:
A = the number of outstanding shares of Common Stock immediately prior
to the subject issuance;
B = the aggregate consideration for the shares then being issued,
C = the then Conversion Price; and
D = the number of shares then being issued.
The Conversion Price shall be further reduced from time to time thereafter
whenever any Shares are so issued or converted for a lower price than the then
Conversion Price, as adjusted prior to that date. However, no adjustment of the
conversion price shall be made in an amount less than S.02 share, but any such
lesser adjustment shall be carried forward and shall be made at the time and
together with the next subsequent adjustment which together with any adjustments
so carried forward shall amount to $.02 per share or more.
For the purposes of this Section 6.07, the following provisions (i) through
(iii) shall also be applicable:
(i) in case any shares shall be issued or sold for cash, the consideration
received therefor shall be deemed to be the amount received by the Company
therefor, without deduction therefrom of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the Company in
connection therewith. In case any shares shall be issued for a consideration
other than cash, the amount of the consideration other than cash received by the
Company shall be deemed to be the fair value of such consideration as determined
by the Board of Directors of the Company, without deduction of any expenses
incurred or any underwriting commissions or concessions paid or allowed by the
Company in connection therewith.
(ii) At no time shall the Conversion Price increase.
(iii) As used in this Section 6.07, the number of outstanding shares at any
given time shall be deemed to be the aggregate of the Company's then issued and
outstanding Shares, plus all shares into which the Holder of this Convertible
Note may then convert this Convertible Note pursuant to the terms hereof, plus
all Shares which the holders of any then outstanding options, warrants,
convertible preferred stock or other convertible securities and then or will be
entitled to acquire pursuant to their rights under those instruments (assuming
the Conversion Prices and ratios applicable to them at that time, irrespective
of whether such holders have rights to acquire such shares thereunder
immediately or at a later date, and without taking into consideration any change
in the Conversion Price relative to this Convertible Note or any other
instrument which could result from the subject issuance of Shares), but not
including the new shares then being issued by the Company pursuant to which the
aforesaid 5% test shall relate.
Section 6.08. Covenant to Reserve Shares for Conversion. The Company
convenants that it will at all times reserve and keep available out of its
authorized shares of Common Stock, such number of shares of Common Stock as
shall then be deliverable upon the conversion of all outstanding Convertible
Notes. All shares of Common Stock, which shall be deliverable, shall be duly and
validly issued and fully paid and nonassessable.
Section 6.09. Notice of Change of Conversion Price. Whenever the Conversion
Price is adjusted, as herein provided, the Company shall promptly send to each
Holder a certificate of a firm of
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<PAGE>
independent public accountants (who may be the accountants regularly employed by
the Company) selected by the Board of Directors setting forth the Conversion
Price after such adjustment and setting forth a brief statement of the facts
requiring such adjustment. Such certificate shall be conclusive evidence of the
correctness of such adjustment.
Section 7. REGISTRATION RIGHTS.
Section 7.01. Piggy-Back. If the Company proposes to file, on its behalf
and/or on behalf of any of its securities holders, a Registration Statement
under the Securities Act of 1933, as amended (the "Securities Act") other than
in connection with a dividend reinvestment employee stock purchase, option or
similar plan or in connection with a merger, consolidation or reorganization,
the Company shall give written notice to each Holder at least 30 days before the
filing with the Securities and Exchange Commission ("SEC") of such Registration
Statement. Each Holder who desires to include any of its shares of Common Stock
into which the Convertible Notes are convertible, whether or not already
converted, (the "Registrable Securities") in such Registration Statement shall
give written notice to the Company within 20 days after the date of receipt of
written notice from the Company. The Company shall thereupon include in such
filing the shares of Common Stock designated by such Holder and, subject to its
right to withdraw such filing, shall use its best efforts to effect registration
under the Securities Act of such shares of Common Stock.
Section 7.02. Conditions. The right of the Holders to have shares included in
any registration Statement in accordance with the provision of this Section 7
shall be subject to the following conditions:
(a) The Company shall have the right to require that the Holders participating
in such Registration Statement agree to refrain from offering or selling (other
than in a private sale) any shares of Common Stock that they own which are not
included in any such Registration Statement in accordance with this Section 7
for any time period specified in writing by any managing underwriter of the
offering to which such Registration Statement relates;
(b) If any managing underwriter of the offering to which the Registration
Statement relates informs the Company in writing that the total number of shares
of Common Stock requested by the Holders to be included in the Registration
Statement is sufficiently large to affect the success of such offering
adversely, then the Company will include only the number of shares, if any, in
the Registration Statement that such managing underwriter shall advise the
Company will not so affect the offering, and reductions in the number of shares
of Common Stock owned by the Holders and other persons who have elected to have
shares of Common Stock included in such Registration Statement will be made
proportionately to their respective percentages of ownership of shares to be
included in the Registration Statement; and
(c) The Company shall furnish Holders who have shares included in a
Registration Statement pursuant to this Section 7 with such number of copies of
the prospectus relating to the offering (the "Prospectus") (including any
preliminary prospectus or supplemental or amended prospectus) as such Holder may
reasonably request in order to facilitate the sale and distribution of its
shares.
Section 7.03. Registration Covenants of Company. The Company shall use its
best efforts to prepare and file the Registration Statement or proceed with the
Offering as to which the notice specified herein is given.
(a) The Company shall use its best efforts to file a registration statement
within forty-five (45) days of receipt of any demand therefor, shall use its
best efforts to have any registration statement declared effective at the
earliest possible time, and shall furnish each Holder desiring to sell
Registrable Securities such number of prospectuses as shall reasonably be
requested.
(b) As expeditiously as possible prepare and file with the Commission any
amendments and supplements to the registration statement and the prospectus
included therein.
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<PAGE>
as may be necessary to keep the registration statement effective until the later
of (i) the date when all Registrable Securities registered have been sold, or
(ii) two years from the effective date of the registration statement.
(c) The Company shall pay all costs (excluding any underwriting or selling
commissions or other charges of any broker-dealer acting on behalf of Holder(s),
fees and expenses in connection with all registration statements filed pursuant
to Section 7 hereof including, without limitation, the Company's legal and
accounting fees. If the Company shall fail to comply with the provisions of
Section 7.03(a) or (b), the Company shall, in addition to any other equitable or
other relief available to the Holder(s), be liable for any or all damages due to
loss of profit sustained by the Holder(s) requesting registration of their
Registrable Securities.
(d) The Company shall take all necessary action which may be required in
qualifying or registering the Registrable Securities included in the
registration statement for offering and sale under the securities or blue sky
laws of such states as reasonably as requested by the Holder(s), provided that
the Company shall not be obligated to execute or file any general consent to
service of process or to qualify as a foreign corporation to do business under
the laws of any such jurisdiction.
(e) The Company shall indemnify the Holder(s) of the Registrable Securities to
be sold pursuant to any registration statement and each person, if any, who
controls such Holders within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, against all loss, claim, damage, expense or liability
(including all expenses reasonably incurred in investigating, preparing or
defending against any claim whatsoever) to which any of them may be subject
(f) The Holder(s) of the Registrable Securities to be sold pursuant to a
registration statement, and their successors and assigns, shall severally, and
not jointly, indemnify the Company, its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from written
information furnished by or on behalf of such Holders, or their successors or
assigns, for specific inclusion in such a registration statement.
(g) Nothing contained in this Agreement shall be construed as requiring the
Holder(s) to convert their Notes prior to the initial filing of any registration
statement or the effectiveness thereof.
(h) The Company shall furnish to each Holder participating in an offering
including Registrable Securities, pursuant to Sections 7.01 hereof, and to each
underwriter, if any, a signed counterpart, addressed to such Holder or
underwriter, of (i) an opinion of counsel to the Company, dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, an opinion dated the date of the closing under the
underwriting agreement), and (ii) a "cold comfort" letter dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, a letter dated the date of the closing under the
underwriting agreement) signed by the independent public accountants who have
issued a report on the Company's financial statements included in such
registration statement, in each case covering substantially the same matters
with respect to such registration statement (and the prospectus included
therein) and, in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements, as are customarily covered
in opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of a
registration statement relating to any Registrable Securities pursuant to
Section 7.01 hereof, and in any event within fifteen (15) months thereafter,
make "generally available to its security holders" (within the meaning of Rule
158 under the Act) an earnings statement (which need not be audited) complying
with
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Section 11(a) of the Act and covering a period of at least twelve (12)
consecutive months beginning after the effective date of the registration
statement.
(j) The Company shall deliver promptly to each Holder participating in an
offering including any Registrable Securities pursuant to Sections 7.01 hereof,
who so requests, and to the managing underwriter, copies of all correspondence
between the Commission and the Company, its counsel or auditors and all
memoranda relating to discussions with the Commission or its staff with respect
to the registration statement and permit each Holder and underwriter to do such
investigation, upon reasonable advance notice, with respect to information
contained in or omitted from the registration statement as it deems reasonably
necessary to comply with applicable securities laws or rules of the National
Association of Securities Dealers, Inc. ("NASD). Such investigation shall
include access to books, records and properties and opportunities to discuss the
business of the Company with its officers and independent auditors, all to such
reasonable extent and at such reasonable times and as often as any such Holder
shall reasonably request as it deems necessary to comply with applicable
securities laws and NASD rules.
(k) With respect to a registration pursuant to Section 7.01 hereof, if
requested by the Holders holding a Majority of the Registrable Securities, the
Company may enter into an underwriting agreement with the managing underwriter
selected for such underwriting by Holders holding a Majority of the Registrable
Securities requested to be included in such underwriting. Such managing
underwriter(s) shall be satisfactory to the Company and each Holder and such
agreement shall be satisfactory in form and substance to the Company, each
Holder and such managing underwriters, and shall contain such representations,
warranties and covenants by the Company and such other terms as are customarily
contained in agreements of that type used by the managing underwriter. The
Holders may be parties to any underwriting agreement relating to an underwritten
sale of their Registrable Securities and may, at their option, require that any
or all the representations, warranties and covenants of the Company to or for
the benefit of such Holders. Such Holders shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters except as they may relate to such Holders and their intended
methods of distribution.
(l) Subject to the provisions of Section 7.02(a) or (b), upon the written
request therefor by any Holder(s), the Company may include in the registration
statement any other securities of the Company held by such Holder(s) as of the
date of filing of such registration statement, including without limitation,
restricted shares of Common Stock, options, warrants or any other securities
convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to the
Holders of Warrants or Registrable Securities, shall mean in excess of fifty
percent (50%) of the outstanding Warrants or Registrable Securities that (i) are
not held by the Company, an affiliate (excluding Katsock), officer, creditor,
employee or agent thereof or any of their respective affiliate's, members of
their family, persons acting as nominees or in conjunction therewith or (ii)
have not been resold to the public pursuant to a registration statement filed
with the Commission under the Act.
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Section 7.04 "No Action" Letter: Opinion of Counsel. No Holder shall have
registration rights under this Section with respect to any sales proposed by
them of shares as to which sales (i) a "no action" letter is received from the
SEC or its staff confirming the availability of an exemption from the
requirements of the Securities Act or (ii) an unqualified opinion of counsel to
the Company is rendered to the effect that registration of such shares for such
sales is not required, provided that in both cases (i) and (ii) above, the
volume limitations of Rule 144(e) under the Securities Act shall not limit the
amount of shares of Common Stock that the Holders are entitled to offer and sell
without registration under the Securities Act.
Section 7.05. Recall of Prospectuses, etc. With respect to a Registration
Statement or amendment thereto filed pursuant to this Section, if, at any time,
the Company notifies the selling Holder that an amendment or supplement to such
Registration Statement or amendment or the prospectus included therein is
necessary or appropriate, the selling Holder will forthwith cease selling and
distributing shares thereunder and will forthwith redeliver to the Company all
copies of such Registration Statement and prospectuses then in their possession
or under their control.
Section 7.06. Cooperation of Holders. The Company shall be entitled to require
that each selling Holder cooperate with the Company in connection with a
registration of shares of Common Stock pursuant to this Section and furnish such
information, representations, undertakings and agreements regarding such selling
Holder and the distribution as may be reasonably required by the Company or as
required by law in connection therewith.
Section 7.07. Expenses. The Company will bear all the expenses in connection
with any Registration Statement under this Section 7 (including the fees and
expenses of a single counsel to the Holders) other than transfer taxes payable
on the sale of such shares and fees and commissions of brokers, dealers and
underwriters.
Section 7.08. Indemnification. In the event of the registration of any
securities under the Securities Act pursuant to this Section, the Company and
the Holders shall provide to each other customary indemnification to the extent
of any loss, claim, damage, liability or expense arising out of such
registration.
Section 8: Status of the Holder:
Section 8.01. The Holder has such knowledge and experience in financial and
business matters that the Holder is capable of evaluating the merits and risks
of this Convertible Note. The Holder is able to bear the economic risk of this
Note. The Holder has had the opportunity to consult with the Holder's own
attorney, accountant and/or purchaser representative regarding this, Note and
the suitability of this transaction, and to the extent necessary, the Holder has
retained, at Holder's, own expense, and relied upon, appropriate professional
advice regarding this Note, the investment it represents, tax and legal merits,
risks and consequences of this Note and of purchasing and owning the Shares.
Section 8.02. The Holder represents that the Holder is an "Accredited
Investor", as that term is defined below, and that at least one of the
categories set forth in (a) through (h) below applies to the Holder. The Holder
is one or more of the following:
(a) a natural person whose individual net worth, or joint net worth with that
person's spouse, exceeds $1,000,000;
(b) a natural person who had an individual income in excess of $200,000 in
each of the two most recent years or joint income with that person's spouse in
excess of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year.
(c) a bank as defined in Section 3(a)(2) of the Securities Act or a savings
and loan association or other institution as defined in Section 3(a) (5)(A) of
the Securities Act, whether acting in its individual or fiduciary capacity; a
broker or dealer registered pursuant to Section 15 of the Securities Exchange
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Act of 1934; an insurance company as defined in Section 2(13) of the Securities
Act; an investment company registered under the Investment Company Act of 1940
(the "1940 Act") or a business development company as defined in Section
2(a)(48) of the 1940 Act; a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958; or an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974 ("ERISA"), if
the investment decision is made by a plan fiduciary, as defined in Section 3(21)
of ERISA, which fiduciary is either a bank, savings and loan association,
insurance company or registered investment adviser, or if the employee benefit
plan has total assets in excess of $5,000,000 or if a self-directed plan, with
investment decisions made solely by persons that are Accredited Investors (as
listed in categories (a) - (h) herein);
(d) a private business development company as defined in Section 202(a)(22)
of the 1940 Act;
(e) an organization described in Section 501 (c)(3) of the Internal Revenue
Code, a corporation, Massachusetts or similar business trust or a partnership,
with total assets in excess of $5,000,000, and which was not formed for the
specific purpose of engaging in this transaction,
(f) a trust, with total assets in excess of $5,000,000, not formed for the
specific purpose of engaging in this transaction, which is directed by a person
who has such knowledge and experience in financial and business matters that he
is capable of evaluating the merits and risks of this investment;
(g) a director or executive officer of the Company; or
(h) an entity in which all of the equity owners are Accredited Investors
[as listed in categories (a) - (h)].
Section 9. MISCELLANEOUS
Section 9.01. Governing Law. This Convertible Note shall be construed in
accordance with the laws of the State of Florida applicable to contracts entered
into and to be performed wholly within said State.
Section 9.02. Successors and Assigns. All the covenants, stipulations,
promises and agreements in the Convertible Notes held by or on behalf of the
Company shall bind its successors and assigns, whether so expressed or not.
Section 9.03 Course of Dealing: No Waiver. No course of dealing between the
Company and the Holder hereof shall operate as a waiver of any right of any
holder hereof and no delay on the part of the Holder in exercising any right
hereunder shall so operate.
Section 9.04. Waiver of Compliance.
(a) Any term, covenant agreement or condition hereof may be amended, or
compliance therewith may be waived (either generally or in a particular instance
and either retroactively or prospectively), if the Company shall have obtained
the agreement or consent in writing of the Holders of at least 51% in
aggregate principal amount of all outstanding Convertible Notes, but no such
amendment or waiver shall:
(i) change the amount or maturity of any principal on the Convertible Notes
or change the rate or extend the time of payment of interest on the Convertible
Notes or reduce the amount of principal thereof or modify any of the provisions
of the Convertible Notes with respect to the payment or prepayment thereof.
(ii) give to any Convertible Note any preference or priority over any other
Convertible Note; or
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(iii) reduce the percentage of Holders of the Convertible Notes required to
approve any such amendment or effectuate any such waiver.
(b) In determining whether the Holders of the requisite principal amount of
outstanding Convertible Notes have given any authorization, consent or waiver
under this Section 9.04 or under Section 5.02, Convertible Notes owned by the
Company shall be disregarded and deemed not to be outstanding.
Section 9.05. Manner of giving Notices. Any notice required to be given to the
Holder hereof by the Company hereunder shall be given by overnight delivery with
a reputable established courier service and by certified registered mail to the
Holder at its address designated on the register referred to in Section 1.01 on
the date of such notice.
Section 9.06. Expenses in Preparation. All expenses of the Holder in the
negotiation, preparation, execution and delivery of this Convertible Note,
including attorneys' fees shall be paid by the Company.
Section 9.07. Other Provisions. The Company waives demand, presentment,
protest, notice of dishonor and any other form of notice that may be required to
hold the Company liable on this Note.
IN WITNESS WHEREOF, the undersigned has caused this Convertible Note to be
signed in its corporate name by one of its officers thereunto duly authorized,
and to be dated as of the date first written above.
FINANCIALWEB.COM, INC.
By: /s/ James. P. Gagel
---------------------------------
James P. Gagel
Title: Executive Vice President
Date: March 30, 1999
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EXHIBIT 4.21
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD, OFFERED
FOR SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS THEY ARE SO REGISTERED OR
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
FINANCIALWEB. COM, INC.
CONVERTIBLE NOTE DUE March 30, 2000
Principal Amount: $250,000.
FINANCIALWEB. COM, INC. a Nevada corporation (the "Company"), for value
received, hereby promises to pay ADEL R.B. KELLEL. (the "Holder)", or registered
assigns, on March 30, 2000 the principal amount of TWO HUNDRED FIFTY THOUSAND
DOLLARS ($250,000) (or so much thereof as shall not have been prepaid or
surrendered for conversion) in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, at the offices of the Holder located at 72 WINDSOR
GATE, NEW HYDE PARK, NY 11040 together with simple interest of 9.75% on the
unpaid portion of the principal amount thereof, calculated at the rate of .8125%
monthly.
Section 1. THE NOTES.
Section 1.01. Registration, Transfer and Exchange of Convertible Notes.
The Company shall keep at its principal office a register in which the Company
will provide for registration, transfer and exchange of Convertible Notes.
Subject to compliance with applicable securities laws, the Holder (as defined
below) of any Convertible Note may, at its option and either in person or by
duly authorized attorney, surrender the same at said office for registration of
transfer or exchange, accompanied, if surrendered for transfer, by a written
instrument of transfer duly executed by said Holder or attorney. If any Holder
shall so request transfer or exchange of a Convertible Note held by it, the
Company shall, within a reasonable time thereafter, without expense to such
Holder (other than transfer taxes, if any) deliver to or upon its order one or
more Convertible Notes in the same unpaid aggregate principal amount as the
Convertible Note so surrendered, each dated the date to which interest has been
paid on the Convertible Note so surrendered, in the principal amount of $5,000
or any multiple thereof, and registered in such name or names, or payable to
such Person or Persons, or order, as shall be specified by the Holder making
such request. The Company may deem and treat the Holder of any Convertible Note
as the absolute owner of such Convertible Note for the purpose of receiving
payment of or on account of the principal and interest on such Convertible Note
and for the purposes of any notices, waivers or consent thereunder, and payment
of any Convertible Note shall be made only to or upon the order in writing of
such Holder.
Section 1.02. Loss, Theft, Destruction or Convertible Notes. Upon receipt
of evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Convertible Note and, in the case of any such loss, theft or
destruction, upon receipt of indemnity reasonably satisfactory to the Company,
or in the case of any such mutilation, upon surrender and cancellation of this
Convertible Note, the Company will make and deliver, in lieu of such lost,
stolen, destroyed or mutilated Convertible Note, a new Convertible Note of like
tenor and unpaid principal amount and dated as of the date from which unpaid
interest has then accrued on the Convertible Note so lost, stolen, destroyed or
mutilated.
Section 2.DEFINITIONS.
Section 2.01. Terms Defined. The terms defined in this Section 2.01
(except as herein otherwise expressly provided or unless the context otherwise
requires for all purposes of this Convertible Note shall have the respective
meanings specified in this Section 2.01.
Common Stock: The term "Common Stock" means shares of the Company's Common
Stock, par value $.001 per share.
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Company: The term "Company" means FINANCIALWEB. COM, INC. a Nevada
corporation, and any successor corporation to the Company (including the
corporation surviving any subsequent merger).
Convertible Notes: The term "Convertible Notes" means this note and any
one or more notes created by transfer, succession, partial conversion or partial
prepayment as contemplated by this note.
Current Conversion Price: The term "Current Conversion Price" means
the Conversion Price as most recently adjusted pursuant to Section 6.06.
Default: The term "Default" means an event which with notice or upon the
lapse of time or both would become an Event of Default.
Event of Default: The term "Event of Default" means any event specified in
Section 5.01, continued for the period of time, if any, and after the giving of
notice, if any, therein designated.
Holder: The term "Holder" means the Person in whose name such Convertible
Note is registered in the register maintained by the Company pursuant to Section
1.01.
Maturity: The term "Maturity" when used with respect to any Convertible
Note means the date of which the principal (and interest,) of such Convertible
Note becomes due and payable as herein provided, whether at February 11, 2000,
(b) declaration of acceleration or (c) otherwise.
Section 3. CERTAIN COVENANTS.
Section 3.01. Authority; Payment of Convertible Notes. The Company is
dully authorized to issue this Convertible Note and enter into the provisions
contained herein and the Convertible Note and its provisions constitute binding
valid and enforceable obligations of the Company. The Company will duly and
punctually pay or cause to be paid in cash the principal and the interest on
each of the Convertible Notes at the time and place and in the manner provided
herein.
Section 3.02. General Covenants. The Company will:
(a) promptly pay and discharge or cause to be paid and discharged all lawful
taxes, assessments, and governmental charges or levies imposed upon the
Company upon the income of profits of the Company or upon any property,
real, personal or mixed, belonging to the Company or upon any part thereof,
before the same shall become in default, as well as all lawful claims for
labor, material and supplies which, if unpaid, might become a lien or
charge upon such properties or any part thereof, except that the Company
shall not be required to pay and discharge or to cause to be paid and
discharged any such tax, assessment, charge, levy or claim so long as the
validity thereof shall be contested in good faith by appropriate
proceedings and the Company as the case may be, shall set aside on its
books such reserves, if any, as shall be deemed by it adequate with respect
to any such tax, assessment, charge, levy or claim so contested.
(b) do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights and franchises, and comply
with all laws applicable to the Company as its counsel may advise; except
that nothing in this subsection (b) shall prevent a liquidation or
dissolution of, or a sale, transfer or disposition of the property and
assets of, or a merger or consolidation of, the Company or any Affiliate
not prohibited by the provisions of Section 3.04; and
(c) at all times maintain, preserve, protect and keep, or cause to be
maintained, preserved, protected and kept, its property used or useful in
the conduct of the business of the Company in good repair, working order
and condition, and from time to time make, or cause to be made, all
necessary and proper repairs, renewals, replacements betterment and
improvements thereto, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times.
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Section 3.03. Notice of Defaults. In the event that any Event of Default
shall have occurred, the Company will promptly give written notice thereof to
each Holder of a Convertible Notes, which in no case will be given later than 10
calendar days after the Event of Default occurs.
Section 3.04. Mergers, etc. Subject to Section 3.02, the Company may not
consolidate with or merge into, or transfer all or substantially all its assets
to, another corporation unless (a) the resulting, surviving or transferee
corporation assumes in writing all the obligations of the Company under the
Convertible Notes and (b) no Event of Default shall have occurred and be
continuing. Upon any consolidation or merger, or any transfer of all or
substantially all the assets of the Company in accordance with this Section
3.04, the successor corporation formed by such consolidation or with or into
which the Company is merged or to which such transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under the Convertible Note with the same effect as if such successor corporation
has been named as the Company herein.
Section 3.05. Notice of Certain Actions. In case at any time:
(a) the Company shall declare any dividend upon its shares of capital stock
payable in securities or make any special dividend or other distribution
(other than a cash dividend to the holders of such shares);
(b) the Company shall offer for subscription pro rata to the holders of its
shares of capital stock for any additional securities of any class or other
rights;
(c) there shall be any capital reorganization, or reclassification of the
capital stock of the Company, or consolidation or merger of the Company
with, or sale of all or substantially all its assets to, another
corporation or other entity;
(d) there shall be a voluntary or involuntary dissolution, liquidation or
winding-up of the Company; or
(e) the Company shall enter into an agreement or adopt a plan for the purpose
of effecting a consolidation, merger, or sale of all or substantially all
of its assets: then, in any one or more of said cases, the Company shall
give written notice pursuant to the notice provisions contained in Section
[9.05] hereof, to the registered holder hereof, of the date on which (a)
the books of the Company shall close or a record shall be taken for such
dividend, distribution or subscription rights, or (b) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up shall take place, as the case may be. Such notice shall also
specify the date as of which the holders of shares of record of capital
stock shall participate in such dividend, distribution or subscription
rights, or shall be entitles to exchange their shares for securities or
other property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation, or winding-up, as
the case may be. Such written notice shall be given at least 30 days prior
to the action in question and not less than 30 days prior to the record
date or the date on which the Company's transfer books are closed in
respect thereto.
Section 4. OPTIONAL PREPAYMENTS.
Section 4.01. Optional Prepayments. The Company shall have the
privilege, at any time and from time to time prior to Maturity of prepaying the
outstanding Convertible Notes, either in whole or in part by payment of the
principal amount of each Convertible Note, or portion thereof to be prepaid, and
accrued interest thereon to the date of such prepayment, without premium or
penalty.
Section 4.02. Notice of Prepayments. The Company will give notice of any
prepayment of the Convertible Notes pursuant to Section 4.01 to each holder
thereof not less than 30 days nor more than 60 days before the date fixed for
such optional prepayment ("Prepayment Date") specifying (I) the Prepayment Date,
(ii) the principal amount of the Holder's Convertible Notes to be prepaid on the
Prepayment Date and (iii) the accrued interest applicable to the prepayment.
Notice of prepayment having been so given, the aggregate principal amount of the
Convertible Notes specified in such notice, together
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with the premium, if any, and accrued interest thereon shall become due and
payable on the Prepayment Date.
Section 4.03. Allocation of Prepayments. All partial prepayments pursuant
to Section 4.01 shall be applied on all outstanding Convertible Notes ratably in
accordance with the unpaid principal amounts thereof.
Section 5. REMEDIES.
Section 5.01 Events of Default. An "Event of Default" occurs if one
or more of the following shall happen (for any reason whatsoever and whether
such happening shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) if default be made in the punctual payment of the principal on any of the
Convertible Notes when and as the same shall become due and payable,
whether at the fixed maturity of said Convertible Notes or otherwise; or
(b) if default be made in the payment of any installment of interest on any of
the Convertible Notes and such default shall continue for a period of 30
days after notice; or
(c) if default be made in the due observance or performance of any covenant,
condition or agreement contained in Section 3.02 to 3.05, both inclusive,
and such default shall have continued for a period of 30 days after the
Holders of a majority of the principal amount of the Convertible Notes then
outstanding shall have given notice to the Company (which notice shall
specify the default, demand that it be remedied and state that the notice
is a "Notice of Default"); or
(d) the Company pursuant to or within the meaning of any Bankruptcy Law: (i)
commences a voluntary case, (ii) consents to the entry of an order for
relief against it in any involuntary case, (iii) consents to the
appointment of a Custodian of it or for any substantial part of its
property, (iv) makes a general assignment for the benefit of its creditors;
or
(e) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that: (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company or for any
substantial part of its property, (iii) orders the liquidation of the
Company; and the order or decree remains unstayed and in effect for 30
days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under
any Bankruptcy Law.
Section 5.02. Acceleration. If an Event of Default (other than an Event
of Default specified in Section 5.01 (d) or (e)) occurs and is continuing then,
at the option of the Holder of this Convertible Note, exercised by written
notice to the Company, the principal of this Convertible Note shall forthwith
become due and payable, together with the interest accrued hereon. If an Event
of Default specified in Section 5.01 (d) or (e) occurs at any time, such an
amount shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Holder of this Convertible Note.
The provisions of this Section 5.02 are subject, however, to the condition
that if, at any time after any Convertible Note shall have so become due and
payable, the Company shall pay all arrears of interest on the Convertible Notes
and all payments on account of the principal (and accrued interest on
Convertible Notes due and payable by virtue of acceleration) shall be remedied
or waived pursuant to Section 9.04, then, and in every such case, subject to
Section 9.04 (b), the Holder or Holders of at least 66-2/3% in aggregate
principal amount of the Convertible Notes at the time outstanding, by written
notice to the company, may rescind and annul such acceleration and its
consequences; but no such action shall affect any subsequent Default or Event of
Default or impair any right consequent thereon.
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Section 5.03. Other Remedies. Subject to the provisions of Section 5.02,
in case any one or more of the Events of Default specified in Section 5.01 shall
have occurred and be continuing, the Holder of this Convertible Note may proceed
to protect and enforce its rights by suit in equity, action at law or by other
appropriate proceedings or both, whether for the specific performance of any
covenant or agreement contained in this Convertible Note or in aid of the
exercise of any power granted in this Convertible Note, or may proceed to
enforce the payment of this Convertible Note or to enforce any other legal or
equitable right of the Holder of this Convertible Note.
The remedies of the holder provided herein shall be cumulative and
concurrent, and may be pursued singly, successively, or together at the sole
discretion of the holder, and may be exercised as often as occasion therefor
shall occur; and the failure to exercise any such right or remedy shall in no
event be construed as a waiver or release thereof.
The Company hereby waives and releases all errors, defects and
imperfections in any proceedings instituted by the holder under the terms of
this Convertible Note, as well as all benefit that might accrue to the Company
by virtue of any present or future laws exempting any property, real or
personal, or any part of the proceeds arising from any sale of any such
property, from attachment, levy, or sale under execution, or providing for any
stay of execution, exemption form civil process or extension of time for
payment; and the Company agrees that any real estate that may be levied upon
pursuant to a judgment obtained by virtue hereof, or any writ of execution
issued thereon, may be sold upon any such writ in whole or in part in any
ordered desired by the holder.
The holder shall not be deemed, by any act of omission or commission, to
have waived any of its rights or remedies hereunder unless such waiver is in
writing and signed by the holder, and then only to the extent specifically set
forth in writing. A waiver of one event shall not be construed as continuing or
as a bar to or waiver of any right or remedy to a subsequent event.
Section 5.04. Notice by the Company of Acceleration or Other Action by
Convertible Noteholders or Holders of Other Indebtedness. If any Holder of a
Convertible Note shall give any notice to the Company with respect to any Event
of Default (or with respect to any event which with notice or the lapse of time,
or both, would be an Event of Default), or accelerate the maturity thereof or
take any other action in respect of an Event of Default or such event, or if the
holder of any bond, debenture, note or other similar evidence of indebtedness
(other than the Convertible Notes) of, or secured or guaranteed by, the Holder
shall give any notice to the Company in respect of any default thereunder or
under any agreement pursuant to which such bond, debenture, note or other
evidence or indebtedness is issued, the Company shall forthwith give written
notice to all Holders of Convertible Notes, specifying such action and the
nature and status of the Event of Default or event or other default.
Section 5.05. Remedies Cumulative. No remedy herein conferred upon the
Holder of this Convertible Note is intended to be exclusive of any other remedy
and each and every such remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise.
Section 5.06. Enforcement. If there shall be any Default under this
Convertible Note and this Convertible Note shall be placed in the hands of an
attorney for collection, or shall be collected through any court, including any
bankruptcy court, the Company promises to pay to the order of the Holder hereof
such Holder's reasonable attorneys' fees and court costs incurred in collecting
or attempting to collect or securing or attempting to secure this Convertible
Note or enforcing the Holder's rights with respect to any collateral securing
this Convertible Note, to the extent allowed by the laws of the State of Florida
or any state in which any collateral for this Note shall be situated.
Page 5 of 14
<PAGE>
Section 6. CONVERSION.
Section 6.01. Right of Conversion, Conversion Price. Subject to and
upon compliance with the provisions of this Section 6, the Holder shall have the
right, at his option, at any time during usual business hours (including the
period between the date on which the Company gives notice of prepayment and the
Prepayment Date) to convert the principal and accrued interest of any
Convertible Note owned by such Holder into fully paid and in nonassessable
shares of Common Stock at the rate of $4.00 for each share of common Stock (the
"Conversion Price") which price per share shall be payable by surrender of such
Convertible Note.
(a) As of the date hereof, the authorized and outstanding capital stock of the
Company is 4,973,000 (four million nine hundred seventy three thousand)
shares.
Section 6.02. Manner of Exercise.
(a) In order to exercise the conversion right, the Holder of any Convertible
Note to be converted shall surrender such Convertible Note at the office of
the Company, accompanied by written notice to the Company stating (i) that
the Holder elects to convert such Convertible Note or, if less than the
entire principal amount of a Convertible Note is to be converted, the
portion thereof (a multiple of $1,000) to be converted, and (ii) the name
or names (with addresses) in which the certificate or certificates for
shares of Common Stock issuable on such conversion shall be issued.
Convertible Notes surrendered for conversion shall be accompanied by proper
assignment thereof to the Company or in blank for transfer if the shares
are to be issued in a name other than that of the Holder.
(b) In the case of any Convertible Note which is converted in part only, upon
such conversion the Company shall execute and deliver to the Holder
thereof, at the expense of the Company, a new Convertible Note or
Convertible Notes of authorized denominations in principal amount equal to
the unconverted portions of such Convertible Note.
Section 6.03. Issuance of Shares of Common Stock on Conversion.
(a) As promptly as practicable after the receipt of such notice and the
surrender of such convertible Note as aforesaid, the Company shall issue,
at its expense, and shall deliver to such Holder, or on his written order,
at the aforesaid office of the Company (i) a certificate or certificates
for the number of full shares of Common Stock issuable upon the conversion
of such Convertible Note (or specified portion thereof), and (ii) a
certificate or certificates for any fractional shares of Common Stock
issuable upon conversion of such Convertible Note (or specified portion
thereof) or, at the Company's option, cash in lieu of script for any
fraction of a share to which such Holder is entitled upon conversion as
provided in Section 6.05.
(b) Such conversion shall be deemed to have been effected immediately prior to
the close of business on the date ("Conversion Date") on which the Company
shall have received both such notice and the surrendered Convertible Note
as aforesaid, and at such time the rights of the Holder of such Convertible
Note shall cease and the Person or Persons in whose name or names any
certificate or certificates for shares of Common Stock shall be issuable
upon such conversion shall be deemed to have become the holder or holders
of record of the shares represented thereby.
Section 6.04 No Adjustments for Interest or Dividends. No payment or
adjustment shall be made by or on behalf of the Company on account of any
interest accrued on any Convertible Notes surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon such
conversion which were declared for payment to holders of shares of Common Stock
or record as of a date prior to the Conversion Date. All payments of accrued
interest on any Convertible Note shall be made in cash or additional stock at
the Conversion Price, at Company's option.
Section 6.05. Fractional Shares. The Company, at its option, may issue
fractional shares of common Stock upon any conversion of Convertible Notes or,
in lieu of any fraction of a share of Common
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<PAGE>
Stock to which any Holder would otherwise be entitled upon conversion of any
Convertible Notes (or specified portions thereof), the Company may pay a cash
adjustment for such fraction in an amount equal to same fraction of the
conversion price per share.
Section 6.06 Adjustment of Conversion Price. The Conversion Price shall
be adjusted as set forth in this section.
(a) In the event that the Company shall make any distribution of its assets
upon or with respect to its shares of Common Stock, as a liquidating or
partial liquidating dividend, or other than as a dividend payable out of
earnings or any surplus legally available for dividends under the laws of
the state of incorporation of the Company, each Holder of any Convertible
Note then outstanding shall, upon the exercise of his right to convert
after the record date for such distribution or, in the absence of a record
date, after the date of such distribution receive, in addition to the
shares subscribed for, the amount of such assets (or, at the option of the
Company, a sum equal to the value thereof at the time of distribution as
determined by the Board of Directors in its sole discretion) which would
have been distributed to such Holder if he had exercised his right to
convert immediately prior to the record date for such distribution or, in
the absence of a record date, immediately prior to the date of such
distribution.
(b) In case at any time the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares, the current Conversion Price
in effect immediately prior to such subdivision shall be proportionately
reduced and conversely, in case the outstanding shares of Common Stock of
the Company shall be combined into a smaller number of shares, the Current
Conversion Price in effect immediately prior to such combination shall be
proportionately increased.
(c) If any capital reorganization or reclassification of the capital stock of
the Company, or consolidation or merger of the company with another
corporation, or the sale transfer or lease of all or substantially all of
its assets to another corporation, shall be effected in such a way that
holders of shares of Common Stock shall be entitled to receive shares,
securities or assets with respect to or in exchange for shares of Common
Stock, then, as a condition of such reorganization, reclassification,
consolidation, merger or sale, the Company or such successor or purchasing
corporation, as the case may be, shall execute an amendment to the
Convertible Notes providing that the Holder of each Convertible Note then
outstanding shall have the right thereafter and until the expiration of the
period of convertibility to convert such Convertible Note into the kind and
amount of shares, securities or assets receivable upon such reorganization,
reclassification, consolidation, merger or sale by a holder of the number
of shares of Common Stock into which such Convertible Note might have been
converted immediately prior to such reorganization, reclassification,
consolidation, merger or sale, subject to adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in
this Section 6.
(d) Upon such adjustment of the Conversion Price pursuant to the provisions of
this Section 6.06, the number of shares issuable upon conversion of this
Note shall be adjusted to the nearest full amount by multiplying a number
equal to the Conversion Price in effect immediately prior to such
adjustment by the number of shares of Common Stock issuable upon exercise
of this Note immediately prior to such adjustment and dividing the product
so obtained by the adjusted Conversion Price.
Section 6.07 Adjustment of Conversion Price - Share Issuances. If and
whenever on or after the date hereof the Company shall issue any shares of
Common Stock for a consideration per share less than the Conversion Price
(whether pursuant to a direct issuance or any option or warrant to acquire
shares) or issue any security convertible into shares of Common Stock at a
conversion value of less than the Conversion Price, then, forthwith upon such
issue or sale, the Conversion Price shall be reduced as follows:
(a) If the shares issued at such lower price shall have been issued in a
transaction or series of transactions occurring within any 18 month period
and shall have constituted 5% or more of the Company's then outstanding
shares (determined as set forth in (iv below), the Conversion Price shall
be reduced to (i) the lowest prices at which such shares were offered in
any one transaction constituting 5% or more; or (ii) to the lowest weighted
average price per share in any series of transactions constituting 5% or
more in which no one transaction by itself constituted 5%; or
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<PAGE>
(b) If the shares issued at such lower price shall have been issued otherwise
than for 5% or more of the Company's then outstanding shares as stated in
subsection (a) above, the Conversion Price shall be reduced to a number
determined by multiplying then Conversion Price in effect immediately prior
to such issuance by the following fraction:
B
-
A+ C
------
A+D
wherein:
A = the number of outstanding shares of Common Stock immediately
prior to the subject issuance;
B = the aggregate consideration for the shares then being
issued;
C = the then Conversion Price; and
D = the number of shares then being issued.
The Conversion Price shall be further reduced from time to time thereafter
whenever any Shares are so issued or converted for a lower price than the then
Conversion Price, as adjusted prior to that date. However, no adjustment of the
conversion price shall be made in an amount less than $.02 share, but any such
lesser adjustment shall be carried forward and shall be made at the time and
together with the next subsequent adjustment which together with any adjustments
so carried forward shall amount to $.02 per share or more.
For the purposes of this Section 6.07, the following provisions (i)
through (iii) shall also be applicable:
(i) in case any shares shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount received
by the Company therefor, without deduction therefrom of any expenses
incurred or any underwriting commissions or concessions paid or allowed by
the Company in connection therewith. In case any shares shall be issued for
a consideration other than cash, the amount of the consideration other than
cash received by the Company shall be deemed to be the fair value of such
consideration as determined by the Board of Directors of the Company,
without deduction of any expenses incurred or any underwriting commissions
or concessions paid or allowed by the Company in connection therewith.
(ii) At no time shall the Conversion Price increase.
(iii) As used in this Section 6.07, the number of outstanding shares
at any given time shall be deemed to be the aggregate of the Company's then
issued and outstanding Shares, plus all shares into which the Holder of
this Convertible Note may then convert this Convertible Note pursuant to
the terms hereof, plus all Shares which the holders of any then outstanding
options, warrants, convertible preferred stock or other convertible
securities and then or will be entitled to acquire pursuant to their rights
under those instruments (assuming the Conversion Prices and ratios
applicable to them at that time, irrespective of whether such holders have
rights to acquire such shares thereunder immediately or at a later date,
and without taking into consideration any change in the Conversion Price
relative to this Convertible Note or any other instrument which could
result from the subject issuance of Shares), but not including the new
shares then being issued by the Company pursuant to which the aforesaid 5%
test shall relate.
Section 6.08. Covenant to Reserve Shares for Conversion. The Company
convenants that it will at all times reserve and keep available out of its
authorized shares of Common Stock, such number of shares of Common Stock as
shall then be deliverable upon the conversion of all outstanding Convertible
Page 8 of 14
<PAGE>
Notes. All shares of Common Stock, which shall be deliverable, shall be duly
and validly issued and fully paid and nonassessable.
Section 6.09. Notice of Change of Conversion Price. Whenever the
Conversion Price is adjusted, as herein provided, the Company shall promptly
send to each Holder a certificate of a firm of independent public accountants
(who may be the accountants regularly employed by the Company) selected by the
Board of Directors setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment. Such
certificate shall be conclusive evidence of the correctness of such adjustment.
Section 7. REGISTRATION RIGHTS.
Section 7.01. Piggy-Back. If the Company proposes to file, on its behalf
and/or on behalf of any of its securities holders, a Registration Statement
under the Securities Act of 1933, as amended (the "Securities Act") other than
in connection with a dividend reinvestment, employee stock purchase, option or
similar plan or in connection with a merger, consolidation or reorganization,
the Company shall give written notice to each Holder at least 30 days before the
filing with the Securities and Exchange Commission ("SEC") of such Registration
Statement. Each Holder who desires to include any of its shares of Common Stock
into which the Convertible Notes are convertible, whether or not already
converted, (the "Registrable Securities") in such Registration Statement shall
give written notice to the Company within 20 days after the date of receipt of
written notice from the Company. The Company shall thereupon include in such
filing the shares of Common Stock designated by such Holder and, subject to its
right to withdraw such filing, shall use its best efforts to effect registration
under the Securities Act of such shares of Common Stock.
Section 7.02. Conditions. The right of the Holders to have shares
included in any registration Statement in accordance with the provision of this
Section 7 shall be subject to the following conditions:
(a) The Company shall have the right to require that the Holders
participating in such Registration Statement agree to refrain from
offering or selling (other than in a private sale) any shares of
Common Stock that they own which are not included in any such
Registration Statement in accordance with this Section 7 for any time
period specified in writing by any managing underwriter of the
offering to which such Registration Statement relates;
(b) If any managing underwriter of the offering to which the Registration
Statement relates informs the Company in writing that the total number
of shares of Common Stock requested by the Holders to be included in
the Registration Statement is sufficiently large to affect the success
of such offering adversely, then the Company will include only the
number of shares, if any, in the Registration Statement that such
managing underwriter shall advise the Company will not so affect the
offering, and reductions in the number of shares of Common Stock owned
by the Holders and other persons who have elected to have shares of
Common Stock included in such Registration Statement will be made
proportionately to their respective percentages of ownership of shares
to be included in the Registration Statement; and
(c) The Company shall furnish Holders who have shares included in a
Registration Statement pursuant to this Section 7 with such number of
copies of the prospectus relating to the offering (the "Prospectus")
(including any preliminary prospectus or supplemental or amended
prospectus) as such Holder may reasonably request in order to
facilitate the sale and distribution of its shares.
Section 7.03. Registration Covenants of Company. The Company shall use
its best efforts to prepare and file the Registration Statement or proceed with
the Offering as to which the notice specified herein is given.
(a) The Company shall use its best efforts to file a registration
statement within forty-five (45) days of receipt of any demand
therefor, shall use its best efforts to have any registration
statement declared effective at the earliest possible time, and shall
furnish each Holder desiring to sell Registrable Securities such
number of prospectuses as shall reasonably be requested.
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<PAGE>
(b) As expeditiously as possible prepare and file with the Commission any
amendments and supplements to the registration statement and the
prospectus included therein. as may be necessary to keep the
registration statement effective until the later of (i) the date when
all Registrable Securities registered have been sold, or (ii) two
years from the effective date of the registration statement.
(c) The Company shall pay all costs (excluding any underwriting or selling
commissions or other charges of any broker-dealer acting on behalf of
Holder(s), fees and expenses in connection with all registration
statements filed pursuant to Section 7 hereof including, without
limitation, the Company's legal and accounting fees. If the Company
shall fail to comply with the provisions of Section 7.03(a) or (b),
the Company shall, in addition to any other equitable or other relief
available to the Holder(s), be liable for any or all damages due to
loss of profit sustained by the Holder(s) requesting registration of
their Registrable Securities.
(d) The Company shall take all necessary action which may be required in
qualifying or registering the Registrable Securities included in the
registration statement for offering and sale under the securities or
blue sky laws of such states as reasonably as requested by the
Holder(s), provided that the Company shall not be obligated to execute
or file any general consent to service of process or to qualify as a
foreign corporation to do business under the laws of any such
jurisdiction.
(e) The Company shall indemnify the Holder(s) of the Registrable
Securities to be sold pursuant to any registration statement and each
person, if any, who controls such Holders within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, against
all loss, claim, damage, expense or liability (including all expenses
reasonably incurred in investigating, preparing or defending against
any claim whatsoever) to which any of them may be subject.
(f) The Holder(s) of the Registrable Securities to be sold pursuant to a
registration statement, and their successors and assigns, shall
severally, and not jointly, indemnify the Company, its officers and
directors and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
against all loss, claim, damage or expense or liability (including all
expenses reasonably incurred in investigating, preparing or defending
against any claim whatsoever) to which they may become subject under
the Act, the Exchange Act or otherwise, arising from written
information furnished by or on behalf of such Holders, or their
successors or assigns, for specific inclusion in such a registration
statement.
(g) Nothing contained in this Agreement shall be construed as requiring
the Holder(s) to convert their Notes prior to the initial filing of
any registration statement or the effectiveness thereof.
(h) The Company shall furnish to each Holder participating in an offering
including Registrable Securities, pursuant to Sections 7.01 hereof,
and to each underwriter, if any, a signed counterpart, addressed to
such Holder or underwriter, of (i) an opinion of counsel to the
Company, dated the effective date of such registration statement (and,
if such registration includes an underwritten public offering, an
opinion dated the date of the closing under the underwriting
agreement), and (ii) a "cold comfort" letter dated the effective date
of such registration statement (and, if such registration includes an
underwritten public offering, a letter dated the date of the closing
under the underwriting agreement) signed by the independent public
accountants who have issued a report on the Company's financial
statements included in such registration statement, in each case
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in
the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to underwriters in underwritten public
offerings of securities.
(i) The Company shall as soon as practicable after the effective date of a
registration statement relating to any Registrable Securities pursuant
to Section 7.01 hereof, and in any event within
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<PAGE>
fifteen (15) months thereafter, make "generally available to its
security holders" (within the meaning of Rule 158 under the Act) an
earnings statement (which need not be audited) complying with Section
11(a) of the Act and covering a period of at least twelve (12)
consecutive months beginning after the effective date of the
registration statement.
(j) The Company shall deliver promptly to each Holder participating
in an offering including any Registrable Securities pursuant to
Sections 7.01 hereof, who so requests, and to the managing
underwriter, copies of all correspondence between the Commission and
the Company, its counsel or auditors and all memoranda relating to
discussions with the Commission or its staff with respect to the
registration statement and permit each Holder and underwriter to do
such investigation, upon reasonable advance notice, with respect to
information contained in or omitted from the registration statement as
it deems reasonably necessary to comply with applicable securities
laws or rules of the National Association of Securities Dealers, Inc.
("NASD"). Such investigation shall include access to books, records
and properties and opportunities to discuss the business of the
Company with its officers and independent auditors, all to such
reasonable extent and at such reasonable times and as often as any
such Holder shall reasonably request as it deems necessary to comply
with applicable securities laws and NASD rules.
(k) With respect to a registration pursuant to Section 7.01 hereof, if
requested by the Holders holding a Majority of the Registrable
Securities, the Company may enter into an underwriting agreement with
the managing underwriter selected for such underwriting by Holders
holding a Majority of the Registrable Securities requested to be
included in such underwriting. Such managing underwriter(s) shall be
satisfactory to the Company and each Holder and such agreement shall
be satisfactory in form and substance to the Company, each Holder and
such managing underwriters, and shall contain such representations,
warranties and covenants by the Company and such other terms as are
customarily contained in agreements of that type used by the managing
underwriter. The Holders may be parties to any underwriting agreement
relating to an underwritten sale of their Registrable Securities and
may, at their option, require that any or all the representations,
warranties and covenants of the Company to or for the benefit of such
Holders. Such Holders shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters except as they may relate to such Holders and their
intended methods of distribution.
(l) Subject to the provisions of Section 7.02(a) or (b), upon the written
request therefor by any Holder(s), the Company may include in the
registration statement any other securities of the Company held by
such Holder(s) as of the date of filing of such registration
statement, including without limitation, restricted shares of Common
Stock, options, warrants or any other securities convertible into
shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to
the Holders of Warrants or Registrable Securities, shall mean in
excess of fifty percent (50%) of the outstanding Warrants or
Registrable Securities that (i) are not held by the Company, an
affiliate (excluding Katsock), officer, creditor, employee or agent
thereof or any of their respective affiliates, members of their
family, persons acting as nominees or in conjunction therewith or (ii)
have not been resold to the public pursuant to a registration
statement filed with the Commission under the Act.
Section 7.04 "No Action" Letter: Opinion of Counsel. No Holder shall
have registration rights under this Section with respect to any sales proposed
by them of shares as to which sales (i) a "no action" letter is received from
the SEC or its staff confirming the availability of an exemption from the
requirements of the Securities Act or (ii) an unqualified opinion of counsel to
the Company is rendered to the effect that registration of such shares for such
sales is not required; provided that in both cases (i) and (ii) above, the
volume limitations of Rule 144(e) under the Securities Act shall not limit the
amount of shares of Common Stock that the Holders are entitled to offer and sell
without registration under the Securities Act.
Section 7.05. Recall of Prospectuses, etc. With respect to a Registration
Statement or amendment thereto filed pursuant to this Section, if, at any time,
the Company notifies the selling Holder that an amendment or supplement to such
Registration Statement or amendment or the prospectus included
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<PAGE>
therein is necessary or appropriate, the selling Holder will forthwith cease
selling and distributing shares thereunder and will forthwith redeliver to the
Company all copies of such Registration Statement and prospectuses then in their
possession or under their control.
Section 7.06. Cooperation of Holders. The Company shall be entitled to
require that each selling Holder cooperate with the Company in connection with a
registration of shares of Common Stock pursuant to this Section and furnish such
information, representations, undertakings and agreements regarding such selling
Holder and the distribution as may be reasonably required by the Company or as
required by law in connection therewith.
Section 7.07. Expenses. The Company will bear all the expenses in
connection with any Registration Statement under this Section 7 (including the
fees and expenses of a single counsel to the Holders) other than transfer taxes
payable on the sale of such shares and fees and commissions of brokers, dealers
and underwriters.
Section 7.08. Indemnification. In the event of the registration of any
securities under the Securities Act pursuant to this Section, the Company and
the Holders shall provide to each other customary indemnification to the extent
of any loss, claim, damage, liability or expense arising out of such
registration.
Section 8: Status of the Holder:
Section 8.01. The Holder has such knowledge and experience in financial and
business matters that the Holder is capable of evaluating the merits and risks
of this Convertible Note. The Holder is able to bear the economic risk of this
Note. The Holder has had the opportunity to consult with the Holder's own
attorney, accountant and/or purchaser representative regarding this Note and the
suitability of this transaction, and to the extent necessary, the Holder has
retained, at Holder's own expense, and relied upon, appropriate professional
advice regarding this Note, the investment it represents, tax and legal merits,
risks and consequences of this Note and of purchasing and owning the Shares.
Section 8.02. The Holder represents that the Holder is an "Accredited
Investor", as that term is defined below, and that at least one of the
categories set forth in (a) through (h) below applies to the Holder. The Holder
is one or more of the following:
(a) a natural person whose individual net worth, or joint net worth
with that person's spouse, exceeds $1,000,000;
(b) a natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year.
(c) a bank as defined in Section 3(a)(2) of the Securities Act or a
savings and loan association or other institution as defined in Section 3(a)
(5)(A) of the Securities Act, whether acting in its individual or fiduciary
capacity; a broker or dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934; an insurance company as defined in Section 2(13) of the
Securities Act; an investment company registered under the Investment Company
Act of 1940 (the "1940 Act") or a business development company as defined in
Section 2(a)(48) of the 1940 Act; a Small Business Investment Company licensed
by the U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958; or an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974
("ERISA"), if the investment decision is made by a plan fiduciary, as defined in
Section 3(21) of ERISA, which fiduciary is either a bank, savings and loan
association, insurance company or registered investment adviser, or if the
employee benefit plan has total assets in excess of $5,000,000 or if a self-
directed plan, with investment decisions made solely by persons that are
Accredited Investors (as listed in categories (a) - (h) herein);
(d) a private business development company as defined in Section
202(a)(22) of the 1940 Act;
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<PAGE>
(e) an organization described in Section 501 (c)(3) of the Internal
Revenue Code, a corporation, Massachusetts or similar business trust or a
partnership, with total assets in excess of $5,000,000, and which was not formed
for the specific purpose of engaging in this transaction;
(f) a trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of engaging in this transaction, which is directed by a
person who has such knowledge and experience in financial and business matters
that he is capable of evaluating the merits and risks of this investment;
(g) a director or executive officer of the Company; or
(h) an entity in which all of the equity owners are Accredited
Investors [as listed in categories (a) - (h)].
Section 9. MISCELLANEOUS
Section 9.01. Governing Law. This Convertible Note shall be construed in
accordance with the laws of the State of Florida applicable to contracts entered
into and to be performed wholly within said State.
Section 9.02. Successors and Assigns. All the covenants, stipulations,
promises and agreements in the Convertible Notes held by or on behalf of the
Company shall bind its successors and assigns, whether so expressed or not.
Section 9.03 Course of Dealing: No Waiver. No course of dealing between
the Company and the Holder hereof shall operate as a waiver of any right of any
holder hereof and no delay on the part of the Holder in exercising any right
hereunder shall so operate.
Section 9.04. Waiver of Compliance.
(a) Any term, covenant, agreement or condition hereof may be amended, or
compliance therewith may be waived (either generally or in a particular instance
and either retroactively or prospectively), if the Company shall have obtained
the agreement or consent in writing of the Holders of at least 51% in aggregate
principal amount of all outstanding Convertible Notes, but no such amendment or
waiver shall:
(i) change the amount or maturity of any principal on the Convertible
Notes or change the rate or extend the time of payment of interest
on the Convertible Notes or reduce the amount of principal thereof
or modify any of the provisions of the Convertible Notes with
respect to the payment or prepayment thereof:
(ii) give to any Convertible Note any preference or priority over any
other Convertible Note; or
(iii) reduce the percentage of Holders of the Convertible Notes required
to approve any such amendment or effectuate any such waiver.
(b) In determining whether the Holders of the requisite principal amount
of outstanding Convertible Notes have given any authorization, consent or waiver
under this Section 9.04 or under Section 5.02, Convertible Notes owned by the
Company shall be disregarded and deemed not to be outstanding.
Section 9.05. Manner of giving Notices. Any notice required to be given
to the Holder hereof by the Company hereunder shall be given by overnight
delivery with a reputable established courier service and by certified
registered mail to the Holder at its address designated on the register referred
to in Section 1.01 on the date of such notice.
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Section 9.06. Expenses in Preparation. All expenses of the Holder in the
negotiation, preparation, execution and delivery of this Convertible Note,
including attorneys' fees shall be paid by the Company.
Section 9.07. Other Provisions. The Company waives demand, presentment,
protest, notice of dishonor and any other form of notice that may be required to
hold the Company liable on this Note.
IN WITNESS WHEREOF, the undersigned has caused this Convertible Note to be
signed in its corporate name by one of its officers thereunto duly authorized,
and to be dated as of the date first written above.
FINANCIALWEB. COM, INC.
By: _________________________________
James P. Gagel
Title: Executive Vice President
_________________________________
Date: March 30, 1999
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<PAGE>
EXHIBIT 4.22
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD, OFFERED
FOR SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS THEY ARE SO REGISTERED OR
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
FINANCIALWEB. COM, INC.
CONVERTIBLE NOTE DUE March 30, 2000
Principal Amount: $250,000.
FINANCIALWEB. COM, INC. a Nevada corporation (the "Company"), for value
received, hereby promises to pay Dogwood Bonsai Opportunity Fund, L.P (c/o W.
Andrew G. P. Hobbs) the ("Holder"), or registered assigns, on March 30, 2000 the
principal amount of Two hundred fifty thousand dollars ($250,000) (or so much
thereof as shall not have been prepaid or surrendered for conversion) in such
coin or currency of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts, at the offices of
the Holder located at 5714 Kennet Pike, Wilmington, DE. 19807 together with
simple interest of 9.75% on the unpaid portion of the principal amount thereof,
calculated at the rate of .8125% monthly.
Section 1. THE NOTES.
Section 1.01. Registration, Transfer and Exchange of Convertible Notes. The
Company shall keep at its principal office a register in which the Company will
provide for registration, transfer and exchange of Convertible Notes. Subject to
compliance with applicable securities laws, the Holder (as defined below) of any
Convertible Note may, at its option and either in person or by duly authorized
attorney, surrender the same at said office for registration of transfer or
exchange, accompanied, if surrendered for transfer, by a written instrument of
transfer duly executed by said Holder or attorney. If any Holder shall so
request transfer or exchange of a Convertible Note held by it, the Company shall
within a reasonable time thereafter, without expense to such Holder (other than
transfer taxes, if any) deliver to or upon its order one or more Convertible
Notes in the same unpaid aggregate principal amount as the Convertible Note so
surrendered, each dated the date to which interest has been paid on the
Convertible Note so surrendered, in the principal amount of $5,000 or any
multiple thereof and registered in such name or names, or payable to such Person
or Persons, or order, as shall be specified by the Holder making such request.
The Company may deem and treat the Holder of any Convertible Note as the
absolute owner of such Convertible Note for the purpose of receiving payment of
or on account of the principal and interest on such Convertible Note and for the
purposes of any notices, waivers or consent thereunder, and payment of any
Convertible Note shall be made only to or upon the order in writing of such
Holder.
Section 1.02. Loss, Theft, Destruction or Convertible Notes. Upon receipt
of evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Convertible Note and, in the case of any such loss, theft or
destruction, upon receipt of indemnity reasonably satisfactory to the Company,
or in the case of any such mutilation, upon surrender and cancellation of this
Convertible Note, the Company will make and deliver, in lieu of such lost,
stolen, destroyed or mutilated Convertible Note, a new Convertible Note of like
tenor and unpaid principal amount and dated as of the date from which unpaid
interest has then accrued on the Convertible Note so lost stolen, destroyed or
mutilated.
Section 2. DEFINITIONS.
Section 2.01. Terms Defined. The terms defined in this Section 2.01 (except
as herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Convertible Note shall have the respective meanings
specified in this Section 2.01.
Common Stock: The term "Common Stock" means shares of the Company's Common
Stock, par value $.001 per share.
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Company: The term "Company" means FINANCIALWEB. COM, INC. a Nevada
corporation, and any successor corporation to the Company (including the
corporation surviving any subsequent merger).
Convertible Notes: The term "Convertible Notes" means this note and any one
or more notes created by transfer, succession, partial conversion or partial
prepayment as contemplated by this note.
Current Conversion Price: The term "Current Conversion Price" means the
Conversion Price as most recently adjusted pursuant to Section 6.06.
Default: The term "Default" means an event which with notice or upon the
lapse of time or both would become an Event of Default.
Event of Default: The term "Event of Default" means any event specified in
Section 5.01, continued for the period of time, if any, and after the giving of
notice, if any, therein designated.
Holder: The term "Holder" means the Person in whose name such Convertible
Note is registered in the register maintained by the Company pursuant to
Section 1.01.
Maturity The term "Maturity" when used with respect to any Convertible Note
means the date of which the principal (and interest), of such Convertible Note
becomes due and payable as herein provided, whether at February 11, 2000, (b)
declaration of acceleration or (c) otherwise.
Section 3. CERTAIN COVENANTS.
Section 3.01. Authority; Payment of Convertible Notes. The Company is
duly authorized to issue this Convertible Note and enter into the provisions
contained herein and the Convertible Note and its provisions constitute binding
valid and enforceable obligations of the Company. The Company will duly and
punctually pay or cause to be paid in cash the principal and the interest on
each of the Convertible Notes at the time and place and in the manner provided
herein.
Section 3.02. General Covenants. The Company will:
(a) promptly pay and discharge or cause to be paid and discharged all
lawful taxes, assessments, and governmental charges or levies imposed upon the
Company upon the income of profits of the Company or upon any property, real,
personal or mixed, belonging to the Company or upon any part thereof, before the
same shall become in default, as well as all lawful claims for labor, material
and supplies which, if unpaid, might become a lien or charge upon such
properties or any part thereof, except that the Company shall not be required to
pay and discharge or, to cause to be paid and discharged any such tax,
assessment, charge, levy or claim so long as the validity thereof shall be
contested in good faith by appropriate proceedings and the Company as the case
may be, shall set aside on its books such reserves, if any, as shall be deemed
by it adequate with respect to any such tax, assessment charge, levy or claim so
contested.
(b) do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises, and comply
with all laws applicable to the Company as its counsel may advise; except that
nothing in this subsection (b) shall prevent a liquidation or dissolution of, or
a sale, transfer or disposition of the property and assets of, or a merger or
consolidation of, the Company or any Affiliate not prohibited by the provisions
of Section 3.04; and
(c) at all times maintain, preserve, protect and keep, or cause to be
maintained, preserved, protected and kept, its property used or useful in the
conduct of the business of the Company in good repair, working order and
condition, and from time to time make, or cause to be made, all necessary and
proper repairs, renewals, replacements betterment and improvements thereto, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
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Section 3.03. Notice of Defaults. In the event that any Event of Default
shall have occurred, the Company will promptly give written notice thereof to
each Holder of a Convertible Notes, which in no case will be given later than
10 calendar days after the Event of Default occurs.
Section 3.04. Mergers, etc. Subject to Section 3.02, the Company may not
consolidate with or merge into, or transfer all or substantially all its assets
to, another corporation unless (a) the resulting, surviving or transferee
corporation assumes in writing all the obligations of the Company under the
Convertible Notes and (b) no Event of Default shall have occurred and be
continuing. Upon any consolidation or merger, or any transfer of all or
substantially all the assets of the Company in accordance with this Section
3.04, the successor corporation formed by such consolidation or with or into
which the Company is merged or to which such transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under the Convertible Note with the same effect as if such successor corporation
has been named as the Company herein.
Section 3.05. Notice of Certain Actions. In case at any time:
(a) the Company shall declare any dividend upon its shares of capital
stock payable in securities or make any special dividend or other distribution
(other than a cash dividend to the holders of such shares);
(b) the Company shall offer for subscription pro rata to the holders of
its shares of capital stock for any additional securities of any class or other
rights;
(c) there shall be any capital reorganization, or reclassification of the
capital stock of the Company, or consolidation or merger of the Company with, or
sale of all or substantially all its assets to, another corporation or other
entity;
(d) there shall be a voluntary or involuntary dissolution, liquidation or
winding-up of the Company; or
(e) the Company shall enter into an agreement or adopt a plan for the
purpose of effecting a consolidation, merger, or sale of all or substantially
all of its assets: then, in any one or more of said cases, the Company shall
give written notice pursuant to the notice provisions contained in Section
[9.05] hereof, to the registered holder hereof of the date on which (a) the
books of the Company shall close or a record shall be taken for such dividend,
distribution or subscription rights, or (b) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up shall take place, as the case may be. Such notice shall also specify
the date as of which the holders of shares of record of capital stock shall
participate in such dividend, distribution or subscription rights, or shall be
entitles to exchange their shares for securities or other property deliverable
upon such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation, or winding-up, as the case may be. Such written
notice shall be given at least 30 days prior to the action in question and not
less than 30 days prior to the record date or the date on which the Company's
transfer books are closed in respect thereto.
Section 4. OPTIONAL PREPAYMENTS.
Section 4.01. Optional Prepayments. The Company shall have the privilege,
at any time and from time to time prior to Maturity of prepaying the outstanding
Convertible Notes, either in whole or in part by payment of the principal amount
of each Convertible Note, or portion thereof to be prepaid, and accrued interest
thereon to the date of such prepayment, without premium or penalty.
Section 4.02. Notice of Prepayments. The Company will give notice of any
prepayment of the Convertible Notes pursuant to Section 4.01 to each holder
thereof not less than 30 days nor more than 60 days before the date fixed for
such optional prepayment ("Prepayment Date") specifying (i) the Prepayment Date,
(ii) the principal amount of the Holder's Convertible Notes to be prepaid on
the Prepayment Date and (iii) the accrued interest applicable to the prepayment.
Notice of prepayment having been so given, the aggregate principal amount of the
Convertible Notes specified in such notice, together with the premium, if any,
and accrued interest thereon shall become due and payable on the Prepayment
Date.
Section 4.03. Allocation of Prepayment. All partial prepayments pursuant to
Section 4.01 shall be applied on all outstanding Convertible Notes ratably in
accordance with the unpaid principal amounts thereof.
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<PAGE>
Section 5. REMEDIES.
Section 5.01. Events of Default. An "Event of Default" occurs if one or
more of the following shall happen (for any reason whatsoever and whether such
happening shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) if default be made in the punctual payment of the principal on any of
the Convertible Notes when and as the same shall become due and payable, whether
at the fixed maturity of said Convertible Notes or otherwise; or
(b) if default be made in the payment of any installment of interest on
any of the Convertible Notes and such default shall continue for a period of 30
days after notice; or
(c) if default be made in the due observance or performance of any
covenant, condition or agreement contained in Section 3.02 to 3.05, both
inclusive, and such default shall have continued for a period of 30 days after
the Holders of a majority of the principal amount of the Convertible Notes then
outstanding shall have given notice to the Company (which notice shall specify
the default, demand that it be remedied and state that the notice is a "Notice
of Default"); or
(d) the Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case, (ii) consents to the entry of an order for
relief against it in any involuntary case, (iii) consents to the appointment of
a Custodian of it or for any substantial part of its property, (iv) makes a
general assignment for the benefit of its creditors; or
(e) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that: (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company or for any substantial part of
its property, (iii) orders the liquidation of the Company; and the order or
decree remains unstayed and in effect for 30 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator, sequestrator or similar official under any
Bankruptcy Law.
Section 5.02. Acceleration. If an Event of Default (other than an Event of
Default specified in Section 5.01 (d) or (e)) occurs and is continuing then, at
the option of the Holder of this Convertible Note, exercised by written notice
to the Company, the principal of this Convertible Note shall forthwith become
due and payable, together with the interest accrued hereon. If an Event of
Default specified in Section 5.01 (d) or (e) occurs at any time, such an amount
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Holder of this Convertible Note.
The provisions of this Section 5.02 are subject, however, to the condition
that if, at any time after any Convertible Note shall have so become due and
payable, the Company shall pay all arrears of interest on the Convertible Notes
and all payments on account of the principal (and accrued interest on
Convertible Notes due and payable by virtue of acceleration) shall be remedied
or waived pursuant to Section 9.04, then, and in every such case, subject to
Section 9.04 (b), the Holder or Holders of at least 66-2/3% in aggregate
principal amount of the Convertible Notes at the time outstanding, by written
notice to the company, may rescind and annul such acceleration and its
consequences; but no such action shall affect any subsequent Default or Event of
Default or impair any right consequent thereon.
Section 5.03. Other Remedies. Subject to the provisions of Section 5.02, in
case any one or more of the Events of Default specified in Section 5.01 shall
have occurred and be continuing, the Holder of this Convertible Note may proceed
to protect and enforce its rights by suit in equity, action at law or by other
appropriate proceedings or both, whether for the specific performance of any
covenant or agreement contained in this Convertible Note or in aid of the
exercise of any power granted in this Convertible Note,
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<PAGE>
or may proceed to enforce the payment of this Convertible Note or to enforce any
other legal or equitable right of the Holder of this Convertible Note.
The remedies of the holder provided herein shall be cumulative and
concurrent, ad may be pursued singly, successively, or together at the sole
discretion of the holder, and may be exercised as often as occasion therefor
shall occur, and the failure to exercise any such right or remedy shall in no
event be construed as a waiver or release thereof.
The Company hereby waives and releases all errors, defects and
imperfections in any proceedings instituted by the holder under the term of this
Convertible Note, as well as all benefit that might accrue to the Company by
virtue of any present or future laws exempting any property, real or personal,
or any part of the proceeds arising from any sale of any such property, from
attachment, levy, or sale under execution, or providing for any stay of
execution, exemption form civil process or extension of time for payment; and
the Company agrees that any real estate that may be levied upon pursuant to a
judgment obtained by virtue hereof, or any writ of execution issued thereon, may
be sold upon any such writ in whole or in part in any ordered desired by the
holder.
The holder shall not be deemed, by any act of omission or commission, to
have waived any of its rights or remedies hereunder unless such waiver is in
writing and signed by the holder, and then only to the extent specifically set
forth in writing. A waiver of one event shall not be construed as continuing or
as a bar to or waiver of any right or remedy to a subsequent event.
Section 5.04. Notice by the Company of Acceleration or Other Action by
Convertible Noteholders or Holders of Other Indebtedness. If any Holder of a
Convertible Note shall give any notice to the Company with respect to any Event
of Default (or with respect to any event which with notice or the lapse of time,
or both, would be an Event of Default), or accelerate the maturity thereof or
take any other action in respect of an Event of Default or such event, or if the
holder of any bond, debenture, note or other similar evidence of indebtedness
(other than the Convertible Notes) of, or secured or guaranteed by, the Holder
shall give any notice to the Company in respect of any default thereunder or
under any agreement pursuant to which such bond, debenture, note or other
evidence or indebtedness is issued, the Company shall forthwith give written
notice to all Holders of Convertible Notes, specifying such action and the
nature and status of the Event of Default or event or other default.
Section 5.05. Remedies Cumulative. No remedy herein conferred upon the
Holder of this Convertible Note is intended to be exclusive of any other remedy
and each and every such remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise.
Section 5.06. Enforcement. If there shall be any Default under this
Convertible Note and this Convertible Note shall be placed in the hands of an
attorney for collection, or shall be collected through any court, including any
bankruptcy court, the Company promises to pay to the order of the Holder hereof
such Holder's reasonable attorneys' fees and court costs incurred in collecting
or attempting to collect or securing or attempting to secure this Convertible
Note or enforcing the Holder's rights with respect to any collateral securing
this Convertible Note, to the extent allowed by the laws of the State of Florida
or any state in which any collateral for this Note shall be situated.
Section 6. CONVERSION.
Section 6.01. Right of Conversion, Conversion Price. Subject to and upon
compliance with the provisions of this Section 6, the Holder shall have the
right at his option, at any time during usual business hours (including the
period between the date on which the Company gives notice of prepayment and the
Prepayment Date) to convert the principal and accrued interest of any
Convertible Note owned by such Holder into fully paid and in nonassessable
shares of Common Stock at the rate of $4.00 for each share of Common Stock (the
"Conversion Price") which price per share shall be payable by surrender of such
Convertible Note.
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(a) As of the date hereof, the authorized and outstanding capital stock of
the Company is 4,973,000 (four million nine hundred seventy three thousand)
shares.
Section 6.02. Manner of Exercise.
(a) In order to exercise the conversion right, the Holder of any
Convertible Note to be converted shall surrender such Convertible Note at the
office of the Company, accompanied by written notice to the Company stating (i)
that the Holder elects to convert such Convertible Note or, if less than the
entire principal amount of a Convertible Note is to be converted, the portion
thereof (a multiple of $1,000) to be converted, and (ii) the name or names
(with addresses) in which the certificate or certificates for shares of Common
Stock issuable on such conversion shall be issued. Convertible Notes surrendered
for conversion shall be accompanied by proper assignment thereof to the Company
or in blank for transfer if the shares are to be issued in a name other than
that of the Holder.
(b) In the case of any Convertible Note which is converted in part only,
upon such conversion the Company shall execute and deliver to the Holder
thereof, at the expense of the Company, a new Convertible Note or Convertible
Notes of authorized denominations in principal amount equal to the unconverted
portions of such Convertible Note.
Section 6.03. Issuance of Shares of Common Stock on Conversion.
(a) As promptly as practicable after the receipt of such notice and the
surrender of such convertible Note as aforesaid, the Company shall issue, at its
expense, and shall deliver to such Holder, or on his written order, at the
aforesaid office of the Company (i) a certificate or certificates for the number
of full shares of Common Stock issuable upon the conversion of such Convertible
Note (or specified portion thereof), and (ii) a certificate or certificates for
any fractional shares of Common Stock Issuable upon conversion of such
Convertible Note (or specified portion thereof) or, at the Company's option,
cash in lieu of script for any fraction of a share to which such Holder is
entitled upon conversion as provided in Section 6.05.
(b) Such conversion shall be deemed to have been effected immediately prior
to the close of business on the date ("Conversion Date") on which the Company
shall have received both such notice and the surrendered Convertible Note as
aforesaid, and at such time the rights of the Holder of such Convertible Note
shall cease and the Person or Persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such conversion
shall be deemed to have become the holder or holders of record of the shares
represented thereby.
Section 6.04. No Adjustments for Interest or Dividends. No payment or
adjustment shall be made by or on behalf of the Company on account of any
interest accrued on any Convertible Notes surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon such
conversion which were declared for payment to holders of shares of Common Stock
or record as of a date prior to the Conversion Date. All payments of accrued
interest on any Convertible Note shall be made in cash or additional stock at
the Conversion Price, at Company's option.
Section 6.05. Fractional Shares. The Company, at its option, may issue
fractional shares of common Stock upon any conversion of Convertible Notes or,
in lieu of any fraction of a share of Common Stock to which any Holder would
otherwise be entitled upon conversion of any Convertible Notes (or specified
portions thereof), the Company may pay a cash adjustment for such fraction in an
amount equal to same fraction of the conversion price per share.
Section 6.06. Adjustment of Conversion Price. The Conversion Price shall be
adjusted as set forth in this section.
(a) In the event that the Company shall make any distribution of its assets
upon or with respect to its shares of Common Stock, as a liquidating or partial
liquidating dividend, or other than as a dividend payable out of earnings or any
surplus legally available for dividends under the laws of the state
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of incorporation of the Company, each Holder of any Convertible Note then
outstanding shall, upon the exercise of his right to convert after the record
date for such distribution or, in the absence of a record date, after the date
of such distribution receive, in addition to the shares subscribed for, the
amount of such assets (or, at the option of the Company, a sum equal to the
value thereof at the time of distribution as determined by the Board of
Directors in its sole discretion) which would have been distributed to such
Holder if he had exercised his right to convert immediately prior to the record
date for such distribution or, in the absence of a record date, immediately
prior to the date of such distribution.
(b) In case at any time the Company shall subdivide its outstanding shares
of Common Stock into a greater number of shares, the current Conversion Price in
effect immediately prior to such subdivision shall be proportionately reduced
and conversely, in case the outstanding shares of Common Stock of the Company
shall be combined into a smaller number of shares, the Current Conversion Price
in effect immediately prior to such combination shall be proportionately
increased.
(c) If any capital reorganization or reclassification of the capital stock
of the Company, or consolidation or merger of the company with another
corporation, or the sale transfer or lease of all or substantially all of its
assets to another corporation, shall be effected in such a way that holders of
shares of Common Stock shall be entitled to receive shares, securities or assets
with respect to or in exchange for shares of Common Stock, then, as a condition
of such reorganization, reclassification, consolidation, merger or sale, the
Company or such successor or purchasing corporation, as the case may be, shall
execute an amendment to the Convertible Notes providing that the Holder of each
Convertible Note then outstanding shall have the night thereafter and until the
expiration of the period of convertibility to convert such Convertible Note into
the kind and amount of shares, securities or assets receivable upon such
reorganization, reclassification, consolidation, merger or sale by a holder of
the number of shares of Common Stock into which such Convertible Note might have
been converted immediately prior to such reorganization, reclassification,
consolidation, merger or sale, subject to adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Section 6.
(d) Upon such adjustment of the Conversion Price pursuant to the provisions
of this Section 6.06, the number of shares issuable upon conversion of this Note
shall be adjusted to the nearest fall amount by multiplying a number equal to
the Conversion Price in effect immediately prior to such adjustment by the
number of shares of Common Stock issuable upon exercise of this Note immediately
prior to such adjustment and dividing the product so obtained by the adjusted
Conversion Price.
Section 6.07. Adjustment of Conversion Price - Share Issuance. If and
whenever on or after the date hereof the Company shall issue any shares of
Common Stock for a consideration per share less than the Conversion Price
(whether pursuant to a direct issuance or any option or warrant to acquire
shares) or issue any security convertible into shares of Common Stock at a
conversion value of less than the Conversion Price, then, forthwith upon such
issue or sale, the Conversion Price shall be reduced as follows:
(a) If the shares issued at such lower price shall have been issued in a
transaction or series of transactions occurring within any IS month period and
shall have constituted 5% or more of the Company's then outstanding shares
(determined as set forth in (iv) below), the Conversion Price shall be reduced
to (i) the lowest prices at which such shares were offered in any one
transaction constituting 5% or more; or (ii) to the lowest weighted average
price per share in any series of transactions constituting 5% or more in which
no out transaction by itself constituted 5%; or
(b) If the shares issued at such lower price shall have been issued
otherwise than for 5% or more of the Company's then outstanding shares as stated
in subsection (a) above, the Conversion Price shall be reduced to a number
determined by multiplying then Conversion Price iii effect immediately prior to
such issuance by the following fraction:
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B
-
A+
C
----------
A+D
wherein:
A = the number of outstanding shares of Common Stock
immediately prior to the subject issuance;
B = the aggregate consideration for the shares then
being issued;
C = the then Conversion Price; and
D = the number of shares then being issued.
The Conversion Price shall be further reduced from time to time thereafter
whenever any Shares are so issued or converted for a lower price than the then
Conversion Price, as adjusted prior to that date. However, no adjustment of the
conversion price shall be made in an amount less than $.02 share, but any such
lesser adjustment shall be carried forward and shall be made at the time and
together with the next subsequent adjustment which together with any adjustments
so carried forward shall amount to $.02 per share or more.
For the purposes of this Section 6.07, the following provisions (i) through
(iii) shall also be applicable:
(i) in case any shares shall be issued or sold for cash, the consideration
received therefor shall be deemed to be the amount received by the Company
therefor, without deduction therefrom of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the Company in
connection therewith. In case any shares shall be issued for a consideration
other than cash, the amount of the consideration other than cash received by the
Company shall be deemed to be the fair value of such consideration as determined
by the Board of Directors of the Company, without deduction of any expenses
incurred or any underwriting commissions or concessions paid or allowed by the
Company in connection therewith.
(ii) At no time shall the Conversion Price increase.
(iii) As used in this Section 6.07, the number of outstanding shares at any
given time shall be deemed to be the aggregate of the Company's then issued and
outstanding Shares, plus all shares into which the Holder of this Convertible
Note may then convert this Convertible Note pursuant to the terms hereof, plus
all Shares which the holders of any then outstanding options, warrants,
convertible preferred stock or other convertible securities and then or will be
entitled to acquire pursuant to their rights under those instruments (assuming
the Conversion Prices and ratios applicable to them at that time, irrespective
of whether such holders have rights to acquire such shares thereunder
immediately or at a later date, and without taking into consideration any change
in the Conversion Price relative to this Convertible Note or any other
instrument which could result from the subject issuance of Shares), but not
including the new shares then being issued by the Company pursuant to which the
aforesaid 5% test shall relate.
Section 6.08. Covenant to Reserve Shares for Conversion. The Company
convenants that it will at all times reserve and keep available out of its
authorized shares of Common Stock, such number of shares of Common Stock as
shall then be deliverable upon the conversion of all outstanding Convertible
Notes. All shares of Common Stock, which shall be deliverable, shall be duly and
validly issued and fully paid and nonassessable.
Section 6.09. Notice of Change of Conversion Price. Whenever the Conversion
Price is adjusted, as herein provided, the Company shall promptly send to each
Holder a certificate of a firm of
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independent public accountants (who may be the accountants regularly employed by
the Company) selected by the Board of Directors setting forth the Conversion
Price after such adjustment and setting forth a brief statement of the facts
requiring such adjustment. Such certificate shall be conclusive evidence of the
correctness of such adjustment.
Section 7. REGISTRATION RIGHTS.
Section 7.01. Piggy-Back. If the Company proposes to file, on its behalf
and/or on behalf of any of its securities holders, a Registration Statement
under the Securities Act of 1933, as amended (the "Securities Act") other than
in connection with a dividend reinvestment employee stock purchase, option or
similar plan or in connection with a merger, consolidation or reorganization,
the Company shall give written notice to each Holder at least 30 days before the
filing with the Securities and Exchange Commission ("SEC") of such Registration
Statement. Each Holder who desires to include any of its shares of Common Stock
into which the Convertible Notes are convertible, whether or not already
converted, (the "Registrable Securities") in such Registration Statement shall
give written notice to the Company within 20 days after the date of receipt of
written notice from the Company. The Company shall thereupon include in such
filing the shares of Common Stock designated by such Holder and, subject to its
right to withdraw such filing, shall use its best efforts to effect registration
under the Securities Act of such shares of Common Stock.
Section 7.02. Conditions. The right of the Holders to have shares included
in any registration Statement in accordance with the provision of this Section 7
shall be subject to the following conditions:
(a) The Company shall have the right to require that the Holders
participating in such Registration Statement agree to refrain from offering or
selling (other than in a private sale) any shares of Common Stock that they own
which are not included in any such Registration Statement in accordance with
this Section 7 for any time period specified in writing by any managing
underwriter of the offering to which such Registration Statement relates;
(b) If any managing underwriter of the offering to which the Registration
Statement relates informs the Company in writing that the total number of shares
of Common Stock requested by the Holders to be included in the Registration
Statement is sufficiently large to affect the success of such offering
adversely, then the Company will include only the number of shares, if any, in
the Registration Statement that such managing underwriter shall advise the
Company will not so affect the offering, and reductions in the number of shares
of Common Stock owned by the Holders and other persons who have elected to have
shares of Common Stock included in such Registration Statement will be made
proportionately to their respective percentages of ownership of shares to be
included in the Registration Statement; and
(c) The Company shall furnish Holders who have shares included in a
Registration Statement pursuant to this Section 7 with such number of copies of
the prospectus relating to the offering (the "Prospectus") (including any
preliminary prospectus or supplemental or amended prospectus) as such Holder may
reasonably request in order to facilitate the sale and distribution of its
shares.
Section 7.03. Registration Covenants of Company. The Company shall use its
best efforts to prepare and file the Registration Statement or proceed with the
Offering as to which the notice specified herein is given.
(a) The Company shall use its best efforts to file a registration statement
within forty-five (45) days of receipt of any demand therefor, shall use its
best efforts to have any registration statement declared effective at the
earliest possible time, and shall furnish each Holder desiring to sell
Registrable Securities such number of prospectuses as shall reasonably be
requested.
(b) As expeditiously as possible prepare and file with the Commission any
amendments and supplements to the registration statement and the prospectus
included therein.
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<PAGE>
as may be necessary to keep the registration statement effective until the later
of (i) the date when all Registrable Securities registered have been sold, or
(ii) two years from the effective date of the registration statement.
(c) The Company shall pay all costs (excluding any underwriting or selling
commissions or other charges of any broker-dealer acting on behalf of Holder(s),
fees and expenses in connection with all registration statements filed pursuant
to Section 7 hereof including, without limitation, the Company's legal and
accounting fees. If the Company shall fail to comply with the provisions of
Section 7.03(a) or (b), the Company shall, in addition to any other equitable or
other relief available to the Holder(s), be liable for any or all damages due to
loss of profit sustained by the Holder(s) requesting registration of their
Registrable Securities.
(d) The Company shall take all necessary action which may be required in
qualifying or registering the Registrable Securities included in the
registration statement for offering and sale under the securities or blue sky
laws of such states as reasonably as requested by the Holder(s), provided that
the Company shall not be obligated to execute or file any general consent to
service of process or to qualify as a foreign corporation to do business under
the laws of any such jurisdiction.
(e) The Company shall indemnify the Holder(s) of the Registrable Securities
to be sold pursuant to any registration statement and each person, if any, who
controls such Holders within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage, expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which any of them may be
subject.
(f) The Holder(s) of the Registrable Securities to be sold pursuant to a
registration statement, and their successors and assigns, shall severally, and
not jointly, indemnify the Company, its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from written
information furnished by or on behalf of such Holders, or their successors or
assigns, for specific inclusion in such a registration statement.
(g) Nothing contained in this Agreement shall be construed as requiring the
Holder(s) to convert their Notes prior to the initial filing of any registration
statement or the effectiveness thereof.
(h) The Company shall furnish to each Holder participating in an offering
including Registrable Securities, pursuant to Sections 7.01 hereof, and to each
underwriter, if any, a signed counterpart, addressed to such Holder or
underwriter, of (i) an opinion of counsel to the Company, dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, an opinion dated the date of the closing under the
underwriting agreement), and (ii) a "cold comfort" letter dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, a letter dated the date of the closing under the
underwriting agreement) signed by the independent public accountants who have
issued a report on the Company's financial statements included in such
registration statement, in each case covering substantially the same matters
with respect to such registration statement (and the prospectus included
therein) and, in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements, as are customarily covered
in opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of a
registration statement relating to any Registrable Securities pursuant to
Section 7.01 hereof, and in any event within fifteen (15) months thereafter,
make "generally available to its security holders" (within the meaning of
Rule 158 under the Act) an earnings statement (which need not be audited)
complying with
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Section 11 (a) of the Act and covering a period of at least twelve (12)
consecutive months beginning after the effective date of the registration
statement.
(j) The Company shall deliver promptly to each Holder participating in an
offering including any Registrable Securities pursuant to Sections 7.01 hereof,
who so requests, and to the managing underwriter, copies of all correspondence
between the Commission and the Company, its counsel or auditors and all
memoranda relating to discussions with the Commission or its staff with respect
to the registration statement and permit each Holder and underwriter to do such
investigation, upon reasonable advance notice, with respect to information
contained in or omitted from the registration statement as it deems
reasonably necessary to comply with applicable securities laws or rules of the
National Association of Securities Dealers, Inc. ("NASD"). Such investigation
shall include access to books, records and properties and opportunities to
discuss the business of the Company with its officers and independent auditors,
all to such reasonable extent and at such reasonable times and as often as any
such Holder shall reasonably request as it deems necessary to comply with
applicable securities laws and NASD rules.
(k) With respect to a registration pursuant to Section 7.01 hereof, if
requested by the Holders holding a Majority of the Registrable Securities, the
Company may enter into an underwriting agreement with the managing underwriter
selected for such underwriting by Holders holding a Majority of the Registrable
Securities requested to be included in such underwriting. Such managing
underwriter(s) shall be satisfactory to the Company and each Holder and such
agreement shall be satisfactory in form and substance to the Company, each
Holder and such managing underwriters, and shall contain such representations,
warranties and covenants by the Company and such other terms as are customarily
contained in agreements of that type used by the managing underwriter. The
Holders may be parties to any underwriting agreement relating to an underwritten
sale of their Registrable Securities and may, at their option, require that any
or all the representations, warranties and covenants of the Company to or for
the benefit of such Holders. Such Holders shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters except as they may relate to such Holders and their intended
methods of distribution.
(1) Subject to the provisions of Section 7.02(a) or (b), upon the written
request therefor by any Holder(s), the Company may include in the registration
statement any other securities of the Company held by such Holder(s) as of the
date of filing of such registration statement, including without limitation,
restricted shares of Common Stock, options, warrants or any other securities
convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to the
Holders of Warrants or Registrable Securities, shall mean in excess of fifty
percent (50%) of the outstanding Warrants or Registrable Securities that (i)
are not held by the Company, an affiliate (excluding Katsock), officer,
creditor, employee or agent thereof or any of their respective affiliates,
members of their family, persons acting as nominees or in conjunction therewith
or (ii) have not been resold to the public pursuant to a registration statement
filed with the Commission under the Act.
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<PAGE>
Section 7.04. "No Action" Letter; Opinion of Counsel. No Holder shall have
registration rights under this Section with respect to any sales proposed by
them of shares as to which sales (i) a "no action" letter is received from the
SEC or its staff confirming the availability of an exemption from the
requirements of the Securities Act or (ii) an unqualified opinion of counsel to
the Company is rendered to the effect that registration of such shares for such
sales is not required, provided that in both cases (i) and (ii) above, the
volume limitations of Rule 144(e) under the Securities Act shall not limit the
amount of shares of Common Stock that the Holders are entitled to offer and sell
without registration under the Securities Act.
Section 7.05. Recall of Prospectuses, etc. With respect to a Registration
Statement or amendment thereto filed pursuant to this Section, if, at any time,
the Company notifies the selling Holder that an amendment or supplement to such
Registration Statement or amendment or the prospectus included therein is
necessary or appropriate, the selling Holder will forthwith cease selling and
distributing shares thereunder and will forthwith redeliver to the Company all
copies of such Registration Statement and prospectuses then in their possession
or under their control.
Section 7.06. Cooperation of Holders. The Company shall be entitled to
require that each selling Holder cooperate with the Company in connection with a
registration of shares of Common Stock pursuant to this Section and furnish such
information, representations, undertakings and agreements regarding such selling
Holder and the distribution as may be reasonably required by the Company or as
required by law in connection therewith.
Section 7.07. Expenses. The Company will bear all the expenses in
connection with any Registration Statement under this Section 7 (including the
fees and expenses of a single counsel to the Holders) other than transfer taxes
payable on the sale of such shares and fees and commissions of brokers, dealers
and underwriters.
Section 7.08. Indemnification. In the event of the registration of any
securities under the Securities Act pursuant to this Section, the Company and
the Holders shall provide to each other customary indemnification to the extent
of any loss, claim, damage, liability or expense arising out of such
registration.
Section 8: Status of the Holder:
Section 8.01. The Holder has such knowledge and experience in financial and
business matters that the Holder is capable of evaluating the merits and risks
of this Convertible Note. The Holder is able to bear the economic risk of this
Note. The Holder has had the opportunity to consult with the Holder's own
attorney, accountant and/or purchaser representative regarding this Note and the
suitability of this transaction, and to the extent necessary, the Holder has
retained, at Holders own expense, and relied upon, appropriate professional
advice regarding this Note, the investment it represents, tax and legal merits,
risks and consequences of this Note and of purchasing and owning the Shares.
Section 8.02. The Holder represents that the Holder is an "Accredited
Investor", as that term is defined below, and that at least one of the
categories set forth in (a) through (h) below applies to the Holder. The Holder
is one or more of the following:
(a) a natural person whose individual net worth, or joint net worth with
that person's spouse, exceeds $1,000,000;
(b) a natural person who had an individual income in excess of $200,000 in
each of the two most recent years or joint income with that persons spouse in
excess of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year.
(c) a bank as defined in Section 3(a)(2) of the Securities Act or a savings
and loan association or other institution as defined in Section 3(a) (5)(A) of
the Securities Act, whether acting in its individual or fiduciary capacity; a
broker or dealer registered pursuant to Section 15 of the Securities Exchange
Page 12 of 14
<PAGE>
Act of 1934; an insurance company as defined in Section 2(13) of the Securities
Act; an investment company registered under the Investment Company Act of 1940
(the "1940 Act") or a business development company as defined in Section
2(a)(48) of the 1940 Act; a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958; or an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974 ("ERISA"), if
the investment decision is made by a plan fiduciary, as defined in Section 3(21)
of ERISA, which fiduciary is either a bank, savings and loan association,
insurance company or registered investment adviser, or if the employee benefit
plan has total assets in excess of $5,000,000 or if a self-directed plan, with
investment decisions made solely by persons that are Accredited Investors (as
listed in categories (a) - (h) herein);
(d) a private business development company as defined in Section 202(a)(22)
of the 1940 Act;
(e) an organization described in Section 501 (c)(3) of the Internal Revenue
Code, a corporation, Massachusetts or similar business trust or a partnership,
with total assets in excess of $5,000,000, and which was not formed for the
specific purpose of engaging in this transaction;
(f) a trust, with total assets in excess of $5,000,000, not formed for the
specific purpose of engaging in this transaction, which is directed by a person
who has such knowledge and experience in financial and business matters that he
is capable of evaluating the merits and risks of this investment; or
(g) a director or executive officer of the Company; or
(h) an entity in which all of the equity owners are Accredited Investors
(as listed in categories (a) - (h)].
Section 9. MISCELLANEOUS.
Section 9.01. Governing Law. This Convertible Note shall be construed in
accordance with the laws of the State of Florida applicable to contracts entered
into and to be performed wholly within said State.
Section 9.02. Successors and Assigns. All the covenants, stipulations,
promises and agreements in the Convertible Notes held by or on behalf of the
Company shall bind its successors and assigns, whether so expressed or not.
Section 9.03 Course of Dealing; No Waiver. No course of dealing between the
Company and the Holder hereof shall operate as a waiver of any right of any
holder hereof and no delay on the part of the Holder in exercising any right
hereunder shall so operate.
Section 9.04. Waiver of Compliance.
(a) Any term, covenant, agreement or condition hereof may be amended, or
compliance therewith may be waived (either generally or in a particular instance
and either retroactively or prospectively), if the Company shall have obtained
the agreement or consent in writing of the Holders of at least 51% in
aggregate principal amount of all outstanding Convertible Notes, but no such
amendment or waiver shall:
(i) change the amount or maturity of any principal on the Convertible Notes
or change the rate or extend the time of payment of interest on the Convertible
Notes or reduce the amount of principal thereof or modify any of the provisions
of the Convertible Notes with respect to the payment or prepayment thereof:
(ii) give to any Convertible Note any preference or priority over any other
Convertible Note; or
Page 13 of 14
<PAGE>
(iii) reduce the percentage of Holders of the Convertible Notes required to
approve any such amendment or effectuate any such waiver.
(b) In determining whether the Holders of the requisite principal amount of
outstanding Convertible Notes have given any authorization, consent or waiver
under this Section 9.04 or under Section 5.02, Convertible Notes owned by the
Company shall be disregarded and deemed not to be outstanding.
Section 9.05. Manner of giving Notices. Any notice required to be given to
the Holder hereof by the Company hereunder shall be given by overnight delivery
with a reputable established courier service and by certified registered mail to
the Holder at its address designated on the register referred to in
Section 1.01 on the date of such notice.
Section 9.06. Expenses in Preparation. All expenses of the Holder in the
negotiation, preparation, execution and delivery of this Convertible Note,
including attorneys' fees shall be paid by the Company.
Section 9.07. Other Provisions. The Company waives demand, presentment,
protest, notice of dishonor and any other form of notice that may be required to
hold the Company liable on this Note.
IN WITNESS WHEREOF, the undersigned has caused this Convertible Note to
be signed in its corporate name by one of its officers thereunto duly
authorized, and to be dated as of the date first written above.
FINANCIALWEB. COM, INC.
By: /s/ James P. Gagel
------------------------
James P. Gagel
Title: Executive Vice President
------------------------
Date: March 30, 1999
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<PAGE>
EXHIBIT 4.23
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD,
OFFERED FOR SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS THEY ARE SO
REGISTERED OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
FINANCIALWEB. COM, INC.
CONVERTIBLE NOTE DUE April 12, 2000
Principal Amount: $250,000.
FINANCIALWEB. COM, INC. a Nevada corporation (the "Company"), for value
received, hereby promises to Adel R. B. Kellel (the "Holder"), or registered
assigns, on April 12, 2000 the principal amount of Two hundred fifty thousand
dollars ($250,000) (or so much thereof as shall not have been prepaid or
surrendered for conversion) in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, at the offices of the Holder located at 72 Windsor
Gate, New Hyde Park, N.Y. 11040 together with simple interest of 9.75% on the
unpaid portion of the principal amount thereof, calculated at the rate of .8125%
monthly.
Section 1. THE NOTES.
Section 1.01. Registration, Transfer and Exchange of Convertible Notes.
The Company shall keep at its principal office a register in which the Company
will provide for registration, transfer and exchange of Convertible Notes.
Subject to compliance with applicable securities laws, the Holder (as defined
below) of any Convertible Note may, at its option and either in person or by
duly authorized attorney, surrender the same at said office for registration of
transfer or exchange, accompanied, if surrendered for transfer, by a written
instrument of transfer duly executed by said Holder or attorney. If any Holder
shall so request transfer or exchange of a Convertible Note held by it the
Company shall, within a reasonable time thereafter, without expense to such
Holder (other than transfer taxes, if any) deliver to or upon its order one or
more Convertible Notes in the same unpaid aggregate principal amount as the
Convertible Note so surrendered, each dated the date to which interest has been
paid on the Convertible Note so surrendered, in the principal amount of $5,000
or any multiple thereof, and registered in such name or names, or payable to
such Person or Persons, or order, as shall be specified by the Holder making
such request. The Company may deem and treat the Holder of any Convertible Note
as the absolute owner of such Convertible Note for the purpose of receiving
payment of or on account of the principal and interest on such Convertible Note
and for the purposes of any notices, waivers or consent thereunder, and payment
of any Convertible Note shall be made only to or upon the order in writing of
such Holder.
Section 1.02. Loss, Theft, Destruction or Convertible Notes. Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of this Convertible Note and, in the case of any such loss, theft
or destruction, upon receipt of indemnity reasonably satisfactory to the
Company, or in the case of any such mutilation, upon surrender and cancellation
of this Convertible Note, the Company will make and deliver, in lieu of such
lost, stolen, destroyed or mutilated Convertible Note, a new Convertible Note of
like tenor and unpaid principal amount and dated as of the date from which
unpaid interest has then accrued on the Convertible Note so lost stolen,
destroyed or mutilated.
Section 2. DEFINITIONS.
Section 2.01. Terms Defined. The terms defined in this Section 2.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Convertible Note shall have the respective
meanings specified in this Section 2.01.
Common Stock: The term "Common Stock" means shares of the Company's
Common Stock, par value $.001 per share.
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Company: The term "Company" means FINANCIALWEB. COM, INC. a Nevada
corporation, and any successor corporation to the Company (including the
corporation surviving any subsequent merger).
Convertible Notes: The term "Convertible Notes" means this note and any
one or more notes created by transfer, succession, partial conversion or partial
prepayment as contemplated by this note.
Current Conversion Price: The term "Current Conversion Price" means the
Conversion Price as most recently adjusted pursuant to Section 6.06.
Default: The term "Default" means an event which with notice or upon the
lapse of time or both would become an Event of Default.
Event of Default: The term "Event of Default" means any event specified
in Section 5.01, continued for the period of time, if any, and after the giving
of notice, if any, therein designated.
Holder: The term "Holder" means the Person in whose name such
Convertible Note is registered in the register maintained by the Company
pursuant to Section 1.01.
Maturity: The term "Maturity" when used with respect to any Convertible
Note means the date of which the principal (and interest of such Convertible
Note becomes due and payable as herein provided, whether at February 11, 2000,
(b) declaration of acceleration or (c) otherwise.
Section 3. CERTAIN COVENANTS.
Section 3.01. Authority; Payment of Convertible Notes. The Company is
dully authorized to issue this Convertible Note and enter into the provisions
contained herein and the Convertible Note and its provisions constitute binding
valid and enforceable obligations of the Company. The Company will duly and
punctually pay or cause to be paid in cash the principal and the interest on
each of the Convertible Notes at the time and place and in the manner provided
herein.
Section 3.02. General Covenants. The Company will:
(a) promptly pay and discharge or cause to be paid and discharged all
lawful taxes, assessments, and governmental charges or levies imposed upon the
Company upon the income of profits of the Company or upon any property, real,
personal or mixed, belonging to the Company or upon any part thereof, before the
same shall become in default, as well as all lawful claims for labor, material
and supplies which, if unpaid, might become a lien or charge upon such
properties or any part thereof except that the Company shall not be required to
pay and discharge or to cause to be paid and discharged any such tax, assessment
charge, levy or claim so long as the validity thereof shall be contested in good
faith by appropriate proceedings and the Company as the case may be, shall set
aside on its books such reserves, if any, as shall be deemed by it adequate with
respect to any such tax, assessment, charge, levy or claim so contested.
(b) do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises, and comply
with all laws applicable to the Company as its counsel may advise; except that
nothing in this subsection (b) shall prevent a liquidation or dissolution of, or
a sale, transfer or disposition of the property and assets of, or a merger or
consolidation of, the Company or any Affiliate not prohibited by the provisions
of Section 3.04; and
(c) at all times maintain, preserve, protect and keep, or cause to be
maintained, preserved, protected and kept, its property used or useful in the
conduct of the business of the Company in good repair, working order and
condition, and from time to time make, or cause to be made, all necessary and
proper repairs, renewals, replacements betterment and improvements thereto, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
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Section 3.03. Notice of Defaults. In the event that any Event of Default
shall have occurred, the Company will promptly give written notice thereof to
each Holder of a Convertible Notes, which in no case will be given later than 10
calendar days after the Event of Default occurs.
Section 3.04. Mergers. etc. Subject to Section 3.02, the Company may not
consolidate with or merge into, or transfer all or substantially all its assets
to, another corporation unless (a) the resulting, surviving or transferee
corporation assumes in writing all the obligations of the Company under the
Convertible Notes and (b) no Event of Default shall have occurred and be
continuing. Upon any consolidation or merger, or any transfer of all or
substantially all the assets of the Company in accordance with this
Section 3.04, the successor corporation formed by such consolidation or with or
into which the Company is merged or to which such transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of the
Company under the Convertible Note with the same effect as if such successor
corporation has been named as the Company herein.
Section 3.05. Notice of Certain Actions In case at any time:
(a) the Company shall declare any dividend upon its shares of capital
stock payable in securities or make any special dividend or other distribution
(other than a cash dividend to the holders of such shares);
(b) the Company shall offer for subscription pro rata to the holders of
its shares of capital stock for any additional securities of any class or other
rights;
(c) there shall be any capital reorganization, or reclassification of
the capital stock of the Company, or consolidation or merger of the Company
with, or sale of all or substantially all its assets to, another corporation or
other entity;
(d) there shall be a voluntary or involuntary dissolution, liquidation
or winding-up of the Company; or
(e) the Company shall enter into an agreement or adopt a plan for the
purpose of effecting a consolidation, merger, or sale of all or substantially
all of its assets: then, in any one or more of said cases, the Company shall
give written notice pursuant to the notice provisions contained in Section
(9.05] hereof, to the registered holder hereof the date on which (a) the books
of the Company shall close or a record shall be taken for such dividend,
distribution or subscription rights, or (b) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up shall take place, as the case may be. Such notice shall also specify
the date as of which the holders of shares of record of capital stock shall
participate in such dividend, distribution or subscription rights, or shall be
entitles to exchange their shares for securities or other property deliverable
upon such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation, or winding-up, as the case may be. Such written notice
shall be given at least 30 days prior to the action in question and not less
than 30 days prior to the record date or the date on which the Company's
transfer books are closed in respect thereto.
Section 4. OPTIONAL PREPAYMENT.
Section 4.01. Optional Prepayments. The Company shall have the
privilege, at any time and from time to time prior to Maturity-of prepaying the
outstanding Convertible Notes, either in whole or in part by payment of the
principal amount of each Convertible Note, or portion thereof to be prepaid, and
accrued interest thereon to the date of such prepayment, without premium or
penalty.
Section 4.02. Notice of Prepayments. The Company will give notice of any
prepayment of the Convertible Notes pursuant to Section 4.01 to each holder
thereof not less than 30 days nor more than 60 days before the date fixed for
such optional prepayment ("Prepayment Date") specifying (i) the Prepayment Date,
(ii) the principal amount of the Holder's Convertible Notes to be prepaid on the
Prepayment Date and (iii) the accrued interest applicable to the prepayment.
Notice of prepayment having been so given, the aggregate principal amount of the
Convertible Notes specified in such notice, together with the premium, if any,
and accrued interest thereon shall become due and payable on the Prepayment
Date.
Section 4.03. Allocation of Prepayments. All partial prepayments
pursuant to Section 4.01 shall be applied on all outstanding Convertible Notes
ratably in accordance with the unpaid principal amounts thereof.
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<PAGE>
Section 5. REMEDIES.
Section 5.01. Events of Default. An "Event of Default" occurs if one or
more of the following shall happen (for any reason whatsoever and whether such
happening shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) if default be made in the punctual payment of the principal on any
of the Convertible Notes when and as the same shall become due and payable,
whether at the fixed maturity of said Convertible Notes or otherwise; or
(b) if default be made in the payment of any installment of interest on
any of the Convertible Notes and such default shall continue for a period of 30
days after notice; or
(c) if default be made in the due observance or performance of any
covenant condition or agreement contained in Section 3.02 to 3.05, both
inclusive, and such default shall have continued for a period of 30 days after
the Holders of a majority of the principal amount of the Convertible Notes then
outstanding shall have given notice to the Company (which notice shall specify
the default, demand that it be remedied and state that the notice is a "Notice
of Default"; or
(d) the Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case, (ii) consents to the entry of an order for
relief against it in any involuntary case, (iii) consents to the appointment of
a Custodian of it or for any substantial part of its property, (iv) makes a
general assignment for the benefit of its creditors; or
(e) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that: (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company or for any substantial part of
its property, (iii) orders the liquidation of the Company; and the order or
decree remains unstayed and in effect for 30 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under
any Bankruptcy Law.
Section 5.02. Acceleration. If an Event of Default (other than an Event
of Default specified in Section 5.01 (d) or (e)) occurs and is continuing then,
at the option of the Holder of this Convertible Note, exercised by written
notice to the Company, the principal of this Convertible Note shall forthwith
become due and payable, together with the interest accrued hereon. If an Event
of Default specified in Section 5.01 (d) or (e) occurs at any time, such an
amount shall jog facto become and be immediately due and payable without any
declaration or other act on the part of the Holder of this Convertible Note.
The provisions of this Section 5.02 are subject, however, to the
condition that if, at any time after any Convertible Note shall have so become
due and payable, the Company shall pay all arrears of interest on the
Convertible Notes and all payments on account of the principal (and accrued
interest on Convertible Notes due and payable by virtue of acceleration) shall
be remedied or waived pursuant to Section 9.04, then, and in every such case,
subject to Section 9.04 (b), the Holder or Holders of at least 66-2/3% in
aggregate principal amount of the Convertible Notes at the time outstanding, by
written notice to the company, may rescind and annul such acceleration and its
consequences; but no such action shall affect any subsequent Default or Event of
Default or impair any right consequent thereon.
Section 5.03. Other Remedies. Subject to the provisions of Section 5.02,
in case any one or more of the Events of Default specified in Section 5.01 shall
have occurred and be continuing, the Holder of this Convertible Note may proceed
to protect and enforce its rights by suit in equity, action at law or by other
appropriate proceedings or both, whether for the specific performance of any
covenant or agreement contained in this Convertible Note or in aid of the
exercise of any power granted in this Convertible Note,
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<PAGE>
or may proceed to enforce the payment of this Convertible Note or to enforce any
other legal or equitable right of the Holder of this Convertible Note.
The remedies of the holder provided herein shall be cumulative and
concurrent, and may be pursued singly, successively, or together at the sole
discretion of the holder, and may be exercised as often as occasion therefor
shall occur, and the failure to exercise any such right or remedy shall in no
event be construed as a waiver or release thereof.
The Company hereby waives and releases all errors, defects and
imperfections in any proceedings instituted by the holder under the terms of
this Convertible Note, as well as all benefit that might accrue to the Company
by virtue of any present or future laws exempting any property, real or
personal, or any part of the proceeds arising from any sale of any such
property, from attachment, levy, or sale under execution, or providing for any
stay of execution, exemption form civil process or extension of time for
payment; and the Company agrees that any real estate that may be levied upon
pursuant to a judgment obtained by virtue hereof, or any writ of execution
issued thereon, may be sold upon any such writ in whole or in part in any
ordered desired by the holder.
The holder shall not be deemed, by any act of omission or commission, to
have waived any of its rights or remedies hereunder unless such waiver is in
writing and signed by the holder, and then only to the extent specifically set
forth in writing. A waiver of one event shall not be construed as continuing or
as a bar to or waiver of any right or remedy to a subsequent event.
Section 5.04. Notice by the Company of Acceleration Other Action by
Convertible Noteholders or Holders of Other Indebtedness. If any Holder of a
Convertible Note shall give any notice to the Company with respect to any Event
of Default (or with respect to any event which with notice or the lapse of time,
or both, would be an Event of Default), or accelerate the maturity thereof or
take any other action in respect of an Event of Default or such event, or if the
holder of any bond, debenture, note or other similar evidence of indebtedness
(other than the Convertible Notes) of, or secured or guaranteed by, the Holder
shall give any notice to the Company in respect of any default thereunder or
under any agreement pursuant to which such bond, debenture, note or other
evidence or indebtedness is issued, the Company shall forthwith give written
notice to all Holders of Convertible Notes, specifying such action and the
nature and status of the Event of Default or event or other default.
Section 5.05. Remedies Cumulative. No remedy herein conferred upon the
Holder of this Convertible Note is intended to be exclusive of any other remedy
and each and every such remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise.
Section 5.06. Enforcement. If there shall be any Default under this
Convertible Note and this Convertible Note shall be placed in the hands of an
attorney for collection, or shall be collected through any court, including any
bankruptcy court, the Company promises to pay to the order of the Holder hereof
such Holder's reasonable attorneys' fees and court costs incurred in collecting
or attempting to collect or securing or attempting to secure this Convertible
Note or enforcing the Holder's rights with respect to any collateral securing
this Convertible Note, to the extent allowed by the laws of the State of Florida
or any state in which any collateral for this Note shall be situated.
Section 6. CONVERSION.
Section 6.01. Right of Conversion, Conversion Price. Subject to and upon
compliance with the provisions of this Section 6, the Holder shall have the
right, at his option, at any time during usual business hours (including the
period between the date on which the Company gives notice of prepayment and the
Prepayment Date) to convert the principal and accrued interest of any
Convertible Note owned by such Holder into fully paid and in nonassessable
shares of Common Stock at the rate of $4.00 for each share of common Stock (the
"Conversion Price") which price per share shall be payable by surrender of such
Convertible Note.
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<PAGE>
(a) As of the date hereof, the authorized and outstanding capital stock
of the Company is 4,973,000 (four million nine hundred seventy three thousand)
shares.
Section 6.02. Manner of Exercise.
(a) In order to exercise the conversion right, the Holder of any
Convertible Note to be converted shall surrender such Convertible Note at the
office of the Company, accompanied by written notice to the Company stating (i)
that the Holder elects to convert such Convertible Note or, if less than the
entire principal amount of a Convertible Note is to be converted, the portion
thereof (a multiple of $1,000) to be converted, and (ii) the name or names
(with addresses) in which the certificate or certificates for shares of Common
Stock issuable on such conversion shall be issued. Convertible Notes surrendered
for conversion shall be accompanied by proper assignment thereof to the Company
or in blank for transfer if the shares are to be issued in a name other than
that of the Holder.
(b) In the case of any Convertible Note which is converted in part only,
upon such conversion die Company shall execute and deliver to the Holder
thereof, at the expense of the Company, a new Convertible Note or Convertible
Notes of authorized denominations in principal amount equal to the unconverted
portions of such Convertible Note.
Section 6.03. Issuance of Shares of Common Stock on Conversion.
(a) As promptly as practicable after the receipt of such notice and the
surrender of such convertible Note as aforesaid, the Company shall issue, at its
expense, and shall deliver to such Holder, or on his written order, at the
aforesaid office of the Company (i) a certificate or certificates for the number
of full shares of Common Stock issuable upon the conversion of such Convertible
Note (or specified portion thereof), and (ii) a certificate or certificates for
any fractional shares of Common Stock issuable upon conversion of such
Convertible Note (or specified portion thereof) or, at the Company's option,
cash in lieu of script for any fraction of a share to which such Holder is
entitled upon conversion as provided in Section 6.05.
(b) Such conversion shall be deemed to have been effected immediately
prior to the close of business on the date ("Conversion Date") on which the
Company shall have received both such notice and the surrendered Convertible
Note as aforesaid, and at such time the rights of the Holder of such Convertible
Note shall cease and the Person or Persons in whose name or names any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record
of the shares represented thereby.
Section 6.04. No Adjustments for Interest or Dividends. No payment or
adjustment shall be made by or on behalf of the Company on account of any
interest accrued on any Convertible Notes surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon such
conversion which were declared for payment to holders of shares of Common Stock
or record as of a date prior to the Conversion Date. All payments of accrued
interest on any Convertible Note shall be made in cash or additional stock at
the Conversion Price, at Company's option.
Section 6.05. Fractional Shares. The Company, at its option, may issue
fractional shares of common Stock upon any conversion of Convertible Notes or,
in lieu of any fraction of a share of Common Stock to which any Holder would
otherwise be entitled upon conversion of any Convertible Notes (or specified
portions thereof), the Company may pay a cash adjustment for such fraction in an
amount equal to same fraction of the conversion price per share.
Section 6.06. Adjustment of Conversion Price. The Conversion Price shall
be adjusted as set forth in this section.
(a) In the event that the Company shall make any distribution of its
assets upon or with respect to its shares of Common Stock, as a liquidating or
partial liquidating dividend, or other than as a dividend payable out of
earnings or any surplus legally available for dividends under the laws of the
state
Page 6 of 14
<PAGE>
of incorporation of the Company, each Holder of any Convertible Note then
outstanding shall, upon the exercise of his right to convert after the record
date for such distribution or, in the absence of a record date, after the date
of such distribution receive, in addition to the shares subscribed for, the
amount of such assets (or, at the option of the Company, a sum equal to the
value thereof at the time of distribution as determined by the Board of
Directors in its sole discretion) which would have been distributed to such
Holder if he had exercised his right to convert immediately prior to the record
date for such distribution or, in the absence of a record date, immediately
prior to the date of such distribution.
(b) In case at any time the Company shall subdivide its outstanding
shares of Common Stock into a greater number of shares, the current Conversion
Price in effect immediately prior to such subdivision shall be proportionately
reduced and conversely, in case the outstanding shares of Common Stock of the
Company shall be combined into a smaller number of shares, the Current
Conversion Price in effect immediately prior to such combination shall be
proportionately increased.
(c) If any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the company with another
corporation, or the sale transfer or lease of all or substantially all of its
assets to another corporation, shall be effected in such a way that holders of
shares of Common Stock shall be entitled to receive shares, securities or assets
with respect to or in exchange for shares of Common Stock, then, as a condition
of such reorganization, reclassification, consolidation, merger or sale, the
Company or such successor or purchasing corporation, as the case may be, shall
execute an amendment to the Convertible Notes providing that the Holder of each
Convertible Note then outstanding shall have the right thereafter and until the
expiration of the period of convertibility to convert such Convertible Note into
the kind and amount of shares, securities or assets receivable upon such
reorganization, reclassification, consolidation, merger or sale by a holder of
the number of shares of Common Stock into which such Convertible Note might have
been converted immediately prior to such reorganization, reclassification,
consolidation, merger or sale, subject to adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Section 6.
(d) Upon such adjustment of the Conversion Price pursuant to the
provisions of this Section 6.06, the number of shares issuable upon conversion
of this Note shall be adjusted to the nearest full amount by multiplying a
number equal to the Conversion Price in effect immediately prior to such
adjustment by the number of shares of Common Stock issuable upon exercise of
this Note immediately prior to such adjustment and dividing the product so
obtained by the adjusted Conversion Price.
Section 6.07. Adjustment of Conversion Price - Share Issuances. If and
whenever on or after the date hereof the Company shall issue any shares of
Common Stock for a consideration per share less than the Conversion Price
(whether pursuant to a direct issuance or any option or warrant to acquire
shares) or issue any security convertible into shares of Common Stock at a
conversion value of less than the Conversion Price, then, forthwith upon such
issue or sale, the Conversion Price shall be reduced as follows:
(a) If the shares issued at such lower price shall have been issued in a
transaction or series of transactions occurring within any 18 month period and
shall have constituted 5% or more of the Company's then outstanding shares
(determined as set forth in (iv below), the Conversion Price shall be reduced to
(i) the lowest prices at which such shares were offered in any one transaction
constituting 5% or more; or (ii) to the lowest weighted average price per share
in any series of transactions constituting 5% or more in which no one
transaction by itself constituted 5%; or
(b) If the shares issued at such lower price shall have been issued
otherwise than for 5% or more of the Company's then outstanding shares as stated
in subsection (a) above, the Conversion Price shall be reduced to a number
determined by multiplying then Conversion Price in effect immediately prior to
such issuance by the following fraction:
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<PAGE>
B
A+ -
C
--------
A+D
wherein:
A = the number of outstanding shares of Common Stock
immediately prior to the subject issuance;
B = the aggregate consideration for the shares then
being issued;
C = the then Conversion Price; and
D = the number of shares then being issued.
The Conversion Price shall be further reduced from time to time thereafter
whenever any Shares are so issued or converted for a lower price than the then
Conversion Price, as adjusted prior to that date. However, no adjustment of the
conversion price shall be made in an amount less than $.02 share, but any such
lesser adjustment shall be carried forward and shall be made at the time and
together with the next subsequent adjustment which together with any adjustments
so carried forward shall amount to $.02 per share or more.
For the purposes of this Section 6.07, the following provisions (i)
through (iii) shall also be applicable:
(i) in case any shares shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount received by the
Company therefor, without deduction therefrom of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the Company in
connection therewith. In case any shares shall be issued for a consideration
other than cash, the amount of the consideration other than cash received by the
Company shall be deemed to be the fair value of such consideration as determined
by the Board of Directors of the Company, without deduction of any expenses
incurred or any underwriting commissions or concessions paid or allowed by the
Company in connection therewith.
(ii) At no time shall the Conversion Price increase.
(iii) As used in this Section 6.07, the number of outstanding shares at
any given time shall be deemed to be the aggregate of the Company's then issued
and outstanding Shares, plus all shares into which the Holder of this
Convertible Note may then convert this Convertible Note pursuant to the terms
hereof plus all Shares which the holders of any then outstanding options,
warrants, convertible preferred stock or other convertible securities and then
or will be entitled to acquire pursuant to their rights under those instruments
(assuming the Conversion Prices and ratios applicable to them at that time,
irrespective of whether such holders have rights to acquire such shares
thereunder immediately or at a later date, and without taking into consideration
any change in the Conversion Price relative to this Convertible Note or any
other instrument which could result from the subject issuance of Shares), but
not including the new shares then being issued by the Company pursuant to which
the aforesaid 5% test shall relate.
Section 6.08. Covenant to Reserve Shares for Conversion. The Company
convenants that it will at all times reserve and keep available out of its
authorized shares of Common Stock, such number of shares of Common Stock as
shall then be deliverable upon the conversion of all outstanding Convertible
Notes. All shares of Common Stock, which shall be deliverable, shall be duly and
validly issued and fully paid and nonassessable.
Section 6.09. Notice of Change of Conversion Price. Whenever the
Conversion Price is adjusted, as herein provided, the Company shall promptly
send to each Holder a certificate of a firm of
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<PAGE>
independent public accountants (who may be the accountants regularly employed by
the Company) selected by the Board of Directors setting forth the Conversion
Price after such adjustment and setting forth a brief statement of the facts
requiring such adjustment Such certificate shall be conclusive evidence of the
correctness of such adjustment.
Section 7. REGISTRATION RIGHTS.
Section 7.01. Piggy-Back. If the Company proposes to file, on its behalf
and/or on behalf of any of its securities holders, a Registration Statement
under the Securities Act of 1933, as amended (the "Securities Act") other than
in connection with a dividend reinvestment employee stock purchase, option or
similar plan or in connection with a merger, consolidation or reorganization,
the Company shall give written notice to each Holder at least 30 days before the
filing with the Securities and Exchange Commission ("SEC") of such Registration
Statement. Each Holder who desires to include any of its shares of Common Stock
into which the Convertible Notes are convertible, whether or not already
converted, (the "Registrable Securities") in such Registration Statement shall
give written notice to the Company within 20 days after the date of receipt of
written notice from the Company. The Company shall thereupon include in such
filing the shares of Common Stock designated by such Holder and, subject to its
right to withdraw such filing, shall use its best efforts to effect registration
under the Securities Act of such shares of Common Stock.
Section 7.02. Conditions. The right of the Holders to have shares
included in any registration Statement in accordance with the provision of this
Section 7 shall be subject to the following conditions:
(a) The Company shall have the right to require that the Holders
participating in such Registration Statement agree to refrain from offering or
selling (other than in a private sale) any shares of Common Stock that they
own which are not included in any such Registration Statement in accordance with
this Section 7 for any time period specified in writing by any managing
underwriter of the offering to which such Registration Statement relates;
(b) If any managing underwriter of the offering to which the
Registration Statement relates informs the Company in writing that the total
number of shares of Common Stock requested by the Holders to be included in the
Registration Statement is sufficiently large to affect the success of such
offering adversely, then the Company will include only the number of shares, if
any, in the Registration Statement that such managing underwriter shall advise
the Company will not so affect the offering, and reductions in the number of
shares of Common Stock owned by the Holders and other persons who have elected
to have shares of Common Stock included in such Registration Statement will be
made proportionately to their respective percentages of ownership of shares to
be included in the Registration Statement; and
(c) The Company shall furnish Holders who have shares included in a
Registration Statement pursuant to this Section 7 with such number of copies of
the prospectus relating to the offering (the "Prospectus") (including any
preliminary prospectus or supplemental or amended prospectus) as such Holder may
reasonably request in order to facilitate the sale and distribution of its
shares.
Section 7.03. Registration Covenants of Company. The Company shall use
its best efforts to prepare and file the Registration Statement or proceed with
the Offering as to which the notice specified herein is given.
(a) The Company shall use its best efforts to file a registration
statement within forty-five (45) days of receipt of any demand therefor, shall
use its best efforts to have any registration statement declared effective at
the earliest possible time, and shall furnish each Holder desiring to sell
Registrable Securities such number of prospectuses as shall reasonably be
requested.
(b) As expeditiously as possible prepare and file with the Commission
any amendments and supplements to the registration statement and the prospectus
included therein.
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<PAGE>
as may be necessary to keep the registration statement effective until the later
of (i) the date when all Registrable Securities registered have been sold, or
(ii) two years from the effective date after registration statement.
(c) The Company shall pay all costs (excluding any underwriting or
selling commissions or other charges of any broker-dealer acting on behalf of
Holder(s), fees and expenses in connection with all registration statements
filed pursuant to Section 7 hereof including, without limitation, the Company's
legal and accounting fees. If the Company shall fail to comply with the
provisions of Section 7.03(a) or (b), the Company shall, in addition to any
other equitable or other relief available to the Holder(s), be liable for any or
all damages due to loss of profit sustained by the Holder(s) requesting
registration of their Registrable Securities.
(d) The Company shall take all necessary action which may be required in
qualifying or registering the Registrable Securities included in the
registration statement for offering and sale under the securities or blue sky
laws of such states as reasonably as requested by the Holder(s), provided that
the Company shall not be obligated to execute or file any general consent to
service of process or to qualify as a foreign corporation to do business under
the laws of any such jurisdiction.
(e) The Company shall indemnify the Holder(s) of the Registrable
Securities to be sold pursuant to any registration statement and each person, if
any, who controls such Holders within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage, expense or
liability (including all expenses reasonably incurred in investigating,
preparing ar defending against any claim whatsoever) to which any of them may be
subject.
(f) The Holder(s) of the Registrable Securities to be sold pursuant to a
registration statement, and their successors and assigns, shall severally, and
not jointly, indemnify the Company, its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act against all loss, claim, damage or expense
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from written
information furnished by or on behalf of such Holders, or their successors or
assigns, for specific inclusion in such a registration statement.
(g) Nothing contained in this Agreement shall be construed as requiring
the Holder(s) to convert their Notes prior to the initial filing of any
registration statement or the effectiveness thereof.
(h) The Company shall furnish to each Holder participating in an
offering including Registrable Securities, pursuant to Sections 7.01 hereof, and
to each underwriter, if any, a signed counterpart, addressed to such Holder or
underwriter, of (i) an opinion of counsel to the Company, dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, an opinion dated the date of the closing under the
underwriting agreement), and (ii) a "cold comfort" letter dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, a letter dated the date of the closing under the
underwriting agreement) signed by the independent public accountants who have
issued a report on the Company's financial statements included in such
registration statement, in each case covering substantially the same matters
with respect to such registration statement (and the prospectus included
therein) and, in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements, as are customarily covered
in opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of
a registration statement relating to any Registrable Securities pursuant to
Section 7.01 hereof, and in any event within fifteen (15) months thereafter,
make "generally available to its security holders" (within the meaning of
Rule 158 under the Act) an earnings statement (which need not be audited)
complying with
Page 10 of 14
<PAGE>
Section 11(a) of the Act and covering a period of at least twelve (12)
consecutive months beginning after the effective date of the registration
statement.
(j) The Company shall deliver promptly to each Holder participating in
an offering including any Registrable Securities pursuant to Sections 7.01
hereof, who so requests, and to the managing underwriter, copies of all
correspondence between the Commission and the Company, its counsel or auditors
and all memoranda relating to discussions with the Commission or its staff with
respect to the registration statement and permit each Holder and underwriter to
do such investigation, upon reasonable advance notice, with respect to
information contained in or omitted from the registration statement as it deems
reasonably necessary to comply with applicable securities laws or rules of the
National Association of Securities Dealers, Inc. ("NASD"). Such investigation
shall include access to books, records and properties and opportunities to
discuss the business of the Company with its officers and independent auditors,
all to such reasonable extent and at such reasonable times and as often as any
such Holder shall reasonably request as it deems necessary to comply with
applicable securities laws and NASD rules.
(k) With respect to a registration pursuant to Section 7.01 hereof, if
requested by the Holders holding a Majority of the Registrable Securities, the
Company may enter into an underwriting agreement with the managing underwriter
selected for such underwriting by Holders holding a Majority of the Registrable
Securities requested to be included in such underwriting. Such managing
underwriter(s) shall be satisfactory to the Company and each Holder and such
agreement shall be satisfactory in form and substance to the Company, each
Holder and such managing underwriters, and shall contain such representations,
warranties and covenants by the Company and such other terms as are customarily
contained in agreements of that type used by the managing underwriter. The
Holders may be parties to any underwriting agreement relating to an underwritten
sale of their Registrable Securities and may, at their option, require that any
or all the representations, warranties and covenants of the Company to or for
the benefit of such Holders. Such Holders shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters except as they may relate to such Holders and their intended
methods of distribution.
(l) Subject to the provisions of Section 7.02(a) or (b), upon the
written request therefor by any Holder(s), the Company may include in the
registration statement any other securities of the Company held by such
Holder(s) as of the date of filing of such registration statement, including
without limitation, restricted shares of Common Stock, options, warrants or any
other securities convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to
the Holders of Warrants or Registrable Securities, shall mean in excess of fifty
percent (50%) of the outstanding Warrants or Registrable Securities that (i) are
not held by the Company, an affiliate (excluding Katsock), officer, creditor,
employee or agent thereof or any of their respective affiliates, members of
their family, persons acting as nominees or in conjunction therewith or (ii)
have not been resold to the public pursuant to a registration statement filed
with the Commission under the Act.
Page 11 of 14
<PAGE>
Section 7.04. "No Action" Letter; Opinion of Counsel. No Holder shall
have registration rights under this Section with respect to any sales proposed
by them of shares as to which sales (i) a "no action" letter is received from
the SEC or its staff confirming the availability of an exemption from the
requirements of the Securities Act or (ii) an unqualified opinion of counsel to
the Company is rendered to the effect that registration of such shares for such
sales is not required; provided that in both cases (i) and (ii) above, the
volume limitations of Rule 144(e) under the Securities Act shall not limit the
amount of shares of Common Stock that the Holders are entitled to offer and sell
without registration under the Securities Act.
Section 7.05. Recall of Prospectuses, etc. With respect to a
Registration Statement or amendment thereto filed pursuant to this Section, if,
at any time, the Company notifies the selling Holder that an amendment or
supplement to such Registration Statement or amendment or the prospectus
included therein is necessary or appropriate, the selling Holder will forthwith
cease selling and distributing shares thereunder and will forthwith redeliver to
the Company all copies of such Registration Statement and prospectuses then in
their possession or under their control.
Section 7.06. Cooperation of Holders. The Company shall be entitled to
require that each selling Holder cooperate with the Company in connection with a
registration of shares of Common Stock pursuant to this Section and furnish such
information, representations, undertakings and agreements regarding such selling
Holder and the distribution as may be reasonably required by the Company or as
required by law in connection therewith.
Section 7.07. Expenses. The Company will bear all the expenses in
connection with any Registration Statement under this Section 7 (including the
fees and expenses of a single counsel to the Holders) other than transfer taxes
payable on the sale of such shares and fees and commissions of brokers, dealers
and underwriters.
Section 7.08. Indemnification. In the event of the registration of any
securities under the Securities Act pursuant to this Section, the Company and
the Holders shall provide to each other customary indemnification to the extent
of any loss, claim, damage, liability or expense arising out of such
registration.
Section 8: Status of the Holder:
Section 8.01. The Holder has such knowledge and experience in financial
and business matters that the Holder is capable of evaluating the merits and
risks of this Convertible Note. The Holder is able to bear the economic risk of
this Note. The Holder has had the opportunity to consult with the Holder's own
attorney, accountant and/or purchaser representative regarding this Note and the
suitability of this transaction, and to the extent necessary, the Holder has
retained, at Holder's own expense, and relied upon, appropriate professional
advice regarding this Note, the investment it represents, tax and legal merits,
risks and consequences of this Note and of purchasing and owning the Shares.
Section 8.02. The Holder represents that the Holder is an "Accredited
Investor", as that term is defined below, and that at least one of the
categories set forth in (a) through (h) below applies to the Holder. The Holder
is one or more of the following:
(a) a natural person whose individual net worth, or joint net worth with
that periods spouse, exceeds $1,000,000;
(b) a natural person who had an individual income m excess of $200,000
in each of the two most recent years or joint income with that person's spouse
in excess of S300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year.
(c) a bank as defined in Section 3(a)(2) of the Securities Act or a
savings and loan association or other institution as defined in Section 3(a)
(5)(A) of the Securities Act; whether acting in its individual or fiduciary
capacity; a broker or dealer registered pursuant to Section 15 of the
Securities Exchange
Page 12 of 14
<PAGE>
Act of 1934; an insurance company as defined in Section 2(13) of the Securities
Act; an investment company registered under the Investment Company Act of 1940
(the "1940 Act") or a business development company as defined in
Section 2(a)(48) of the 1940 Act; a Small Business Investment Company licensed
by the U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958; or an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974
("ERISA"), if the investment decision is made by a plan fiduciary, as defined in
Section 3(21) of ERISA, which fiduciary is either a bank, savings and loan
association, insurance company or registered investment adviser, or if the
employee benefit plan has total assets in excess of $5,000,000 or if a self-
directed plan, with investment decisions made solely by persons that are
Accredited Investors (as listed in categories (a) - (h) herein);
(d) a private business development company as defined in
Section 202(a)(22) of the 1940 Act;
(e) an organization described in Section 501 (c)(3) of the Internal
Revenue Code, a corporation, Massachusetts or similar business trust or a
partnership, with total assets in excess of $5,000,000, and which was not formed
for the specific purpose of engaging in this transaction;
(f) a trust with total assets in excess of $5,000,000, not formed for
the specific purpose of engaging in this transaction, which is directed by a
person who has such knowledge and experience in financial and business matters
that he is capable of evaluating the merits and risks of this investment;
(g) a director or executive officer of the Company; or
(h) an entity in which all of the equity owners are Accredited Investors
[as listed in categories (a) - (h)].
Section 9. MISCELLANEOUS
Section 9.01. Governing Law. This Convertible Note shall be construed in
accordance with the laws of the State of Florida applicable to contracts entered
into and to be performed wholly within said State.
Section 9.02. Successors and Assigns. All the covenants, stipulations,
promises and agreements in the Convertible Notes held by or on behalf of the
Company shall bind its successors and assigns, whether so expressed or not.
Section 9.03. Course of Dealing: No Waiver. No course of dealing between
the Company and the Holder hereof shall operate as a waiver of any right of any
holder hereof and no delay on the part of the Holder in exercising any right
hereunder shall so operate.
Section 9.04. Waiver of Compliance. (a) Any term, covenant, agreement or
condition hereof may be amended, or compliance therewith way be waived (either
generally or in a particular instance and either retroactively or
prospectively), if the Company shall have obtained the agreement or consent in
writing of the Holders of at least 51% in aggregate principal amount of all
outstanding Convertible Notes, but no such amendment or waiver shall:
(i) change the amount or maturity of any principal on the Convertible
Notes or change the rate or extend the time of payment of interest on the
Convertible Notes or reduce the amount of principal thereof or modify any of the
provisions of the Convertible Notes with respect to the payment or prepayment
thereof:
(ii) give to any Convertible Note any preference or priority over any
other Convertible Note; or
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<PAGE>
(iii) reduce the percentage of Holders of the Convertible Notes required
to approve any such amendment or effectuate any such waiver.
(b) In determining whether the Holders of the requisite principal amount
of outstanding Convertible Notes have given any authorization, consent or waiver
under this Section 9.04 or under Section 5.02, Convertible Notes owned by the
Company shall be disregarded and deemed not to be outstanding.
Section 9.05. Manner of giving Notices. Any notice required to be given
to the Holder hereof by the Company hereunder shall be given by overnight
delivery with a reputable established courier service and by certified
registered mail to the Holder at its address designated on the register referred
to in Section 1.01 on the date of such notice.
Section 9.06. Expenses of Preparation. All expenses of the Holder in the
negotiation, preparation, execution and delivery of this Convertible Note,
including attorneys' fees shall be paid by the Company.
Section 9.07. Other Provisions. The Company waives demand, presentment,
protest, notice of dishonor and any other form of notice that may be required to
hold the Company liable on this Note.
IN WITNESS WHEREOF, the undersigned has caused this Convertible Note to
be signed in its corporate name by one of its officers thereunto duly
authorized, and to be dated as of the date first written above.
FINANCIALWEB.COM, INC.
By: /s/ James P. Gagel
------------------------------
James P. Gagel
Title: Executive Vice President
------------------------------
Date: March 30, 1999
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<PAGE>
EXHIBIT 4.24
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD, OFFERED
FOR SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS THEY ARE SO REGISTERED OR
AN EXEMPTIONdogrossoFinancial Printing GroupTHESE SECURITIES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
OR BLUE SKY LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED,
OR HYPOTHECATED UNLESS THEY ARE SO REGISTERED OR AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE.
FINANCIALWEB.COM, INC.
CONVERTIBLE NOTE DUE March 30, 2000
Principal Amount: $250,000.
FINANCIALWEB.COM, INC. a Nevada corporation (the "Company"), for value received,
hereby promises to pay BLUEWATER CONSULTING INC. (the "Holder)", or registered
assigns, on March 30, 2000 the principal amount of TWO HUNDRED FIFTY THOUSAND
DOLLARS ($250,000) (or so much thereof as shall not have been prepaid or
surrendered for conversion) in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, at the offices of the Holder located at 2883 BORMAN
COURT, DAYTONA BEACH, FL. 32124 together with simple interest of 9.75% on the
unpaid portion of the principal amount thereof, calculated at the rate of .8125%
monthly.
Section 1. THE NOTES.
Section 1.01. Registration, Transfer and Exchange of Convertible Notes.
The Company shall keep at its principal office a register in which the Company
will provide for registration, transfer and exchange of Convertible Notes.
Subject to compliance with applicable securities laws, the Holder (as defined
below) of any Convertible Note may, at its option and either in person or by
duly authorized attorney, surrender the same at said office for registration of
transfer or exchange, accompanied, if surrendered for transfer, by a written
instrument of transfer duly executed by said Holder or attorney. If any Holder
shall so request transfer or exchange of a Convertible Note held by it, the
Company shall, within a reasonable time thereafter, without expense to such
Holder (other than transfer taxes, if any) deliver to or upon its order one or
more Convertible Notes in the same unpaid aggregate principal amount as the
Convertible Note so surrendered, each dated the date to which interest has been
paid on the Convertible Note so surrendered, in the principal amount of $5,000
or any multiple thereof, and registered in such name or names, or payable to
such Person or Persons, or order, as shall be specified by the Holder making
such request. The Company may deem and treat the Holder of any Convertible Note
as the absolute owner of such Convertible Note for the purpose of receiving
payment of or on account of the principal and interest on such Convertible Note
and for the purposes of any notices, waivers or consent thereunder, and payment
of any Convertible Note shall be made only to or upon the order in writing of
such Holder.
Section 1.02. Loss, Theft, Destruction or Convertible Notes. Upon receipt
of evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Convertible Note and, in the case of any such loss, theft or
destruction, upon receipt of indemnity reasonably satisfactory to the Company,
or in the case of any such mutilation, upon surrender and cancellation of this
Convertible Note, the Company will make and deliver, in lieu of such lost,
stolen, destroyed or mutilated Convertible Note, a new Convertible Note of like
tenor and unpaid principal amount and dated as of the date from which unpaid
interest has then accrued on the Convertible Note so lost, stolen, destroyed or
mutilated.
Section 2. DEFINITIONS.
Section 2.01. Terms Defined. The terms defined in this Section 2.01
(except as herein otherwise expressly provided or unless the context otherwise
requires for all purposes of this Convertible Note shall have the respective
meanings specified in this Section 2.01.
Common Stock: The term "Common Stock" means shares of the Company's
Common Stock, par value $.001 per share.
Page 1 of 14
<PAGE>
Company: The term "Company" means FINANCIALWEB. COM, INC. a Nevada
corporation, and any successor corporation to the Company (including the
corporation surviving any subsequent merger).
Convertible Notes: The term "Convertible Notes" means this note and
any one or more notes created by transfer, succession, partial conversion or
partial prepayment as contemplated by this note.
Current Conversion Price: The term "Current Conversion Price" means
the Conversion Price as most recently adjusted pursuant to Section 6.06.
Default: The term "Default" means an event which with notice or upon
the lapse of time or both would become an Event of Default.
Event of Default: The term "Event of Default" means any event
specified in Section 5.01, continued for the period of time, if any, and after
the giving of notice, if any, therein designated.
Holder: The term "Holder" means the Person in whose name such
Convertible Note is registered in the register maintained by the Company
pursuant to Section 1.01.
Maturity: The term "Maturity" when used with respect to any
Convertible Note means the date of which the principal (and interest,) of such
Convertible Note becomes due and payable as herein provided, whether at February
11, 2000, (b) declaration of acceleration or (c) otherwise.
Section 3. CERTAIN COVENANTS.
Section 3.01. Authority; Payment of Convertible Notes. The Company is
dully authorized to issue this Convertible Note and enter into the provisions
contained herein and the Convertible Note and its provisions constitute binding
valid and enforceable obligations of the Company. The Company will duly and
punctually pay or cause to be paid in cash the principal and the interest on
each of the Convertible Notes at the time and place and in the manner provided
herein.
Section 3.02. General Covenants. The Company will:
(a) promptly pay and discharge or cause to be paid and discharged all
lawful taxes, assessments, and governmental charges or levies imposed
upon the Company upon the income of profits of the Company or upon any
property, real, personal or mixed, belonging to the Company or upon
any part thereof, before the same shall become in default, as well as
all lawful claims for labor, material and supplies which, if unpaid,
might become a lien or charge upon such properties or any part
thereof, except that the Company shall not be required to pay and
discharge or to cause to be paid and discharged any such tax,
assessment, charge, levy or claim so long as the validity thereof
shall be contested in good faith by appropriate proceedings and the
Company as the case may be, shall set aside on its books such
reserves, if any, as shall be deemed by it adequate with respect to
any such tax, assessment, charge, levy or claim so contested.
(b) do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises,
and comply with all laws applicable to the Company as its counsel may
advise; except that nothing in this subsection (b) shall prevent a
liquidation or dissolution of, or a sale, transfer or disposition of
the property and assets of, or a merger or consolidation of, the
Company or any Affiliate not prohibited by the provisions of
Section 3.04; and
(c) at all times maintain, preserve, protect and keep, or cause to be
maintained, preserved, protected and kept, its property used or useful
in the conduct of the business of the Company in good repair, working
order and condition, and from time to time make, or cause to be made,
all necessary and proper repairs, renewals, replacements betterment
and improvements thereto, so that the business carried on in
connection therewith may be properly and advantageously conducted at
all times.
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<PAGE>
Section 3.03. Notice of Defaults. In the event that any Event of
Default shall have occurred, the Company will promptly give written notice
thereof to each Holder of a Convertible Notes, which in no case will be given
later than 10 calendar days after the Event of Default occurs.
Section 3.04. Mergers, etc. Subject to Section 3.02, the Company may
not consolidate with or merge into, or transfer all or substantially all its
assets to, another corporation unless (a) the resulting, surviving or
transferee corporation assumes in writing all the obligations of the Company
under the Convertible Notes and (b) no Event of Default shall have occurred
and be continuing. Upon any consolidation or merger, or any transfer of all
or substantially all the assets of the Company in accordance with this
Section 3.04, the successor corporation formed by such consolidation or with or
into which the Company is merged or to which such transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under the Convertible Note with the same effect as if such successor
corporation has been named as the Company herein.
Section 3.05. Notice of Certain Actions. In case at any time:
(a) the Company shall declare any dividend upon its shares of capital
stock payable in securities or make any special dividend or other
distribution (other than a cash dividend to the holders of such
shares);
(b) the Company shall offer for subscription pro rata to the holders of
its shares of capital stock for any additional securities of any class
or other rights;
(c) there shall be any capital reorganization, or reclassification of the
capital stock of the Company, or consolidation or merger of the
Company with, or sale of all or substantially all its assets to,
another corporation or other entity;
(d) there shall be a voluntary or involuntary dissolution, liquidation or
winding-up of the Company; or
(e) the Company shall enter into an agreement or adopt a plan for the
purpose of effecting a consolidation, merger, or sale of all or
substantially all of its assets: then, in any one or more of said
cases, the Company shall give written notice pursuant to the notice
provisions contained in Section [9.05] hereof, to the registered
holder hereof, of the date on which (a) the books of the Company shall
close or a record shall be taken for such dividend, distribution or
subscription rights, or (b) such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding-up
shall take place, as the case may be. Such notice shall also specify
the date as of which the holders of shares of record of capital stock
shall participate in such dividend, distribution or subscription
rights, or shall be entitles to exchange their shares for securities
or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding-up, as the case may be. Such written notice
shall be given at least 30 days prior to the action in question and
not less than 30 days prior to the record date or the date on which
the Company's transfer books are closed in respect thereto.
Section 4. OPTIONAL PREPAYMENTS.
Section 4.01. Optional Prepayments. The Company shall have the privilege,
at any time and from time to time prior to Maturity of prepaying the outstanding
Convertible Notes, either in whole or in part by payment of the principal amount
of each Convertible Note, or portion thereof to be prepaid, and accrued interest
thereon to the date of such prepayment, without premium or penalty.
Section 4.02. Notice of Prepayments. The Company will give notice of any
prepayment of the Convertible Notes pursuant to Section 4.01 to each holder
thereof not less than 30 days nor more than 60 days before the date fixed for
such optional prepayment ("Prepayment Date") specifying (I) the Prepayment Date,
(ii) the principal amount of the Holder's Convertible Notes to be prepaid on the
Prepayment Date and (iii) the accrued interest applicable to the prepayment.
Notice of prepayment having been so given, the aggregate principal amount of the
Convertible Notes specified in such notice, together
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<PAGE>
with the premium, if any, and accrued interest thereon shall become due and
payable on the Prepayment Date.
Section 4.03 Allocation of Prepayments. All partial prepayments pursuant
to Section 4.01 shall be applied on all outstanding Convertible Notes ratably in
accordance with the unpaid principal amounts thereof.
Section 5. REMEDIES.
Section 5.01 Events of Default. An "Event of Default" occurs if one
or more of the following shall happen (for any reason whatsoever and whether
such happening shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) if default be made in the punctual payment of the principal on any of
the Convertible Notes when and as the same shall become due and
payable, whether at the fixed maturity of said Convertible Notes or
otherwise; or
(b) if default be made in the payment of any installment of interest on
any of the Convertible Notes and such default shall continue for a
period of 30 days after notice; or
(c) if default be made in the due observance or performance of any
covenant, condition or agreement contained in Section 3.02 to 3.05,
both inclusive, and such default shall have continued for a period of
30 days after the Holders of a majority of the principal amount of the
Convertible Notes then outstanding shall have given notice to the
Company (which notice shall specify the default, demand that it be
remedied and state that the notice is a "Notice of Default"); or
(d) the Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case, (ii) consents to the entry of an order
for relief against it in any involuntary case, (iii) consents to the
appointment of a Custodian of it or for any substantial part of its
property, (iv) makes a general assignment for the benefit of its
creditors; or
(e) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that: (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company or for any
substantial part of its property, (iii) orders the liquidation of the
Company; and the order or decree remains unstayed and in effect for
30 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under
any Bankruptcy Law.
Section 5.02. Acceleration. If an Event of Default (other than an Event
of Default specified in Section 5.01 (d) or (e)) occurs and is continuing then,
at the option of the Holder of this Convertible Note, exercised by written
notice to the Company, the principal of this Convertible Note shall forthwith
become due and payable, together with the interest accrued hereon. If an Event
of Default specified in Section 5.01 (d) or (e) occurs at any time, such an
amount shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Holder of this Convertible Note.
The provisions of this Section 5.02 are subject, however, to the condition
that if, at any time after any Convertible Note shall have so become due and
payable, the Company shall pay all arrears of interest on the Convertible Notes
and all payments on account of the principal (and accrued interest on
Convertible Notes due and payable by virtue of acceleration) shall be remedied
or waived pursuant to Section 9.04, then, and in every such case, subject to
Section 9.04 (b), the Holder or Holders of at least 66-2/3% in aggregate
principal amount of the Convertible Notes at the time outstanding, by written
notice to the company, may rescind and annul such acceleration and its
consequences; but no such action shall affect any subsequent Default or Event of
Default or impair any right consequent thereon.
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<PAGE>
Section 5.03. Other Remedies. Subject to the provisions of Section 5.02,
in case any one or more of the Events of Default specified in Section 5.01 shall
have occurred and be continuing, the Holder of this Convertible Note may proceed
to protect and enforce its rights by suit in equity, action at law or by other
appropriate proceedings or both, whether for the specific performance of any
covenant or agreement contained in this Convertible Note or in aid of the
exercise of any power granted in this Convertible Note, or may proceed to
enforce the payment of this Convertible Note or to enforce any other legal or
equitable right of the Holder of this Convertible Note.
The remedies of the holder provided herein shall be cumulative and
concurrent, and may be pursued singly, successively, or together at the sole
discretion of the holder, and may be exercised as often as occasion therefor
shall occur; and the failure to exercise any such right or remedy shall in no
event be construed as a waiver or release thereof.
The Company hereby waives and releases all errors, defects and
imperfections in any proceedings instituted by the holder under the terms of
this Convertible Note, as well as all benefit that might accrue to the Company
by virtue of any present or future laws exempting any property, real or
personal, or any part of the proceeds arising from any sale of any such
property, from attachment, levy, or sale under execution, or providing for any
stay of execution, exemption form civil process or extension of time for
payment; and the Company agrees that any real estate that may be levied upon
pursuant to a judgment obtained by virtue hereof, or any writ of execution
issued thereon, may be sold upon any such writ in whole or in part in any
ordered desired by the holder.
The holder shall not be deemed, by any act of omission or commission, to
have waived any of its rights or remedies hereunder unless such waiver is in
writing and signed by the holder, and then only to the extent specifically set
forth in writing. A waiver of one event shall not be construed as continuing or
as a bar to or waiver of any right or remedy to a subsequent event.
Section 5.04. Notice by the Company of Acceleration or Other Action by
Convertible Noteholders or Holders of Other Indebtedness. If any Holder of a
Convertible Note shall give any notice to the Company with respect to any Event
of Default (or with respect to any event which with notice or the lapse of time,
or both, would be an Event of Default), or accelerate the maturity thereof or
take any other action in respect of an Event of Default or such event, or if the
holder of any bond, debenture, note or other similar evidence of indebtedness
(other than the Convertible Notes) of, or secured or guaranteed by, the Holder
shall give any notice to the Company in respect of any default thereunder or
under any agreement pursuant to which such bond, debenture, note or other
evidence or indebtedness is issued, the Company shall forthwith give written
notice to all Holders of Convertible Notes, specifying such action and the
nature and status of the Event of Default or event or other default.
Section 5.05. Remedies Cumulative. No remedy herein conferred upon the
Holder of this Convertible Note is intended to be exclusive of any other remedy
and each and every such remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise.
Section 5.06. Enforcement. If there shall be any Default under this
Convertible Note and this Convertible Note shall be placed in the hands of an
attorney for collection, or shall be collected through any court, including any
bankruptcy court, the Company promises to pay to the order of the Holder hereof
such Holder's reasonable attorneys' fees and court costs incurred in collecting
or attempting to collect or securing or attempting to secure this Convertible
Note or enforcing the Holder's rights with respect to any collateral securing
this Convertible Note, to the extent allowed by the laws of the State of Florida
or any state in which any collateral for this Note shall be situated.
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<PAGE>
Section 6. CONVERSION.
Section 6.01. Right of Conversion, Conversion Price. Subject to and upon
compliance with the provisions of this Section 6, the Holder shall have the
right, at his option, at any time during usual business hours (including the
period between the date on which the Company gives notice of prepayment and the
Prepayment Date) to convert the principal and accrued interest of any
Convertible Note owned by such Holder into fully paid and in nonassessable
shares of Common Stock at the rate of $4.00 for each share of common Stock (the
"Conversion Price") which price per share shall be payable by surrender of such
Convertible Note.
(a) As of the date hereof, the authorized and outstanding capital stock of
the Company is 4,973,000 (four million nine hundred seventy three
thousand) shares.
Section 6.02. Manner of Exercise.
(a) In order to exercise the conversion right, the Holder of any
Convertible Note to be converted shall surrender such Convertible Note
at the office of the Company, accompanied by written notice to the
Company stating (i) that the Holder elects to convert such Convertible
Note or, if less than the entire principal amount of a Convertible
Note is to be converted, the portion thereof (a multiple of $1,000) to
be converted, and (ii) the name or names (with addresses) in which the
certificate or certificates for shares of Common Stock issuable on
such conversion shall be issued. Convertible Notes surrendered for
conversion shall be accompanied by proper assignment thereof to the
Company or in blank for transfer if the shares are to be issued in a
name other than that of the Holder.
(b) In the case of any Convertible Note which is converted in part only,
upon such conversion the Company shall execute and deliver to the
Holder thereof, at the expense of the Company, a new Convertible Note
or Convertible Notes of authorized denominations in principal amount
equal to the unconverted portions of such Convertible Note.
Section 6.03. Issuance of Shares of Common Stock on Conversion.
(a) As promptly as practicable after the receipt of such notice and the
surrender of such convertible Note as aforesaid, the Company shall
issue, at its expense, and shall deliver to such Holder, or on his
written order, at the aforesaid office of the Company (i) a
certificate or certificates for the number of full shares of Common
Stock issuable upon the conversion of such Convertible Note (or
specified portion thereof), and (ii) a certificate or certificates for
any fractional shares of Common Stock issuable upon conversion of such
Convertible Note (or specified portion thereof) or, at the Company's
option, cash in lieu of script for any fraction of a share to which
such Holder is entitled upon conversion as provided in Section 6.05.
(b) Such conversion shall be deemed to have been effected immediately
prior to the close of business on the date ("Conversion Date") on
which the Company shall have received both such notice and the
surrendered Convertible Note as aforesaid, and at such time the rights
of the Holder of such Convertible Note shall cease and the Person or
Persons in whose name or names any certificate or certificates for
shares of Common Stock shall be issuable upon such conversion shall be
deemed to have become the holder or holders of record of the shares
represented thereby.
Section 6.04 No Adjustments for Interest or Dividends. No payment or
adjustment shall be made by or on behalf of the Company on account of any
interest accrued on any Convertible Notes surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon such
conversion which were declared for payment to holders of shares of Common Stock
or record as of a date prior to the Conversion Date. All payments of accrued
interest on any Convertible Note shall be made in cash or additional stock at
the Conversion Price, at Company's option.
Section 6.05. Fractional Shares. The Company, at its option, may issue
fractional shares of common Stock upon any conversion of Convertible Notes or,
in lieu of any fraction of a share of Common
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Stock to which any Holder would otherwise be entitled upon conversion of any
Convertible Notes (or specified portions thereof), the Company may pay a cash
adjustment for such fraction in an amount equal to same fraction of the
conversion price per share.
Section 6.06 Adjustment of Conversion Price. The Conversion Price shall
be adjusted as set forth in this section.
(a) In the event that the Company shall make any distribution of its
assets upon or with respect to its shares of Common Stock, as a
liquidating or partial liquidating dividend, or other than as a
dividend payable out of earnings or any surplus legally available for
dividends under the laws of the state of incorporation of the Company,
each Holder of any Convertible Note then outstanding shall, upon the
exercise of his right to convert after the record date for such
distribution or, in the absence of a record date, after the date of
such distribution receive, in addition to the shares subscribed for,
the amount of such assets (or, at the option of the Company, a sum
equal to the value thereof at the time of distribution as determined
by the Board of Directors in its sole discretion) which would have
been distributed to such Holder if he had exercised his right to
convert immediately prior to the record date for such distribution or,
in the absence of a record date, immediately prior to the date of such
distribution.
(b) In case at any time the Company shall subdivide its outstanding shares
of Common Stock into a greater number of shares, the current
Conversion Price in effect immediately prior to such subdivision shall
be proportionately reduced and conversely, in case the outstanding
shares of Common Stock of the Company shall be combined into a smaller
number of shares, the Current Conversion Price in effect immediately
prior to such combination shall be proportionately increased.
(c) If any capital reorganization or reclassification of the capital stock
of the Company, or consolidation or merger of the company with another
corporation, or the sale transfer or lease of all or substantially all
of its assets to another corporation, shall be effected in such a way
that holders of shares of Common Stock shall be entitled to receive
shares, securities or assets with respect to or in exchange for shares
of Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, the Company or such
successor or purchasing corporation, as the case may be, shall execute
an amendment to the Convertible Notes providing that the Holder of
each Convertible Note then outstanding shall have the right thereafter
and until the expiration of the period of convertibility to convert
such Convertible Note into the kind and amount of shares, securities
or assets receivable upon such reorganization, reclassification,
consolidation, merger or sale by a holder of the number of shares of
Common Stock into which such Convertible Note might have been
converted immediately prior to such reorganization, reclassification,
consolidation, merger or sale, subject to adjustments which shall be
as nearly equivalent as may be practicable to the adjustments provided
for in this Section 6.
(d) Upon such adjustment of the Conversion Price pursuant to the
provisions of this Section 6.06, the number of shares issuable upon
conversion of this Note shall be adjusted to the nearest full amount
by multiplying a number equal to the Conversion Price in effect
immediately prior to such adjustment by the number of shares of Common
Stock issuable upon exercise of this Note immediately prior to such
adjustment and dividing the product so obtained by the adjusted
Conversion Price.
Section 6.07 Adjustment of Conversion Price Share Issuances. If and
whenever on or after the date hereof the Company shall issue any shares of
Common Stock for a consideration per share less than the Conversion Price
(whether pursuant to a direct issuance or any option or warrant to acquire
shares) or issue any security convertible into shares of Common Stock at a
conversion value of less than the Conversion Price, then, forthwith upon such
issue or sale, the Conversion Price shall be reduced as follows:
(a) If the shares issued at such lower price shall have been issued in a
transaction or series of transactions occurring within any 18 month
period and shall have constituted 5% or more of the Company's then
outstanding shares (determined as set forth in (iv below), the
Conversion Price shall be reduced to (i) the lowest prices at which
such shares were offered in any one transaction constituting 5% or
more; or (ii) to the lowest weighted average price per share in any
series of transactions constituting 5% or more in which no one
transaction by itself constituted 5%; or
Page 7 of 14
<PAGE>
(b) If the shares issued at such lower price shall have been issued
otherwise than for 5% or more of the Company's then outstanding shares
as stated in subsection (a) above, the Conversion Price shall be
reduced to a number determined by multiplying then Conversion Price in
effect immediately prior to such issuance by the following fraction:
B
A+ -
C
---------
A+D
wherein:
A = the number of outstanding shares of Common Stock immediately
prior to the subject issuance;
B = the aggregate consideration for the shares then being
issued;
C = the then Conversion Price; and
D = the number of shares then being issued.
The Conversion Price shall be further reduced from time to time thereafter
whenever any Shares are so issued or converted for a lower price than the then
Conversion Price, as adjusted prior to that date. However, no adjustment of the
conversion price shall be made in an amount less than $.02 share, but any such
lesser adjustment shall be carried forward and shall be made at the time and
together with the next subsequent adjustment which together with any adjustments
so carried forward shall amount to $.02 per share or more.
For the purposes of this Section 6.07, the following provisions (i) through
(iii) shall also be applicable:
(i) in case any shares shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount
received by the Company therefor, without deduction therefrom of any
expenses incurred or any underwriting commissions or concessions paid
or allowed by the Company in connection therewith. In case any shares
shall be issued for a consideration other than cash, the amount of
the consideration other than cash received by the Company shall be
deemed to be the fair value of such consideration as determined by
the Board of Directors of the Company, without deduction of any
expenses incurred or any underwriting commissions or concessions paid
or allowed by the Company in connection therewith.
(ii) At no time shall the Conversion Price increase.
(iii) As used in this Section 6.07, the number of outstanding shares at any
given time shall be deemed to be the aggregate of the Company's then
issued and outstanding Shares, plus all shares into which the Holder
of this Convertible Note may then convert this Convertible Note
pursuant to the terms hereof, plus all Shares which the holders of
any then outstanding options, warrants, convertible preferred stock
or other convertible securities and then or will be entitled to
acquire pursuant to their rights under those instruments (assuming
the Conversion Prices and ratios applicable to them at that time,
irrespective of whether such holders have rights to acquire such
shares thereunder immediately or at a later date, and without taking
into consideration any change in the Conversion Price relative to
this Convertible Note or any other instrument which could result from
the subject issuance of Shares), but not including the new shares
then being issued by the Company pursuant to which the aforesaid 5%
test shall relate.
Section 6.08. Covenant to Reserve Shares for Conversion. The Company
convenants that it will at all times reserve and keep available out of its
authorized shares of Common Stock, such number of shares of Common Stock as
shall then be deliverable upon the conversion of all outstanding Convertible
Page 8 of 14
<PAGE>
Notes. All shares of Common Stock, which shall be deliverable, shall be duly
and validly issued and fully paid and nonassessable.
Section 6.09. Notice of Change of Conversion Price. Whenever the
Conversion Price is adjusted, as herein provided, the Company shall promptly
send to each Holder a certificate of a firm of independent public accountants
(who may be the accountants regularly employed by the Company) selected by the
Board of Directors setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment. Such
certificate shall be conclusive evidence of the correctness of such adjustment.
Section 7. REGISTRATION RIGHTS.
Section 7.01. Piggy-Back. If the Company proposes to file, on its behalf
and/or on behalf of any of its securities holders, a Registration Statement
under the Securities Act of 1933, as amended (the "Securities Act") other than
in connection with a dividend reinvestment, employee stock purchase, option or
similar plan or in connection with a merger, consolidation or reorganization,
the Company shall give written notice to each Holder at least 30 days before the
filing with the Securities and Exchange Commission ("SEC") of such Registration
Statement. Each Holder who desires to include any of its shares of Common Stock
into which the Convertible Notes are convertible, whether or not already
converted, (the "Registrable Securities") in such Registration Statement shall
give written notice to the Company within 20 days after the date of receipt of
written notice from the Company. The Company shall thereupon include in such
filing the shares of Common Stock designated by such Holder and, subject to its
right to withdraw such filing, shall use its best efforts to effect registration
under the Securities Act of such shares of Common Stock.
Section 7.02. Conditions. The right of the Holders to have shares included
in any registration Statement in accordance with the provision of this Section 7
shall be subject to the following conditions:
(a) The Company shall have the right to require that the Holders
participating in such Registration Statement agree to refrain from
offering or selling (other than in a private sale) any shares of
Common Stock that they own which are not included in any such
Registration Statement in accordance with this Section 7 for any time
period specified in writing by any managing underwriter of the
offering to which such Registration Statement relates;
(b) If any managing underwriter of the offering to which the Registration
Statement relates informs the Company in writing that the total number
of shares of Common Stock requested by the Holders to be included in
the Registration Statement is sufficiently large to affect the success
of such offering adversely, then the Company will include only the
number of shares, if any, in the Registration Statement that such
managing underwriter shall advise the Company will not so affect the
offering, and reductions in the number of shares of Common Stock owned
by the Holders and other persons who have elected to have shares of
Common Stock included in such Registration Statement will be made
proportionately to their respective percentages of ownership of shares
to be included in the Registration Statement; and
(c) The Company shall furnish Holders who have shares included in a
Registration Statement pursuant to this Section 7 with such number of
copies of the prospectus relating to the offering (the "Prospectus")
(including any preliminary prospectus or supplemental or amended
prospectus) as such Holder may reasonably request in order to
facilitate the sale and distribution of its shares.
Section 7.03. Registration Covenants of Company. The Company shall use
its best efforts to prepare and file the Registration Statement or proceed with
the Offering as to which the notice specified herein is given.
(a) The Company shall use its best efforts to file a registration
statement within forty-five (45) days of receipt of any demand
therefor, shall use its best efforts to have any registration
statement declared effective at the earliest possible time, and shall
furnish each Holder desiring to sell Registrable Securities such
number of prospectuses as shall reasonably be requested.
Page 9 of 14
<PAGE>
(b) As expeditiously as possible prepare and file with the Commission any
amendments and supplements to the registration statement and the
prospectus included therein. as may be necessary to keep the
registration statement effective until the later of (i) the date when
all Registrable Securities registered have been sold, or (ii) two
years from the effective date of the registration statement.
(c) The Company shall pay all costs (excluding any underwriting or selling
commissions or other charges of any broker-dealer acting on behalf of
Holder(s), fees and expenses in connection with all registration
statements filed pursuant to Section 7 hereof including, without
limitation, the Company's legal and accounting fees. If the Company
shall fail to comply with the provisions of Section 7.03(a) or (b),
the Company shall, in addition to any other equitable or other relief
available to the Holder(s), be liable for any or all damages due to
loss of profit sustained by the Holder(s) requesting registration of
their Registrable Securities.
(d) The Company shall take all necessary action which may be required in
qualifying or registering the Registrable Securities included in the
registration statement for offering and sale under the securities or
blue sky laws of such states as reasonably as requested by the
Holder(s), provided that the Company shall not be obligated to execute
or file any general consent to service of process or to qualify as a
foreign corporation to do business under the laws of any such
jurisdiction.
(e) The Company shall indemnify the Holder(s) of the Registrable
Securities to be sold pursuant to any registration statement and each
person, if any, who controls such Holders within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, against
all loss, claim, damage, expense or liability (including all expenses
reasonably incurred in investigating, preparing or defending against
any claim whatsoever) to which any of them may be subject.
(f) The Holder(s) of the Registrable Securities to be sold pursuant to a
registration statement, and their successors and assigns, shall
severally, and not jointly, indemnify the Company, its officers and
directors and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
against all loss, claim, damage or expense or liability (including all
expenses reasonably incurred in investigating, preparing or defending
against any claim whatsoever) to which they may become subject under
the Act, the Exchange Act or otherwise, arising from written
information furnished by or on behalf of such Holders, or their
successors or assigns, for specific inclusion in such a registration
statement.
(g) Nothing contained in this Agreement shall be construed as requiring
the Holder(s) to convert their Notes prior to the initial filing of
any registration statement or the effectiveness thereof.
(h) The Company shall furnish to each Holder participating in an offering
including Registrable Securities, pursuant to Sections 7.01 hereof,
and to each underwriter, if any, a signed counterpart, addressed to
such Holder or underwriter, of (i) an opinion of counsel to the
Company, dated the effective date of such registration statement (and,
if such registration includes an underwritten public offering, an
opinion dated the date of the closing under the underwriting
agreement), and (ii) a "cold comfort" letter dated the effective date
of such registration statement (and, if such registration includes an
underwritten public offering, a letter dated the date of the closing
under the underwriting agreement) signed by the independent public
accountants who have issued a report on the Company's financial
statements included in such registration statement, in each case
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in
the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to underwriters in underwritten public
offerings of securities.
(i) The Company shall as soon as practicable after the effective date of a
registration statement relating to any Registrable Securities pursuant
to Section 7.01 hereof, and in any event within
Page 10 of 14
<PAGE>
fifteen (15) months thereafter, make "generally available to its
security holders" (within the meaning of Rule 158 under the Act) an
earnings statement (which need not be audited) complying with
Section 11(a) of the Act and covering a period of at least twelve (12)
consecutive months beginning after the effective date of the
registration statement.
(j) The Company shall deliver promptly to each Holder participating
in an offering including any Registrable Securities pursuant to
Sections 7.01 hereof, who so requests, and to the managing
underwriter, copies of all correspondence between the Commission and
the Company, its counsel or auditors and all memoranda relating to
discussions with the Commission or its staff with respect to the
registration statement and permit each Holder and underwriter to do
such investigation, upon reasonable advance notice, with respect to
information contained in or omitted from the registration statement as
it deems reasonably necessary to comply with applicable securities
laws or rules of the National Association of Securities Dealers, Inc.
("NASD"). Such investigation shall include access to books, records
and properties and opportunities to discuss the business of the
Company with its officers and independent auditors, all to such
reasonable extent and at such reasonable times and as often as any
such Holder shall reasonably request as it deems necessary to comply
with applicable securities laws and NASD rules.
(k) With respect to a registration pursuant to Section 7.01 hereof, if
requested by the Holders holding a Majority of the Registrable
Securities, the Company may enter into an underwriting agreement with
the managing underwriter selected for such underwriting by Holders
holding a Majority of the Registrable Securities requested to be
included in such underwriting. Such managing underwriter(s) shall be
satisfactory to the Company and each Holder and such agreement shall
be satisfactory in form and substance to the Company, each Holder and
such managing underwriters, and shall contain such representations,
warranties and covenants by the Company and such other terms as are
customarily contained in agreements of that type used by the managing
underwriter. The Holders may be parties to any underwriting agreement
relating to an underwritten sale of their Registrable Securities and
may, at their option, require that any or all the representations,
warranties and covenants of the Company to or for the benefit of such
Holders. Such Holders shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters except as they may relate to such Holders and their
intended methods of distribution.
(l) Subject to the provisions of Section 7.02(a) or (b), upon the written
request therefor by any Holder(s), the Company may include in the
registration statement any other securities of the Company held by
such Holder(s) as of the date of filing of such registration
statement, including without limitation, restricted shares of Common
Stock, options, warrants or any other securities convertible into
shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to
the Holders of Warrants or Registrable Securities, shall mean in
excess of fifty percent (50%) of the outstanding Warrants or
Registrable Securities that (i) are not held by the Company, an
affiliate (excluding Katsock), officer, creditor, employee or agent
thereof or any of their respective affiliates, members of their
family, persons acting as nominees or in conjunction therewith or (ii)
have not been resold to the public pursuant to a registration
statement filed with the Commission under the Act.
Section 7.04 "No Action" Letter: Opinion of Counsel. No Holder shall have
registration rights under this Section with respect to any sales proposed by
them of shares as to which sales (i) a "no action" letter is received from the
SEC or its staff confirming the availability of an exemption from the
requirements of the Securities Act or (ii) an unqualified opinion of counsel to
the Company is rendered to the effect that registration of such shares for such
sales is not required; provided that in both cases (i) and (ii) above, the
volume limitations of Rule 144(e) under the Securities Act shall not limit the
amount of shares of Common Stock that the Holders are entitled to offer and sell
without registration under the Securities Act.
Section 7.05. Recall of Prospectuses, etc. With respect to a Registration
Statement or amendment thereto filed pursuant to this Section, if, at any time,
the Company notifies the selling Holder that an amendment or supplement to such
Registration Statement or amendment or the prospectus included
Page 11 of 14
<PAGE>
therein is necessary or appropriate, the selling Holder will forthwith cease
selling and distributing shares thereunder and will forthwith redeliver to the
Company all copies of such Registration Statement and prospectuses then in their
possession or under their control.
Section 7.06. Cooperation of Holders. The Company shall be entitled to
require that each selling Holder cooperate with the Company in connection with a
registration of shares of Common Stock pursuant to this Section and furnish such
information, representations, undertakings and agreements regarding such selling
Holder and the distribution as may be reasonably required by the Company or as
required by law in connection therewith.
Section 7.07. Expenses. The Company will bear all the expenses in
connection with any Registration Statement under this Section 7 (including the
fees and expenses of a single counsel to the Holders) other than transfer taxes
payable on the sale of such shares and fees and commissions of brokers, dealers
and underwriters.
Section 7.08. Indemnification. In the event of the registration of any
securities under the Securities Act pursuant to this Section, the Company and
the Holders shall provide to each other customary indemnification to the extent
of any loss, claim, damage, liability or expense arising out of such
registration.
Section 8: Status of the Holder:
Section 8.01. The Holder has such knowledge and experience in financial and
business matters that the Holder is capable of evaluating the merits and risks
of this Convertible Note. The Holder is able to bear the economic risk of this
Note. The Holder has had the opportunity to consult with the Holder's own
attorney, accountant and/or purchaser representative regarding this Note and the
suitability of this transaction, and to the extent necessary, the Holder has
retained, at Holder's own expense, and relied upon, appropriate professional
advice regarding this Note, the investment it represents, tax and legal merits,
risks and consequences of this Note and of purchasing and owning the Shares.
Section 8.02. The Holder represents that the Holder is an "Accredited
Investor", as that term is defined below, and that at least one of the
categories set forth in (a) through (h) below applies to the Holder. The Holder
is one or more of the following:
(a) a natural person whose individual net worth, or joint net worth
with that person's spouse, exceeds $1,000,000;
(b) a natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year.
(c) a bank as defined in Section 3(a)(2) of the Securities Act
or a savings and loan association or other institution as defined in
Section 3(a) (5)(A) of the Securities Act, whether acting in its individual or
fiduciary capacity; a broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934; an insurance company as defined in Section
2(13) of the Securities Act; an investment company registered under the
Investment Company Act of 1940 (the "1940 Act") or a business development
company as defined in Section 2(a)(48) of the 1940 Act; a Small Business
Investment Company licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of 1958; or an
employee benefit plan within the meaning of Title I of the Employee Retirement
Income Security Act of 1974 ("ERISA"), if the investment decision is made by a
plan fiduciary, as defined in Section 3(21) of ERISA, which fiduciary is either
a bank, savings and loan association, insurance company or registered investment
adviser, or if the employee benefit plan has total assets in excess of
$5,000,000 or if a self-directed plan, with investment decisions made solely by
persons that are Accredited Investors (as listed in categories (a)-(h) herein);
(d) a private business development company as defined in
Section 202(a)(22) of the 1940 Act;
Page 12 of 14
<PAGE>
(e) an organization described in Section 501(c)(3) of the Internal
Revenue Code, a corporation, Massachusetts or similar business trust or a
partnership, with total assets in excess of $5,000,000, and which was not formed
for the specific purpose of engaging in this transaction;
(f) a trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of engaging in this transaction, which is directed by a
person who has such knowledge and experience in financial and business matters
that he is capable of evaluating the merits and risks of this investment;
(g) a director or executive officer of the Company; or
(h) an entity in which all of the equity owners are Accredited
Investors [as listed in categories (a)-(h)].
Section 9. MISCELLANEOUS
Section 9.01. Governing Law. This Convertible Note shall be construed in
accordance with the laws of the State of Florida applicable to contracts entered
into and to be performed wholly within said State.
Section 9.02. Successors and Assigns. All the covenants, stipulations,
promises and agreements in the Convertible Notes held by or on behalf of the
Company shall bind its successors and assigns, whether so expressed or not.
Section 9.03 Course of Dealing: No Waiver. No course of dealing between
the Company and the Holder hereof shall operate as a waiver of any right of any
holder hereof and no delay on the part of the Holder in exercising any right
hereunder shall so operate.
Section 9.04. Waiver of Compliance.
(a) Any term, covenant, agreement or condition hereof may be amended, or
compliance therewith may be waived (either generally or in a
particular instance and either retroactively or prospectively), if the
Company shall have obtained the agreement or consent in writing of the
Holders of at least 51% in aggregate principal amount of all
outstanding Convertible Notes, but no such amendment or waiver shall:
(i) change the amount or maturity of any principal on the
Convertible Notes or change the rate or extend the time of
payment of interest on the Convertible Notes or reduce the
amount of principal thereof or modify any of the provisions of
the Convertible Notes with respect to the payment or prepayment
thereof:
(ii) give to any Convertible Note any preference or priority over any
other Convertible Note; or
(iii) reduce the percentage of Holders of the Convertible Notes
required to approve any such amendment or effectuate any such
waiver.
(b) In determining whether the Holders of the requisite principal amount
of outstanding Convertible Notes have given any authorization, consent
or waiver under this Section 9.04 or under Section 5.02, Convertible
Notes owned by the Company shall be disregarded and deemed not to be
outstanding.
Section 9.05. Manner of giving Notices. Any notice required to be given to
the Holder hereof by the Company hereunder shall be given by overnight delivery
with a reputable established courier service and by certified registered mail to
the Holder at its address designated on the register referred to in Section 1.01
on the date of such notice.
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<PAGE>
Section 9.06. Expenses in Preparation. All expenses of the Holder in the
negotiation, preparation, execution and delivery of this Convertible Note,
including attorneys' fees shall be paid by the Company.
Section 9.07. Other Provisions. The Company waives demand, presentment,
protest, notice of dishonor and any other form of notice that may be required to
hold the Company liable on this Note.
IN WITNESS WHEREOF, the undersigned has caused this Convertible Note to be
signed in its corporate name by one of its officers thereunto duly authorized,
and to be dated as of the date first written above.
FINANCIALWEB.COM, INC.
By: ________________________________
James P. Gagel
Title: Executive Vice President
________________________________
Date: March 30, 1999
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<PAGE>
EXHIBIT 4.25
CONSULTING AGREEMENT
This Consulting Agreement (hereinafter the "Agreement") is made this 1st day
of March, 1999 by and among FinancialWeb.com, Inc, a Nevada corporation, and its
successors and assigns, whose principal place of business is located at 201 Park
Place, Suite 321, Altamonte Springs, Florida 32701 (hereinafter the "Company")
and Gary Gould, whose principal place of business is located at E. 39th St, #3H
New York, N.Y. 10016 (hereinafter the "Consultant").
RECITALS
WHEREAS, the Company is engaged in providing information about stocks, public
companies, and financial matters via the Internet;
WHEREAS, the Consultant is engaged in providing Internet marketing consulting
services;
WHEREAS, the Company desires to engage the Consultant to provide services at
the request of and subject to the satisfaction of its management, and may avail
itself of the services of the Consultant during the term hereof; and
NOW THEREFORE, in consideration of the mutual covenants and promises contained
herein, it is agreed:
AGREEMENT
1. Consultant Services. The Company hereby retains Consultant as a consultant,
and the Consultant hereby agrees to accept such retainer, and will perform the
services requested by management of the Company to the Company's satisfaction
during the term hereof. Subject to the terms and conditions of this Agreement,
the Consultant shall provide consulting services at the request of the Company
in connection with its general marketing operations
<PAGE>
and projects during the term hereof. Any and all services performed by the
Consultant shall be performed in accordance with the requests of the management
of the Company. The services performed by the Consultant hereunder shall be
rendered only by the Consultant and no one acting for or on behalf of the
Consultant, except those persons normally employed by the Consultant in
rendering services to others, such as support staff, secretaries, bookkeepers
and the like. Consultant's services include Internet marketing consulting
services and such other related services within Consultant's expertise that the
Company's management may request during the term of this Agreement. Consultant
agrees to make itself available for advice and counsel to the management,
officers and directors of the company upon reasonable request and at mutually
agreeable times, including attendance at meetings at the Company's Florida
offices upon request of the Company's President.
2. Compensation. In consideration of the services to be performed by the
Consultant hereunder, Consultant shall be compensated as follows:
2.1 $5,000 per month, with the sum of $10,000 to be paid upon execution of
this Agreement. $5,000 of said sum constitutes payment for all services
rendered to date, and $5,000 is payment for services to be performed
for the one month period starting February 22, 1999.
2.2 A per diem rate of $200 for all services performed outside of the State
of New York
2.3 With 10,000 stock options for shares of FinancialWeb.com, Inc. The,
terms and conditions for issuance, and the date or dates of issuance of
said options, including restrictions on the sale or transfer of same,
shall be determined solely by the Company. Consultant expressly agrees
that it shall have no claim of any
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<PAGE>
nature against the Company for any determination made by the Company
pursuant to this provision.
3. Registration Rights. The shares underlying the options described herein
will have piggy-back registration rights and will be included for
registration in the next registration statement covering any shares issued
in a private placement.
4. Failing to Register Securities; Issuance of Restricted Shares. The shares
that underlie the options "restricted" shares. Any options exercised by
Consultant prior to the registration of said shares will result in the
issuance of restricted shares. If the shares underlying the options are not
capable of registration with the SEC as set forth in Paragraph 3 prior to
the expiration of this Agreement, the parties agree that the Company shall
have the option to issue said shares to the Consultant as restricted
shares. In such circumstance, the transferability of the shares will be
restricted by the Securities Act of 1933, as amended (the "Act"), and
applicable state securities laws and regulations, and the shares will not
be eligible to be sold unless they are subsequently registered or an
exemption from registration is available. If the shares are issued as
restricted shares, the certificates representing such shares will bear
appropriate legends referring to the restrictions on resale and
transferability imposed by the Act and applicable state securities laws and
regulations. If the shares are issued as restricted shares, the Company
shall use its best efforts to prepare and file a registration statement
covering such shares by the earliest practicable date.
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<PAGE>
5. Expenses. The Company shall pay for all pre-approved ordinary and necessary
out-of-pocket expenses incurred by the Consultant in connection with the
services to be performed hereunder, upon presentation of proper documentation
therefore.
6. Limitation on Nature of Service. None of the services to be performed by the
Consultant and paid for by the issuance of options or warrants shall be services
related to any "capital raising" transaction.
7. Additional Agreement. Consultant agrees, in addition to the rendering of
Internet marketing consulting services and related services hereunder, it shall
also:
7.1 faithfully render its services to the best of its power, skills, and
ability;
7.2 render services in accordance with the highest standards of the industry;
7.3 at all times behave and conduct itself in a such a manner as will enhance
the Company's reputation;
7.4 at all times provide the Company with all information required by the
Company in connection with Company's business
7.5 comply with all policies, goals and requests communicated to it by the
Company.
8. Confidential Information. The Consultant acknowledges that in the course of
performance of services under this Agreement, he has had or will have access to
and has acquired or will acquire Confidential Information (as hereinafter
described) concerning the Company, its business and operations. The Consultant
agrees that he will not disclose any Confidential Information to third parties
or use any Confidential Information for any purpose other than the performance
of this Agreement except as disclosure may be necessary or appropriate in the
course of performing this Agreement. For purposes of
4
<PAGE>
this Agreement, the term "Confidential Information" shall include all
information relating to the business of the Company and all processes, services
and other activities engaged in by the Company during the term of this
Agreement; including, but not limited to, customer and contact lists, business
strategies, systems and plans, marketing information, systems and strategies,
programming and software information, projects under development, financing
sources, and research and development methods, plans, and results. Any and all
information pertaining to the Company in Consultant's possession at the time of
termination of this Agreement shall be returned to the Company immediately;
failure to do so shall give rise to the Company's right to withhold any payment
that may be due, seek immediate injunctive relief, as well as monetary damages,
and such other relief as provided by law.
9. Other Activities. It is understood and agreed by the Company that during the
consulting period hereunder, Consultant may participate in any other business
activity or endeavor so long as such participation does not interfere with its
duties and ethical obligations to the Company under this Agreement and provided
that such activities do not violate any other covenants by Consultant in favor
of the Company.
10. Indemnification. Each party to this Agreement (hereinafter "Indemnifying
Party") hereby agrees to indemnify the other party to this Agreement
(hereinafter "Indemnified Party") for and hold the Indemnified Party harmless
against the following: (a) any and all loss, liability or damage resulting from
any breach or non-fulfillment of any agreement or obligation of the Indemnifying
Party under this Agreement; (b) any losses, damages, fees, settlements, or other
costs or expenses resulting from any misstatement of a material fact or omission
of a material fact by the Indemnifying Party contained herein to the extent that
any such misstatement or omission was based upon information supplied by the
Indemnifying Party; and (c) any and all actions, suits, proceedings, damages,
assessments,
5
<PAGE>
judgments, settlements, costs and expenses, including reasonable attorney's
fees, incurred by the Indemnified Party as a result of failure or refusal of the
Indemnifying Party to defend any claim incident to or otherwise honor the
foregoing provisions after having been given notice of and an opportunity to do
so.
11. Term; Expiration. The "Effective Date" of this Agreement is the date first
stated above. This Agreement shall remain in effect until expiration as
hereinafter provided. This Agreement shall expire on the date that is twelve
(12) months after the Effective Date, unless extended in writing by agreement of
the parties. Notwithstanding the foregoing, expiration of this Agreement
pursuant to this Paragraph shall not alter or excuse the parties' obligations
under Paragraphs 3, 4, 8, & 10 of this Agreement.
12. Termination. It is agreed and understood that either party may terminate
this Agreement at any time, for any reason or for no reason, solely upon the
giving of notice of termination to the other party in writing, in accordance
with the notice provisions herein. In the event Company terminates this
Agreement prior to its expiration date, it will pay to Consultant the sum of
$2500 for each three-month period of service, and shall have no further
obligation of any nature to Consultant.
13. Independent Contractor. The Company and the Consultant agree that the
Consultant is an independent contractor for all services to be performed under
the terms and conditions of this Agreement and shall not be deemed to be the
Company's agent for any purpose whatsoever and is not granted any right or
authority under this Agreement to assume or create any obligation or liability,
whether express or implied, absolute or contingent, on the Company's behalf, or
to bind the Company in any manner. The Consultant shall be liable for any FICA
taxes, withholding or other similar taxes or charges arising from the issuance
of any options or shares of the Company's stock or any
6
<PAGE>
other compensation received hereunder, and the Consultant shall indemnify and
hold harmless the Company therefrom; it is understood by the parties that the
value of all such items has been taken into account by the parties in
determining the amount of compensation for services rendered by the Consultant
hereunder.
14. Representations and Warranties of the Company.
14.1 Corporate Status. The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Nevada.
14.2 Securities Laws. The Company shall fully comply any and all federal and
state securities laws, rules, and regulations governing the issuance of any
options or shares.
14.3 Reports with the SEC. The Company will file with the SEC all reports
required to be filed by it, and such reports will be true and correct in all
material respects.
15. Representations and Warranties of Consultant. The Consultant represents and
warrants to, and covenants with, the Company as follows:
15.1 Retainer. The Consultant has been retained by the Company, and has
agreed to perform the services requested by management of the Company during
the term hereof. The services performed by the Consultant shall be rendered
only by the Consultant, and no one acting for or on behalf of the Consultant,
without the express written consent of the Company.
15.2 Limitation on Services. None of the services rendered or to be rendered
by the Consultant and paid for by the issuance of options or shares shall be
services related to any "capital raising" transaction.
7
<PAGE>
15.3 Valid Obligation; No Conflicts. Execution of this Agreement and
performance of services hereunder by Consultant constitute valid and binding
obligations of Consultant, which will not violate any other agreement or
obligation of the Consultant, there exist no other agreements which could
impede or impair his ability to perform hereunder.
16. Miscellaneous Provisions.
16.1 Notices. All notices or other communications required or permitted to be
given pursuant to this Agreement shall be in writing and shall be considered
as properly given or made if hand delivered, mailed from within the United
States by certified or registered mail, or sent by prepaid telegram or fax
(upon receipt of a return fax acknowledging receipt of the faxed
communication) to the applicable addresses appearing in the preamble to this
Agreement, or to such other addresses as a party may have designated by like
notice forwarded to the other parties hereto. All notices, except notices of
change of address, shall be deemed given when mailed or hand delivered and
notices of change of address shall be deemed given when received.
16.2 Further Assurances. At any time, and from time to time, after the
execution hereof, each party will execute such additional instruments and
take such action as may be reasonably requested by the other party to carry
out the intent and purposes of this Agreement.
16.3 Binding Agreement; Non-Assignability. Each of the provisions and
agreements herein, contained shall be binding upon and ensure to the benefit
of the personal representatives, heirs, devises, successors and permitted
assigns of the respective parties hereto; however, none of the rights or
obligations hereunder attaching to any Consultant may be assigned, without
the express written consent of the Company, and
8
<PAGE>
none of the rights or obligations hereunder attaching to the Company may be
assigned, without the express written consent of the Consultant.
16.4 Entire Agreement. This Agreement, and the other documents referenced
herein, constitute the entire understanding of the parties hereto with
respect to the subject matter hereof and supersedes and cancels any prior
agreement, representation or communication, whether oral or written, between
the parties relating to the transactions contemplate herein or subject matter
hereof. No amendment, modification or alternation of the terms hereof shall
be binding unless the same is in writing, dated subsequent to the date hereof
and duly approved and executed by each of the parties hereto.
16.5 Severability. Every provision of this Agreement is Intended to be
severable. If any term or provision hereof is illegal or invalid for any
reason whatever, such illegality or invalidity shall not affect the validity
of the remainder of this Agreement.
16.6 Waiver of Breach. A waiver by either party of a breach of any provisions
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach thereof.
16.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Governing Law. This Agreement, and the application or interpretation hereof,
shall be governed exclusively by its terms and by the laws of the State of
Florida. Venue for all purposes shall be deemed proper within the State or
Federal Courts of the State of Florida,
9
<PAGE>
where the Company's principle place of business is located, without giving
effect to principles of conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement the day and year first written above.
FinancialWeb.com, Inc.
By: [Signature appears here]
----------------------------
Gary Gould
By: /s/ Gary Gould
------------------------------
10
<PAGE>
EXHIBIT 4.26
DIRECTOR SERVICE AGREEMENT
This Director Service Agreement is entered into by and between Martin Averbuch
("Director") and FinancialWeb.com, Inc., a Nevada corporation (the "Company") as
of March 24, 1999.
RECITALS
WHEREAS, the Company deems it in the best interests of the Company to
attract highly qualified individuals to its Board of Directors; and
WHEREAS, the Director shall serve the Company as appointed or elected in
accordance with the Bylaws, the Articles of Incorporation of the Company, and
the Nevada Corporation Law:
NOW, THEREFORE, in consideration of the manual covenants set forth herein,
the parties agree as follows:
AGREEMENT
1. Service. The Director shall serve for up to three (3) years as duly
appointed by the Board of Directors or elected by the shareholders of the
Company.
2. Insurance. The Company shall maintain Directors and Officers insurance in
the amount of $5,000,000.
3. Expenses. The Company shall reimburse Director for all travel and other
expenses incurred for his attendance at any meeting of the Board or any
committee thereof.
4. Options. Director shall be entitled to options to acquire shares of the
Common Stock of the Company pursuant to the terms of a Stock Option Plan to be
adopted by the Company subject to the following terms:
(a) The options will vest only as follows:
Event Amount
----- ------
Upon appointment or election to Options to acquire 25,000 shares of
the Board Common Stock
Upon the first day of the second Options to acquire 25,000 shares of
quarter of service Common Stock
Upon the first day of the third Options to acquire 25,000 shares of
quarter of service Common Stock
Upon the first day of the fourth Option to acquire 25,000 shares of
quarter of service Common Stock
<PAGE>
(b) The exercise price for the options shall be the closing price on the
date that each option is granted; as appropriately adjusted for stock splits,
stock dividends, and the like.
(c) The vested options shall be exercisable for five (5) years after the
granting thereof. No additional vesting of options shall occur after Director's
death, disability, or cessation of service on the Board for any reason or no
reason.
(d) Issuance of the options shall be in accordance with all applicable
securities laws.
5. Registration Rights.
(a) Definitions.
"Commission" means the United States Securities and Exchange
Commission
"Holder" means Director, so long as Director holds any
Registrable Securities.
"Person" means an individual, a corporation, a limited
liability company, a partnership, an association, a trust or any other entity or
organization.
"Registrable Securities" means (i) the Common Shares issued to
Director pursuant exercise of the options granted in Section 4 and (ii) any
other securities that may be issued or distributed in respect of such Common
Shares by way of dividend, split, exchange or other distribution, re-
capitalization or re-classification. For the purposes of this Agreement,
Registrable Securities will cease to be Registrable Securities when (i) a
registration statement covering such Registrable Securities has been declared
effective and they have been disposed of pursuant to such effective registration
statement, (ii) they are distributed pursuant to Rule 144 (or any similar
provision then in force) under the Securities Act or (iii) they have been
otherwise transferred and the Company has delivered new certificates or other
evidences of ownership for them not subject to any stop transfer order or other
restriction on transfer and not bearing a legend restricting transfer.
"Securities Act" means the United States Securities Act of 1933,
as amended.
<PAGE>
(b) Registration.
(i) Registration of Common Stock. If, at any time prior to the
second anniversary of this Agreement, the Company proposes to file a
registration statement under the Securities Act with respect to an offering by
the Company of its Common Stock then the Company shall give notice by telephone
(and confirmed by written notice) (together, the "Registration Notice") of such
proposed filing to the Holder of Registrable Securities as early as practicable,
but in no event later than thirty days before the anticipated filing date,
provided, however, that the Company shall have no obligation to give the
Registration Notice to the Holder with respect to the filing of any registration
statement in connection with the Company's first offering after the date of this
Agreement and the Company shall have no obligation to include Registrable
Securities in such registration. Any Registration Notice shall state the
estimated proposed offering price, the estimated number of securities proposed
to be registered and whether the registration will be in connection with an
underwritten offering (and, if not, shall identify the alternative plan of
distribution) and offer the Holder the opportunity to include in such
registration statement such amount of Registrable Securities as the Holder may
request by written notice delivered to the Company prior to the anticipated
filing date (any such request being referred to as a "Registration Request"). If
such registration is in connection with an underwritten offering or in
connection with a transaction pursuant to which securities are being sold to a
purchaser or purchasers with a view to the redistribution thereof, such
Registrable Securities may only be sold as part of such underwriting or
transaction. If the anticipated filing date is deferred by more than fifteen
business days, the Company shall promptly give written notice of such new filing
date to the Holder of Registrable Securities, which notice shall offer such
Holder the opportunity to request to include such greater or lesser amount of
Registrable Securities as previously requested, provided such Holder makes such
new request no later than forty-eight hours prior to the new filing date.
(ii) Underwritten Offerings. The Company shall use its best
efforts to cause the managing underwriters of a proposed underwritten offering
pursuant to Section 5 (b)(i) to permit the Holder of Registrable Securities
requested to be included in the registration for such offering to include such
Registrable Securities in such offering. Upon request by the Company or the
managing underwriters made to the Holders of Registrable Securities, such Holder
shall enter into underwriting agreements with such underwriters providing for
the inclusion of such Registrable Securities in such offering on such terms and
conditions or, if the Holder shall refuse to enter into any such agreements, the
Company shall have the right to exclude from such registration all (but no less
than all) Registrable Securities of the Holder. Notwithstanding the foregoing,
if the managing underwriters of such offering advise the Company in writing that
in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in any orderly manner in such
offering within a price range acceptable to the Company, the Company will
include in such registration (A) first, the securities originally intended to be
sold on behalf of the Company prior to the giving of the Registration Notice,
and (B) second, the Registrable Securities to the extent such Registrable
Securities have been requested to be included in such registration, pro rata
among the Holders on the basis of the number of shares owned by each such
Holder.
<PAGE>
(iii) Effectiveness, Etc. Then Company agrees to use its best
efforts to effect the registration and the sale of the Registrable Securities
requested to be registered pursuant to this Section 5(b) in accordance with the
intended method of disposition thereof as quickly as practical; except that the
Company may terminate such registration in its sold discretion and for any
reason.
(iv) Availability of Rule 144. Notwithstanding this Section
5(b), the Company shall not be obligated to effect registration of any
Registrable Securities to the extent that such Registrable Securities to be
included in such registration can be sold pursuant to Rule 144 under the
Securities Act.
(c) Holdback Agreement. To the extent not inconsistent with applicable
law, Holder of Registrable Securities agrees not to offer publicly or effect any
public sale or distribution of the issue being registered or of any similar
security of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, including a sale pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act, during the seven days
prior to, and during the ninety day period beginning on, the effective date of
all registration statements relating to the Company's securities, if and to the
extent requested by the Company in the case of a non-underwritten public
offering in with Registrable Securities of the Holder are included or if and to
the extent requested by the managing underwriter(s) in the case of an
underwritten public offering during the first year of this Agreement. Anything
herein to the contrary notwithstanding, under no circumstances shall the Holder
of Registrable Securities be precluded by the provisions of this Section 3 from
offering publicly or effecting any public sale or distribution of Registrable
Securities for more than ninety days out of any consecutive period of 270 days.
(d) Registration Procedures. Subject to the provisions of Section 5(b)
hereof, in connection with the registration of Registrable Securities hereunder,
the Company will as expeditiously as possible:
(i) furnish to each seller of Registrable Securities, prior to filing a
registration statement, copies of such registration statement as proposed to be
filed, and thereafter such number of copies of such registration statement, each
amendment and supplement thereto (in each case including all exhibits thereto),
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents in such quantities as such
seller may reasonably request from time to time in order to facilitate the
disposition of the Registrable Securities owned by such seller;
(ii) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller of Registrable Securities reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to enable
such seller to consummate the disposition in such jurisdiction of the
Registrable Securities owned by such seller; except that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph (b), (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction;
<PAGE>
(iii) use its best efforts to cause the Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operation of the Company to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities;
(iv) notify each seller of such Registrable Securities, at any time when
a prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and the Company will promptly
(or, if such event is the conduct of negotiations disclosure of which, in the
Company's reasonable judgement, would be detrimental to the Company and the
Company shall have given a notice to each seller of Registrable Securities to
such effect (the "Negotiation Notice"), promptly after any required disclosure
would not be detrimental to the Company but in no event more than ninety days
after the giving of the Negotiation Notice) prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading.
(v) use its best efforts to cause all such Registrable Securities to be
listed (A) on each securities exchange on which securities issued by the Company
are then listed, or (B) if no such securities are then listed, on the Nasdaq
National Market;
(vi) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such Registrable
Securities;
(vii) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter (collectively, the "Inspectors"), all financial
and other records, pertinent corporate documents and properties of the Company
and its subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise their due diligence responsibility, and
cause the officers, directors and employees of the Company to supply all
information reasonable requested by any such Inspector in connection with such
registration statement. Records which the Company determines, in good faith, to
be confidential and which it notifies the Inspectors are confidential shall not
be disclosed by the Inspectors unless (A) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in the registration
statement and either (1) such registration has not been terminated or delayed
pursuant to the provisions of Section 5(b) hereof, as the case may be, or (2)
sales have been consummated pursuant to such registration statement by any
seller of Registrable Securities or (b) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction.
Each seller of Registrable Securities shall use reasonable efforts, prior to any
such disclosure by such seller's Inspector, to inform the Company that such
disclosure is necessary to avoid or correct a misstatement or omission in the
registration statement. Each seller of Registrable Securities further agrees
that it will, upon learning that disclosure of such
<PAGE>
Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company, at the expense of the Company, to undertake
appropriate action to prevent disclosure of the Records deemed confidential;
(viii) in the event such sale is pursuant to an underwritten public
offering, use its best efforts to obtain a letter of the kind contemplated by
the Statement of Auditing Standards No. 72, "Letters For Underwriters and
Certain Other Requesting Parties," promulgated by the American Institute of
Certified Public Accountants (an "AICPA Letter") from the independent public
accountants for the Company in customary form and covering such matters of the
type customarily covered by such letters as the Holder reasonably requests; and
(ix) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and to make available to the Holder of
Registrable Securities, as soon as reasonably practicable, an earning statement
covering a period of twelve months, beginning within three months after the
effective date of the registration statement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company such information
regarding such seller or the distribution of such securities as the Company may
from time to time reasonably request in writing, in each case only as required
by the Securities Act.
The Holder of Registrable Securities agrees that, upon receipt of any
notice (including any Negotiation Notice) from the Company of the happening of
any event of the kind described in Section 5(d)(iv) hereof, the Holder shall
forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until the Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 5(d)(iv) hereof (the "Blackout Period"), and, if so directly by the
Company, the Holder will deliver to the Company (at the expense of the Company)
all copies, other than permanent file copies then in the Holder's possession, of
the prospectus covering such Registrable Securities current at the time of
receipt of such notice. The Company will suspend any underwritten public
offering that includes the Registrable Securities during the Blackout Period.
(e) Registration Expenses.
All expenses incident to the performance of or compliance with
Section 5 this Agreement by the Company, including, without limitation, all
registration and filing fees (including, without limitation, fees of the
Commission and the National Association of Securities Dealers, Inc.), fees and
expenses of compliance with securities or blue sky laws (including reasonable
fees and disbursements of counsel in connection with blue sky qualifications of
the Registrable Securities), rating agency fees, printing expenses, messenger
and delivery expenses, internal expenses the fees and expenses incurred in
connection with the listing of the securities to be registered one each
securities exchange on which securities issued by the Company are then listed,
fees and disbursements of counsel, for the Company and its independent certified
public
<PAGE>
accountants (including the expenses of any special audit or AICPA Letter
required by or incident to such performance), securities act liability insurance
(if the Company elects to obtain such insurance), the fees and expenses of any
special experts retained by the Company in connection with such registration and
the fees and expenses of other persons retained by the Company (all such
expenses being herein called "Registration Expenses"), will be borne by the
Company, except that the Holder will pay those expenses incurred solely as a
result of Holder's participation in the offering, including, but not limited to,
Holder's pro rata portion of the Commission.
(f) Indemnification; Contribution. In connection with any registration
statement in which the Holder of Registrable Securities is participating, the
Holder and the Company will furnish in writing such information with respect to
each other as is reasonably requested for use in connection with any such
registration statement, or any prospectus or preliminary prospectus contained
therein, or any amendment or supplement thereto, and each agrees to indemnify
the other, to the extent permitted by law, against any losses, claims, damages,
liabilities and expenses caused by any untrue or alleged untrue statement of a
material fact contained in any such registration statement, or any prospectus or
preliminary prospectus contained therein, or any amendment or supplement
thereto, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, to the extent, but only to the extent, that such untrue statement or
omission is contained in any information provided for use in the preparation of
such registration statement. The Company will furnish Holder with a copy of the
information attributable to the Holder in the registration statement at the time
of the initial filing. Notwithstanding anything to the contrary in this
Agreement, in no event shall any indemnification provided hereunder by the
Holder and the Company of Registrable Securities in connection with any
registration thereof exceed the amount of proceeds received by either of them in
connection with such registration. In no event shall the amount contributed
hereunder by the Holder of Registrable Securities in connection with any
registration thereof exceed the amount of proceeds received by such Holder in
connection with such registration.
(g) Participation in Underwritten Registrations. No person may
participate in any underwritten registration thereunder unless such person (i)
agrees to sell such person's securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
<PAGE>
(h) Termination of the Company's Obligations. The Company's obligations
to register Registrable Securities pursuant to Section 5 hereof shall terminate
on the date on which all Registrable Securities (other than Registrable
Securities acquired by the Company or any affiliate of the Company) can be
freely sold by the Holder thereof without registration under the Securities Act
to a transferee, who (unless an affiliate of the Company) would be able to sell
freely such Common Shares without further registration under the Securities Act.
6. General.
(a) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to or departures from the provisions hereof may not be given
unless the Company has obtained the written consent of the Holder.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made by hand deliver, telex, telecopy, overnight
courier or registered first-class mail:
(i) if to the Holder of Registrable Securities at the most current
address given by the Holder to the Company in writing.
(ii) if to the Company at its address set forth as follows: 201 Park
Place, Altamonte Springs, Florida 32701
All such notices and communications shall be deemed to have been duly given,
when delivered, if by hand, overnight courier or mail, when the appropriate
answer is received, if by telex; when transmitted, if by telecopy.
(c) Successors and Assigns; Nontransferability of Registration Rights.
This Agreement shall inure to the benefit and be binding upon the successors of
each of the parties. The registration rights set forth in this Agreement may not
be transferred by Director to any other Person.
(d) Delay of Registration. No Holder shall have any right to take any
unreasonable action to restrain, enjoin or otherwise delay any registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings to this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
<PAGE>
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of Florida applicable to contracts and to be performed
wholly within Florida.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of Director
shall be enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
FINANCIALWEB.COM, INC.
Name: /s/ James P. Gagel
______________________________
James P. Gagel
Title: Executive Vice President
Name: /s/ Martin Averbuch
______________________________
Martin Averbuch
Title: Director
<PAGE>
EXHIBIT 10.1
AMENDMENT TO
EMPLOYMENT AGREEMENT DATED APRIL 1, 1997
This Amendment is entered into November 4, 1998 between AXXESS INC. and Kevin
A. Lichtman ("Employee") as follows:
WHEREAS, the parties have recognized that Employee's Employment Agreement of
April 1, 1997 contains no provisions for compensation and/or benefits in the
event of his involuntary termination prior to the Agreement's termination date,
nor renewal terms, nor for the protection of confidential company information,
all of which is contrary to prudent and customary practice in the employment of
individuals with the level of knowledge, skill, and experience of Employee; and,
WHEREAS, the Board of Directors of the Company (hereinafter "Board") has
determined that it is in the Company's best interests to provide the incentives
and support necessary to promote Employee's continued dedication and commitment
to achieving the Company's goals;
NOW, THEREFORE, in consideration of the services rendered by employee to date
and those to be rendered in the future, and of the mutual promises covenants and
agreements of the parties herein contained and other good and valuable
consideration, receipt of which is acknowledged by both parties, it is hereby
agreed as follows:
1. Employment. The Company (including its successors, present and future
subsidiaries, affiliates or divisions of the Company or any one or more other
entities to which the business or functions of the Company may be transferred,
or merged) hereby agrees to amend Employee's agreement, and Employee accepts
such amendments, as follows:
2. Term. The Commencement date of this Agreement is April 1, 1997 (hereinafter
referred to as the "Effective Date") and continue thereafter, unless terminated
as hereinafter provided, for 3 years from the Effective Date (the "Initial
Term") and for successive one (1) year periods ("Renewal Terms"). The word
"Term" shall mean the Initial Term as well as any and all Renewal Terms.
3. Renewal. This Agreement shall be automatically extended without the action
of any party at the end of the Initial Term and each Renewal Term unless either
the Company or Employee delivers to the other written notice that Employee's
employment hereunder will not be extended. Such notice must be delivered by the
Company at least one hundred eighty (180) days prior to the expiration of the
Term, and said notice should be delivered by the Employee at least thirty (30)
days prior to the expiration of the term, whether the Initial Term or a Renewal
Term, for which it is to be effective. Compensation for each Renewal Term shall
include the same percentage increase in base salary that was received during the
year prior to renewal.
<PAGE>
4. Termination Compensation. (a) If Employee's employment is terminated
pursuant to Paragraph 7.1 (a),(b),(c) or (e) of this Amendment, Employee's Base
Salary shall be continued for a period equal to sixteen (16) months, regardless
of whether Employee is re-employed on a full-time or part-time basis or becomes
self employed. The Termination Compensation shall be paid in equal periodic
installments on the first and fifteenth days of each month. (b) No termination
compensation shall be paid to Employee in the event his termination is
voluntary, or "For Cause" as defined in Paragraph 12 of this Agreement.
5. Withholding. The Company is or may be required to withhold from the gross
amount of Termination Compensation deductions for federal, state or local taxes,
F.I.C.A. and such other taxes required by appropriate governmental agencies. The
amount to be paid employee shall be net of such amounts withheld.
6. Post Termination Benefits. In the event Employee is terminated pursuant to
Paragraph 7.1 (a),(b),(c) or (e) of this Amendment, all company benefits which
Employee is currently entitled to receive and/or participate in, including the
company's employee stock option plan, medical insurance, key man and personal
life insurance, auto lease, and other such additional benefits and arrangements
shall be continued for a period equal to sixteen months. In addition, employee
shall be reimbursed for all reasonable job search and placement costs incurred
in securing new employment, including up to $5,000 per year of education costs
related thereto.
7. Other Termination Benefits. Employee shall be entitled to and may elect to
participate in, or receive benefits equivalent to, any plans or arrangements
instituted subsequent hereto by the Company for its officers (including without
limitation each pension and retirement plan and arrangement, stock option plan,
life insurance and health-and-accident plan and arrangement, medical insurance
plan, disability plan, survivor income plan, relocation plan and vacation plan).
The Company shall not make any changes in such plans or arrangements which would
adversely affect employee's rights or benefits thereunder. Nothing paid to
Employee under any plan or arrangement presently in effect or made available in
the future shall be deemed to be in lieu of the base salary payable to Employee.
8. Events of Termination. This Agreement may only be terminated upon the
following circumstances:
(a) Death. The death of Employee;
(b) Disability. Employee's Disability and election of the Company to
terminate as set forth in Paragraphs 9 and 10 herein, respectively;
(c) Term Expiration. The expiration of the Initial Term or any Renewal Term
only if the written notice provided for in Paragraph 3 of this Amendment
been delivered to the Employee after the beginning of the Term that is
to
<PAGE>
be the last Term and one hundred eighty (180) days prior to the
expiration of the Term for which the notice is to be effective;
(d) Termination For Cause by the Company. Written notice from the Company
delivered to Employee that his employment is terminated For Cause, as
that term is defined below; and
(e) Termination for Good Reason by Employee. Written notice from Employee
delivered to the Company that his employment is terminated For Good
Reason as that term is defined below.
9. Definition of Disability. "Disability" as applied to Employee shall be
deemed to have occurred whenever Employee has suffered physical or mental
illness or infirmity of such nature, degree or effect as to render Employee
substantially unable to perform his duties as delineated in Paragraph 2 of the
Employment Agreement for a period of twelve (12) consecutive months.
10. Termination in the Event of Disability. In the event of Employee's
Disability, the Company shall have the right to terminate Employee's employment
at any time upon sixty (60) days' advance written Notice of Termination to
Employee, provided however, that Employee may contest the determination of
Incapacity at any time as provided in Paragraph 11 of this Amendment. If
Employee contests the determination of Disability, his employment shall not
terminate until the expiration of 60 days following a final determination of
Disability. If the Company has not elected to terminate Employee's employment
after Disability has occurred, the Company may appoint another person to
temporarily perform the duties of Employee, but in such case such appointment
shall not constitute a termination of Employee's employment nor a breach by the
Company of this Agreement.
11. Determination of Disability . Employee's physician, at the Company's
request, shall determine, according to the facts then available to him, whether
Disability has occurred and is continuing. Such determination shall be made in
good faith and not arbitrarily or unreasonably made. The Board may request the
opinion of a reputable and qualified physician mutually acceptable to Employee
and the Company to examine Employee for the purpose of determining whether
Employee is in fact disabled. The fees of such physician, as well as any other
expenses related to such physician's examination of Employee, shall be paid by
the Company. Employee shall be given written notice of the intent of the Company
to make such request and Employee shall be provided with sufficient time to
respond thereto. In the event Employee's physician and the mutually agreed upon
physician do not concur, Employee shall have the right to request the
appointment of a mutually agreeable third physician who shall consult with the
other two physicians and make a final binding determination with respect to
Employee's Disability.
12. For Cause. Except for Disability or termination upon expiration of the Term,
the Company may terminate Employee's employment only "For Cause." For purposes
of this Agreement, the Company shall have Cause to terminate Employee's
employment
<PAGE>
only if termination by the Company shall have taken place as a direct result of:
(i) Employee's conviction of a crime which constitutes a felony in the
jurisdiction involved or (ii) Employee's willful failure or refusal to perform
his lawful duties as required by this Agreement following written notice of such
failure or refusal, and failure to cure or contest same within sixty (60) days
of Employee's receipt of notice.
13. Termination by Employee. Employee may at Employee's option, terminate his
employment hereunder for Good Reason.
For the purposes of this Agreement, "Good Reason" shall mean (a) a change in
Control of the Company (as defined below), (b) a failure by the Company to
comply with any material provision of this Agreement which has not been cured
within thirty (30) days after written notice of such noncompliance has been
given by Employee to the Company, (c) any purported termination of Employee's
employment which is not effected pursuant to a Notice of Termination satisfying
the requirements of Paragraph 15 hereof (and for purposes of this Agreement no
such purported termination shall be effective), (d) any act or pattern of acts
of hostility toward Employee or creation of a hostile work environment, (e) any
time when Employee's health is impaired to an extent that makes his continued
performance of his duties hereunder hazardous to his physical or mental health
or his life, provided that Employee shall have furnished the Company with a
written statement from a physician to such effect, if requested by the Company,
or (f) relocation of the Company to a place outside the Orlando, Florida
metropolitan area, or the requirement that Employee render services outside of
the Orlando, Florida metropolitan area.
14. Change of Control. For purposes of this Agreement, a "Change of Control,"
shall be deemed to have occurred if there is any change in legal or beneficial
share ownership from that reflected on the date of this Amendment in the
transfer ledger or other record of share ownership of the Company other than in
connection with (i) a public offering; or (ii) any change in share ownership
which effects less than twenty five percent (25%) of the issued and outstanding
stock of the Company when aggregated with all prior transfers during the
immediately preceding twelve (12) month period.
15. Notice of Termination. Any termination of Employee's employment by the
Company or by Employee shall be communicated by written notice of termination to
the other party hereto. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of
Employee's employment under the provision so indicated.
16. Date of Termination. "Date of Termination" shall mean (i) if Employee's
employment is terminated by his death, the date of his death, (ii) if Employee's
employment is terminated pursuant to Paragraph 8(b) above, sixty (60) days
after Notice of Termination is given (provided that Employee shall not have
returned to the
<PAGE>
performance of his duties on a full-time basis during such sixty (60) day
period), (iii) if Employee's employment is terminated pursuant to Paragraph 8(c)
above, the date specified in the Notice of Termination, and (iv) if Employee's
employment is terminated for any other reason the date on which a Notice of
Termination is given.
17. Payment Upon Termination by Company. If Employee's employment shall be
terminated pursuant to Sections 8 (a), (b), (c), (d), or (e) the Company shall
pay Employee his base salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given. Thereafter, compensation
shall be paid as herein provided. If Employee dies, however, Employee's spouse
shall receive all compensation, including post termination compensation, due to
Employee.
18. Miscellaneous. Termination of employment of Employee shall not terminate
this Agreement. Employee, however, shall not be obligated to mitigate damages by
seeking employment elsewhere.
19. Confidential Information.
(a) "Confidential Information" for the purposes of this Employment Agreement
means any knowledge of information which is not generally known or
available relating to the existing or contemplated products, or
services, equipment, processes and methods, technology, research,
engineering or developmental work, processes, formulae, inventions,
plans, business procedures, sales methods, customer lists, customer
usage and requirements, raw materials and the suppliers and costs
thereof, and other confidential business information and data relating
to the affairs of the Company or of any other subsidiary or division of
the Company with which Employee may have an association or relationship.
Confidential Information shall not, however, include any information
which (a) has become known in the industry through no wrongful act of
Employee; (b) has been rightfully received from a third party without
restriction and without breach of this Agreement; (c) has been furnished
to a third party by the Company without a similar restriction on the
third party's rights; or (d) is in the public domain.
(b) Employee agrees that he will not, either during the term of this
Agreement or at any time after the termination thereof, disclose or make
accessible to any other person (except pursuant to the valid order of a
court or governmental agency), or use for the benefit of himself or any
other person, any Confidential Information as hereinafter defined.
20. Notices. Any notices and communications required to be given under this
Employment Agreement shall be in writing and shall be sent by registered or
certified mail, postage prepaid, or delivered by hand to the parties at the
addresses set forth below, or at such other addresses as any party may designate
to the others by notice hereunder:
<PAGE>
If to the Company: 201 Park Place, Suite 321, Altamonte Springs, 32701
If to Employee: 1929 Wingfield Drive, Longwood, FL. 32779
21. Good Faith. Except as herein expressly provided to the contrary, whenever
this Agreement requires any consent or approval to be given by either party, or
either party must or may exercise discretion, the parties agree that such
consents or approvals and all actions taken in compliance with or relating to
this Agreement shall not be unreasonably withheld or delayed and shall be
reasonably exercised in good faith.
22. Severability. If any provision or term of this Agreement shall be found by
any court of competent jurisdiction to be unenforceable, the remaining terms and
provisions hereof shall remain in full force and effect, as if such
unenforceable provision or term had never been a part hereof.
23. Successors. This Agreement is personal and may not be assigned by Employee.
This Agreement shall inure to the benefit of and be binding upon the Company's
successors and assigns. The Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company, by agreement and
form and substance satisfactory to Employee, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no succession had taken place.
Failure of the Company to obtain such agreement prior to such succession shall
be a breach of this Agreement and shall entitle Employee to compensation in the
same amount and on the same terms as if he terminated his employment for Good
Reason. The date on which the succession becomes effective shall be deemed the
Date of Termination. For purposes of this Agreement "Company" shall mean not
only the Company as defined herein, but also any successor to its business or
assets or which otherwise becomes bound under this Agreement by operation of
law.
24. Entire Agreement. This Amendment together with the Employment Agreement
dated April 1, 1997 constitutes the entire agreement between the parties. Any
modifications or amendments to this entire agreement must be in writing and
signed by the parties.
<PAGE>
In Witness Whereof, the parties have signed this Amendment.
AXXESS, Inc.
By: The Board of Directors
/s/ Kevin A. Lichtman /s/ Kevin A. Lichtman
- --------------------------------- -------------------------------
Kevin A. Lichtman Kevin A. Lichtman
Employee
/s/ James P. Gagel
- ---------------------------------
James P. Gagel
/s/ Jeffrey A. Grossman
- ---------------------------------
Jeffrey A. Grossman
<PAGE>
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made this 1st day of April, 1997 by and among AXXESS, INC.
(the "Employer") a Nevada corporation having its principal place of business at
445 Douglas Avenue, Altamonte Springs, Florida, 32714; and KEVIN A. LICHTMAN
(the "Employee").
WITNESSETH:
WHEREAS, Employer desires to employ Employee to devote his full time and
attention to the business of Employer and Employee desire to be so employed.
NOW THEREFORE, it is agreed as follows:
1. Employment. Employer agrees to employ Employee and Employee agrees to
be so employed in the capacity of President and Chairman of the Board.
Employment shall be for a term of three (3) years commencing April 1,
1997 and terminating March 30, 2000.
2. Services. Employee shall exert his best efforts and devote
substantially all of his time and attention to the affairs of Employer.
Employee shall serve in capacity as the Chief Executive Officer of the
Employer and shall have full authority and responsibility, subject to
the general direction, approval and control of the Employer and
Employer's Board of Directors.
3. Restrictions During Employment. During the term of Employee's
employment, he shall devote his entire time and best efforts to the
affairs and business of Employer. Furthermore, Employee shall not
during the term of his employment, directly or indirectly, alone or as
a member of a partnership, or as an officer, director, shareholder or
employer of any other corporation or entity, be engaged in or concerned
with any other duties or pursuits that require his personal services.
4. Compensation and Other Benefits. During the term of employment pursuant
to this Agreement, Employer shall pay Employee a gross salary of one
hundred twenty thousand ($120,000) dollars per annum for the first
year, one hundred thirty-five thousand ($135,000) dollars per annum
for the second year and one hundred fifty thousand ($150,000) for the
final year. In addition to the aforesaid annual wage Employer shall
provide the following:
(i) Employer shall pay for hospitalization and major medical
coverage, which shall cover Employee and his family.
(ii) Employer shall reimburse Employee for all reasonable expenses
necessarily incurred by him in the performance of his duties upon
presentation of a voucher indicating the amount and business
purposes.
<PAGE>
5. Illness or Incapacity. If Employee shall become incapacitated and
unable to attend to his duties during the term of this Agreement said
Employee shall continue to receive his full salary from Employer for a
period of three (3) months after the commencement of such incapacity.
Such payment by Employer shall be reduced by any amount paid to
Employee under any policy of insurance providing disability benefits or
sickness and accident benefits paid for by Employer.
6. Vacation. Employee shall be entitled to three (3) weeks vacation each
year.
7. Arbitration. Any controversy or claim arising out of or related to this
Agreement shall be settled by arbitration in accordance with the rules
of the American Arbitration Association. Any judgment upon the award
rendered in such arbitration may be entered in any court of competent
jurisdiction.
8. Waiver, Modification or Cancellation. Any waiver, alteration or
modification of any of the provisions of this Agreement, or its
cancellation or replacement, shall not be valid unless in writing and
signed by the parties.
9. Construction. This Agreement shall be governed by the laws of the State
of Florida.
10. Entire Agreement. This Agreement supersedes agreements previously made
between the parties relating to the subject matter. There are no other
understandings or agreements.
11. Notices and Communications. Any notice, payment, request instruction or
other document to be delivered in accordance with this Agreement shall
be deemed sufficiently given if in writing and delivered personally or
mailed by certified mail, postage prepaid to the parties at the address
indicated in this Agreement.
12. Headings. Headings in this Agreement are for convenience only and shall
not be used to interpret or construe its provisions.
13. Counterparts. This Agreement may be executed into more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have signed this Agreement.
[Signature appears here]
-------------------------------
AXXESS, INC.
/s/ KEVIN A. LICHTMAN
-------------------------------
KEVIN A. LICHTMAN
<PAGE>
EXHIBIT 10.2
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT ("Amendment") dated as of February 1,
1999, is made and entered into by and between Financialweb. com, Inc., a Nevada
corporation (the "Company"), and James P. Gagel, a Florida resident (hereinafter
"Counsel").
WITNESSETH:
WHEREAS, Counsel has been employed as Counsel for the Company since
December 1, 1998 on a 25 hour per week basis, with hours in excess thereof being
billed to the Company at Counsel's regular hourly rate;
WHEREAS, the Company has been in greater need of Counsel's services than
originally anticipated, and has in fact utilized said services for at least 40
hours per week since his initial employment;
WHEREAS, the Company fully expects that said services will continue to be
needed on a full time basis;
WHEREAS, Counsel expertise, ability and knowledge of the business and
affairs of the Company are unique and essential to its successful operation;
WHEREAS, the Board of Directors of the Company (the "Board") recognizes that
Counsel's contribution to the growth and success of the Company will be
substantial, and the Board has determined that this Agreement will reinforce and
encourage Counsel's attention and dedication to the Company and is in the best
interests of the Company, and
WHEREAS, the Board desires to provide for the continued employment of
Counsel and Counsel is willing to commit himself to continue to serve the
Company.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and agreements of the parties herein contained and other good and valuable
consideration, the receipt and sufficiency all of which are forever acknowledged
and confessed, the parties hereby agree as follows:
1. Agreement for Continued Employment.
1.1 Employment. The Company (including its successors, present and future
subsidiaries, affiliates or divisions of the Company or any one or more other
entities to which the business or functions of the Company may be transferred)
hereby engages and employs and agrees to continue to employ Counsel, and Counsel
accepts such engagement and employment as Counsel of the Company and agrees to
serve the
<PAGE>
Company on the terms specified in Counsel's Agreement with the Company dated
December 1, 1998, with the following amendments:
1.1 Base Salary. As of February 1, 1999, Counsel shall devote a minimum of
40 hours per week to the affairs of the Company, and Company agrees to
compensate and pay Counsel a base salary at the rate of $86,000 per
annum. On December 1, 1999, Counsel's base salary shall be increased to
$98,000, and on December 1, 2000 said salary shall be increased to
$112,000.
1.2 Billable Hours. Counsel shall not bill the Company for any "additional
time" for services rendered, in view of his full time commitment to the
Company pursuant to this Amended Agreement.
2. Notices. Any notices and communications required to be given under this
Agreement shall be in writing and shall be sent by registered or certified mail,
postage prepaid, or delivered by hand to the parties at the addresses set forth
below, or at such other addresses as any party may designate to the others by
notice hereunder:
If to Counsel: 543 South Sundance Drive, Lake Mary, Florida, 32746
3. Entire Agreement.
This Amended Employment Agreement together with the Employment
Agreement dated December 1, 1998 contains the entire Agreement between the
parties hereto with respect to the subject matter hereof. All provisions of the
Employment Agreement dated December 1, 1998 not specifically amended by this
Amended Agreement remain in full force and effect. This Agreement may not be
modified, amended, waived or discharged except in writing signed by all parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
/s/ KEVIN A. LICHTMAN /s/ JAMES P. GAGEL
Kevin A. Lichtman James P. Gagel
President Counsel
<PAGE>
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") dated as of December 1, 1998,
("Effective Date"), is made and entered into by and between Axxess, Inc., a
Nevada corporation (the "Company"), and James P. Gagel a Florida resident
(hereinafter "Counsel").
WITNESSETH:
WHEREAS, the Company has utilized Counsel's services on an ad hoc basis
during the course of the 1998 year; and,
WHEREAS, said services will continue to be needed on a more consistent
basis, and will be more valuable to the Company if Counsel resides near the
Company's principal place of business and assumes the position of General
Counsel for the Company; and,
WHEREAS, the Board of Directors of the Company (the "Board") recognizes that
Counsel's contribution to the growth and success of the Company will be
substantial, and the Board has determined that this Agreement will reinforce and
encourage Counsel's attention and dedication to the Company and is in the best
interests of the Company, and
WHEREAS, the Board desires to provide for the employment of Counsel on a 25
hour per week basis, and Counsel is willing to relocate to Florida and become
General Counsel for the Company;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements of the parties herein contained and other good and valuable
consideration, the receipt and sufficiency all of which are forever acknowledged
and confessed, the parties hereby agree as follows:
1. Agreement for Employment.
1.1 Employment. The Company (including its successors, present and future
subsidiaries, affiliates or divisions of the Company or any one or more other
entities to which the business or functions of the Company may be transferred)
hereby engages and employs and agrees to continue to employ Counsel, and Counsel
accepts such engagement and employment as General Counsel (hereinafter
"Counsel") of the Company and agrees to serve the Company on the terms herein
specified.
<PAGE>
1.2 Counsel's Service. Counsel agrees to act as Counsel of the Company for
so long as he holds such office of the Company. Counsel shall be located in
Altamonte Springs, Florida during the term of this Agreement.
1.3 Office of Counsel. Counsel acknowledges that the office of General
Counsel of the Company is an office to which he must be appointed by the Board
and that the Board has appointed Counsel to serve for a period equal to the
Term. Counsel may not be removed from such office except in strict accordance
with the procedures set forth in this Agreement. The removal of Counsel or
expiration of Counsel's appointment shall not affect this Agreement except as
specified below. Company represents and warrants to Counsel that Company's
Articles of Incorporation and By-laws do not prohibit such appointment and the
employment contemplated hereunder.
2. Scope of Duties.
2.1 Scope of Duties. Counsel shall be responsible for all of the Company's
legal matters, including the handling of labor law and personnel issues;
corporate governance of the Company and its subsidiaries; mergers and
acquisitions; the provision of counsel and advice on all published materials and
related Company activities with respect to First Amendment matters (libel,
slander, etc.); Internet law; insurance coverage; litigation management;
contracts with personnel, vendors, consultants, landlords and others; management
of SEC compliance; compliance with all local, state and federal laws, management
of trademark, copyright, patent and trade secret issues, licensing agreements,
and such other matters as may arise or be assigned by the Board of Directors.
2.2 Required. Efforts. Counsel shall devote sufficient working time and
effort to the business and affairs of the Company as may be required to
accomplish the tasks assigned to him under this Agreement, except in cases of
Disability or Incapacity, as hereinafter defined. This Agreement shall not be
construed to prevent Counsel from investing his personal assets in businesses
which do not compete with Company, or from engaging in consulting or in the
practice of law, except that Counsel shall not provide services to any client
that would in any way impede or threaten his ability to devote his attention to
the affairs of the Company.
3. Term.
3.1 Term. This Agreement shall commence on the Effective Date and continue
thereafter, unless terminated as hereinafter provided, for 3 years from the
Effective Date (the "Initial Term") and for successive one (1) year periods
("Renewal Terms"). The word "Term" shall mean the Initial Term as well as any
and all Renewal Terms.
<PAGE>
3.2 Renewal. This Agreement shall be automatically extended without the
action of any party at the end of the Initial Term and each Renewal Term unless
either the Company or Employee delivers to the other written notice that
Employee's employment hereunder will not be extended. Such notice must be
delivered by the Company at least one hundred eighty (180) days prior to the
expiration of the Term, and said notice must be delivered by the Employee at
least thirty (30) days prior to the expiration of the term, whether the Initial
Term or a Renewal Term, for which it is to be effective. Compensation for each
Renewal Term shall include the same percentage increase in base salary that was
received during the year prior to renewal.
4. Compensation.
4.1 Base Salary. The Company agrees to compensate and pay Counsel a base
salary for an average of 25 hours per week of services at the rate of $48,000.
for the first year, $58,000. for the second year, and $68,000. for the third
year. Salary shall be paid in equal periodic installments on the first and
fifteenth days of each month. Salary may be increased in accordance with the
good faith business practices of the Company and customary business practices,
at the discretion of the Board of Directors.
4.2 Billable Hours. Counsel shall maintain detailed time sheets for all
services performed for the Company, and shall bill the Company at his regular
rate of $150,000 for all work performed at the Company's request in excess of 25
hours per week.
4.3 Options. Options are hereby granted for the purchase of the Company's
stock as follows: (a) 25,000 shares at the December 1, 1998 closing price of
$3.94 per share, (b) 25,000 shares at the closing price of December 1, 1999, and
(c) 25,000 shares at the closing price of December 1, 2000. Each of the
aforementioned 3 options shall vest 12 months after the grant date, i.e., on
November 30, 1999, on November 30, 2000, and on November 30, 2001. Cashless
exercise of the options permissible, and once exercised same will be registered
with any registration statement the Company may in the future file. The
aforementioned options are separate and apart from the rights Counsel shall have
to participate in the Company's Employee. Stock Option Plan, on the same terms
and conditions applicable to officers of the Company.
4.4 Bonuses The Board of Directors shall authorize such cash bonuses and
other compensation as it may from time to time determine to be appropriate and
consistent with industry practice.
4.5 Termination Compensation. The Company recognizes that Counsel was
recruited by the Company, and has relocated from a jurisdiction where he is a
member of the Bar in private practice, to the State of Florida, where he is not
a member of the bar, (except for admission under the Florida Corporate Counsel
Rule in order to work solely for the Company) and has left his Washington, D.C.
law practice in order to devote a substantial part of his time and attention to
the Company. If Counsel's employment is terminated pursuant to Paragraph 7.1
(a),(b),(c) or (e) of this Agreement, Employee's Base Salary shall be continued
for a period equal to eighteen (18) months, regardless of
<PAGE>
whether Employee is re-employed on a full-time or part-time basis or becomes
self employed. The Termination Compensation shall be paid in equal periodic
installments on the first and fifteenth days of each month. No termination
compensation shall be paid to Employee in the event his termination is
voluntary, or "For Cause" as defined in Paragraph 12 of this Agreement.
4.6 Withholding. The amounts stated in this Article 4 are stated in gross
amounts. The Company is or may be required to withhold from such gross amount
deductions for federal, state or local taxes, F.I.C.A. and such other taxes
required by appropriate governmental agencies. The amount to be paid Counsel
shall be net of such amounts withheld.
4.7 Equity Compensation. In addition to Counsel's compensation provided
above, the Company may grant to Counsel additional equity or options for
membership interests of the Company after the date hereof. The value of the
additional equity granted to Counsel hereunder shall be determined by the Board
of Directors. If the Company has more than one form, type, or class of equity
securities or convertible instruments, Counsel shall have the right to select
which form, type, or class of stock and/or convertible instruments he shall
receive hereunder. The grant of additional equity or options may be subject to a
vesting schedule. Notwithstanding the foregoing, if Counsel's employment is
terminated for any reason, other than Counsel's voluntary resignation, the
equity interest hereunder shall vest and be transferred to Counsel as of the
date of Counsel's termination of employment. Furthermore, if the Company
undergoes a change of control, all of the equity interest hereunder shall vest
immediately.
5. Reimbursement for Expenses.
5.1 Reimbursement. The Company shall reimburse Counsel or cause him to be
promptly reimbursed for all reasonable and necessary expenses incurred in
furtherance of the business and affairs of the Company, including, but not
limited to, all travel expenses and living expenses while away from home on
business or at the request of the Company. Likewise, Counsel shall be reimbursed
for expenses incurred for attendance at legal or business seminars or courses,
as well as for all bar admission costs, dues, legal materials, and related
items. Seminar and course attendance must be pre approved by the President or
his delegate. Such reimbursement shall be effected as soon as reasonably
practicable after such expenditures are made, against presentation of signed,
itemized expense reports in accordance with the present travel and business
expense reimbursement policies of the Company.
6. Fringe Benefits.
6.1 Benefits. The Company shall furnish to Counsel, at the Company's
expense, the following specific benefits in addition to any other benefits
provided in the Agreement.
<PAGE>
(a) Company paid medical insurance coverage which shall be complete
coverage without any deductions or exclusions for pre-existing
conditions. The Company shall pay the portion of the insurance
policy premium that corresponds to Counsel, and Counsel shall pay
that portion of the premium that corresponds to his dependents. The
insurance coverage provided to Counsel shall be no less favorable
to Counsel and his family, than the insurance coverage provided by
the Company to any other employee, agent, officer or similar
operative of the Company or that which is in effect on the
Effective Date; and
6.2 Other Benefits. The Company plans to maintain employee benefit plans
and arrangements. Counsel shall be entitled to and may elect to participate in,
or receive benefits equivalent to, any plans or arrangements instituted
subsequent hereto by the Company for its officers (including without limitation
each pension and retirement plan and arrangement, stock option plan, life
insurance and health-and-accident plan and arrangement, medical insurance plan,
disability plan, survivor income plan, relocation plan and vacation plan). The
Company shall not make any changes in such plans or arrangements which would
adversely affect Counsel's rights or benefits thereunder. Nothing paid to
Counsel under any plan or arrangement presently in effect or made available in
the future shall be deemed to be in lieu of the base salary payable to Counsel.
6.3 Post Termination Benefits. If Counsel's employment is terminated for
any reason other than Counsel's voluntary resignation, the Fringe Benefits
provided to Counsel under this Article 6 shall be continued for a period equal
to eighteen (18) months. In addition, Counsel shall be reimbursed for all
reasonable job search and placement costs incurred in securing new employment,
including up to $5,000. per year of educational costs related thereto.
6.4 Vacations. Counsel shall be entitled to fifteen (15) vacation days in
each calendar year, and to compensation for earned but unused Vacation days,
determined in accordance with the Company's vacation plan. Counsel shall also be
entitled to all paid holidays given by the Company to its executives. The number
of vacation and paid holidays and the policies related thereto available to
Counsel shall be no less favorable to Counsel than the vacation and holiday
benefits provided to any other employee, agent or similar operative or those in
effect on the Effective Date.
6.5 Service Furnished. The Company shall furnish Counsel with office space,
a personal secretary, word processing and computer assistance and such other
facilities and services as shall be suitable to Counsel's position and adequate
for the performance of his duties as set forth herein.
<PAGE>
7. Termination.
7.1 Events of Termination. This Agreement may only be terminated upon the
following circumstances:
(a) Death. The death of Counsel;
(b) Disability. Counsel's Disability and election of the Company to
terminate as set forth in Sections 7.2 and 7.3, respectively;
(c) Term Expiration. The expiration of the Initial Term or any Renewal
Term only if the written notice provided for in Section 3.2 has
been delivered to Counsel after the beginning of the Tenn that is
to be the last Term and one hundred eighty (180) days prior to the
expiration of the Term for which the notice is to be effective;
(d) Termination For Cause by the Company. Written notice from the
Company delivered to Counsel that his employment is terminated For
Cause, as that term is defined below; and
(e) Termination for Good Reason by Counsel. Written notice from Counsel
delivered to the Company that his employment is terminated For Good
Reason as that term is defined below.
7.2 Definition of Disability. "Disability" as applied to Counsel shall be
deemed to have occurred whenever Counsel has suffered physical or mental illness
or infirmity of such nature, degree or effect as to render Counsel substantially
unable to perform his duties as delineated in Article 2 hereof for a period of
twelve (12) consecutive months.
7.3 Termination in the Event of Disability. In the event of Counsel's
Disability, the Company shall have the right to terminate Counsel's employment
at any time upon sixty (60) days' advance written Notice of Termination to
Counsel, provided however, that Counsel may contest the determination of
Incapacity at any time as provided in Section 7.4. If Counsel contests the
determination of Disability, his employment shall not terminate until the
expiration of 60 days following a final determination of Disability. If the
Company has not elected to terminate Counsel's employment after Disability has
occurred, the Company may appoint another person to temporarily perform the
duties of Counsel, but in such case such appointment shall not constitute a
termination of Counsel's employment nor a breach by the Company of this
Agreement.
<PAGE>
7.4 Determination of Disability. Counsel's physician, at the Company's
request, shall determine, according to the facts then available to him, whether
Disability has occurred and is continuing. Such determination shall be made in
good faith and not arbitrarily or unreasonably made. The Board may request the
opinion of a reputable and qualified physician mutually acceptable to Counsel
and the Company to examine Counsel for the purpose of determining whether
Counsel is in fact disabled. The fees of such physician, as well as any other
expenses related to such physician's examination of Counsel, shall be paid by
the Company. Counsel shall be given written notice of the intent of the Company
to make such request and Counsel shall be provided with sufficient time to
respond thereto. In the event Counsel's physician and the mutually agreed upon
physician do not concur, Counsel shall have the right to request the appointment
of a mutually agreeable third physician who shall consult with the other two
physicians and make a final binding determination with respect to Counsel's
Disability.
7.5 For Cause. Except for Disability or termination upon expiration of the
Term, the Company may terminate Counsel's employment only "For Cause." For
purposes of this Agreement, the Company shall have Cause to terminate Counsel's
employment only if termination by the Company shall have taken place as a direct
result of: (i) Counsel's conviction of a crime which constitutes a felony in the
jurisdiction involved or (ii) Counsel's willful failure or refusal to perform
his lawful duties as required by this Agreement following written notice of such
failure or refusal, and failure to cure or contest same within sixty (60) days
of Counsel's receipt of notice.
7.6 Termination by Counsel. Counsel may, at Counsel's option, terminate his
employment hereunder for Good Reason.
For the purposes of this Agreement, "Good Reason" shall mean (a) a change in
Control of the Company (as defined below), (b) a failure by the Company to
comply with any material provision of this Agreement which has not been cured
within thirty (30) days after written notice of such noncompliance has been
given by Counsel to the Company, (c) any purported termination of Counsel's
employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of paragraph 7.8 hereof (and for purposes of this
Agreement no such purported termination shall be effective), (d) any act or
pattern of acts of hostility toward Counsel or creation of a hostile work
environment, or (e) any time when Counsel's health is impaired to an extent that
makes his continued performance of his duties hereunder hazardous to his
physical or mental health or his life, provided that Counsel shall have
furnished the Company with a written statement from a physician to such effect,
if requested by the Company (f) relocation of the Company from the Orlando
metropolitan area.
<PAGE>
7.7 Change of Control. For purposes of this Agreement, a "Change of
Control" shall be deemed to have occurred if there is any change in legal or
beneficial share ownership from that reflected on the Effective Date in the
transfer ledger or other record of share ownership of the Company other than in
connection with (i) a public offering; or (ii) any change in Share ownership
which effects less than twenty five percent (25%) of the issued and outstanding
stock of the Company when aggregated with all prior transfers during the
immediately preceding twelve (12) month period.
7.8 Notice of Termination. Any termination of Counsel's employment by the
Company or by Counsel shall be communicated by written notice of termination to
the other party hereto. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of
Counsel's employment under the provision so indicated.
7.9 Date of Termination. "Date of Termination" shall mean (i) if Counsel's
employment is terminated by his death, the date of his death, (ii) if Counsel's
employment is terminated pursuant to paragraph 7.1(b) above, sixty (60) days
after Notice of Termination is given (provided that Counsel shall not have
returned to the performance of his duties on a full-time basis during such sixty
(60) day period), (iii) if Counsel's employment is terminated pursuant to
paragraph 7.1(c) above, the date specified in the Notice of Termination, and
(iv) if Counsel's employment is terminated for any other reason the date on
which a Notice of Termination is given.
7.10 Payment Upon Termination by Company. If Counsel's employment shall be
terminated pursuant to Sections 7.1(a), (b), (c), (d) or (e), the Company
shall pay Counsel his base salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given. Thereafter, compensation
shall be paid as herein provided. If Counsel dies, however, Counsel's spouse
shall receive all compensation, including post termination compensation, due to
Counsel.
7.11 Miscellaneous. Termination of employment of Counsel shall not terminate
this Agreement. Counsel, however, shall not be obligated to mitigate damages by
seeking employment elsewhere.
8. Confidential Information.
8.1 Counsel agrees that he will not either during the term of this
Agreement or at any time after the termination thereof, disclose or make
accessible to any other person (except pursuant to the valid order of a court or
governmental agency), or use for the benefit of himself or any other person, any
Confidential Information as hereinafter defined.
8.2 "Confidential Information" for the purposes of this Employment
Agreement means any knowledge of information which is not generally known or
<PAGE>
available relating to the existing or contemplated products, or services,
equipment, processes and methods, technology, research, engineering or
developmental work, processes, formulae, inventions, plans, business procedures,
sales methods, customer lists, customer usage and requirements, raw materials
and the suppliers and costs thereof, and other confidential business information
and data relating to the affairs of the Company or of any other subsidiary or
division of the Company with which Counsel may have an association or
relationship. Confidential Information shall not, however, include any
information which (a) has become knows in the industry through no wrongful act
of Counsel; (b) has been rightfully received from a third party without
restriction and without breach of this Agreement; (c) has been furnished to a
third party by the Company without a similar restriction on the third party's
rights; or (d) is in the public domain.
9. Notices. Any notices and communications required to be given under this
Employment Agreement shall be in writing and shall be sent by registered or
certified mail, postage prepaid, or delivered by hand to the parties at the
addresses set forth below, or at such other addresses as any party may designate
to the others by notice hereunder:
If to the Company: 201 Park Place, Suite 321, Altamonte Springs, Fl. 32701
If to Counsel: 256 Altamonte Bay Club Circle, #204, Altamonte Springs, Fl.
32701
10. Review. Each year in January, the Company and Counsel agree to meet to
review the performance of Counsel, Counsel's status with the Company and the
status of the Company.
11. Good Faith. Except as herein expressly provided to the contrary,
whenever this Agreement requires any consent or approval to be given by either
party, or either party must or may exercise discretion, the parties agree that
such consents or approvals and all actions taken in compliance with or relating
to this Agreement shall not be unreasonably withheld or delayed and shall be
reasonable exercised in good faith.
12. Severability. If any provision or term of this Agreement shall be
found by any court of competent jurisdiction to be unenforceable, the remaining
terms and provisions hereof shall remain in full force and effect, as if such
unenforceable provision or term had never been a part hereof.
13. Captions. The expiration of the Initial Term or any Renewal Term only
if the written notice provided for in Section 3.2 has been delivered to Counsel
after the beginning of the Term that is to be the last Term and one hundred
eighty (180) days prior to the expiration of the Term for which the notice is to
be effective Te headings of paragraphs hereof are used for convenience only and
shall not affect the meaning or interpretation of the contents hereof.
14. Successors. This Agreement is personal and may not be assigned by
Counsel. This Agreement shall inure to the benefit of and be binding upon the
<PAGE>
Company's successors and assigns. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company, by agreement
and form and substance satisfactory to Counsel, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no succession had taken place.
Failure of the Company to obtain such agreement prior to such succession shall
be a breach of this Agreement and shall entitle Counsel to compensation in the
same amount and on the same terms as if he terminated his employment for Good
Reason. The date on which the succession becomes effective shall be deemed the
Date of Termination. For purposes of this Agreement "Company" shall mean not
only the Company as defined herein, but also any successor to its business or
assets or which otherwise becomes bound under this Agreement by operation of
law.
15. Entire Agreement. This Employment Agreement contains the entire
agreement between the parties hereto with respect to the subject matter hereof,
and supersedes the Agreement entered into between the parties on December 1,
1998. This Agreement may not be modified or amended or waived or discharged
except in writing signed by all parties.
16. Governing Law. This Agreement is entered into and shall be construed in
accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have caused this Employment Agreement
to be executed as of the day and year first above written.
FINANCIALWEB.COM, INC.
/s/ Kevin A. Lichtman
------------------------------
KEVIN A. LICHTMAN
President
/s/ James P. Gagel
------------------------------
JAMES P. GAGEL
Counsel
<PAGE>
EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") dated as of October 1, 1998,
("Effective Date"), is made and entered into by and between Axxess, Inc., a
Nevada corporation (the "Company"), and Jeffrey Abbott a Florida resident
(hereinafter "Employee").
W I T N E S S E T H :
WHEREAS, the Board of Directors of the Company (the "Board") recognized
that Employee's contribution to the growth and success of the Company will be
substantial, and the Board has determined that this Agreement will reinforce and
encourage Employee's attention and dedication to the Company and is in the best
interests of the Company, and
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements of the parties herein contained and other good and valuable
consideration, the receipt and sufficiency all of which are forever acknowledged
and confessed, the parties hereby agree as follows:
1. Agreement for Employment.
1.1 Employment. The Company (including its successors, present and
future subsidiaries, affiliates or divisions of the Company or any one or more
other entities to which the business or functions of the Company may be
transferred) hereby engages and employes and agrees to continue to employ
Employee, and Employee accepts such engagement and employment as General
Employee (hereinafter "Employee") of the Company and agrees to serve the Company
on the terms herein specified.
1.2 Employee's Service. Employee agrees to act as Employee of the
Company for so long as he holds such office of the Company. Employee shall be
located in Altamonte Springs, Florida during the term of this Agreement.
1.3 Office of Chief Information Officer. Employee acknowledges that the
office of Chief Information Officer is an office to which he must be appointed
by the Board and that the Board has appointed Employee to serve for a period
equal to the Term. Employee may not be removed from such office except in strict
accordance with the procedures set forth in this Agreement. The removal of
Employee or expiration of Employee's appointment shall not affect this Agreement
except as specified below. Company represents and warrants to Employee that
Company's Articles of Incorporation and ByLaws do not prohibit such appointment
and the employment contemplated hereunder.
<PAGE>
2. Scope of Duties.
2.1 Scope of Duties. The Chief Information Officer manages and directs
Information Technology personnel and project efforts. Also responsible for
providing input to the company president on issues including Technology Trends,
Software Development, Communications, and Computer Systems.
2.2 Required Efforts. Employee shall devote sufficient working time and
effort to the business and affairs of the Company as may be required to
accomplish the tasks assigned to him under this Agreement, except in cases of
Disability or Incapacity, as hereinafter defined. This Agreement shall not be
construed to prevent Employee from investing his personal assets in businesses
which do not directly compete with Company's finance related Internet sites.
3. Term.
3.1 Term. This Agreement shall commence on the Effective Date and
continue thereafter, unless terminated as hereinafter provided, for 3 years from
the Effective Date (the "Initial Term") and for successive one (1) year periods
("Renewal Terms"). The word "Term" shall mean the Initial Term as well as any
and all Renewal Terms.
3.2 Renewal. This Agreement shall be automatically extended without the
action of any party at the end of the Initial Term and each Renewal Term unless
either the Company or Employee delivers to the other written notice that
Employee's employment hereunder will not be extended. Such notice must be
delivered by the Company at least ninety (90) days prior to the expiration of
the Term, and said notice must be delivered by the Employee at least thirty (30)
days prior to the expiration of the term, whether the Initial Term or a Renewal
Term, for which it is to be effective. Compensation for each Renewal term shall
include the same percentage increase in base salary that was received during the
year prior to renewal.
4. Compensation.
4.1 Base Salary. (a) The Company agrees to compensate and pay Employee a
base salary at the rate of $80,000 for the first year. The Employee's salary
will be reviewed by the Company at the end of six months, at which time an
appropriate increase will be discussed and agreed upon, in accordance with the
Employee's performance, at any time and the Company's growth and progress as of
that date. Salary may be further increased in accordance with the good faith
business practices of the Company and customary business practices, at the
discretion of the Board of Directors.
4.2 Options. An option is hereby granted to purchase 10,000 shares of
the Company's stock at the October 1, 1998 closing price of 3.375 per share,
which option shall vest on September 30, 1999. Options are likewise granted to
purchase 10,000 shares
Page 2 of 9
<PAGE>
of the Company's stock at the closing price of October 1, 1999 and 10,000 shares
at the closing price of October 1, 2000, which options shall vest on September
30, 2000 and september 30, 2001, respectively. The aforementioned options are
separate and apart from the rights Employee shall have to participate in the
Company's Employee Stock Option Plan, on the same terms and conditions
applicable to officers of the Company.
4.3 Bonuses. The Board of Directors shall authorize a cash bonus
consistent with customary business practices, and in accordance with the
Company's growth and progress in achieving its goals, which Employee and Company
understand is partially dependant upon the obtaining of financing and related
factors. Employee's performance and the Company's progress shall be reviewed on
April 1st, 1999, and periodically thereafter, and a bonus or bonuses shall be
paid accordingly. Bonuses and other compensation may from time to time be
granted by the Board of Directors, in any event in accordance with what is
considered to be appropriate and consistent with industry practice.
4.4 Termination Compensation.
(a) If Employee's employment is terminated pursuant to Paragraph 7.1
(a), (b), (c) or (e) of this Amendment, Employee's Base Salary shall be
continued for a period equal to eight (8) months, regardless of whether
employee is re-employed on a full-time or part-time basis or becomes
self employed. The Termination Compensation shall be paid in equal
periodic installments on the first and fifteenth days of each month.
(b) No termination compensation shall be paid to Employee in the
event his termination is voluntary, or "For Cause" as defined in
paragraph 12 of this Agreement.
4.5 Withholding. The amounts stated in this Article 4 are stated in
gross amounts. The Company is or may be required to withhold from such gross
amount deductions for federal, state or local taxes, F.I.C.A. and such other
taxes required by appropriate governmental agencies. The amount to be paid
Employee shall be net of such amounts withheld.
4.6 Equity Compensation. In addition to Employee's compensation provided
above, the Company may grant to Employee additional equity or options for
membership interests of the Company after the date hereof. The value of the
additional equity granted to Employee hereunder shall be determined by the Board
of Directors. If the Company has more than one form, type, or class of equity
securities or convertible instruments, Employee shall have the right to select
which form, type, or class of stock and/or convertible instruments he shall
receive hereunder. The grant of additional equity or options may be subject to a
vesting schedule. Notwithstanding the foregoing, if Employee's employment is
terminated for any reason, other than Employee's voluntary resignation, the
equity interest hereunder shall vest and be transferred to Employee as of
Page 3 of 9
<PAGE>
the date of Employee's termination of employment. Furthermore, if the Company
undergoes a change of control, all of the equity interest hereunder shall vest
immediately.
5. Reimbursement for Expenses.
5.1 Reimbursement. The Company shall reimburse Employee or cause him to
be promptly reimbursed for all reasonable and necessary expenses incurred in
furtherance of the business and affairs of the Company, including, but not
limited to, all travel expenses and living expenses while away from home on
business or at the request of the Company or the Board. Likewise, Employee shall
be reimbursed for expenses incurred for attendance at technical or business
seminars or courses, as well as for all association dues, technical materials,
and related items. Seminar and course attendance must be pre-approved by the
President or his delegate. Such reimbursement shall be effected as soon as
reasonably practicable after such expenditures are made, against presentation of
singed, itemized expense reports in accordance with the present travel and
business expense reimbursement policies of the Company.
6. Fringe Benefits.
6.1 Benefits. The Company shall furnish to Employee, at the Company's
expense, the following specific benefits in addition to any other benefits
provided in the Agreement.
(a) Company paid medical insurance coverage. The Company shall pay
the portion of the insurance policy premium that corresponds to
Employee, and Employee shall pay that portion of the premium that
corresponds to his dependents. The insurance coverage provided to
Employee shall be no less favorable to Employee and his family, than the
insurance coverage provided by the Company to any other employee, agent,
officer or similar operative of the Company or that which is in effect
on the Effective Date; and
6.2 Other Benefits. The Company plans to maintain employee benefit plans
and arrangements. Employee shall be entitled to and may elect to participate in,
or receive benefits equivalent to, any plans or arrangements instituted
subsequent hereto by the Company for its officers (including without limitation
each pension and retirement plan and arrangement, stock option plan, life
insurance and health-and-accident plan and arrangement, medical insurance plan,
disability plan, survivor income plan, relocation plan and vacation plan). The
Company shall not make any changes in such plans or arrangements which would
adversely affect Employee's rights or benefits thereunder. Nothing paid to
Employee under any plan or arrangement presently in effect or made available in
the future shall be deemed to be in lieu of the base salary payable to Employee.
Page 4 of 9
<PAGE>
6.3 Post Termination Benefits. If Employee's employment is terminated
for any reason other than Employee's voluntary resignation, the Fringe Benefits
provided to Employee under this Article 6 shall be continued for a period equal
to eight (8) months. In addition, Employee shall be reimbursed for all
reasonable job search and placement costs incurred in securing new employment.
6.4 Vacations. Employee shall be entitled to fifteen (15) vacation days
in each calendar year, and to compensation for earned but unused vacation days,
determined in accordance with the Company's vacation plan. Employee shall also
be entitled to all paid holidays given by the Company to its executives. The
number of vacation and paid holidays and the policies related thereto available
to Employee shall be no less favorable to Employee than the vacation and holiday
benefits provided to any other employee, agent of similar operative or those in
effect on the Effective Date.
6.5 Service Furnished. The Company shall furnish Employee with office
space, word processing and computer assistance and such other facilities and
services as shall be suitable to Employee's position and adequate for the
performance of his duties as set forth herein.
7. Termination.
7.1 Events of Termination. This Agreement may only be terminated upon
the following circumstances:
(a) Death. The death of Employee;
(b) Disability. Employee's Disability and election of the Company to
terminate as set forth in Sections 7.2 and 7.3, respectively;
(c) Term Expiration. The expiration of the Initial Term or any
Renewal Term only if the written notice provided for in Section 3.2 has
been delivered to Employee after the beginning of the Term that is to be
the last Term and ninety (90) days prior to the expiration of the Term
for which the notice is to be effective;
(d) Termination For Cause by the Company. Written notice from the
Company delivered to Employee that his employment is terminated For
Cause, as that term is defined below; and
(e) Termination for Good Reason by Employee. Written notice from
Employee delivered to the Company that his employment is terminated For
Good Reason as that term is defined below.
7.2 Definition of Disability. "Disability" as applied to Employee shall
be deemed to have occurred whenever Employee has suffered physical or mental
illness or
Page 5 of 9
<PAGE>
infirmity of such nature, degree or effect as to render Employee substantially
unable to perform his duties as delineated in Article 2 hereof for a period of
six (6) consecutive months.
7.3 Termination in the Event of Disability. In the event of Employee's
Disability, the Company shall have the right to terminate Employee's employment
at any time upon sixty (60) days' advance written Notice of Termination to
Employee, provided however, that Employee may contest the determination of
Incapacity at any time as, provided in Section 7.4. If Employee contests the
determination of Disability, his employment shall not terminate until the
expiration of 60 days following a final determination of Disability. If the
Company has not elected to terminate Employee's employment after Disability has
occurred, the Company may appoint another person to temporarily perform the
duties of Employee, but in such case such appointment shall not constitute a
termination of Employee's employment nor a breach by the Company of this
Agreement.
7.4 Determination of Disability. Employee's physician, at the Company's
request, shall determine, according to the facts then available to him, whether
Disability has occurred and is continuing. Such determination shall be made in
good faith and not arbitrarily or unreasonably made. The Board may request the
opinion of a reputable and qualified physician mutually acceptable to Employee
and the Company to examine Employee for the purpose of determining whether
Employee is in fact disabled. The fees of such physician, as well as any other
expenses related to such physician's examination of Employee, shall be paid by
the Company. Employee shall be given written notice of the intent of the Company
to make such request and Employee shall be provided with sufficient time to
respond thereto. In the event Employee's physician and the mutually agreed upon
physician do no concur, Employee shall have the right to request the appointment
of a mutually agreeable third physician who shall consult with the other two
physicians and make a final binding determination with respect to Employee's
Disability.
7.5 For Cause. Except for Disability or termination upon expiration of
the Term, the Company may terminate Employee's employment only "For Cause." For
purposes of this Agreement, the Company shall have Cause to terminate Employee's
employment only if termination by the Company shall have taken place as a direct
result of: (i) Employee's conviction of a crime which constitutes a felony in
the jurisdiction involved or (ii) Employee's willful failure or refusal to
perform his lawful duties as required by this Agreement following written notice
of such failure or refusal, and failure to cure or contest same within sixty
(60) days of Employee's receipt of notice.
7.6 Termination by Employee. Employee may terminate his employment
hereunder for Good Reason.
For purposes of this Agreement, "Good Reason" shall mean (a) a change in
Control of the Company (as defined below), (b) a failure by the Company to
comply with any material provision of this Agreement which has not been cured
within thirty (30) days after written notice of such noncompliance has been
given by Employee to the
Page 6 of 9
<PAGE>
Company, (c) any purported termination of Employee's employment which is not
effected pursuant to a Notice of Termination satisfying the requirements of
paragraph 7.8 hereof (and for purposes of this Agreement no such purported
termination shall be effective), (d) any act or pattern of acts of hostility
toward Employee or creation of a hostile work environment, or (e) any time when
Employee's health is impaired to an extent that makes his continued performance
of his duties hereunder hazardous to his physical or mental health or his life,
provided that Employee shall have furnished the Company with a written statement
from a physician to such effect, if requested by the Company.
7.7 Change of Control. For purposes of this Agreement, a "Change of
Control," shall be deemed to have occurred if there is any change in legal or
beneficial share ownership from that reflected on the Effective Date in the
transfer ledger or other record of share ownership of the Company other than in
connection with (i) a public offering; or (ii) any change in Share ownership
which effects less than twenty five percent (25%) of the issued and outstanding
stock of the Company when aggregated with all prior transfers during the
immediately preceding twelve (12) month period.
7.8 Notice of Termination. Any termination of Employee's employment by
the Company or by Employee shall be communicated by written notice of
termination to the other party hereto. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provided a basis for
termination of Employee's employment under the provision so indicated.
7.9 Date of Termination. "Date of Termination" shall mean (i) if
Employee's employment is terminated by his death, the date of his death, (ii) if
Employee's employment is terminated pursuant to paragraph 7.1(b) above, sixty
(60) days after Notice of Termination is given (provided that Employee shall not
have returned to the performance of his duties on a full-time basis during such
sixty (60) day period), (iii) if Employee's employment is terminated pursuant to
paragraph 7.1(c) above, the date specified in the Notice of Termination, and
(iv) if Employee's employment is terminated for any other reason the date on
which a Notice of Termination is given.
7.10 Payment Upon Termination by Company. If Employee's employment shall
be terminated pursuant to Sections 7.1(a), (b), (c), (d), or (e) the Company
shall pay Employee his base salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given. Thereafter, compensation
shall be paid as herein provided. If Employee dies, however, Employee's spouse
shall receive all compensation, including post termination compensation, due to
Employee.
7.11 Miscellaneous. Employee, however, shall be obligated to mitigate
damages by seeking employment elsewhere which is within his field of expertise
and requires a similar level of experience.
Page 7 of 9
<PAGE>
8. Confidential Information.
8.1 Employee agrees that he will not, either during the term of this
Agreement or at any time after the termination thereof, disclose or make
accessible to any other person (except pursuant to the valid order of a court or
governmental agency), or use for the benefit of himself or any other person, any
Confidential Information as hereinafter defined.
8.2 "Confidential Information" for the purposes of this Employment
Agreement means any knowledge of information which is not generally known or
available relating to the existing or contemplated products, or services,
equipment, processes and methods, technology, research, engineering or
developmental work, processes, formulae, inventions, plans, business procedures,
sales methods, customer lists, customer usage and requirements, raw materials
and the suppliers and costs thereof, and other confidential business information
and data relating to the affairs of the Company or of any other subsidiary or
division of the Company with which Employee may have an association or
relationship. Confidential Information shall not, however, include any
information which (a) has become knows in the industry through no wrongful act
of Employee; (b) has been rightfully received from a third party without
restriction and without breach of this Agreement; (c) has been furnished to a
third party by the Company without a similar restriction on the third party's
rights; or (d) is in the public domain.
9. Notices. Any notices and communications required to be given under this
Employment Agreement shall be in writing and shall be sent by registered or
certified mail, postage prepaid, or delivered by hand to the parties at the
addresses set forth below, or at such other addresses as any party may designate
to the others by notice hereunder:
If to the Company: 201 Park Place, Suite 321, Altamonte Springs, 32701
If to Employee: 302 Dornoch Court, Winter Springs, FL 32708
10. Review. Each year in September, the Company and Employee agree to meet
to review the performance of Employee, Employee's status with the Company and
the status of the Company.
11. Good Faith. Except as herein expressly provided to the contrary,
whenever this Agreement requires any consent or approval to be given by either
party, or either party must or may exercise discretion, the parties agree that
such consents or approvals and all actions taken in compliance with or relating
to this Agreement shall not be unreasonably withheld or delayed and shall be
reasonable exercised in good faith.
12. Severability. If any provision or term of this Agreement shall be found
by any court of competent jurisdiction to be unenforceable, the remaining terms
and provisions hereof shall remain in full force and effect, as if such
unenforceable provision or term had never been a part hereof.
Page 8 of 9
<PAGE>
13. Captions. The headings of paragraphs hereof are used for
convenience only and shall not affect the meaning or interpretation of the
contents hereof.
14. Successors. This Agreement is personal and may not be assigned by
Employee. This Agreement shall inure to the benefit of and be binding upon the
Company's successors and assigns. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company, by agreement
and form and substance satisfactory to Employee, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no succession had taken place.
Failure of the Company to obtain such agreement prior to such succession shall
be a breach of this Agreement and shall entitle Employee to compensation in the
same amount and on the same terms as if he terminated his employment for Good
Reason. The date on which the succession becomes effective shall be deemed the
Date of Termination. For purposes of this Agreement "Company" shall mean not
only the Company as defined herein, but also any successor to its business or
assets or which otherwise becomes bound under this Agreement by operation of
law.
15. Entire Agreement. This Employment Agreement contains the entire
agreement between the parties hereto with respect to the subject matter hereof.
This Agreement may not be modified or amended or waived or discharged except in
writing signed by all parties.
16. Governing Law. This Agreement is entered into and shall be construed
in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed as of the day and year first above written.
AXXESS, Inc.
/s/ KEVIN A. LICHTMAN
----------------------------
Kevin A. Lichtman
President
/s/ JEFFREY ABBOTT
----------------------------
Jeffrey Abbott
Employee
Page 9 of 9
<PAGE>
EXHIBIT 10.4
[AXXESS LOGO APPEARS HERE]
EMPLOYMENT AGREEMENT
This agreement is entered into between Axxess, Inc., d.b.a. Axxess Media Group,
Inc., herein after known as "Axxess" and John Keating, herein after known as
"Mr. Keating".
Whereas, Axxess and Mr. Keating, as evidenced by the signed execution of this
Employment Agreement, agree to the following.
I. Mr. Keating will be employed by Axxess as of February 9, 1998 in the
position of "Vice President" at Axxess's place of business at 201 Park Place,
Suite 321, Altamonte Springs, Florida, 32701. Mr. Keating's responsibilities
will include management, sales, marketing and supervision of future personnel as
related to the development of the sales and marketing division of Axxess'
business activities.
II. Mr. Keating will be considered a full time, permanent employee for the
purposes of employee benefits as further described in the "Employee Manual".
III. Mr. Keating will receive a salary in the amount of $48,000.00 annually to
be paid on a semi-monthly basis.
IV. Mr. Keating will be entitled to receive a commission based on a percentage
of sales attributed to Mr. Keating's efforts equal to 20% of the gross amount of
the sale of advertising and advertising services as well as web site design,
site hosting services and other product or services revenues.
a) Advertising commissions will accrue monthly based on sales revenue
collected during a calendar month and be payable to Mr. Keating on the pay
date following the end of the calendar month.
b) Said commissions will be disbursed to Mr. Keating on the prescribed date
in an amount equal to the amount of the commissions accrued exceeding the
amount of salary paid to Mr. Keating for that period.
c) By example, if Mr. Keating's sales equal $30,000 for a calendar month,
then the gross commission calculated will be $6,000. If Mr. Keating's gross
salary for the same period is $4,000 then the amount of commission to be
paid to Mr. Keating for that period will be $6,000 (minus) $4,000 or
$2,000.
<PAGE>
[AXXESS LOGO APPEARS HERE]
V. Mr. Keating will be entitled to receive an additional bonus or a "manager's
override of 5% of sales per calendar quarter based on the gross sales achieved
by Mr. Keating and by persons under Mr. Keating's supervision. Bonus will be
paid in addition to Mr. Keating's salary providing that total sales for the
period in which a bonus is calculated exceed an amount equivalent to 2.5 times
Mr. Keating's base salary as described in Section III herein.
VI. As an additional recruitment incentive, Mr. Keating will receive
compensation in the amount of an option to purchase 10,000 shares of common
stock of Axxess, Inc., effective the date of the issuance of said options and
exercisable at a price to be determined as an amount equivalent to the closing
bid price of Axxess common shares on the date of issuance. It is understood that
shares of Axxess, Inc. issued to Mr. Keating under this agreement are not
registered and subject to restriction under SEC rule 144.
VII. Either Axxess or Mr. Keating may terminate this agreement with 30 days
prior written notice to the other party. This agreement may not be modified in
any way without the expressed written consent of both parties.
Acknowledged:
/s/ John Keating /s/ [Signature Appears Here] 2/5/98
- ------------------------------------ ------------------------------------
John Keating date Axxess, Inc. date
<PAGE>
EXHIBIT 10.5
[AXXESS LOGO APPEARS HERE]
EMPLOYMENT AGREEMENT
This agreement is entered into between Axxess, Inc., d.b.a. Axxess
Communications, Inc., herein after known as "Axxess" and Carl Surran, herein
after known as "Mr. Surran".
Whereas, Axxess and Mr. Surran, as evidenced by the signed execution of this
Employment Agreement, agree to the following.
I. Mr. Surran will be employed by Axxess as of July 21, 1997 in the position
of "Managing Editor" at Axxess's place of business at 445 Douglas Ave.,
Altamonte Springs, Florida 32714. Mr. Surran's responsibilities will include the
development, research, composition and editing of materials to be used for
editorial content for the various publications owned by Axxess. Additionally,
Mr. Surran will be responsible for managing any future editorial support staff
as well as third party contributing editors for Axxess.
II. Mr. Surran will be considered a full time, permanent employee for the
purposes of employee benefits as further described in the "Employee Manual".
III. Mr. Surran will receive a salary in the amount of $42,000.00 annually to be
paid on a semi-monthly basis.
IV. Mr. Surran will receive a supplement of $175 per month towards the purchase
of health insurance premiums until such time that Axxess can make available
group health insurance benefits to its employees. At such time, Axxess, Inc.
will then pay 100% of Mr. Surran's personal premium and provide dependent
coverage as defined in the health insurance plan. Premiums for dependent
insurance will be the responsibility of Mr. Surran.
V. Mr. Surran will be entitled to paid sick leave and vacation as described in
the "Employee Manual" of Axxess. Accordingly, vacation is earned at the rate of
15 days per year, accrued monthly and subject to vesting and other conditions
described in the Employee Manual. Sick leave is granted at a minimum of 7 days
per annum.
VI. As an additional recruitment incentive, Mr. Surran will receive
compensation in the amount of 8,000 shares of common stock of Axxess, Inc.,
effective the date of employment and to be vested to Mr. Surran's benefit on the
first anniversary of said employment. It is understood that shares of Axxess,
Inc. issued to Mr. Surran under this agreement are not registered and subject
to restriction under SEC rule 144.
VII. Either Axxess or Mr. Surran may terminate this agreement with 30 days prior
written notice to the other party. This agreement may not be modified in any way
without the expressed written consent of both parties.
Acknowledged:
/s/ Carl Surran 7/1/97 /s/ [Signature Appears Here] 7/1/97
- ------------------------------------ -------------------------------------
Employee date Axxess, Inc. Date
445 Douglas Ave., Ste. 2205-G
Altamonte Springs, Florida 32714
Phone (407)786-6530 Fax (407)786-6541
www.axxessinc.com
<PAGE>
EXHIBIT 10.8
DOMAIN PURCHASE AGREEMENT
THIS DOMAIN PURCHASE AGREEMENT (hereinafter referred to as this "Agreement"), is
entered into as of the 3rd day of March 1997, by and between Axxess, Inc. a
corporation organized under the laws of the state of Nevada (hereinafter
referred to as "AXS"); and Gene W. Homicki, an individual residing at 2 Village
Gate Way, Nyack, New York, 10960 (hereinafter referred to as "GWH").
Premises
This Agreement provides for the acquisition by AXS of the internet web
site and domain name "financialweb.com" (hereinafter "Web Site") from GWH in
exchange for the payment of four thousand ($4,000) dollars cash and one (1,000)
thousand restricted shares of common stock of Axxess, Inc.
Agreement
NOW, THEREFORE, on the stated premises and for and in consideration of
the mutual covenants and agreements hereinafter set forth and the mutual
benefits to be derived by the parties hereunder, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF GWH
As an inducement to and to obtain the reliance of AXS, GWH represents
and warrants to AXS as follows:
Section 1.01 Title and Related Matters. GWH has good and marketable title to
all of its properties, inventory, interests in properties, and
assets, real and personal, associated with the Web Site, free and
clear of all liens, pledges, charges, or encumbrances except (a)
statutory liens or claims not yet delinquent; and (b) such
imperfections of title and easements as do not and will not
materially detract from or interfere with the present or proposed
use of the properties subject thereto or affected thereby or
otherwise materially impair present business operations on such
properties. GWH owns all procedures, techniques, business plans,
methods of management, or other information utilized in connection
with GWH's Web Site. To the best knowledge of GWH, its Web Site
does not infringe on the patent, copyrights, trade secret, or
other proprietary right of any third person.
Section 1.02 Litigation and Proceedings. There are no actions, suits, or
proceedings pending or, to the knowledge of GWH, threatened by or
against GWH, or affecting GWH or its Web Site, at law or in
equity, before any court or other governmental agency or
instrumentality, domestic or foreign, or before any arbitrator of
any kind. GWH
<PAGE>
does not have any knowledge of any default on its part with
respect to any judgement, order, writ, injunction, decree, award,
rule, or regulation of any court, arbitrator, or governmental
agency and instrumentality.
Section 1.03 Contracts.
(a) There are no material contracts, agreements, franchises,
license agreements, or other commitments to which GWH's Web
Site is a party or by which it or any of its properties are
bound, which are material to the operations of the Web Site
taken as a whole;
(b) GWH and/or the Web Site are not a party to or bound by, or
are not subject to, any contract, agreement, other commitment
or instrument; any charter or other corporate restriction; or
any judgement, order, writ, injunction, decree, or award
which materially and adversely affects, or in the future may
(as far as GWH can no foresee) materially and adversely
affect, the business, operations, properties, assets, or
condition of the Web Site; and
Section 1.04 Material Contract Defaults. GWH and the Web Site are not in
default in any material respect under the terms of any outstanding
contract, agreement, lease, or other commitment which is material
to the business, operations, properties, assets, or condition of
the Web Site, and there is no event of default or other event
which, with notice or lapse of time or both, would constitute a
default in any material respect under any such contract,
agreement, lease, or other commitment in respect of which AMI has
not taken adequate steps to prevent such a default from occurring.
Section 1.05 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions comtemplated by
this Agreement will not result in the breach of any term or
provision of, or constitute an event of default under, any
material indenture, mortgage, deed of trust, or other material
contract, agreement, or instrument to which GWH is a party or to
which any of its properties or operations are subject.
Section 1.06 Governmental Authorizations. GWH holds all licenses, franchises,
permits, and other governmental authorizations which are legally
required to enable GWH to operate the Web Site in all material
respects as conducted on the date hereof. No authorization,
approval, consent, or order of, or registration, declaration, or
filing with, any U.S. or foreign court or other governmental body
is required in connection with the execution and delivery by GWH
of this Agreement and the consummation by GWH of the transactions
contemplated hereby.
Section 1.07 Compliance With Laws and Regulations. GWH has complied with all
applicable U.S. and foreign statutes and regulations of any
federal, state,
<PAGE>
provincial, or other governmental entity or agency thereof, except
to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets, or
condition of the Web Site or except to the extent that
noncompliance would not result in any material liability.
Section 1.08 Ownership of the Domain Name. GWH hereby represents and warrants
that it is the legal and beneficial owner of "financialweb.com"
the domain name, free and clear of any claims, charges, equities,
liens, security interests, and encumbrances whatsoever, and that
it has full right, power, and authority to transfer, assign,
convey, and deliver the domain name; and that delivery of such
domain name at the Closing will convey to AXS good and marketable
title to such shares, free and clear of any claims, charges,
equities, liens, security interest, and encumbrances whatsoever.
ARTICLE II
REPRESENTATIVES, COVENANTS, AND WARRANTIES OF AXS
As an inducement to, and to obtain the reliance of, GWH, AXS represents
and warrants as follows:
Section 2.01 Organization. AXS is a corporation duly organized, validly
existing, and in good standing under the laws of the state of
Nevada, and has the corporate power and is duly authorized,
qualified, franchised, and licensed under all applicable laws,
regulations, ordinances, and orders of public authorities to own
all of its properties and assets and to carry on its business in
all material respects as it is now being conducted, and there is
no jurisdiction in which it is not qualified in which the
character and location of the assets owned by it or the nature of
the business transacted by its requires qualification. The
execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not,
violate any provision of AXS's certificate of incorporation or
Memorandum. AXS has taken all action required by law, its
certificate of incorporation, and bylaws, or otherwise to
authorize the execution and delivery of this Agreement. AXS has
full power, authority, and legal right and has taken all action
required by law, its certificate of incorporation, bylaws, or
otherwise to consummate the transactions herein contemplated.
Section 2.02 Approval of Agreement. The board of directors of AXS has
authorized and approved the execution and delivery of this
Agreement by AXS and consummation of the transactions contemplated
hereby.
<PAGE>
ARTICLE III
PURCHASE OF WEB SITE AND DOMAIN NAME
Section 3.01 The Purchase
(a) On the terms and subject to the conditions set forth in this
Agreement, on the Closing Date (as defined in section 3.02),
GWH shall assign, transfer, and deliver to AXS, free and
clear of all liens, pledges, encumbrances, charges,
restrictions, or claims of any kind, nature, or description,
the domain name and Web Site and AXS agrees to acquire such by
issuing and delivering in exchange therefore; (i) one (1,000)
thousand restricted shares of common stock of AXS; and (ii)
cash in the amount of four thousand ($4,000) dollars;
(b) At the Closing, GWH shall, on the surrender of the domain name
and Web Site, be entitled to receive a certificate evidencing
shares of the AXS Common Stock as provided herein.
Section 3.02 Closing. The closing ("Closing") of the transactions contemplated
by this Agreement shall be on a date and at such time as the
parties may agree ("Closing Date"), no later than the ten day
period commencing with signing of this Agreement.
Section 3.03 Closing Events. At the Closing, each of the respective parties
hereto shall execute, acknowledge, and deliver (or shall cause to
be executed, acknowledged, and delivered) any and all
certificates, opinions, financial statements, schedules,
agreements, resolutions, or other instruments required by this
Agreement to be so delivered at or prior to the Closing, together
with such other items as may be reasonably requested by the
parties hereto and their respective legal counsel in order to
effectuate or evidence the transactions contemplated hereby.
Section 3.04 Termination.
(a) This Agreement may be terminated by the board of directors of
AXS or GWH at any time prior to the Closing Date if:
(i) there shall be any actual or threatened action or
proceeding before any court or any governmental body
which shall seek to restrain, prohibit, or invalidate the
transactions contemplated by the Agreement and which, in
the judgement of such board of directors, made in good
faith and based on the advice of its legal counsel, makes
it inadvisable to proceed with the exchange contemplated
by this Agreement;
(ii) any of the transactions contemplated hereby are
disapproved by any regulatory authority whose approval
is required to consummate such transactions or in the
judgment of such board of directors,
<PAGE>
made in good faith and based on the advice of counsel, there
is substantial likelihood that any such approval will not be
obtained or will be obtained only on a condition or
conditions which would be unduly burdensome, making it
inadvisable to proceed with the exchange; or
In the event of termination pursuant to this paragraph (a) of section
3.04, no obligation, right, or liability shall arise hereunder, and each party
shall bear all of the expenses incurred by it in connection with the
negotiation, drafting, and execution and this Agreement and the transactions
herein contemplated.
(b) This Agreement may be terminated at any time prior to the
Closing by action of the board of directors of AXS or GWH
shall fail to comply in any material respect with any of their
covenants or agreements contained in this Agreement or if any
of the representations or warranties of GWH contained herein
shall be inaccurate in any material respect. If this Agreement
is terminated pursuant to this paragraph (b) of section 3.04,
this Agreement shall be of no further force or effect, and no
obligation, right, or liability shall arise hereunder.
ARTICLE IV
SPECIAL COVENANTS
Section 4.01 Access to Properties and Records. AXS and GWH will each afford to
the officers and authorized representatives of the other full
access to the properties, books, and records of AXS and GWH, as
the case may be, in order that each may have full opportunity to
make such reasonable investigation as it shall desire to make of
the affairs of the other, and each will furnish the other with
such additional financial and operating data and other information
as to the business and properties of AXS and GWH, as the case may
be, as the other shall time to time reasonably request.
Section 4.02 Availability of Rule 144. Each of the parties acknowledges that
the shares of AXS stock to be issued pursuant to this Agreement
will be "restricted securities," as that term is defined in rule
144 promulgated pursuant to the Securities Act. AXS is under no
obligation to register such shares under the Securities Act or to
register the ECO common stock pursuant to section 12(g) of the
Securities Exchange Act of 1934, as amended. Notwithstanding the
foregoing, however, AXS will use its best efforts to: (a) timely
prepare and disseminate the required information and financial
statements so as to make available to the shareholders of AXS the
provisions of rule 144 pursuant to subparagraph (c)(2) thereof;
and (b) within 5 days of any written request of any shareholder of
AXS, AXS will provide to such shareholder written confirmation of
compliance with such of the foregoing subparagraph as may then be
applicable. The shareholders of AXS holding
<PAGE>
restricted securities of AXS as of the date of this Agreement, and
their respective heirs, administrators, personal representatives,
successors, and assigns, are intended third party beneficiaries of
the provisions set forth herein. The covenants set forth in this
section 4.02 shall survive the Closing and the consummation of the
transactions herein contemplated.
Section 4.03 Special Covenants and Representations Regarding the AXS Stock. The
consummation of this Agreement and the transactions herein
contemplated, including the issuance of the Common Stock to GWH as
contemplated hereby, constitutes the offer and sale of securities
under the Securities Act and applicable state Statutes. Such
transaction shall be consummated in reliance on exemptions from
the registration and prospectus delivery requirements of such
statutes which depend, inter alia, upon the circumstances under
which GWH acquire such securities. In connection with reliance
upon exemptions from the registration and prospectus delivery
requirements for such transactions, at the Closing, GWH shall
deliver to AXS a letter of representation in the form attached
hereto as Exhibit "A."
Section 4.04 Third Party Consents. AXS and GWH agree to cooperate with each
other in order to obtain third party consents to this Agreement
and the transactions herein contemplated.
Section 4.05 Actions Prior to Closing.
(a) From and after the date of this Agreement until the Closing
Date, respectively, will each:
(i) carry on its business in substantially the same manner
as it has heretofore;
(ii) perform in all material respects all of its obligations
under material contracts, leases, and instruments
relating to or affecting its assets, properties, and
business;
(iii) use its best efforts to maintain and preserve its
business organization intact, to retain its key
employees, and to maintain its relationship with its
material suppliers and customers; and
(iv) fully comply with and perform in all material respects
all obligations and duties imposed on it by all federal
and state laws and all rules, regulations, and orders
imposed by federal or state governmental authorities.
(b) From and after the date of this Agreement until the Closing
Date, neither AXS nor GWH will:
<PAGE>
(i) enter into or amend any contract, agreement, or other
instrument of any types described in such party's
schedules, except that a party may enter into or amend any
contract, agreement, or other instrument in the ordinary
course of business involving the sale of goods or
services.
ARTICLE V
MISCELLANEOUS
Section 5.01 Brokers. AXS and GWH agree that they are not obligated to pay any
compensation to any finders or brokers for bringing the parties
together or who were instrumental in the negotiation, execution,
or consummation of this Agreement. Each party agrees to indemnify
the other against any claim by any third person for any
commission, brokerage, or finders' fee or other payment with
respect to this Agreement or the transaction contemplated hereby
based on any alleged agreement or understanding between such party
and such third person, whether express or implied, from the
actions of such party.
Section 5.02 Governing Law. This Agreement shall be governed by, enforced, and
construed under and in accordance with the laws of the United
States of America and, with respect to matters of state law, with
the laws of Florida. The federal and state courts of the state of
Florida shall have exclusive jurisdiction over any dispute or
controversy arising under or in connection with this Agreement.
Section 5.03 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if personally delivered to
it or sent by registered mail or certified mail, postage prepaid,
or by prepaid telegram addressed as follows:
If to AXS, to: Axxess, Inc.
445 Douglas Avenue
Altamonte Springs, Florida 32714
If to GWH, to: Mr. Gene W. Homicki
2 Village Gate Way
Nyack, New York 10960
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered, mailed, or
telegraphed.
Section 5.04 Attorneys' Fees. In the event that any party institutes any action
or suit to enforce
<PAGE>
this Agreement or to secure relief from any default hereunder or
breach hereof, the breaching party or parties shall reimburse the
nonbreaching party or parties for all costs, including reasonable
attorneys' fees, incurred in connection therewith and in enforcing
or collecting any judgment rendered therein.
Section 5.05 Confidentiality. Each party hereto agrees with the other parties
that, unless and until the transactions contemplated by this
Agreement have been consummated, they and their representatives
will hold in strict confidence all data and information obtained
with respect to another party or any subsidiary thereof from any
representative, officer, director, or employee, or from any books
or records or from personal inspection, of such other party, and
shall not use such data or information or disclose the same to
others, except (i) to the extent such data or information is
published, is a matter of public knowledge, or is required by law
to be published; and (ii) to the extent that such data or
information must be used or disclosed in order to consummate the
transactions contemplated by this Agreement.
Section 5.06 Third Party Beneficiaries. This contract is solely between AXS and
GWH and, except as specifically provided, no director, officer,
stockholder, employee, agent, independent contractor, or any other
person or entity shall be deemed to be a third party beneficiary
of this Agreement.
Section 5.07 Entire Agreement. This Agreement represents the entire agreement
between the parties relating to the subject matter hereof. This
Agreement alone fully and completely expresses the agreement of
the parties relating to the subject matter hereof. There are no
other courses of dealing, understanding, agreements,
representations, or warranties, written or oral, except as set
forth herein. This Agreement may not be amended or modified,
except by a written agreement signed by all parties hereto.
Section 5.08 Survival: Termination. The representations, warranties, and
covenants of the respective parties shall survive the Closing Date
and the consummation of the transactions herein contemplated.
Section 5.09 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of
which taken together shall be but a single instrument.
Section 5.10 Amendment or Waiver. Every right and remedy provided herein shall
be cumulative with every other right and remedy, whether conferred
herein, at law, or in entity, and may be enforced concurrently
herewith, and no waiver by any party of the performance of any
obligation by the other shall be construed as a waiver of the same
or any other default then, theretofore, or thereafter occurring or
existing. At any time prior to the Closing Date, this Agreement
may be amended by a
<PAGE>
writing signed by all parties hereto, with respect to any of the
terms contained herein, any term or condition of this Agreement
may be waived or the time for performance hereof may be extended
by a writing signed by the party or parties for whose benefit the
provision is intended.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
Axxess, Inc.
ATTEST:
By /s/ Gene W. Homicki
- ---------------------------------- ----------------------------------
Gene W. Homicki
ATTEST:
By [SIGNATURE APPEARS HERE]
- ---------------------------------- ----------------------------------
<PAGE>
EXHIBIT 10.9
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (hereinafter referred to as this "Agreement"),
is entered into as of the 11th (eleventh) day of January 1998, by and between
Axxess, Inc., a corporation organized under the laws of the state of Nevada
(hereinafter referred to as "AXS"); and Randall B. Shepardson, an individual
residing at 117 Lake Shore Blvd., Stafford Springs, Connecticut (hereinafter
referred to as "RBS").
Premises
This Agreement provides for the acquisition by AXS of the internet web
site and domain name known as "stocktools.com" (hereinafter "Web Site") and
certain computer hardware, software and other assets (hereinafter collectively
the "Assets") as defined in Schedule "A" hereto and made a formal part of this
Agreement, from RBS in exchange for the payment of; (i) one hundred thousand
($100,000) dollars cash and, (ii) one hundred thousand ($100,000) dollars of
restricted shares of common stock of Axxess, Inc. by the issuance of one hundred
thousand restricted shares of common stock of Axxess, Inc. (the "Shares") to
RBS.
Said Shares shall be registered for sale on behalf of RBS following the
execution of this Agreement. As a condition hereof, AXS agrees that should RBS
receive proceeds of less than one hundred thousand ($100,000) dollars from the
sale of the Shares then AXS shall be liable for the difference between the
monies received by RBS from the sale of the Shares and one hundred thousand
($100,000) dollars. In consideration hereof, RBS agrees that for a period of
ninety (90) days from the issuance of the shares, AXS or its designee shall have
the option to repurchase any portion of the Shares from RBS at a price of one
($1.00) dollar per share.
Agreement
NOW, THEREFORE, on the stated premises and for and in consideration of
the mutual covenants and agreements hereinafter set forth and the mutual
benefits to be derived by the parties hereunder, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF RBS
As an inducement to and to obtain the reliance of AXS, RBS represents and
warrants to AXS as follows:
Section 1.01 Title and Related Matters. RBS has good and marketable
title to all of its properties, inventory, interests in properties, and assets,
real and personal, associated with the Web Site and Assets, free and clear of
all liens, pledges, charges, or encumbrances except (a) statutory liens or
claims not yet delinquent; and (b) such imperfections of title and easements as
do not and will not materially detract from or interfere with the present or
proposed use of the properties subject thereto or affected thereby or otherwise
materially impair present business operations on such properties. RBS owns all
procedures, techniques, business plans, methods of management, or other
information utilized in connection with RBS's Web Site and Assets. To the best
knowledge of RBS, its Web Site or Assets do not infringe on the patent,
copyrights, trade secret, or other proprietary right of any third person.
Section 1.02 Litigation and Proceedings. There are no actions, suits, or
proceedings pending or, to the knowledge of RBS, threatened by or against RBS,
or affecting RBS or its Web Site or Assets, at law or in equity, before any
court or other governmental agency or instrumentality, domestic or foreign, or
before any arbitrator of any kind. RBS does not have any knowledge of any
default on its part with respect to any judgement, order, writ, injunction,
decree, award, rule, or regulation of any court, arbitrator, or governmental
agency or instrumentality.
<PAGE>
Section 1.03 Contracts.
(a) There are no material contracts, agreements, franchises,
license agreements, or other commitments to which RBS's Web Site is a
party or by which it or any of its properties are bound, which are
material to the operations of the Web Site taken as a whole; except as
defined in Schedule "B" hereto and made a formal part of this Agreement,
(b) RBS and/or the Web Site are not a party to or bound by, or
are not subject to, any contract, agreement, other commitment or
instrument; any charter or other corporate restriction; or any
judgement, order, writ, injunction, decree, or award which materially
and adversely affects, or in the future may (as far as RBS can now
foresee) materially and adversely affect, the business, operations,
properties, assets, or condition of the Web Site; and
Section 1.04 Material Contract Defaults. RBS and the Web Site are not in
default in any material respect under the terms of any outstanding contract,
agreement, lease, or other commitment which is material to the business,
operations, properties, assets, or condition of the Web Site, and there is no
event of default or other event which, with notice or lapse of time or both,
would constitute a default in any material respect under any such contract,
agreement, lease, or other commitment in respect of which RBS has not taken
adequate steps to prevent such a default from occurring.
Section 1.05 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust, or other material contract, agreement, or instrument to which RBS is a
party or to which any of its properties or operations are subject.
Section 1.06 Governmental Authorizations. RBS holds all licenses,
franchises, permits, and other governmental authorizations which are legally
required to enable RBS to operate the Web Site in all material respects as
conducted on the date hereof. No authorization, approval, consent, or order of,
or registration, declaration, or filing with, any U.S. or foreign court or other
governmental body is required in connection with the execution and delivery by
RBS of this Agreement and the consummation by RBS of the transactions
contemplated hereby.
Section 1.07 Compliance With Laws and Regulations. RBS has complied with
all applicable U.S. and foreign statutes and regulations of any federal, state,
provincial, or other governmental entity or agency thereof, except to the extent
that noncompliance would not materially and adversely affect the business,
operations, properties, assets, or condition of the Web Site or except to the
extent that noncompliance would not result in any material liability.
Section 1.08 OwneRBSip of the Domain Name. RBS hereby represents and
warrants that it is the legal and beneficial owner of "Stocktools.com" the
domain name, free and clear of any claims, charges, equities, liens, security
interests, and encumbrances whatsoever, and that it has full right, power, and
authority to transfer, assign, convey, and deliver the domain name; and that
delivery of such domain name at the Closing will convey to AXS good and
marketable title to such Assets, free and clear of any claims, charges,
equities, liens, security interest, and encumbrances whatsoever.
<PAGE>
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF AXS
As an inducement to, and to obtain the reliance of, RBS, AXS represents
and warrants as follows:
Section 2.01 Organization. AXS is a corporation duly organized, validly
existing, and in good standing under the laws of the state of Nevada, and has
the corporate power and is duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets and to carry on its business
in all material respects as it is now being conducted, and there is no
jurisdiction in which it is not qualified in which the character and location of
the assets owned by it or the nature of the business transacted by it requires
qualification. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, violate any
provision of AXS's certificate of incorporation or Memorandum. AXS has taken all
action required by law, its certificate of incorporation, and bylaws, or
otherwise to authorize the execution and delivery of this Agreement. AXS has
full power, authority, and legal right and has taken all action required by law,
its certificate of incorporation, bylaws, or otherwise to consummate the
transactions herein contemplated.
Section 2.02 Approval of Agreement. The board of directors of AXS has
authorized and approved the execution and delivery of this Agreement by AXS and
consummation of the transactions contemplated hereby.
ARTICLE III
PURCHASE OF ASSETS
Section 3.01 The Purchase.
(a) On the terms and subject to the conditions set forth in this
Agreement, on the Closing Date (as defined in section 3.02), RBS shall
assign, transfer, and deliver to AXS, free and clear of all liens,
pledges, encumbrances, charges, restrictions, or claims of any kind,
nature, or description, the domain name, Web Site and Assets; and AXS
agrees to acquire such by issuing and delivering in exchange therefore;
(i) one hundred thousand ($100,000) dollars as follows:
i. Fifty thousand ($50,000) dollars upon the signing of
this Agreement
ii. Twenty-five thousand ($25,000) dollars upon the
satisfactory transfer and RBS's installation of all hardware,
software, domain name and other components necessary for the
transfer of the Web Site and operations from RBS's current
premises and facilities located in Lewiston, Maine to the
premises and facilities of AXS located in Altamonte Springs,
Florida, and upon the satisfactory evidence of Web Site traffic
comprising of a minimum of 300,000 page views during the 30-day
period beginning with the first business day following the
satisfactory installation of the Web Site at the premises of
AXS.
iii. Twenty-five thousand ($25,000) dollars upon the
satisfactory evidence of Web Site traffic comprising of a
minimum of 300,000 page views during the second 30-day period
beginning with the first business day following the satisfactory
installation of the Web Site at the premises of AXS.
<PAGE>
(b) At the Closing, RBS shall:
(i) Execute a non-compete agreement (the "Non-compete
Agreement") as evidenced in Schedule C attached hereto and made
a formal part of this Agreement.
(ii) On the surrender of the domain name and Web Site,
be entitled to the compensation as specified above.
Section 3.02 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on a date evidenced by the execution of
this Agreement and payment of the initial consideration described in section
3.01(a), ("Closing Date"), which shall be no later than five (5) business days
after the date of the signing of this Agreement.
Section 3.03 Closing Events. At the Closing, each of the respective
parties hereto shall execute, acknowledge, and deliver (or shall cause to be
executed, acknowledged, and delivered) any and all certificates, opinions,
financial statements, schedules, agreements, resolutions, or other instruments
required by this Agreement to be so delivered at or prior to the Closing,
together with such other items as may be reasonably requested by the parties
hereto and their respective legal counsel in order to effectuate or evidence the
transactions contemplated hereby.
Section 3.04 Termination.
(a) This Agreement may be terminated by the board of directors
of AXS or RBS at any time prior to the Closing Date if:
(i) there shall be any actual or threatened action or
proceeding before any court or any governmental body which shall
seek to restrain, prohibit, or invalidate the transactions
contemplated by the Agreement and which, in the judgement of
such board of directors, made in good faith and based on the
advice of its legal counsel, makes it inadvisable to proceed
with the exchange contemplated by this Agreement;
(ii) any of the transactions contemplated hereby are
disapproved by any regulatory authority whose approval is
required to consummate such transactions or in the judgment of
such board of directors, made in good faith and based on the
advice of counsel, there is substantial likelihood that any such
approval will not be obtained or will be obtained only on a
condition or conditions which would be unduly burdensome, making
it inadvisable to proceed with the exchange; or
In the event of termination pursuant to this paragraph (a) of section
3.04, no obligation, right, or liability shall arise hereunder, and each party
shall bear all of the expenses incurred by it in connection with the
negotiation, drafting, and execution of this Agreement and the transactions
herein contemplated.
(b) This Agreement may be terminated at any time prior to the
Closing by action of the board of directors of AXS or RBS shall fail to
comply in any material respect with any of their covenants or agreements
contained in this Agreement or if any of the representations or
warranties of RBS contained herein shall be inaccurate in any material
respect. If this Agreement is terminated pursuant to this paragraph (b)
of section 3.04, this Agreement shall be of no further force or effect,
and no obligation, right, or liability shall arise hereunder.
<PAGE>
ARTICLE IV
SPECIAL COVENANTS
Section 4.01 Access to Properties and Records. AXS and RBS will each
afford to the officers and authorized representatives of the other full access
to the properties, books, and records of AXS and RBS, as the case may be, in
order that each may have full opportunity to make such reasonable investigation
as it shall desire to make of the affairs of the other, and each will furnish
the other with such additional financial and operating data and other
information as to the business and properties of AXS and RBS, as the case may
be, as the other shall time to time reasonably request.
Section 4.02 Third Party Consents. AXS and RBS agree to cooperate with
each other in order to obtain third party consents to this Agreement and the
transactions herein contemplated.
Section 4.03 Actions Prior to Closing.
(a) From and after the date of this Agreement until the Closing
Date, respectively, will each:
(i) carry on its business in substantially the same
manner as it has heretofore;
(ii) perform in all material respects all of its
obligations under material contracts, leases, and instruments
relating to or affecting its assets, properties, and business;
(iii) use its best efforts to maintain and preserve its
business organization intact, to retain its key employees, and
to maintain its relationship with its material suppliers and
customers; and
(iv) fully comply with and perform in all material
respects all obligations and duties imposed on it by all federal
and state laws and all rules, regulations, and orders imposed by
federal or state governmental authorities.
(b) From and after the date of this Agreement until the Closing
Date, neither AXS nor RBS will:
(i) enter into or amend any contract, agreement, or
other instrument of any types described in such party's
schedules, except that a party may enter into or amend any
contract, agreement, or other instrument in the ordinary course
of business involving the sale of goods or services.
ARTICLE V
MISCELLANEOUS
Section 5.01 Brokers. AXS represents that AXS it will assume obligation
to pay any compensation to any finders or brokers for bringing the parties
together or who were instrumental in the negotiation, execution, or consummation
of this Agreement not to exceed fifteen thousand ($15,000) dollars. Each party
agrees to indemnify the other against any other claim by any third person for
any commission, brokerage, or finders' fee or other payment with respect to this
Agreement or the transaction contemplated hereby based on any alleged agreement
or understanding between such party and such third person, whether express or
implied, from the actions of such party.
<PAGE>
Section 5.02 Governing Law. This Agreement shall be governed by,
enforced, and construed under and in accordance with the laws of the United
States of America and, with respect to matters of state law, with the laws of
Florida. The federal and state courts of the state of Florida shall have
exclusive jurisdiction over any dispute or controversy arising under or in
connection with this Agreement.
Section 5.03 Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it or
sent by registered mail or certified mail, postage prepaid, or by prepaid
telegram addressed as follows:
If to AXS, to: Axxess, Inc.
201 Park Place
Altamonte Springs, Florida 32701
If to RBS, to: Mr. Randall B. Shepardson
117 Lake Shore Blvd.
Stafford Springs, Connecticut 06076
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered, mailed, or
telegraphed.
Section 5.04 Attorneys' Fees. In the event that any party institutes any
action or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the breaching party or parties shall reimburse the
nonbreaching party or parties for all costs, including reasonable attorneys'
fees, incurred in connection therewith and in enforcing or collecting any
judgment rendered therein.
Section 5.05 Confidentiality. Each party hereto agrees with the other
parties that, unless and until the transactions contemplated by this Agreement
have been consummated, they and their representatives will hold in strict
confidence all data and information obtained with respect to another party or
any subsidiary thereof from any representative, officer, director, or employee,
or from any books or records or from personal inspection, of such other party,
and shall not use such data or information or disclose the same to others,
except (i) to the extent such data or information is published, is a matter of
public knowledge, or is required by law to be published; and (ii) to the extent
that such data or information must be used or disclosed in order to consummate
the transactions contemplated by this Agreement.
Section 5.06 Third Party Beneficiaries. This contract is solely between
AXS and RBS and, except as specifically provided, no director, officer,
stockholder, employee, agent, independent contractor, or any other person or
entity shall be deemed to be a third party beneficiary of this Agreement.
Section 5.07 Entire Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter hereof. This
Agreement alone fully and completely expresses the agreement of the parties
relating to the subject matter hereof. There are no other courses of dealing,
understanding, agreements, representations, or warranties, written or oral,
except as set forth herein. This Agreement may not be amended or modified,
except by a written agreement signed by all parties hereto.
Section 5.08 Survival; Termination. The representations, warranties, and
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated.
Section 5.09 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
<PAGE>
Section 5.10 Amendment or Waiver. Every right and remedy provided herein
shall be cumulative with every other right and remedy, whether conferred herein,
at law, of in entity, and may be enforced concurrently herewith, and no waiver
by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, any term or condition of this Agreement
may be waived or the time for performance hereof may be extended by a writing
signed by the party or parties for whose benefit the provision is intended.
Section 5.11 Indemnification. AXS agrees to indemnify and hold harmless
RBS at all times after the signing of this Agreement against and in respect of
any liability, damage or deficiency, all actions, suits, proceedings, demands,
assessments, judgements resulting from misrepresentations, breach of covenant,
or non-fulfillment of any agreement on the part of RBS with Mr. Shannon Pulse of
1015 Shady Lane, Jackson, Missouri.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
Axxess, Inc.
ATTEST:
[Signature appears here] By: Kevin Lichtman, President
------------------------ -------------------------
Randall B. Shepardson
ATTEST:
[Signature appears here] By: Randall Shepardson
------------------------ -------------------------
<PAGE>
EXHIBIT 10.10
AGREEMENT
This Agreement is entered into on February 17, 1999 by and between,
SlugFest.com, Inc., a Nevada corporation with offices at 201 Park Place, Suite
321, Altamonte Springs, FL 32701 (hereinafter referred to as "Buyer"), and Mr.
Patrick Welsh, whose address is 1655 Tannery Creek Rd., Bodega, California
94922, and whose social security number is ###-##-#### (hereinafter referred to
as "Seller").
WHEREAS, it is the desire of the parties to this Agreement effectuate the sale
and transfer of the assets known as SlugFest.com, subject to the terms and
conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. DESCRIPTION OF THE ASSETS. The assets of SlugFest.com (hereinafter the
"Assets" are as follows:
a) Ownership of the Internet domain name "SlugFest.com" is registered in
the name of "Kaizen Works, Inc. 1801 Reston Parkway Suite 101, Reston,
VA 20190" according to the records of InterNIC. Mr. Welsh warrants and
represents that he has full title and ownership of said domain name and
the assets it represents, as explained in the letters exchanged between
Mr. Welsh and Mr. Chris Ott, President of Kaizen Works, Inc. dated
September 30, 1996 and May 22, 1997, respectively, as well as the
certification dated February 2, 1999 of Sara Longson, Esq., the court-
appointed Trustee in bankruptcy of Kaizen Works, Inc. The
aforementioned documents are attached hereto as Exhibits A, B and C.
b) Certain intellectual property and other property of the web site known
as slugfest.com which includes but is not limited to web pages and html
documentation as well as applications hereby described as "Downloadable
Shockwave Game Modules" and hereinafter referred to as "Sluggables."
Each Sluggable represents a game module and is identified by the
character(s) appearing therein. Presently and for the purposes of this
Agreement, the property includes the following Sluggables:
1. Hanson
2. Spice Girls
3. Bill Clinton
4. Bill Gates
5. Mike Tyson
6. Marilyn Manson
7. "Blarney" the dinosaur
8. David Letterman
9. Fabio
10. Ted Kennedy
11. Rush Limbaugh
<PAGE>
12. Madonna
13. Richard Simmons
14. O.J. Simpson
15. Tori Spelling
16. Tommy Lee
17. Martha Stewart
18. Howard Stern
19. Leonardo DiCaprio (new)
20. Jerry Springer (new)
21. Puff Daddy (new)
22. Alan Greenspan
23. Motley Fool Jester
24. Donald Trump
25. Your Stockbroker
26. Michael Milliken
27. Ted Turner
28. Warren Buffet
29. Wayne Huizegna
30. Beardstown Ladies
31. To be selected by the Buyer by February 28, 1999.
32. To be selected by the Buyer by February 28, 1999.
c) Any additional programs, computer code or applications, which are owned
by the Seller and are integral components of the web site known as
SlugFest.com.
2. "AS IS" SALE. Buyer agrees that Seller makes no guarantees or warranties
concerning the site's popularity, profitability, or cost of operation.
3. TERMS AND CONDITIONS OF TRANSFER: - Buyer agrees to compensate Seller for
the sale and transfer of the Assets, upon Seller's performance of the following:
a) The granting of authorization to a change of level 1 and 2 DNS server
address with InterNIC for the domain name slugfest.com to the location
and DNS addresses provided by the Buyer.
<PAGE>
b) The provision of reasonable technical assistance, including traveling
to and rendering technical services and consulting to Buyer at its
place of business in order to complete the transfer of the web site's
content to Buyer and insure that the web site and all the Sluggable
characters are fully operational. Buyer will provide Mr. Welsh with
accommodations at either its corporate apartment or comparable hotel
during his stay and will reimburse Mr. Welsh for his airfare and ground
transportation costs during his stay.
c) The granting of authorization and consummation of the transfer of the
ownership of the domain name or names related to the Slugfest site as
reflected in the registration records of the InterNIC, and concurrent
transfer of all title and interest held by Seller in the Assets to the
Buyer.
4. COMPENSATION: - Buyer will compensate Seller for the sale and transfer of
the Assets as well as the design, production and delivery of the new Sluggables
as follows:
a) The sum of $60,000 in connection with transfer of the Assets as
follows:
i) $30,000 upon completion of sections 3(a), 3(b) and 3(c) of this
Agreement.
j) $30,000 upon completion of the transfer of all the Assets to the
Buyer, including the site being fully operable, along with the
delivery of approximately 10,000 e-mail addresses of Slugfest
customers.
5. ADDITIONAL ASSETS AND COMPENSATION. Additional compensation in the amount of
$13,700 will be paid to Seller for the creation and delivery of an additional
eleven (11) "Sluggables", as described in #22 to #32 of Paragraph 1(b) of this
Agreement. The new Financial Web Sluggables characters have been and will be
selected by the Buyer, as set forth in Paragraph 1(b), above, and must be
accepted by the Buyer as being of the same or higher quality as those characters
already in existence. Buyer reserves the right to reject any character based
solely upon its criteria as to quality. Compensation will be paid as follows:
a) Five thousand dollars ($5,000.) upon execution of this Agreement.
Seller expressly agrees that he shall not endorse or cash the $5,000
check submitted herewith, until he has executed and returned this
agreement to the buyer, under penalty of criminal and civil sanctions.
b) Eight thousand seven hundred dollars ($8,700) upon the delivery,
installation, full operation, and acceptance of the new Sluggables.
6. PERFORMANCE FOR ADDITIONAL COMPENSATION. Seller agrees to work diligently on
the creation of the new Sluggables referred to in Paragraphs 1 and 5, and shall
deliver, install, and render same fully operational and accepted within five
weeks of the execution of this Agreement, with the exception of Sluggables #31
and #32, which will be delivered, installed, operational and accepted within 5
weeks of the day Buyer selects same.
7. REPRESENTATIONS:
<PAGE>
a) Seller is the owner of and has good and marketable title to the Assets,
free from all encumbrances.
b) To Seller's knowledge, it has complied with all laws, rules, and
regulations of the city and state governments where it does business, and
with the federal government.
c) Seller will pay all taxes of any nature that may be due to any
governmental entity to date, as same relate to the transfer of the Assets.
d) Seller has entered into no contract to sell, mortgage, or provide any
security interest in the Assets, or any portion thereof
e) Seller has entered into no contract relating to the Assets.
f) There are no judgments, liens, or to Seller's knowledge actions or
proceedings pending or threatened against the Seller in any court.
g) To Seller's knowledge, the SlugFest site does not violate any publicity
statute or similar law concerning the public figures it portrays, nor has
Seller received any complaints or threats of litigation with respect
thereto.
h) Seller is vested with full title and ownership of the Assets, free and
clear of any equitable or legal interest that Kaizen Works, Inc. or any
creditor of same may have held in the past.
8. COVENANTS. The Seller covenants with the Buyer as follows:
a) Seller will transfer all of the assets enumerated, installed and
operating, free of all encumbrances.
b) All taxes related to the assets being transferred will be paid or provided
for up to the date of closing.
c) No judgments or liens will be outstanding, nor will litigation be pending
or threatened against the Seller at the time of closing.
d) All Assets transferred to the Buyer under this Agreement will become the
sole property of the Buyer and may not be reproduced, sold or otherwise
distributed without the express written consent of the Buyer.
e) Neither Kaizen Works, Inc., nor any creditor of same has any legal or
equitable interest in the Assets.
All representations and warranties made by the Seller shall survive the closing.
9. COVENANT NOT TO COMPETE. Seller agrees not to engage directly or indirectly
in any business of the type and character of the business engaged in by the
Buyer for a period of five (5) years any place in the world; provided the
Buyer performs all of its obligations under this Agreement.
10. 10 APPLICABLE LAW. This agreement shall be interpreted and enforced in
accordance with the laws of the State of Florida
11. AMENDMENTS. Any amendments to this agreement be only in writing executed by
both parties
12. TRANSFER AND ASSIGNMENT. No rights or duties may be transferred or assigned
by either party without the written approval of the other party.
13. NOTICES. All notices, payments or communications under this Agreement shall
be made in writing to the parties at the addresses set forth in the
introductory Paragraph of this Agreement.
<PAGE>
14. LITIGATION AND COSTS. In the event of litigation resulting from a breach of
this Agreement the prevailing party shall be entitled to the recovery of its
legal fees and costs, and Seller will indemnify Buyer for all costs, fees,
and judgments with respect to any claims made by any third parties of which
he was aware, but has not disclosed herein. Buyer may withhold payment of
all or any part of the purchase price to satisfy any costs, fees, or
judgments that it may incur under this Paragraph.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written:
/s/ Patrick Welsh /s/ Kevin Lichtman
- ------------------------------- -------------------------------
Patrick Welsh Kevin Lichtman
Seller President
SlugFest.com., Inc.
Buyer
<PAGE>
EXHIBIT 10.11
AGREEMENT
This Agreement is entered into on April 7, 1999, by and between,
FinancialWeb.com, Inc., a Nevada corporation with offices at 201 Park Place,
Suite 321, Altamonte Springs, FL 32701 (hereinafter referred to as "Buyer"), and
Mr. Mike Onghai, and Daily Stocks, Inc., the latter being a Delaware
Corporation, both of whom are domiciled at 545 W. 111 St., Apt. 4N, New York, NY
10025 for the purpose of this Agreement (hereinafter collectively referred to as
"Seller").
Whereas, it is the desire of the parties to this Agreement effectuate the sale
and transfer of the assets known as DailyStocks.com, DailyStocks.net, and all
property of every nature related thereto, (hereinafter the "Assets").
Now, Therefore, the parties agree as follows:
1. Description of the Assets. The Assets are as follows:
1.1 The Internet domain name "DailyStocks.com" is registered in
the name of DailyStocks, Inc.
1.2 The Internet domain name "DailyStocks.net" is registered in
the name of Mike Onghai 1610 Rendell Place, #A, Los Angeles,
CA 90026 according to the records of InterNIC.
1.3 All computer programs, computer codes, contracts and other
documentation and information related to the Assets,
including all intellectual property rights related thereto.
2. Ownership and Authority: The Seller warrants and represents that it has
full title and/or equitable ownership of the above described assets, and that
Mr. Onghai has full authority to bind the Seller corporation to this Agreement
in all respects.
3. Terms and Conditions of Transfer:
3.1 Buyer shall compensate Seller pursuant to the provisions of
Paragraph 5.1(b) and 5.2 of this Agreement upon Seller's
performance of the following:
3.2 The provision of reasonable technical assistance, not to exceed
ten (10) hours per week for a period of no more than three
months, including traveling to and rendering technical services
and consulting to Buyer at its place of business in order to
complete the transfer of the web sites content to Buyer and to
insure that the web sites are fully installed and operational in
accordance with Buyer's requirements. If necessary, Buyer will
provide Mr. Onghai with accommodations at either its corporate
apartment or comparable hotel in the Orlando area and will
reimburse Mr. Onghai for his airfare and ground transportation
costs during his stay.
3.3 Relinquishment of the Domain names for the 2 web sites currently
registered with InterNIC, and consummation of the transfer of all
title and interest held by Seller in the Assets to the Buyer,
including the execution of all documents that may be necessary,
including all those related to the Seller's intellectual property
rights in the Assets.
3.4 The transfer or assignment of all contractual rights with all
third parties related directly or indirectly to the Assets, and
the payment of all liabilities related directly and indirectly
thereto.
3.5 Seller shall disclose to Buyer all marketing efforts engaged in
with respect to the Assets over the past six months, and shall
deliver the Seller all contracts and other documentation related
thereto, and amounts paid therefor, so that such marketing
efforts may be appropriately taken into account by the Buyer with
respect to the Assets site traffic.
<PAGE>
4. In the event the average number of page views calculated by the Buyer
is less than 1.25 million per month, and same is or may be reasonably
assumed to be due to technical failures during the audit period, the
Seller shall have the option of canceling this agreement; however,
Seller must first give Buyer the opportunity to purchase the Assets
for 130,000 shares, or for such lesser number of shares (which is
higher than the average number calculated by the Buyer), and must
first receive the Buyer's refusal to consummate the purchase for the
offered number of shares (which refusal must be received within 5
working days of receipt thereof), in order to have the right to
cancel. In the event Buyer does not respond within the 5 days set
forth herein, Seller may cancel this Agreement, with no liability to
the Buyer. In the event the Seller communicates his intent to cancel
this Agreement, he shall include with said communication the $20,000
payment made pursuant to Paragraph 5.1(a), below.
5. Compensation - Buyer will compensate Seller for the sale and transfer of
the Assets, as well as for all technical assistance, as follows:
5.1 The sum of $40,000, as follows,
(a) $20,000 upon execution of this Agreement.
(b) $20,000 upon the transfer of all the Assets.
5.2 A maximum of One Hundred Thirty Thousand (130,000) shares of
FinancialWeb.com, Inc. stock, according to the formula and
subject to adjustments set forth herein, as follows:
(a) The exact amount of stock to be paid shall be based upon
the number of "page views" received by the two web sites
described in Paragraph 1 per month. A "page view" is
defined as; "a single request by a user to view a file
which represents the single file comprising all files
included in a single web page; all such files are denoted
by their file extension ".htm", ".html", "cgi", "php3",
"php" or "cgi-bin". No co-branded pages are to be
included in the page view count. The number of page views
shall be calculated in the following manner:
(b) The Buyer will verify the number of page views during the
month prior to the execution of this Agreement and the
number of page views during the month following the
execution of this Agreement, and shall determine the
exact number of page views received during each of the
verified months.
(c) The total number of page views during each of the two
verified months shall be added together and divided by
two in order to obtain the average number of page views
received over the aforedescribed two month period.
(d) Buyer shall issue to Seller 8 6/10 (8.6) shares of stock
for each one hundred page views. Thus, the formula shall
be; average number of page views divided by 100 times
8.6, minus any number in excess of 130,000.
(d) The exact number of shares to be issued shall be
determined exclusively by the Buyer, who shall rely upon
reports produced by Analog 2.0, a Unix software program
already residing on the server. Buyer shall have the
unrestricted right to employ any other method of audit
that he may choose, including the use of his own
software, and Seller agrees to cooperate accordingly.
(e) All shares paid under this Agreement shall be issued and
delivered as soon as administratively feasible following
closing.
<PAGE>
6. Shares:
The shares to be paid to the Seller are "restricted" shares. The
transferability of the Shares is restricted by the Securities Act of
1933 as, as amended (the "Act"), and applicable state securities laws
and regulations, and the shares will not be eligible to be sold unless
they are subsequently registered or an exemption from registration is
available. The certificates representing such shares will bear
appropriate legends referring to the restrictions on resale and
transferability imposed by the Act and applicable state securities
laws and regulations.
7. Obligations of Seller.
7.1 All accounts payable and other liabilities related to the Assets up to
the date of closing shall be paid by the Seller, and the Seller shall
indemnify and hold the Buyer harmless against all such accounts
payable and other liabilities.
7.2 One week prior to closing, the Seller shall furnish to the Buyer a
list of all amounts owed to all third parties, the total of said
amounts shall not exceed the sum of $7,500.
At the closing, the Seller shall furnish to the Buyer proof of payment
of all creditors, along with a list of outstanding creditors and the
amount owed to each, with a total amount not to exceed $5,000.
7.3 At the closing, Buyer shall pay all outstanding debts of the Seller,
and deduct said amount from the Payment of $20,000, to be made to
Seller pursuant to Paragraph 4.1(b) of this Agreement. Buyer reserves
the right to hold additional money in escrow, not to exceed five
thousand dollars ($5,000) for the payment of Seller's debts for a
period not to exceed 90 days.
8. Collection of Accounts Receivable.
8.1 All checks or other proceeds received by the Buyer in payment of
accounts due to the Seller as of the date of closing shall be turned
over to the Seller, provided that Seller shall have no outstanding
obligations to creditors. In the event there exist any undisputed
outstanding obligations of Seller, Buyer shall have the right to
endorse the Seller's name, negotiate any instrument or deposit any
proceeds received, satisfy said obligation, give an accounting thereof
to the Seller, and turn over to Seller any proceeds in excess of the
satisfied obligation.
8.2 All checks or other proceeds received by the Buyer subsequent to the
date of closing may be deposited by the Buyer in the Buyer's account,
subject, however, to the following. The Seller's accounts receivable
shall be paid first out of such proceeds to the Seller. After payment
of the Seller's accounts receivable is made in full, the balance of
the payment made may be retained by the Buyer.
8.3 All checks and other proceeds related to the web site received by the
Seller from the date of execution of this Agreement and continuing
into the indefinite future shall first be used to pay all accounts
payable and other liabilities of the web site.
8.4 In the event of a bona fide dispute with a creditor, Seller and Buyer
shall deposit any funds that may be received which may be used for the
payment of Seller's debts with Seller's attorney pending resolution of
same.
9 Representations:
9.1 Seller is the owner of and has good and marketable title to the
Assets, free from all encumbrances.
9.2 To Seller's knowledge, it has complied with all laws, rules, and
regulations of the city and state governments where it does business,
and with the federal government.
9.3 Seller will pay all taxes of any nature that may be due to any
governmental entity to date, as same relate to the transfer of the
Assets.
<PAGE>
9.4 Seller has entered into no contract to sell, mortgage, or provide any
security interest in the Assets, or any portion thereof.
9.5 Seller has entered into no undisclosed contract encumbering the
Assets.
9.7 There are no judgments, liens, or to Seller's knowledge actions or
proceedings pending or threatened against the Seller in any court.
9.8 Seller's financial statements for the period ending ____________
prepared by Certified Public Accountants, accurately reflect the
financial condition of the Seller for the periods therein indicated.
Since _____________, there have been no substantial adverse changes
in the financial condition of the Seller.
9.9 Seller is vested wtih full title and ownership of the Assets, free and
clear of any equitable or legal interest that any creditor of same may
now hold or may have held in the past.
10. Covenants of the Seller. The Seller covenants with the Buyer as follows:
10.1 Seller will transfer all of the assets enumerated, installed and
operating, free of all encumbrances, with the usual warranty and
affidavit of title.
10.2 The business of the Seller will be conducted up to the date of
closing in accordance with all laws, rules and regulations of the
city, state and federal governments.
10.3 All taxes related to the assets being transferred will be paid or
provided for up to the date of closing.
10.4 No judgments or liens will be outstanding, nor will litigation be
pending or threatened against the Seller at the time of closing.
10.5 All Assets transferred to the Buyer under this Agreement will become
the sole property of the Buyer and may not be reproduced, sold or
otherwise distributed without the express written consent of the
Buyer.
10.6 No creditor or other individual or entity has any legal or equitable
interest in the Assets.
10.6 The Seller up to the date of closing, will operate and maintain
Seller's web site in the regular course, and will not violate any
contract connected with the web site, and will not in any way
diminish the components or value of the Assets.
11. Covenants of the Buyer. All representations and warranties made by the
Seller shall survive the closing.
11.1 The Buyer shall not cancel the Allen & Co., Agreement dated
March 31, 1999 for a minimum period of six (6) months,
unless it is deemed to be in the best interest of the Buyer
to do so.
12. Closing. The closing will take place at the office of the Buyer or at a
mutually agreed upon location within 45 days of the execution of this
Agreement, on a date and time mutually acceptable to the Buyer and Seller.
13. Covenant Not To Compete. Seller agrees not to directly own an equity
interest, except in the form of an employee's or independent contractor's
stock options, in any web-based financial stock portal business of the type
and character of the business of the type and and character of the business
presently engaged in by the Buyer for a period of six (6) months any place
in the world; provided the Buyer performs all of its obligations under this
Agreement.
14. Applicable law. This agreement shall be interpreted and enforced in
accordance with the laws of the State of Florida, and the parties hereby
submit to the jurisdiction and venue of the Federal and State courts of
Florida in the event of a dispute.
<PAGE>
15. Amendments. Any amendments to this agreement be only in writing executed by
both parties.
16. Transfer and Assignment. No rights or duties may be transferred or assigned
by either party without the written approval of the other party.
17. Notices. All notices, payments or communications under this Agreement shall
be made in writing to the parties at the addresses set forth in the
introductory Paragraph of this Agreement.
18. Litigation and Costs. In the event of litigation resulting from a breach of
this Agreement the prevailing party shall be entitled to the recovery of its
legal fees and costs, and Seller will indemnify Buyer for all costs, fees,
and judgments with respect to any claims made by any third parties of which
he was aware, but has not disclosed herein. Buyer may withhold payment of
all or any part of the purchase price to satisfy any costs, fees, or
judgments that it may incur under this Paragraph.
19. Arbitration. Any dispute, difference, disagreement, or controversy between
the parties hereto, arising out of or in connection with this Agreement or
the interpretation of the meaning or construction of this Agreement, shall
be referred to a single arbitrator agreed upon the parties to such dispute.
If the parties to the dispute are unable to agree upon the selection of such
arbitrator, then an arbitrator shall be appointed by the American
Arbitration Association pursuant to its existing rules and regulations.
Every such dispute, difference, disagreement or controversy which is
submitted to arbitration shall be dealt with and disposed of pursuant to the
rules of the American Arbitration Association, in accordance with the laws
of the State of Florida, all hearings shall be held in Altamonte Springs,
Florida, the parties shall submit to the jurisdiction of the Florida State
and/or Federal Courts, if necessary, and every award or determination
therein shall be final and binding upon all of the parties. There shall be
no appeal from such award or determination, and judgement thereon may be
entered.
In witness whereof, the parties hereto have caused this Agreement to be executed
as of the date first above written:
/s/ Mike Onghai /s/ Kevin Lichtman
- ---------------------------------- ------------------------------------
Mike Onghai, individually Kevin Lichtman
President & Chairman
FinancialWeb.com, Inc.
/s/ Mike Onghai
- -----------------------------------
Mike Onghai, President
Daily Stocks, Inc
Seller
<PAGE>
EXHIBIT 10.12
THIS WEBSITE AGREEMENT (Agreement) is entered into as of the 15th day of
September, 1997, ("Effective Date") by and between Thomson Investors Network
("TIN"), having an address at 1355 Piccard Drive, Rockville, MD ("TIN"), and
Axxess, Inc., a Delaware corporation having offices at 201 Park Place, Ste.
321, Altamonte Springs, FL 32701 ("Axxess").
W I T N E S S E T H :
WHEREAS, TIN is in the business of assembling and organizing information from
electronic databases and creating therefrom HTML content for distribution by
way of the Internet.
WHEREAS, TIN is the proprietor of and has the right to license the Thomson
Investors Network content described in greater detail in Paragraph 1.
WHEREAS, Axxess offers Internet-based information services through a World Wide
Web service known as "FinancialWeb" capable of receiving, storing and
disseminating content by use of the Internet based computer hardware and
computer software and Internet based data communications networks ("the
System").
WHEREAS, TIN desires to make its HTML content available to Axxess for Axxess'
use.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein. TIN
and Axxess (collectively, the Parties) hereby agree as follows:
1. SERVICES
During the term of this Agreement, TIN agrees to provide the following services
to Axxess:
TIN will provide, host and maintain a co-branded Web site containing the
following:
Stock and Fund TipSheets; 25 Stock and 25 Funds reports per registered user per
month; PortfolioTracker for both Stocks and Funds; FlashMail for both Stocks and
Funds; LiveTicker; OTC Bulletin Board quotes, News.
TIN agrees to modify the report per user per month allotment going forward,
based on the mutual analysis and agreement between TIN and FinancialWeb.
1.2. TIN will provide, host and maintain for Axxess a private labelled
version of TIN's Real Time Quotes product for $50/CPM, no minimum flight
requirements. CPM count begins on the Indices page, which is the first quotes
page. Ad banner revenue on the private labelled site belongs to Axxess.
A full flight on the sponsored version of the Real Time Quotes site, for
$15/CPM, will be discounted by 10% if Axxess commits to the flight before
October 1, 1997.
1.3. "Trade Now" buttons on the current TIN site's Funds and Company
pages linking to Axxess from TIN's Trading Room.
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<PAGE>
2. GRANT OF LICENSE
2.1. Grant of License. Subject to the terms and conditions of this
Agreement, TIN hereby grants to Axxess a non-exclusive, non-transferable license
to distribute electronically via the Internet the HTML content for the sole
purposes of permitting Axxess's Subscribers to access the HTML content for
search and retrieval activities.
2.2. Distribution over Media. No other distribution of the HTML content
by Axxess including, but not limited to, distribution via site licensing, on-
line distribution, off-line downloading tapes, discs, CD-ROM, optical media,
hard copy formats, or print publication shall be permitted without the express
written permission of an authorized officer of TIN.
2.3. Sub-licensing. Axxess specifically agrees and understands that no
rights of dissemination by any third party and no rights to sub-license to any
third party are being granted to Axxess under this Agreement.
2.4. Right to HTML content, Copyrights and Trademarks. Except for the
limited license specifically provided herein, this Agreement shall not transfer
to Axxess any right, to or interest in, the HTML content, or in any data
included in the HTML content, or in any copyright or trademark pertaining
thereto.
3. PROPRIETARY RIGHTS
3.1. Axxess agrees to allow the System to display or print the following
notice (as such notice may be revised from time to time) whenever any user is
given access to a TIN page or report in the System:
Copyright, Thomson Investors Network, [year] All Rights Reserved
3.2. Upon the effective date of cancellation, expiration, or other
termination of this Agreement, the non-owning party shall discontinue any and
all use of the other's Marks, excepting solely for reasonable quantities of
general purpose materials (i.e., catalogs and brochures) which may be on hand at
that time and may be used until same are replaced or reprinted but not for
longer than six (6) months.
4. FEES
Axxess shall pay TIN fees owing to TIN within forty-five (45) days after the end
of each calendar month:
4.1. Licensing fee of $15,000 per month, payable as follows: $5,000 for
each of the first three months; $10,000 for each of the following three months;
$15,000 for each of the following three months; $30,000 for each of the
remaining three months.
Pay per view fees, based on fees offered TIN subscribers for this
service, will be shared equally between TIN and FinancialWeb.
5. WARRANTIES; DISCLAIMERS
5.1. TIN represents and warrants that TIN is the owner of, or has the
right to license the HTML content, as provided herein, and that, to the best of
its knowledge, the HTML content does not violate the copyrights, trademarks or
other proprietary rights of any third party.
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<PAGE>
5.2. TIN shall promptly correct or authorize Axxess to correct any
inaccuracies in the HTML content brought to TIN's attention by Axxess, provided
that TIN agrees that such corrections are reasonable.
5.3. TIN obtains information for inclusion in the HTML content from
sources which TIN believes to be reliable, but TIN does not guarantee the
accuracy and/or completeness of the HTML content or any date included therein.
TIN MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY ANY
PERSON OR ENTITY FROM THE USE OF THE HTML CONTENT OR ANY DATA INCLUDED THEREIN.
TIN MAKES NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF USE WITH RESPECT TO THE HTML CONTENT OR ANY DATA INCLUDED
THEREIN. AXXESS AGREES, AND SHALL REQUIRE EACH SUBSCRIBER TO AGREE, THAT IN NO
EVENT WILL TIN BE LIABLE FOR THE RESULTS OF AXXESS'S OR ANY SUBSCRIBER'S USE OF
THE HTML CONTENT, FOR ITS OR THEIR INABILITY OR FAILURE TO CONDUCT ITS OR THEIR
BUSINESS, OR FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES. AXXESS FURTHER
AGREES THAT IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF TIN FOR ANY
CLAIMS, LOSSES, OR DAMAGES ARISING UNDER THIS AGREEMENT AND SERVICES PERFORMED
HEREUNDER. WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, EXCEED THE TOTAL
AMOUNT PAID BY AXXESS TO TIN DURING THE PRECEDING TWELVE- (12-) MONTH PERIOD,
EVEN IF TIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL CLAIM, LOSS,
OR DAMAGE. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN
DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER
REMEDIES.
Neither party shall have any liability for lost profits, indirect,
special or consequential damages.
5.5. TIN acknowledges and agrees that it will not:
(i) recommend or endorse specific securities;
(ii) take part (other than by routing messages) in the financial
services offered by Axxess, including the opening, maintenance,
administration, or closing of accounts, the solicitation of trades, or
provide specialized assistance in resolving problems, discrepancies or
disputes involving brokerage accounts or related securities
transactions;
(iii) answer questions or engage in negotiations involving
Axxess brokerage accounts or related securities transactions and will
direct all such inquiries to Axxess customer service support personnel;
(iv) accept orders, select among broker-dealers or route orders
for customers to markets for execution;
(v) handle customer funds or securities related to securities
orders transmitted to Axxess or effect clearance or settlement of
customer trades; or
(vi) extend credit to any customer for the purpose of purchasing
securities through, or carrying securities with, Axxess.
5.6. The provisions of this Paragraph 5 shall survive any termination of
this Agreement.
6. FORCE MAJEURE
Neither Axxess nor TIN shall bear any responsibility or liability for any losses
arising out of any delay
3
<PAGE>
in or interruption of their performance of their obligations under this
Agreement due to any act of God, act of governmental authority, act of the
public enemy or due to war, riot, fire, flood, civil commotion, insurrection,
labor difficulty (including, without limitation, any strike or other work
stoppage or slowdown) severe or adverse weather condition or other cause beyond
the reasonable control of the party so affected.
7. TERMINATION
The term of this Agreement shall commence as of the date hereof and
shall terminate one (1) year from the Commencement Date. Thereafter, this
Agreement shall automatically renew each year for successive one (1) year terms,
unless Axxess notifies TIN in writing of its decision not to renew at least
thirty (30) days prior to the end of any such one year term, or unless TIN
notifies Axxess in writing of its decision not to renew at least ninety (90)
days prior to the end of any one (1) year renewal term after the first renewal
term.
7.1. In the case of material breach by either party of any of the terms
of this Agreement, the party not in breach may terminate this Agreement by
giving thirty (30) days' written notice if the breaching party shall not have
corrected such material breach within such thirty (30) day period.
Either party hereto may terminate this Agreement immediately by giving
written notice if a petition shall be filed against the other party under any
provision of the Bankruptcy Code or amendments thereto or if a receiver shall be
appointed for the other party or any of its property and said petition or
appointment shall remain un-vacated for a period of thirty (30) days, or if the
other party shall file a petition under any provision of the Bankruptcy Code or
amendments thereto or file any petition or action under any reorganization,
insolvency or debt moratorium law or any other law or laws for the relief of or
relating to debtors, or if the other party takes any corporate action to
initiate any of the foregoing, or if a writ of attachment or injunction shall be
issued against the other party or any of its property such that either will not
be able to continue its normal operations as contemplated under this Agreement
and said attachment or injunction shall not be removed, bonded or vacated within
thirty (30) days, or if the other party shall be unable to admit in writing that
it is able to pay its debts as they mature, become insolvent, however evidenced,
commit an act of bankruptcy, make an assignment for the benefit of creditors,
appoint a committee of creditors or liquidating agent, or make an offer of
composition or bulk sale or if the other party shall be dissolved or apply for
dissolution or cease to do business, other than in connection with a corporate
reorganization.
8. INDEMNIFICATION
8.1. TIN shall indemnify Axxess and hold it harmless from any and all
actions, injuries, damages and liabilities, including reasonable attorneys'
fees, arising out of (i) an alleged infringement of the copyrights or trademarks
of any person resulting from Axxess's authorized distribution of the HTML
content, or (ii) a breach of TIN's representations and warranties of this
Agreement.
8.2. Axxess shall indemnify TIN and hold it harmless from any and all
actions, injuries, damages and liabilities, including reasonable attorneys'
fees, arising out of (i) an alleged infringement of the copyrights or trademarks
of any person with respect to the System; or (ii) a breach of Axxess's
representations and warranties of this Agreement.
Conditions Precedent. The obligations of either party to provide
indemnification under this Agreement shall be contingent upon the party seeking
indemnification (i) providing the indemnifying party with prompt written notice
of any claim for which indemnification is sought, (ii) cooperating fully with
the indemnifying party and (iii) allowing the indemnifying party to control the
defense and settlement of such claim.
4
<PAGE>
8.4. Axxess will indemnify TIN for any claim arising in connection with
the activities referred to in Section 5.5.
9. INJUNCTIVE RELIEF
In the event of a breach of threatened breach of any of the provisions
of this Agreement by Axxess, or any employee or representative of Axxess, Axxess
acknowledges that TIN shall be entitled to seek preliminary and permanent
injunctive relief to enforce the provisions hereof, but nothing herein shall
preclude TIN from pursuing any action or other remedy for any breach or
threatened breach of this Agreement, all of which shall be cumulative.
10. CONFIDENTIALITY
10.1. Axxess shall treat as strictly confidential and shall not disclose
or transmit to any third parties the specific terms of this Agreement, or any
documentation, contents thereof, or other proprietary or confidential materials
provided to Axxess during the term of this Agreement. Information shall not be
deemed as "proprietary" or "confidential" which (i) is or becomes publicly known
through no wrongful act of the Axxess; (ii) is rightfully received from a third
party without restriction and without breach of this Agreement; (iii) is
developed or received independently by Axxess; or (iv) is approved for release
by written authorization by TIN.
10.2. TIN shall treat as strictly confidential and shall not disclose or
transmit to any third parties any documentation, contents thereof, or other
proprietary or confidential materials provided to TIN during the term of this
Agreement. Information shall not be deemed "proprietary" or "confidential" which
(i) is or becomes publicly known through no wrongful act of TIN; (ii) is
rightfully received from a third party without restriction and without breach of
this Agreement; (iii) is developed or received independently by TIN; or (iv) is
approved for release by written authorization by Axxess.
11. OTHER MATTERS
11.1. This Agreement shall be binding upon and shall inure to the
benefit of the undersigned parties and their respective successors and permitted
assigns. No assignment of this Agreement shall be made by either party without
the prior written consent of the other party, except that either party may
assign this Agreement to any company in control of, controlled by or under
common control with such party. Except in the case of transfers to affiliated
companies, any change in the effective voting control of either party or any
merger into or acquisition by any third party of either party hereto or the sale
of all or substantially all of the assets of either party shall be deemed an
attempted assignment requiring the prior written consent of the other party.
11.2. This Agreement constitutes the entire agreement of the parties
hereto with respect to its subject matter and may be amended or modified only in
writing and signed by duly authorized officers of both parties. This Agreement
supersedes all previous agreements between the parties. There are no oral or
written collateral representations, agreements, or understandings except as
provided herein.
11.3. No breach, default or threatened breach of this Agreement by
either party shall relieve the other party of its obligations or liabilities
under this Agreement with respect to the protection of the property or
proprietary nature of any property which is the subject of this Agreement.
11.4. If any provision of this Agreement shall finally be held illegal
or unenforceable, such provisions shall be severed and the remainder of the
Agreement shall remain in full force and effect unless the business purpose of
the Agreement is substantially frustrated thereby.
5
<PAGE>
11.5. No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any other breach of the same or other provision of this
Agreement and no waiver shall be effective unless made in writing.
11.6. All notices and other communications under this Agreement shall be
in writing and shall be deemed given when delivered by hand or by confirmed
facsimile transmission or five (5) days after mailing, postage prepaid, by
register or certified mail, return receipt requested, to the below address or
such other addresses as either party shall specify in a written notice to the
other.
Notice to TIN: Thomson Investors Network
1355 Piccard Drive
Rockville, MD 20850
Attention: Edward F. Murphy
Notice to Axxess: Axxess, Inc.
201 Park Place, Suite 321
Altamonte Springs, FL 32701
Attention: Kevin A. Lichtman
11.7. Headings used in this Agreement are for reference purposes only
and shall not be deemed a part of this Agreement.
11.8. This Agreement shall be interpreted, construed and enforced in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first set forth above.
Axxess, Inc.
By: [Signature Appears Here]
------------------------------
Title: President
---------------------------
Thomson Investors Network
By:
------------------------------
Title:
---------------------------
6
<PAGE>
EXHIBIT 10.13
DISTRIBUTOR AGREEMENT
Agreement between MEDIA GENERAL FINANCIAL SERVICES, INC., a Virginia
Corporation with its principal place of business at 333 East Grace Street,
Richmond, Virginia 23219 ("Media"), and AXXESS, INC., a Nevada Corporation, with
its principal place of business at 201 Park Place, #321, Altamonte Springs,
Florida 32701 ("AXXESS").
1. Subject to the terms and conditions of this Agreement, Media hereby
grants to AXXESS a non-exclusive license to install, market, and distribute the
QuickSource dataset of selected elements of Media's common stock database
through AXXESS's www.rapidresearch.com Web site described in EXHIBIT I attached
hereto and incorporated herein by reference. The QuickSource data elements
licensed, hereinafter referred to as "Media data", are shown in EXHIBIT II,
attached hereto and made a part hereof. The licensed Media data shown in EXHIBIT
II of this Agreement may be utilized in part or in whole by the AXXESS Web site
under the terms and conditions shown in EXHIBIT III. In addition, AXXESS may
build a screening module for its WEB site under the terms and conditions shown
in EXHIBIT IV. In addition to the license granted hereunder for use of the Media
data through AXXESS's www.rapidresearch.com Web site, AXXESS may develop and
market such other products utilizing the Media data as the parties mutually
agree to add to this Agreement by additional specific Amendments, subject to the
provisions of Paragraph 14 hereof.
Media reserves the right to modify its databases from time to time in
its sole discretion. Media shall give AXXESS sixty (60) days prior written
notice if any such change will affect the Media data.
The Media data will be made available to AXXESS via such media and in
such format as shall be mutually agreed upon. Frequency of delivery of the Media
data to AXXESS will be daily according to a production schedule as shall be
mutually agreed upon.
<PAGE>
DISTRIBUTOR AGREEMENT Page 2
Media shall have no liability for delays or non-performance occasioned
by causes beyond its control, including but not limited to acts of God, fires,
inability to obtain materials, strikes or other labor actions, breakdown of
equipment, delays or shutdowns of carriers or suppliers, and government acts or
regulations.
2. (a) Media represents and warrants to AXXESS that the Media data as
delivered to AXXESS does not and will not infringe upon or violate any patent,
copyright, trade secret or any other proprietary rights of any third-party, or
otherwise subject AXXESS to liability. In the event of any claim, suit or action
by any third party against AXXESS arising out of Media's alleged breach of the
foregoing representation and warranty, AXXESS shall promptly notify Media, and
Media shall defend such claim, suit or action in AXXESS's name but at Media's
expense under Media's control. Media shall indemnify and hold harmless AXXESS
against any loss, cost or damage, expense or liability arising out of such
claim, suit or action (including litigation costs and reasonable attorneys fees)
whether or not such claim, suit or action is successful. Should any material
and/or information constituting Media data become, or in Media's opinion be
likely to become, the subject of a claim for infringement, Media may authorize
the continued use of, replacement, removal, or modification of such material
and/or information to render it non-infringing.
(b) AXXESS represents and warrants to Media that neither the
reformatting nor the means of presentation on or through the AXXESS service will
cause the Media data to infringe upon or violate any patent, copyright, trade
secret or any other proprietary rights of any third party, or otherwise subject
Media to liability. In the event of any claim, suit or action by any third party
against Media arising out of AXXESS's alleged breach of the foregoing
representation and warranty, Media shall promptly notify AXXESS, and AXXESS
shall defend such claim, suit or action in Media's name but at AXXESS's expense
under AXXESS's control. AXXESS shall indemnify and hold harmless Media against
any loss, cost or damage, expense or liability arising out of such claim, suit
or action (including litigation costs and reasonable attorneys fees) whether or
not such claim, suit or action is successful.
<PAGE>
DISTRIBUTOR AGREEMENT Page 3
(c) Media bases its data input on sources believed by it to be reliable
and will endeavor to ensure that the data contained in the licensed Media data
are complete, accurate and timely. However, Media does not represent, warrant,
or guarantee such completeness, accuracy or timeliness, and it shall have no
liability of any kind whatsoever to AXXESS, to any of AXXESS's customers, or to
any other party, on account of any incompleteness of, inaccuracies in or
untimeliness of the Media data provided hereunder, or for any delay in reporting
such data. Media expressly disclaims all warranties of fitness of the Media data
or computations and analyses thereof for a particular purpose or use. With
regard to the subject matter of this Paragraph 2(c), in no event shall Media
have any liability of any kind for any damages even if notified of the
possibility of such damages. Except as specifically set forth in this Agreement,
neither party makes any warranties and each party hereto specifically disclaims
any implied warranties of merchantability or fitness for a particular purpose.
(d) AXXESS shall insure that the Media data displayed in web pages,
individual reports and in a screening module shall be clearly identified as
provided by Media with the following source: "Data provided by Media General
Financial Services, Inc., Richmond, VA". In addition, in materials that describe
the sources of data in the AXXESS service, AXXESS must provide an appropriate
disclaimer approved by Media and containing a paraphrase of the language
contained in subparagraph 2(c) above. In addition, AXXESS shall include in its
www.rapidresearch.com service, at the request of Media, a hyperlink to the Media
Web site.
3. The purpose of providing the Media data to AXXESS is to disseminate
the Media data in the markets served by AXXESS. Any other use of the Media data
by AXXESS not expressly authorized herein must be approved in advance in writing
by Media in its sole discretion.
4. (a) AXXESS will perform all necessary accounting, billing and
collection for use of the Media data. For the license hereby granted to AXXESS
by Media to offer the Media data through the product set forth in EXHIBIT I,
AXXESS shall pay to Media a monthly royalty fee calculated as follows:
<PAGE>
DISTRIBUTOR AGREEMENT Page 4
Monthly fee which shall be the greater of:
. 30% of the net advertising revenue realized by any page that contains
MGFS data (net advertising revenue will be the gross receipts of any
advertisements contained on any page of Media data, less agency fees
or commissions).
or
. 40% for any non-advertising based components of the Media data (e.g.,
subscription or pay-per-view data).
or
. $500 per month for months 1 and 2....................($ 1,000)
. $1,000 per month for months 3 and 4....................($ 2,000)
. $1,500 per month for months 5 and 6....................($ 3,000)
. $2,000 per month for months 7 and 8....................($ 4,000)
. $3,000 per month for months 9 and 10...................($ 6,000)
. $4,000 per month for months 11 and 12..................($ 8,000)
---------
($24,000)
These royalty payments will begin with the earlier of: (i) the first month in
which the Media data is made available on the www.rapidresearch.com Web site or
(ii) November 1, 1997.
(b) AXXESS shall pay such royalties to Media on or before the thirtieth
(30th) day after the month in which the royalties shall accrue, and if any
payment due hereunder is not received by Media within that period, Media shall
have the option to discontinue providing the Media data and of terminating this
Agreement should such payment not be received within 30 days after written
notice to AXXESS. Each royalty payment by AXXESS for use of the Media data shall
be accompanied by a royalty statement showing detailed computation (including
agency and advertising sales commission) of monthly royalty fees due Media, if
necessary. AXXESS also agrees to provide Media with monthly figures on the
number of hits or "page views" of the Media data on its service.
<PAGE>
DISTRIBUTOR AGREEMENT Page 5
(c) At Media's option and no more than once per year, an independent
auditor selected by Media may inspect, audit and copy, during regular business
hours and with advance notice of at least five (5) days, those records of AXXESS
that specifically relate to usage of the Media data hereunder, for the purpose
of verifying the accuracy of the royalty payments made to Media and the accuracy
of AXXESS's reports specified in Paragraph 4(b). Such right of inspection shall
exist during the terms of this Agreement and for twelve (12) months thereafter.
Media shall pay the fees of any auditor selected pursuant to this subparagraph,
unless the results of the audit show a deficiency of more than five percent (5%)
in royalty payments made to Media hereunder, in which case, in addition to the
deficiency, which shall be due immediately in any event, AXXESS shall pay the
costs of such audit.
5. AXXESS agrees that its user agreements do and will contain provisions
prohibiting its customers accessing the Media data for resale and redistribution
of the data obtained from the AXXESS service (which will include the Media data)
in any form. A current copy of the AXXESS User Agreement is attached and hereto
and made a part hereof in EXHIBIT IV. AXXESS represents and warrants to Media
that it assumes all responsibility for the accuracy, integrity and support of
its software which utilizes the Media data. Specific references by AXXESS that
the Media data has any predictive value for the purpose of enhancing investment
returns are strictly prohibited.
6. AXXESS represents and warrants that the Media data supplied hereunder
shall be used and released from its data system only in accordance with the
terms of this Agreement and in furtherance thereof. The license granted under
Paragraph 1 hereof does not permit AXXESS to use, sell or distribute the Media
data for any use or purpose other than those specifically set forth in the
EXHIBITS attached hereto and made a part hereof.
<PAGE>
DISTRIBUTOR AGREEMENT Page 6
7. Any use of the names or marks or either party in connection with
promotional activities, advertising, or other use outside the ordinary course of
business in performing this Agreement shall be subject to the prior written
approval of the other party. Notwithstanding anything contained herein to the
contrary, both parties shall have the right to disclose that it has entered into
this Agreement.
8. AXXESS acknowledges that the Media data in the form delivered
represent confidential proprietary business information and that its utilization
of the Media data is strictly limited in accordance with this Agreement. Media
acknowledges that any AXXESS software used for the access, delivery and
manipulation of Media data represents confidential proprietary business
information and utilization of such software by Media or any of its employees or
agents is strictly limited in accordance with the terms of this Agreement.
9. AXXESS acknowledges that the Media data consist of factual
information gathered, selected and arranged by Media by special methods and at
considerable expense; that the Media data, and all titles, formats and other
descriptive headings associated herewith, are and at all times shall be, the
sole property of Media, and that neither AXXESS nor any of its agents in any
capacity shall sell or otherwise dispose of or distribute the Media data, or any
portion thereof, to others at any time, either during or after the expiration
of this Agreement, except as permitted by the terms hereof. Upon notice thereof,
AXXESS will act promptly to prevent any breach or continuation of a breach by a
subscriber or any of its agents of the provisions of this Agreement, or its
subscriber agreements, such action to include termination of services, if
required by Media.
10. AXXESS expressly recognizes and acknowledges that its covenants set
forth in Paragraphs 6, 7, 8, and 9 are reasonable requirements of Media in the
protection of substantial business interests. AXXESS further acknowledges that
the remedy at law for breach of any of its undertaking in said paragraphs would
be inadequate and that, in
<PAGE>
DISTRIBUTOR AGREEMENT Page 7
addition to all other remedies provided by law, Media shall be entitled to
injunctive relief restraining any breach or threatened breach. AXXESS's
liability for breach of this Agreement and for sums due to Media hereunder shall
survive any termination hereof. Except for amounts payable to third parties
pursuant to the indemnification provision of Section 2 hereof, and to the extent
permitted by applicable law, neither Media nor AXXESS shall have any liability
for any special, indirect, incidental or consequential damages even if advised
of the possibility thereof. The foregoing limitation of liability shall apply
regardless of the cause of action under which such damages are sought,
including, without limitation, breach of contract, negligence, or other tort.
11. (a) Subject to the terms and conditions described below, the term of
this Agreement shall be for a period of one (1) year from the effective date of
this Agreement, specified in Paragraph 18. Notwithstanding the termination or
expiration of this Agreement, the right and obligations under Paragraphs 2, 4,
5, 6, 7, 8, 9, 10 and of this Paragraph 11 shall survive and continue and bind
the parties and their legal representatives and permitted assigns.
(b) Promptly following termination or expiration of this Agreement for
any reason, AXXESS shall use all reasonable efforts to purge all Media data from
its systems and return any tapes or other media on which the Media data or any
other Media information may have been provided, together with all copies
thereof, whether in printed or machine-readable form, to Media. AXXESS shall
certify to Media in writing that the requirements of this paragraph have been
met within ten (10) days of termination.
(c) Either Media or AXXESS may terminate this Agreement and the license
conferred hereunder as follows:
(i) Media may terminate as specified in Paragraph 4(b).
(ii) Either party may terminate if the other breaches any other term or
covenant of this Agreement, and such breach continues unremedied for sixty (60)
days after written notice to the party in breach by the other party. Either
party may seek liability for breach of this Agreement by the other party.
<PAGE>
DISTRIBUTOR AGREEMENT Page 8
12. All marketing and promotional references to the Media data to be
used by AXXESS in its efforts to market AXXESS's service involving use of the
Media data shall be subject to the prior written approval of Media. In the event
that Media advertises its connection with AXXESS's service, or in the event
Media or any Media agent promotes the availability of the Media data on AXXESS's
service, AXXESS shall have the right to prior approval of all materials used in
such efforts. If the approving party does not respond within five (5) days, the
other party may consider the materials approved.
13. All notices, payments and other communications permitted or required
by this Agreement shall be in writing addressed as follows:
(a) MEDIA GENERAL FINANCIAL SERVICES, INC.
333 EAST GRACE STREET
RICHMOND, VIRGINIA 23219
ATTN: Dennis H. Cartwright, President & CEO
(b) AXXESS, INC.
201 PARK PLACE, #321
ALTAMONTE SPRINGS, FLORIDA 32701
ATTN: Kevin Lichtman, President
Either party may change its address for such matters by notice given in
the manner prescribed above. If sent by certified or registered mail, notices
shall be effective three business days after posting; otherwise, notices shall
be effective upon receipt by the other party.
14. This Agreement represents the entire understanding between AXXESS
and Media as to the subject matter hereof. Any amendments or additions hereto
shall be only in writing executed by the parties.
15. This Agreement is made in, and shall be governed by and construed in
accordance with the laws of, the State of Virginia.
<PAGE>
DISTRIBUTOR AGREEMENT Page 9
16. No rights or duties hereunder may be transferred or assigned by
either party in any manner without the written approval of the other party in
its sole discretion, other than to a subsidiary, parent or other affiliate of
the transferring or assigning party. Media may not transfer or assign this
Agreement without the consent of AXXESS, which shall not be unreasonably
withheld.
17. No waiver of any breach of any term or condition herein shall be
deemed to be a waiver of any subsequent breach of any term or condition. Failure
or delay by either party in exercising any right or authority hereunder shall
not be construed as a waiver of such right or authority.
18. This Agreement shall become effective on the date it is signed by
the last party to execute the Agreement, as shown below.
MEDIA GENERAL FINANCIAL SERVICES, INC. AXXESS, INC.
333 EAST GRACE STREET 201 PARK PLACE, #321
RICHMOND, VIRGINIA 23219 ALTAMONTE SPRINGS, FLORIDA 32701
/s/ Dennis H. Cartwright /s/ [SIGNATURE APPEARS HERE]
By: ____________________________ By: ____________________________
President & CEO President
Title: _________________________ Title: _________________________
October 6, 1997 September 17, 1997
Date: __________________________ Date: __________________________
<PAGE>
EXHIBIT 10.14
[LETTERHEAD OF AXXESS MEDIA GROUP, INC. APPEARS HERE]
CONTENT LICENSING AGREEMENT
This Agreement between AXXESS, INC. (D.B.A. AXXESS MEDIA GROUP, INC.), a
Nevada Corporation with its principal place of business at 201 Park Place, Suite
321, Altamonte Springs, FL 32701 ("AXXS"), and Douglas Pike, an individual whose
principal place of residence is at 13103 N. 103rd Street, Scottsdale, Arizona
85260 ("MR. PIKE") is entered into on December 31, 1997.
1. Subject to the terms and conditions of this agreement, MR. PIKE
hereby grants to AXXS an exclusive license to install, market, and distribute
editorial content developed by MR. PIKE and known as the "Doubtful Accounts"
through AXXS's www.financialweb.com web or www.investoons.com site (hereafter
referred to as www.financialweb.com). The Doubtful Accounts may be utilized in
part or in whole by the AXXS web site and AXXS may edit any such content so long
as it does not change the meaning of facts of such content materially.
(a) In connection with the Doubtful Accounts content MR. PIKE will endeavor to
provide AXXS:
(i) on monthly basis four (4) cartoons hereby known as "Doubtful
Accounts" no later than the 1st day of each calendar month for publication by
AXXS, and:
(ii) from time to time, additional cartoons or articles as mutually
agreed and considered complimentary to the Doubtful Accounts content.
(b) MR. PIKE represents and agrees that all cartoons furnished by AXXS for
publication are original and have not been previously published by MR. PIKE
or any other party and that AXXS is granted by MR. PIKE exclusive right to
publish said cartoons on its web site and that MR. PIKE will not confer or
convey these rights onto any other party without AXXS's prior consent.
(c) MR. PIKE shall have no liability for delays or non-performance occasioned
by causes beyond its control, including but not limited to acts of God,
fires, inability to obtain materials, strikes or other labor actions,
breakdown of equipment, delays or shutdowns of carriers or suppliers, and
government acts or regulations.
2. MR. PIKE represents and warrants to AXXS that:
(a) The Doubtful Accounts content as delivered to AXXS does not and
will not infringe
<PAGE>
[LETTERHEAD OF AXXESS MEDIA GROUP, INC. APPEARS HERE]
upon or violate any patent, copyright, trade secret or any other
proprietary rights of any third party against AXXS arising out of
MR. PIKE's alleged breach of the foregoing representation and
warranty, AXXS shall promptly notify MR. PIKE, and MR. PIKE shall
defined such claim, suit or action in AXXS's name but at MR.
PIKE's expense under MR. PIKE's control. MR. PIKE shall indemnify
and hold harmless AXXS against any loss, cost or damage, expense
or liability arising out of such claim, suit or action (including
litigation costs and reasonable attorney's fees) whether or not
such claim, become, or action is successful. Should any material
and/or information constituting the Doubtful Accounts content
become, or in MR. PIKE's opinion be likely to become, the subject
of a claim for infringement, MR. PIKE may authorize the continued
use of, replacement, removal, or modification of such material
and/or information to render it non-infringing.
(b) AXXS represents and warrants to MR. PIKE that neither the
reformatting nor the means of presentation on or through the AXXS
service will cause the Doubtful Accounts content to infringe upon
or violate any patent, copyright, trade secret or any other
proprietary rights of any third party, or otherwise subject MR.
PIKE to liability. In the event of any claim, suit or action by
any third party against MR. PIKE arising out of AXXS's alleged
breach of the foregoing representation and warranty, MR. PIKE
shall promptly notify AXXS, and AXXS shall defend such claim, suit
or action in MR. PIKE's name but at AXXS's expense under AXXS's
control. AXXS shall indemnify and hold harmless MR. PIKE against
any loss, cost or damage, expense or liability arising out of such
claim, suit or action (including litigation costs and reasonable
attorneys fees) whether or not such claim, suit or action is
successful.
(c) MR. PIKE bases his content on sources believed by himself to be
reliable and will endeavor to ensure that the data contained in
the Doubtful Accounts content complete, accurate and timely.
However, MR. PIKE does not represent, warrant, or guarantee such
completeness, accuracy or timeliness, and it shall have no
liability of any kind whatsoever to AXXS, to any of AXXS's
customers, or to any other party, or account of any incompleteness
of, inaccuracies in or untimeliness of the Doubtful Accounts
content provided hereunder, or for any delay in reporting such
content. MR. PIKE expressly disclaims all warranties of fitness of
the Doubtful Accounts content or computations and analyses thereof
for a particular purpose or use.
(d) AXXS shall insure that the Doubtful Accounts content displayed in
web pages, individual reports an elsewhere on the AXXS web site
shall be clearly identified as provided by MR. PIKE. In addition,
AXXS shall include in its www.financialweb.comservice, at the
request of MR. PIKE, a hyperlink to MR. PIKE's web site.
<PAGE>
[LETTERHEAD OF AXXESS MEDIA GROUP, INC. APPEARS HERE]
3. The purpose of providing the Doubtful Accounts content to AXXS is to
disseminate the Doubtful Accounts content in the markets served by AXXS. Any
other use of the Doubtful Accounts content by AXXS not expressly authorized
herein must be approved in advanced in writing by MR. PIKE in its sole
discretion. Whereby it is further understood that in instances where MR. PIKE
provides approval for such distribution, AXXS will compensate MR. PIKE an amount
to be determined and agreed to by both parties.
4. For the license hereby granted to AXXS by MR. PIKE to offer the
Doubtful Accounts content through the AXXS web site, AXXS shall pay to MR. PIKE
a monthly royalty fee $400 per month.
(a) AXXS shall pay such royalties to MR. PIKE on or before the
fifteenth (15th) day of the month in which the royalties shall accrue, and if
any payment due hereunder is not received by MR. PIKE within that period, MR.
PIKE shall have the option to discontinue providing the Doubtful Accounts
content and of terminating its Agreement should such payment not to be received
within 30 days after written notice to AXXS.
5. All copyrights of the Doubtful Accounts content belong to and remain
the property of MR. PIKE.
(a) AXXS will not change or alter the copyright mark or date
from the images supplied by MR. PIKE pursuant to the Doubtful Accounts content.
6. AXXS agrees that its user agreements do and will contain provisions
prohibiting its customers accessing the Doubtful Accounts content for resale and
redistribution of the data obtained from the AXXS service (which will include
the Doubtful Accounts content) in any form. AXXS represents and warrants to MR.
PIKE that it assumes all responsibility for the accuracy, integrity and support
of its software which utilizes the Doubtful Accounts content. Specific
references by AXXS that the Doubtful Accounts content has any predicative value
for the purpose of enhancing investment returns are strictly prohibited.
7. AXXS represents and warrants that the Doubtful Accounts content
supplied hereunder shall be used and released from its data systems only in
accordance with the terms of this Agreement and in furtherance thereof.
<PAGE>
[LETTERHEAD OF AXXESS MEDIA GROUP, INC. APPEARS HERE]
8. Any use of the names or marks of either party in connection with
promotional activities, advertising, or other use outside the ordinary course of
business in performing this Agreement shall be subject to the prior written
approval of the other party. Notwithstanding anything contained herein to the
contrary, both parties shall have the right to disclose that it has entered into
this Agreement.
9. AXXS acknowledges that the Doubtful Accounts content in the form
delivered represents confidential proprietary business information and that its
utilization of the Doubtful Accounts content is strictly limited in accordance
with this Agreement. MR. PIKE acknowledges that any AXXS software used for the
access, delivery and manipulation of Doubtful Accounts content represents
confidential proprietary business information and utilization of such software
by MR. PIKE or any of its employees or agents is strictly limited in accordance
with the terms of this Agreement.
10. AXXS acknowledges that the Doubtful Accounts content consist of
information gathered, selected and arranged by MR. PIKE by special methods and
at considerable expense; that the Doubtful Accounts trade marks and other
descriptive headings associated herewith, are and at all times shall be, the
sole property of MR. PIKE.
11. AXXS expressly recognizes and acknowledges that its covenants set
forth in this Agreement are reasonable requirements of MR. PIKE in the
protection of substantial business interests. AXXS further acknowledges that the
remedy at law for breach of any of its undertaking in said paragraphs would be
inadequate and that, in addition to all other remedies provided by law, MR PIKE
shall be entitled to injunctive relief restraining any breach or threatened
breach. AXXS's liability for breach of this Agreement and for sums due to MR.
PIKE hereunder shall survive any termination hereof. Except for amounts payable
to third parties pursuant to the indemnification provisions of Section 2 hereof,
and to the extent permitted by applicable law, neither MR. PIKE nor AXXS shall
have any liability for any special, indirect, incidental or consequential
damages even if advised of the possibility thereof. The foregoing limitation of
liability shall apply regardless of the cause of action under which such damages
are sought, including, without limitation, breach of contract, negligence, or
other tort.
<PAGE>
[LETTERHEAD OF AXXESS MEDIA GROUP, INC. APPEARS HERE]
12. Subject to the terms and conditions described below, the term of
this Agreement shall be for a period of one (24) months from the effective date
of this Agreement, specified in Paragraph 18. Notwithstanding the termination or
expiration of this Agreement, the right and obligations under this Agreement
shall survive and continue and bind the parties and their legal representatives
and permitted assigns.
13. (C) Either MR. PIKE or AXXS may terminate this Agreement and the
license conferred hereunder as follows:
(i) MR. PIKE may terminate as specified in Paragraph 4.
(ii) Either party may terminate if the other breaches any other
term or covenant of this Agreement, and such breach continues unremedied for
sixty (60) days after written notice to the party in breach by the other party.
Either party may seek liability for breach by the other party.
14. All marketing promotional references to the Doubtful Accounts
content to be used by AXXS in its efforts to market AXXS's service involving use
of the Doubtful Accounts content shall be subject to the prior written approval
of MR. PIKE. In the event that MR. PIKE advertises its connection with AXXS's
service, or in the event MR. PIKE or any MR. PIKE agent promotes the
availability of the Doubtful Accounts content on AXXS's service, AXXS shall
have the right to prior approval of all materials used in such efforts. If the
approving party does not respond within five (5) days, the other party may
consider the materials approved.
15. All notices, payments and other communications permitted or required
by this Agreement shall be in writing addressed as follows:
(a) MR. DOUGLAS PIKE
13103 N. 103RD STREET
SCOTTSDALE, ARIZONA 85260
(b) AXXESS, INC.
PARK PLACE, #321
ALTAMONTE SPRINGS, FLORIDA 32701
ATTN: Kevin Lichtman, President
Either party may change its address for such matters by notice given in
the manner prescribed
<PAGE>
[LETTERHEAD OF AXXESS MEDIA GROUP, INC. APPEARS HERE]
above. If sent by certified or registered mail, notices shall be effective three
business days after posting; otherwise notices shall be effective upon receipt
by the other party.
16. This Agreement represents the entire understanding between AXXS and
MR. PIKE as to the subject matter hereof. Any amendments or additions hereto
shall be only in writing executed by the parties.
17. Any disputes arising from this agreement, whose remedies are not
specifically described herein, will be settled in a venue of mutual agreement of
the parties.
18. No rights or duties hereunder may be transferred or assigned by
either party in any manner without the written approval of the other party in
its sole discretion, other than to a subsidiary, parent or other affiliate of
the transferring of assigning party. MR. PIKE may not transfer or assign this
Agreement without the consent of AXXS, which shall not be unreasonably withheld.
19. No waiver of any breach of any term or condition herein shall be
deemed to be a waiver of any subsequent breach of any term or condition. Failure
or delay by either party in exercising any right or authority hereunder shall
not be construed as a waiver of such right or authority.
20. This Agreement shall become effective on the date it is signed by
the last party to execute the Agreement, as shown below.
Acknowledged:
/s/ Douglas E. Pike 12/19/97 /s/ [SIGNATURE APPEARS HERE] 12/15/97
_______________________________ ________________________________________
Douglas Pike date AXXESS, INC. date
<PAGE>
EXHIBIT 10.15
[LETTERHEAD OF AXXESS MEDIA GROUP, INC. APPEARS HERE]
CONTENT LICENSING AGREEMENT
This Agreement between AXXESS, INC., a Nevada Corporation with its
principal place of business at 201 Park Place, suite 321, Altamonte Springs, FL
32701 ("AXXS"), and Nathaniel Cohen, an individual whose principal place of
residence is at 1723 19th Street, NW, Washington, D.C. 20009 ("Mr. COHEN") is
entered into on December 23, 1997.
1. Subject to the terms and conditions of this agreement, MR. COHEN
hereby grants to AXXS a license to install, market, and distribute over the
World Wide Web editorial content developed by MR. COHEN and known as the "Bear
Tracker" through AXXS's web sites, as described in Sections 2(f) and 2(g) below.
Subject to such license, MR. COHEN retains all right, title and interest to the
Bear Tracker content. The Bear Tracker may be utilized in part or in whole by
the AXXS web site and AXXS may edit any such content so long as it does not
change the meaning of facts or opinions of such content materially.
(a) In connection with the Bear Tracker content MR. COHEN will endeavor
to provide AXXS:
(i) on monthly basis, one article of approximately 1500-2500 words
in length describing one or more securities listed on a U.S. Stock
exchange which MR. COHEN identifies as a potential short sale and hereby
known as the "Short Sale of the Month". In regards to the "Short Sale of
the Month" article, MR. COHEN will provide to AXXS a finished article no
later than the 5th business day of each calendar month for publication
by AXXS on or before the 15th day of said month, and:
(ii) from time to time, additional articles as mutually agreed and
considered complementary to the Bear Tracker content.
(b) MR. COHEN shall have no liability for delays or non-performance
occasioned by causes beyond his control, including but not limited to acts of
God, fires, inability to obtain materials, strikes or other labor actions,
breakdown of equipment, delays or shutdowns of carriers or suppliers, and
government acts or regulations.
2. MR. COHEN represents and warrants to AXXS that:
(a) The Bear Tracker content as delivered to AXXS does not and will not
infringe upon or violate any patent, copyright, trade secret or any other
proprietary rights of any third party. In the event of any claim, suit or action
of any third party against AXXS arising out of MR. COHEN's alleged breach of the
foregoing representation and warranty, AXXS shall promptly notify MR. COHEN,
and, unless such claim, suit or action results from any editing of the Bear
Tracker content by AXXS pursuant to Section 1 or any other action by AXXS,
(i) MR. COHEN shall defend such claim, suit or action in AXXS's name
but at MR. COHEN's expense under MR. COHEN's control, and
(ii) MR. COHEN shall indemnify and hold harmless AXXS against any
loss, cost or damage, expense or liability arising out of such claim,
suit or action (including litigation costs and reasonable attorney's
fees) whether or not such claim, become, or action is successful. Should
any material and/or information constituting the Bear Tracker content
become, or in MR. COHEN's opinion be likely to become, the subject of a
claim for infringement, MR. COHEN may authorize the continued use of,
replacement, removal, or modification of such material and/or
information to render it non-infringing.
(b) AXXS represents and warrants to MR. COHEN that none of the
reformatting or editing of Bear Tracker content pursuant to Section 1 nor the
means of presentation on or through the
<PAGE>
[Letterhead of Axxess Media Group, Inc. appears here]
2
AXXS service will cause the Bear Tracker content to infringe upon or violate any
patent, copyright, trade secret or any other proprietary rights of any third
party, or otherwise subject MR. COHEN to liability. In the event of any claim,
suit or action by any third party against MR. COHEN arising out of AXXS's
alleged breach of the foregoing representation and warranty, MR. COHEN shall
promptly notify AXXS, and AXXS shall defend such claim, suit or action in MR.
COHEN's name but at AXXS's expense under AXXS's control. AXXS shall indemnify
and hold harmless MR. COHEN against any loss, cost or damage, expense or
liability arising out of such claim, suit or action (including litigation costs
and reasonable attorneys fees) whether or not such claim, suit or action is
successful.
(c) MR. COHEN bases his content on sources believed by himself to be
reliable and will take reasonable steps to ensure that the data contained in the
Bear Tracker content is accurate and timely. However, MR. COHEN does not
represent, warrant, or guarantee such completeness, accuracy or timeliness, and
shall have no liability of any kind whatsoever to AXXS, to any of AXXS's
customers, or to any other party, on account of any incompleteness of,
inaccuracies in or untimeliness of the Bear Tracker content provided hereunder,
or for any delay in reporting such content. MR. COHEN expressly disclaims all
warranties of fitness of the Bear Tracker content or computations and analyses
thereof for a particular purpose or use.
(d) AXXS shall insure that the Bear Tracker content displayed in web pages,
individual reports and elsewhere on the AXXS web site shall be clearly
identified as provided by MR. COHEN. AXXS shall ensure that the following
disclaimer shall be displayed at the end of each "Short Sale of the Month"
article:
While the BearTracker strives to present accurate and useful information, we
make no guarantee of accuracy or completeness. All information and opinion
expressed herein is subject to change without notice. Opinions and
recommendations contained herein should not be construed as investment advice.
Under no circumstances does the information in this column represent a
recommendation to buy or sell stocks. Do not assume that any recommendations,
insights, charts, theories or philosophies will ensure profitable investment.
The information contained herein is for personal use only. Any redistribution of
this information is strictly prohibited.
In addition, AXXS shall include in its www.stockdetective.com service, at the
request of MR. COHEN, a hyperlink to MR. COHEN's web site.
(e) Except for the indemnity provided in Sections 2(a) and 2(b), neither
party shall be liable to the other for more than the aggregate amounts payable
to MR. COHEN by AXXS pursuant to Section 4 of this Agreement.
(f) MR. COHEN grants AXXS the right to use the domain name BearTracker.com
for the purpose of hosting BearTracker content for the duration of this
agreement. MR. COHEN grants AXXS the right to host BearTracker.com on the server
of AXXS's choice for the purpose of hosting BearTracker content for the duration
of this agreement. As such, MR. COHEN will provide authorization to InterNIC to
recognize AXXS as the administrative, technical and billing contracts for the
purpose of domain name registration records of the BearTracker.com address.
(g) AXXS will host BearTracker content at the BearTracker.com address for
the duration of this agreement. AXXS will provide a link to the BearTracker
content on the FinancialWeb main page for the duration of this agreement. For
the duration of this agreement AXXS will provide on the top half of the
www.stockdetective.com site a link to the BearTracker content, such link
<PAGE>
[Letterhead of Axxess Media Group, Inc. appears here]
3
containing the Bear Tracker name and logo.
(h) AXXS will retain authority over all navigation elements, links, graphic
images and advertising displayed on the pages containing the Beartracker content
at the BearTracker.com address including the right to display the AXXS logo or
other logos of publications owned by AXXS. In connection with the sale of
advertising or other sponsorship of content or pages comprising the
BearTracker.com address, AXXS will retain, throughout the duration of this
agreement, exclusive authority to solicit, collect or approve of any such sale.
3. The purpose of providing the Bear Tracker content to AXXS is to disseminate
the Bear Tracker content over the World Wide Web in the markets served by AXXS.
Any other use of the Bear Tracker content by AXXS not expressly authorized
herein must be approved in advance in writing by MR. COHEN at his sole
discretion.
4. AXXS will perform all necessary accounting, billing and collection for its
use of the Bear Tracker content.
(a) For the license hereby granted to AXXS by MR. COHEN to offer the Bear
Tracker content through the AXXS web site, AXXS shall pay to MR. COHEN a monthly
royalty fee calculated as follows: a monthly fee which shall be the greater of:
(i) 50% of the net advertising revenue realized by any page that
contains the Bear Tracker content (net advertising revenue will be the gross
receipts of any advertisements contained on any page of Bear Tracker content,
less agency fees or commissions), or
(ii) $100 per month
(b) Royalty payments will begin with the first month in which the Bear
Tracker content is made available by MR. COHEN to AXXS.
(c) AXXS shall pay such royalties to MR. COHEN in full on or before the
fifteenth (15th) day after the month in which the royalties shall accrue, and if
any payment due hereunder is not received by MR. COHEN within that period, MR.
COHEN shall have the option to discontinue providing the Bear Tracker content
and of terminating its Agreement should such payment not to be received within
30 days after written notice to AXXS. Each royalty payment by AXXS for use of
the Bear Tracker content shall be accompanied by a royalty statement showing
detailed computation (including agency and advertising sales commission) of
monthly royalty fees due MR. COHEN, in those months when such fees exceed $100.
AXXS also agrees to provide MR. COHEN with actual monthly figures on the number
of "page views" of the Bear Tracker content on its service.
(d) At MR. COHEN's option an no more than once per year, an independent
auditor selected by MR. COHEN may inspect, audit and copy, during regular
business hours and with advance notice of at least five (5) days, those records
of AXXS that specifically relate to the usage of the Bear Tracker content
hereunder, for the purpose of verifying the accuracy of the royalty payments
made to MR. COHEN and the accuracy of AXXS's reports specified in Paragraph
4(c). Such right of inspection shall exist during the terms of this agreement
and for twelve (12) months thereafter. MR. COHEN shall pay the fees of any
auditor selected pursuant to this subparagraph, unless the results of the audit
show a deficiency of more than five percent (5%) in royalty payments made to MR.
COHEN hereunder, in which case, in addition to the deficiency, which shall be
due MR. COHEN in any event, AXXS shall pay the costs of such audit.
5. MR. COHEN agrees to refrain from trading in the security profiled as the
"Short Sale of the Month" during the period beginning two weeks prior to the
date of first publication of the Bear Tracker content
<PAGE>
[LETTERHEAD OF AXXESS MEDIA GROUP, INC. APPEARS HERE]
4
containing that profile and ending four weeks after that date.
6. AXXS agrees that its user agreements do and will contain provisions
prohibiting its customers assessing the Bear Tracker content for resale and
redistribution of the data obtained from the AXXS service (which will include
the Bear Tracker content) in any form. AXXS represents and warrants to MR. COHEN
that it assumes all responsibility for the accuracy, integrity and support of
its software which utilizes the Bear Tracker content. Specific references by
AXXS that the Bear Tracker content has any predicative value for the purpose of
enhancing investment returns are strictly prohibited.
7. AXXS represents and warrants that the Bear Tracker content supplied hereunder
shall be used and released from its data system only in accordance with the
terms of this Agreement and in furtherance thereof.
8. Any use of the names or marks of one party to this agreement by the other
party to this agreement in connection with promotional activities, advertising,
or other use outside the ordinary course of business in performing this
Agreement shall be subject to the prior written approval of the other party.
Notwithstanding anything contained herein to the contrary, both parties shall
have the right to disclose that it has entered into this Agreement.
9. AXXS acknowledges that the Bear Tracker content in the form delivered
represents confidential proprietary business information and that its
utilization of the Bear Tracker content is strictly limited in accordance with
this Agreement. MR. COHEN acknowledges that any AXXS software used for the
access, delivery and manipulation of Bear Tracker content represents
confidential proprietary business information and utilization of such software
by MR. COHEN or any of its employees or agents is strictly limited in accordance
with the terms of this Agreement.
10. AXXS acknowledges that the Bear Tracker content consist of factual
information gathered, selected, analyzed and arranged by MR. COHEN by special
methods and at considerable expense; that the Bear Tracker name, trade marks and
other descriptive headings associated herewith, are and at all times shall be,
the sole property of MR. COHEN.
11. AXXS expressly recognizes and acknowledges that its covenants set forth in
this Agreement are reasonable requirements by MR. COHEN in the protection of
substantial business interests. AXXS further acknowledges that the remedy at law
for breach of any of its undertaking in said paragraphs would be inadequate and
that, in addition to all other remedies provided by law, MR. COHEN shall be
entitled to injunctive relief restraining any breach or threatened breach.
AXXS's liability for breach of this Assignment and for sums due to MR. COHEN
hereunder shall survive any termination hereof. Except for amounts payable to
third parties pursuant to the indemnification provisions of Section 2 hereof,
neither MR. COHEN nor AXXS shall have any liability for any special, indirect,
incidental or consequential damages even if advised of the possibility thereof.
The foregoing limitation of liability shall apply regardless of the cause of
action under which such damages are sought, including, without limitation,
breach of contract, negligence, or other tort.
12. (a) Subject to the terms and conditions described below, the term of this
Agreement shall be for a period of twenty four (24) months from the effective
date of this Agreement, specified in Paragraph 20, unless sooner terminated
pursuant to Section 13. Notwithstanding the
<PAGE>
[AXXESS LOGO APPEARS HERE]
5
termination or expiration of this Agreement, the right and obligations under
Section 3, 6 through 12, and 14 of this Agreement shall survive and continue and
bind the parties and their legal representatives and permitted assigns.
9b) Promptly following termination or expiration of this Agreement for any
reason, AXXS shall use reasonable efforts to purge all Bear Tracker content or
any other information from MR. COHEN may have been provided, together with all
copies thereof, whether in printed or machine readable from , to MR. COHEN in
writing that the requirements of this paragraph have been met within ten (10)
days of termination.
13. Either MR. COHEN or AXXS may terminate this Agreement and the license
conferred hereunder as follows:
(i) MR. COHEN may terminate as specified in Paragraph 4.
(ii) Either party may terminate if the other breaches any other term or
covenant of this Agreement, and such breach continues unremedied for sixty (60)
days after written notice to the party in breach by the other party. Either
party may seek liability for breach by the other party.
(iii) MR. COHEN may terminate with thirty (30) days' prior written notice if
the monthly royalty payment specified in Paragraph 4 for the thirteenth or any
succeeding month after the effective date of this agreement, specified in
Paragraph 20, is less than $500 per month.
14. All marketing promotional references to the Bear Tracker content to be used
by AXXS in its efforts to market AXXS's service involving use of the Bear
Tracker content shall be subject to the prior written approval of MR. COHEN. In
the event that MR. COHEN advertises its connection with AXXS's service, or in
the event MR. COHEN or any MR. COHEN agent promotes the availability of the Bear
Tracker content on AXXS's service, AXXS shall have the right to prior approval
of all materials used in such efforts. If the approving party does not respond
within five (5) days, the other party may consider the materials approved.
15. All notices, payments and other communications permitted or required by
this Agreement shall be in writing addressed as follows:
(a) MR. NATHANIEL COHEN
1723 19th STREET NW
WASHINGTON, DC 20009
(b) AXXESS, INC.
PARK PLACE, #321
ALTAMONTE SPRINGS, FLORIDA 32701
ATTN: KEVIN LICHTMAN, PRESIDENT
AXXS shall send a copy (which shall not constitute notice) of all communications
to MR. COHEN to MR. COHEN's e-mail address at [email protected] to the extent
reasonably prescribed above. If sent by certified or registered mail, notices
shall be effective three business days after posting; otherwise notices shall be
effective upon receipt by the other party.
16. This Agreement represents the entire understanding between AXXS and
MR. COHEN as to the subject matter hereof. Any amendments or additions hereto
shall be only in writing executed by
<PAGE>
[AXXESS LOGO APPEARS HERE]
6
both parties.
17. This Agreement is made in, and shall be governed by and construed in
accordance with the laws of, the State of Florida.
18. No rights or duties hereunder may be transferred or assigned by either party
in any manner without the written approval of the other party in its sole
discretion, other than to a subsidiary, parent or other affiliate of the
transferring of assigning party. MR. COHEN may not transfer or assign this
Agreement without the consent of AXXS, which shall not be unreasonably withheld.
19. No waiver of any breach of any term or condition herein shall be deemed to
be a waiver of any subsequent breach of any term or condition. Failure or delay
by either party in exercising any right or authority hereunder shall not be
construed as a waiver of such right or authority.
20. This Agreement shall become effective on February 1, 1998 or the date it is
signed by the last party to execute the Agreement, as shown below, whichever is
later.
21. Any subscriber list hereafter maintained by AXXS of viewers or subscribers
to Bear Tracker material shall be provided to MR. COHEN in Excel 5.0 format both
(i) within seven (7) days of written request by MR. COHEN, and (ii)
semi-annually.
22. The parties to this Agreement are independent contractors. Neither party is
an agent, representative or partner of the other. Neither party will have any
right or authority to enter into any agreement for or on behalf of the other
party.
Acknowledged:
/s/ Nathaniel Cohen 12/30/1997
--------------------------------------- --------------
NATHANIEL COHEN date
/s/ [Signature Appears Here] 12/23/1992
--------------------------------------- --------------
AXXESS, INC. date
<PAGE>
EXHIBIT 10.16
NAQ NORTH AMERICAN QUOTATIONS, INC MASTER AGREEMENT
135 North Wabash, Suite 2019 10892
Chicago, Illinois 60601
312-782-6500 Fax 312-782-8503
Client Axxess Inc.
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Address 201 Park Place
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City Alamonte Springs State FL ZIP Code 32701
--------------------------- -------- --------------
- --------------------------------------------------------------------------------
SCOPE OF AGREEMENT
North American Quotations, Inc. (NAQ) agrees to provide Client (including any
Branch Office of Client), in accordance with the terms and conditions of this
Agreement, with (i) the services listed in the Schedules to this Agreement and
related equipment (the "Equipment") and (ii) the optional services offered by
NAQ which Client may, from time to time during the term of this Agreement,
request NAQ to provide it to (collectively the "Services").
TERM OF AGREEMENT
The initial term of this Agreement shall be for the period commencing the date
this Agreement is approved by an authorized officer of NAQ and ending on the
latest date specified in the Schedules to this Agreement (the "Initial Period").
The initial terms of the respective Schedules shall commence as of the
respective "Installation Date" (as defined below) and shall end the number of
months indicated on the Schedule after the first day of the first full month
after the installation date ("Initial Schedule Term"). Thereafter the term of
Scheduling shall automatically renew for periods of 12 months, hereby defined as
a "Renewal Term", unless client gives NAQ written notice of termination at least
90 days prior to the end of an Initial Schedule Term or at least 90 days prior
to the end of any Renewal Term. While such notice of termination may be given at
any time after the date hereof, it shall not, in any event, be effective prior
to the expiration of the Initial Period, or prior to the expiration of any
Renewal Term. Client's and NAQ's continuing obligations under the Agreement
including, without limitation those relating to "NAQ Products" and the
"Confidential Information" (all as defined below) shall survive the termination
of this Agreement. For the purposes hereof, "Installation Date" shall mean the
day following that on which (i) NAQ or its designee determine that the Equipment
has been placed in good working order or (ii) the Equipment is delivered. If
client fails to provide the suitable installation environment NAQ will notify
Client when the Equipment has been placed in good working order.
CHARGES
A. The initial charges for the Services commencing as of the Installation Date
shall be as set forth in the applicable Schedules. The total Monthly Charges
set for in section A, B and C of the Schedules will be prorated for the
number of calendar days remaining in the first calendar month of the Initial
Period set forth in the applicable Schedules. The Total Monthly Charges for
Exchange Fees collected by NAQ as set forth in section G of the Schedules
will be payable in full and not prorated for the first calendar month of the
Initial Schedule Term of such Schedules. All charges referred to in the two
preceding sentences are due and payable on the Installation Date.
Thereafter, such total monthly charges and fees will be payable in advance
on the first day of each calendar month following the Installation Date.
B. The Initiation Charge set forth in any Schedule is payable upon execution of
the applicable Schedule and is a non-refundable charge. Initiation Charges
do not include the cost of or installation of cable from room to room or in
walls, ceiling or floors. In all cases, Client shall be responsible for the
cost of cable and the cost of installing all cabling, projection systems,
electrical and other utilities specified in NAQ's then current environmental
specification ("Environmental Specification").
C. The charges set forth in the Schedules (except for Exchange Fees and
Communication Costs) shall remain unchanged during the Initial Schedule
terms set forth on theSchedule. Thereafter, NAQ may change any or all of
such charges from time to time upon prior written notice to Client given at
least 30 days prior to the effective date of price changes. Upon receipt of
any notice of a price increase in any of the Services being purchased by
Client, Client may, upon written notice to NAQ given prior to the date such
price increase is to take effect, terminate its purchase of the Services
covered by such price increase. Such termination to be effective 30 days
after its receipt and such price increase shall not apply to Client. The
charges included in Monthly Exchange Fees or Communication Costs may be
changed at any time after the date hereof, without prior written notice to
Client.
D. Upon termination of the Agreement or any portion of the Service(s)/Equipment
covered by any Schedule by either party for any reason, Client shall
immediately pay to NAQ, a removal charge equal to the Initiation Charge for
such Service(s)/Equipment or at NAQ's then current notes for removal if no
Initiation Charge is listed on the Schedules in addition to any other
charges which may be due NAQ thereunder.
E. Any security deposit set forth on a Schedule shall be paid by Client to NAQ
concurrently with Client's execution of the respective Schedule. Such
security deposit will be refunded to Client without interest within 30 days
after the termination of the respective Schedule provided that Client has
fulfilled all the terms and conditions of this Agreement and the respective
Schedule.
F. Monthly charges for dedicated dial service do not include any local or long
distance telephone service charges at Client location. NAQ shall not be
liable for payment of such charges and Client shall not offset such charges
against the monthly charges payable to NAQ. NAQ is not liable for the
installation and maintenance of such dial-up connections.
G. If NAQ relocated any Equipment at client's request, Client shall pay NAQ's
then current charges for such relocation. Client shall give NAQ at least 30
business days prior written notice of any relocation.
H. Client, upon completion of installation, relocation or removal, shall pay all
applicable transportation charges incurred.
I. In the case of purchased Equipment, the purchase price shall be payable as
follows: the deposit indicated on the applicable Schedule is payable upon
execution of such Schedule by Client.
J. There shall be added to all payments thereunder amounts equal to any
applicable taxes levied or based on this Agreement, exclusive of taxes based
on NAQ's net income. All invoices shall be paid by Client within fifteen days
of receipt. If Client fails to pay any amount due under this Agreement
whether by acceleration or otherwise, Client shall, upon demand, pay interest
at the highest rate of interest allowable, but in no event more than 24% per
annum (or 2% per month) payable monthly, on such delinquent amount from the
due date until the date of payment. Client agrees to reimburse NAQ for any
and all expenses NAQ may incur, including reasonable attorneys' fees in
taking action to collect any amounts due NAQ thereunder.
OWNERSHIP, USE AND CONFIDENTIALITY: NAQ PRODUCTS
A. Client acknowledges that all computer programs, leased Equipment and systems
available as part of the Service (the "NAQ Products") are the exclusive and
confidential property of NAQ.
B. Client shall not copy, in whole or in part, any NAQ Products or related
documentation, whether in the form of computer media, printed or in any other
form. Client shall not make any alteration, change or modification to any
software without NAQ's prior written consent in each instance.
C. Client shall treat as confidential and will not disclose or otherwise make
available any of the NAQ Products or any trade secrets, processes,
proprietary data, information or documentation related thereto (collectively
the "Confidential Information") in any form to any person other than
employees of Client, except as may be otherwise permitted by Paragraph 2(B)
on the reverse side of this Agreement. Client will instruct its employees who
have access to the NAQ Products and the Confidential information to keep the
same confidential, by using the same care and discretion that Client uses
with respect to its own confidential property and trade secrets. Upon
termination of this Agreement for any reason, Client shall return to NAQ any
and all copies of the NAQ Products and the Confidential Information which are
in its possessions.
ADDITIONAL TERMS AND CONDITIONS
1. AVAILABILITY OF THE SERVICES
Hours for accessing the Services will be those hours of those days that the
Services are generally made available for NAQ. NAQ will advise Client from
time to time of such general accessibility periods. The Services may also be
available at other than NAQ designated general hours. In such event, Client
may use the Services at such other times for no additional charge.
2. USE OF THE SERVICES
A. Client agrees that it will use the Services in accordance with such rules
as may be established by NAQ from time to time as set forth in any
materials furnished by NAQ to Client.
B. Client will use the Services only for its own internal and proper
business purposes and will not sell, lease or otherwise provide, directly
or indirectly, any of the Services or any portion thereof to any third
party. However, hard copy prints may be distributed by Client without
charge to its customers or to its branch office by mail or by other like
delivery services. All copies so distributed must bear the following
legend clearly imprinted on each of such prints. "ALL RIGHTS RESERVED, MAY
BE REPRODUCED ONLY BY PERMISSION OF NAQ.
<PAGE>
C. Client shall have received approval of or shall submit application to
and receive written approval from each and every entity whose approval
is required for the receipt of Services, including, but not limited to,
securities and commodities exchanges, associations of securities and/or
commodities dealers and federal, provincial and local governmental
entities. Client shall comply with any conditions, restrictions or
limitations imposed by any of the aforementioned entities and shall pay
all fees or charges such entities may impose. Failure of Client to
comply with the requirements of this Paragraph 2(C) shall constitute a
default.
3. SYSTEMS AND APPLICATIONS PROGRAMS
A. If the Equipment contains any systems software programs (the "Systems
Programs"), Client acknowledges that it will be deemed to be a
sublicensed from NAQ for such Systems Programs. Client accepts a
sublicense from NAQ for the Systems Programs upon the terms and
conditions set for below in this Paragraph 3.
B. The sublicense for the Systems Programs contained in the Equipment
conveys a personal, non-exclusive, non-transferable right and
sublicense to Client to use the Systems Programs on the equipment only.
Client shall not have any interest in the Systems Programs, except for
the sublicense granted it under this Agreement.
C. Client shall not copy, in whole or in part, any Systems Programs or
related documentation, whether in the form of computer magnetic media,
printed or in any other form; provided, however, that Client may make
one copy of each of the Systems Programs for back-up purposes only.
Client shall not make any alteration, change or modification to any
Systems Programs.
D. Client agrees not to provide or otherwise make available to any person
any of the Systems Programs sublicensed thereunder, or any related
documentation including, but not limited to, flow changes, logic
diagrams or source code, in any form.
E. Except for Systems Programs included in purchased Equipment, all
Systems Programs will be returned by Client to NAQ, in accordance with
NAQ's instructions, promptly after the termination of this Agreement.
F. If the Equipment contains any application software programs (the
"Application Programs"), Client acknowledges that it will be deemed to
be a licensee of NAQ for such Application Programs. Client accepts a
license from NAQ for the Application Programs upon the same terms,
conditions and limitations as apply to the Systems Programs including,
but not limited to, accepting such license on a personal, non-exclusive
and non-transferable basis for use on the Equipment only and solely for
Client's business usage. Not withstanding anything to the contrary
contained herein, all Application Programs will be returned by Client
to NAQ, in accordance with NAQ's instructions, promptly after the
termination of this Agreement.
G. Client's use of any Pre-Packaged Third Party Software will be governed
by the terms and conditions of the applicable third party license
agreements contained in the package delivered to Client thereunder in
which such Pre-Packaged Third Party Software is contained.
H. Client acknowledges that a breach of any provision of this Paragraph 3
will cause NAQ irreparable injury and damage and therefore may be
enjoined through injunctive proceedings in addition to any other
rights or remedies which may be available to NAQ at law or in equity.
4. INSTALLATION AND ENVIRONMENTAL SPECIFICATIONS
A. Client shall provide a suitable installation environment as described
in NAQ's then current Environmental Specifications and shall furnish
all labor required for unpacking and placing the Equipment in the
desired location under the supervision of NAQ or its designees. Client
shall also provide and install all wiring and cabling required for
installation of the Equipment, shall provide an ordinary telephone
extension within 10 feet of where the Equipment will be installed and
shall install all projection systems and electrical and other utilities
specified in NAQ's then current Environmental Specifications. The
Equipment shall be installed and placed in good working order by NAQ or
its designee.
B. Client will at all times maintain the location at which the Equipment
is installed in accordance with NAQ's then current Environmental
Specifications.
5. EQUIPMENT
A. RISK OF LOSS. NAQ shall assume all risk of loss or damage while the
Equipment is in transit to Client and, if the Equipment is leased to
Client, upon return from Client upon termination of this Agreement or
the applicable Schedule. At all other times (i) if Client pays NAQ the
insurance premium for the Equipment set forth in the applicable
Schedule, NAQ shall assume all risk of loss or damage to the Equipment
unless such loss or damage is due to the intentional or negligent acts
or omissions of Client or its employees or (ii) if Client provides
insurance on the Equipment, Client shall assume all risk of loss or
damage to the Equipment. No loss, theft or damage after delivery of the
Equipment to Client shall relieve Client from its obligations to pay
the charges due, or perform any of its obligations, under the
Agreement.
B. ALTERATIONS AND LOCATION. Client shall not make any alterations or add
attachments to leased Equipment whatsoever, nor shall Client remove the
leased Equipment from the place or original installation without NAQ's
prior written consent. NAQ shall have the right to enter Client's
premises to inspect leased equipment during normal business hours.
C. RETURN OF EQUIPMENT. Promptly upon the termination of this Agreement or
the applicable Schedule, Client shall make all leased Equipment
Available for return to NAQ, at Client's expense, in accordance with
NAQ's instruction. The leased Equipment will be returned to NAQ in as
good condition as received, less normal wear and tear.
D. TITLE. All items of leased Equipment shall remain the property of NAQ
and may be removed by NAQ at any time after the termination of this
Agreement or the applicable Schedule. All items of leased Equipment
are, and at all times shall remain, separate items of personal
property, notwithstanding their attachment to the equipment or real
property. Client shall furnish any waivers or consents reasonable
requested by NAQ to give full effect to the intent of the preceding
sentence. Title to purchased Equipment shall pass to Client upon
delivery of the Equipment.
6. MAINTENANCE.
NAQ, or its designee, shall provide the maintenance services described below for
the Equipment.
A. Preventive maintenance shall be provided as determined necessary by
NAQ, or its designee, and shall be performed during the hours specified
in Paragraph 6C below.
B. In the event Client experiences an Equipment failure, Client shall
notify NAQ's maintenance department by telephone and NAQ shall
determine whether such failure is to be corrected by either an on-site
remedial maintenance call or the shipment of a replacement component.
In the event of shipment of a replacement component, NAQ shall be
responsible for all associated shipment costs and Client shall be
responsible for returning the replaced component within 10 days after
receipt of the replacement component. If Client fails to return the
replaced component as set forth above, Client agrees to pay NAQ for the
replacement component.
C. NAQ, or its designee, shall provide on-site remedial maintenance
services during the hours of 9:00 A.M. to 5:00 P.M., local time, Monday
through Fridays excluding holidays.
D. Maintenance services include replacement of all unserviceable parts.
Replaced parts become the property of NAQ.
E. Maintenance services do not include:
i. electrical work external to the Equipment;
ii. repair of damage resulting from accident, transportation, neglect,
misuse, modifications made by Client without NAQ's prior consent,
unauthorized attempts by Client to repair the Equipment or failure
of electrical power, air conditioning or humidity control;
iii. furnishing supplies or accessories, painting or refinishing the
Equipment or furnishing material therefore; making specification
changes or performing Services connected with relocation of the
Equipment; or adding or removing accessories or attachments of
other devices;
iv. such services which are impracticable to render because of
alterations to the equipment or their connection by mechanical or
electrical means to other devices; and
v. systems engineering services, programming and operations
procedures of any sort.
F. Client shall permit NAQ, or its designee, to have complete access to
the Equipment during normal business hours.
7. WARRANTY
A. NAQ represents and warrants to Client that, except as provided in
Paragraph 5E above, good title to the purchased Equipment shall be
transferred to Client thereunder free and clear of all liens, claims
encumbrances and security interests whatsoever and that the purchased
Equipment shall be free of defects in material and workmanship for a
period of 30 days after its Installation Date. NAQ represents and
warrants that Equipment which is maintained by NAQ or its designee will
perform in accordance with its manufacturer's published specifications
during the period it is maintained by NAQ thereunder. This warranty
shall not extend to Equipment that has been subjected to misuse,
neglect or accident or which shall have been altered or repaired (other
than by NAQ or its designee) in such a manner as to affect adversely
its performance, stability or reliability. Parts on Equipment not
covered by this warranty which are replaced by NAQ, or its designee,
shall be replaced by NAQ or its designee, at its then standard hourly
rates for such replacement service.
B. NAQ represents that the Software included in the Service will conform
to their design specifications as set forth in NAQ's current Services
User's Manual.
C. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY
A. NAQ's sole liability to Client or any third party for claims,
notwithstanding the form of such claims (e.g., contract, negligence or
otherwise), arising out of errors or omissions in the Services
rendered, or to be rendered, by NAQ thereunder and caused by NAQ shall
be to furnish a corrected report or data, provided that client promptly
advises NAQ thereof.
B. NAQ will make every reasonable effort to have the Services available
during the hours set forth in Paragraph 1 above and by the Requested
Install Date indicated on the applicable Schedules. However, NAQ cannot
guarantee such availability. Accordingly, NAQ'S sole liability to
Client or any third party for claims arising out of the unavailability
of the NAQ system or interruption in or delay of the Services for any
reason, notwithstanding the form of such claim (e.g., contract,
negligence or otherwise), shall be to use its best efforts to make the
NAQ system available or resume the Services as promptly as reasonably
practicable.
<PAGE>
C. NAQ shall not have any liability under this Agreement for any money
damages resulting from claims made by Client or any third party for
errors, omissions, interruptions or delays in the Services provided
thereunder or for the unavailability of the Services provided or to be
provided. NAQ's sole liability for money damages resulting from claims
made by Client or any third party arising from or related to any and
all causes not covered by Paragraphs 8A and 8B above shall be limited
to the lesser of (i) the amount of actual damages incurred by Client of
(a) an amount which will not exceed one month's average total monthly
charges paid by Client for the applicable Service during the twelve
months preceding the month in which the damage or injury is alleged to
have occurred, or such lesser number of months if Client has not
received twelve months of the applicable Services. Notwithstanding the
foregoing, NAQ's sole liability for money damages resulting from claims
made by Client or any third party arising from or related to the
sequence, accuracy or completeness of any of the quotations market
information or other information furnished by any Exchange to NAQ shall
be limited to the lesser of (i) the amount of actual damages incurred
by Client or (ii) $50. Such damages shall be the full extent of NAQ's
monetary liability under this Agreement regardless of the form in which
any such legal or equitable claim or action may be asserted against NAQ
and shall constitute Client's sole monetary remedy.
D. NAQ's sole obligation in case of any breach of any of its
representations and warranties set forth in Paragraph 7A above shall be
to repair or replace, at NAQ's option, any defective item of Equipment.
NAQ's liability thereunder from any and all causes relating to the
maintenance services provided pursuant hereto shall be limited to
general money damages in an amount not to exceed the Total Monthly
Maintenance Charges for such Equipment for one month. The foregoing
limitations shall be the extent of NAQ's liability under this Agreement
(monetary or otherwise) for such breach regardless of the form in which
any legal or equitable action may be brought against NAQ (e.g.,
contract, negligence or otherwise) and the foregoing shall constitute
Client's sole remains.
E. NAQ shall not be liable or deemed to be in default for any breach,
delay or failure to perform under this Agreement or for any
interruption of the Services, resulting, directly or indirectly, from
any cause beyond NAQ's reasonable control including, without
limitation, change in ticker format, elimination of ticker service,
ticker or communications failure, changes in the governing regulations
of the applicable Exchanges or changes in the arrangements between NAQ
and the applicable Exchanges governing the content and distribution of
the information NAQ is able to provide to Client as part of the
Services.
F. IN NO EVENT WILL NAQ BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES WHICH CLIENT MAY INCUR OR EXPERIENCE ON
ACCOUNT OF ENTERING INTO OR RELYING ON THIS AGREEMENT, EVEN IF NAQ HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. DEFAULT BY CLIENT; REMEDIES UPON DEFAULT
Should Client (a) default in the payment of any sum of money thereunder, (b)
default in the performance of any of its other obligations under this Agreement,
or (c) commit an act of bankruptcy or become the subject of any proceeding under
the Bankruptcy Act or become insolvent, or if any substantial part of Client's
property becomes subject to any levy, seizure, assignment, application or sale
for or by any creditor or governmental agency, then, in any such event, NAQ, at
its option, may, upon written notice thereof, (i) terminate this Agreement, (ii)
declare all amounts due and to become due immediately due and payable, (iii)
whether or not this Agreement is terminated, take immediate possession of any or
all of the items of leased Equipment, or purchased Equipment not fully paid for,
wherever situated, and for such purpose enter upon any premises without
liability for so doing, and (iv) sell, dispose of, hold, use or lease any items
of leased Equipment, or purchased Equipment not fully paid for, as NAQ in its
sole discretion may decide. Client agrees to reimburse NAQ for any and all
expenses NAQ may incur, including reasonable attorney fees, in taking any of the
foregoing actions. The remedies contained in this Paragraph 9 are cumulative and
in addition to all other rights and remedies available to NAQ under the
Agreement, by operation of law or otherwise.
10. GENERAL
A. This Agreement may not be assigned by Client, without NAQ's prior
written consent. This Agreement shall be binding upon and shall inure
to the benefit of the parties, their successors and permitted assigns.
B. Client acknowledges that it has not been induced to enter into the
Agreement by any representations of warranties, oral or written, which
are not contained in the Agreement. The Agreement contains the
full understanding of the parties with respect to its subject matter
and supersedes all existing agreements and all other oral, written or
other communications between them concerning the subject matter hereof.
This Agreement may not be modified in any way except by a writing,
signed by a duly authorized representative of Client and an officer of
NAQ.
C. All notices shall be in writing and shall be mailed by first class mail
or personally delivered to the parties at the addresses set forth on
the reverse side of this Agreement or to any other address designated
in writing hereafter. Such notices shall be effective upon receipt. Any
notice to NAQ shall be sent Attention: President and shall include a
copy to North American Quotations, Inc., 185 North Wabash, Suite 2019,
Chicago, Illinois 60601.
D. All headings of the Agreement are solely for convenience of reference
and shall not affect its interpretation.
E. If any provision of this Agreement shall be held to be invalid, illegal
or unenforceable, the validity, legality or enforceabilty of the
remaining provision shall not in any way be affected or impaired
thereby.
F. No waiver by either party or any breach by the other of any provision
or condition of this Agreement to be performed by such party shall be
deemed a waiver of a breach of a similar or dissimilar provision or
condition at the same time or any prior or subsequent time or of the
provision or condition itself.
G. This Agreement shall be governed by the laws of the State of Illinois
applicable to agreements entered into and performed entirely within
such State.
NAQ CLIENT
By: By: /s/ Kevin Lichtman
------------------------------------- -------------------------------------
(Signature-Authorized Representative) (Signature-Authorized Representative)
Name: Name: Kevin Lichtman
-------------------------------- --------------------------------
(Print or type) (Print or type)
Title: Title: President
------------------------------- -------------------------------
(Print or type) (Print or type)
Date: Date: 2/24/98
------------------------------- -------------------------------
(Print or type) (Print or type)
THIS AGREEMENT SHALL BECOME EFFECTIVE UPON BEING SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF NAQ. NO OTHER PERSON HAS AUTHORITY TO BIND NAQ.
<PAGE>
EXHIBIT 10.17
DISTRIBUTOR AGREEMENT
This Agreement ("Agreement") is entered into by and between Comtex
Scientific Corporation ("COMTEX"), a New York corporation with its principal
offices at 4900 Seminary Road, Suite 800, Alexandria, Virginia 22311, and Axxess
Media Group ("AXXESS"), a Florida corporation with its principal offices at 201
Park Place #321, Altamonte Springs, FL 32701.
1. Definitions
a. Service. The term "the Service" means the electronic information
services identified in Exhibit A to this Agreement.
b. Content. The term "Content" means all material, whether or not
protected by copyright, including but not limited to text, images and other
multimedia data, provided or made available as part of the Service.
c. Information Providers. The term "Information Providers" means third
parties from whom COMTEX acquires the right to distribute Content provided or
made available as part of the Service.
d. Users. The term "Users" means all third parties to whom AXXESS, subject
to the terms and conditions of this Agreement, may license, sell, transfer, make
available or otherwise distribute the Service.
2. Distribution
a. Grant of Rights. Subject to the terms and conditions of this Agreement,
COMTEX grants AXXESS a nonexclusive license and right to market the Service,
distribute the Service to Users, and license Users to use the Service for their
internal use.
b. Restrictions on Distribution
1. Unauthorized Entities. AXXESS shall not knowingly license, sell,
transmit or otherwise distribute the Service or Content to print or
broadcast news media or any of their parents, subsidiaries, and affiliates
("Unauthorized Entities"), without obtaining for each such Unauthorized
Entity the prior written consent of COMTEX. In the event any such
unauthorized distribution becomes known to AXXESS, AXXESS immediately
shall notify COMTEX and use its best efforts to halt immediately such
distribution.
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ii. Redistribution. AXXESS shall not license, sell, transfer,
make available or otherwise distribute the Service or Content to any
third party who, for the use or benefit of such third party's Customers,
licenses, purchases or otherwise obtains the Service or Content from
AXXESS and then relicenses, resells, transfers, makes available or
otherwise redistributes such Service and Content to such third party's
Customers, without obtaining for each such third party the prior written
consent of COMTEX. For purposes of this subparagraph, the term
"Customer" shall include any individual, entity or other party who
licenses, purchases or otherwise obtains such Service or Content from
the third party.
c. User Agreements. AXXESS shall require that each User enter into an
agreement that contains the provisions set forth in Exhibit D or provisions
substantially equivalent thereto. Such agreement, which may be obtained in an
electronic or hard-copy format, shall be retained by AXXESS for the term of this
Agreement and three (3) years thereafter. Upon the request of COMTEX, AXXESS
shall provide COMTEX a copy of such user agreement.
d. Reservation. COMTEX reserves the right to add or withdraw
Information Providers, Content and items of coverage from the Service without
notice.
3. Marketing
a. Promotion. AXXESS agrees to use commercially reasonable efforts to
promote and market the Service to prospective Users and to enter into licenses
for use of the Service by Users.
b. Expenses. AXXESS shall be responsible for all expenses incurred by
AXXESS in promoting and marketing the Service.
c. Use of Name. AXXESS shall name COMTEX as one of its information
services in its formal promotional and marketing materials relating to the
Service, including press releases and advertisements.
d. Prior Approval. COMTEX and AXXESS each agrees to submit to the other
party for written approval all press releases, advertising or other promotional
materials that use Service names or a party's company name not less than fifteen
(15) days before the proposed use. Each party shall not unreasonably withhold
its approval. Unless notice of approval or disapproval is received within ten
(10) days of receipt of promotional materials, approval shall be deemed granted.
Either party, however, may identify the other in its published listing of
available services or distributors without such written approval.
Proprietary and Confidential
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4. Delivery of the Service
a. Provision of the Service. Subject to the terms and conditions of this
Agreement, COMTEX shall provide the Service to AXXESS and AXXESS shall receive
the Service from COMTEX in conformance with the Technical Specifications set
forth in Exhibit A.
b. Timeliness. COMTEX shall use commercially reasonable efforts to
maintain the timeliness of the information contained in the Service. AXXESS
acknowledges that COMTEX relies on the performance of Information Providers
outside the control of COMTEX in order to provide the Service.
c. Proprietary Notices. Where supplied as part of the Service by COMTEX
or its Information Providers, AXXESS will cause to be displayed appropriate
copyright or other proprietary notices relating to the Service.
d. Modifications. AXXESS shall not edit, abridge, rewrite or in any
other way alter the Content of the Service or create any work derived from the
Content of the Service; provided, however, that AXXESS may choose not to display
every story or article.
e. Remedies
i. Corrections. Upon receipt of written notice from COMTEX of an
error in the distribution of the Service and Content to a User, AXXESS
shall use commercially reasonable efforts to promptly correct such
error.
ii. Withdrawal of Information Provider. Notwithstanding
Subparagraph 4.e.i., in the event that AXXESS violates Subparagraph
2.b., 4.c. or 4.d., infringes any copyright of an Information Provider,
or otherwise violates the proprietary rights of an Information Provider,
COMTEX, at its sole discretion, immediately may cease distribution of
such Information Provider's Content to AXXESS until the violation or
infringement is remedied by AXXESS, during which period AXXESS
acknowledges that such actions by COMTEX shall not result in a breach of
Subparagraphs 4.a. and 4.b.
f. Review by COMTEX
i. Access. Throughout the term of this Agreement, AXXESS shall
provide COMTEX reasonable access to AXXESS's system for distribution of
the Service to Users for the sole purpose of reviewing AXXESS's
implementation of the Service. This access shall be provided by AXXESS
at no charge to COMTEX.
ii. Opportunity to Review. AXXESS shall provide notice to COMTEX
to allow COMTEX a reasonable opportunity to review AXXESS's
implementation of
Proprietary and Confidential
3
<PAGE>
the Service before or, if prior review is impracticable, as soon as
possible after AXXESS implements the Service or any substantial changes
in its implementation of the Service.
5. Payment
AXXESS shall pay COMTEX the net amount shown on each invoice within thirty (30)
days of the date of the invoice (the "Due Date"). COMTEX reserves the right to
immediately suspend delivery of the Service should the AXXESS not pay the net
invoice amount within sixty (60) days of the invoice date. Suspension of service
does not constitute a breach of service by COMTEX as stated in Paragraph 6(b).
a. Payment Schedule. AXXESS shall pay COMTEX the Monthly Fees and
Royalties set forth in the Payment Schedule in Exhibit B.
b. Invoices and Due Date. Each month, COMTEX shall provide AXXESS an
invoice setting forth the following;
(i) the Monthly Fees for the current month;
(ii) the Estimated Royalty for the current month, which shall be
equal to the prior month's actual Royalty; and
(iii) the Royalty Adjustment for the prior month, which shall be the
amount by which the prior month's Royalty, based on actual usage, exceeds the
prior month's Estimated Royalty, or Royalty Credit, which shall be the amount
by which the prior month's Estimated Royalty exceeds the prior month's Royalty,
based on actual useage. COMTEX shall credit AXXESS the amount of any Royalty
Credit.
c. Fees Subject to Change. COMTEX may adjust the Fees set forth in
Exhibit B upon sixty (60) days prior written notice to AXXESS.
d. Reports. Within ten (10) days after the end of each month, AXXESS
shall provide COMTEX a report, in the format set forth in Exhibit B to this
Agreement or as otherwise agreed to by the parties, setting forth all
information necessary to calculate the Monthly Fees and Royalties for the prior
month.
e. Taxes. AXXESS shall be responsible for the payment of all taxes,
including sales, excise, and value-added taxes, which may be levied upon the
provision of the Service or on any payments by AXXESS to COMTEX hereunder, other
than franchise and income taxes of COMTEX.
f. Interest. All amounts under Subparagraph a. above owed to COMTEX by
AXXESS and not paid by the Due Date shall be deemed delinquent and interest,
calculated at the rate of one and one-half percent (1.5%) per month, shall be
paid by
Proprietary and Confidential
4
<PAGE>
AXXESS to COMTEX on such amounts. In addition, COMTEX shall be entitled to
reimbursement for all reasonable costs of collection, including reasonable
attorneys' fees. Nothing in this paragraph shall limit COMTEX's right to
terminate this Agreement in accordance with Paragraph 6.b.
g. Audit. COMTEX or its representative may, during business hours and
upon reasonable notice, inspect and audit the relevant books and records of
AXXESS for the sole purpose of verifying all information related to payments
under this Agreement. Such inspection and audit shall be at the expense of
COMTEX unless the audit shows an error of ten percent (10%) or more in the
calculation of Monthly Fees and Royalties, in which case AXXESS shall bear the
expense of such inspection and audit. Any deficiency discovered by the audit
shall be paid by AXXESS to COMTEX within thirty (30) days of COMTEX notifying
AXXESS of the deficiency.
6. Term and Termination
a. Term. This Agreement commences on the date of the last signature
hereto or the first commercial distribution of the Service, whichever occurs
first (the "Effective Date"), and shall remain in effect for the Initial Term
set forth in Exhibit A. This Agreement shall renew automatically for successive
periods of the duration of the Renewal Term set forth in Exhibit A, unless
either party notifies the other party in writing, at least ninety (90) days
before the end of the Initial Term or any Renewal Term of its election not to
renew.
b. Termination. Either party may terminate this Agreement at any time if
the other party materially breaches any provision of this Agreement. Such
termination shall take effect (i) if the breach is incapable of cure, then
immediately upon the breaching party's receipt of a written notice of
termination which identifies the breach, or (ii) if the breach, capable of being
cured, has not been cured within sixty (60) days after receipt of written notice
from the non-breaching party identifying the breach, then immediately upon
receipt of a written notice of termination received within thirty (30) days of
the end of such sixty (60) day period. For purposes of this paragraph, a breach
of Subparagraphs 2.b. or 4.e.i. shall be deemed a breach that is incapable of
cure.
c. Insolvency. Either party may terminate this Agreement by written
notice to the other if the other party becomes insolvent, makes a general
assignment for the benefit of creditors, permits the appointment of a receiver
for its business or assets, or takes steps to wind up or terminate its business.
d. Obligations upon Termination. Effective upon termination of the
Agreement, AXXESS shall not license, sell, transfer, make available or otherwise
distribute the Service or Content nor access, use or retransmit the Service or
Content. Within thirty (30) days of termination, AXXESS shall (i) pay to COMTEX
all amounts owed under Paragraph 5 of this Agreement, and (ii) for all Content,
either (A) erase and purge the Content from any on-line and off-line storage
media and certify, in writing to COMTEX
Proprietary and Confidential
5
<PAGE>
that such erasure and purge has been completed, or (B) certify, in writing, to
COMTEX that certain Content has been retained in creating back-ups during the
normal course of business and that such Content shall not be used in any manner
whatsoever without the prior consent of COMTEX.
e. Remedies upon Breach. Upon termination under Subparagraphs b. and
c. above, COMTEX shall terminate the Service and shall be entitled to recover
from AXXESS (i) any payments due hereunder, (ii) the total of AXXESS's Monthly
Fee multiplied by the number of months between such termination and the date of
expiration of the then current term, less savings realized by COMTEX, (iii) all
costs and expenses of collection, including attorneys' fees, and (iv) any and
all direct damages under law.
f. Survival. The provisions of Paragraphs 5,6,7,8,9,13,14,15,16 and 17
of this Agreement shall survive termination of this Agreement.
7. Confidential Information
a. Definition. "Confidential Information" shall mean information which
is designated as Confidential Information by the party disclosing such
information (the "Disclosing Party") (i) in Exhibit C to this Agreement, (ii)
with respect to information provided on paper, by facsimile or electronic mail,
on magnetic media, electronically or by any other medium (collectively "in
writing"), by labeling such information as "CONFIDENTIAL INFORMATION" before the
information is provided to the other party (the "Receiving Party"), or (iii)
with respect to information disclosed either verbally or in writing, by
notifying the Receiving Party, in writing within thirty (30) days of the
disclosure, that the information identified in such notice is designated
Confidential Information effective as of the Receiving Party's receipt of such
written notice.
b. Exclusions. "Confidential Information" shall not include information
that (i) is or shall become generally available without fault of the Receiving
Party, (ii) is in the Receiving Party's possession prior to its disclosure by
the Disclosing Party, (iii) is independently developed by the Receiving Party,
or (iv) is rightfully obtained by the Receiving Party from third parties without
similar restrictions.
c. Restrictions. The Receiving Party shall not disclose or otherwise
transfer Confidential Information of the Disclosing Party to any third party,
without first obtaining the Disclosing Party's consent, and shall take all
reasonable precautions to prevent inadvertent disclosure of such Confidential
Information. Except as necessary to perform under this Agreement, the Receiving
Party shall not use or copy Confidential Information of the Disclosing Party
without first obtaining the Disclosing Party's consent, and will take all
reasonable precautions to prevent inadvertent use and copying of such
Confidential Information.
d. Injunctive Relief; Exclusion of Liability Limitation. The parties
agree that damages shall be an inadequate remedy in the event of a breach by
either party of this
Proprietary and Confidential
6
<PAGE>
paragraph and that any such breach by a Receiving Party will cause the
Disclosing Party great and irreparable injury and damage. Accordingly, a party
shall be entitled, without waiving any additional rights or remedies otherwise
available at law or in equity or by statute, to injunctive and other equitable
relief in the event of a breach or intended or threatened breach of this
paragraph. The provisions of Paragraph 13 shall not apply to any breach of this
Paragraph 7.
8. Content
a. Ownership. AXXESS acknowledges that this Agreement does not transfer
to AXXESS or Users any proprietary right, title or interest, including
copyright, in the Content made available as part of the Service.
b. Representation. COMTEX shall use commercially reasonable efforts to
prevent the Service from distributing any Content which would infringe any
copyright or other right of any third party. AXXESS understands that COMTEX is a
distributor of information services and material licensed from Information
Providers and agrees that COMTEX does not warrant that the Content will not
infringe any copyright or other right of any third party.
9. Trademarks
AXXESS agrees that COMTEX trademarks are the sole and exclusive property
of COMTEX. Pursuant to Paragraph 3.d., COMTEX shall have the right to approve
the use of its trademarks by AXXESS to identify and promote use of the Service.
Upon compliance with this provision, use of such marks by AXXESS for such
purposes shall be deemed approved during the term of this Agreement unless
COMTEX specifically notifies AXXESS to the contrary.
10. Limited Warranties of COMTEX
a. Agreement. COMTEX warrants that its entry into this Agreement does
not violate any agreement between COMTEX and any third party.
b. Laws and Regulations. COMTEX warrants that its performance under this
Agreement and the use of the Service conforms to all applicable laws and
government rules and regulations, subject to the terms of this Agreement.
c. The Service and Content. AXXESS agrees that the Service and Content
are provided by COMTEX "AS IS". COMTEX does not warrant the accuracy,
completeness or timeliness of the Service and Content.
11. Limited Warranties of AXXESS
Proprietary and Confidential
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<PAGE>
a. Agreement. AXXESS warrants that its entry into this Agreement does
not violate any agreement between AXXESS and any third party.
b. Laws and Regulations. AXXESS warrants that its performance under
this Agreement and the use of the Service shall conform to all applicable laws
and government rules and regulations, subject to the terms of this Agreement.
12. Disclaimer of All Other Warranties
THE PARTIES AGREE THAT (a) THE LIMITED WARRANTIES SET FORTH IN
PARAGRAPHS 10 AND 11 OF THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES
PROVIDED BY EACH PARTY AND (b) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES,
INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANT ABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE UNDER
THIS AGREEMENT, THE SERVICE AND CONTENT, AND EACH PARTY'S COMPUTING AND
DISTRIBUTION SYSTEM.
13. Limitation of Liability
In no event shall COMTEX or its Information Providers be liable to
AXXESS and its Users for any indirect, special, exemplary or consequential
damages, including lost profits, whether or not foreseeable or alleged to be
based on breach of warranty, contract, negligence or strict liability, arising
under this Agreement or any performance under this Agreement.
14. Indemnification
AXXESS shall indemnify and hold harmless COMTEX and its Information
Providers from and against any claims, losses, expenses, liabilities, and
damages, including reasonable legal fees and expenses, arising out of AXXESS's
or its Users' breach of any provision of this Agreement, including without
limitation the restrictions, obligations and warranties set forth in Paragraphs
2,3,4 and 11 of this Agreement. COMTEX agrees to notify AXXESS of any such claim
promptly in writing. The parties agree to cooperate fully during such
proceedings. AXXESS shall defend and settle at its sole expense all proceedings
arising out of the foregoing.
15. Non-Solicitation
AXXESS agrees that for the duration of this Agreement and for one (1)
year after expiration or termination of this Agreement, AXXESS shall not,
directly or indirectly, solicit or attempt to solicit to obtain a direct feed
from any Information Provider which is providing Content made available to
AXXESS as part of the Service provided by COMTEX. COMTEX recognized that AXXESS
had pre-existing communications with
Proprietary and Confidential
8
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Business Wire and PR Newswire, and excepts these two Information providers from
this provision.
16. Force Majeure
Neither party shall be liable for any delay or failure to perform under
this Agreement if caused by conditions beyond its control, including but not
limited to fire, flood, accident, storm, acts of war, riot, government
interference, strikes or walkouts; provided, however, no such event shall excuse
any delay or failure to perform by AXXESS of its obligations to make payment to
COMTEX under Paragraph 5 of this Agreement. The affected performing party shall
promptly notify the other party of the nature and anticipated length of
continuance of such force majeure. Should any such failure or suspension of
performance by COMTEX continue for more than six (6) months, then either party
shall have the right to terminate this Agreement without further liability or
obligation on the part of either party.
17. Notices
All notices and demands hereunder shall be in writing and delivered by
hand delivery, certified or registered mail, return receipt requested, or
confirmed facsimile transmission at the addresses set forth below (or at such
different address as may be designated by either party by written notice to the
other party). Delivery shall be deemed to occur (i) if by hand delivery, upon
such delivery, (ii) if by mail, four (4) days after deposit with the U.S. Postal
Service, and (iii) if by facsimile transmission, upon receipt of confirmation.
If to COMTEX:
Debbie Ikins, Vice President, Sales
Comtex Scientific Corporation
4900 Seminary Road
Suite 800
Alexandria, Virginia 22311
Facsimile transmission: 703-820-2005
If to AXXESS:
Kevin Lichtman
Axxess Media Group
201 Park Place #321
Altamonte Springs, FL 32701
Proprietary and Confidential
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Facsimile transmission: (407) 834-3890
18. General Terms and Conditions
a. Not Agent. Neither party shall be considered an agent of the other
party nor shall either party have the authority to bind the other party.
b. No Assignment. Neither party may assign this Agreement without the
written consent of the other party; provided, however, that COMTEX may assign
this Agreement as part of a transaction in which substantially all of the assets
related to its rights and obligations under this Agreement are assigned to a
third party.
c. Governing Law. This Agreement and performance hereunder shall be
construed and governed by the laws of the Commonwealth of Virginia.
d. Severability. In case any one or more of the provisions contained
herein shall, for any reason, be held to be invalid, illegal, or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Agreement, and this Agreement shall be construed as
if such provision(s) had never been contained herein provided that such
provisions(s) shall be curtailed, limited or eliminated only to the extent
necessary to remove the invalidity, illegality or unenforceability.
e. Waiver. No waiver of any breach of any of the provisions of this
Agreement shall be deemed a waiver of any preceding or succeeding breach of the
same or any other provisions hereof. No such waiver shall be effective unless in
writing and then only to the extent expressly set forth in writing.
f. Complete Agreement. The parties agree that this Agreement is the
complete and exclusive statement of the agreement between the parties, which
supersedes and merges all prior proposals, understandings and other agreements,
oral or written, between the parties relating to this Agreement.
g. Amendment. This Agreement may not be modified, altered or amended
except by written instrument duly executed by both parties.
h. Attorneys' Fees. Should any action be brought by either party to
enforce the provisions of this Agreement, the prevailing party, whether by
settlement, adjudication or arbitration, shall have the right to collect
reasonable attorneys' fees, expenses and costs from the nonprevailing party.
i. No Inference Against Author. No provision of this Agreement shall
be interpreted against any party because such party or its legal representative
drafted such provision.
10 Proprietary and Confidential
<PAGE>
j. Headings. The headings used in this Agreement are for convenience
only and are not to be construed to have a legal significance.
11 Proprietary and Confidential
<PAGE>
k. Read and Understood. Each party acknowledges that it has read and
understands this Agreement and agrees to be bound by its terms.
AGREED:
COMTEX SCIENTIFIC
AXXESS MEDIA GROUP, by: CORPORATION, by:
/s/ Kevin Lichtman /s/ Debbie Ikins
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Kevin Lichtman Debbie Ikins
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Printed Name Printed Name
President VP, Sales
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Title Title
Date: 2/25/98 Date: 2/25/98
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12 Proprietary and Confidential
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EXHIBIT 10.18
LINKING AGREEMENT
This Linking Agreement (the "Agreement") is made and entered into as of
April 1, 1998, by and between Partes Corporation, a Washington corporation,
("Partes"), and Axxess, Inc., a Nevada corporation, ("Axxess").
RECITALS
A. Partes offers investors and analysts corporate financial information
based on SEC filings, including real-time financial data and spreadsheets,
through its FreeEDGAR(sm) service.
B. Axxess maintains a Web site at which it provides a variety of materials
and information for investors (http://www.financialweb.com/) (the "Axxess
Website").
C. Axxess desires to provide to users of the Axxess Website the opportunity
and ability to obtain certain information directly from Partes by means of
hyperlink. Partes is willing to provide such information.
D. The parties desire to set forth their mutual understanding with respect
to the arrangements described above.
AGREEMENT
Now, therefore, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Section 1. Definitions
As used in this Agreement, the following terms shall have the following
meanings, unless the context otherwise requires. Certain other terms are defined
elsewhere in this Agreement.
"Affiliate" means, when used with reference to a person, (i) any person
that directly or indirectly through one or more intermediaries controls or is
controlled by or is under common control with the such person, or (ii) any
person that is an officer of, partner in, or trustee of, or serves in a similar
capacity with respect to, such person or of which such person is an officer,
partner or trustee, or with respect to which such person serves in a similar
capacity.
"Agreement" means this Linking Agreement between Partes and Axxess, as
amended from time to time.
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"Cause" means, with respect to any party to this Agreement, (i) a material
breach of this Agreement which is not cured within fifteen (15) days after
written notice thereof, (ii) a petition shall have been filed against such party
for an involuntary proceeding under any applicable bankruptcy, insolvency, or
other similar law now or hereafter in effect, and such petition shall not have
been dismissed within 60 days of filing; or a court having jurisdiction shall
have appointed a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of such party for any substantial portion of
its property, or ordered the winding up or liquidation of its affairs; or (iii)
such party shall have commenced a voluntary proceeding under applicable
bankruptcy, insolvency, or other similar law now or hereafter in effect, or
shall have made any general assignment for the benefit of creditors, or shall
have failed generally to pay its debts as they become due.
"Data" means text, graphics, layout and content of the corporate
financial information based on SEC filings, including real-time financial
filings, spreadsheet generation and watchlist, available at Partes FreeEDGAR(sm)
Web site, but excludes downloadable applications such as the FreeEDGAR(sm) Excel
Add-In.
"HTML" means Hyper Text Markup Language, the basic format for presenting
documents on the World Wide Web.
"SEC" means the United States Security and Exchange Commission.
Section 2. Linking Arrangements
(a) Axxess agrees to maintain a page on the Axxess Website that allows a
user to select a company and requests Data from the Partes server based on a
submitted ticker symbol.
(b) Partes agrees to provide the Data as an HTML stream generated by
Partes that a user's web browser will display. The Partes server will respond to
a request with an HTML page which lists the filings for the company associated
with the ticker (the "Filings List"). Based on the user's choice of filings,
Partes will send HTML pages the user can use to navigate the filings (the
"Filing Display"). The top of each generated page will include Partes logos and
graphics in a page header 60 pixels deep. Axxess shall provide attribution to
FreeEDGAR(sm) on the Axxess Website entry page that links to Partes and in any
HTML page, email, brochure or other material that includes the Data. With
respect to any HTML files located on the Axxess Website, the attribution shall
be by incorporating a graphical image provided by Partes (the "Image"). The
displayed image shall be no smaller than 100 pixels by 60 pixels in size. Axxess
shall not include any HTML code in a file used to generate any page or
communication that will alter the size of the Image. The HTML code for the file
used to generate the page or other communication that includes the Image will
include code whereby a user can click on the Image and link to the
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FreeEDGAR(sm) website. If the form of communication precludes the possibility of
including a clickable link, a textual reference only, including the URL listed
above, shall be substituted therefore.
(c) Axxess acknowledges and agrees that Partes will update and improve
from time to time its products and services, including, its Application
Programming Interface (the "API"). Such changes may require that Axxess update
and revise its programming and interface relating to the Data and Axxess agrees
to do such programming at its cost and expense. Partes agrees to give Axxess at
least 15 days notice of changes to applicable portions of the API and will
continue to support the current API for 30 days after the cutover to the new
version.
Section 3. Licensing Fee
Axxess agrees to pay Partes a licensing fee of $1500 per month for the term
of this Agreement. Axxess shall forward to Partes on a monthly basis the fee for
the calendar month within five (5) days of the end of such calendar month.
Section 4. Reporting
Axxess will electronically register and record each time a web browser on
the internet requests a web page at Axxess's website from which Data can be
requested or viewed. Axxess will report the recorded information to Partes on a
monthly basis.
If, for any calendar month, the number of page views on pages that contain
the Data exceeds 150,000, then Axxess shall promptly notify Partes in writing of
the number of such page views for such month. The parties will then enter into
good faith discussions to renegotiate the fees and other amounts to be paid to
Partes under this Agreement. If within 30 days after Partes receives the
notification from Axxess the parties have not reached mutual agreement on such
fees and other amounts, Partes shall have the right to terminate this Agreement
on 15 days written notice to Axxess.
Section 5. Limited License
Partes grants to Axxess a nonexclusive, nontransferable, nonassignable
license to use, in connection with establishing the link described in this
Agreement and identifying Partes as the source of the Data, the FreeEDGAR(sm)
logo and name (the "Partes Mark"). Axxess's use of the Partes Mark shall be
limited to purposes of establishing the link, identifying or branding the Data
provided by Partes and defining the web link specifications, as described in
Section 2 above. Axxess agrees
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to use the Partes Mark only in the form and manner and with appropriate legends
as prescribed from time to time by Partes. Axxess acknowledges the ownership of
the Partes Mark by Partes and Partes' control over the quality of the goods and
services provided under such mark. Axxess agrees that it will do nothing
inconsistent with such ownership and that all use of the Partes Mark by Axxess
shall inure to the benefit of and on behalf of Partes. Axxess agrees to assist
Partes in recording this agreement, if deemed advisable by Partes, with
appropriate government authorities and to assist in the registration,
maintenance and defense of the Partes Mark. Axxess agrees that nothing in this
limited license shall give Axxess any rights, title or interest in the Partes
Mark other than the right to use the Partes Mark in accordance with this limited
license. Axxess agrees that it will not attack the Partes Mark. Axxess agrees
not to adopt or seek to register any mark confusingly similar to the Partes
Mark. Axxess agrees not to alter the presentation, reproduce, retransmit,
disseminate, sell, distribute, publish, broadcast, circulate or commercially
exploit the Data in any manner without the express written consent of Partes.
Section 6. Significant Changes to Content
Axxess agrees to notify Partes of any significant changes to the content or
structure of the Axxess Website within ten (10) days of any such change. Partes
may terminate this Agreement on ten (10) days written notice after any
significant change to the Axxess Website.
Section 7. Data Collection
The parties agree that the Agreement restricts the gathering and use of
specific information concerning users collected by either party during the term
of the Agreement to the internal use of each party unless written permission is
provided by the other party. Each party is responsible for determining whether
any such gathering, use or dissemination it performs is consistent with
applicable laws and regulations.
Section 8. Representations and Warranties
(a) Axxess represents and warrants to Partes that:
(i) Axxess has duly registered the domain name of the Axxess
Website with all required authorities and possesses and will maintain all
rights necessary to use, and grant Partes a license to use, such domain
name; and
(ii) no content or materials available at the Axxess Website
(including, without limitation, content and material supplied by users of
such website) does now or will in the future infringe upon or violate any
(A) copyright, patent, trademark or other proprietary right of any
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third party or (B) applicable law, regulation, or non-proprietary third-
party right.
(b) Partes represents and warrants to Axxess that the Data does not now
and will not in the future infringe upon or violate any (A) copyright,
patent, trademark or other proprietary right of any third party or (B)
applicable law, regulation or non-proprietary third-party right.
Section 9. Term of Agreement; Termination
This Agreement shall commence on April 1, 1998 and shall continue for an
initial term expiring on April 1, 1999 (the "Initial Term"). Absent written
notice of non-renewal as provided in this Section 10, this Agreement shall be
automatically renewed for successive one-year terms ("Renewal Terms") upon the
expiration of the Initial Term and each Renewal Term. Notice of non-renewal, if
given, shall be given in writing by Partes to Axxess, or by Axxess to Partes, as
the case may be, not less than sixty (60), nor more than ninety (90), calendar
days before the expiration of the Initial Term of any Renewal Term thereof.
Notwithstanding any other provision to the contrary, this Agreement may be
terminated by Partes with Cause immediately upon providing written notice to
Axxess or by Axxess with Cause immediately upon written notice to Partes. In the
event of termination of this Agreement, the parties will cooperate and take all
reasonable steps to assist one and other in making an orderly transition the
function set forth in this Agreement.
Section 10. Disclaimer of Warranty
Except as expressly set forth in this Agreement, neither party makes, and
each party hereby specifically disclaims, any representations or warranties,
expressed or implied, including any implied warranty of merchantability or
fitness for a particular purpose and implied warranties arising from course of
dealing or course of performance. In particular, the Data will be furnished by
Partes on an "as is" and "with all faults" basis. Partes disclaims any
warranties (expressed or implied), liabilities and remedies of any kind,
including, without limitation, the implied warranties of merchantability or
fitness for a particular purpose. Without limitation of the foregoing, Partes
does not warrant or guaranty the timeliness, sequence, accuracy or completeness
of the Data. There are no warranties, expressed or implied, as to the results to
be obtained from use of the Data. Without limitation of the foregoing, neither
Partes, nor its information providers shall be liable regardless of the cause or
duration, for any errors, inaccuracies, omissions, or other defects in,
timeliness, authenticity of, the Data or for any delay or interruption in the
transmission thereof to users or any claim or losses or arising therefrom or
occasion thereby. Partes shall not be liable for any third-party claims or
losses of any nature, including but not
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limited to, lost profits, punitive or consequential damages. Axxess acknowledges
and agrees that any proprietary rights in the Data shall remain the property of
Partes, or its information provider. Axxess will not use all or any portion of
the Data for any unlawful purpose.
Section 11. Taxes
The parties to this Agreement shall pay all applicable United States
federal, state and local taxes and other national, provincial or local taxes, or
other tariffs of any jurisdiction in which one of the parties to this Agreement
resides or is otherwise subject, in accordance with the laws of the United
States or any such other jurisdiction as then in effect.
Section 12. No Partnership
Nothing contained in this Agreement will be construed as making the parties
hereto partners or joint venturers.
Section 13. Amendments
Any term of this Agreement may be amended and the observance of any term
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the parties.
Section 14. Arbitration
As to any matter of disagreement, dispute or controversy between the
parties hereto, either party may demand that such disagreement, dispute or
controversy be submitted to arbitration. The demand for arbitration shall be in
writing, shall be served on the other party as provided in Section 22 and shall
set forth the matter or matters to be arbitrated and the name and address of the
arbitrator chosen by the party making such demand. Within 15 days after the
receipt of the demand, the party receiving the demand shall appoint an
arbitrator and give written notice of such appointment to the party making the
demand and shall specify the name and address of such arbitrator. The two
arbitrators so appointed or selected shall appoint a third arbitrator as soon as
practicable. Any arbitration pursuant hereto shall be in accordance with the
Commercial Arbitration Rules of the American Arbitration Association as then in
effect, and judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof. All such arbitration proceedings shall
take place in Seattle, WA. Any award rendered shall be final and conclusive upon
the parties. The arbitrators shall award the substantially prevailing party the
costs and expenses incurred in proceeding with the arbitration, including but
not limited to the costs of experts, evidence and legal fees, the arbitrators'
fees and the administrative fees imposed by the American Arbitration
Association. The arbitrators are authorized to issue pre-award injunctive relief
where
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appropriate and to invoke such other sanctions as may be necessary to enforce
the arbitrators' orders or to compel discovery through depositions or document
production.
Section 15. Assignment
Neither of the parties hereto may sell, transfer, assign or otherwise
dispose of any of its rights or obligations under this Agreement to any other
person, without the express written consent of the other party. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by the parties hereto and their respective successors and
assigns.
Section 16. Attorneys' Fees
If any party hereto brings an action or proceeding for the declaration of
the rights of the parties hereunder, for injunctive relief, or for an alleged
breach or default of, or any other action arising out of this Agreement or the
transactions contemplated hereby, the prevailing party in any such action shall
be entitled to an award of reasonably attorney fees' and any court costs
incurred in such action or proceeding, in addition to any other damages or
relief awarded, regardless of whether such action proceeds to final judgment.
Section 17. Consents and Waivers
The failure of a party hereto at any time or times to require performance
of any provision hereof shall in no manner affect its right at a later time to
enforce the same unless the same is waived in writing. No waiver by a party of
a condition or any breach of any term, covenant, representation or warranty
contained in this Agreement shall be effective unless in writing, and no waiver
any one or more instances shall be deemed to be a further or continuing waiver
of any such condition or breach in other instances or a waiver of any other
condition or breach of any other term, covenant, representation or warranty.
Section 18. Counterparts
This Agreement may be executed in a number of identical counterparts. If so
executed, each of such counterparts is to be deemed an original for all
purposes, and all such counterparts shall collectively constitute one agreement.
Section 19. Entire Agreement; No Third Party Beneficiaries
The terms set forth in this Agreement are intended by the parties as a
final, complete and exclusive expression of the terms of their agreement with
respect to the transactions contemplated by this Agreement and may not be
contradicted, explained or supplemented by evidence of any prior agreement, any
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contemporaneous oral agreement or any consistent additional terms. There are no
restrictions, promises, representations, warranties, covenants or undertakings,
other than those expressly set forth or referred to herein. This Agreement is
not intended to confer upon any person other than the parties hereto any rights
or remedies hereunder.
Section 20. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of Washington applicable to agreements made and entirely to be
performed within such state, without regard to its conflict of law rules.
Section 21. Notices
All notices, certificates or other communications shall be in writing and
shall be sufficiently given and shall be deemed given on the business day on
which the same have been personally delivered (either by messenger or courier
service which guarantees next day delivery) or (if not by such messenger or by
courier service), on the second business day following the date on which the
same has been mailed by certified mail, return receipt requested, postage
prepaid, addressed as follows:]
If to Partes: Partes Corporation
10635 NE 163rd Place Suite B
Kirkland, WA 98033
If to Axxess: Axxess Media Group, Inc.
201 Park Place, Suite 321
Altamonte Springs, FL 32701
A duplicate copy of each notice, certificate or other communication given
hereunder by any party hereto to another party hereto shall also be given to all
of the parties specified above. All other documents required to be submitted to
any of the foregoing parties shall also be submitted to such party at its
address set forth above. Any of the foregoing parties may, by notice given
hereunder, designate any further or different addresses to which subsequent
notices, certificates, documents or other communications shall be sent.
Section 22. Remedies in Equity
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The rights and remedies of the parties hereunder shall not be mutually
exclusive, i.e., the exercise of one or more of the provisions hereof shall not
preclude the exercise of any other provisions hereof. The parties confirm that
damages at law will be an inadequate remedy for a breach or threatened breach of
this Agreement and agree that their respective rights and obligations hereunder
shall be enforceable by specific performance, injunction or other equitable
remedy as well as at law or otherwise.
Section 23. Severability
Should any term or provision hereof be deemed invalid, void or
unenforceable either in its entirety or in a particular application, the
remainder of this Agreement shall nonetheless remain in full force and effect
and, if the subject term or provision is deemed to be invalid, void or
unenforceable only with respect to a particular application, such term or
provision shall remain in full force and effect with respect to all other
applications.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
PARTES CORPORATION
By: [Signature Appears Here]
Its: President
AXXESS, INC.
By: [Signature Appears Here]
Its: President
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EXHIBIT 10.19
INTERNET DATA DISTRIBUTION AGREEMENT
THIS AGREEMENT (the "Agreement") is entered as of ___________________,
19__ (the "Effective Date"), between Value Line Publishing, Inc. ("VLP"),
headquartered at 220 East 42nd Street, New York, New York 10017, and
________________________________, headquartered at _______________________
__________________________________________________________________________
_________________________________________________ (the "Distributor").
RECITALS
1. VLP has developed, analyzed and owns or is the licensee in whole or in
part of certain data relating to mutual funds as more fully described in Exhibit
A (the "VLP Data").
2. Distributor wishes to obtain a license to use, and VLP agrees to license
to Distributor, the VLP Data for distribution to Distributor's clients (the
"End-Users") through Distributor's Internet web site more fully described in
Exhibit A (the "Web Site").
Therefore, both parties agree as follows:
1. License.
VLP hereby grants to Distributor a limited, non-exclusive, non-transferable, and
worldwide license during the Term (as defined in Section 2) to promote,
distribute and market (collectively, "Market(ing)") the VLP Data solely on and
through the Web Site, solely and strictly subject to the terms and conditions of
this Agreement. Nothing in this Agreement shall prohibit VLP from marketing,
licensing, selling, or otherwise providing the VLP Data, or any information
derived therefrom, directly or indirectly, such as through other licensees or
distributors, to any third party wherever located, including End-Users.
Distributor shall Market the VLP Data only through the Web Site, and not by any
other means or medium, including print, CD-ROM, on-line, or other electronic
delivery.
2. Term.
This Agreement is effective as of the Effective Date and shall continue in
effect for one (1) year (the "Term"), unless the Agreement is previously
terminated under Section 15.
3. Payments, Records and Audit.
(a) In consideration of the license granted to Distributor hereunder,
Distributor shall pay to VLP the license fees set forth in Exhibit B (the
"License Fees"). Distributor acknowledges that it shall not receive and not be
entitled to any commissions, royalties, or other compensation whatsoever from
VLP for Marketing any VLP Data. Any and all compensation due to Distributor as a
result of its Marketing of the VLP Data or other performance of this Agreement
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shall be solely and exclusively derived from Distributor's agreement with its
End-Users. Nothing in this Agreement, whether expressed or implied, shall limit
or otherwise seek to influence the prices that Distributor, in its sole
discretion, may charge its End-Users for the provision of VLP Data.
(b) Distributor shall maintain throughout the Term, and twenty-four (24) months
after the termination, experiation or non-renewal of this Agreement for any
reason accurate and complete hard-copy or electronically retrievable and
reproducible records of all transactions involving the VLP Data, including
comprehensive Distributor invoicing and payment records and information. VLP or
its designated representative shall have the right, upon three (3) days prior
notice, to inspect these records at Distributor's headquarters at any time
during the Term and twenty-four (24) months after the termination, experiation
or non-renewal of this Agreement for any reason. Distributor shall fully
cooperate with such audit efforts. In the event the audit reveals an
underpayment by the Distributor, Distributor shall immediately pay VLP such
underpaid amount plus interest at the rate of one and one-half percent (1.5%)
per month or the highest monthly rate permitted by applicable law, whichever is
lower, accruing daily as of the date payment was due until the date payment is
made by the Distributors. In addition, Distributor shall, within thirty (30)
days after VLP's invoice to Distributor, reimburse VLP for its reasonable audit
and inspection costs, if any audit reveals an underpayment by the Distributor
which exceeds ten percent (10%) of the actual amount originally paid by
Distributor prior to the audit.
4. Mandatory End-User Provisions.
(a) Distributor shall at all times during the Term maintain a terms and
conditions screen on its Web Site (the "Terms and Conditions") which shall
contain each and every mandatory provision listed in Exhibit D (the "Mandatory
Provisions"). Distributor's Web Site shall display the Mandatory Provisions in a
conspicuous manner utilizing capital letters. The Mandatory Provisions must
appear on the Web Site prior to the display of any VLP Data and each End-User
must confirm its acceptance of and agreement with the Mandatory Provisions by
clicking or keying in such confirmation before obtaining access to any VLP Data.
Distributor shall not negotiate, modify, amend, or revise any Mandatory
Provision. If any End-User does not confirm its agreement with the Mandatory
Provisions, such End-User shall be given a refund of the amount, if any, the
End-User previously paid for the VLP Data.
(b) Distributor has no authority, express or implied, to undertake any
obligations or assume any liabilities on behalf of VLP. Without derogating from
the generality of the foregoing, Distributor shall make no statement of any
kind, whether oral or written, to End-Users or any other third party about the
VLP Data that is inconsistent with this Agreement or the Mandatory Provisions
and shall specifically not make or offer any representations or warranties
related to the VLP Data other than as expressly set forth in Section 8(a) of
this Agreement.
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5. Delivery.
VLP shall deliver the VLP Data to Distributor in printed or in computer-readable
formats with the same frequency as it is generally made commercially available
by VLP to VLP's other customers and distributors.
6. Distributor Warranties.
Distributor hereby represents and warrants that (i) it shall not permit any
third party (including any End-User) to obtain access to any VLP Data or any
part thereof without previously confirming such party's agreement to be bound by
the Terms and Conditions which, at a minimum, contain all Mandatory Provisions
and which include no provision that limits, derogates from, or is otherwise
inconsistent with, any Mandatory Provision or other provision in this Agreement;
(ii) Distributor is and shall remain duly qualified to transact business and
perform this Agreement to the full extent contemplated in all applicable
jurisdictions, including where the End-Users are located; (iii) the execution
and delivery of this Agreement by Distributor, and the performance of its
obligations hereunder, have been duly authorized by all requisite corporate
actions on the part of Distributor; (iv) this Agreement has been duly executed
and delivered by Distributor; and (v) Distributor shall implement this Agreement
and Market the VLP Data in compliance with applicable laws and regulations.
7. Proprietary Rights.
(a) Distributor acknowledges that the VLP Data consists of information gathered,
selected, analyzed, arranged, and presented by VLP or its licensors through the
application of methods of selection, organization, computation, analysis and
judgment unique and original to VLP or its licensors and at considerable expense
to VLP or its licensors, and that the actual value thereof far exceeds VLP's or
its licensors' cost in preparing the VLP Data. Distributor also acknowledges
that VLP or the applicable licensor owns all rights, title and interest in and
to the VLP Data and any versions, derivative works or translations thereof.
Nothing in this Agreement shall be construed to grant Distributor any license or
right not expressly granted by this Agreement.
(b) Distributor acknowledges that, in the course of dealing with VLP under this
Agreement, Distributor will obtain access to VLP Data and other information
relating to VLP's business, customers, marketing plans, product lines, software,
publications and development efforts, which VLP deems confidential or
proprietary (the "VLP Information"). Except as is expressly provided in this
Agreement, Distributor may not use the VLP Information for any purpose whether
for itself or the benefit of any third party. Distributor shall protect the VLP
Information from unauthorized use or disclosure and shall not disclose the VLP
Information within its own organization other than on a "need to know" basis to
persons who sign an agreement acknowledging the proprietary nature of the VLP
Information and ensuring its confidential treatment.
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(c) Distributor may use the Value Line name and the trademarks depicted in
Exhibit C (collectively, the "Marks") solely and exclusively for the purpose of
Marketing the VLP Data on the Web Site pursuant to this Agreement and in a
manner strictly in accordance with this Agreement. Distributor acknowledges that
VLP owns all right, title and interest in the Marks, and Distributor shall do
nothing to challenge or encumber VLP's ownership thereof. Distributor shall not,
during or after the Term hereof, use the Marks or any symbols, names or marks
confusingly similar thereto for any purpose not expressly authorized in this
Agreement. Distributor may not during or after the Term, use, adopt or attempt
to register anywhere in the world, whether alone or together with any other
mark, symbol or name, any trade name or mark or service name or mark that is
similar or confusingly similar to any Mark or other VLP mark or symbol.
(d) Distributor shall not (i) remove any copyright, trademark and other
proprietary rights notices contained or embedded in the VLP Data; (ii) copy,
modify, paraphrase or translate any VLP Data into a foreign language; (iii)
reverse engineer, reverse compile, reverse assemble, or otherwise attempt to
reveal or duplicate for any purpose the methodology, know-how or trade secrets
underlying any VLP Data or the means by which the VLP Data is delivered
(including any software or CD ROM source code); (iv) use any VLP Data to create
another product or service as part of a commercial time sharing, service bureau
arrangement, product or resale capacity, or otherwise for the benefit of any
third party; (v) extract ideas, algorithms, procedures, formulas, work flows or
hierarchies from any VLP Data to create a work that may be used as a substitute
for any VLP Data; or (vi) use any VLP Data on the Internet in any capacity or
for any purpose other than through the Web Site.
(e) Distributor shall (i) cooperate with VLP and protect the VLP Data and Marks
from infringement by End-Users and other third parties; (ii) promptly notify VLP
of any act of which it becomes aware that might constitute an infringement of
any VLP copyright, trademark, trade secret, or other proprietary right or that
may constitute unfair competition against VLP; (iii) promptly notify VLP of any
allegation of which Distributor becomes aware that any VLP Data, Mark or the
Marketing thereof infringes upon third party rights or otherwise violates any
law; and (iv) execute appropriate documents and cooperate with VLP, at VLP's
expense, to obtain or register anywhere in world for VLP's benefit its rights
under this Agreement, including any copyrights, trademarks, trade secrets, and
other proprietary rights in the VLP Data or the Marks.
(f) Notwithstanding anything to the contrary in this Agreement, since
Distributor recognizes that breach of this Section 7 may cause VLP irreparable
injury, VLP, in addition to all other remedies, shall have the right to
equitable or injunctive relief anywhere, as it deems fit, in the event of an
actual or attempted breach by Distributor of its obligations hereunder.
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8. VLP Warranties.
(a) VLP warrants to Distributor that VLP has the right to (i) enter into this
Agreement, and (ii) furnish the VLP Data to Distributor for use as contemplated
herein. VLP agrees to attempt to correct any inaccuracies in the VLP Data which
are promptly brought to its attention.
(b) THE WARRANTIES SET FORTH IN SECTION 8(a) ARE THE SOLE AND EXCLUSIVE
WARRANTIES PROVIDED BY VLP UNDER THIS AGREEMENT OR IN CONNECTION WITH THE VLP
DATA AND ARE IN LIEU OF ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
(c) VLP DOES NOT GUARANTEE THE COMPLETENESS OR ACCURACY OF THE VLP DATA. TO THE
MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, VLP DISCLAIMS ANY LIABILITY WHATSOEVER
FOR ANY FINANCIAL OR OTHER LOSS, DAMAGE, COST, OR EXPENSE SUFFERED OR INCURRED
BY DISTRIBUTOR, ANY END-USER, OR OTHER THIRD PARTY IN CONNECTION WITH ANY VLP
DATA OR OTHERWISE RELATED TO THIS AGREEMENT, OR BE LIABLE TO DISTRIBUTOR, ANY
END-USER, OR OTHER THIRD PARTY FOR DAMAGES RESULTING, OR ALLEGED TO HAVE
RESULTED, FROM ANY ERROR OR OMISSION IN THE VLP DATA OR ANY ACTION TAKEN OR NOT
TAKEN BASED THEREON, OR INFORMATION DERIVED THEREFROM; AND IN NO EVENT SHALL VLP
BE LIABLE TO DISTRIBUTOR, END-USERS OR ANY THIRD PARTY FOR ANY LOST PROFITS,
LOSS OF BUSINESS, LOST SAVINGS OR OTHER CONSEQUENTIAL, SPECIAL, PUNITIVE,
INCIDENTAL, INDIRECT, OR EXEMPLARY DAMAGES, IN ANY EVENT. VLP'S LIABILITY FOR
ANY REASON UNDER THIS AGREEMENT OR IN CONNECTION WITH THE VLP DATA SHALL NOT
EXCEED THE LICENSE FEES DISTRIBUTOR ACTUALLY PAID TO VLP IN THE CONSECUTIVE SIX
(6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE GIVING RISE TO SUCH LIABILITY.
Distributor acknowledges that VLP's liability and warranty limitations set forth
in this Section 8 are reasonable under the circumstances and that Distributor's
consent thereto is fairly reflected in its payment obligations to VLP and
constitutes a material inducement for VLP's entry into this Agreement.
9. Indemnification.
Distributor shall defend, indemnify and hold harmless VLP and its officers,
directors, shareholders, and employees (each, the "Indemnified Party"), jointly
and severally, from and against any and all claims, suits, actions, proceedings,
liabilities, losses, damages, or expenses, including any legal and expert fees
and expenses and all costs of investigation, which (i) arise out of or relate to
Distributor's breach of any term or provision of this Agreement, including
Sections 4, 6 and 7, or any action or inaction that is inconsistent with any one
or more of Distributor's acknowledgments or VLP's liability limitations in this
Agreement; or (ii) are brought against VLP by any End-User.
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10. Marketing.
Distributor shall perform this Agreement in a manner consistent with VLP's
corporate practices and policies; use reasonable commercial efforts to promote
the VLP Data; take all steps reasonably necessary to maintain the quality and
integrity of the VLP Data and the Web Site; and do nothing which may adversely
affect the reputation of the VLP Data or VLP.
11. Taxes.
Distributor shall pay any and all sales, use, withholding, value added, stamp or
other taxes, duties, fees, or charges imposed or assessed in connection with
this Agreement or the Marketing of the VLP Data by Distributor that are assessed
or imposed against VLP, except for any taxes on VLP's net income payable in the
United States.
12. Waivers.
Any waiver of any right by either party to this Agreement must be in writing and
shall constitute a single and separable act, and shall not constitute a waiver
of that same right thereafter, or of any other rights.
13. Entire Agreement and Amendment.
This Agreement including Exhibits A, B, C, and D attached and incorporated
hereto constitutes the sole, final and entire agreement of the parties and
supersedes and terminates all previous agreements between the parties with
respect to the subject matter hereof. All amendments or modifications to this
Agreement must be in writing and signed by an officer of each party.
14. Assignment.
Distributor may not assign any of its rights or delegate any of its obligations
hereunder without the prior written consent of VLP. VLP has the right to assign
or delegate this Agreement. Subject to the foregoing, this Agreement binds the
parties and their permitted successors and assigns.
15. Termination.
(a) This Agreement may be terminated at any time during the Term as follows: (i)
by either party upon fifteen (15) days prior written notice to the other party,
if such other party breaches any term of this Agreement without curing same
within such fifteen (15) day cure period, and (ii) by VLP for any reason upon
giving Distributor forty-five (45) days prior written notice to that effect.
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(b) Upon the termination, expiration or non-renewal of this Agreement for any
reason, Distributor shall (i) cease Marketing the VLP Data and remove from its
Web Site all VLP Data and all references to VLP; (ii) return to VLP all VLP Data
and other tangible VLP Information or, if requested by VLP, destroy same and
provide a written certification confirming that such destruction is complete;
(iii) immediately pay VLP any payments then due and owing to VLP hereunder; (iv)
cease holding itself out as VLP's Distributor or otherwise as having any
commercial relationship with VLP; and (v) no longer use any of the Marks for any
purpose.
16. Survival.
All provisions of this Agreement which by their nature contemplate continuing
effectiveness, including those pertaining to confidentiality, proprietary
rights, exclusion of liabilities, and indemnity, shall survive any termination,
expiration or non-renewal of this Agreement.
17. Independent Contractors.
This Agreement shall not create an agency, joint venture, partnership,
employment, or other similar relationship between the parties, it being
understood that the parties' relationship shall only be that of independent
contractors.
18. Notices.
Any notice between the parties under this Agreement shall be in writing and
shall be deemed duly given if delivered or mailed by certified mail, postage
prepaid, return receipt requested, to the following addresses:
For: Value Line Publishing, Inc. To the attention of: Chairman and CEO
220 East 42nd Street With a Copy to: General Counsel
New York, NY 10017
For: To the attention of:
------------------------------ --------------------
(Name of Distributor) (Title)
------------------------------ --------------------
(Address)
------------------------------ --------------------
(City, State, Zip)
Notice shall be effective upon delivery as evidenced by courier or U.S. mail
delivery records.
19. Dispute Resolution.
This Agreement shall for all purposes be governed, interpreted, construed, and
enforced solely and exclusively in accordance with the law of the State of New
York, USA (excluding its law of
7
<PAGE>
conflict of laws). The parties hereby agree that the courts located in the State
and County of New York, USA shall constitute the sole and exclusive forum for
the resolution of any and all disputes arising out of or in connection with this
Agreement and hereby irrevocably waive any objections thereto, including on
grounds of forum non conveniens.
20. Publicity.
Neither VLP nor Distributor shall use the name of the other in publicity
releases, advertising or otherwise without the prior written consent of the
other.
21. Headings.
Headings are for reference and are not intended to affect the meaning of any
terms. If any provision of this Agreement is held invalid, illegal or
unenforceable, the remaining provisions will continue unimpaired.
22. Reimbursement.
VLP shall be reimbursed by Distributor for any and all reasonable costs and
expenses, including without limitation, legal fees, collection fees and expert
fees, incurred by VLP as a result of Distributor's failure to comply with any of
its obligations under this Agreement. VLP shall be fully reimbursed by
Distributor for all such costs within (30) days after the date of VLP's invoice
therefor.
Distributor Value Line Publishing, Inc.
By:
- -------------------------------------- ----------------------------
(Name of Company)
By: Title:
----------------------------------- -------------------------
- --------------------------------------
(Print Name)
Title:
--------------------------------
8
<PAGE>
EXHIBIT 10.20
SUBSCRIPTION AGREEMENT
This Agreement, dated as of August 13,1998 is between Axxess Media,
("Subscriber") and SportsTicker Enterprises, L.P., Harborside Financial Center,
600 Plaza Two, Jersey City, New Jersey 07311 ("STE").
It is agreed as follows:
1. License - STE grants to Subscriber the non-exclusive right to store,
display, distribute and transmit STE's sports-related information (the
"Service") throughout Subscriber's stand-alone internet site. Subscriber may not
distribute the Service through any service or medium other than those listed
without the prior written consent of STE. The content of the service shall
include STE-produced data on sports, including in progress reports, recaps, box
scores, sports news, standings, statistics and STE-produced sports features (the
"Content"). The Service does not include any league-branded content provided by
third parties such as the "NBA Premium Service."
2. Use of Service - The Service is to be offered by Subscriber to individuals
solely for their personal, private, non-commercial use. Without STE's prior
written consent the Service may not be delivered to or licensed to any third
party for redistribution or use by such party.
3. Delivery of Service - Subscriber shall receive the Service through STE's
1200 Baud service, either through satellite or dedicated phone line.
4. Term - This Agreement shall be for a period of one year commencing on the
first day of installation and shall be renewed for successive one-year periods
unless terminated by either party's giving written notice to the other by ninety
days prior to the expiration of the term or any renewal period.
5. Fees
(a) Subscriber shall pay STE a monthly service fee due in advance by the
first of each month as defined below:
Months 1 - 3: $300.00 per month
Months 4 - 6: $1000.00 per month
Months 7 - 9: $1750.00 per month
Months 10-12: $2500.00 per month
(b) STE may, in its sole discretion following the initial term of this
Agreement, change the monthly fee set forth above, by giving six weeks'
written notice to Subscriber. Upon receipt of STE's notice of increase,
Subscriber shall have the right to terminate this Agreement upon written
notice to STE to be received by STE prior to the effective date of the
increase.
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6. Copyright/Marks - STE retains the copyright to and all right, title to and
interest in the Service. Subscriber does not acquire any rights to STE's name or
marks by virtue of entering into this Agreement and shall not use the names,
marks or logos of STE without STE's prior written approval.
7. Termination
(a) Either party may terminate this Agreement upon a material breach of its
terms by the other party if such breach has not been cured within thirty
days following written notice by the nonbreaching party.
(b) STE may discontinue its service in whole or in part whenever any of its
agreements with any leagues or other sources of information require such
discontinuance.
8. Representation and Indemnification -
(a) STE and Subscriber each represent and warrant to the other that they
have the power and authority to enter into this Agreement and to fully
perform their obligations hereunder.
(b) Subscriber and STE shall each indemnify and forever hold harmless the
other, the other's affiliated companies and their respective officers,
directors, employees and agents from all liabilities, claims, costs, damages
and expenses (including, without limitation, reasonable fees for counsel of
the other party's choice) arising out of any reach or claimed breach of any
of its respective representations or obligations pursuant to this Agreement.
(c) Each party shall so indemnify the other only if such other party gives
the indemnifying party prompt notice of any claim or litigation to which its
indemnity applies. The indemnifying party shall have the right to assume the
defense of any or all claims or litigation to which its indemnity applies
and the indemnifies party shall cooperation fully with the indemnifying
party in such defense and in the settlement of such claim or litigation.
(d) STE and its sources of data including all individual teams, leagues and
administrative bodies involved with the professional and collegiate sporting
event covered on the Service shall not be liable for any efforts, omissions,
delays or inaccuracies in the information provided. STE will not be liable
for any interruption of the Service arising out of the installation,
relocation, use, or maintenance of any equipment, systems, or connection
facilities or due to events beyond the reasonable control of STE or its
sources of data. STE and its sources of data shall not be liable to
Subscriber for consequential, special or indirect damages arising out of the
receipt and/or use of the Service.
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<PAGE>
9. Equipment/Maintenance -
(a) Subscriber will not attach, or permit or cause to be attached, any
equipment to the printer or other equipment supplied by STE or the Service
line/modem, nor will Subscriber use any equipment not provided as part of
the STE service without the prior written approval of STE. Subscriber shall
not copy, manipulate or redistribute computer programs associated with the
STE service without the prior written consent of STE and upon non-renewal by
Subscriber or termination for whatever reason of this Agreement Subscriber
shall promptly return any such program and related media to STE. In
addition, any copies of STE computer programs or related media shall be
destroyed by Subscriber. Any equipment subsequently attached to equipment
previously provided by STE shall be subject to the terms and conditions of
this Agreement.
(b) At all times upon 24 hours notice to Subscriber, any person or persons
designated by STE will have full and free access to the place herein
designated to observe the use of the STE service and to inspect, maintain,
and replace any equipment.
10. Choice of Laws- This Agreement shall be governed by the laws of the State of
New York without regard to the choice of law principles thereof.
11. Notice - All notices given hereunder shall be given in writing by personal
delivery or by mail, telegram, or facsimile at the respective addresses of
Subscriber and STE set forth above, unless either party at any time or from time
to time designates another address for itself by notifying the other party
thereof by certified mail, in which case all notices to such party shall
thereafter be given at its most recently so designated address. Notice given by
mail shall be deemed given on the date of mailing thereof with postage prepaid.
Notice given by telegram shall be deemed given on delivery of such telegram to a
telegraph office with charges therefor prepaid or to be billed to the sender
thereof. Notice given by facsimile shall be deemed given on the sending thereof
conditioned upon the transmitting party's retaining evidence of such
transmission.
12. Assignment - This Agreement including both its obligations and benefits
shall pass to and be binding on the respective tranferees and successors of the
parties, but neither this Agreement nor any of Subscriber's rights or
obligations hereunder may be assigned or transferred by Subscriber without the
prior written consent of STE.
AXXESS MEDIA SPORTSTICKER ENTERPRISES, L.P.
By: /s/ Kevin A. Lichman By:
------------------------------ -----------------------------
Kevin A. Lichman, President Rick Alessandri
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<PAGE>
EXHIBIT 10.21
ExpressNet Distributor Software License Addendum
This SOFTWARE LICENSE ADDENDUM ("Addendum") is effective as of August 28 1998,
by and between Infoseek Corporation ("Infoseek") and, Axxess, Inc.
("Distributor") and is for the purpose of amending and superseding certain of
the provisions of the Infoseek Express Software License Agreement ("License
Agreement") which is attached to this Addendum (jointly "Combined Agreement").
This Addendum modifies and supersedes portions of the License Agreement as
expressly indicated in this Addendum and to the extent that any provisions of
this Addendum and the License Agreement conflict, the provisions of this
Addendum will control.
1. License Grant. Subject to the terms of this Addendum, Infoseek grants to
Distributor a non-transferable, non-exclusive license to customize the Software
to form a Co-Branded version of the Software ("Co-Branded Software") and to
distribute in its entirety, without change except as expressly provided in this
Addendum, and reproduce and use the Co-Branded Software in binary executable
form, under the terms of the License Agreement.
2. Term. Except as otherwise specified in this Addendum, the term of the
license and rights granted in this Addendum commences on the date Infoseek
executes this Addendum and continues through the one hundred eighty (180) - day
period ("Initial Period") after the launch date of the Software ("Launch Date").
Infoseek shall notify Distributor in writing when the Launch Date shall have
occurred. This Addendum shall terminate after such Initial Period unless
extended by mutual agreement in writing by Infoseek and Distributor and
notwithstanding anything else shall terminate if the License Agreement is
terminated. Either party may terminate this Addendum at any time, without cause,
upon at least fifteen (15) days prior written notice to the other party.
3. Customization. Customization of the Software to form the Co-Branded
Software shall be as follows:
3.1 Placing Distributor's logo as shown and stated in Attachment 1.
3.2 Building and maintaining one (1) Infoseek Express Finder ("Distributor
Finder") as shown and stated in Attachment 1.
4. Finder Guide. Infoseek agrees that the Distributor's site will be included
in the Infoseek Express Finder Guide ("Finder Guide") subject to Distributor's
meeting the requirements of this Addendum and Infoseek's determination as to
appropriateness.
5. Distribution. Distributor agrees to distribute and promote the Co-Branded
Software to its customers as follows:
5.1 if distribution of the Co-Branded Software is on-line, Distributor
shall (a) prominently display the Download Button on their site; and
(b) provide 150 thousand impressions per month of Banner Ads over the
Initial Term. The Download Button shall be displayed above the fold.
Infoseek will supply creative for both the Download Button and Banner
Ads.
5.2 Other acceptable distribution methods include (a) CD-Rom; (b) bundling
with hardware and/or software systems or components; (c) retail or
wholesale bundling with other Distributor products; or (d) other
methods that tie to the Distributor's established business model and
practices.
6. No Change. Distributor agrees to not change in any way the look and feel of
the Software, including but not limited to, placement, prominence, and settings
of the Finders and Links except as specifically allowed and as shown and stated
in Attachment 1, and as they may be updated by Infoseek from time to time.
7. Support. Infoseek agrees to provide support for the Software to Distributor
via Infoseek's normal support facilities.
1 of 6
<PAGE>
8. Definitions. "Co-Branded Software" under this Addendum shall be "Software"
in the License Agreement and all provisions in the License Agreement applicable
to "Software" in the License Agreement shall apply to the "Co-Branded Software"
except as expressly modified in this Addendum. "Distributor" under this Addendum
shall be "You" in the License Agreement and all provisions in the License
Agreement applicable to "You" in the License Agreement shall apply to
"Distributor".
9. Entire Agreement. The License Agreement and this Addendum constitute the
entire understanding between the parties concerning the subject matter hereof
and supersedes any prior agreements or understanding whether written or oral.
The Combined Agreement including this Addendum shall not be amended except in a
writing signed by Infoseek and Distributor.
Axxess, Inc.
- ------------------------- Infoseek Corporation
("Distributor")
By: /s/ Kevin Lichtman By:
--------------------------- ---------------------------------
Authorized Signature Authorized Signature
Name: Kevin A. Lichtman Name:
------------------------- -------------------------------
Title: President Title:
------------------------ ------------------------------
Date: August 28, 1998 Date:
------------------------- -------------------------------
Address: 201 Park Place Address: 1399 Moffett Park Drive
----------------------
Altamonte Springs, FL 32701 Sunnyvale, CA 94089-1134
---------------------------
Attachment 1 Co-Branded Software and Download Button Mockups
1.1 Default Start Page
1.2 Distributor Finder
1.3 Download Button
Attachment 2 Infoseek Express Software License Agreement
2 of 6
<PAGE>
Attachment 2: Infoseek Express Software License Agreement
INFOSEEK EXPRESS SOFTWARE LICENSE AGREEMENT
BEFORE YOU CLICK ON THE "ACCEPT" LINK CAREFULLY READ THE TERMS AND CONDITIONS OF
THIS AGREEMENT. BY CLICKING ON THE "ACCEPT" LINK, YOU ARE CONSENTING TO BE BOUND
BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE
TERMS OF THIS AGREEMENT, CLICK YOUR BROWSER'S "BACK" BUTTON, AND DO NOT USE THE
SOFTWARE.
--------------------------
ACCEPT
--------------------------
1. Subject to the terms of this Agreement, Infoseek Corporation ("Infoseek")
grants to you ("You") a non-exclusive license to distribute in its entirety,
without change, and reproduce and use the Infoseek Express Installer (for
Windows 95 and NT: is-exp32.exe) (the "Software") in binary executable form
only. You are expressly prohibited from reselling the Software.
2. All right, title and interest (including copyright) in and to the Software
shall remain in Infoseek and/or its licensors. You agree to abide by the
copyright law and all other applicable laws of the United States including, but
not limited to, export control laws. You acknowledge that the source code of the
Software remains a confidential trade secret of Infoseek and/or its licensors,
and therefore You agree not to modify the Software or attempt to decipher,
decompile, disassemble or reverse engineer the Software, except to the extent
applicable laws specifically prohibit such restriction. Any trademark, trade
name, copyright, or other proprietary notices, legends, symbols, or labels
appearing on or in the Software provided to You shall not be removed or altered
and shall be accurately reproduced by You on any and all copies of the Software.
3. WARRANTY DISCLAIMER: INFOSEEK MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY
OF THIS SOFTWARE OR ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY THE
SOFTWARE. FOR ANY PURPOSE, THE SOFTWARE IS PROVIDED FREE OF CHARGE "AS IS". TO
THE EXTENT ALLOWABLE UNDER APPLICABLE LAW INFOSEEK DISCLAIMS ALL EXPRESS OR
IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. INFOSEEK
SHALL NOT BE LIABLE UNDER ANY THEORY FOR ANY DAMAGES SUFFERED BY YOU OR ANY USER
OF THE SOFTWARE. INFOSEEK MAKES NO REPRESENTATION THAT THE SOFTWARE IS
ERROR-FREE OR THAT INFOSEEK WILL SUPPORT THE SOFTWARE AND/OR WILL ISSUE UPDATES
TO THE SOFTWARE. THESE EXCLUSIONS MAY NOT BE EFFECTIVE IN CERTAIN JURISDICTIONS,
SO THIS EXCLUSION MAY NOT APPLY TO YOU.
4. All content accessed through the Software is the property of the applicable
content owner and may be protected by applicable copyright law. This License
gives You no rights to such content. Use of and access to any Infoseek service
and/or any third party service through the use of the Software shall be subject
to the restrictions, disclaimers and all other terms and conditions respectively
applicable to any such service(s).
5. Use, duplication or disclosure by the Government is subject to restrictions
set forth in subparagraphs (a) through (d) of the Commercial Computer-Restricted
Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c) (1) (ii)
of the Rights in Technical Data and Computer Software clause at DFARS
252.227-7013, and in similar clauses in the NASA FAR Supplement
Contractor/manufacturer is Infoseek Corporation, 1399 Moffett Park Drive,
Sunnyvale, CA 94089.
ExpressNetLicense Addendum 4 of 6 8.30.88v8
<PAGE>
6. You may not download or otherwise export or reexport the Software or any
underlying information or technology, except in full compliance with all United
States and other applicable laws and regulations.
7. IN NO EVENT WILL INFOSEEK OR ITS LICENSORS BE LIABLE (i) FOR ANY
DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES
(INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS
INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE) ARISING IN ANY WAY
OUT OF ANY BREACH OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SOFTWARE,
EVEN IF INFOSEEK SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE; OR
(ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN
OR DESTRUCTIVE PROPERTIES OF THE SOFTWARE. THIS LIMITATION OF LIABILITY SHALL
NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW
PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS
LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
8. High Risk Activities. The Software is not fault-tolerant and is not designed,
manufactured or intended for use or resale in conjunction with on-line control
equipment in hazardous environments requiring fail-safe performance, such as in
the operation of nuclear facilities, aircraft navigation or communication
systems, air traffic control, direct life support machines, or weapons systems,
in which the failure of the Software could lead directly to death, personal
injury, or severe physical or environmental damage (High Risk Activities").
Infoseek specifically disclaims any express or implied warranty of fitness for
High Risk Activities. You will not knowingly use the Software for High Risk
Activities.
9. This License Agreement is personal to You and You agree not to assign
You rights herein. The term of the license granted herein is perpetual unless
terminated upon default or as otherwise set forth herein. You may terminate this
Agreement and the license hereunder at any time by destroying or erasing Your
copy of the Software, including backup copies. Such license and this Agreement
will also terminate automatically upon Your breach of any provision of this
Agreement. Upon any such termination You must immediately destroy or erase all
complete and partial copies of the Software, including all backup copies hereof.
Infoseek may terminate this License at any time upon notification to You and You
may terminate this License at any time by destroying or erasing Your copy of the
Software. Upon termination, the following sections of this License will survive:
2, 3, 4, 5, 6, 7, 8 and 9. This License shall be governed by and construed in
accordance with the laws of the State of California and, as to matters affecting
copyrights, trademarks and patents, by U.S. federal law. This License sets forth
the entire agreement between You and Infoseek.
10. THIS IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN
YOU AND INFOSEEK RELATING TO THE USE OF THE SOFTWARE.
11. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND
AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, IF APPLICABLE, "YOU" OR "YOUR" AS
REFERRED TO HEREINABOVE MEANS THE ENTITY OR COMPANY (THE "COMPANY") AT WHICH THE
SOFTWARE IS INSTALLED PURSUANT TO THIS AGREEMENT. IN SUCH EVENT, YOU WARRANT AND
REPRESENT THAT AS THE INDIVIDUAL CLICKING ON THE "ACCEPT" LINK BELOW AND/OR
INSTALLING THE SOFTWARE YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON
BEHALF OF THE COMPANY.
ExpressNetLicense Addendum 5 of 6 6.30.98v6
<PAGE>
You may contact infoseek at:
Infoseek Corporation
1399 Moffett Park Drive
Sunnyvale, CA 94089
Telephone: (408) 543-8000, Facsimile: (408) 734-9350
-------------------------------
ACCEPT
-------------------------------
- ----------------
Copyright(C) 1996-98 Infoseek Corporation. All rights reserved.
Disclaimer "Infoseek", "Infoseek Express" and the Infoseek logo are trademarks
of Infoseek Corporation which may be registered in certain jurisdictions.
ExpressNetLicense Addendum 6 of 6 6.30.98v6
<PAGE>
EXHIBIT 10.22
S&P COMSTOCK INFORMATION DISTRIBUTION
LICENSE AGREEMENT
AGREEMENT, made as of October 4, 1998, by and between S&P ComStock, Inc. a
corporation having offices at 600 Mamaroneck Avenue, Harrison, New York 10528,
and Axxess, Inc. ("Distributor"), having an office at 201 Park Place, Suite 321,
Altamonte Springs, FL 32701.
WHEREAS, S&P ComStock, Inc. gathers, formats and distributes an information
service comprised of certain securities and commodities prices and other data
which is known as the S&P ComStock Service ("ComStock") and
WHEREAS, S&P ComStock, Inc. is licensed to distribute information from
various Stock Exchanges, Commodity Exchanges, and other sources (collectively,
"Sources") as part of S&P ComStock; and
WHEREAS, the parties desire that certain delayed and/or real time
information from S&P ComStock ("the ComStock Information") as specified in
Exhibit A (Part I), attached hereto, be made available to Distributor for
display by Distributor on its Internet World Wide Web sites (collectively, the
"Distributor Service"), collectively known as "Financialweb.com" as described
fully in Exhibit B, attached hereto.
NOW, THEREFORE, the parties mutually agree as follows:
1. Distribution License.
(a) Distributor is hereby granted for the term of this Agreement a
nonexclusive, nontransferable right and license to distribute electronically the
ComStock Information via the Distributor Service solely for access by Internet
users of the Distributor Service (such users referred to herein as
"Subscribers"), provided that the ComStock Information is supplied to the
Subscribers by means (such as data encryption, or packet transmission-
digitizing) which prevent unauthorized reception, use or retransmission and
further provided that Distributor has executed in advance any and all necessary
documents with the various Sources, which documents have been accepted and
approved by the Sources. Notice of such Sources' acceptance and approval must be
supplied to S&P ComStock, Inc. prior to Distributor's use or distribution of the
ComStock Information.
Distributor agrees and understands that it shall directly provide the
ComStock Information to Subscribers, except as specifically set forth in
Exhibit B. Distributor also agrees and understands that it is not permitted to
sublicense, transfer, or assign its rights hereunder to a third party considered
to be a direct competitor of S&P ComStock, and that it shall not permit the
redistribution of the ComStock Information by any Subscriber or by any other
third party without the express prior authorization of S&P ComStock, Inc.
pursuant to a separate agreement or by mutually agreeable amendment executed and
attached hereto.
<PAGE>
(c) Distributor agrees that the ComStock Information shall not be
dynamically updated.
2. ComStock Equipment.
(a) During the term of this Agreement, S&P ComStock, Inc. shall provide
Distributor the equipment listed in Exhibit C, attached hereto ("the ComStock
Equipment"), for installation only at the site(s) specified therein. Distributor
shall not relocate the ComStock Equipment without the written permission of S&P
ComStock, Inc.
(b) S&P ComStock, Inc. shall, at Distributor's expense and request,
install, furnish, and maintain necessary modems and/or communications interface
equipment.
(c) Distributor shall not attach, or permit or cause to be attached, any
non-ComStock equipment to the ComStock communications line or the ComStock
Equipment without the prior written permission of S&P ComStock, Inc.
(d) Distributor shall have no right in or to any of the ComStock Equipment
except for the rights of use herein granted. Distributor shall pay all
extraordinary costs for repair or replacement of the ComStock Equipment, over
and above ordinary maintenance which shall be performed by S&P ComStock, Inc.
Such extraordinary maintenance includes electrical work external to the ComStock
Equipment, maintenance of accessories or attachments, and repair of damage to
the ComStock Equipment resulting from accident, neglect, misuse, failure of
electrical power or causes other than ordinary use. Distributor shall promptly
return the ComStock Equipment in good condition, ordinary wear and tear
excepted, upon termination of this Agreement for any reason.
3. ComStock Information.
(a) The furnishing to Distributor of the ComStock Information is
conditioned upon strict compliance with the provisions of this Agreement, the
applicable policies of the Sources, and with all local, state and federal
regulations which might pertain to the use of the ComStock Information. It
shall be the sole responsibility of Distributor to confirm with the applicable
Sources whether or not all of the ComStock Information may be distributed by
Distributor to its Subscribers. S&P ComStock, Inc. may discontinue provision of
the ComStock Information hereunder, without notice, whenever the terms of its
agreements with the Sources require such discontinuance.
(b) Neither S&P ComStock, Inc., nor any of its affiliates, nor any
Sources make any express or implied warranties (including, without limitation,
any warranty of merchantability or fitness for a particular purpose or use).
Neither S&P ComStock, Inc., any of its affiliates, or any Sources warrant that
the ComStock information will be uninterrupted or error-free. Distributor
expressly agrees that its use and distribution of the ComStock Information and
its use of the ComStock Equipment is at the sole risk of Distributor and its
Subscribers. S&P ComStock, Inc., its affiliates, and all Sources involved in
creating or providing the ComStock Information will in no way be liable to
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Distributor or any of its Subscribers for any inaccuracies, errors or omissions,
regardless of cause, in the ComStock Information or for any defects or failures
in the ComStock Equipment, or for any damages (whether direct or indirect, or
consequential, punitive or exemplary) resulting therefrom. The liability of S&P
ComStock, Inc. and its affiliates in any and all categories, whether arising
from contract, warranty, negligence, or otherwise shall, in the aggregate, in no
event exceed one month's ComStock Information Delivery Fee.
(c) Distributor agrees that it shall not display the ComStock Information
in the Distributor Service without a prominent notice indicating that the
ComStock Information is being displayed on a minimum fifteen (15) minute delayed
basis.
(d) Distributor also agrees to include S&P ComStock's Terms and Condition
of Use, a copy of which is attached hereto as Exhibit E, within the Distributor
Service in a manner which alerts Subscribers of the applicability thereof.
(e) Distributor shall clearly identify S&P ComStock as the source of the
ComStock Information by display of the S&P ComStock logo (the "Logo") in a
manner to be agreed to by the parties. Distributor shall also create a hypertext
or other computer link from the Logo to the S&P ComStock site on the World Wide
Web.
(f) Distributor represents and warrants that it has and will employ
adequate security procedures to prevent the unauthorized access to the ComStock
Information or corruption of the ComStock Information.
(g) Distributor agrees to indemnify and hold S&P ComStock, Inc. and its
affiliates harmless from and against any and all losses, damages, liabilities,
costs, charges and expenses, including reasonable attorneys' fees ("Claims")
arising out of: (i) any liability of S&P ComStock, Inc. to any Subscriber where
Distributor has failed to include the Terms and Conditions of Use in the
Distributor Service pursuant to Section 3(d) above; or (ii) any breach or
alleged breach on the part of Distributor or any with respect to its/their
obligations to obtain prior approvals from appropriate Sources and to comply
with any applicable conditions, restrictions or limitations imposed by any
Source.
(h) S&P ComStock, Inc. represents that it has the rights and licenses
necessary to transmit the ComStock Information to Distributor, and that to the
best of S&P ComStock, Inc.'s knowledge, the license granted to Distributor
hereunder does not infringe any proprietary right or any third party right at
common law or any statutory copyright. S&P ComStock shall indemnify and hold
Distributor harmless with respect to any Claims that Distributor's authorized
use of the S&P ComStock Service infringes or violates the copyright or other
proprietary right of any third party. Distributor shall be required to promptly
notify S&P of any such claim and shall provide S&P with reasonable assistance in
defending such claim.
(i) S&P ComStock, Inc. shall deliver the ComStock Information to
Distributor at the site(s) set forth in Exhibit C or at such other locations as
Distributor may designate within the continental United States or Canada.
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4. Payments.
In consideration for the license granted to Distributor by S&P ComStock,
Inc. under this Agreement, Distributor shall make the following payments to S&P
ComStock, Inc.:
(a) Distributor shall pay to S&P ComStock, Inc. a basic ComStock
Information Delivery Fee of $1120 per month. This fee includes all recurring
charges for ComStock network connection, modem/line interface equipment, and
standard equipment maintenance services as determined by S&P ComStock, Inc.'s
standard price list. These charges, plus any applicable Source fees and
state/local taxes will be billed monthly in advance. Non-recurring charges such
as installation, relocation and removals of ComStock Equipment will be
separately billed in accordance with S&P ComStock, Inc.'s then-current standard
rates.
(b) Distributor shall pay to S&P ComStock, Inc. a monthly Redistribution
Fee as calculated using the Schedule of Fees attached hereto as Exhibit D. The
Redistribution Fee will be due and payable on the fifteenth (15th) day of each
month.
(c) Distributor shall be responsible for the payment of any and all
applicable fees billed to S&P ComStock, Inc. or directly to Distributor by
Sources, which fees result from Distributor's use and distribution of the
ComStock Information. Distributor shall also be responsible for payment of any
Subscriber's Source fees which must be paid directly by Distributor to the
Sources. Distributor shall provide to S&P ComStock, Inc. a copy of its monthly
Source fee reports when and as filed with the Sources.
(d) Any amounts payable to S&P ComStock, Inc. by Distributor hereunder
which are more than thirty (30) days past due shall bear interest at the rate of
1-1/2% per month.
(e) S&P ComStock, Inc. may, in its sole discretion and at any time
following the initial term of this Agreement, change the per quote fee payment
schedule and/or the ComStock Information Delivery Fee as specified herein after
having provided written notice to Distributor at least ninety (90) days in
advance of such changes.
(f) S&P ComStock, Inc. may audit Distributors records once each calendar
quarter, for the sole purpose of verifying the accuracy of Distributor's
reported monthly real-time quote fee payments, if applicable, as set forth in
Paragraph 4(b), above. Distributor will make such records readily available to
S&P ComStock, Inc. for inspection during normal working hours on one week's
notice. S&P ComStock, Inc. agrees that Distributor's records will be treated as
confidential and will not be used for any purpose other than verifying
Distributor's compliance with this Agreement. Any such audit shall be at S&P
ComStock, Inc.'s expense unless it is determined that S&P ComStock, Inc. has
been underpaid by an amount exceeding five percent (5%) of the revenues actually
received by S&P ComStock, Inc. in the period covered by the audit; in such case,
the expense of the audit shall be borne by Distributor.
(g) Once each calendar month, Distributor shall furnish S&P ComStock with
information regarding the number of quotes requested by Subscribers and/or
visitors for the previous month
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and such other additional information regarding use of the ComStock Information
as the parties agree.
5. Information Enhancements; Changes to Data Specification.
(a) Any additions of new Sources or other enhancements to the ComStock
Information which may be made by S&P ComStock, Inc. during the term of this
Agreement, while unidentified at this time, will be offered to Distributor under
terms and conditions to be negotiated, provided that (i) S&P ComStock, Inc. has
the necessary rights to convey such new information to Distributor for
redistribution; and (ii) Distributor and S&P ComStock, Inc. execute a separate
agreement or an amendment to this Agreement.
(b) S&P ComStock, Inc. shall have the right, on at least six (6) months
prior written notice, to change the ComStock Data Format Specification, provided
that any such change shall be made effective generally by S&P ComStock, Inc. to
its customers. Distributor shall be responsible at its own expense for making
any modifications to its software necessitated by such change.
6. Term.
(a) This Agreement shall take effect upon its execution by an authorized
representative of S&P ComStock, Inc. and of Distributor.
(b) The term of this Agreement shall be for an initial term of three (3)
years commencing on the first day of operation, as specified in Exhibit D, and
shall automatically renew at the end of each term for successive terms, each of
the same duration as the initial term, unless it is terminated effective at the
end of the initial term with written notice by either party given to the other
at least sixty (60) days prior to the end of the then current term. At any time
after the initial term, Distributor may terminate this agreement by providing at
least thirty (30) days written notice to S&P Comstock. If S&P ComStock, Inc.
increases charges to Distributor pursuant to Paragraph 4(f), above, Distributor
shall have the option to terminate this Agreement by written notice to S&P
ComStock, Inc. within sixty (60) days of Distributor's receipt of notice of such
increases; such termination will become effective no sooner than thirty (30)
days from the last day of the month in which notice of termination by
Distributor is received by S&P ComStock, Inc.
7. Marketing.
Distributor may not use the names "ComStock", "SPC.", or "S&P ComStock,
Inc.", which are proprietary to S&P ComStock, Inc., or refer to the ComStock
Information in marketing or advertising materials without the prior written
consent of S&P ComStock, Inc., such consent not to be unreasonably withheld.
Upon S&P ComStock, Inc.'s written request, Distributor shall notify Subscribers
by a display in the service itself that S&P ComStock is the source of the quote
information.
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8. Rights to Data Specification; Other Confidential Information.
(a) Distributor agrees and acknowledges that the Data Specification
(Exhibit F) is a confidential and proprietary trade secret belonging to
ComStock, and nothing in this Agreement conveys any proprietary rights
whatsoever with regard to the Data Specification to Distributor. The Data
Specification is provided to the Distributor strictly and solely for the
purpose of developing internal computer software to receive the ComStock
Information. Distributor may not use the Data Specification for any other
purpose whatsoever, including, but not limited to, the development of systems
for the receipt or transmission of computer data. Distributor may not give,
transmit, or provide access to the ComStock Data Specification to any Subscriber
or other third party. On any termination of this Agreement, regardless of cause,
Distributor shall promptly return the Data Specification to S&P ComStock, Inc.
and shall provide a written certification by an officer that no copies have been
retained by Distributor.
(b) In addition to the duties imposed on Distributor pursuant to
Paragraph 8(a), above, S&P ComStock, Inc. and Distributor agree to hold
confidential any and all of each other's trade secrets, procedures, formulae,
financial data, Subscriber lists, and future plans, which may be learned before
and during the term of this Agreement. Notwithstanding the foregoing, however,
such duty of confidentiality shall not extend to information which is or comes
into the public domain, is rightfully obtained from third parties not under a
duty of confidentiality, or which is independently developed without reference
to the other party's confidential information.
(c) The duties of confidentiality imposed herein shall survive any
termination of this Agreement.
9. Prevention of Performance.
Neither party shall be liable for any failure in performance of this
Agreement if such failure is caused by acts of God, war, governmental decree,
power failure, judgment or order, strike, or other circumstances, whether or not
similar to the foregoing, beyond the reasonable control of the party so
affected. Neither party shall have any liability for any default resulting from
force majeure, which shall be deemed to include any circumstances beyond its
control. Such circumstances shall include, but are not limited to acts of the
government, fires, flood, strikes, power failures or communications line or
network failures.
10. Right of Termination in the Event of Breach or Bankruptcy; Right to
Injunctive Relief.
(a) Either party shall have the right to terminate this Agreement for
material breach by the other party by giving thirty (30) days prior written
notice, such termination to take effect unless the breach is cured or corrected
within such notice period.
(b) If a receiver is appointed for either party's business or if either
party petitions under the Bankruptcy Act and is adjudicated a bankrupt, declared
an insolvent, or makes an assignment for the benefit of creditors, then the
other party shall, upon thirty (30) days prior written notice, have the right to
terminate this Agreement.
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(c) Upon termination of this Agreement for any reason, Distributor shall
cease all use and distribution of any of the ComStock Information.
(d) In addition to and notwithstanding the above, if Distributor, or any
of its employees, agents or representatives, shall attempt to use or dispose of
the ComStock Information or the Data Specification in a manner contrary to the
terms of this Agreement, S&P ComStock, Inc. shall have the right, in addition to
such other remedies as may be available to it, to injunctive relief enjoining
such acts or attempt, it being acknowledged that legal remedies are inadequate.
11. Assignment.
This Agreement may not be assigned, sublicensed or otherwise transferred by
either party without the written consent, except to a wholly owned subsidiary,
of the other party, such consent not to be unreasonably withheld, provided,
however, that no such consent shall be required with respect to any assignment
by S&P ComStock, Inc. to its parent company, or to any S&P ComStock, Inc.
affiliate. Any attempted transfer or assignment of this Agreement in violation
of this provision shall be null and void.
12. Entire Agreement.
This Agreement and its Exhibits embodies the entire agreement between the
parties hereto. There are no promises, representations, conditions or terms
other than those herein contained. No modification, change or alteration of this
Agreement shall be effective unless in writing and signed by the parties hereto.
13. Non-Waiver.
The failure of either party to exercise any of its rights under this
Agreement for a breach thereof shall not be deemed to be a waiver of such rights
nor shall the same be deemed to be a waiver of any subsequent breach.
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14. Notices.
All notices under this Agreement shall be given in writing to the parties
as follows:
To: S&P ComStock, Inc.
600 Mamaroneck Avenue
Harrison, New York 10528
Attn.: Mr. Paul Zinone
To: Axxess, Inc.
201 Park Place, Ste. 201
Altamonte Springs, FL 32701
Attn.: Kevin Lichtman
15. Governing Law.
This Agreement shall be governed by the laws of the State of New York and
the parties agree to select New York jurisdiction for any claims or disputes
which may arise hereunder.
IN WITNESS WHEREOF, Distributor and S&P ComStock, Inc. have caused this
Agreement to be executed by their duly authorized respective officers, as of the
day and year above written.
S&P COMSTOCK, INC.
By:
Title:
Date:
DISTRIBUTOR
By: [Signature Appears Here]
Title: President
Date: 12/1/98
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EXHIBIT 10.23
[Weathernews Logo
Appears Here] Weathernews Inc
Internet Weather Services
Licensing Agreement
This agreement is entered into on this 1st day of December, 1998 by:
Weathernews Inc., a California Corporation, hereinafter referred to as "WNI"
with head office located at the following address:
333 W. El Camino Real, Suite 300
Sunnyvale, CA 94087
And:
Axxess, Inc. d.b.a. Financial Web, a Florida Corporation, hereinafter referred
to as "Financial Web" with head office located at the following address:
201 Park Place, Suite 321
Altamonte Springs, FL 32701
The Parties so described above do hereby agree as follows:
1. DEFINITIONS
(a) "Agreement" shall mean this document and all exhibits and schedules hereto.
(b) "WNI Weather Services" shall be defined as the Internet Weather Graphics and
Weather Forecast Information, as developed by WNI, to be provided for
general distribution to the public on the internet through the Axxess's
world wide web interface currently known as "Financial Web" (hereinafter
referred to as Financial Web) and co-branded with Financial Web's name and
logo.
(c) "Weather Information Pages" shall be defined as the Financial Web html pages
where the WNI Weather Services will be parsed and pasted.
(d) "Licensee" shall be defined as the registered Internet distribution source
for Internet users of the WNI Weather Services and shall be, for
the purposes of the Agreement, Financial Web.
(e) "Licensor" shall be defined as the owner and sole developer of the WNI
Weather Services and shall be, for the purposes of the
Agreement, WNI and its representatives.
2. PURPOSE OF AGREEMENT
The purpose of this Agreement is for both parties to jointly provide a forum for
Internet users to easily access valuable weather information.
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3. SCOPE OF AGREEMENT
WNI hereby grants to Financial Web a non-exclusive, non-transferable and non-
assignable license to make available the WNI Weather Services on Financial Web.
The WNI Weather Services are owned by WNI and are protected by United States
copyright laws and international treaty provisions. Financial Web is acquiring
only the right to provide the WNI Weather Services and not any rights of
ownership in the WNI Weather Services or the media on which it is provided. WNI
is retaining all rights, title and interest in the WNI Weather Services. The WNI
Weather Services or any portions of the WNI Weather Services and their source
code, graphic design and any software programs that incorporate the WNI Weather
Services not provided by the title, copyright and all other proprietary rights
in the WNI Weather Services and any related documentation and all parts and
copies thereof shall also remain vested in WNI.
Financial Web is retaining all rights, title and interest in the Weather
Information Pages appearing on Financial (except for the WNI Weather Services so
included). The Weather Information Pages appearing on Financial Web (except for
the WNI Weather Services so included) and their source code, graphic design and
any software programs that incorporate these pages which are not provided by the
title, copyright and all other proprietary rights in these pages as well as any
related documentation and all parts and copies thereof shall also remain vested
in Financial Web.
Pursuant to the terms of this Agreement, Financial Web may not use or make
available the WNI Weather Services for purposes other than as described above.
However, Financial Web may wish to develop new services that are not part of
Financial Web which may benefit from the use of limited weather information as
provided by WNI and incorporated into the WNI Weather Services. Under such
circumstances, during the term of this agreement, the parties shall negotiate in
good faith supplemental contractual and financial terms covering any customized
or new services beyond those referred to in this agreement. In the event of one
party proposing to the other a potential use for the WNI Weather Services, the
other party shall reasonably consider such a proposal and the parties shall
enter into negotiations under the proposal and allocation of the revenues.
4. USE
Financial Web is restricted from using the WNI Weather Services to provide
service to any third party whether by way of trade or otherwise, except as
contained in this Agreement.
Financial Web agrees to use the WNI Weather Services for the purposes of this
Agreement as follows:
The forecast information, observation data and graphic images contained within
the WNI Weather Services shall be updated and maintained within WNI servers and
transferred to Financial Web's servers on a regular basis. The WNI Weather
Services shall appear to any Internet user as part of the Weather Information
Pages appearing on Financial Web as provided by Financial Web. The transition
between the Financial Web servers, which provide Financial Web to Internet
users, and the WNI servers, which provide the WNI Weather Services, shall be
seamless.
Access to the WNI Weather Services by Internet users will be provided by
Financial Web within the design of the Weather Information Pages appearing on
Financial Web. Financial Web will
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make efforts to ensure that the WNI Weather Services are easily accessible and
are reasonably navigable by the typical Financial Web Internet user. Both
parties understand that the general design of the Financial Web site may change
from time to time, but that the ease of access to the WNI Weather Services for
the Internet user will be consistently maintained.
5. COPY RESTRICTIONS AND OTHER RESTRICTIONS
Financial Web may not make copies of the WNI Weather Services (except for
purposes related to the use described above or to maintain the availability of
WNI Weather Services on Financial Web) or any related documentation without the
prior written consent of WNI, except that Financial Web may make copies for
back-up and archival use. Except as provided in this Agreement, the WNI Weather
Services may not be sold, transferred, assigned or otherwise conveyed to another
party without the prior written consent of WNI.
6. MODIFICATION
Financial Web may not, without the prior written consent of WNI, modify, alter,
translate, or create derivative works based on the WNI Weather Services, and may
not reverse engineer, decompile, disassemble, or otherwise attempt to derive the
source code of the WNI Weather Services. Financial Web shall not remove any
product identification, copyright notices or other notices or proprietary
restrictions from the WNI Weather Services.
7. WNI WEATHER SERVICES FUNCTIONALITY
The WNI Weather Services will include weather forecast information for 2,000 US
and foreign cities/locations. For each city/location, a summarized 5-day graphic
forecast including maximum and minimum temperatures (in degrees Fahrenheit and
Celsius) will be provided. These forecasts will be available 365 days per year
and will be updated at least once per day, in some cases twice per day.
Financial Web may choose 60 images from a listing and schedule of WNI Weather
Graphic Images on Exhibit A.
The WNI Weather Services will also include current weather observation data for
as many of the cities/locations for which forecasts are provided as are
available. This observation data will feature observed and derived parameters,
including sky condition, type of precipitation, temperature, wind, barometric
pressure, visibility, relative humidity, heat index and wind chill. This data
will be available 365 days per year and will be updated every three hours or as
available for cities/locations without regular updates.
Each of the Weather Information Pages appearing on Financial Web that contains
any data or graphic images which comprise any part of the WNI Weather Services
will contain a WNI corporate logo and company identification advertising the
fact that such services are provided by WNI. Financial Web will take reasonable
steps, wherever possible, to ensure that the WNI corporate logo and name appears
within Financial Web wherever there are links to or advertisements for Weather
Information Pages appearing on Financial Web.
8. DELIVERY OF DATA
The WNI Weather Services will be transferred to Financial Web via FTP transfer
through the Internet on a pre-scheduled basis which will conform to the number
of times per day that the forecast information, weather observation data and
graphic images comprising the WNI Weather Services are updated as described in
section 7 and Exhibit A of this Agreement.
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Both parties confirm that they or their Internet Service Provider maintain at
their own cost and will continue to maintain T-1 Internet access (or other form
of Internet access at least equally as efficient) throughout the period that
this Agreement is in effect. In order to have a reasonable back-up source in
case either party's T-1 access (or other form of internet access at least
equally as efficient) should become temporarily out of service, both parties
agree to install and maintain throughout the period that this Agreement is in
effect, at their own cost, ISDN line access (or other form of internet access at
least equally as efficient) as a back-up measure.
9. MAINTENANCE OF SERVICES
Financial Web shall use all reasonable efforts to ensure that WNI Weather
Services are accessible through the Weather Information Pages appearing on
Financial Web to any Internet users at all times, 24 hours per day, throughout
the year without any unreasonable interruptions. If, due to hardware or system
failure, service is interrupted, Financial Web shall ensure to the best of its
ability that such service is resumed within a reasonable period of time.
WNI will monitor the WNI Weather Services being copied to the Weather
Information Pages appearing on Financial Web on a regular basis, and implement a
reasonable system of quality controls which will ensure that all forecast
information is reasonably accurate within the limitations of the meteorological
information and weather forecasts as described in section 13 of this Agreement.
For the purposes of this paragraph, reasonable efforts shall include, but will
not be limited to, the maintenance of regular disk to tape back-up procedures.
10. TERM OF AGREEMENT
(a) Initial Term: The term of this Agreement shall be for a period of twelve
(12) months commencing December 1st, 1998 and becomes available to Internet
users through the Weather Information Pages appearing on Financial Web.
(b) Renewals: Prior to the expiration of the current term of the Agreement,
either party must give the other party at least ninety (90) days written notice
of their decision to terminate the agreement. If such notification is not given
by either party, the Agreement shall be deemed to be renewed for an additional
period of twelve (12) months ("Renewal Period"), on substantially the same terms
and conditions as set forth herein. Both parties prior to the start of the first
and any subsequent Renewal Periods shall mutually agree upon the terms and
conditions related to pricing.
(c) Termination: This Agreement and any attached Exhibits shall automatically
terminate in the event of the following:
(i) Either party enters into bankruptcy proceedings, either voluntary or
involuntary;
(ii) Either party sells the majority or substantially all of its assets
for the benefit of its creditors;
(iii) a receiver is appointed to take control of either party's business
so as to liquidate assets for the benefit of either party's
creditors; or
(iv) Any party commits a material breach of any of the terms and conditions
implicit within this Agreement, which breach is not corrected within
30 days of notice.
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In the event of an automatic termination occurring under the provisions of this
paragraph or, in the event of any termination of this Agreement occurring
pursuant to other provisions of this Agreement and in the event that Financial
Web refuses to return or destroy copies of all WNI Weather Services software
(and certify to such effect), WNI shall have the right, without prejudice to any
obligations of Financial Web under this Agreement, to enter onto all locations
where the WNI Weather Services are installed and to take possession, custody and
control of all copies of the WNI Weather Services software, if any, which have
been or may be provided as part of this Agreement. Termination of this Agreement
shall not release any party from any obligations pursuant to this Agreement
while the Agreement was in force, including but not limited to any outstanding
payments for any allocation of advertising revenues, whether or not said
revenues have been collected or invoiced by the party responsible for such
collection.
11. PRICING
Financial Web agrees to pay WNI $1000 per month starting December 1, 1998 and
for each month thereafter for the term of the agreement for providing the
weather services described herein within thirty (30) days after receipt of
invoice.
Financial Web will ensure throughout the term and successive terms of this
Agreement that the only weather information, forecasts and weather-related
graphic images which appear on the Weather Information Pages shall be the WNI
Weather Services provided pursuant to the terms of this Agreement.
12. INDEMNITY OBLIGATIONS
Both parties agree to indemnify each other and hold the other safe and harmless
from and against any and all claims, of whatsoever kind or nature, suits,
actions, judgments and proceedings, including the payment of reasonable
attorneys fees incurred in defending any such claims, brought against Financial
Web and/or WNI by any third parties alleging property damages or personal
injuries, including death, or any infringement of any copyright, patent or other
intellectual property right, which arise out of, or are in any way connected
with, the weather forecast information located on the WNI Weather Services pages
provided under this Agreement or any attached Exhibits thereto.
13. WARRANTY DISCLAIMER
WNI does not warrant the accuracy of the meteorological information it uses in
any weather forecast appearing within the WNI Weather Services which are made
available to Internet users under this Agreement and does not assume any
responsibility for any damages arising out of these forecasts as provided,
unless such damages are a result from gross negligence or willful misconduct of
WNI.
The WNI Weather Services are to be used only as an informational aid and may not
reflect actual or future meteorological conditions and, accordingly, should not
be used as a substitute for an individual's judgment concerning weather
conditions and forecasts. Weather forecasts are predictive in nature and are
subject to inherent uncertainty. WNI does not warrant the accuracy of such
information and weather forecasts appearing on the WNI Weather Services.
WNI provides the WNI Weather Services and Weather Information Pages within this
Agreement on an "as is" basis and makes no warranties, either expressed or
implied, as to the merchantability
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or fitness of the WNI Weather Services for a particular purpose, and whether
arising by statute or in law or as a result of a course of dealing or usage of
trade with respect to the WNI Weather Services. In no event will WNI be liable
for any loss or inaccuracy of data, loss of profits or indirect, special,
incidental or consequential damages, even if WNI has been advised of the
possibility of such damages. The foregoing restrictions, disclaimers and
limitations shall apply and remain in force even in the event of a breach by WNI
hereunder of a condition or fundamental term hereunder, or in the event of a
breach, which constitutes a fundamental breach. The foregoing restrictions,
disclaimers and limitations shall apply and remain in force following the
termination and/or conclusion of the term of this Agreement.
14. LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY LAW NEITHER PARTY IS LIABLE FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, ECONOMIC OR PUNITIVE DAMAGES INCURRED BY THE OTHER PARTY
AND ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE WNI WEATHER SERVICES, OR
THE DELIVERY OR OPERATION THEREOF, EVEN IF THE OTHER PARTY HAS BEEN ADVISED THAT
SUCH DAMAGES ARE POSSIBLE AND WHETHER BASED IN CONTRACT, TORT OR OTHERWISE.
15. CONFIDENTIALITY
Each party will keep confidential the terms of this Agreement and all non-public
information, know-how and materials (including any software) ("Confidential
Information") provided by one party to the other pursuant to this Agreement and
marked "Confidential", provided, however, that either party may disclose the
terms of this Agreement in confidence to its immediate legal and financial
consultants and advisers as required in the ordinary course of such party's
business or as may be required by law. All tangible materials containing
Confidential Information and marked "Confidential" ("Confidential Materials"),
including documents, tapes, computer disks and other fixed storage devices
(whether or not machine or user readable), are the property of the party making
disclosure of the Confidential Information contained therein. Upon expiration or
earlier termination of this Agreement, Confidential Materials belonging to one
party in the other party's possession must be returned or destroyed, at the
option of its owner (upon notice by the owner, to be given within 15 business
days after expiration or termination). If Confidential Materials are destroyed,
a letter of confirmation must be provided promptly upon request to their owner
and, if no request is given, no later than 21 days following expiration or
termination.
16. FORCE MAJEURE
Neither Party shall be liable for failure to perform its obligation under the
Agreement if such failure results from circumstances beyond the party's
reasonable control.
17. PAYMENT TERMS
Late payment of any payment due WNI hereunder shall bear late charges in the
amount of eighteen percent (18%) interest per annum, or one & one-half percent
(1.5%) interest per month or part thereof from the due date of payment until
paid. In the event of late or non-payment of any of the amounts required to be
paid by the Financial Web, Financial Web shall also be responsible to pay the
reasonable attorney fees incurred by WNI to collect such amounts due the WNI
under the provisions of this Agreement, regardless of whether or not such
collection efforts result in the instigation of legal proceedings against the
Financial Web.
6
<PAGE>
18. SURVIVABILITY
Both parties agree and acknowledge that, unless otherwise stated or the contrary
is implicit within the meaning of the Agreement, the following clauses of this
Agreement will survive the termination and conclusion of this Agreement and will
remain in force unless otherwise agreed by both parties:
Clause numbers: 5,6,10,12,13,14,15,16,17
19. ENTIRE AGREEMENT
Each party acknowledges that it has read this Agreement, understands it, and
agrees to be bound by the terms and conditions of this Agreement and referenced
Exhibits. This Agreement may not be modified except by a written instrument duly
executed by both parties.
20. ASSIGNMENT
In accordance with section 3 of this Agreement, either party may assign and/or
transfers rights and delegate its duties under this Agreement only to an entity
into which it is merged or reorganized or purchased all or substantially all of
a party's assets.
IN WITNESS WHEREOF, the Parties hereto have signed and executed this Licensing
Agreement on the day, month and year above and state that this Agreement shall
be governed in accordance with the laws of the State of California.
LICENSOR: LICENSEE:
Weathernews Inc. Axxess, Inc.
/s/ Jonathan Bell /s/ [signature appears here]
- --------------------------- ----------------------------
Signature Signature
NAME: Jonathan Bell NAME:
TITLE: President TITLE:
7
<PAGE>
EXHIBIT 10.24
AGREEMENT
For The Provision of
Financial and Other
Products and Services
This Agreement (the "Agreement") is entered into this 15th day of March 1999, by
and between Pace Financial Network(sm), L.L.C., PFN Insurance Agency(sm),
L.L.C., PFN Mortgage Services(sm), L.L.C., PFN Consumer Credit(sm), L.L.C., PFN
Investment Management(sm), L.L.C., PFN Financial(sm), L.L.C., all Delaware
limited liability companies, and their subsidiaries (collectively referred to as
"PFN(R)"), and FinancialWeb.com, Inc., (herein referred to as the "Distribution
Partner").
WITNESSETH:
WHEREAS, PFN(R) has established a network to provide financial and other
products and services to the sponsors, friends, members, customers, employees,
donors, and supporters (collectively, the "Supporters") of associations,
businesses, organizations, affinity groups, schools, and other entities
(collectively, the "Distribution Partners"), and
WHEREAS, PFN and the Distribution Partner desire to offer such products and
services to the Supporters of the Distribution Partner,
WHEREAS, PFN and the Distribution Partner acknowledge that the distribution of
certain products or services may require the involvement of an appropriately
licensed person or entity, including, but not limited to, an insurance agency, a
mortgage broker, and/or a registered broker/dealer (each a "Qualified Entity"),
WHEREAS, PFN has established, or will establish, the appropriate affiliated
entities to serve as Qualified Entities, as necessary,
WHEREAS, the Distribution Partner may have established, or may establish in the
future, the appropriate affiliated entities to serve as Qualified Entities, as
necessary, and
WHEREAS, the products or services covered by this Agreement, as appropriate,
will be distributed by the appropriate Qualified Entities, as governed by the
applicable laws and regulations,
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
and conditions set forth herein, the parties hereto agree as follows:
1. Marketing Plan. PFN will market various products and services to the
customers of the Distribution Partner in accordance with a Marketing Plan
that shall be developed and agreed upon jointly by both parties. This
Agreement shall not be valid until all parties have agreed upon the
Marketing Plan, which, shall then be made a part of this Agreement. The
Distribution Partner agrees to use its best efforts to assist PFN in its
efforts to market its products and services to the Distribution Partner's
Supporters in accordance with the Marketing Plan. It is understood,
however, that the Distribution Partner will not market any specific
product or service offered by PFN, unless it is specifically authorized
to do so by PFN and (a) the Distribution Partner is an appropriate
Qualified Entity, or (b) the Distribution Partner is appropriately
affiliated with an appropriate Qualified Entity, or (c) no licensing is
required.
Page 1 of 5
<PAGE>
2. Products, Services, and other Considerations. PFN will provide, or
intends to provide, to the Supporters of the Distribution Partner the
products, services, and such other consideration as described in
Addendum A attached to this Agreement and made a part hereof. The
Distribution Partner shall have the right, upon written notice to PFN, to
direct PFN not to market a particular product or service described in
Addendum A to the Distribution Partner's Supporters; provided, however,
that this right of rejection shall not apply to any product or service
which PFN has already been marketing to the Distribution Partner's
Supporters for more than 60 days.
3. Compensation.
a. Sales. For products and services for which: (a) the Distribution
Partner is an appropriate Qualified Entity, or (b) the Distribution
Partner is appropriately affiliated with an appropriate Qualified
Entity, or (c) no licensing is required, PFN will pay the Distribution
Partner an amount equal to twenty percent (20%) of all commissions and
fees received by PFN from the providers of the financial products and
services sold to the Distribution Partner's Supporters. The foregoing
shall not apply to charitable remainder trusts, gift annuities, or
other planned giving products or services that result in donations,
revenues, or planned gifts to the Distribution Partner.
b. Services. For products and services for which licensing is required
and for which the Distribution Partner is not an appropriate Qualified
Entity or is not appropriately affiliated with an appropriate
Qualified Entity, PFN will pay the Distribution Partner the fair
market value of the various advertising, promotional, consultation,
and support services that the Distribution Partner provides PFN with
respect to such products and services being marketed by PFN under this
Agreement. The fee obligations for services under this subsection
shall commence on the first day of the calendar month following the
effective date of this Agreement. For each month until the completion
of a full calendar quarter, PFN will attribute an initial fee of $500
per month, as the fair market value of services under this subsection.
Within thirty (30) days following the end of each full calendar
quarter, PFN will review and evaluate the level of services provided
by the Distribution Partner. The fee for the next calendar quarter
will be adjusted, where appropriate, to reflect the fair market value
of the services being provided by the Distribution Partner; provided,
however, that the amount paid for such services shall not exceed an
amount equal to twenty percent (20%) of all commissions and fees
received by PFN during the applicable period from the providers of the
financial products and services sold to the Distribution Partner's
Supporters. The foregoing shall not apply to charitable remainder
trusts, gift annuities, or other planned giving products or services
that result in donations, revenues, or planned gifts to the
Distribution Partner.
c. Payment. Payments due to the Distribution Partner from PFN under this
Agreement will be remitted to the Distribution Partner quarterly
within thirty (30) days following the end of each calendar quarter for
the prior calendar quarter's sales or services. For products and
services for which: (a) the Distribution Partner is an appropriate
Qualified Entity, or (b) the Distribution Partner is appropriately
affiliated with an appropriate Qualified Entity, or (c) no licensing
is required, the sale will be deemed to have occurred, and thereby
creating the obligation for PFN to pay the Distribution Partner, in
the calendar quarter in which PFN receives
Page 2 of 5
<PAGE>
payment from the issuer or provider of the product or service that
was sold.
4. Applicability of Law and Regulation. It is understood that certain of the
products or services that PFN will provide, or intends to provide, as
well as the people and the Qualified Entities involved in their
distribution, are subject to various State and Federal laws and
regulations. Nothing in this Agreement shall be construed in any way to
be inconsistent with, or violate, the applicable laws and regulations,
and all parties to this Agreement agree to conduct all activities under
this Agreement in conformance with the applicable laws and regulations,
some of the provisions of which are included in the Marketing Plan.
5. Limitation to Products and Services for Which PFN Receives Fees. It is
understood that many of the products and services that PFN is offering,
or will offer, are subject to various State or Federal regulation or
licensing. Therefore, there may be situations in which PFN is not yet
authorized to sell a particular product or service to a potential
Supporter in a particular State. In order to provide the highest levels
of customer service, PFN will attempt, where practical, in these
situations to direct these potential Supporters to authorized suppliers,
and PFN will forego any fees or commissions which it is not authorized or
otherwise approved to receive. Hence, nothing in this Agreement or in the
attached Addenda shall be construed as requiring PFN to pay the
Distribution Partner any fees of any kind related in any way to the sale
of products or services for which PFN is not appropriately authorized or
licensed, or for which PFN does not itself receive any fees or
commissions.
6. Supporter Selection of Affinity Relationship. It is understood that
there may be Supporters of the Distribution Partner who are also: (a)
Supporters of other Distribution Partners that are affiliated with PFN;
or (b) members of the public who access PFN for its products and
services. Each person who accesses PFN has the right to select the
affinity relationship with which he or she shall be associated when
purchasing a product or service. Supporters of the Distribution Partner
must indicate their affinity relationship with the Distribution Partner
either explicitly (e.g., in discussions with a customer service
representative or in an indication on a printed form) or implicitly
(e.g., by calling a specially designated telephone number or accessing a
specially designated Web page). Compensation will be paid under this
Agreement to the Distribution Partner only for those Supporters who have
either explicitly or implicitly indicated an affinity relationship with
that Distribution Partner.
7. Duration. This Agreement shall remain in effect for a period of three
(3) years from the effective date hereof.
The Distribution Partner shall have the unilateral right to renew this
Agreement for two successive one-year renewal periods. To obtain each
one-year extension, the Distribution Partner must so notify PFN in
writing sixty (60) days before the effective date of the extension.
The Distribution Partner shall have the unilateral right to renew this
Agreement for additional one year periods beyond the two one-year renewal
periods set forth in the preceding paragraph by notifying PFN in writing
sixty (60) days prior to the expiration of the second one year period,
and thereafter by providing such notice sixty (60) days prior to the
expiration of each one year term. However, if the Distribution Partner
receives written notice of PFN's determination not to renew this
Agreement one hundred eighty (180) days prior to the expiration of the
second one year renewal period or one hundred eighty (180) days prior to
any
Page 3 of 5
<PAGE>
subsequent renewal period, then the Distribution Partner may not renew
this Agreement for the upcoming one year period in question.
8. Notices. Any notices, demands, or other communications which under the
terms of this Agreement or under any statute must or may be given or
made by any party shall be in writing and to the respective parties as
follows:
To: Pace Financial Network To: FinancialWeb.com. Inc.
8605 Westwood Center Drive 201 Park Place
Suite 500 Suite 321
Vienna, VA 22182 Altamonte Springs. FL. 32701
Attn: Arthur A. Bushkin Attn: James P. Gagel
President Executive Vice President
Either party may change the notice address or addressee by giving notice
thereof to the other party. Notices may be given by first class U.S.
mail (postage prepaid, registered and with return receipt requested),
nationally recognized express courier, confirmed facsimile, personally,
or by hand. Notices shall be deemed to have been given on the date of
delivery when delivered personally or by facsimile, on receipt if
delivered by express courier or by hand, and three (3) days after
delivery to the United States Postal Service, if mailed.
9. Governing Law. The laws of the State of Delaware will govern this
Agreement.
10. Disputes. Any and all disputes under this agreement shall be resolved
by binding arbitration according to the rules of the American
Arbitration Association according to the laws of the State of Delaware.
When any party to this Agreement has a grievance, it shall first make a
good faith effort to resolve the dispute with the other party or
parties. Having failed to resolve its dispute to its satisfaction, the
aggrieved party shall notify in writing the other party or parties
thereof. The aggrieved party shall then have ninety (90) days to
initiate an arbitration action hereunder, otherwise it shall be deemed
to have waived its position and grievance.
11. No Other Relatlonship Between the Parties. Nothing contained herein
shall be construed as creating or implying a legal relationship of
partner, agent, or employee between PFN and the Distribution Partner.
12. Severability. It is the intent of the parties that this Agreement
shall be interpreted in a manner that makes the entire Agreement
effective and valid under applicable law. If, however, one or more of
the provisions of this Agreement is held to be invalid, unenforceable,
or unlawful, in any respect, then that provision shall be held to be
ineffective to the extent, and only to the extent, of that invalidity,
unenforceability, or unlawful aspect without invalidating either the
remainder of that provision, or the other provisions of this Agreement,
unless such a construction would be impossible.
13. Entire Agreement. This Agreement and all attachments hereto, including
the above-referenced Marketing Plan, constitute the entire agreement
between the parties and supersede any prior or contemporaneous oral or
written representations with regard to the subject matter hereof. This
Agreement may not be modified except by a written agreement signed by
both parties.
Page 4 of 5
<PAGE>
IN WITNESS THEREOF, the parties have caused this Agreement to be executed as of
the day and year first set forth.
Distribution Partner Name:
Pace Financial Network(SM), L.L.C. FinancialWeb.com
By: /s/ Arthur A. Bushkin By: /s/ James R. Cagel
------------------------------- -----------------------------------
Arthur A. Bushkin, President (Signature)
PFN Insurance Agency(SM), L.L.C. James R. Cagel
-----------------------------------
By: /s/ Arthur A. Bushkin (Print Name)
-------------------------------
Arthur A. Bushkin, President Executive Vice President
------------------------------------
(Title)
PFN Mortgage Services(SM), L.L.C.
By: /s/ Arthur A. Bushkin
-------------------------------
Arthur A. Bushkin, President
PFN Consumer Credit(SM), L.L.C.
By: /s/ Arthur A. Bushkin
-------------------------------
Arthur A. Bushkin, President
PFN Investment Management(SM), L.L.C.
By: /s/ Arthur A. Bushkin
-------------------------------
Arthur A. Bushkin, President
PFN Financial(SM), L.L.C.
By: /s/ Robert Granados
-------------------------------
Robert Granados, President
General Distribution Partner Page 5 of 6 GDP-2.0 9/22/98
<PAGE>
EXHIBIT 10.25
[SPENCER TRASK SECURITIES INCORPORATED LETTERHEAD APPEARS HERE]
August 20, 1998
Axxess, Inc.
201 Park Place, Suite 321
Altamonte Springs, FL 32701
Attention: Kevin A. Lichtman, President and Chairman
Gentlemen:
This is to acknowledge and confirm the terms of our corporate finance
agreement (the "Agreement") as follows:
(1) Axxess, Inc., a Nevada (the "Company"), hereby engages Spencer Trask
Securities Incorporated (the "Advisor") and the Advisor hereby agrees to render
services to the Company as its corporate finance consultant, financial advisor
and investment banker.
(2) During the term of this Consulting Agreement, the Advisor shall
provide advice to, and consult with, the Company concerning financial planning,
corporate organization and structure, financial matters in connection with the
operation of the business of the Company, private and public equity and debt
financing, acquisitions, mergers and other similar business combinations and
shall review and advise the Company regarding its overall progress, needs and
financial condition. The Advisor is not obligated to devote any specific amount
of time to providing advice and consultation to the Company.
(3) The Company shall compensate the Advisor as follows: $10,000 initial
retainer fee upon signing of this Agreement and, within ten (10) days of signing
this Agreement, five-year warrants to purchase 200,000 shares of the Company's
common stock at an exercise price equal to the lesser of $0.50 or 50% of the
average closing price during the five (5) business days prior to the date of
this Consulting Agreement; plus payments in the sum of $5,000 on the first day
of each month of the term of this Consulting Agreement commencing with the month
of September, 1998; plus contingency payments in event of certain transactions,
as set forth below. Payment of the initial retainer fee and subsequent monthly
fees due to the Advisor may be deferred, at the Company's option, until the
closing date of a Transaction with a party introduced to the Company or
contacted by Spencer Trask or the Company during the term (as hereinafter
defined) or the receipt by the Company of additional funding in the amount of
$500,000 or more. The Company shall also reimburse the Advisor, promptly upon
receipt of invoices therefor, for out-of-pocket expenses incurred in connection
with its services hereunder. Said expenses shall not exceed $500 in any 30 day
period of the term unless approved in writing by an officer or director of
Axxess. In the event the Company fails to pay the fees as set forth herein, the
Company will pay all costs and expenses incurred by the Advisor in connection
with recovering such fees, plus interest at ten percent per annum from the date
the fees were due to the date actually paid. Should the Advisor assist in
raising financing for the Company, such services will be subject to engagement
terms separate from this Agreement.
(4) If any Transaction (as hereinafter defined) is consummated during the
Term or within two years after the end of the Term with a party introduced to
the Company or contacted by Spencer Trask or the Company during the Term, the
Company shall pay Spencer Trask or cause Spencer Trask to be paid, at the
closing of each such Transaction, a cash fee equal to the sum of: (a) five
percent (5%) of the first two million dollars of the aggregate consideration of
a Transaction (the "Aggregate Consideration"), (b) four percent (4%) of the
second two million dollars or portion thereof, (c) three percent (3%) of the
third million dollars or portion therof, and (d) two and one and one-half
<PAGE>
percent (2 1/2%) of the balance of the Aggregate Consideration. Aggregate
Consideration is defined and computed as follows:
A. The total sale proceeds and other consideration received (which shall be
deemed to include amounts paid into escrow) by the Company and/or its
shareholders or by a Target and/or its shareholders upon the consummation
of the Transaction (including payments made in installments), inclusive of
cash, securities, notes, consulting agreements and agreements not to
compete, plus the total value of liabilities assumed.
B. If a portion of such consideration includes contingency payments (whether
or not related to future earnings or operations), Aggregate Consideration
will include 75% of the face value of such payments without regard to
whether the conditions for the payment of such contingent amounts have been
or may be satisfied.
C. If the Aggregate Consideration for the Transaction consists in whole or in
part of securities, for the purposes of calculating the amount of Aggregate
Consideration, the value of such securities will be the value therof on the
day preceding the consummation of the Transaction as the Company and
Spencer Trask agree; provided, however, that in the case of securities for
which there is a public trading market, the value will be determined by the
average last sales price for such securities for the last twenty days prior
to such consummation as determined by Spencer Trask and communicated by
Spencer Trask to the Company. If there is no public trading market for such
securities or other property received or receivable as a part of the
Aggregate Consideration and the parties are unable to agree, then each of
Spencer Trask and the Company will select an investment banking firm
respected in the merger and acquisition field to determine a value and the
midpoint between the two values established by the two independent experts
will be the fair market value for the purpose hereof.
For the purposes of this agreement, any of the following transactions shall
constitute a "Transaction": (a) the sale, outside of the ordinary course of
business, of the Company or any of its assets, securities, or business by means
of a merger, consolidation, joint venture, exchange offer or purchase or sale of
stock or assets, or any transaction resulting in any change of control of the
Company or its assets or business; or (b) the purchase by the Company, outside
of the ordinary course of business, of another company or any of its assets,
securities or business by means of a merger, consolidation, joint venture,
exchange offer or purchase or sale of stock or assets.
(5) The term of this Consulting Agreement shall be until August 10, 1999.
(6) The Advisor will not disclose to any other person, firm, or
corporation, nor use for its own benefit, during or after the term of this
Consulting Agreement, any trade secret or other information designated as
confidential by the Company which is acquired by the Advisor in the course of
performing services hereunder. (A trade secret is information not generally
known to the trade which gives the Company an advantage over its competitors.
Trade secrets can include, by way of example, products or services under
development, production methods and processes, sources of supply, customer lists
and marketing plans). Any financial advice rendered by the Advisor pursuant to
this Consulting Agreement may not be disclosed publicly in any manner without
the prior written approval of the Advisor.
2
<PAGE>
(7) The Company agrees to indemnify and hold the Advisor, its affiliates,
control persons, officers, employees and agents (collectively, the "Indemnified
Persons") harmless from and against all losses, claims, damages, liabilities,
costs or expenses (including reasonable attorneys' and accountants' fees) joint
and several, arising out of the performance of this Agreement, whether or not
the Advisor is a party to such dispute. This indemnity shall not apply, however,
where a court of competent jurisdiction has made a final determination that the
Advisor engaged in gross recklessness and willful misconduct in the performance
of its services hereunder which gave rise to the loss, claim, damage,
liability, cost or expense sought to be recovered hereunder (but pending any
such final determination, the indemnification and reimbursement provision of
this Agreement shall apply and the Company shall perform its obligations
hereunder to reimburse the Advisor for its expenses).
If for any reason the foregoing indemnification is unavailable to the
Advisor or such other Indemnified Person or insufficient to hold it harmless,
then the Company shall contribute to the amount paid or payable by the Advisor
or such other Indemnified Person as a result of such loss, claim, damage, or
liability in such proportion as is appropriate to reflect not only the relative
benefits received by the Company and its shareholders on the one hand and the
Advisor or such other Indemnified Person on the other hand, as well as any
relevant equitable considerations; provided that in no event will the aggregate
contribution by the Advisor and any other Indemnified Person hereunder exceed
the amount of fees actually received by the Advisor pursuant to this Consulting
Agreement. The reimbursement, indemnity and contribution obligations of the
Company under this paragraph shall be in addition to any liability which the
Company may otherwise have and shall be binding upon and inure to the benefit of
any successors, assigns, heirs and personal representatives of the Company, the
Advisor and any other Indemnified Person.
The provisions of this paragraph (7) shall survive the termination and
expiration of this Consulting Agreement.
(8) This Consulting Agreement is not assignable and cannot be modified or
changed, nor can any of its provisions be waived, except be written agreement
signed by all parties. The Finder's Agreement dated as of July 2, 1998 between
the parties hereto remains in full force and effect provided, however, that in
the event that there are conflicts between the terms of said Finder's Agreement
and this Consulting Agreement, the terms of this Consulting Agreement shall
govern.
(9) This Consulting Agreement shall be governed by the laws of the State
of New York.
Please confirm that the foregoing correctly sets forth our understanding by
signing the enclosed copy of this letter where provided and returning it to us
with payment of the initial retainer fee at your earliest convenience.
Very truly yours, Accepted and Agreed:
SPENCER TRASK SECURITIES, INC. AXXESS, INC.
By: By: /s/ Kevin A. Lichtman
-------------------------------- ---------------------------------
William P. Dioguardi Kevin A. Lichtman
President President & Chairman
Date: Date: 8-31-98
------------------------------ -------------------------------
3
<PAGE>
FINDER'S AGREEMENT
------------------
This agreement (the "Agreement") is entered into as of July 2, 1998 between
Axxess, Inc., a _______________corporation (the "Company") and Spencer Trask
Securities, Inc., a Delaware corporation ("Finder").
RECITALS
--------
WHEREAS, Finder represents that it will endeavor to introduce the Company to
one or more Targets (as defined in Section 2 (b) below) who may be interested in
engaging in a business combination or financing arrangement with the Company
which may include an investment in the securities of or loan to a Target, or a
merger or purchase of some or all of the stock or assets of a Target (singularly
and in combination, a "Transaction"); and
WHEREAS, the Company desires to engage the services of Finder to provide an
introduction to such Targets in accordance with the terms and conditions set
forth in this Agreement.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, and for other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Company engages Finder as one of the Company's non-exclusive
finders, to find Targets interested in effecting a Transaction. Finder will
endeavor to introduce the Company to such targets.
2. (a) In order to coordinate the Company's and Finders respective efforts
during the period of engagement hereunder, Finder will obtain the Company's
consent prior to contacting potential Targets. The Company will promptly inform
Finder whether it is interested in being introduced to such potential Targets.
If so, Finder will introduce representatives of the Company to representatives
of such Targets.
(b) For the purposes of this Agreement, "Targets" shall, mean
individuals or entities introduced to the Company by Finder; in this connection,
Vector Index Advisors, Inc. is specifically acknowledged as a Target that has
been introduced to the Company by Finder.
3. In the event of a consummated Transaction, the Company shall pay to
Finder a fee as follows:
(a) 5% of the first $2,000,000 or portion thereof of the consideration paid
in such transaction; plus
(b) 4% of the next $2,000,000 or portion thereof of the consideration paid
in such transaction; plus
<PAGE>
(c) 3% of the next $2,000,000 or portion thereof of the consideration paid
in such transaction; plus
(e) 2.5% of any consideration paid in such transaction in excess of
$6,000,000
"Consideration paid in such transaction" for purposes of this Agreement
shall mean the value of a) all consideration, including proceeds of investments
and loans, paid to a Target and/or the stockholders of a Target in connection
with a Transaction, including cash, securities or other consideration exchanged
or paid at closing; assumption of debt; and any deferred payments including
without limitation notes, contingent payments, license fees or royalty payments;
and b) the aggregate amount of any investment made by the Company and a Target
in a joint venture.
Payment of the applicable fee as set forth above will be made at the closing of
the related Transaction. The fee shall be payable in cash or in kind (i.e. the
same form of consideration received by a Target and/or its stockholders), and
any consideration other than cash which is paid in the consummated Transaction
shall be valued at its fair market value.
In the event that any fees due Finder are not paid when due, the Company
shall also be liable to Finder for interest on the amount due at the annual rate
of three percent over the prime rate, accruing on a daily basis from the date of
closing, plus all of Finder's reasonable legal fees and expenses in connection
with collection of said fees.
4. This Agreement shall remain in full force and effect for a period of
twelve (12) months after the date hereof; provided, however, that Finder shall
be entitled to receive the full fee set forth in paragraph 3 hereof in the event
discussions are held with a Target during the term of this agreement and a
Transaction or other business arrangement is consummated with such Target within
eighteen months years from the expiration of this Agreement.
5. The Company shall not be liable for any retainers, costs, expenses or
other charges incurred by Finder or third parties at the request of Finder
unless the Company has authorized such costs or expenses in writing, except for
out-of-pocket expenses of Finder not in excess of $1,000 in connection with its
services pursuant to this Agreement, which expenses shall be paid upon
invoicing.
6. (a) Finder is an independent contractor and financial advisor and is not
an employee or agent of the Company and it shall have no authority to bind the
Company in any manner whatsoever.
(b) The Company acknowledges that Finder has not done any due diligence
with respect to any Target and that Finder makes no representations whatsoever
with respect to any Target (including without limitation its financial condition
or its ability to perform any obligations to which it is or may become bound),
and the Company expressly agrees that Finder shall have no liability whatsoever
in connection with any Transaction it may enter into with a Target.
7. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to its conflict of law
principles.
2
<PAGE>
8. This Agreement constitutes the entire agreement between the parties and
supersedes any prior agreements, whether written or oral, between the parties.
No modification, extension or change in this Agreement shall be effective unless
it is in writing and signed by both Finder and the Company.
9. The provisions of this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto, their heirs, legal representatives,
successors and assigns. This Agreement may not be assigned except upon the prior
written consent of the other party to this Agreement.
10. Any notice hereunder shall be in writing and delivery thereof shall be
complete if delivered in person, by facsimile or mailed by overnight mail, or
registered or certified mail, postage prepaid to the following addresses (unless
changed by written notice):
Finder. Spencer Trask Securities, Inc.
535 Madison Avenue, 18th Floor
New York, NY 10022
Attention: William P. Dioguardi, President
Company: Axxess, Inc.
201 Park Place, Ste 321
Altamonte Springs, FL 32701
Attention: Kevin A. Lichtman, President and Chairman
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the date first above written.
AXXESS, INC. SPENCER TRASK SECURITIES, INC
By: By:
-------------------------- ---------------------------------
Kevin A. Lichtman William P. Dioguardi
President & Chairman President
3
<PAGE>
EXHIBIT 10.26
CONSULTING AGREEMENT
Consulting Agreement, made and entered into as of the 6th day of January,
1999, by and between FinancialWeb.com, Inc., a Nevada corporation with its
principal place of business at 201 Park Place, Altamonte Springs, Florida, 32701
("FWEB"), and Glenn B. Laken, an individual residing in the State of Illinois
("LAKEN").
WHEREAS, LAKEN is willing and has provided consulting services for and on
behalf of FWEB in connection with the items as described in paragraph 1 hereto;
and
WHEREAS, FWEB wishes to retain the services of LAKEN, all upon the terms and
conditions herein contained.
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions set forth below, LAKEN and FWEB agree as follows:
1. Retainer. FWEB hereby retain LAKEN, and LAKEN heeby agrees to devote
such time as is necessary, in connection with the following:
a) Identifying and negotiating merger and acquisitions
b) assist in identifying capital and lending sources
c) assist in product development on an on-going basis
2. Work Product. Subject to availability, FWEB agree to provide LAKEN with
the following information:
a) Financial statements, projections of sales and earnings;
b) a detailed project planner
c) press information
It is agreed that all information and materials provided to LAKEN shall be
the sole and exclusive property of FWEB. All copyright and title to said work
shall be the property of FWEB free and clear of all claims thereto by LAKEN, and
LAKEN shall retain no claim of authorship therein. LAKEN hereby agrees that all
information and materials so provided shall be held in confidence and used
solely for the purposes of this Agreement.
1
<PAGE>
FWEB acknowledge and agree that specified segments of information received
from LAKEN under this Agreement are the exclusive proprietary information and
property of LAKEN, and the same shall not be divulged, published or distributed
in any manner or form to any third party without the express right or written
consent of LAKEN. This provision shall survive the termination of this
Agreement, and may be enforced by LAKEN by any available remedy, including,
without limitation, specific injunctive relief.
FWEB shall keep confidential for a minimum of two (2) years, the
organizations, groups, entities and individuals introduced and/or solicited by
LAKEN on behalf of FWEB pursuant to this Agreement ("Referred Parties") unless
FWEB can establish that a business relationship with the Referred Parties had
existed prior to entering into this Agreement. FWEB will not disclose their
identities to anyone other than on a supplemental filing basis to, and only if
required, by the US Securities and Exchange Commission (the "SEC"), unless other
disclosure is required by the SEC, and will not enter into any contract of any
kind, on this or subsequent transactions with any of the Referred Parties
without the knowledge and prior written consent of LAKEN.
3. Compensation. In consideration for the services to be provided to FWEB
by LAKEN, FWEB hereby agree to compensate LAKEN by issuing to LAKEN the
rights in the form of a Stock Purchase Warrant to purchase an aggregate
of One Million (1,000,000) fully paid and non-assessable shares of the
$.001 par value Common Stock of FWEB exercisable at any time prior to
5:00 PM Florida Time on January 5, 2004, at the principal office of
FWEB, on payment of $4.00 per share so purchased and subject to certain
terms and condition as defined in the Stock Purchase Warrant attached
hereto and made a formal part of this Agreement.
4. Term. The term of this agreement shall commence on the date thereof and
shall continue for a period ending on the first to occur of the
following:
a) The expiration of sixty (60) months from the date hereof; or
b) The date on which this Agreement is terminated by operation of law
or judicial decree.
5. Miscellaneous Provisions.
a) Governing Law. This Agreement is governed by the laws of the State
of Florida.
b) Entire Agreement. This Agreement constitutes the entire agreement
between the parties regarding the provision of the consulting
services by LAKEN and the payment of compensation, both cash and
securities, by FWEB and supersedes all prior negotiations,
understandings and agreements between the parties.
2
<PAGE>
c) Notices. All notices, demands or requests required or authorized
hereunder shall be deemed sufficiently given if in writing and sent
by registered or certified mail, return receipt requested and
postage prepaid, to:
To FWEB: 201 Park Place
Altamonte Springs, FL 32701
To LAKEN: 30 South Wacker
Chicago, IL 60606
d) Arbitration. Any dispute under the Agreement shall be resolved by
arbitration pursuant to the rules of the American Arbitration
Association within the city of Altamonte Springs.
e) Survival of Rights. Except as expressly provided in this Agreement,
this Agreement shall be binding upon and inure to the benefit of the
parties and their respective legal representatives, successors and
assigns.
f) Validity. Each article, paragraph, term or provision of this
Agreement will be considered severable, and if, for any reason any
article, paragraph, term or provision is determined to be invalid or
contrary to any existing or future law or regulation, such will not
impair the operation or effect of the remaining portions of this
Agreement.
IN WITNESS WHEREOF, the undersigned hereby executed this agreement as of the
date indicated above.
FinancialWeb.com, Inc.
/s/ Kevin A. Lichtman
Glenn B. Laken By: Kevin A. Lichtman
Its: President
3
<PAGE>
EXHIBIT 10.27
CONSULTING AGREEMENT
Consulting Agreement, made and entered into as of the 10 day of March, 1999,
by and between FinancialWeb.com, Inc., a Nevada corporation with its principal
place of business at 201 Park Place, Altamonte Springs, Florida, 32701 ("FWEB"),
and John J. Katsock, Jr., an individual residing in the State of New York,
("KATSOCK").
WHEREAS, KATSOCK is willing and has provided consulting services for and on
behalf of FWEB in connection with the items as described in paragraph 1 hereto;
and
WHEREAS, FWEB wishes to retain the services of KATSOCK, all upon the terms
and conditions herein contained.
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions set forth below and for good and valuable consideration, the delivery
and receipt of which is hereby acknowledged. KATSOCK and FWEB, intending to be
legally bound hereby, agree as follows:
1. Retainer. FWEB hereby retains KATSOCK, and KATSOCK hereby agrees to
devote such time as is necessary in providing advice and consultation relating
to financial planning, corporate organization and structure, financial matters
in connection with the operation of the business of the Company and other
corporate matters.
2. Work Product. Subject to availability, FWEB agree to provide KATSOCK
with, among other things, the following information:
(a) financial statements and other financial information;
(b) a detailed project planner; and
(c) press information.
It is agreed that all information and materials provided to KATSOCK shall be
the sole and exclusive property of FWEB. All copyright and title to said work
shall be the property of FWEB free and clear of all claims thereto by KATSOCK,
and KATSOCK shall retain no claim of authorship therein. KATSOCK hereby agrees
that all information and materials so provided shall be held in confidence and
used solely for the purposes of this Agreement.
FWEB acknowledges and agrees that specified segments of information received
from KATSOCK under this Agreement are the exclusive proprietary information and
property of KATSOCK and the same shall not be divulged, published or distributed
in any manner or form to any third party without the express right or written
consent of KATSOCK. This provision shall survive the termination of this
Agreement, and may be enforced by KATSOCK by any available remedy, including,
without limitation, specific injunctive relief.
<PAGE>
FWEB shall keep confidential for a minimum of two (2) years, the
organizations, groups, entities and individuals introduced and/or solicited by
KATSOCK on behalf of FWEB pursuant to this Agreement ("Referred Parties") unless
FWEB can establish that a business relationship with the Referred Parties had
existed prior to entering into this Agreement. FWEB will not disclose their
identities to anyone other than on a supplemental filing basis to, and only if
required by, the U.S. Securities and Exchange Commission (the "SEC"), unless
other disclosure is required by the SEC, and will not enter into any contract of
any kind, on this or subsequent transactions with any of the Referred Parties
without the knowledge and prior written consent of KATSOCK.
3. Compensation. In consideration for the services to be provided to FWEB by
KATSOCK, FWEB hereby agree to compensate KATSOCK by issuing to KATSOCK the
rights in the form of a Stock Purchase Warrant to purchase an aggregate of One
Million (1,000,000) fully paid and non-assessable shares of the $.001 par value
Common Stock of FWEB exercisable at any time prior to 5:30 P.M. Florida Time on
March 12, 2004, at the principal office of FWEB, subject to certain terms and
conditions as set forth in the Stock Purchase Warrant attached hereto and made a
formal part of this Agreement.
4. Term. The term of this Agreement shall commence on the date hereof and
shall continue for a period ending on the first to occur of the following:
(a) The expiration of sixty (60) months from the date hereof;
(b) The date on which this Agreement is terminated by operation of law
or judicial decree; or
(c) The date on which the parties hereto mutually agree to terminate
this Agreement.
The termination of this Agreement will not terminate, or have any impact or
effect upon, the Stock Purchase Warrant, the grant and validity of which is
irrevocable and independent of this Agreement.
5. Miscellaneous Provisions.
(a) Governing Law. This Agreement is governed by the laws of Florida.
(b) Entire Agreement. This Agreement constitutes the entire agreement
between the parties regarding the provision of the consulting services by
KATSOCK and the payment of compensation, both cash and securities, by FWEB and
supersedes all prior negotiations, understandings and agreements between the
parties.
2
<PAGE>
(c) Modifications. This Agreement may be modified only if done so in
writing executed by the parties hereto.
(d) Notices. All notices, demands or requests required or authorized
hereunder shall be deemed sufficiently given if in writing and sent
by registered or certified mail, return receipt requested and
postage prepaid, to:
To FWEB: 201 Park Place
Altamonte Springs, FL 32701
To KATSOCK: Prime Equity Fund, LP
277 Park Avenue, 27th Floor
New York, NY 10172
(e) Arbitration. Any dispute under the Agreement shall be resolved by
arbitration pursuant to the rules of the American Arbitration
Association within the city of Altamonte Springs.
(f) Survival of Rights. Except as expressly provided in this Agreement,
this Agreement shall be binding upon and inure to the benefit of
the parties and their respective legal representatives, successors
and assigns.
(g) Company Representation. This Agreement has been duly authorized and
is a valid, binding and enforceable obligation of the Company. The
undersigned officer of the Company has been duly authorized to
execute and deliver this Agreement on behalf of the Company.
(h) Validity. Each article, paragraph, term or provision of this
Agreement will be considered severable, and if, for any reason any
article, paragraph, term or provision is determined to be invalid
or contrary to any existing or future law or regulation, such will
not impair the operation or effect of the remaining portions of
this Agreement.
IN WITNESS WHEREOF, the undersigned hereby execute this agreement as of the
date indicated above.
FinancialWeb.com, Inc.
/s/ Kevin A. Lichtman
- ------------------------- -------------------------------------
John J. Katsock, Jr. By: Kevin A. Lichtman
Its: President
3
<PAGE>
EXHIBIT 10.28
[ALLEN & COMPANY LETTERHEAD APPEARS HERE]
March 31, 1999
FinancialWeb.com, Inc.
201 Park Place, Suite 321
Altamonte Springs, Florida 32701
Attn: Kevin Lichtman
Chief Executive Officer
Dear Mr. Lichtman:
We are pleased to confirm our mutual understanding concerning the retention
by FinancialWeb.com, Inc. (collectively with its subsidiaries and affiliates,
the "Company") of Allen & Company Incorporated ("Allen") to act as the Company's
exclusive financial advisor on the terms set forth herein.
1. Scope of Engagement. (a) In connection with this engagement, Allen
will serve as the Company's exclusive financial advisor with respect to a
variety of specific transaction proposals, including matters relating to (i)
entering into one or more strategic partnerships, joint ventures or similar
arrangements, (ii) possible mergers or stock sales or other dispositions, (iii)
sales or other dispositions of businesses or assets, and (iv) other similar or
related matters with which the Company may from time to time require assistance.
(b) In addition, Allen shall have the right to act as the Company's
exclusive financial advisor and/or placement agent in connection with the
exploration of various financing alternatives, including, but not limited to,
the raising of debt or equity capital, both public and private.
2. Advisory Fees and Expenses. In consideration for the services
described in paragraph 1(a) above, the Company shall issue to Allen, as soon as
practicable after the signing of this letter, warrants to purchase 908,222
shares of the Company's Common Stock, exercisable up to the tenth anniversary of
the date of issuance at an exercise price of $4.00 per share subject to the
terms thereof (the "Warrants"). The Warrants will be evidenced by a warrant
certificate (the "Warrant Certificate") which shall contain other customary
loans, as well as provisions for registration rights and conversion rights and
the issuance of additional warrants at the related "going in" price if the
company shall issue additional equity securities (including securities
convertible into equity securities but excluding securities issued in connection
with any transaction for which Allan represents the Company pursuant to this
letter agreement) during this engagement. In addition, before commencing any
specific assignment on the Company's behalf as referred to in paragraph l(b)
hereof, the Company and Allen will discuss, and mutually determine, a reasonable
and customary fee or fee scale to be paid to Allen in connection therewith.
<PAGE>
FinancialWeb.com, Inc.
March 31, 1999
Page 3
4. Public Announcements. Prior to any press release or other public
disclosure relating to our services hereunder, the Company and Allen shall
confer and reach an agreement upon the contents of any such disclosure.
Notwithstanding the foregoing, except as required by any applicable law, rule or
regulation, no party shall make any public announcement regarding this
engagement or our relationship with the Company thereunder without the prior
consent of the other party.
5. Responsibility for Disclosure. The Company shall provide Allen all
information material to its business and operations as well as any other
relevant information which Allen reasonably requests in connection with the
performance of its services hereunder. The Company represents and warrants to
Allen that all such information, and all information released to the public or
filed by the Company with any relevant government agency or regulatory body,
will be accurate and complete in all material respects at the time it is
furnished or filed, and the Company agrees to keep Allen advised of all material
developments affecting the Company through the later of the term of our
engagement or completion of any transaction in which Allen is involved. The
Company recognizes that, in rendering its services hereunder, Allen will be
using information provided by the Company, as well as information available from
other sources deemed appropriate by Allen. The Company further acknowledges that
Allen does not assume responsibility for and may rely, without independent
verification, on the accuracy or completeness of any such information.
Allen agrees that, except as otherwise required by law, any material
non-public information delivered to it hereunder by the Company will be treated
by Allen as confidential and no such information or summaries, analysis, reports
or other derivative information with respect thereto will be disseminated,
referred to, quoted or otherwise made public without the prior written consent
of the Company, which consent will not be unreasonably withheld. Further, it is
understood that any information provided by either party to the other hereunder
may be reproduced, disseminated, quoted or otherwise referred, in each case, to
the officers of the other party who normally provide attention to these types of
matters and its legal counsel utilized in connection with such matters, but that
each of Allen and the Company will take reasonable steps to ensure that the
confidentiality of such information is maintained and that none of its officers,
employees or agents utilizes any material non-public information in connection
with the determination to buy, sell or hold securities of the Company.
6. Indemnification and Contribution. The Company agrees that in the event
Allen or any of Allen's officers, employees, agents, affiliates or controlling
persons, if any (each of the foregoing, including Allen, an "Indemnified
Person"), become involved in any capacity (whether or not as a party) in any
action, claim, proceeding or investigation (including any securityholder action
or claim or any action brought by or in the right of the Company) related to or
arising out of our engagement, including any related services already performed
and any modifications or future additions to such engagement, the Company will
promptly upon demand advance to such
Allen & Company
Incorporated
<PAGE>
FinancialWeb.com, Inc.
March 31, 1999
Page 4
Indemnified Person, or reimburse each such Indemnified Person for, its
reasonable legal and other expenses (including the cost of any investigation and
preparation) as and when they are to be incurred, or are incurred, in connection
therewith.
In addition, the Company will indemnify and hold harmless each Indemnified
Person from and against, and no Indemnified Person shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to the Company or
its securityholders or creditors for, any losses, claims, damages, liabilities
or expenses (including, without limitation, attorney's fees and expenses)
related to or arising out of our engagement, any services provided thereunder or
any transactions or proposed transactions related thereto, including any related
services already performed and any modifications or future additions to such
engagement whether or not any pending or threatened action, claim, proceeding or
investigation giving rise to such losses, claims, damages, liabilities or
expenses is initiated or brought by or on behalf of the Company and whether or
not in connection with any action, claim, proceeding or investigation in which
the Company or any Indemnified Person is a party, except to the extent that any
such loss, claim, damage, liability or expense is found by a court of competent
jurisdiction in a judgment that has become final in that it is no longer subject
to appeal or review to have resulted directly and primarily from such
Indemnified Person's bad faith or gross negligence.
If for any reason the foregoing indemnification is held unenforceable,
then the Company shall contribute to the loss, claim, damage, liability or
expense for which such indemnification is held unenforceable in such proportion
as is appropriate to reflect the relative benefits received, or sought to be
received, by the Company and its securityholders on the one hand and the party
entitled to contribution on the other hand in the matters contemplated by this
engagement, as well as the relative fault of the Company and such party with
respect to such loss, claim, damage, liability or expense, and any other
relevant equitable considerations. The Company agrees that, to the extent
permitted by applicable law, in no event shall the Indemnified Persons be
responsible for or be required to contribute amounts which in the aggregate
exceed the fees, if any, actually paid to Allen for such financial advisory
services.
The Company's reimbursement, indemnity and contribution obligations under
this letter shall be in addition to any liability which the Company may
otherwise have and shall not be limited by any rights Allen or any other
Indemnified Person may otherwise have. The Company agrees that, without Allen's
prior written consent, which will not be unreasonably withheld, the Company will
not settle, compromise or consent to the entry of any judgment in any pending or
threatened claim, action, proceeding or investigation in respect of which
indemnification or contribution could be sought hereunder (whether or not Allen
or any other Indemnified Person is an actual or potential party to such claim,
action, proceeding or investigation), unless such settlement, compromise or
consent includes an unconditional release of each Indemnified Person from all
liability arising out of such claim, action, proceeding or investigation.
Allen & Company
Incorporated
<PAGE>
FinancialWeb.com, Inc.
March 31, 1999
Page 5
The provisions of this paragraph 6 shall remain in effect indefinitely,
notwithstanding the completion of this assignment, the expiration of the term
hereof or any other termination of this engagement
7. Miscellaneous. No waiver, amendment or other modification of this
agreement shall be effective unless in writing and signed by each party to be
bound thereby. This agreement, and any claim related directly or indirectly to
this agreement, shall be governed by, and construed in accordance with, the laws
of the State of New York applicable to agreements executed and to be fully
performed therein. The parties hereby irrevocably and unconditionally submit (to
the extent permitted by law) to the nonexclusive jurisdiction of the courts of
the State of New York located in the City and County of New York and the United
States District Court for the Southern District of New York for any legal action
or proceeding arising out of this agreement or Allen's engagement hereunder, and
each of the parties hereby irrevocably consents to service of process in any
such action or proceeding by certified or registered mail at the address for
such party set forth above. Allen and the Company (on the Company's own behalf
are to the extent permitted by applicable law, on behalf of its stockholders and
creditors) waive all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) related to or
arising out of our engagement. The obligations of this agreement shall be
binding upon and shall inure to the benefit of the parties hereto, the
Indemnified Persons hereunder and any of their successors, assigns, heirs and
personal representatives.
Allen & Company
Incorporated
<PAGE>
FinancialWeb.Com, Inc.
March 31, 1999
Page 6
Please confirm that the foregoing is in accordance with your understanding
of the terms of our engagement by signing and returning to us the enclosed
duplicate of this letter, which shall thereupon constitute a binding agreement
between us.
Very truly yours,
ALLEN & COMPANY INCORPORATED
By: /s/ Enrique F. Senior
---------------------------------
Name: Enrique F. Senior
Title: Managing Director
Accepted and agreed to
as of the date first above written:
FINANCIALWEB.COM, INC.
By: /s/ Kevin Lichtman
--------------------------------
Name: Kevin Lichtman
Title: Chief Executive Officer
Allen & Company
Incorporated
<PAGE>
EXHIBIT 10.41
PROMISSORY NOTE
AMOUNT: $150,436 Date: December 15, 1998
Axxess Media Inc. (the Borrower"), for value received, promises to pay to the
order of The Harmat Organizaiton, (the "Lender") the sum of One Hundred Fifty
Thousand Four Hundred Thirty Six dollars ($150,436) (the "Principal") at the
Lender's office located at 22 Old Country Road, Quoque, NY 11959, at the rate
and according to the terms indicated below.
1. RATE. The Borrower shall pay interest at the rate of 9.75%.
2. REPAYMENT TERMS. The Borrower will repay this Note upon demand.
3. USE OF PROCEEDS. The Borrower represents and warrants that this Note
evidences a loan for business purposes. The Borrower agrees that this
provision constitutes a part of this Note. By signing this Note, the
Borrower agrees to be legally bound to all the terms, promises and
provisions contained in it.
4. APPLICATION OF PAYMENTS. Each payment received on this Note shall be
applied first to unpaid late charges (if any), then to interest as of
payment due date and the balance, if any, to principal as of the date
received.
5. COLLECTION COSTS. If this Note is referred to any attorney for collection,
Borrower shall pay the Lender's reasonable attorney's fees, plus the costs
and expenses of the collection proceeding.
6. BINDING AGREEMENT; GOVERNING LAW. The Note shall be binding upon the
heirs, successors, and assigns of the Borrower and the Lender. It shall be
interpreted and construed in accordance with the laws of the State of New
York.
7. DEFAULT. The total unpaid balance of this Note shall become due and payable
without notice or demand upon the occurrence of any one of the following
"Events of Default": (a) default in any installment payment of principal or
interest when due under this Note and the continuance thereof for ten
business days after the due date; (b) default for a period of ten business
days in any other payment of principal or interest when due under this Note;
(c) failure to fulfill or perform any other term of this Note or related
Term Loan Agreement, mortgage, or security agreement, if any; (d) failure
of any "Obligor" (defined as the Borrower an any guarantor of this Note) to
fulfill or perform any term of any other instrument or agreement of an
Obligor issued to or entered into with the Lender; (e) a false or incomplete
statement in any information submitted to the Lender in connection with this
Note, if any; (f) entry of a judgment against Borrower; (g) an attempt to
restrain or obtain any Obligor's account balances or property with the
Lender; (h) a significant decline in the value of any real or personal
property securing payment of this Note; (i) death, business failure or
dissolution of any Obligor; (j) death of the insured under any kind of life
insurance policy securing payment of this Note; (k) failure of the borrower
to pay debts as they become due; (l) commencement of any bankruptcy,
receivership, or similar proceeding involving any Obligor as a debtor.
8. WAIVER. The borrower and all endorsers, sureties and guarantors hereof
jointly and severally waive presentment for payment, demand, notice of non-
payment, notice of protest and protest of this Note.
Page 1 of 2
<PAGE>
9. EXCESS INTEREST. At no time shall the Interest Rate exceed the highest rate
allowed by law for this type of loan. Should the Lender ever collect
interest at a rate that exceeds the applicable legal limits, such excess
will be credited to principal. If the amount of the credit exceeds the
applicable legal limits, such excess will be credited to principal. If the
amount of the credit exceeds the outstanding principal balance, such excess
will be returned to the borrower.
JAMES P. GAGEL
- ----------------------- 201 Park Place, Suite 321
Signature Altamonte Springs, FL 32701
Corporate Counsel
Page 2 of 2
<PAGE>
EXHIBIT 21
LIST OF SUBSIDIARIES
--------------------
1) SlugFest.com, Inc., incorporated in Nevada on February 3, 1999.
2) StockDetective.com, Inc., incorporated in Nevada on February 3, 1999.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 322,480
<SECURITIES> 0
<RECEIVABLES> 200,000
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 641,575
<PP&E> 216,883
<DEPRECIATION> 28,138
<TOTAL-ASSETS> 1,017,267
<CURRENT-LIABILITIES> 1,016,639
<BONDS> 0
0
0
<COMMON> 4,973
<OTHER-SE> (4,345)
<TOTAL-LIABILITY-AND-EQUITY> 1,017,267
<SALES> 159,529
<TOTAL-REVENUES> 159,529
<CGS> 218,562
<TOTAL-COSTS> 218,562
<OTHER-EXPENSES> 1,165,302
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 43,501
<INCOME-PRETAX> (1,267,836)
<INCOME-TAX> (1,267,836)
<INCOME-CONTINUING> (1,267,836)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,267,836)
<EPS-PRIMARY> (.37)
<EPS-DILUTED> 0
</TABLE>
