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Exhibit 1.11
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS
AND UNTIL REGISTERED UNDER THE SECURITIES ACT OR UNLESS AN EXEMPTION THEREFROM
IS AVAILABLE.
WARRANT TO PURCHASE
COMMON STOCK OF ACCESSPOINT CORPORATION
This certifies that NORMAN C. KRISTOFF (the "Holder"), or its registered
assigns, for value received, is entitled to purchase from ACCESSPOINT
CORPORATION (the "Company") Eight Thousand (8,000) shares of the Company's
Common Stock (the "Common Stock") for a per share exercise price equal to $6.00
(the "Per Share Exercise Price"). This right may be exercised at any time from
the date hereof up to and including 5:00 p.m. (New York City time) on May 16,
2005 (the "Expiration Date"), upon surrender to the Company at its principal
office (or at such other location as the Company may advise the Holder in
writing) of this warrant, properly endorsed, with the Notice of Exercise and
Subscription Form attached hereto duly filled in and signed, if applicable, and
upon payment in cash or other form of good and immediately available funds
reasonably satisfactory to the Company of the aggregate Per Share Exercise Price
for the full number of shares for which this warrant is being exercised.
1. ISSUANCE OF CERTIFICATES.
Certificates for the shares of Common Stock acquired upon exercise of this
warrant, together with any other securities or property to which the Holder is
entitled upon such exercise, will be delivered to the Holder by the Company at
the Company's expense within a reasonable time after this warrant has been so
exercised and payment of the full Per Share Exercise Price has been delivered to
the Company as set forth above and such funds have been confirmed to the account
of the Company.
Each stock certificate so delivered will be in such denominations of Common
Stock as may be requested by the Holder and will be registered in the name of
the Holder. In case of a purchase of less than all the shares that may be
purchased under this warrant, the Company will cancel this warrant and execute
and deliver a new warrant or warrants of like tenor for the balance of the
shares purchasable under this warrant to the Holder within a reasonable time
after surrender of this warrant.
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2. SHARES FULLY-PAID, NONASSESSABLE, ETC.
All shares of Common Stock issued upon exercise of this warrant will, upon
issuance, be duly authorized, validly issued, fully-paid and nonassessable and
free of all taxes, liens and charges with respect to the issue thereof. The
Company will use reasonable commercial efforts to reserve and keep available out
of its authorized but unissued shares of Common Stock, solely for the purpose of
effecting the exercise of this warrant, such number of its shares of Common
Stock as from time to time are sufficient to effect the full exercise of this
warrant. If at any time the number of authorized but unissued shares of Common
Stock are not sufficient to effect the exercise of this warrant, the Company
will use reasonable commercial efforts to take such corporate action as may, in
the opinion of its counsel, be reasonably necessary to increase its authorized
but unissued shares of Common Stock to such number of shares as are sufficient
for such purpose.
3. ADJUSTMENTS.
3.1 Adjustment for Stock Splits and Combinations. If the Company at any
time or from time to time during the term of this warrant effects a subdivision
of the outstanding Common Stock, the Per Share Exercise Price in effect
immediately before that subdivision will be proportionately decreased.
Conversely, if the Company at any time or from time to time during the term of
this warrant combines the outstanding shares of Common Stock into a smaller
number of shares, the Per Share Exercise Price in effect immediately before the
combination will be proportionately increased. Any adjustment under this Section
3.1 will become effective at the close of business on the date the subdivision
or combination becomes effective.
3.2 Adjustment for Reclassification, Exchange and Substitution. If at any
time or from time to time during the term of this warrant the Common Stock
issuable upon the exercise of this warrant is changed into the same or a
different number of shares of any class or classes of stock, whether by
recapitalization, reclassification or otherwise (other than a recapitalization,
subdivision, combination, reclassification or exchange provided for elsewhere in
this Section 3), the Holder will have the right thereafter to exercise this
warrant for the kind and amount of stock and other securities and property
receivable upon such recapitalization, reclassification or other change into
which the shares of Common Stock issuable upon exercise of this warrant
immediately prior to such recapitalization, reclassification or change could
have been converted, all subject to further adjustment as provided herein or
with respect to such other securities or property by the terms thereof.
3.3 Reorganizations. If at any time or from time to time ring the term of
this warrant there is a capital reorganization of the Common Stock (other than a
recapitalization, subdivision, combination, reclassification or exchange
provided for elsewhere in this Section 3), as a part of such capital
reorganization, provision will be made so that the Holder will thereafter be
entitled to receive upon exercise of this warrant the number of shares of stock
or other
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securities or property of the Company to which a holder of the number of shares
of Common Stock deliverable upon exercise of this warrant would have been
entitled on such capitalization reorganization, subject to adjustment in respect
of such stock or securities by the terms thereof.
4. REGISTRATION.
4.1 Piggy-Back Registrations. (a) If, at any time, the Company shall
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determine to register for its own account or the account of others under the
Securities Act (including pursuant a demand for registration of any stockholder
of the Company) any of its equity securities, other than on Form S-4 or Form S-8
or their then equivalents relating to shares of Common Stock to be issued solely
in connection with any acquisition of any entity or business or shares of Common
Stock issuable in connection with stock option or other employee benefit plans,
it shall send to each Holder of the shares issued or issuable written notice of
such determination and, if within fifteen (15) days after receipt of such
notice, such Holder of the Registrable Shares shall so request in writing, the
Company shall use its best efforts to include in such registration statement all
or any part of the Registrable Shares such holder requests to be registered,
except that if; in connection with the initial public offering of the Company,
the managing underwriter shall impose a limitation on the number of shares of
such Common Stock which may be included in the registration statement because,
in its judgment, such limitation is necessary to effect an orderly public
distribution, then the Company shall be obligated to include in such
registration statement only such limited portion of the Registrable Shares with
respect to which such holder has requested inclusion hereunder. Any exclusion of
Registrable Shares shall be made pro rata among the Holders of the Option Shares
(or their assigns who are entitled to and have requested registration under this
Section 4.1) seeking to include Registrable Shares, in proportion to the number
of Registrable Shares sought to be included by such Holders of the Registrable
Shares (or their assigns who are entitled to and have requested registration
under this Section 4.1); provided, however, that the Company shall not exclude
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any Registrable Shares unless the Company has first excluded all outstanding
securities the holders of which are not entitled by right to inclusion of
securities in such registration statement; and provided further, however, that
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any exclusion of Registrable Shares shall be made pro rata with holders of other
securities having the right to include such securities in the registration
statement. The obligations of the Company to Holders of the Registrable Shares
under this Section 4 may be waived by Holders of the Registrable Shares at any
time. For purposes of this warrant, "Registrable Shares" shall mean such number
of common stock issued or issuable upon exercise of this warrant or any other
shares of Common Stock acquired by the Holders of the warrants by virtue of
their ownership of such warrants.
4.2 Provisions Applicable to Registration. The following provisions shall
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apply, as applicable, in connection with the Holders of the Registrable Shares
to be included in the registration statement pursuant to this Section 4:
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(a) The holders of the Registrable Shares, if reasonably requested by
the Company or by the underwriter with respect to any public offering, shall
agree not to sell, make any short sale of, loan, grant any options for the
purchase of, or otherwise dispose of any Registrable Shares (other than those
included in the registration) without the prior written consent of the Company
or such underwriters, as the case may be, for such period of time (not to exceed
one hundred eighty (180) days), from the effective date of such registration
statement, or the commencement of the offering, as applicable, as may be
requested by the underwriters, provided that all other holders of the class of
securities being registered shall make the same agreements as those required to
be made by the holders of the Registrable Shares under this Section 4.2(a).
(b) The holders of the Registrable Shares shall promptly provide the
Company with such non-confidential and non-proprietary information as it shall
reasonably request and that is available to the holders of the Registrable
Shares in order to prepare the registration statement.
(c) The Company shall be responsible for reasonable and necessary
expenses incurred by the Company in connection with the preparation of the
registration statement, including, without limitation, the Company's legal,
accounting and filing fees, but not including fees and disbursements of experts
and counsel retained by the holders of the Registrable Shares or underwriting
discounts and commissions to be paid by the holders of the Registrable Shares.
(d) Indemnification.
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(i) In the event of a registration or qualification of any
Registrable Shares under the Securities Act pursuant to the provisions of this
Section 4, the Company shall indemnify and hold harmless the holders of the
Registrable Shares, the officers and directors of the holders of the Registrable
Shares and each officer and director of any person or entity who controls the
holders of the Registrable Shares, each underwriter of such Registrable Shares
and each other person or entity who controls the holders of the Registrable
Shares or such underwriter within the meaning of the Securities Act
(collectively, the "Indemnitees"), from and against any and all losses, claims,
damages or liabilities, joint or several, to which any of the Indemnitees, joint
or several, may become subject under the Securities Act or the applicable
securities laws or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (x)
any untrue statement or alleged untrue statement of any material fact contained
in any registration statement under which such Registrable Shares were
registered or qualified under the Securities Act, or any amendment or supplement
thereto, any preliminary prospectus or final prospectus contained therein, or
any supplement thereto, or any document prepared and/or furnished to the holders
of the Registrable Shares incident to the registration or qualification of any
Registrable Shares, attributable to or originating from the Company, or (y) the
omission or alleged omission to state in any registration statement a material
fact required to be stated therein or necessary to make the statements therein
not misleading or, with respect to any prospectus, necessary to make the
statements therein, in
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light of the circumstances under which they were made, not misleading, and for
which the Company is or was responsible, and in each case shall reimburse the
Indemnitees for any legal or other expenses reasonably incurred by such
Indemnitees in connection with investigating or defending any such loss, claim,
damage or liability (or action in respect thereof). Notwithstanding the
foregoing, the Company shall not be liable in any such case to the extent that
any such loss, claim, damage or liability (or action in respect thereof) arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement in reliance
upon and in conformity with information furnished to the Company by such
Indemnitees; and provided further, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability (or
action in respect thereof) arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission in such registration
statement, which untrue statement or alleged untrue statement or omission or
alleged omission is completely corrected in an amendment or supplement to the
registration statement.
(ii) In the event of the registration or qualification of any
Registrable Shares under the Securities Act pursuant to the provisions of this
Section 4, the holders of the Registrable Shares severally and not jointly shall
indemnify and hold harmless the Company, each person who controls the Company
within the meaning of the Securities Act, each officer and director of the
Company and any other selling holder, each underwriter of such Registrable
Shares and each other person or entity who controls the holders of the
Registrable Shares or such underwriter within the meaning of the Securities Act
(collectively, the "Indemnitees"), from and against any and all losses, claims,
damages or liabilities to which any of the Indemnitess, joint or several, may
become subject under the Securities Act or the applicable securities laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (x) any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such Registrable Shares were registered or qualified under
the Securities Act, or any amendment or supplement thereto, any preliminary
prospectus or final prospectus contained therein, or any supplement thereto, or
any document prepared and/or furnished to the Company incident to the
registration or qualification of any Registrable Shares, attributable to or
originating from the holders of the Registrable Shares, or (y) 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, which untrue
statement or alleged untrue statement or omission or alleged omission was made
therein in reliance upon and in conformity with written information furnished to
the Company by the holders of the Registrable Shares or for which the holders of
the Registrable Shares is or were otherwise responsible, and in each case shall
reimburse the Indemnitees for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage
or liability (or action in respect thereof).
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6. TAXES.
The Company shall not become obligated for or pay any taxes imposed upon
the Holders by reason of the issuance of this warrant or the exercise hereof or
otherwise in connection with the shares of Common Stock to be issued upon
exercise of this warrant. Notwithstanding the foregoing, the Company may
withhold from any shares of Common Stock to be issued upon exercise of this
warrant such amounts as may be reasonably required to satisfy any backup
withholding or other withholding obligation of the Company with regard to the
issuance of this warrant or the exercise hereof or otherwise in connection with
the shares of Common Stock to be issued upon exercise of this warrant.
7. NO VOTING OR DIVIDEND RIGHTS; LIMITATION OF LIABILITY.
Nothing contained in this warrant will be construed as conferring upon the
Holder the right to vote or to consent or to receive notice as a shareholder of
the Company or any other matters or any rights whatsoever as a shareholder of
the Company. No dividends or interest will be payable or accrued in respect of
this warrant or the interest represented hereby or the shares purchasable
hereunder until, and only to the extent that, this warrant has been exercised.
8. WARRANTS TRANSFERABLE.
Subject to compliance with applicable Federal and state securities laws and
the restrictions imposed by any other written agreement between the Holder and
the Company, this warrant and all rights hereunder are transferable, in whole or
in part, without charge to the Holder (except for transfer taxes), upon
surrender of this warrant properly endorsed and in compliance with the
provisions of this warrant.
9. MODIFICATION AND WAIVER.
This warrant and any provision hereof may be changed, waived, discharged or
terminated only by an instrument in writing signed by the party against which
enforcement of the same is sought.
10. NOTICES.
Any notice required by the provisions of this warrant will be in writing
and will be deemed effectively given: (a) upon personal delivery to the party to
be notified; (b) when sent by confirmed telex or facsimile if sent during normal
business hours of the recipient; if not, then on
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the next business day; (c) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid; or (d) one (1) day
after deposit with a nationally recognized overnight courier, specifying next
day delivery, with written verification of receipt. All notices will be
addressed to the Holder at the address of the Holder appearing on the books of
the Company.
11. LOST WARRANTS.
Upon receipt of evidence reasonably satisfactory to the Company of the
loss, theft, destruction, or mutilation of this warrant, and upon receipt of an
indemnity, surety, undertaking or security reasonably satisfactory to the
Company (and in the case of any such mutilation upon surrender and cancellation
of the original mutilated warrant), the Company shall, in accordance with
applicable law, make and deliver a new warrant, of like tenor, in lieu of the
lost, stolen, destroyed or mutilated warrant. The Company may, as a condition
precedent to making or delivering a new warrant, reasonably require that the
Holder make and deliver to the Company an affidavit or declaration made under
penalty of perjury, as to the loss, theft, destruction, or mutilation of this
warrant.
12. FRACTIONAL SHARES.
No fractional shares of Common Stock will be issued upon exercise of this
warrant. If the conversion would result in the issuance of any fractional share,
the Company may, in lieu of issuing any fractional share, pay cash equal to the
product of such fraction multiplied by the closing bid price of the Company's
Common Stock on the date of conversion.
13. GOVERNING LAW; VENUE.
This warrant will be construed and enforced in accordance with, and the
rights of the parties will be governed by, the laws of the State of California
without regard to conflict of laws principles. Venue in any action arising by
reason of this warrant shall lie exclusively in Orange County, California.
14. JURISDICTION
Each party hereby irrevocably submits to the exclusive jurisdiction and
venue of the Superior Court of Orange County, California, in any action, suit or
proceeding arising out of or relating to this warrant or any of the transactions
contemplated hereby, and agrees that any such action, suit or proceeding shall
be brought only in such court. Each party hereby irrevocably waives, to the
fullest extent permitted by law, any objection that it may now or hereafter have
to the laying of the venue of any such action, suit or proceeding brought in
such a court and any
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claim that any such action, suit or proceeding brought in such a court has been
brought in an inconvenient forum.
This warrant is made effective as of this 16th day of May, 2000.
ACCESSPOINT CORPORATION
By: ________________________________
Name: Tom M. Djokovich
Title: Chief Executive Officer
Accesspoint Corporation
38 Executive Park, Suite 350
Irvine, CA 92614
HOLDER
By: ________________________________
Name: Norman C. Kristoff
201 West 21/st/ Street, Apt. 8J
New York, N.Y. 10011
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EXHIBIT A TO WARRANT
SUBSCRIPTION FORM
AND
NOTICE OF EXERCISE
Date: _____________________
Accesspoint Corporation
Attn: President
Ladies and Gentlemen:
The undersigned ("Holder") hereby elects to exercise the warrant issued to
it by Accesspoint Corporation (the "Company") dated as of ___________________
and to purchase thereunder ____________________ (_________) shares of the Common
Stock of the Company at a purchase price of _________________ ($_________) per
Share, for an aggregate purchase price of _____________________ ($___________)
(the "Purchase Price").
Pursuant to the terms of the warrant the undersigned has delivered the Purchase
Price herewith in full in cash or other form of good and immediately available
funds reasonably satisfactory to the Company. Exercise of the warrant shall not
be deemed effective unless and until good and immediately available funds in the
full amount of the Purchase Price have been confirmed in the account of the
Company.
The original warrant shall be presented with this Subscription Form and
Notice of Exercise.
The Company may, in its discretion, withhold a portion of some or all of
the exercised shares or other amounts for the payment of taxes or other items.
Holder represents that Holder is not subject to any backup withholding
requirements. Holder acknowledges that the shares of stock of the Company
issued upon exercise will not be entitled to any dividend declared upon such
stock prior to the effective date of exercise of the warrant.
Holder hereby constitutes this Subscription Form and Notice of Exercise as
an assignment, deposit tender, and transfer in blank of the warrant as set forth
therein. Holder hereby irrevocably constitutes and appoints the secretary of
the Company as Holder's attorney in fact to issue shares upon the exercise of
the warrant and reflect the same on the books and
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records of the Company, cancel the warrant, issue a new warrant, if applicable,
and perform any necessary act on behalf of Holder, with full power substitution.
Very truly yours,
_____________________________________
By: __________________________________
Title: _________________________________
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