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THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
STATE LAWS, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED,
OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS
COVERING ANY SUCH TRANSACTION OR SUCH TRANSACTION IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND LAWS, SUCH COMPLIANCE, AT THE OPTION
OF THE CORPORATION, TO BE EVIDENCED BY AN OPINION OF WARRANTHOLDER'S COUNSEL,
IN FORM ACCEPTABLE TO THE CORPORATION, THAT NO VIOLATION OF SUCH REGISTRATION
PROVISIONS WOULD RESULT FROM ANY PROPOSED TRANSFER OR ASSIGNMENT.
COMMON STOCK PURCHASE WARRANT
FREESHOP INTERNATIONAL, INC.
THIS CERTIFIES that for good and valuable consideration received,
Employco, an individual or corporation or registered assign(s), is entitled,
upon the terms and subject to the conditions hereinafter set forth, to acquire
from FreeShop International, Inc., a Washington corporation (the "Corporation")
up to twenty five thousand (25,000) fully paid and nonassessable shares of
common stock, without par value, of the Corporation ("Warrant Stock") at a
purchase price per share (the "Exercise Price") of $0.41.
1. TERM OF WARRANT
Subject to the terms and conditions set forth herein, this Warrant shall
be exercisable, in whole or from time to time part, at any time on or after the
date hereof and at or prior to 11:59 p.m., Pacific Time, on January 23, 2002
(the "Expiration Time"). Notwithstanding the foregoing, at any time the
Corporation shall have the right, except as may be limited by law, other
agreements or herein, to call this Warrant for exercise, in whole or in part,
by mailing written notice by United States mail to the registered holder hereof
if the Corporation completes a private placement or public offering of the
Corporation's common stock for an aggregate offering price of seven million,
five hundred thousand dollars ($7,500,000.00) at a price per share equal to or
greater than five dollars ($5.00) per share, as adjusted pursuant to Section 10
hereof. In such event, this Warrant shall expire and cease to be exercisable at
11:59 p.m. Pacific Time, of the twenty-first day after the date of mailing of
the notice.
2. EXERCISE OF WARRANT
The purchase rights represented by this Warrant are exercisable by the
registered holder hereof, in whole or in part, at any time and from time to
time at or prior to the Expiration Time by the surrender of this Warrant and
the Notice of Exercise form attached hereto duly executed to the office of the
Corporation at 2815 2nd Avenue, Suite 398, Seattle, Washington 98121 (or such
other office or agency of the Corporation as it may designate by notice in
writing to the registered holder hereof at the address of such holder appearing
on the books of the Corporation), and upon payment of the Exercise Price for
the shares thereby purchased (by cash or by check or bank draft payable to the
order of the Corporation or by cancellation of indebtedness of the Corporation
to the holder hereof, if any, at the time of exercise in an amount equal to the
purchase price of the shares thereby purchased whereupon the holder of this
Warrant shall be entitled to receive from the Corporation a stock certificate
in proper form representing the number of shares of Warrant Stock so purchased.
3. ISSUANCE OF SHARES: NO FRACTIONAL SHARES OF SCRIP
Certificates for shares purchased hereunder shall be delivered to the
holder hereof by the Corporation's transfer agent at the Corporation's expense
within a reasonable time after the date on which this Warrant shall have been
exercised in accordance with the terms hereof. Each certificate so delivered
shall be in such denominations as may be requested by the holder hereof and
shall be registered in the name of such holder or, subject to applicable
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laws, other name as shall be requested by such holder. If, upon exercise of
this Warrant, fewer than all of the shares of Warrant Stock evidenced by this
Warrant are purchased prior to the Expiration Time, one or more new warrants
substantially in the form of, and on the terms in, this Warrant will be issued
for the remaining number of shares of Warrant Stock not purchased upon exercise
of this Warrant. The Corporation hereby represents and warrants that all shares
of Warrant Stock which may be issued upon the exercise of this Warrant will,
upon such exercise, be duly and validly authorized and issued, fully paid and
nonassessable and free from all taxes, liens and charges in respect of the
issuance thereof (other than liens or charges created by or imposed upon the
holder of the Warrant Stock). The Corporation agrees that the shares so issued
shall be and be deemed to be issued to such holder as the record owner of such
shares as of the close of business on the date on which this Warrant shall have
been surrendered for exercise in accordance with the terms hereof. No
fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant. With respect to any fraction of a share called
for upon the exercise of this Warrant, an amount equal to such fraction
multiplied by the then current price at which each share maybe purchased
hereunder shall be paid in cash to the holder of this Warrant.
4. CHARGES, TAXES AND EXPENSES
Issuance of certificates for shares of Warrant Stock upon the exercise of
this Warrant shall be made without charge to the holder hereof for any issue or
transfer tax or other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be paid by the Corporation,
and such certificates shall be issued in the name of the holder of this Warrant
or in such name as may be directed by the holder of this Warrant; provided,
however, that in the event certificates for shares of Warrant Stock are to be
issued in a name other than the name of the holder of this Warrant, this
Warrant when surrendered for exercise shall be accompanied by the Assignment
Form attached hereto duly executed by the holder hereof.
5. NO RIGHTS AS SHAREHOLDERS
This Warrant does not entitle the holder hereof of any voting rights as a
shareholder of the Corporation prior to the exercise hereof.
6. EXCHANGE AND REGISTRY OF WARRANT
This Warrant is exchangeable, upon the surrender hereof by the registered
holder at the above-mentioned office or agency of the Corporation, for a new
Warrant of like tenor and dated as of such exchange. The Corporation shall
maintain at the above-mentioned office or agency a registry showing the name
and address of the registered holder of this Warrant. This Warrant may be
surrendered for exchange, transfer or exercise, in accordance with its terms,
at such office or agency of the Corporation, and the Corporation shall be
entitled to rely in all respects, prior to written notice to the contrary, upon
such registry.
7. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT
Upon receipt by the Corporation of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and in case of
loss, theft or destruction of indemnity or security reasonably satisfactory to
it, and upon reimbursement to the Corporation of all reasonable expenses
incidental thereto, and upon surrender and cancellation of this Warrant, if
mutilated, the Corporation will make and deliver a new Warrant of like tenor
and dated as of such cancellation, in lieu of this Warrant.
8. SATURDAYS, SUNDAYS AND HOLIDAYS
If the last or appointed day for the taking of any action or the
expiration of any right required or granted herein shall be a Saturday or a
Sunday or shall be a legal holiday, then such action may be taken or such right
may be exercised on the next succeeding day not a Saturday, Sunday or legal
holiday.
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9. MERGER, SALE OF ASSETS, ETC.
If at any time the Corporation proposes to merge or consolidate with or
into any other corporation, effect any reorganization, or sell or convey all or
substantially all of its assets to any other entity, then, as a condition of
such reorganization, consolidation, merger, sale or conveyance, the Corporation
or its successor, as the case may be, shall enter into a supplemental agreement
to make lawful and adequate provision whereby the holder shall have the right
to receive, upon exercise of the Warrant, the kind and amount of equity
securities which would have been received upon such reorganization,
consolidation, merger, sale or conveyance by a holder of a number of shares of
common stock equal to the number of shares issuable upon exercise of the
Warrant immediately prior to such reorganization, consolidation, merger, sale
or conveyance. If the property to be received upon such reorganization,
consolidation, merger, sale or conveyance is not equity securities, the
Corporation shall give the holder of this Warrant ten (10) business days prior
written notice of the proposed effective date of such transaction, and if this
Warrant has not been exercised by or on the effective date of such transaction,
it shall terminate.
10. SUBDIVISION, COMBINATION, RECLASSIFICATION, CONVERSION, ETC.
If the Corporation at any time shall, by subdivision, combination,
reclassification of securities or otherwise, change the Warrant Stock into the
same or a different number of securities of any class or classes, this Warrant
shall thereafter entitle the holder to acquire such number and kind of
securities as would have been issuable in respect of the Warrant Stock (or
other securities which were subject to the purchase rights under this Warrant
immediately prior to such subdivision, combination, reclassification or other
change) as the result of such change if this Warrant had been exercised in full
for cash immediately prior to such change. The Exercise Price hereunder shall
be adjusted if and to the extent necessary to reflect such change. If the
Warrant Stock or other securities issuable upon exercise hereof are subdivided
or combined into a greater or smaller number of shares of such security, the
number of shares issuable hereunder shall be proportionately increased or
decreased, as the case may be, and the Exercise Price shall be proportionately
reduced or increased, as the care may be, in both cases according to the ratio
which the total number of shares of such security to be outstanding immediately
after such even bears to the total number of shares of such security
outstanding immediately prior to such event. The Corporation shall give the
holder prompt written notice of any change in the type of securities issuable
hereunder, any adjustment of the Exercise Price for the securities issuable
hereunder, and any increase or decrease in the number of shares issuable
hereunder.
11. TRANSFERABILITY; COMPLIANCE WITH SECURITIES LAWS
(a) This Warrant may not be transferred or assigned in whole or in part
without compliance with all applicable federal and state securities laws by the
transferor and transferee (including the delivery of investment representation
letters and legal opinions reasonably satisfactory to the Corporation, if
requested by the Corporation). Subject such restrictions, prior to the
Expiration Time, this Warrant and all rights hereunder are transferable by the
holder hereof, in whole or in part, at the office or agency of the Corporation
referred to in Section 1 hereof. Any such transfer shall be made in person or
by the holder's duly authorized attorney, upon surrender of this Warrant
together with the Assignment Form attached hereto properly endorsed.
(b) The Holder of this Warrant, by acceptance hereof, acknowledges that
this Warrant and the Warrant Stock issuable upon exercise hereof are being
acquired solely for the holder's own account and not as a nominee for any other
party, and for investment and that the holder will not offer, sell or otherwise
dispose of this Warrant or any shares of Warrant Stock to be issued upon
exercise hereof except under circumstances that will not result in a violation
of the Securities Act of 1933, as amended, or any state securities laws. Upon
exercise of this Warrant, the holder shall, if requested by the Corporation,
confirm in writing, in a form satisfactory to the Corporation, that the shares
of Warrant Stock so purchased are being acquired solely for holder's own
account and not as a nominee for any other party, for investment and not with a
view toward distribution or resale.
(c) The Warrant Stock has not been and will not be registered under the
Securities Act of 1933, as amended, and this Warrant may not be exercised
except by (i) the original purchaser of this Warrant from the
Corporation or (ii) an "accredited investor" as defined in Rule 501(a) under
the Securities Act of 1933, as amended. Each certificate representing the
Warrant Stock or other securities issued in respect of the Warrant Stock upon
any stock split, stock dividend, recapitalization, merger, consolidation or
similar event, shall be stamped or otherwise
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imprinted with a legend substantially in the following form (in addition to any
legend required under applicable securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER UNITED
STATES FEDERAL OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD
OR OTHERWISE TRANSFERRED OR ASSIGNED FOR VALUE, DIRECTLY OR INDIRECTLY, NOR MAY
THE SECURITIES BE TRANSFERRED ON THE BOOKS OF THE CORPORATION, WITHOUT
REGISTRATION OF SUCH SECURITIES UNDER ALL APPLICABLE UNITED STATES FEDERAL OR
STATE SECURITIES LAWS OR COMPLIANCE WITH AN APPLICABLE EXEMPTION THEREFROM,
SUCH COMPLIANCE, AT THE OPTION OF THE CORPORATION, TO BE EVIDENCED BY AN
OPINION OF SHAREHOLDER'S COUNSEL, IN FORM ACCEPTABLE TO THE CORPORATION, THAT
NO VIOLATION OF SUCH REGISTRATION PROVISIONS WOULD RESULT FROM ANY PROPOSED
TRANSFER OR ASSIGNMENT.
12. REPRESENTATIONS AND WARRANTIES
The Corporation hereby represents and warrants to the holder hereof that:
(a) during the period this Warrant is outstanding, the Corporation will
reserve from its authorized and unissued common stock a sufficient number of
shares to provide for the issuance of Warrant Stock upon the exercise of this
Warrant;
(b) the issuance of this Warrant shall constitute full authority to the
Corporation's officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for the shares of
Warrant Stock issuable upon exercise of this Warrant;
(c) the Corporation has all requisite legal and corporate power to
execute and deliver this Warrant, to sell and issue the Warrant Stock
hereunder, to issue the common stock issuable upon exercise of the Warrant
Stock and to carry out and perform its obligations under the terms of this
Warrant;
(d) all corporate action on the part of the Corporation, its directors
and shareholders necessary for the authorization, execution, delivery and
performance of this Warrant by the Corporation, the authorization, sale,
issuance and delivery of the Warrant Stock, the grant of registration rights as
provided herein and the performance of the Corporation's obligations hereunder
has been taken.
(e) the Warrant Stock, when issued in compliance with the provisions of
this Warrant and the Corporation's Articles of Incorporation (as they may be
amended from time to time (the "Articles")), will be validly issued, fully paid
and nonassessable, and free of all taxes, liens or encumbrances with respect to
the issue thereof and will be issued in compliance with all applicable federal
and state securities laws; and
(f) the issuance of the Warrant Stock will not be subject to any
preemptive rights, rights of first refusal or similar rights.
13. CORPORATION
The Corporation will not, by amendment of its Articles or through any
reorganization, recapitalization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other action, avoid or seek to
avoid the observance or performance of any of the terms to be observed or
performed hereunder by the Corporation, but will at all times in good faith
assist in the carrying out of all the provisions of this Warrant in the taking
of all such action as may be necessary or appropriate in order to protect the
rights of the holder of the Warrant against impairment.
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14. GOVERNING LAW
This Warrant shall be governed by and construed in accordance with the
laws of the State of Washington.
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be executed
by its duly authorized officers.
Dated: 26 January, 1998
FREESHOP INTERNATIONAL, INC.
/s/ MICHAEL SCHUTZLER
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Michael Schutzler
President & CEO
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NOTICE OF EXERCISE
To: FreeShop International, Inc.
(1) The undersigned hereby elects to purchase _________ shares of common
stock of FreeShop International, Inc. pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price in full, together
with all applicable transfer taxes, if any.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of common stock to be issued upon exercise hereof
are being acquired solely for the account of the undersigned and not as a
nominee for any other party, and for investment, and that the undersigned will
not offer, sell or otherwise dispose of any such shares of common stock except
under circumstances that will not result in a violation of the Securities Act
of 1933, as amended, or any state securities laws.
(3) Please issue a certificate or certificates representing said shares
of common stock in the name of the undersigned or in such other name as is
specified below:
-------------------------------
(Name)
-------------------------------
(Address)
(3) The undersigned represents that (a) he, she or it is the original
purchaser from the Corporation of the attached Warrant or an "accredited
investor" within the meaning of Rule 501(a) under the Securities Act of 1933,
as amended and (b) the aforesaid shares of common stock are being acquired for
the account of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the undersigned
has no present intention of distributing or reselling such shares.
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(Date) (Signature)
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ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required
information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under the within Warrant, with respect to the number
of shares of common stock of FreeShop International, Inc. set forth below:
Name of Assignee Address No. of Shares
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and does hereby irrevocably constitute and appoint Attorney____________________
to make such transfer on the books of FreeShop International, Inc., maintained
for the purpose, with full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof are being acquired for investment and that the Assignee will
not offer, sell or otherwise dispose of this Warrant or any shares of stock to
be issued upon exercise hereof except under circumstances which will not result
in a violation of the Securities Act of 1933, as amended, or any state
securities laws. Further, the Assignee shall, if requested by the Corporation,
confirm in writing, in a form satisfactory to the Corporation, that the shares
of stock so purchased are being acquired for investment and not with a view
toward distribution or resale.
Date:__________________________________
Holder's Signature:____________________
Holder's Address:
_______________________________________
_______________________________________
Guaranteed Signature:
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever, and must be guaranteed by a bank or trust company. Officers of
corporations and those action in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
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