EXHIBIT 10.3
AMENDED WARRANT TO PURCHASE COMMON STOCK
ISSUED TO SWARTZ PRIVATE EQUITY
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF OR EXERCISED UNLESS (i) A REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (ii) AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER.
AN INVESTMENT IN THESE SECURITIES INVOLVES A HIGH DEGREE OF RISK. HOLDERS MUST
RELY ON THEIR OWN ANALYSIS OF THE INVESTMENT AND ASSESSMENT OF THE RISKS
INVOLVED.
Warrant to Purchase
500,000 shares
AMENDED WARRANT TO PURCHASE COMMON STOCK
OF
E-TREND NETWORKS, INC.
THIS CERTIFIES that SWARTZ PRIVATE EQUITY, LLC, or any subsequent
holder hereof pursuant to Section 8 hereof ("Holder") has the right to purchase
from E-Trend Networks, Inc., a Delaware corporation (the "Company"), up to
500,000 fully paid and nonassessable shares of the Company's common stock,
$.0001 par value per share ("Common Stock"), subject to adjustment as provided
herein, at a price equal to the Exercise Price as defined in Section 3 below, at
any time beginning on the Date of Issuance (defined below) and ending at 5:00
p.m., New York, New York time on the date that is five (5) years after the Date
of Issuance (the "Exercise Period"), subject to the provisions set forth in
Section 1 below.
Holder agrees with the Company that this Warrant to Purchase Common
Stock of the Company (this "Warrant") is issued and all rights hereunder shall
be held subject to all of the conditions, limitations and provisions set forth
herein. This Warrant amends and replaces that certain warrant to purchase
400,000 shares of the Company's Common Stock originally issued to Swartz Private
Equity, LLC on or about June 1, 2001.
1. DATE OF ISSUANCE AND TERM.
This Warrant shall be deemed to be issued on September 18, 2001 ("Date
of Issuance"). The term of this Warrant is five (5) years from the Date of
Issuance. Of this Warrant to purchase five hundred thousand (500,000) shares of
common stock of the company, the first 350,000 Warrant Shares (as defined below)
shall be exercisable, in whole or in part, anytime after the Date of Issuance
through September 18, 2006 and the remaining 150,000 Warrant Shares shall be
exercisable, in whole or in part, anytime after the date that a Registration
Statement (as defined below) is filed, through September 18, 2006. For purposes
hereof, "Registration Statement shall mean the Company's registration statement
to be filed pursuant to the Amended and Restated Investment Agreement between
the Company and Swartz Private Equity, LLC dated on or about September 18, 2001
and related documents.
Notwithstanding anything to the contrary herein, the applicable portion
of this Warrant shall not be exercisable during any time that, and only to the
extent that, the number of shares of Common Stock to be issued to Holder upon
such exercise, when
E-Trend Networks (Final 9-18-01) Amended Commitment Warrant.doc
added to the number of shares of Common Stock, if any, that the Holder otherwise
beneficially owns (outside of this Warrant) at the time of such exercise, would
equal or exceed 4.99% of the number of shares of Common Stock then outstanding,
as determined in accordance with Section 13(d) of the Exchange Act (the "4.99%
Limitation"). The 4.99% Limitation shall be conclusively satisfied if the
applicable Exercise Notice includes a signed representation by the Holder that
the issuance of the shares in such Exercise Notice will not violate the 4.99%
Limitation, and the Company shall not be entitled to require additional
documentation of such satisfaction.
2. EXERCISE.
(A) MANNER OF EXERCISE. Subject to the restrictions on exercise in
Section 1 above, during the Exercise Period, this Warrant may be exercised as to
all or any lesser number of full shares of Common Stock covered hereby (the
"Warrant Shares") upon surrender of this Warrant, with the Exercise Form
attached hereto as EXHIBIT A (the "Exercise Form") duly completed and executed,
together with the full Exercise Price (as defined below) for each share of
Common Stock as to which this Warrant is exercised, at the office of the
Company, Attention: Timothy J. Sebastian, General Counsel, 5919 - 3rd Street SE,
Calgary, Alberta, Canada, T2H 1K3; Telephone (403) 252-7766, Facsimile: (403)
252-7752, or at such other office or agency as the Company may designate in
writing, by overnight mail, with an advance copy of the Exercise Form sent to
the Company and its Transfer Agent by facsimile (such surrender and payment of
the Exercise Price hereinafter called the "Exercise of this Warrant").
(B) DATE OF EXERCISE. The "Date of Exercise" of the Warrant shall be
defined as the date that the advance copy of the completed and executed Exercise
Form is sent by facsimile to the Company, provided that the original Warrant and
Exercise Form are received by the Company as soon as practicable thereafter.
Alternatively, the Date of Exercise shall be defined as the date the original
Exercise Form is received by the Company, if Holder has not sent advance notice
by facsimile.
(C) DELIVERY OF SHARES OF COMMON STOCK UPON EXERCISE. Upon any exercise
of this Warrant, the Company shall use its reasonable best efforts to deliver,
or shall cause its transfer agent to deliver, a stock certificate or
certificates representing the number of shares of Common Stock into which this
Warrant was exercised, within five (5) trading days (the "Share Delivery
Deadline") of the date that all of the following have been received by the
Company: (i) the original completed and executed Exercise Form, (ii) the
original Warrant and (iii) the Exercise Price (if applicable)(collectively, the
"Receipt Date"). Such stock certificates shall not contain a legend restricting
transfer if a registration statement covering the resale of such shares of
Common Stock is in effect at the time of such exercise or if such shares of
Common Stock may be resold pursuant to an exemption from registration, including
but not limited to Rule 144 under the Securities Act of 1933.
(D) BUY-IN CURE. If (i) the Company fails for any reason to deliver the
requisite number of shares of Common Stock (unlegended, if so required by the
terms of this Warrant)(the "Warrant Shares") to a Holder upon an exercise of
this Warrant by the Share Delivery Deadline, (ii) the Holder has sold some or
all of the Warrant Shares (the "Sold Shares") which such Holder anticipated
receiving upon such Exercise, and (iii) after the applicable Share Delivery
Deadline with respect to such Exercise, the broker that sold the Sold Shares for
Holder purchases (in an open market transaction or otherwise) shares of Common
Stock to make delivery upon the sale by a Holder of the Sold Shares (a
"Buy-In"), the Company shall pay such Holder within two (2) business days
following receipt of written notice of a claim pursuant to this Section 2(d) (in
addition to any other remedies available to Holder) the amount (a "Buy-In
Payment") by which (x) such
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Holder's total purchase price (including brokerage commission, if any) for the
shares of Common Stock so purchased exceeds (y) the net proceeds received by
such Holder from the sale of the Sold Shares. For example, if a Holder purchases
shares of Common Stock having a total purchase price of $11,000 to cover a
Buy-In with respect to shares of Common Stock sold for $10,000, the Company
will be required to pay such Holder $1,000. A Holder shall provide the Company
written notification indicating any amounts payable to Holder pursuant to this
Section 2(d).
(E) LIQUIDATED DAMAGES. The parties hereto acknowledge and agree that
the sums payable as Buy-In Payments shall give rise to liquidated damages and
not penalties. The parties further acknowledge that (i) the amount of loss or
damages likely to be incurred by the Holder is incapable or is difficult to
precisely estimate, (ii) the amounts specified bear a reasonable proportion and
are not plainly or grossly disproportionate to the probable loss likely to be
incurred by the Investor, and (iii) the parties are sophisticated business
parties and have been represented by sophisticated and able legal and financial
counsel and negotiated this Agreement at arm's length.
(F) CANCELLATION OF WARRANT. This Warrant shall be canceled upon the
Exercise of this Warrant, and, as soon as practical after the Date of Exercise,
Holder shall be entitled to receive Common Stock for the number of shares
purchased upon such Exercise of this Warrant, and if this Warrant is not
exercised in full, Holder shall be entitled to receive a new Warrant (containing
terms identical to this Warrant) representing any unexercised portion of this
Warrant in addition to such Common Stock.
(G) HOLDER OF RECORD. Each person in whose name any Warrant for shares
of Common Stock is issued shall, for all purposes, be deemed to be the Holder of
record of such shares on the Date of Exercise of this Warrant, irrespective of
the date of delivery of the Common Stock purchased upon the Exercise of this
Warrant. Nothing in this Warrant shall be construed as conferring upon Holder
any rights as a stockholder of the Company.
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3. PAYMENT OF WARRANT EXERCISE PRICE.
The Exercise Price per share (the "Exercise Price") shall initially
equal (the "Initial Exercise Price") the lowest Closing Price for the five (5)
trading days immediately preceding September 18, 2001, which is $1.60.
Furthermore, if the Date of Exercise is on or after December 18, 2001,
the Exercise Price shall be reset to equal the lesser of (i) the applicable
Exercise Price then in effect, or (ii) the "Lowest Six Month Reset Price," as
that term is defined below. The Company shall calculate a "Six Month Reset
Price" on December 18, 2001 and on each six-month anniversary date of December
18, 2001 (in each case, if not a trading day, then on the next trading day)
which shall equal the lowest Closing Price of the Company's Common Stock for the
five (5) trading days ending on such six-month anniversary date. The "Lowest Six
Month Reset Price" shall equal the lowest Six Month Reset Price determined on
any six-month anniversary date of December 18, 2001 up through the applicable
Date of Exercise, taking into account, as appropriate, any adjustments made
pursuant to Section 5 hereof. Notwithstanding the above, the Six Month Reset
Price is subject to a floor of $1.25 ("Floor Price"), which Floor Price shall be
adjusted downward in the event of a Forward Stock Split (as defined below).
However, in the case of a Reverse Stock Split (as defined below), the Floor
Price shall not be adjusted upward to account for such Reverse Stock Split, but
shall remain at $1.25.
If, anytime prior to September 18, 2006 (regardless of whether or not
the Company executes an Investment Agreement and regardless of whether or not
the Company later terminates such Investment Agreement), the Company issues
shares of Common Stock, warrants, or options to any party (including but not
limited to officers, directors, employees or consultants of the Company and
including shares issued to Swartz Private Equity, LLC pursuant to the Investment
Agreement) at a price which is less than the applicable Exercise Price then in
effect, the Exercise Price shall automatically reset to equal the lowest price
at which such Common Stock, warrants, or options were issued (the "MFN Reset
Price"). The MFN Reset Price shall not be subject to the Floor Price and may be
less than $1.25.
For purposes hereof, the term "Closing Price" shall mean the closing
price on the Nasdaq Small Cap Market, the National Market System ("NMS"), the
New York Stock Exchange, or the O.T.C. Bulletin Board, or if no longer traded on
the Nasdaq Small Cap Market, the National Market System ("NMS"), the New York
Stock Exchange, or the O.T.C. Bulletin Board, the "Closing Price" shall equal
the closing price on the principal national securities exchange or the
over-the-counter system on which the Common Stock is so traded and, if not
available, the mean of the high and low prices on the principal national
securities exchange on which the Common Stock is so traded.
Payment of the Exercise Price may be made by either of the following,
or a combination thereof, at the election of Holder:
(i) CASH EXERCISE: cash, bank or cashiers check or wire transfer; or
(ii) CASHLESS EXERCISE: The Holder, at its option, may exercise this
Warrant in a cashless exercise transaction under this subsection (ii) if and
only if, on the Date of Exercise, there is not then in effect a current
registration statement that covers the resale of the shares of Common Stock to
be issued upon exercise of this Warrant. In order to effect a Cashless Exercise,
the Holder shall surrender this Warrant at the principal office of the Company
together with notice of cashless election, in which event the Company
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shall issue Holder a number of shares of Common Stock computed using the
following formula:
X = Y (A-B)/A
where: X = the number of shares of Common Stock to be issued to Holder.
Y = the number of shares of Common Stock for which this Warrant is
being exercised.
A = the Market Price of one (1) share of Common Stock (for
purposes of this Section 3(ii), the "Market Price" shall be
defined as the average Closing Price of the Common Stock for
the five (5) trading days prior to the Date of Exercise of
this Warrant (the "Average Closing Price"), as reported by the
O.T.C. Bulletin Board, National Association of Securities
Dealers Automated Quotation System ("Nasdaq") Small Cap
Market, or if the Common Stock is not traded on the Nasdaq
Small Cap Market, the Average Closing Price in any other
over-the-counter market; provided, however, that if the Common
Stock is listed on a stock exchange, the Market Price shall be
the Average Closing Price on such exchange for the five (5)
trading days prior to the date of exercise of the Warrants. If
the Common Stock is/was not traded during the five (5) trading
days prior to the Date of Exercise, then the closing price for
the last publicly traded day shall be deemed to be the closing
price for any and all (if applicable) days during such five
(5) trading day period.
B = the Exercise Price.
For purposes of Rule 144 and sub-section (d)(3)(ii) thereof, it is
intended, understood and acknowledged that the Common Stock issuable upon
exercise of this Warrant in a cashless exercise transaction shall be deemed to
have been acquired at the time this Warrant was issued. Moreover, it is
intended, understood and acknowledged that the holding period for the Common
Stock issuable upon exercise of this Warrant in a cashless exercise transaction
shall be deemed to have commenced on the date this Warrant was issued.
4. TRANSFER AND REGISTRATION.
(a) TRANSFER RIGHTS. Subject to the provisions of Section 8 of this
Warrant, this Warrant may be transferred on the books of the Company, in whole
or in part, in person or by attorney, upon surrender of this Warrant properly
completed and endorsed. This Warrant shall be canceled upon such surrender and,
as soon as practicable thereafter, the person to whom such transfer is made
shall be entitled to receive a new Warrant or Warrants as to the portion of this
Warrant transferred, and Holder shall be entitled to receive a new Warrant as to
the portion hereof retained.
(b) REGISTRABLE SECURITIES. In addition to any other registration
rights of the Holder, if the Common Stock issuable upon exercise of this Warrant
is not registered for resale at the time the Company proposes to register
(including for this purpose a registration effected by the Company for
stockholders other than the Holders) any of its Common Stock under the Act
(other than a registration relating solely for the sale of securities to
participants in a Company stock plan or a registration on Form S-4 promulgated
under the Act or any successor or similar form registering stock issuable upon a
reclassification, upon a business combination involving an exchange of
securities or upon an exchange offer for securities of the issuer or another
entity)(a "Piggyback
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Registration Statement"), the Company shall cause to be included in such
Piggyback Registration Statement ("Piggyback Registration") all of the Common
Stock issuable upon the exercise of this Warrant ("Registrable Securities") to
the extent such inclusion does not violate the registration rights of any other
securityholder of the Company granted prior to the date hereof. Nothing herein
shall prevent the Company from withdrawing or abandoning the Piggyback
Registration Statement prior to its effectiveness.
(c) LIMITATION ON OBLIGATIONS TO REGISTER UNDER A PIGGYBACK
REGISTRATION. In the case of a Piggyback Registration pursuant to an
underwritten public offering by the Company, if the managing underwriter
determines and advises in writing that the inclusion in the registration
statement of all Registrable Securities proposed to be included would interfere
with the successful marketing of the securities proposed to be registered by the
Company, then the number of such Registrable Securities to be included in the
Piggyback Registration Statement, to the extent such Registrable Securities may
be included in such Piggyback Registration Statement, shall be allocated among
all Holders who had requested Piggyback Registration pursuant to the terms
hereof, in the proportion that the number of Registrable Securities which each
such Holder seeks to register bears to the total number of Registrable
Securities sought to be included by all Holders. If required by the managing
underwriter of such an underwritten public offering, the Holders shall enter
into a reasonable agreement limiting the number of Registrable Securities to be
included in such Piggyback Registration Statement and the terms, if any,
regarding the future sale of such Registrable Securities.
5. ANTI-DILUTION ADJUSTMENTS.
(a) STOCK DIVIDEND. If the Company shall at any time declare a dividend
payable in shares of Common Stock, then Holder, upon Exercise of this Warrant
after the record date for the determination of holders of Common Stock entitled
to receive such dividend, shall be entitled to receive upon Exercise of this
Warrant, in addition to the number of shares of Common Stock as to which this
Warrant is exercised, such additional shares of Common Stock as such Holder
would have received had this Warrant been exercised immediately prior to such
record date and the Exercise Price will be proportionately adjusted.
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(b) RECAPITALIZATION OR RECLASSIFICATION.
(i) STOCK SPLIT. If the Company shall at any time effect a
recapitalization, reclassification or other similar transaction of such
character that the shares of Common Stock shall be changed into or become
exchangeable for a LARGER number of shares (a "Stock Split" or a "Forward Stock
Split"), then upon the effective date thereof, the number of shares of Common
Stock which Holder shall be entitled to purchase upon Exercise of this Warrant
shall be increased in direct proportion to the increase in the number of shares
of Common Stock by reason of such recapitalization, reclassification or similar
transaction, and the Exercise Price shall be proportionally decreased.
(ii) REVERSE STOCK SPLIT. If the Company shall at any time
effect a recapitalization, reclassification or other similar transaction of such
character that the shares of Common Stock shall be changed into or become
exchangeable for a SMALLER number of shares (a "Reverse Stock Split"), then upon
the effective date thereof, the number of shares of Common Stock which Holder
shall be entitled to purchase upon Exercise of this Warrant shall be
proportionately decreased and the Exercise Price shall be proportionally
increased. The Company shall give Holder the same notice it provides to holders
of Common Stock of any transaction described in this Section 5(b).
(c) DISTRIBUTIONS. If the Company shall at any time distribute for no
consideration to holders of Common Stock cash, evidences of indebtedness or
other securities or assets (other than cash dividends or distributions payable
out of earned surplus or net profits for the current or preceding years) then,
in any such case, Holder shall be entitled to receive, upon Exercise of this
Warrant, with respect to each share of Common Stock issuable upon such exercise,
the amount of cash or evidences of indebtedness or other securities or assets
which Holder would have been entitled to receive with respect to each such share
of Common Stock as a result of the happening of such event had this Warrant been
exercised immediately prior to the record date or other date fixing shareholders
to be affected by such event (the "Determination Date") or, in lieu thereof, if
the Board of Directors of the Company should so determine at the time of such
distribution, a reduced Exercise Price determined by multiplying the Exercise
Price on the Determination Date by a fraction, the numerator of which is the
result of such Exercise Price reduced by the value of such distribution
applicable to one share of Common Stock (such value to be determined by the
Board of Directors of the Company in its discretion) and the denominator of
which is such Exercise Price.
(d) NOTICE OF CONSOLIDATION OR MERGER AND WARRANT EXCHANGE. The Company
shall not, at any time after the date hereof, effect a merger, consolidation,
exchange of shares, recapitalization, reorganization, or other similar event, as
a result of which shares of Common Stock shall be changed into the same or a
different number of shares of the same or another class or classes of stock or
securities or other assets of the Company or another entity or there is a sale
of all or substantially all the Company's assets (a "Corporate Change"), unless
the resulting successor or acquiring entity (the "Resulting Entity") assumes by
written instrument the Company's obligations under this Warrant, including but
not limited to the Exercise Price reset provisions as provided herein during the
term of the resultant warrants, and agrees in such written instrument that this
Warrant shall be exerciseable into such class and type of securities or other
assets of the Resulting Entity as Holder would have received had Holder
exercised this Warrant immediately prior to such Corporate Change, and the
Exercise Price of this Warrant shall be proportionately increased (if this
Warrant shall be changed into or become exchangeable for a warrant to purchase a
smaller number of shares of Common Stock of the Resulting Entity) or shall be
proportionately decreased (if this Warrant shall be changed or become
exchangeable for a warrant to purchase a larger number of shares of Common Stock
of
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the Resulting Entity); provided, however, that Company may not affect any
Corporate Change unless it first shall have given thirty (30) days notice to
Holder hereof of any Corporate Change.
(e) EXERCISE PRICE ADJUSTED. As used in this Warrant, the term
"Exercise Price" shall mean the purchase price per share specified in Section 3
of this Warrant, until the occurrence of an event stated in subsection (a), (b),
(c) or (d) of this Section 5, and thereafter shall mean said price as adjusted
from time to time in accordance with the provisions of this Warrant. No such
adjustment under this Section 5 shall be made unless such adjustment would
change the Exercise Price at the time by $0.01 or more; provided, however, that
all adjustments not so made shall be deferred and made when the aggregate
thereof would change the Exercise Price at the time by $0.01 or more.
(f) ADJUSTMENTS: ADDITIONAL SHARES, SECURITIES OR ASSETS. In the event
that at any time, as a result of an adjustment made pursuant to this Section 5,
Holder shall, upon Exercise of this Warrant, become entitled to receive shares
and/or other securities or assets (other than Common Stock) then, wherever
appropriate, all references herein to shares of Common Stock shall be deemed to
refer to and include such shares and/or other securities or assets; and
thereafter the number of such shares and/or other securities or assets shall be
subject to adjustment from time to time in a manner and upon terms as nearly
equivalent as practicable to the provisions of this Section 5.
6. FRACTIONAL INTERESTS.
No fractional shares or scrip representing fractional shares shall be
issuable upon the Exercise of this Warrant, but on Exercise of this Warrant,
Holder may purchase only a whole number of shares of Common Stock. If, on
Exercise of this Warrant, Holder would be entitled to a fractional share of
Common Stock or a right to acquire a fractional share of Common Stock, such
fractional share shall be disregarded and the number of shares of Common Stock
issuable upon exercise shall be the next higher number of shares.
7. RESERVATION OF SHARES.
The Company shall at all times reserve for issuance such number of
authorized and unissued shares of Common Stock (or other securities substituted
therefor as herein above provided) as shall be sufficient for the Exercise of
this Warrant and payment of the Exercise Price. The Company covenants and agrees
that upon the Exercise of this Warrant, all shares of Common Stock issuable upon
such exercise shall be duly and validly issued, fully paid, nonassessable and
not subject to preemptive rights, rights of first refusal or similar rights of
any person or entity.
8. RESTRICTIONS ON TRANSFER.
(a) REGISTRATION OR EXEMPTION REQUIRED. This Warrant has been issued in
a transaction exempt from the registration requirements of the Act by virtue of
Regulation D and exempt from state registration under applicable state laws. The
Warrant and the Common Stock issuable upon the Exercise of this Warrant may not
be pledged, transferred, sold or assigned except pursuant to an effective
registration statement or unless the Company has received an opinion from the
Company's counsel to the effect that such registration is not required, or the
Holder has furnished to the Company an opinion of the Holder's counsel, which
counsel shall be reasonably satisfactory to the Company, to the effect that such
registration is not required; the transfer complies with any applicable state
securities laws; and, if no registration covering the resale of the Warrant
Shares is effective at the time the Warrant Shares are issued, the Holder
consents
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to a legend being placed on certificates for the Warrant Shares stating that the
securities have not been registered under the Securities Act and referring
to such restrictions on transferability and sale.
(b) ASSIGNMENT. If Holder can provide the Company with reasonably
satisfactory evidence that the conditions of (a) above regarding registration or
exemption have been satisfied, Holder may sell, transfer, assign, pledge or
otherwise dispose of this Warrant, in whole or in part. Holder shall deliver a
written notice to Company, substantially in the form of the Assignment attached
hereto as EXHIBIT B, indicating the person or persons to whom the Warrant shall
be assigned and the respective number of warrants to be assigned to each
assignee. The Company shall effect the assignment within ten (10) days, and
shall deliver to the assignee(s) designated by Holder a Warrant or Warrants of
like tenor and terms for the appropriate number of shares.
9. BENEFITS OF THIS WARRANT.
Nothing in this Warrant shall be construed to confer upon any person
other than the Company and Holder 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 Holder.
10. APPLICABLE LAW; ARBITRATION.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Georgia applicable to agreements made in and wholly to
be performed in that jurisdiction, except for matters arising under the Act or
the Securities Exchange Act of 1934, which matters shall be construed and
interpreted in accordance with such laws. Any controversy or claim arising out
of or related to this Warrant or the breach thereof, shall be settled by binding
arbitration in Atlanta, Georgia in accordance with the Expedited Procedures
(Rules 53-57) of the Commercial Arbitration Rules of the American Arbitration
Association ("AAA"). A proceeding shall be commenced upon written demand by
Company or any Investor to the other. The arbitrator(s) shall enter a judgment
by default against any party, which fails or refuses to appear in any properly
noticed arbitration proceeding. The proceeding shall be conducted by one (1)
arbitrator, unless the amount alleged to be in dispute exceeds two hundred fifty
thousand dollars ($250,000), in which case three (3) arbitrators shall preside.
The arbitrator(s) will be chosen by the parties from a list provided by the AAA,
and if they are unable to agree within ten (10) days, the AAA shall select the
arbitrator(s). The arbitrators must be experts in securities law and financial
transactions. The arbitrators shall assess costs and expenses of the
arbitration, including all attorneys' and experts' fees, as the arbitrators
believe is appropriate in light of the merits of the parties' respective
positions in the issues in dispute. Each party submits irrevocably to the
jurisdiction of any state court sitting in Atlanta, Georgia or to the United
States District Court sitting in Georgia for purposes of enforcement of any
discovery order, judgment or award in connection with such arbitration. The
award of the arbitrator(s) shall be final and binding upon the parties and may
be enforced in any court having jurisdiction. The arbitration shall be held in
such place as set by the arbitrator(s) in accordance with Rule 55.
Although the parties, as expressed above, agree that all claims,
including claims that are equitable in nature, for example specific performance,
shall initially be prosecuted in the binding arbitration procedure outlined
above, if the arbitration panel dismisses or otherwise fails to entertain any or
all of the equitable claims asserted by reason of the fact that it lacks
jurisdiction, power and/or authority to consider such claims and/or direct the
remedy requested, then, in only that event, will the parties have the right to
initiate litigation respecting such equitable claims or remedies. The forum for
such equitable relief shall be in either a state or federal court sitting in
Atlanta, Georgia. Each
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party waives any right to a trial by jury, assuming such right exists in an
equitable proceeding, and irrevocably submits to the jurisdiction of said
Georgia court.
11. LOSS OF WARRANT.
Upon receipt by the Company of evidence of the loss, theft, destruction
or mutilation of this Warrant, and (in the case of loss, theft or destruction)
of indemnity or security reasonably satisfactory to the Company, and upon
surrender and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver a new Warrant of like tenor and date.
12. NOTICE OR DEMANDS.
Notices or demands pursuant to this Warrant to be given or made by
Holder to or on the Company shall be sufficiently given or made if sent by
certified or registered mail, return receipt requested, postage prepaid, and
addressed, until another address is designated in writing by the Company, to the
address set forth in Section 2(a) above. Notices or demands pursuant to this
Warrant to be given or made by the Company to or on Holder
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shall be sufficiently given or made if sent by certified or registered mail,
return receipt requested, postage prepaid, and addressed, to the address of
Holder set forth in the Company's records, until another address is designated
in writing by Holder.
IN WITNESS WHEREOF, the undersigned has executed this Warrant as of the
18TH day of September, 2001.
E-TREND NETWORKS, INC.
By: /s/ Timothy J. Sebastian
-------------------------------------------
Timothy J. Sebastian, General Counsel
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EXHIBIT A
EXERCISE FORM FOR WARRANT
TO: E-TREND NETWORKS, INC.
The undersigned hereby irrevocably exercises the right to purchase
____________ of the shares of Common Stock (the "Common Stock") of E-Trend
Networks, Inc. a Delaware corporation (the "Company"), evidenced by the attached
warrant (the "Warrant"), and herewith makes payment of the exercise price with
respect to such shares in full, all in accordance with the conditions and
provisions of said Warrant.
1. The undersigned agrees not to offer, sell, transfer or otherwise dispose of
any of the Common Stock obtained on exercise of the Warrant, except in
accordance with the provisions of Section 8(a) of the Warrant.
2. The undersigned requests that stock certificates for such shares be issued
free of any restrictive legend, if appropriate, and a warrant representing any
unexercised portion hereof be issued, pursuant to the Warrant in the name of the
undersigned and delivered to the undersigned at the address set forth below:
Dated: __________________
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Signature
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Print Name
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Address
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NOTICE
The signature to the foregoing Exercise Form must correspond to the name as
written upon the face of the attached Warrant in every particular, without
alteration or enlargement or any change whatsoever.
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E-Trend Networks (Final 9-18-01) Amended Commitment Warrant.doc
EXHIBIT B
ASSIGNMENT
(To be executed by the registered holder
desiring to transfer the Warrant)
FOR VALUE RECEIVED, the undersigned holder of the attached warrant (the
"Warrant") hereby sells, assigns and transfers unto the person or persons below
named the right to purchase ______________ shares of the Common Stock of E-Trend
Networks, Inc., evidenced by the attached Warrant and does hereby irrevocably
constitute and appoint ___________________________ attorney to transfer the said
Warrant on the books of the Company, with full power of substitution in the
premises.
Dated:
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Signature
Fill in for new registration of Warrant:
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Name
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Address
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Please print name and address of assignee
(including zip code number)
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NOTICE
The signature to the foregoing Assignment must correspond to the name as written
upon the face of the attached Warrant in every particular, without alteration or
enlargement or any change whatsoever.
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E-Trend Networks (Final 9-18-01) Amended Commitment Warrant.doc