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EXHIBIT 10.13
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
APPLICABLE STATE SECURITIES LAWS, OR APPLICABLE LAWS OF ANY FOREIGN
JURISDICTION. THIS WARRANT AND SUCH UNDERLYING SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE
OFFERED, SOLD, PLEDGED, HYPOTHECATED, RENOUNCED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS AND IN THE ABSENCE OF COMPLIANCE WITH
APPLICABLE LAWS OF ANY FOREIGN JURISDICTION, OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IN NOT REQUIRED AND SUCH
FOREIGN JURISDICTION LAWS HAVE BEEN SATISFIED.
BUILDNET, INC.
BUILDER INCENTIVE SERIES C PREFERRED STOCK
PURCHASE WARRANT AGREEMENT
This Series C Preferred Stock Purchase Warrant Agreement (the
"Warrant") is entered into as of this ____ day of ________________ (the
"Effective Date") by and between Buildnet, Inc., a North Carolina corporation
(the "Company") and ________________________________, or permitted assigns (the
"Holder").
RECITALS
WHEREAS, the Holder is engaged in business in the commercial and/or
residential construction industry; and
WHEREAS, the Holder has purchased Series C Preferred Stock, par value
$0.01 per share, of the Company (the "Series C Stock") pursuant to that Series C
Preferred Stock Purchase Agreement, dated October 29, 1999, by and among the
Company and the Purchasers referenced therein; and
WHEREAS, the Holder desires to perform certain promotional actions on
behalf of the Company in connection with its participation in the Buildnet
electronic commerce application and network (the "BuildNet System"); and
WHEREAS, the Company desires to grant Holder a position on the Builder
Advisory Council of the Company, where Holder will serve as a consultant to the
Company; and
WHEREAS, the Company desires to provide Holder with the ability to
purchase additional shares of Series C Stock in exchange for Holder's active
participation on the Builder Advisory Council and promotion of the Buildnet
System as further outlined herein.
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NOW, THEREFORE, in consideration of the mutual agreements, covenants
and conditions contained herein, the parties hereby mutually agree as follows.
1. Issuance of Warrant; Vesting Conditions.
1.1 Issuance. Subject to the terms and conditions set forth
herein, the Company hereby grants to Holder the right to purchase up to 100,000
shares (the "Base Shares") (which number of shares is subject to adjustment as
described below) of the Company's Series C Stock (the "Warrant Stock"). This
Warrant shall become exercisable based on Holder meeting the milestones as set
forth below. In all cases, achievement of the milestones below will be based on
Holder's active participation in helping to promote the BuildNet System. The
number of shares of Warrant Stock exercisable pursuant to the terms of this
Warrant may increase incrementally upon the satisfaction, as determined in the
reasonable discretion of the Company, of the revenue requirements outlined on
Exhibit A attached hereto, which is incorporated herein. Notwithstanding the
foregoing, in no event shall the number of shares of Warrant Stock exercisable
pursuant to this Warrant exceed 1,000,000 (subject to adjustment as described
herein).
The Warrant Stock shall become exercisable upon completion, as
determined in the Company's reasonable discretion, of the following promotional
milestones.
(a) Twenty-five percent (25%) of the Base Shares of
Warrant Stock shall be immediately exercisable upon the Effective Date
of this Warrant, provided that Holder shall have agreed to continuously
promote the Company and the "BuildNet Enabled" logo (subject to the
terms of the Company's Trademark Usage Guidelines, as amended from time
to time) by (i) using the "BuildNet Enabled" logo prominently in
Holder's promotional literature, (ii) displaying the "BuildNet Enabled"
logo at all trade shows and educational events where appropriate and
permissible in which Holder participates, (iii) presenting the Company,
or allowing the Company to have a substantial presence, at all
Holder-sponsored events where appropriate and permissible, (iv)
allowing the Company to use Holder's logo on marketing material and
trade show exhibits, and (v) coordinating promotional access with the
public relations department of the Company, including, but not limited
to, granting access to positive press interviews and magazine profiles;
(b) Twenty-five percent (25%) of the Base Shares of
Warrant Stock shall become exercisable upon completion of BuildNet
enabling of Holder's purchasing, payment and scheduling software
systems;
(c) Twenty-five percent (25%) of the Base Shares of
Warrant Stock shall become exercisable when Holder has reasonably
assisted the Company in seeking participation of suppliers in the
BuildNet System by (i) providing the Company with a list of suppliers
with whom Holder desires the Company to do business (the "Suppliers"),
(ii) sending a letter to each of these Suppliers requesting that they
BuildNet enable their systems, and (iii) reasonably assisting the
Company in its efforts to pursue contractual arrangements with such
Suppliers.
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(d) Twenty-five percent (25%) of the Base Shares of
Warrant Stock shall become exercisable when Holder has reasonably
assisted the Company in seeking participation of subcontractors in the
BuildNet System by (i) providing the Company with a list of
subcontractors with whom Holder desires the Company to do business (the
"Subcontractors"), (ii) sending a letter to each of these
Subcontractors requesting that they BuildNet enable their systems, and
(iii) reasonably assisting the Company in its efforts to pursue
contractual arrangements with such Subcontractors.
In each case, vesting of the Base Shares will be determined in the reasonable
discretion of the Company, and the Company will notify the Holder as each
portion of the Base Shares becomes vested. In the event of any disagreement as
to the vesting of any Base Shares, the parties will attempt to resolve such
disagreement in good faith through discussions between executive officers of the
parties. In the event no resolution is agreed to by the parties within thirty
(30) days after the initial notice of such disagreement by one party to the
other, either party may refer the matter for resolution by binding arbitration
in accordance with the procedures set forth on Exhibit B attached hereto.
Notwithstanding the foregoing, the Base Shares of Warrant Stock
referenced in Sections 1.1(b), 1.1(c) and 1.1(d) above shall fully vest if the
Company has not BuildNet enabled the JD Edwards World Source Company's
homebuilder management software (the "JD Edwards System") within eighteen (18)
months of the Effective Date hereof, provided that the Holder has used its
commercially reasonable efforts to comply with the vesting conditions set forth
in this Section 1.1.
1.2 Term. The shares of Warrant Stock issuable upon exercise
of this Warrant are hereinafter referred to as the "Shares." This Warrant shall
be exercisable at any time and from time to time for a period of three (3) years
from the date hereof.
1.3. Exercise Price. The exercise price (the "Warrant Price")
per share for which all or any of the Shares may be purchased pursuant to the
terms of this Warrant shall be equal to $4.40, subject to adjustment as
described below.
2. Adjustment of Warrant Price, Number and Kind of Shares. The Warrant
Price and the number and kind of securities issuable upon the exercise of this
Warrant shall be subject to adjustment from time to time and the Company agrees
to provide notice upon the happening of certain events as follows.
2.1 Dividends in Stock Adjustment. In case at any time or from
time to time on or after the date hereof the holders of the Warrant Stock of the
Company (or any shares of stock or other securities at the time receivable upon
the exercise of this Warrant) shall have received, or, on or after the record
date fixed for the determination of eligible shareholders, shall have become
entitled to receive, without payment therefor, other or additional securities or
other property (other than cash) of the Company by way of dividend or
distribution, then and in each case, the holder of this Warrant shall, upon the
exercise hereof, be entitled to receive, in addition to the number of shares of
Warrant Stock receivable thereupon, and without payment of any additional
consideration therefor, the amount of such other or additional securities or
other property (other than cash) of the Company which such
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holder would hold on the date of such exercise had it been the holder of record
of such Warrant Stock on the date hereof and had thereafter, during the period
from the date hereof to and including the date of such exercise, retained such
shares and/or all other additional securities or other property receivable by it
as aforesaid during such period, giving effect to all adjustments called for
during such period by this Section 2.
2.2. Reorganization, Reclassification, Merger, Consolidation
or Disposition of Assets. In case the Company shall reorganize its capital,
reclassify its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving corporation or where there
is a change in or distribution with respect to the Series C Stock or the Common
Stock of the Company), or sell, transfer or otherwise dispose of all or
substantially all its property, assets or business to another corporation and,
pursuant to the terms of such reorganization, reclassification, merger,
consolidation or disposition of assets, shares of common stock of the successor
or acquiring corporation, or any cash, shares of stock or other securities or
property of any nature whatsoever (including warrants or other subscription or
purchase rights) in addition to or in lieu of common stock of the successor or
acquiring corporation ("Other Property"), are to be received by or distributed
to the holders of the Series C Stock or Common Stock of the Company, then Holder
shall have the right thereafter to receive, upon exercise of this Warrant and
payment of the Warrant Price then in effect, the number of shares of common
stock of the successor or acquiring corporation or of the Company, if it is the
surviving corporation, and Other Property receivable upon or as a result of such
reorganization, reclassification, merger, consolidation or disposition of assets
to which the holder would have been entitled upon such consummation of such
event if such holder had exercised this Warrant immediately prior to such event.
In case of any such reorganization, reclassification, merger, consolidation or
disposition of assets, the successor or acquiring corporation (if other than the
Company) shall expressly assume the due and punctual observance and performance
of each and every covenant and condition of this Warrant to be performed and
observed by the Company and all the obligations and liabilities hereunder,
subject to such modifications as may be deemed appropriate (as determined by
resolution of the Board of Directors of the Company) in order to provide for
adjustments of the Warrant Price and the number and kind of securities issuable
upon the exercise of this Warrant which shall be as nearly equivalent as
practicable to the adjustments provided for in this Section 2. For purposes of
this Section 2.2, "common stock of the successor or acquiring corporation" shall
include stock of such corporation of any class which is not preferred as to
dividends or assets over any other class of stock of such corporation and which
is not subject to redemption and shall also include any evidences of
indebtedness, shares of stock or other securities which are convertible into or
exchangeable for any such stock, either immediately or upon the arrival of a
specified date or the happening of a specified event and any warrants or other
rights to subscribe for or purchase any such stock. The foregoing provisions of
this Section 2.2 shall similarly apply to successive reorganizations,
reclassifications, mergers, consolidations or disposition of assets.
2.3 Stock Splits and Reverse Stock Splits. If at any time on
or after the date hereof the Company shall subdivide its outstanding shares of
Warrant Stock into a greater number of shares, the Warrant Price in effect
immediately prior to such subdivision shall thereby be proportionately reduced
and the number of shares receivable upon exercise of this Warrant shall thereby
be proportionately increased; and, conversely, if at any time on or after the
date hereof the outstanding
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number of shares of Warrant Stock shall be combined into a smaller number of
shares, the Warrant Price in effect immediately prior to such combination shall
thereby be proportionately increased and the number of shares receivable upon
exercise of this Warrant shall thereby be proportionately decreased.
2.4 Conversion or Redemption of Warrant Stock. If at the time
of any exercise of this Warrant there are no other shares of Warrant Stock
outstanding (such shares having been converted or redeemed), this Warrant shall
be exercisable for Common Stock instead of Warrant Stock in the same amounts,
for the same prices and on the same terms, and all references herein to "Warrant
Stock" shall be changed to refer to "Common Stock."
3. No Fractional Shares. No fractional shares of Warrant Stock will be
issued in connection with any subscription hereunder. In lieu of any fractional
shares that would otherwise be issuable, the Company shall pay cash equal to the
product of such fraction multiplied by the fair market value of one share of
Warrant Stock on the date of exercise, as determined in good faith by the
Company's Board of Directors.
4. No Shareholder Rights. This Warrant as such shall not entitle its
holder to any of the rights of a shareholder of the Company until the holder has
exercised this Warrant in accordance with Section 6 or Section 7 hereof.
5. Reservation of Stock. The Company covenants that, during the period
this Warrant is exercisable, the Company will use its best efforts to reserve
from its authorized and unissued Series C Stock a sufficient number of shares to
provide for the issuance of Warrant Stock upon the exercise of this Warrant. The
Company agrees that its issuance of this Warrant shall constitute full authority
to its officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for shares of Warrant Stock upon
the exercise of this Warrant. In the event that insufficient shares of Series C
Stock are authorized to accommodate the full exercise of this Warrant, then this
Warrant shall, to that extent, become exercisable for shares of the Company's
Common Stock.
6. Exercise of Warrant. This Warrant may be exercised by Holder by the
surrender of this Warrant at the principal office of the Company, accompanied by
payment in full of the purchase price of the Shares purchased thereby, as
described above. This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person or entity entitled to receive the Shares or other
securities issuable upon such exercise shall be treated for all purposes as the
holder of such shares of record as of the close of business on such date. As
promptly as practicable, the Company shall issue and deliver to the person or
entity entitled to receive the same a certificate or certificates for the number
of full shares of Warrant Stock issuable upon such exercise, together with cash
in lieu of any fraction of a share as provided above. The shares of Warrant
Stock issuable upon exercise hereof shall, upon their issuance, be fully paid
and nonassessable.
7. Net Issue Election.
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7.1 Right to Convert. In addition to and without limiting the
rights of the Holder under the terms of this Warrant, the Holder shall have the
right to convert this Warrant or any portion hereof (the "Conversion Right")
into shares of Warrant Stock as provided in this Section 7, subject to the
restrictions set forth in subsection 7.3 hereof. Upon exercise of the Conversion
Right with respect to a particular number of shares subject to this Warrant (the
"Converted Warrant Shares"), the Company shall deliver to the Holder (without
payment by the Holder of any cash or other consideration) that number of shares
of Warrant Stock equal to the quotient obtained by dividing (x) the value of
this Warrant (or the specified portion hereof) on the Conversion Date (as
defined in subsection 7.2 hereof ), which value shall be determined by
subtracting (A) the aggregate Warrant Price of the Converted Warrant Shares
immediately prior to the exercise of the Conversion Right from (B) the aggregate
fair market value of the Converted Warrant Shares issuable upon exercise of this
Warrant (or the specified portion hereof) on the Conversion Date (as herein
defined) by (y) the fair market value of one share of Warrant Stock on the
Conversion Date (as herein defined). No fractional shares shall be issuable upon
exercise of the Conversion Right, and if the number of shares to be issued
determined in accordance with the foregoing formula is other than a whole
number, the Company shall pay to the Holder an amount in cash equal to the fair
market value of the resulting fractional share on the Conversion Date (as herein
defined).
7.2 Method of Exercise. The Conversion Right may be exercised
by the Holder by the surrender of this Warrant at the principal office of the
Company together with a written statement specifying that the Holder thereby
intends to exercise the Conversion Right and indicating the number of shares
subject to this Warrant that are being surrendered (referred to in subsection
7.1 hereof as the Converted Warrant Shares) in exercise of the Conversion Right.
Such conversion shall be effective immediately upon surrender of this Warrant
(the "Conversion Date"). Certificates for the shares of Warrant Stock issuable
upon exercise of the Conversion Right (or any other securities deliverable in
lieu thereof under subsection 2.1) shall be issued as of the Conversion Date and
shall be delivered to the Holder immediately following the Conversion Date.
7.3 Restrictions on Conversion Right. In the event that, in
connection with or following a public offering of the Company's Common Stock,
the Conversion Right contained herein would, at any time this Warrant remains
outstanding, be deemed by the Company's independent public accountants to
trigger a charge to the Company's earnings for financial reporting purposes,
then the Conversion Right as specified in section 7.1 shall automatically
terminate upon the Company's written notice to the Holder of such adverse
accounting treatment.
7.4 Determination of Fair Market Value. For purposes of this
Section 7, fair market value (the "Market Price") of a share of Common Stock or
Warrant Stock as of a particular date (the "Determination Date") shall mean the
average of the closing prices of such security's sales on the principal
securities exchanges on which such security may at the time be listed, or, if
there has been no sales on any such exchange on any day, the average of the
highest bid and lowest asked prices on all such exchanges at the end of such
day, or, if on any day such security is not so listed, the average of the last
sale prices quoted in the Nasdaq System, or if on any day such security is not
quoted in the Nasdaq System, the average of the highest bid and
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lowest asked prices on such day in the domestic over-the-counter market as
reported by the National Quotation Bureau, Incorporated, or any similar
successor organization, in each such case averaged over a period of five (5)
days consisting of the day prior to the day as of which "Market Price" is being
determined and the five (5) consecutive business days prior to such day. If at
any time such security is not listed on any securities exchange or quoted in the
NASDAQ System or the over-the-counter market, the "Market Price" shall be the
fair value thereof as determined in good faith by the Company's Board of
Directors.
8. Certificate of Adjustment. Whenever the Warrant Price or number or
type of securities issuable upon exercise of this Warrant is adjusted, as herein
provided, the Company shall promptly deliver to the record holder of this
Warrant a certificate of an officer of the Company setting forth the nature of
such adjustment and a brief statement of the facts requiring such adjustment.
9. Notice of Proposed Transfers. Prior to any proposed transfer of this
Warrant or the shares of Warrant Stock received on the exercise of this Warrant
(the "Securities"), unless there is in effect a registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), covering the proposed
transfer, the Holder thereof shall give written notice to the Company of such
Holder's intention to effect such transfer. Each such notice shall describe the
manner and circumstances of the proposed transfer in sufficient detail, and
shall, if the Company so requests, be accompanied (except in transactions in
compliance with Rule 144) by either (i) a written opinion of legal counsel who
shall be reasonably satisfactory to the Company addressed to the Company and
reasonably satisfactory in form and substance to the Company's counsel, to the
effect that the proposed transfer of the Securities may be effected without
registration under the Securities Act, or (ii) a "no action" letter from the
Securities Exchange Commission (the "Commission") to the effect that the
transfer of such Securities without registration will not result in a
recommendation by the staff of the Commission that action be taken with respect
thereto, whereupon the Holder of the Securities shall be entitled to transfer
the Securities in accordance with the terms of the notice delivered by the
Holder to the Company; provided, however, no such registration statement or
opinion of counsel shall be necessary for a transfer by a Holder to any
affiliate of such Holder, or a transfer by a Holder which is a partnership to a
partner of such partnership or a retired partner of such partnership who retires
after the date hereof, or to the estate of any such partner or retired partner
or the transfer by gift, will or intestate succession of any partner to his
spouse or lineal descendants or ancestors, if the transferee agrees in writing
to be subject to the terms hereof to the same extent as if such transferee were
the original Holder hereunder. Each certificate evidencing the Securities
transferred as above provided shall bear the appropriate restrictive legend set
forth above, except that such certificate shall not bear such restrictive legend
if in the opinion of counsel for the Company such legend is not required in
order to establish compliance with any provisions of the Securities Act.
10. Replacement of Warrants. Upon receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of the Warrant, and in the case of any such loss, theft or
destruction of the Warrant, on delivery of an indemnity agreement or security
reasonably satisfactory in form and amount to the Company, and reimbursement to
the Company of all reasonable expenses incidental thereto, and upon surrender
and cancellation of the Warrant if mutilated, the Company will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
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11. Miscellaneous. This Warrant shall be governed by the laws of the
State of North Carolina. The headings in this Warrant are for purposes of
convenience of reference only, and shall not be deemed to constitute a part
hereof. The invalidity or unenforceability of any provision hereof shall in no
way affect the validity or enforceability of any other provisions. All notices
and other communications from the Company to the holder of this Warrant shall be
delivered personally or mailed by first class mail, postage prepaid, to the
address furnished to the Company in writing by the last holder of this Warrant
who shall have furnished an address to the Company in writing, and if mailed
shall be deemed given three (3) days after deposit in the U.S. Mail.
12. Taxes. The Company shall pay all issue taxes and other governmental
charges (but not including any income taxes of a Holder) that may be imposed in
respect of the issuance or delivery of the Shares or any portion thereof.
13. Amendment. Any term of this Warrant may be amended with the written
consent of the Company and the Holder. Any amendment effected in accordance with
this Section 13 shall be binding upon the Holder of this Warrant, each future
holder of such Warrant, and the Company.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the
Effective Date as first set forth above.
COMPANY: BUILDNET, INC.
By: DRAFT
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Name: __________________________
Title: _________________________
HOLDER: _________________________________
[Printed or Typed Name of Holder]
By: DRAFT
----------------------------
Name: __________________________
Title: _________________________
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EXHIBIT A (Option 1)
TRANSACTION REQUIREMENTS
The number of shares of Warrant Stock shall increase by 1,000 shares
for every $1,000,000 in "Transactions" generated by Holder or its Subcontractors
processed through the BuildNet System during the first year following the
Company's completion of BuildNet enabling the JD Edwards System. The Company
will notify the Holder promptly upon such completion.
The number of shares of Warrant Stock shall increase by 500 shares for
every $1,000,000 in "Transactions" generated by Holder or its Subcontractors
processed through the BuildNet System during the second year following the
Company's completion of BuildNet enabling the JD Edwards System.
For purposes of this Warrant, "Transactions" shall mean purchase
transaction amounts actually processed by the Company's BuildNet System for a
given period, to the extent that such purchase transaction amounts are taken
into account in the calculation of transaction fees for the Company for the use
of the BuildNet System.
Notwithstanding the foregoing, in no event shall this Warrant be
exercisable for shares of Warrant Stock in excess of 1,000,000.
The Company will provide quarterly reports to the Holder, within
forty-five (45) days after the end of the Company's fiscal quarter, as to such
Holder's Adjusted Transaction Revenue for such quarter and the corresponding
increase in number of Warrant Shares that have vested. In each case, calculation
of the Holder's Adjusted Transaction Revenue will be determined in the
reasonable discretion of the Company. In the event of any disagreement as to the
calculation of the Holder's Adjusted Transaction Revenue, the parties will
attempt to resolve such disagreement in good faith through discussions between
executive officers of the parties. In the event no resolution is agreed to by
the parties within thirty (30) days after the initial notice of such
disagreement by one party to the other, either party may refer the matter for
resolution by binding arbitration in accordance with the procedures set forth on
Exhibit B attached hereto.
EXHIBIT A (Option 2)
TRANSACTION REQUIREMENTS
The number of shares of Warrant Stock shall increase by 1,000 shares
for every $1,000,000 in "Transactions" generated by Holder or its Subcontractors
processed through the BuildNet System during the first year following the
Company's completion of BuildNet enabling of Holder's purchasing, payment and
scheduling software systems.
The number of shares of Warrant Stock shall increase by 500 shares for
every $1,000,000 in "Transactions" generated by Holder or its Subcontractors
processed through the BuildNet System during the second year following the
Company's completion of BuildNet enabling of Holder's purchasing, payment and
scheduling software systems.
For purposes of this Warrant, "Transactions" shall mean purchase
transaction amounts actually processed by the Company's BuildNet System for a
given period, to the extent that such purchase transaction amounts are taken
into account in the calculation of transaction fees for the Company for the use
of the BuildNet System.
Notwithstanding the foregoing, in no event shall this Warrant be
exercisable for shares of Warrant Stock in excess of 500,000.
The Company will provide quarterly reports to the Holder, within
forty-five (45) days after the end of the Company's fiscal quarter, as to such
Holder's Adjusted Transaction Revenue for such quarter and the corresponding
increase in number of Warrant Shares that have vested. In each case, calculation
of the Holder's Adjusted Transaction Revenue will be determined in the
reasonable discretion of the Company. In the event of any disagreement as to the
calculation of the Holder's Adjusted Transaction Revenue, the parties will
attempt to resolve such disagreement in good faith through discussions between
executive officers of the parties. In the event no resolution is agreed to by
the parties within thirty (30) days after the initial notice of such
disagreement by one party to the other, either party may refer the matter for
resolution by binding arbitration in accordance with the procedures set forth on
Exhibit B attached hereto.
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EXHIBIT B
ARBITRATION PROCEDURES
Any controversy, claim or dispute to be resolved under these procedures
shall be resolved through binding arbitration pursuant to the AAA Commercial
Arbitration Rules (the "Arbitration Rules") in effect at the time arbitration is
initiated by a party. The Arbitration Rules may be obtained from AAA through its
site on the World Wide Web at www.adr.org. Arbitration may be initiated by
providing the other party with written notice of its intention to arbitrate (the
"Demand") the dispute. The Demand shall be in the form set forth in the
Arbitration Rules. Within five days from the date the Demand is provided to the
opposing party, the party seeking arbitration shall file its Demand with the AAA
in the manner set forth in the Arbitration Rules. Responses to the Demand, such
as by Answer or Counterclaim, shall be allowed as prescribed by the Arbitration
Rules. All questions concerning the validity, enforceability, or scope of this
arbitration provision or the entire Warrant shall be resolved by the
arbitrator[s] selected as prescribed by the Arbitration Rules.
In the event that any party's claim exceeds one hundred thousand
dollars ($100,000.00) in value, exclusive of interest and attorney's fees, the
dispute shall be heard and determined by three (3) arbitrators. Where the amount
of a party's claim is less that $100,000.00, the dispute shall be heard by one
(1) arbitrator. Each arbitrator shall be a member of the Bar of the State of
North Carolina, actively engaged in the practice of law for at least ten (10)
years. Other considerations regarding arbitrators, such as the process for their
selection, shall be decided according to the Arbitration Rules. The arbitration
shall take place in Raleigh, North Carolina. The arbitrator[s] may determine how
the costs and expenses of the arbitration will be allocated between the parties,
but, absent a showing of bad faith (as defined by the arbitrator[s]), attorneys'
fees shall not be awarded.
This Warrant, including all provisions related to arbitration and
mediation, shall be governed by and interpreted in accordance with the
substantive laws of the State of North Carolina. The arbitrators may award any
relief or damages allowed by North Carolina law, whether legal or equitable,
except for such relief or damages expressly excluded by this Warrant or
arbitration provision. The parties acknowledge that this Warrant evidences a
transaction involving interstate commerce. The Federal Arbitration Act ("FAA"),
9 U.S.C. ss.ss. 1-16, shall govern the interpretation, enforcement, and
proceedings brought pursuant to the arbitration provision in this Warrant.
Either party may apply to the arbitrator[s] for injunctive or similar
relief until an arbitration award is rendered or the controversy is otherwise
resolved. Either party may also, without waiving any remedy under this Warrant,
seek from any court having jurisdiction, any interim or provisional relief that
is necessary to protect the rights or property of that party, pending the
establishment of the arbitral tribunal. Once selected, the arbitrator[s] shall
be empowered to dissolve or nullify any such interim or provisional relief
established by a court.
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Consistent with the expedited nature of arbitration, each party will,
upon written request to the other party, promptly provide the requesting party
with copies of documents relevant to the issues raised by any claim or
counterclaim in the arbitration. Any dispute regarding discovery, or the
relevance or scope thereof, shall be determined by the arbitrator[s], which
determination shall be conclusive. The arbitrator[s] may penalize or remedy
discovery abuses to the extent permitted by Rule 37 of the North Carolina Rules
of Civil Procedure. All discovery shall be completed within forty-five days
following the appointment of the arbitrator[s].
At the request of a party, the arbitrator[s] shall have the discretion
to order examination by deposition of witnesses to the extent the arbitrator[s]
deems such discovery relevant and appropriate. Depositions shall be limited to a
maximum of three (3) per party and shall be held within thirty (30) days of the
making of a request. Additional depositions may be scheduled only with the
permission of the arbitrator[s] and for good cause shown. Each deposition shall
be limited to one day's duration. All objections are reserved for the
arbitration hearing except for objections based on privilege or similar rule
allowed by North Carolina law.
In addition to the discovery processes outlined by the Arbitration
Rules, the arbitrator[s] shall act under the authority of N.C. Gen. Stat. ss.
1-567.8 ("Witnesses; subpoenas; depositions"). To the extent that ss. 1-567.8
applies to the production of documents and other tangible things by a non-party
witness in arbitration, the party seeking such production shall not be
prejudiced if the non-party witness cannot be lawfully compelled to produce
requested documents or materials prior to the arbitration hearing. Therefore, if
a nonparty witness cannot be compelled to produce documents or other tangible
things prior to the arbitration hearing, the parties shall not be disqualified
from using, as evidence or otherwise, materials produced at the arbitration
hearing by nonparty witnesses. The arbitrator[s] shall allow a period, of a
duration fair to the parties, for review of the materials produced by the
nonparty witness.
The arbitrator[s] will have no authority to award punitive damages or
to arbitrate claims on a class action basis. Further, the arbitrator[s] shall
have no authority to decide claims brought by nonparties to this Warrant, and
the arbitrator[s] may not consolidate or join the claims of non-parties who may
have similar claims. Judgment upon any award rendered by the arbitrator[s] may
be entered in any court having competent jurisdiction. The arbitration
provisions contained herein shall survive the satisfaction of the contractual
obligations of this Warrant and its termination. If any portion of this
arbitration provision is deemed invalid or unenforceable under the law of North
Carolina or the FAA, it should not invalidate the remaining portions of this
arbitration provision.
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