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EXHIBIT 10.5
STOCK PURCHASE WARRANT
This Warrant is issued as of this 8th day of October, 1997, by
BUILDNET, INC., a North Carolina corporation (the "Company"), to PETRA CAPITAL,
LLC, a Georgia limited liability company (Petra Capital, LLC and any subsequent
assignee or transferee hereof are hereinafter referred to collectively as
"Holder" or "Holders").
AGREEMENT:
Section 1. Issuance of Warrant, Term.
(a) Petra Capital, LLC ("Petra") is making a loan to the Company in the
amount of $3,000,000 (the "Loan"). Petra is funding $2,000,000 of the Loan, and
Piedmont Venture Partners Limited Partnership ("Piedmont") is funding $1,000,000
of the Loan. The portion of the Loan funded by Petra is evidenced by a Secured
Promissory Note of even date herewith, in the original principal amount of
$2,000,000, payable to the order of Petra (together with any and all extensions,
replacements and renewals thereof, the "Note") and a Loan and Security Agreement
of even date herewith (as amended, supplemented or otherwise modified from time
to time, the "Loan Agreement"). In consideration of the funding of $2,000,000 of
the Loan, the receipt and sufficiency of which are hereby acknowledged, the
Company hereby grants to Holder the right to purchase 25,318 shares of the
Company's common stock (the "Common Stock"), which the Company hereby represents
to equal 2% of the shares of capital stock outstanding on the date hereof,
calculated on a Fully Diluted Basis (as hereinafter defined) assuming exercise
of this Warrant and issuance of such shares. For purposes of this Warrant,
"Fully Diluted Basis" means at any time, without duplication, the number of
outstanding shares of Common Stock, after giving effect to (x) all shares of
Common Stock actually outstanding at the time of determination, (y) all shares
of Common Stock issuable upon the exercise of any option, warrant (including,
without limitation, this Warrant) or similar right outstanding at the time of
determination, and (z) all shares of Common Stock issuable upon the exercise of
any conversion or exchange right contained in any security convertible into or
exchangeable for shares of Common Stock, and assuming that (i) 16,891 shares of
Common Stock were issuable upon the conversion of all of the convertible
indebtedness of the Company outstanding on the date hereof, (ii) that 1,800
shares of common stock, or warrants to purchase such number of shares, were
issuable to certain vendors of the Company as of the date hereof; (iii) that
options to purchase 155,000 shares of Common Stock were outstanding as of the
date hereof under the Company's 1997 Stock Plan; (iv) that options outstanding
under the Sun Forest Systems, Inc. 1995 Stock Award Plan (the "Sun Forest Plan")
were not outstanding as of the date hereof, (v) that options to purchase 7,323
shares of Common Stock to a financial consultant to the Company were outstanding
as of the date hereof.
(b) The shares of Common 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 from the date hereof until October 7, 2007.
Section 2. Exercise Price. The exercise price (the "Exercise Price")
per share for which all or any of the Shares may be purchased pursuant to the
terms of this Warrant shall be one cent ($.01).
Section 3. Exercise.
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(a) This Warrant may be exercised by the Holder hereof (but only on the
conditions hereafter set forth) as to all or any increment or increments of one
hundred (100) Shares (or the balance of the Shares if less than such number),
upon delivery of written notice of intent to exercise to the Company at the
following address: 4815 Emperor Blvd., Suite 214, Durham, NC 27703, Attention:
Steve Thompson, or such other address as the Company shall designate in a
written notice to the Holder hereof, together with this Warrant and payment to
the Company of the aggregate Exercise Price of the Shares so purchased. The
Exercise Price shall be payable, at the option of the Holder, (i) by certified
or bank check, (ii) by the surrender of the Note or portion thereof having an
outstanding principal balance equal to the aggregate Exercise Price. Upon
exercise of this Warrant as aforesaid, the Company shall as promptly as
practicable, and in any event within fifteen (15) days thereafter, execute and
deliver to the Holder of this Warrant a certificate or certificates for the
total number of whole Shares for which this Warrant is being exercised in such
names and denominations as are requested by such Holder. If this Warrant shall
be exercised with respect to less than all of the Shares, the Holder shall be
entitled to receive a new Warrant covering the number of Shares in respect of
which this Warrant shall not have been exercised, which new Warrant shall in all
other respects be identical to this Warrant. The Company covenants and agrees
that it will pay when due any and all state and federal issue taxes which may be
payable in respect of the issuance of this Warrant or the issuance of any Shares
upon exercise of this Warrant.
(b) In lieu of exercising this Warrant pursuant to Section 3(a) above,
the Holder shall have the right to require the Company to convert this Warrant
(as it may be adjusted pursuant to Section 5 hereof), in whole or in part and at
any time or times into Shares (the "Conversion Right"), upon delivery of written
notice of intent to convert to the Company at its address in Section 3(a) or
such other address as the Company shall designate in a written notice to the
Holder hereof, together with this Warrant. Upon exercise of the Conversion
Right, the Company shall deliver to the Holder (without payment by the Holder of
any Exercise Price) that number of Shares which is equal to the quotient
obtained by dividing (x) the net value of the number of Shares with respect to
which Holder is then exercising the Conversion Right (determined by subtracting
the aggregate Exercise Price for the Shares with respect to which Holder is then
exercising the Conversion Right from a number equal to the product of (i) the
Fair Market Value per Share (as such term is defined in Section 5(b)) as at such
time, multiplied by (ii) that number of Shares with respect to which Holder is
then exercising the Conversion Right), by (y) the Fair Market Value per Share.
Any references in any Warrants to the "exercise" of this Warrant, and the use of
the term exercise herein, shall be deemed to include (without limitation) any
exercise of the Conversion Right.
Section 4. Covenants and Conditions. The above provisions are subject
to the following:
(a) Neither this Warrant nor the Shares have been registered under the
Securities Act of 1933, as amended ("Securities Act") or any state securities
laws ("Blue Sky Laws"). This Warrant has been acquired for investment purposes
and not with a view to distribution or resale. Except for the Holder's intended
transfer to Petra Special Purpose, LLC (the "SPV") and the subsequent collateral
assignment by the SPV, this Warrant may not be pledged, hypothecated, sold, made
subject to a security interest, or otherwise transferred without (i) an
effective registration statement for such Warrant under the Securities Act and
such applicable Blue Sky Laws, or (ii) an opinion of counsel, which opinion and
counsel shall be reasonably satisfactory to the Company and its counsel, that
registration is not required under the Securities Act or under any applicable
Blue Sky Laws (the Company hereby acknowledges that Sherrard & Roe, PLC is
acceptable counsel). Transfer of Shares
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issued upon the exercise of this Warrant shall be restricted in the same manner
and to the same extent as the Warrant, and the certificates representing such
Shares shall, subject to Section 6 hereof, bear substantially the following
legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
APPLICABLE STATE SECURITIES LAW AND MAY NOT BE TRANSFERRED UNTIL (I) A
REGISTRATION STATEMENT UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES LAW S
SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (11) IN THE OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY, REGISTRATION UNDER SUCH SECURITIES ACTS OR
SUCH APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH
PROPOSED TRANSFER.
The Holder hereof and the Company agree to execute such other documents and
instruments as counsel for the Company reasonably deems necessary to effect the
compliance of the issuance of this Warrant and any shares of Common Stock issued
upon exercise hereof with applicable federal and state securities laws.
(b) The Company covenants and agrees that all Shares which may be
issued upon exercise of this Warrant will, upon issuance and payment therefor,
be legally and validly issued and outstanding, fully paid and nonassessable,
free from all taxes, liens, charges and preemptive rights (other-than any
created by the Holder), if any, with respect thereto or to the issuance thereof.
The Company shall at all times reserve and keep available for issuance upon the
exercise of this Warrant such number of authorized but unissued shares of Common
Stock as will be sufficient to permit the exercise in full of this Warrant.
Section 5. Adjustment of Exercise Price and Number of Shares Issuable.
The Exercise Price and the number of Shares (or other securities or property)
issuable upon exercise of this Warrant shall be subject to adjustment from time
to time upon the occurrence of any of the events enumerated in this Section 5.
(a) Common Stock Reorganization. If the Company shall (i) subdivide or
consolidate its outstanding shares of Common Stock (or any class thereof) into a
greater or smaller number of shares, (ii) pay a dividend or make a distribution
on its Common Stock (or any class thereof) in shares of its capital stock, or
(iii) issue by reclassification of its Common Stock (or any class thereof) any
shares of its capital stock (any such event described in clauses (i), (ii) or
(iii) being called a "Common Stock Reorganization"), then the Exercise Price and
the type of securities for which this Warrant is exercisable shall be adjusted
immediately such that the Holder thereafter shall be entitled to received upon
exercise of this Warrant the aggregate number and type of securities that it
would have received if this Warrant had been exercised immediately prior to such
Common Stock Reorganization.
(b) Common Stock Distribution. If the Company shall issue, sell,
distribute or otherwise grant any shares of Common Stock, other than pursuant to
a Common Stock Reorganization (any such issuance, sale, distribution or grant
being herein called a "Common Stock Distribution"), for a consideration per
share less than the Fair Market Value per Share immediately prior to such Common
Stock Distribution, then the Exercise Price shall be reduced to the price
determined by multiplying
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such Exercise Price by a fraction, the numerator of which shall be the sum of
(A) the number of shares of Common Stock outstanding immediately prior to such
Common Stock Distribution plus the number of shares issuable upon exercise of
this Warrant and any Additional Warrants issued pursuant to the Loan Agreement
plus (B) the quotient obtained by dividing the aggregate consideration, if any,
received by the Company upon such Common Stock Distribution by such Fair Market
Value per Share, and the denominator of which shall be the total number of
shares of Common Stock outstanding immediately after such Common Stock
Distribution plus the number of shares issuable upon exercise of this Warrant
and any Additional Warrants issued pursuant to the Loan Agreement. "Fair Market
Value per Share" as of any time means the fair market value of the Company as of
such time divided by the number of outstanding shares of Common Stock, as of
such time after giving effect to the exercise of this Warrant and any Additional
Warrants issued pursuant to the Loan Agreement.
(c) Convertible Securities and Option Securities. If the Company shall
issue, sell, distribute or otherwise grant (including by assumption):
(i) any stock or other securities convertible into or
exchangeable for Common Stock, whether or not the rights to exchange or
convert thereunder are immediately exercisable such convertible or
exchangeable stock or securities being herein called "Convertible
Securities"), or
(ii) any rights to subscribe for or to purchase, or any
warrants or options for the purchase of, Common Stock or Convertible
Securities, whether or not immediately exercisable, other than (A) any
Additional Warrants issued pursuant to the Loan Agreement, -or (B)
Permitted Plan Options (as defined below) (such rights, warrants or
options being herein called "Option Securities"),
and the lowest aggregate consideration per share for which Common Stock is
issuable upon the exercise of such Convertible Securities or Option Securities
(and, if applicable, upon conversion or exchange of Convertible Securities
issuable upon exercise of Option Securities) shall be less than the Fair Market
Value per Share at such time, then the Exercise Price shall be reduced to the
price determined by multiplying such Exercise Price by a fraction, the numerator
of which shall be the sum of (A) the number of shares of Common Stock then
outstanding plus the number of shares issuable upon exercise of this Warrant and
any Additional Warrants issued pursuant to the Loan Agreement plus (B) the
quotient obtained by dividing the aggregate consideration, if any, received or
receivable by the Company upon such issuance, sale, distribution or grant by
such Fair Market Value per Share, and the denominator of which shall be the
total number of shares of Common Stock then outstanding plus the number of
shares issuable upon exercise of this Warrant and any Additional Warrants issued
pursuant to the Loan Agreement plus the total maximum number of shares issuable
upon exercise or conversion of such Convertible Securities or Option Securities
and, in the case of Option Securities to acquire Convertible Securities, upon
conversion or exchange of the total maximum amount of such Convertible
Securities issuable upon the exercise of such Option Securities. If any of such
Convertible Securities or Option Securities shall have terminated, lapsed or
expired prior to exercise, exchange or conversion, the Exercise Price then in
effect shall forthwith be readjusted (effective only with respect to any
exercise of Warrants after such readjustment) to the Exercise Price which would
then be in effect had the adjustment not been made upon the issuance, sale,
distribution or grant of such Convertible Securities or Option Securities. For
purposes hereof, "Permitted Plan Options" shall mean Option Securities issued
pursuant to the Company's 1997 Stock Plan; provided that the number of shares of
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Common Stock issuable upon exercise thereof shall not exceed in the aggregate,
the sum of (i) 155,000 shares, less (ii) any shares of Common Stock issuable
upon the exercise of options granted under the Sun Forest Plan (net of any
options thereunder which have been canceled), in each case, adjusted to account
for any stock splits, subdivisions or the like.
(d) Adjustment in Number of Shares. Upon each adjustment to the
Exercise Price pursuant to subsections (a), (b) or (c) this Section 5, this
Warrant shall thereafter evidence the right to receive upon payment of the
adjusted Exercise Price that number of Shares obtained by multiplying the number
of Shares previously issuable upon exercise of this Warrant by a fraction the
numerator of which is the Exercise Price prior to adjustment and the denominator
of which is the adjusted Exercise Price.
(e) Non-Cash Consideration. If any shares of Common Stock, Option
Securities or Convertible Securities shall be issued, sold, distributed or
granted for a consideration other than cash, the amount of the consideration
other than cash received by the Company shall be deemed to be the fair market
value of such consideration, as determined in good faith by the Corporation's
Board of Directors. If any shares of Common Stock, Option Securities or
Convertible Securities shall be issued in connection with any merger in which
the Company is the surviving corporation, the amount of consideration therefor
shall be deemed to be the fair market value, as determined in good faith by the
Corporation's Board of Directors, of such portion of the assets and business of
the non-surviving corporation as shall be attributable to such Common Stock,
Option Securities or Convertible Securities, as the case may be.
(f) Capital Reorganizations. If there shall be any consolidation,
merger or amalgamation of the Company with another person or entity or any
acquisition of capital stock of the Company by means of a share exchange, other
than a consolidation, merger or share exchange in which the Company is the
continuing corporation or any sale or conveyance of the property of the Company
as an entirety or substantially as an entirety, or any reorganization or
recapitalization of the Company (any such event being called a "Capital
Reorganization", then the Holder of this Warrant shall no longer have the right
to purchase Common Stock, but shall have instead the right to purchase, upon
exercise of this Warrant, the kind and amount of shares of stock and other
securities and property (including cash) which the Holder would have owned or
have been entitled to receive pursuant to such Capital Reorganization if this
Warrant had been exercised immediately prior to the -effective date of such
Capital Reorganization. As a condition to effecting any Capital Reorganization,
the Company or the successor or surviving corporation, as the case may be, shall
assume by a supplemental agreement, reasonably satisfactory in form, scope and
substance to the Holder (which shall be mailed or delivered to the Holder of
this Warrant at the last address of such Holder appearing on the books of the
Company) the obligation to deliver to such Holder such shares of stock,
securities, cash or property as, in accordance with the foregoing provisions,
such Holder may be entitled to purchase, and all other obligations of the
Company set forth in this Warrant.
(g) Determination of Fair Market Value. Subject to the provisions set
forth below, the fair market value of the Company or of any non-cash
consideration received by the Company upon any Common Stock Distribution shall
be determined in good faith by the Board of Directors of the Company. Upon each
such determination, the Company shall promptly give notice thereof to the
Holder, setting forth in reasonable detail the calculation of such fair market
value and the method and basis of determination thereof (the "Company
Determination"). If the Holder shall disagree with the
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Company Determination and shall, by notice to the Company given within thirty
(30) days after the Company's notice of the Company Determination, elect to
dispute the Company Determination, the Company shall, within thirty (30) days
after such notice, engage an investment bank or other qualified appraisal firm
acceptable to the Holder to make an independent determination of the fair market
value of the Company or of any non-cash consideration received by the Company
upon any Common Stock Distribution (the "Appraiser Determination"). The
Appraiser Determination shall be final and binding on the Company and the
Holder. The cost of the Appraiser Determination shall be borne by the Company.
(h) Adjustment Rules. Any adjustments pursuant to this Section 5 shall
be made successively whenever an event referred to herein shall occur. No
adjustment shall be made pursuant to this Section 5: (i) in respect of the
issuance from time to time of shares of Common Stock upon the exercise of this
Warrant, (ii) in respect of the issuance from time to time of shares of Common
Stock upon the exercise of the Warrant to be issued to Piedmont, (iii) the
exercise or conversion of any other Option Securities or Convertible Securities,
or (iii) in respect of the issuance or exercise of any Additional Warrants (as
defined in the Loan Agreement).
(i) Proceedings Prior to Any Action Requiring Adjustment. As a
condition precedent to the taking of any action which would require an
adjustment pursuant to this Section 5, the Company shall take any action which
may be necessary, including obtaining regulatory approvals or exemptions, in
order that (a) the Company may thereafter validly and legally issue as fully
paid and nonassessable all shares of Common Stock which the Holder of this
Warrant is entitled to receive upon exercise thereof.
(j) Notice of Adjustment. Not less than 10 days prior to the record
date or effective date, as the case may be, of any action which requires or
might require an adjustment or readjustment pursuant to this Section 5, the
Company shall give notice to the Holder of such event, describing such event in
reasonable detail and specifying the record date or effective date, as the case
may be, and, if determinable, the required adjustment and the computation
thereof. If the required adjustment is not determinable at the time of such
notice, the Company shall give notice to the Holder of such adjustment and
computation promptly after such adjustment becomes determinable.
Section 6. Transfer of Warrant. Subject to the provisions of Section 4
hereof, this Warrant may be transferred, in whole or in part, to any person or
business entity, by presentation of the Warrant to the Company with written
instructions for such transfer. Upon such presentation for transfer, the Company
shall promptly execute and deliver a new Warrant or Warrants in the form hereof
in the name of the assignee or assignees and in the denominations specified in
such instructions. The Company shall pay all expenses incurred by it in
connection with the preparation, issuance and delivery of Warrants under this
Section.
Section 7. Warrant Holder Not Shareholder; Rights Offering; Preemptive
Rights. Except as otherwise provided herein, this Warrant does not confer upon
the Holder, as such, any right whatsoever as a shareholder of the Company. The
Company shall not grant any preemptive rights with respect to any of its capital
stock if such preemptive rights are exercisable upon exercise of this Warrant.
Section 8. Observation Rights; Interim Dividends.
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(a) Observation Rights. The Holder of this Warrant shall receive notice
of and be entitled to attend or may send a representative to attend all meetings
of the Company's Board of Directors in a non-voting observation capacity and
shall receive a copy of all correspondence and information delivered to the
Company's Board of Directors, from the date hereof until such time as the
indebtedness evidenced by the Note has been paid in full.
(b) Interim Dividends. If the Company pays a dividend or makes a
distribution to the holders of its capital stock of any securities (other than
capital stock) or property (including cash and securities of other companies) of
the Company, or any rights, options or warrants to purchase securities (other
than capital stock) or property (including securities of other companies) of the
Company, then, simultaneously with the payment of such dividend or the making of
such distribution, and as a condition precedent to its right to do so, it will
pay or distribute to the Holder of this Warrant an amount of property (including
without limitation cash) and/or securities (including without limitation
securities of other companies) of the Company as would have been received by
such Holder had it exercised this Warrant and received all of the Shares of
Common Stock issuable upon the exercise of this Warrant immediately prior to the
record date (or other applicable date) used for determining stockholders of the
Company entitled to receive such dividend or distribution. Anything in Section 5
to the contrary notwithstanding, no adjustment to the Exercise Price shall be
made for any distribution of Convertible Securities of the Company to the Holder
pursuant to the provisions of this Section 8.
Section 9. Financial Statements and Reports. Unless the Company is
otherwise furnishing such information to the Holder hereof, from the date hereof
until the earlier to occur of (i) the exercise in full of this Warrant or (ii)
its termination, the Company shall deliver to the Holder the following financial
information:
(a) within one hundred twenty (120) days after the end of each
fiscal year of Borrower, (A) audited consolidated financial statements
of Borrower, including a balance sheet as of the close of such fiscal
year, an income statement and statements of changes in stockholders'
equity, and of cash flows for such fiscal year, all in reasonable
detail, prepared in accordance with GAAP consistently applied, and with
the report thereon of independent public accountants, reasonably
acceptable to Lender, and (B) unaudited consolidating financial
statements, including a balance sheet as of the close of such fiscal
year, an income statement and statements of changes in stockholders'
equity, and of cash flows for such fiscal year;
(b) within thirty (30) days after the end of each calendar
month, a consolidated balance sheet of Borrower as of the close of such
month and consolidated statements of earnings and retained earnings of
Borrower for such month and for the prior months of the current fiscal
year (on a year to date basis), each compared to the same period in the
previous fiscal year, all in reasonable detail, and unaudited but
prepared on the basis of GAAP consistently applied (except for the
absence of footnotes and subject to year-end adjustments), together
with a narrative status report of Borrower's management; and
(c) with reasonable promptness, such other financial data as
Lender may reasonably request.
Section 10. Certain Notices. In case at any time the Company shall
propose to:
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(a) declare any cash dividend upon its Common Stock;
(b) declare any dividend upon its Common Stock payable in stock or make
any special dividend or other distribution to the holders of its Common Stock;
(c) offer for subscription to the holders of any of its Common Stock
any additional shares of stock in any class or other rights;
(d) reorganize, or reclassify the capital stock of the Company, or
consolidate, merge or otherwise combine with, or sell all or substantially all
of its assets to, another corporation; or
(e) voluntarily or involuntarily dissolve, liquidate or wind up of the
affairs of the Company;
then, in any one or more of said cases, the Company shall give to the Holder, by
certified or registered mail, (i) at least twenty (20) days' prior written
notice of the date on which the books of the Company shall close or a record
shall be taken for such dividend, distribution or subscription rights or for
determining rights to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, and (ii) in the case of such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, at least
twenty (20) days' prior written notice of the date when the same shall take
place. Any notice required by clause (i) shall also specify, in the case of any
such dividend, distribution or subscription rights, the date on which the
holders of Common Stock shall be entitled thereto, and any notice required by
clause (ii) shall specify the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up, as the case may be.
Section 11. Put Right.
(a) The Company hereby irrevocably grants and issues to Holder the
right and option to sell to the Company (the "Put") this Warrant or the Shares
with respect to which this Warrant is exercisable, in whole or part, at any time
after October 7, 2002 at a purchase price (the "Purchase Price") equal to the
Put Value (as hereinafter defined) of the shares of Common Stock issuable to
Holder upon exercise of this Warrant.
(b) The Company shall pay to the Holder, in cash or certified or
cashier's check, the Purchase Price within thirty (30) days of the receipt of
written notice from the Holder stating its intention to exercise the Put and the
number of shares with respect to which it is then exercising the Put (the "Put
Securities").
(c) The Put Value shall by equal to the fair market value of the
Company (determined pursuant to Section 5(g) of this Warrant) multiplied by a
fraction, the numerator of which shall be the number of Put Securities and the
denominator of which shall be the number of shares of Common Stock then
outstanding (including the Put Securities).
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[Remainder of Page Intentionally Left Blank]
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[SIGNATURE PAGE TO STOCK PURCHASE WARRANT]
IN WITNESS WHEREOF, the parties hereto have set their hands as of the
date first above written.
BUILDNET, INC.
By: /s/ Keith T. Brown
Name: Keith T. Brown
Title: President and CEO
Attest: /s/ J. William Waddell
Name: J. William Waddell
Title: Secretary
PETRA CAPITAL, LLC, a Georgia
limited liability company
By: Petra Capital Management, LLC,
Manager
By: /s/ John Stein
Name: John Stein
Title: Member
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BUILDNET, INC.
CONSENT, WAIVER AND AMENDMENT AGREEMENT
THIS CONSENT, WAIVER AND AMENDMENT AGREEMENT (the "Agreement") is
entered into by and among Buildnet, Inc., a North Carolina corporation (the
"Company"), Petra Capital, LLC, a Georgia limited liability company and its
assignee, Petra Special Purpose, LLC, a Delaware limited liability company
(collectively, "Petra"), Piedmont Venture Partners Limited Partnership, a North
Carolina limited partnership ("Piedmont"), Southeast Interactive Technology
Fund I, LLC, and Southeast Interactive Technology Fund II, LLC, (collectively,
"Southeast"), John Stein ("Stein") and Stein Family Partners, L.P. ("Stein
Partners"), and is effective this 20th day of May 1999. Petra and Piedmont are
sometimes referred to herein as a "Lender" and collectively as the "Lenders."
RECITALS
WHEREAS, the Company has entered into an Agreement and Plan of Merger
(the "Merger Agreement") with The F.A.S.T. Management Group, Inc., a Washington
corporation ("FAST"), a copy of which is attached hereto as Exhibit A, whereby
FAST has merged with a wholly owned subsidiary of the Company so that FAST is a
wholly owned subsidiary of the Company (the "FAST Merger"). As a result of the
FAST Merger, shareholders of FAST are now shareholders of the Company.
WHEREAS, following consummation of the FAST Merger, the Company
desires to enter into a Series B Preferred Stock Purchase Agreement (the
"Purchase Agreement"), a copy of which is attached hereto as Exhibit B,
pursuant to which the Company would issue approximately 3,300,000 shares of its
Series B Preferred Stock for an aggregate purchase price of approximately
$30,000,000 (excluding convertible debt) (the "Series B Financing"); and
WHEREAS, the Company, Petra and Piedmont are parties to that certain
Loan and Security Agreement dated October 8, 1997 (the "Senior Loan
Agreement"), whereby consents, waivers and amendments under the Senior Loan
Agreement require the agreement of the Required Lenders pursuant to Section
9.15(b) thereof, and Petra and Piedmont collectively constitute the Required
Lenders; and
WHEREAS, Petra and Piedmont hold certain stock purchase warrants and
Petra holds rights to receive future warrants pursuant to the terms of the
Senior Loan Agreement (the "Senior Warrants"), and such Senior Warrants contain
adjustment provisions upon the Company's issuance of securities or other rights
to purchase securities convertible or exchangeable for Common Stock of the
Company; and
WHEREAS, the Company and Piedmont are parties to that certain Loan and
Security Agreement dated April 24, 1998 (the "Junior Loan Agreement"), whereby
consents, waivers and amendments under the Junior Loan Agreement require the
agreement of Piedmont pursuant to Section 8.14(b) thereof; and
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WHEREAS, Piedmont holds certain stock purchase warrants and rights to
receive future warrants pursuant to the terms of the Junior Loan Agreement (the
"Junior Warrants"), and such Junior Warrants contain adjustment provisions upon
the Company's issuance of securities or other rights to purchase securities
convertible or exchangeable for Common Stock of the Company; and
WHEREAS, Petra and Piedmont, in their capacities as Lenders, are
willing to consent to the transactions described herein; and
WHEREAS, the Company desires to issue to Petra a warrant to purchase
12,000 shares of Common Stock of the Company at an exercise price of $0.01 per
share and otherwise in substantially the same format as the Senior Warrants (as
amended pursuant to the terms contained herein) in consideration for the
amendment of each Senior Warrant held by it or that it is entitled to receive
(the "New Petra Warrant"); and
WHEREAS, the Company and Petra, Piedmont, Southeast, and certain other
shareholders (collectively, the "Rights Investors") are parties to that certain
Amended and Restated Investor Rights Agreement dated October 8, 1997, as
amended on December 30, 1997 and April 24, 1998 (the "Rights Agreement"),
pursuant to which Section 3 grants the Rights Investors the right of first
refusal to purchase up to their pro rata share of New Securities (as such term
is defined therein); and
WHEREAS, Section 6.5 of the Rights Agreement provides that any term of
such Rights Agreement may be waived with the written consent of the holders of
at least two thirds of the shares of Registrable Securities (as defined
therein); and
WHEREAS, the requisite percentage of Rights Investors desire to waive
the rights of first refusal pursuant to the Rights Agreement in connection with
the Company's issuance of Common Stock pursuant to the FAST Merger and the
Company's execution of the Purchase Agreement and issuance of Series B
Preferred Stock pursuant to the terms thereof; and
WHEREAS, the Company is party to a Note and Warrant Purchase
Agreement, dated November 12, 1998 with Piedmont and Southeast, a Note and
Warrant Purchase Agreement, dated February 22, 1999 with Stein and a Note and
Warrant Purchase Agreement, dated April 9, 1999 with Stein Partners and
Southeast, and has issued warrants to purchase Common Stock of the Company in
connection therewith (the "Bridge Warrants"); and
WHEREAS, the holders of the Bridge Warrants each have the right to
receive additional shares of Common Stock exercisable pursuant to such Bridge
Warrants if the next Equity Financing of the Company (as defined in the
applicable Note and Warrant Purchase Agreement) was not consummated on or
before May 15, 1999, and such holders desire to waive their rights to receive
additional shares of Common Stock exercisable pursuant to the Bridge Warrants
upon these terms.
NOW, THEREFORE, in consideration of the premises, and other good and
valuable consideration, the receipt of which is hereby acknowledged, and
pursuant to Section 9.15(b) of the Senior Loan Agreement, Section 8.14(b) of
the Junior Loan Agreement and Section 6.5 of the Rights Agreement, the parties
hereby agree as follows.
13
1. Consent under Senior Loan Agreement. Pursuant to the terms of the
Senior Loan Agreement, each of Petra and Piedmont hereby consents to
the FAST Merger and the Series B Financing, including the Company's
execution and delivery of the Merger Agreement, the Purchase Agreement
and the transactions contemplated therein. Specifically, and with
reference to the Merger Agreement and Purchase Agreement each of Petra
and Piedmont (i) waives any prohibition contained in Section 4.17 of
the Senior Loan Agreement against acquiring the business of or merging
or consolidating with any other entity or acquiring or creating a
subsidiary, (ii) waives any prohibition contained in Section 4.30 of
the Senior Loan Agreement against issuing any shares of Common Stock
or any securities convertible into shares of Common Stock, (iii)
waives any prohibition contained in Section 4.19 of the Senior Loan
Agreement against declaring a dividend of $3.15 per share on the
Series A Preferred Stock of the Company in connection with the Series
B Financing and (iv) acknowledges that this Agreement shall serve as
adequate notice of the issuance of capital stock or instruments
convertible into or exchangeable for shares of capital stock of the
Company as required by Section 4.22 of the Senior Loan Agreement.
2. Consent under Junior Loan Agreement. Pursuant to the terms of the
Junior Loan Agreement, Piedmont hereby consents to the FAST Merger and
the Series B Financing, including the Company's execution and delivery
of the Merger Agreement, the Purchase Agreement and the transactions
contemplated therein. Specifically, and with reference to the Merger
Agreement and Purchase Agreement, Piedmont (i) waives any prohibition
contained in Section 4.16 of the Junior Loan Agreement against
acquiring the business of or merging or consolidating with any other
entity or acquiring or creating a subsidiary, (ii) waives any
prohibition contained in Section 4.28 of the Junior Loan Agreement
against issuing any shares of Common Stock or securities convertible
into shares of Common Stock, (iii) waives any prohibition contained in
Section 4.18 of the Senior Loan Agreement against declaring a dividend
of $3.15 per share on the Series A Preferred Stock of the Company in
connection with the Series B Financing and (iv) acknowledges that this
Agreement shall serve as adequate notice of the issuance of capital
stock or instruments convertible into or exchangeable for shares of
capital stock of the Company as required by Section 4.21 of the Junior
Loan Agreement.
Additionally, Piedmont hereby waives its right to receive an
additional warrant issuable as of April 24, 1999 pursuant to the terms
of Section 1.4(b)(i) of the Junior Loan Agreement in exchange for the
Company's obligation to pay to Piedmont $315,000 in cash, exchangeable
for shares of the Company's Series B Preferred Stock issued pursuant
to the Purchase Agreement and in accordance with the terms of the
Series B Financing.
3. Waiver of Adjustment and Amendment of Senior Warrants. Each of Petra
and Piedmont hereby waive all adjustment rights contained in Section
5(c) of all Senior Warrants held by it or which it is entitled to
receive, with respect to the issuance of securities by the Company:
(a) pursuant to the Note and Warrant
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Purchase Agreements executed by the Company on each of October 6,
1998, November 12, 1998, February 22, 1999 and April 9, 1999; (b)
pursuant to the Merger Agreement; or (c) pursuant to the Purchase
Agreement. Additionally, each of Petra and Piedmont hereby agrees to
amend and restate Section 11(a) of each Senior Warrant held by it or
that it is entitled to receive to read as follows.
(a) The Company hereby irrevocably grants and issues to
Holder the right and option to sell to the Company (the
"Put") this Warrant or the Shares with respect to which this
Warrant is exercisable, in whole or part, at any time after
May 31, 2006 at a purchase price (the "Purchase Price") equal
to the Put Value (as hereinafter defined) of the shares of
Common Stock issuable to holder upon exercise of this
Warrant.
Additionally, each of Petra and Piedmont hereby agrees to amend
Section 11(c) of each Senior Warrant held by it or that it is entitled
to receive by adding the following sentence at the end thereof: For
purposes of this Section 11(c) the "number of shares of Common Stock
then outstanding" shall be deemed to include all shares of Common
Stock issuable upon exercise or conversion of all then outstanding
Convertible Securities directly or indirectly exercisable for or
convertible into Common Stock.
Each of Petra and Piedmont may request that the Company issue to it
amended Senior Warrants reflecting this change.
4. Waiver of Adjustment and Amendment of Junior Warrants. Piedmont hereby
waives all adjustment rights contained in Section 5(c) of all Junior
Warrants held by it or which it is entitled to receive, with respect
to the issuance of securities by the Company: (a) pursuant to the Note
and Warrant Purchase Agreements executed by the Company on each of
October 6, 1998, November 12, 1998, February 22, 1999 and April 9,
1999; (b) pursuant to the Merger Agreement; or (c) pursuant to the
Purchase Agreement. Piedmont hereby agrees to amend and restate
Section 11(a) of each Junior Warrant held by it or that it is entitled
to receive to read as follows.
(a) The Company hereby irrevocably grants and issues to
Holder the right and option to sell to the Company (the
"Put") this Warrant or the Shares with respect to which this
Warrant is exercisable, in whole or part, at any time after
May 31, 2006 at a purchase price (the "Purchase Price") equal
to the Put Value (as hereinafter defined) of the shares of
Common Stock issuable to holder upon exercise of this
Warrant.
Additionally, Piedmont hereby agrees to amend Section 11(c) of each
Junior Warrant held by it or that it is entitled to receive by adding
the following sentence at the end thereof: For purposes of this
Section 11(c) the "number of shares of Common Stock then outstanding"
shall be deemed to include all shares of Common Stock issuable upon
exercise or
15
conversion of all then outstanding Convertible Securities directly or
indirectly exercisable for or convertible into Common Stock.
Piedmont may request that the Company issue to it amended Junior
Warrants reflecting this change.
5. Approval for New Petra Warrant. In connection with the amendment of
the Senior Warrants as provided in Section 4 above, the Company shall
issue to Petra the New Petra Warrant exercisable for 12,000 shares of
Common Stock of the Company at $0.01 per share. Each of Petra,
Piedmont and Southeast hereby waives any and all approval rights and
preemptive rights it may have with respect to the issuance of the New
Petra Warrant and any antidilution rights it may have with respect to
the issuance and subsequent exercise of the New Petra Warrant.
6. Waiver of Rights of First Refusal. The requisite percentage of Rights
Investors hereby waives any and all right of first refusal to purchase
up to a pro rata share of New Securities pursuant to Section 3 of the
Rights Agreement, in connection with the FAST Merger and the Series B
Financing, including all securities issued or authorized for issuance
pursuant to the terms of the FAST Merger and Series B Financing.
7. Waiver of Adjustment of Bridge Warrants. Each of Piedmont, Southeast,
Stein and Stein Partners hereby waives all rights to receive
additional shares of Common Stock exercisable pursuant to the Bridge
Warrants if the next Equity Financing of the Company (as defined in
the applicable Note and Warrant Purchase Agreement) is not consummated
on or before May 15, 1999; provided that no such waiver shall be
applicable if the Equity Financing of the Company is consummated after
May 30, 1999.
8. Copies. Each of the parties hereto acknowledges that is has received
copies of the Merger Agreement and the Purchase Agreement.
9. Validity. The consents and waivers contained herein shall be
applicable only if both the FAST Merger and the Series B Financing are
consummated within ten (10) business days of each other.
10. Governing Law. All questions concerning the construction, validity and
interpretation of this Agreement will be governed by and construed in
accordance with the internal law (and not the law of conflicts) of
North Carolina.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one agreement.
[THE NEXT PAGE IS THE SIGNATURE PAGE.]
16
This Consent, Waiver and Amendment Agreement is effective as of the
date first set forth above and may be signed in counterparts.
COMPANY: BUILDNET, INC.
By: /s/ Keith T. Brown
Name: Keith T. Brown
Title: CEO
PETRA: PETRA CAPITAL, LLC
By: /s/ Michael W. Blackburn
Name: Michael W. Blackburn
Title: Member
PETRA SPECIAL PURPOSE, LLC
By: /s/ Michael W. Blackburn
Name: Michael W. Blackburn
Title: Member
PIEDMONT: PIEDMONT VENTURE PARTNERS
LIMITED PARTNERSHIP
By: Piedmont Management, Inc.,
Its General Partner
By: /s/ W. W. Neal
Name: W.W. Neal
Title: Managing Principal
SOUTHEAST: SOUTHEAST INTERACTIVE
TECHNOLOGY FUND I, LLC
By: /s/ David C. Blivin
Name: David C. Blivin
Title: Managing Director
17
SOUTHEAST INTERACTIVE
TECHNOLOGY FUND II, LLC
By: /s/ David C. Blivin
Name: David C. Blivin
Title: Managing Director
STEIN: JOHN STEIN
/s/ John Stein
STEIN PARTNERS: STEIN FAMILY PARTNERS, L.P.
By: /s/ John Stein
Name: John Stein
Title: Managing General Partner