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EXHIBIT 10.53
THIS WARRANT, AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF, HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY APPLICABLE STATE SECURITIES LAWS OR "BLUE SKY" LAWS, AND MAY NOT
BE TRANSFERRED UNLESS SO REGISTERED OR UNLESS AN EXEMPTION FROM
REGISTRATION IS AVAILABLE.
TRUCKBAY.COM, INC.
STOCK PURCHASE WARRANT
Date of Issuance: June 21, 1999 Certificate No. W-1
FOR VALUE RECEIVED, TruckBay.com, Inc., a Georgia corporation (the
"Company"), hereby grants to Dorsey Trailers, Inc., a Delaware corporation, or
its registered assigns (the "Registered Holder"), the right to purchase from
the Company, at any time on or prior to June 21, 2004 (the "Expiration Date"),
up to 4,250,000 shares of Warrant Stock at a price per share of $0.00021 (as
adjusted from time to time hereunder, the "Exercise Price"). The amount and
kind of securities obtainable pursuant to the rights granted hereunder and the
purchase price for such securities are subject to adjustment pursuant to the
provisions contained in this Stock Purchase Warrant (this "Warrant").
This Warrant is subject to the following provisions:
Section 1. Definitions. The following terms have meanings set forth
below:
"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, contract or otherwise.
"Aggregate Exercise Price" has the meaning set forth in Section 2B(i)
(d) hereof.
"Assignment" has the meaning set forth in Section 2B(i)(c) hereof.
"Common Stock" means, collectively, the Company's Common Stock, par
value $.00001 per share, and any capital stock of any class of the Company
hereafter authorized which is not limited to a fixed sum or percentage of par
or stated value in respect to the rights of the holders thereof to participate
in dividends or in the distribution of assets upon any liquidation, dissolution
or winding up of the Company.
"Common Stock Deemed Outstanding" means, at any given time, the number
of shares of Common Stock actually outstanding at such time, plus the number of
shares of Common Stock deemed to be outstanding pursuant to paragraphs 3B(i)
and 3B(ii) hereof regardless of whether the Options or Convertible Securities
are actually exercisable at such time.
"Company" has the meaning set forth in the preface hereof.
"Convertible Securities" means any stock or securities (directly or
indirectly) convertible into or exchangeable for Common Stock.
"Date of Issuance" means June 21, 1999.
"Exercise Agreement" has the meaning set forth in Section 2C hereof.
"Exercise Price" has the meaning set forth in the preamble hereto.
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"Exercise Time" has the meaning set forth in Section 2B hereof.
"Expiration Date" has the meaning set forth in the preamble hereto.
"GAAP" means United States generally accepted accounting principles.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended from time to time.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind.
"Liquidating Dividend" has the meaning set forth in Section 4 hereof.
"Market Price" means, with respect to any security on any date, (x) if
such security is quoted on NASDAQ or listed on a national securities exchange,
the closing sales price of such security on NASDAQ or a national securities
exchange, as applicable, on the last trading day prior to such date, and (y) if
such security is not quoted on NASDAQ or listed on a national securities
exchange, the fair value per share determined jointly by the Company and the
Registered Holder, provided that if the Company and the Registered Holder are
unable to reach an agreement within a reasonable period of time, such fair
value shall be determined by a recognized investment banking firm jointly
selected by the Company and the Registered Holder, whose determination shall be
final and binding upon the Company and the Registered Holder (and the fees and
expenses of such recognized investment banker shall be paid by the Company).
"NASDAQ" means National Association of Securities Dealers Automated
Quotations National Market System.
"Options" means any rights, options or warrants to subscribe for or
purchase Common Stock or Convertible Securities.
"Organic Change" has the meaning set forth in Section 3D hereof.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Public Offering" means a sale of Common Stock to the public in an
offering pursuant to an effective registration statement filed with the SEC
pursuant to the Securities Act, as then in effect.
"Purchase Rights" has the meaning set forth in Section 5 hereof.
"Purchaser" has the meaning set forth in Section 2B(i)(A) hereof.
"Sale of the Company" means, whether in a single transaction or in a
series of related transactions, (i) a sale of all or substantially all of the
assets of the Company and its Subsidiaries on a consolidated basis, or (ii) the
transfer or other disposition of more than 50% of the outstanding shares of
Common Stock or the outstanding equity securities of any of the Company's
Subsidiaries (in each case whether accomplished by stock purchase, asset
purchase, merger, recapitalization, reorganization or other transaction).
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"SEC" means the United States Securities and Exchange Commission and
any governmental body or agency succeeding to the functions thereof
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"Subsidiary" means any Person with respect to which the Company (or a
Subsidiary thereof) owns a majority of the capital stock or has the power to
vote or direct the voting of sufficient securities to elect a majority of the
directors or other governing body.
"Warrant" has the meaning set forth in the preamble hereto.
"Warrant Stock" means the Company's Common Stock; provided that if
there is a change such that the securities issuable upon exercise of this
Warrant are issued by an entity other than the Company or there is a change in
the type or class of securities so issuable, then the term "Warrant Stock"
shall mean one share of the security issuable upon exercise of the Warrant if
such security is issuable in shares, or shall mean the smallest denomination in
which such security is issuable if such security is not issuable in shares.
Section 2. Exercise of Warrant.
2A. Exercise Period. The Registered Holder may exercise, in whole
or in part (but not as to a fractional share of Warrant Stock), the purchase
rights represented by this Warrant at any time and from time to time after the
Date of Issuance until the Expiration Date.
2B. Exercise Procedure.
(i) This Warrant shall be deemed to have been exercised when
the Company has received all of the following items (the "Exercise Time"):
(a) a completed Exercise Agreement, executed by
the Person exercising all or part of the purchase rights represented
by this Warrant (the "Purchaser");
(b) this Warrant;
(c) if this Warrant is not registered in the
name of the Purchaser, an assignment (an "Assignment") in the form set
forth in Exhibit II hereto evidencing the assignment of this Warrant
to the Purchaser, in which case the Registered Holder shall have
complied with the provisions set forth in Section 8 hereof, and
(d) a check or wire transfer payable to the
Company in an amount equal to the product of the Exercise Price
multiplied by the number of shares of Warrant Stock being purchased
upon such exercise (the "Aggregate Exercise Price").
(ii) Certificates for shares of Warrant Stock purchased
upon exercise of this Warrant shall be delivered by the Company to the
Purchaser within five business days after the date of the Exercise
Time. Unless all of the purchase rights represented hereby have been
exercised, the Company shall prepare a new Warrant, substantially
identical hereto, representing the rights formerly represented by this
Warrant which have not been exercised and shall, within such
five-business day period, deliver such new Warrant to the Person
designated for delivery in the Exercise Agreement.
(iii) The Warrant Stock issuable upon the exercise of this
Warrant shall be deemed to have been issued to the Purchaser at the
Exercise Time, and the Purchaser shall be deemed for all purposes to
have become the record holder of such Warrant Stock at the Exercise
Time.
(iv) The issuance of certificates for shares of Warrant
Stock upon exercise of this Warrant shall be made without charge to
the Registered Holder or the Purchaser for any issuance tax in respect
thereof or other cost incurred by the Company in connection with such
exercise and the related issuance of shares of Warrant Stock. Each
share of Warrant Stock issuable upon exercise of this Warrant shall,
upon payment of the Exercise Price therefor, be fully paid and
nonassessable and free from all Liens with respect to the issuance
thereof
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(v) The Company shall not close its books against the
transfer of this Warrant or of any shares of Warrant Stock issued or
issuable upon the exercise of this Warrant in any manner which
interferes with the timely exercise of this Warrant.
(vi) The Company and the Registered Holder or Purchaser,
as applicable, shall use their best efforts to make any filings with
any governmental body, NASDAQ or any stock exchange in which the
Warrant Stock is listed or obtain any approvals of any governmental
body, NASDAQ, any stock exchange in which the Warrant Stock is listed
or the shareholders of the Company (including those in connection with
the HSR Act) required prior to or in connection with any exercise of
this Warrant within a reasonable period of time. The costs and
expenses (including reasonable attorneys fees) associated with any
filing or approval required (including those in connection with the
HSR Act) shall be paid by the Company.
(vii) Notwithstanding any other provision hereof, if an
exercise of any portion of this Warrant is to be made in connection
with a Public Offering or the Sale of the Company, the exercise of any
portion of this Warrant may, at the election of the holder hereof, be
conditioned upon the consummation of the Public Offering or the Sale
of the Company in which case such exercise shall not be deemed to be
effective until the consummation of such transaction.
(viii) The Company shall at all times reserve and keep
available out of its authorized but unissued shares of Warrant Stock
solely for the purpose of issuance upon the exercise of this Warrant,
such number of shares of Warrant Stock as are issuable upon the
exercise of this Warrant. The Company shall take all such actions as
may be necessary to assure that all such shares of Warrant Stock may
be so issued without violation of any applicable law or governmental
regulation or any requirements of any domestic securities exchange
upon which shares of Warrant Stock may be listed (except for official
notice of issuance which shall be immediately delivered by the Company
upon each such issuance). The Company shall not take any action which
would cause the number of authorized but unissued shares of Warrant
Stock to be less than the number of such shares required to be
reserved hereunder for issuance upon exercise of this Warrant.
2C. Exercise Agreement. Upon any exercise of this Warrant, the
exercise agreement (the "Exercise Agreement") shall be substantially in the
form set forth in Exhibit I hereto, except that if the shares of Warrant Stock
are not to be issued in the name of the Person in whose name this Warrant is
registered, the Exercise Agreement shall also state the name of the Person to
whom the certificates for the shares of Warrant Stock are to be issued, and if
the number of shares of Warrant Stock to be issued does not include all the
shares of Warrant Stock purchasable hereunder, it shall also state the name of
the Person to whom a new Warrant for the unexercised portion of the rights
hereunder is to be delivered. Such Exercise Agreement shall be dated the actual
date of execution thereof.
Section 3. Adjustment of Exercise Price and Number of Shares. In order
to prevent dilution of the rights granted under this Warrant, the Exercise
Price shall be subject to adjustment from time to time as provided in this
Section 3, and the number of shares of Warrant Stock obtainable upon exercise
of this Warrant shall be subject to adjustment from time to time as provided in
this Section 3.
3A. Adjustment of Shares of Warrant Stock Upon Issuance of Common
Stock. If and whenever the Company issues or sells, or in accordance with
Section 3B is deemed to have issued or sold (the "Sale"), any shares of Common
Stock (other than up to 1,000 shares (as such number may be adjusted pursuant
to any split, dividend, recapitalization or otherwise) of Common Stock issued
to Donald A. Orr upon the exercise of a stock option grant approved by the
board of directors of the Company) for consideration per share of less than
$0.14 (as such number may be adjusted pursuant to any split, dividend,
recapitalization or otherwise), then immediately upon the Sale the number of
shares of Warrant Stock issuable upon exercise of this Warrant shall be
adjusted to equal the number determined by multiplying the number of shares of
Warrant Stock issuable upon exercise of this Warrant immediately prior to the
Sale by a fraction (i) the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to the Sale plus the number of
shares of Common Stock issued or sold or deemed to be issued or sold in the
Sale, and (ii) the denominator of which shall be the number of shares of Common
Stock outstanding immediately prior to the Sale plus the number of
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shares of Common Stock which the aggregate consideration for the total number
of shares of Common Stock issued or sold or deemed to be issued or sold in the
Sale would purchase at a purchase price equal to $0.14 per share.
3B. Effect of Certain Events. For purposes of determining the
adjustment of shares of Warrant Stock under Section 3A, the following shall be
applicable:
(i) Issuance of Options. If the Company in any manner
grants or sells any Options for the purchase of shares of Common Stock or any
Convertible Securities, then the total maximum number of shares of Common Stock
issuable upon the exercise of such Options, or upon conversion or exchange of
the total maximum amount of such Convertible Securities issuable upon the
exercise of such Options, shall be deemed to be outstanding and to have been
issued and sold by the Company at such time. For purposes of this Section 3B(i)
and Section 3A, the price per share for which shares of Common Stock are
issuable upon exercise of such Options or upon conversion or exchange of such
Convertible Securities is determined by dividing (A) the total amount, if any,
received or receivable by the Company as consideration for the granting or sale
of such Options, plus the minimum aggregate amount of additional consideration
payable to the Company upon the exercise of all such Options, plus in the case
of such Options which are exercisable into Convertible Securities, the minimum
aggregate amount of additional consideration, if any, payable to the Company
upon the issuance or sale of such Convertible Securities and the conversion or
exchange thereof, by (B) the total maximum number of shares of Common Stock
issuable upon exercise of such Options or upon the conversion or exchange of
all such Convertible Securities issuable upon the exercise of such Options.
(ii) Issuance of Convertible Securities. If the Company in
any manner issues or sells any Convertible Securities, then the maximum number
of shares of Common Stock issuable upon conversion or exchange of such
Convertible Securities shall be deemed to be outstanding and to have been
issued and sold by the Company at such time. For the purposes of this Section
3B(ii) and Section 3A, the price per share for which shares of Common Stock are
issuable upon conversion or exchange thereof is determined by dividing (A) the
total amount received or receivable by the Company as consideration for the
issue or sale of such Convertible Securities, plus the minimum aggregate amount
of additional consideration, if any, payable to the Company upon the conversion
or exchange thereof, by (B) the total maximum number of shares of Common Stock
issuable upon the conversion or exchange of all such Convertible Securities.
(iii) Change in Option Price or Conversion Rate. If the
purchase price provided for in any Options, the additional consideration, if
any, payable upon the issue, conversion or exchange of any Convertible
Securities, or the rate at which any Convertible Securities are convertible
into or exchangeable for Common Stock changes at any time, the adjustment
required by Section 3A shall be calculated and the number of shares of Warrant
Stock shall be adjusted as provided therein.
(iv) Treatment of Expired Options and Unexercised
Convertible Securities. Upon the expiration of any Option or the termination of
any right to convert or exchange any Convertible Securities without the
exercise of such Option or right, the number of shares of Warrant Stock
acquirable hereunder shall be adjusted immediately to the number of shares of
Warrant Stock which would have been in effect at the time of such expiration or
termination had such Option or Convertible Securities, to the extent
outstanding immediately prior to such expiration or termination, never been
issued.
(v) Calculation of Consideration Received. If any shares
of Common Stock, Options or Convertible Securities are issued or sold or deemed
to have been issued or sold for cash, the consideration received therefor shall
be deemed to be the net amount received by the Company therefor. In case any
shares of Common Stock, Options or Convertible Securities are issued or sold
for a consideration other than cash, the amount of the consideration other than
cash received by the Company shall be the fair value of such consideration,
except where such consideration consists of securities, in which case the
amount of consideration received by the Company shall be the Market Price
thereof as of the date of receipt. In case any shares of Common Stock, Options
or Convertible Securities are issued to the owners of the non-surviving entity
in connection with any merger in which the Company is the surviving entity, the
amount of consideration therefor shall be deemed to be the fair value of such
portion of the net assets and business of the non-surviving entity as is
attributable to such shares of Common Stock, Options or Convertible Securities,
as
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the case may be. The fair value of any consideration other than cash or
securities shall be determined jointly by the Company and the Registered
Holder. If such parties are unable to reach agreement within a reasonable
period of time, such fair value shall be determined by a recognized investment
banking firm jointly selected by the Company and the Registered Holder. The
determination of such recognized investment banker shall be final and binding
on the Company and the Registered Holder of this Warrant, and the fees and
expenses of such recognized investment banker shall be paid by the Company.
(vi) Integrated Transactions. In case any Option is issued
in connection with the issue or sale of other securities of the Company,
together comprising one integrated transaction in which no specific
consideration is allocated to such Options by the parties thereto, the Options
shall be deemed to have been issued without consideration.
(vii) Treasury Shares. The number of shares of Common Stock
outstanding at any given time does not include shares of Common Stock owned or
held by or for the account of the Company or any Subsidiary, and the
disposition of any shares so owned or held shall be considered an issue or sale
of shares of Common Stock.
(viii) Record Date. If the Company takes a record of the
holders of shares of Common Stock for the purpose of entitling them (A) to
receive a dividend or other distribution payable in shares of Common Stock,
Options or in Convertible Securities or (B) to subscribe for or purchase shares
of Common Stock, Options or Convertible Securities, then such record date shall
be deemed to be the date of the issue or sale of the shares of Common Stock
deemed to have been issued or sold upon the declaration of such dividend or the
making of such other distribution or the date of the granting of such right of
subscription or purchase, as the case may be.
3C. Subdivision or Combination of Shares of Common Stock. If the
Company at any time subdivides (by any stock split, stock dividend,
recapitalization or otherwise) its outstanding shares of Common Stock into a
greater number of shares, the Exercise Price in effect immediately prior to
such subdivision shall be proportionately reduced and the number of shares of
Warrant Stock obtainable upon exercise of this Warrant shall be proportionately
increased. If the Company at any time combines (by reverse stock split or
otherwise) its outstanding shares of Common Stock into a smaller number of
shares, the Exercise Price in effect immediately prior to such combination
shall be proportionately increased and the number of shares of Warrant Stock
obtainable upon exercise of this Warrant shall be proportionately decreased.
3D. Reorganization, Reclassification, Consolidation, Merger or Sale.
Except as provided in Section 9, any recapitalization, reorganization,
reclassification, consolidation, merger, sale of all or substantially all of
the Company's assets or other transaction, which in each case is effected in
such a way that the holders of shares of Common Stock are entitled to receive
(either directly or upon subsequent liquidation) stock, securities or assets
with respect to or in exchange for shares of Common Stock is referred to herein
as "Organic Change." Prior to the consummation of any Organic Change, the
Company shall make appropriate provision (in form and substance satisfactory to
the Registered Holder) to insure that the Registered Holder shall thereafter
have the right to acquire and receive, in lieu of or addition to (as the case
may be) the shares of Warrant Stock immediately theretofore acquirable and
receivable upon the exercise of this Warrant, such shares of stock, securities
or assets as may be issued or payable with respect to or in exchange for the
number of shares of Warrant Stock immediately theretofore acquirable and
receivable upon exercise of this Warrant had such Organic Change not taken
place. In any such case, the Company shall make appropriate provision (in form
and substance satisfactory to the Registered Holder) with respect to the
Registered Holders' rights and interests to insure that the provisions of this
Section 3 and Sections 4 and 5 hereof shall thereafter be applicable to this
Warrant. The Company shall not effect any such consolidation, merger or sale,
unless prior to the consummation thereof, the successor entity (if other than
the Company) resulting from consolidation or merger or the entity purchasing
such assets assumes by written instrument (in form and substance satisfactory
to the Registered Holder), the obligation to deliver to the Registered Holder
such shares of Warrant Stock, securities or assets as, in accordance with the
foregoing provisions, such holder may be entitled to acquire.
3E. Dissolution, Liquidation or Winding Up. If the Company shall, at
any time before the expiration of this Warrant, dissolve, liquidate or wind up
its affairs, the Registered Holder shall, upon exercise of this
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Warrant have the right to receive, in lieu of the shares of Warrant Stock that
the Registered Holder otherwise would have been entitled to receive, the same
kind and amount of assets as would have been issued, distributed or paid to the
Registered Holder upon any such dissolution, liquidation or winding up with
respect to such shares of Warrant Stock had the Registered Holder been the
holder of record of such shares of Warrant Stock receivable upon exercise of
this Warrant on the date for determining those entitled to receive any such
distribution. If any such dissolution, liquidation or winding up results in any
cash distribution in excess of the Exercise Price provided by this Warrant for
the shares of Warrant Stock receivable upon exercise of this Warrant, the
Registered Holder may, at the Registered Holder's option, exercise this Warrant
without making payment of the Exercise Price and, in such case, the Company
shall, upon distribution to the Registered Holder, consider the Exercise Price
to have been paid in full and, in making settlement to the Registered Holder,
shall obtain receipt of the Exercise Price by deducting an amount equal to the
Exercise Price for the shares of Warrant Stock receivable upon exercise of this
Warrant from the amount payable to the Registered Holder. For purposes of this
paragraph, the sale of all or substantially all of the assets of the Company
and distribution of the proceeds thereof to the Company's members shall be
deemed a liquidation.
3F. Certain Events. If any event occurs of the type contemplated by
the provisions of this Section 3 but not expressly provided for by such
provisions (including, without limitation, the granting of stock appreciation
rights, phantom stock rights or other rights with equity features), then the
Company's board of directors shall make an appropriate adjustment in the
Exercise Price and the number of shares of Warrant Stock obtainable upon
exercise of this Warrant so as to protect the rights of the Registered Holder;
provided that no such adjustment shall increase the Exercise Price or decrease
the number of shares of Warrant Stock obtainable as otherwise determined
pursuant to this Section 3.
3G. Notices.
(i) Immediately upon any adjustment of the Exercise Price
or the number of shares of Warrant Stock obtainable upon exercise of this
Warrant, the Company shall give written notice thereof to the Registered
Holder, setting forth in reasonable detail and certifying the calculation of
such adjustment.
(ii) The Company shall give written notice to the
Registered Holder at least 20 days prior to the date on which the Company
closes its books or takes a record (A) with respect to any dividend or
distribution upon the Common Stock, (B) with respect to any pro rata
subscription offer to holders of Common Stock or (C) for determining rights to
vote with respect to any Organic Change, Sale of the Company, dissolution or
liquidation.
(iii) The Company shall also give written notice to the
Registered Holders at least 20 days prior to the date on which any issuance or
sale of shares of Common Stock, Options or Convertible Securities will be
consummated or on which any Organic Change, dissolution or liquidation shall
take place.
Section 4. Liquidating Dividends. If the Company declares or pays a
dividend upon the shares of Common Stock payable otherwise than in cash out of
earnings or earned surplus (determined in accordance with GAAP) except for a
dividend payable in shares of Common Stock (a "Liquidating Dividend"), then the
Company shall pay to the Registered Holder at the time of payment thereof the
Liquidating Dividend which would have been paid to the Registered Holder of the
Warrant Stock (after netting out the Aggregate Exercise Price) had this Warrant
been fully exercised immediately prior to the date on which a record is taken
for such Liquidating Dividend, or, if no record is taken, the date as of which
the record holders of shares of Common Stock entitled to such dividends are to
be determined.
Section 5. Purchase Rights. If at any time the Company grants, issues
or sells any Options, Convertible Securities or rights to purchase shares of
Common Stock, Warrants, securities or other property pro rata to the record
holders of shares of Common Stock (the "Purchase Rights"), then the Registered
Holder shall be entitled to acquire, upon the terms applicable to such Purchase
Rights, the aggregate Purchase Rights which such holder could have acquired if
the Registered Holder had held the number of shares of Warrant Stock acquirable
upon complete exercise of this Warrant immediately before the date on which a
record is taken for the grant, issuance or sale of such Purchase Rights, or, if
no such record is taken, the date as of which
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the record holders of shares of Common Stock are to be determined for the
grant, issue or sale of such Purchase Rights.
Section 6. Preemptive Rights. If and whenever the Company proposes to
issue or sell shares of Common Stock or Options or any Convertible Securities,
in addition to any adjustment which the Registered Holder may be entitled to
receive from the Company under Section 3A, the Registered Holder shall have the
right to acquire whatever portion of the shares of Common Stock or Options or
Convertible Securities necessary for such Registered Holder to maintain the
same percentage equity interest in the Company, on a fully diluted basis, as
such Registered Holder had prior to the issuance or sale of such shares of
Common Stock, Options or Convertible Securities. The Registered Holder's
purchase in such issuance or sale shall be on the same terms and conditions as
those applicable to the purchaser given the most favorable terms and conditions
by the Company. The rights contained in this Section 6 shall terminate and be
of no further force or effect immediately prior to the closing of a Public
Offering.
Section 7. No Voting Rights; Limitations of Liability. This Warrant
shall not entitle the holder hereof to any voting rights or other rights as a
member of the Company; provided, that the Registered Holder or Registered
Holders of this Warrant or any Warrant representing more than 50 percent of the
purchase rights hereunder shall have the right to designate one member of the
Board of Directors of the Company. No provision hereof, in the absence of
affirmative action by the Registered Holder to purchase Warrant Stock, and no
enumeration herein of the rights or privileges of the Registered Holder shall
give rise to any liability of such holder for the Exercise Price of Warrant
Stock acquirable by exercise hereof or as a shareholder of the Company. The
rights contained in this Section 7 shall terminate and be of no further force
or effect immediately prior to the closing of a Public Offering.
Section 8. Warrant Transferable. Subject to federal and state
securities laws, this Warrant and all rights hereunder are transferable, in
whole or in part, without charge to the Registered Holder, upon surrender of
this Warrant with a properly executed Assignment at the address of the Company
set forth in Section 12.
Section 9. Sale of the Company. Notwithstanding anything herein the
contrary, prior to the consummation of a Sale of the Company, the Registered
Holder shall be given the option, in its sole discretion, to either (x)
exercise this Warrant prior to the consummation of the Sale of the Company and
participate in such sale as a holder of such class of Common Stock, or (y) upon
the consummation of the Sale of the Company, receive in exchange for this
Warrant consideration equal to the amount determined by multiplying (1) the
same amount of consideration per share of Common Stock received by holders of
such class of Common Stock in connection with the Sale less the Exercise Price
by (2) the number of shares of Warrant Stock represented by this Warrant.
Section 10. Warrant Exchangeable for Different Denominations. This
Warrant is exchangeable, upon the surrender hereof by the Registered Holder at
the address of the Company set forth in Section 12, for new Warrants of like
tenor representing in the aggregate the purchase rights hereunder, and each of
such new Warrants shall represent such portion of such rights as is designated
by the Registered Holder at the time of such surrender. The date the Company
initially issues this Warrant shall be deemed to be the "Date of Issuance"
hereof regardless of the number of times new certificates representing the
unexpired and unexercised rights formerly represented by this Warrant shall be
issued. Each holder of a new Warrant shall have the rights and privileges of
the Registered Holder of this Warrant as provided herein.
Section 11. Replacement. Upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the Registered Holder shall be
satisfactory) of the ownership and the loss, theft, destruction or mutilation
of any certificate evidencing this Warrant, and in the case of any such loss,
theft or destruction, upon receipt of indemnity reasonably satisfactory to the
Company (provided that if the Registered Holder is Dorsey Trailers, Inc. or any
of its Affiliates, then its own agreement shall be satisfactory), or, in the
case of any such mutilation, upon surrender of such certificate, the Company
shall (at its expense) execute and deliver in lieu of such certificate a new
certificate of like kind representing the same rights represented by such lost,
stolen, destroyed or mutilated certificate and dated the date of such lost,
stolen, destroyed or mutilated certificate.
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Section 12. Notices. Any notice provided for in this Warrant shall be
in writing and shall be either personally delivered, or sent via facsimile, or
mailed first class mail (postage prepaid) or sent by reputable overnight
courier service (charges prepaid) to such Person as follows:
if to the Company:
TruckBay.com, Inc.
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FAX:
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Attention:
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with a copy to:
Kilpatrick Stockton, LLP
1100 Peachtree Street
Suite 2800
Atlanta, GA 30309-4530
FAX:
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Attention: Larry Ledbetter, Esq.
if to the Registered Holder:
Dorsey Trailers, Inc.
One Paces West, Suite 1700
2727 Paces Ferry Road
Atlanta, GA 30339
FAX: 770-438-8190
Attention: Marilyn R. Marks
with a copy to:
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA 30309-3424
FAX: 404-881-4777
Attention: Alexander W. Patterson, Esq.
or at such address or to the attention of such other Person as the recipient
party has specified by prior written notice to the sending party. Notices will
be deemed to have been given hereunder when delivered personally or sent via
facsimile (against receipt therefor), five business days after deposit in the
U.S. mail and one business day after deposit with a reputable overnight courier
service.
Section 13. Amendment and Waiver. Except as otherwise provided herein,
the provisions of this Warrant may be amended and the Company may take any
action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
Registered Holder.
Section 14. Descriptive Headings; Governing Law. The descriptive
headings of the several sections of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant. The laws of the State of
Georgia shall govern the construction, validity, enforcement and interpretation
of this Warrant, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Georgia or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than
the State of Georgia.
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[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Company has caused this Stock Purchase Warrant
to be signed and attested by its duly authorized officers under its corporate
seal and to be dated the Date of Issuance hereof
TRUCKBAY.COM, INC.
By:
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Name:
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Title:
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[Seal]
Attest:
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ACKNOWLEDGED AND AGREED TO
AS OF THE DATE OF ISSUANCE:
DORSEY TRAILERS, INC.
By:
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Name:
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Title:
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EXHIBIT I
EXERCISE AGREEMENT
Dated:
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The undersigned, pursuant to the provisions set forth in the attached
Stock Purchase Warrant (Certificate No. W-____), hereby agrees to subscribe for
the purchase of ____ shares of the Warrant Stock covered by such Stock Purchase
Warrant and makes payment herewith in full therefor at the price per share
provided by such Stock Purchase Warrant. A certificate for such shares of
Warrant Stock shall be made in the name of ___________________________, and
shall be mailed to the following address: ______________________________. [A
NEW STOCK PURCHASE WARRANT FOR THE UNEXERCISED PORTION OF THE RIGHTS UNDER THE
ATTACHED STOCK PURCHASE WARRANT SHALL BE ISSUED IN THE NAME OF
__________________________, AND SHALL BE MAILED TO THE FOLLOWING ADDRESS:
____________________________.]
Name of Registered Holder:
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Signature:
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Name:
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Title:
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EXHIBIT II
ASSIGNMENT
Dated:
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FOR VALUE RECEIVED, _________________________ hereby sells, assigns
and transfers all of the rights of the undersigned under the attached Stock
Purchase Warrant (Certificate No. W-______) with respect to the number of
shares of the Warrant Stock covered thereby set forth below, unto:
Names of Assignee Address No. of Shares
Name of Assignor:
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Signature:
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Name:
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Title:
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