THIS WARRANT AND THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THIS WARRANT AND SUCH SECURITIES MAY NOT BE SOLD, MORTGAGED,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER APPLICABLE SECURITIES LAWS.
WARRANT
To Purchase Common Stock of
MEDEWAY.COM, INC.
1. Grant of Warrant. MedEWay.com, Inc., a Texas corporation (the
"Company") hereby grants to MB Software Corporation ("Holder"), the right to
purchase from the Company such number of shares of Common Stock as shall result
in Holder owning 5% of the outstanding Common Stock of the Company, on a fully
diluted basis as of the date of exercise. The Common Stock issuable upon the
exercise of this Warrant is sometimes referred to herein as the "Securities."
2. Exercise Price. The exercise price per share of Common Stock
shall be $.001 (the "Exercise Price").
3. Term; Exercise. The term of this Warrant shall be for a period of
ten years, beginning on November 11, 1999 (the "Term"). This Warrant may only be
exercised (i) at any time on or after the initial public offering of the Company
or (ii) immediately following the sale of all or substantially all of the assets
of the Company or (iii) immediately before (x) the sale of all of the
outstanding shares of Common Stock of the Company by the holders thereof or (y)
the merger of the Company or similar business combination with another entity in
which the Company is not the survivor.
In order to exercise this Warrant, Holder shall deliver to the Company
at its principal office shall be designated from time to time by the Company:
(i) a written notice of Holder's election to exercise this Warrant, which notice
shall specify the number of Securities to be purchased pursuant to such
exercise; (ii) cash or cash equivalent payable to the order of the Company in an
amount equal to the aggregate Exercise Price for all Securities to be purchased
pursuant to such exercise; and (iii) a subscription for the Securities to be
purchased, in the form of the Subscription appearing at the end of this Warrant.
Upon receipt thereof, the Company shall, as promptly as practicable, and in any
event within ten (10) days thereafter, execute or cause to be executed and
deliver to such Holder certificates representing the aggregate number of full
Securities issuable upon such exercise, or if the Company has a transfer agent
for any of the Securities, to cause such transfer agent to do the same. The
stock certificates so delivered shall be registered in the name of Holder, or
such other name as shall be designated in said notice, in which case, Holder
shall be responsible for any applicable issue or transfer taxes.
This Warrant shall be deemed to have been exercised and such
certificates shall be deemed to have been issued, and Holder or any other person
so designated to be named therein shall be deemed to have become a holder of
record of such shares for all purposes, as of the date that said notice,
together with said payment and Subscription are received by the Company as
aforesaid (the "Record Date"). The Holder of this Warrant shall not, by virtue
of its ownership of this Warrant, be entitled to any rights of a shareholder in
the Company, either at law or in equity; provided, however, Holder shall, for
all purposes, be deemed to have become the holder of record of such shares on
the Record Date. This Warrant shall remain issued and outstanding until the
expiration of the Term.
4. Taxes. The issuance of any Securities or other certificate upon the
exercise of this Warrant shall be made without charge to the registered Holder
hereof, or for any tax (other than income tax) in respect of the issuance of
such certificate.
5. Transfer; Replacement. Subject to the provisions of the legend on
the face of this Warrant, this Warrant and all options and rights hereunder are
transferable, as to all or any part of the number of Securities purchasable upon
its exercise, by the Holder hereof in person or by duly authorized attorney on
the books of the Company upon surrender of this Warrant at the principal offices
of the Company, together with the form of transfer authorization attached hereto
duly executed. The Company shall deem and treat the registered Holder of this
Warrant at any time as the absolute owner hereof for all purposes and shall not
be affected by any notice to the contrary. If this Warrant is transferred in
part, the Company shall at the time of surrender of this Warrant, issue to the
transferee a Warrant covering the portion of this Warrant so transferred, and
issue to the transferor a Warrant covering the portion of this Warrant not
transferred. Upon receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant, the Company shall
issue a new Warrant of like tenor. Any such transfer shall be made in compliance
with all applicable Federal and state securities laws, and the transferring
Holder agrees to indemnify and hold harmless the Company from any violations
thereof.
6. Cash in Lieu of Fractional Shares. The Company shall not be required
to issue fractional Securities upon the exercise of this Warrant. If the Holder
of this Warrant would be entitled, upon the exercise of any rights evidenced
hereby, to receive a fractional interest in any Security, the Company shall pay
a cash adjustment for such fraction equal to the equivalent market price for
such fractional share (as determined in the manner prescribed by the Board of
Directors) at the close of business on the exercise date.
7. No Dilution or Impairment. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary act, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such actions as may be
necessary or appropriate in order to protect the rights of Holder of this
Warrant against impairment.
2
8. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas without giving effect to the
principles of choice of law thereof.
9. Successors and Assigns. This Warrant and the rights evidenced hereby
shall inure to the benefit of and be binding upon the successors and permitted
assigns of the Company and the Holder hereof and shall be enforceable by any
such Holder.
10. Reservation of Stock. The Company shall at all times reserve and
keep available out of its authorized but unissued shares of Common Stock, solely
for the purpose of effecting the conversion of this Warrant, such number of
Securities as shall from time to time be sufficient to effect the exercise of
this Warrant. If at any time the number of authorized but unissued Securities
shall not be sufficient to effect the exercise of all or any portion of this
Warrant, the Company will take such corporate action as may, in the opinion of
its counsel, be necessary to increase its authorized but unissued Securities to
such number of shares as shall be sufficient for such purpose.
11. Headings. Headings of the paragraphs in this Warrant are for
convenience and reference only and shall not, for any purpose, be deemed a part
of this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed.
Dated as of November 11, 1999.
MEDEWAY.COM, INC.
By:
Its:
SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
The undersigned registered owner of that certain Warrant of the Company
(the "Warrant") irrevocably exercises the Warrant for and purchases ___________
shares of Common Stock of MedEWay.com, Inc. purchasable with this Warrant, and
herewith makes payment therefor, all at the price and on the terms and
conditions specified in the Warrant and requests that certificates for the
shares of Common Stock hereby purchased (and any securities or other property
issuable upon such exercise) be issued in the name of and delivered to
_________________________ whose address is _______________________________.
Dated:_________________________
By:____________________________________
Its:___________________________________
Address:_______________________________
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all the rights
of the undersigned under this Warrant with respect to the number of shares of
Common Stock set forth below:
Number of Shares
Name & Address of Assignee of Common Stock
-------------------------- -------------------------
and does hereby irrevocably constitute and appoint as Attorney _________________
to register such transfer on the books of MedEWay.com, Inc. maintained for the
purpose, with full power of substitution in the premises.
Dated:_________________________
By:________________________________
Its:_______________________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within Warrant in every
particular, without alteration or enlargement or any change
whatever.
The Assignee named above, by acceptance of this assignment, agrees to
be bound by the terms of this Warrant with the same force and effect as if a
signatory thereto.
(signature)
Address:_______________________________
Dated:______________________