SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): APRIL 11, 2003
ANZA CAPITAL, INC.
(Exact name of registrant as specified in its charter)
NEVADA O-24512 88-1273503 (State or other (Commission (I.R.S. Employer jurisdiction of incorporation) File Number) Identification No.) |
3200 BRISTOL STREET, SUITE 700
COSTA MESA, CA 92626
(Address of principal executive offices) (zip code)
(714) 866-2100
(Registrant's telephone number, including area code)
(Former name or former address, if changed since last report.)
ITEM 1. CHANGES IN CONTROL OF REGISTRANT
Not applicable.
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
Not applicable.
ITEM 3. BANKRUPTCY OR RECEIVERSHIP
Not applicable.
ITEM 4. CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANT
Not applicable.
ITEM 5. OTHER EVENTS
At the 2003 Annual Meeting of Shareholders, held on April 11, 2003, the shareholders approved the following:
1. The election of Vincent Rinehart, Scott A. Presta, Kenneth Arevalo and L. Wade Svicarovich to the Board of Directors;
2. An amendment to the Articles of Incorporation of the Company to effectuate a one (1) for twenty (20) reverse stock split of the Company's issued and outstanding common stock;
3. An amendment to the Articles of Incorporation of the Company to increase the authorized preferred stock to 2,500,000 shares;
4. The adoption of Restated Articles of Incorporation for the purpose of consolidating previous amendments to the Company's Articles of Incorporation;
5. The Anza Capital, Inc. 2003 Omnibus Securities Plan;
6. The Second Restated Bylaws of Anza Capital, Inc.;
7. The ratification of the appointment of McKennon Wilson & Morgan LLP, Certified Public Accountants, as independent auditors of the Company for the fiscal year ending April 30, 2003;
8. The ratification of recent restructuring transactions involving preferred stockholders and debtholders;
9. The ratification of the Company's stock repurchase plan;
10. The ratification of the Company's acquisition strategy.
Details of each of the approved agenda items can be reviewed in the Company's 14C Information Statement on file with the SEC.
Included as exhibits to this Current Report on Form 8-K are the material documents and agreements executed in connection with the agenda items approved at the shareholders meeting.
ITEM 6. RESIGNATIONS OF DIRECTORS AND EXECUTIVE OFFICERS
Not applicable.
ITEM 7. FINANCIAL STATEMENTS
Not applicable.
ITEM 8. CHANGE IN FISCAL YEAR
Not applicable.
ITEM 9. REGULATION FD DISCLOSURE
The following Exhibits are filed as part of this report.
EXHIBITS ITEM NO. DESCRIPTION --------- ----------- 3.1 Certificate of Amendment of Articles of Incorporation of Anza Capital, Inc. 3.2 Restated Articles of Incorporation of Anza Capital, Inc. 3.3 Second Restated Bylaws of Anza Capital, Inc. 4.1 Anza Capital, Inc. 2003 Omnibus Securities Plan 4.2 Form of Incentive Stock Option Agreement relating to options granted under the Plan 4.3 Form of Non Statutory Stock Option Agreement relating to options granted under the Plan 4.4 Form of Common Stock Purchase Agreement relating to restricted stock granted under the Plan 3 |
4.5 Stock Exchange Agreement dated February 28, 2003 with Keyway Investments, Ltd. 4.6 Warrant Agreement No. 1 with Keyway Investments, Ltd. 4.7 Warrant Agreement No. 2 with Keyway Investments, Ltd. 4.8 Warrant Agreement No. 3 with Keyway Investments, Ltd. 4.9 Stock Exchange Agreement dated February 28, 2003 with Cranshire Capital, L.P. 4.10 Warrant Agreement No. 1 with Cranshire Capital, L.P. 4.11 Warrant Agreement No. 2 with Cranshire Capital, L.P. 4.12 Warrant Agreement No. 3 with Cranshire Capital, L.P. 4.13 Stock Exchange Agreement dated February 28, 2003 with EURAM Cap Strat. "A" Fund Limited 4.14 Warrant Agreement No. 1 with EURAM Cap Strat. "A" Fund Limited 4.15 Warrant Agreement No. 2 with EURAM Cap Strat. "A" Fund Limited 4.16 Warrant Agreement No. 3 with EURAM Cap Strat. "A" Fund Limited 4.17 Stock Exchange Agreement dated February 28, 2003 with the dotCom Fund, LLC 4.18 Warrant Agreement No. 1 with the dotCom Fund, LLC 4.19 Warrant Agreement No. 2 with the dotCom Fund, LLC 4.20 Warrant Agreement No. 3 with the dotCom Fund, LLC 4.21 Stock Exchange Agreement dated February 28, 2003 with Barbara Dunster 4.22 Stock Exchange Agreement dated February 28, 2003 with the Staron Family Trust 4 |
4.23 Debt Exchange Agreement dated February 28, 2003 with Vincent Rinehart 4.24 Certificate of Designation for Series D Convertible Preferred Stock 4.25 Certificate of Designation for Series E Convertible Preferred Stock 4.26 Certificate of Designation for Series F Convertible Preferred Stock |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: April 21, 2003 Anza Capital, Inc., a Nevada corporation
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
ANZA CAPITAL, INC.
(Pursuant to NRS 78.385 and 78.390 - after issuance of stock)
The undersigned being the President and Secretary of Anza Capital, Inc., a Nevada Corporation, hereby certifies that pursuant to Unanimous Written Consent of the Board of Directors of said Corporation on February 28, 2003 and approved by the shareholders at the annual meeting held on April 11, 2003, it was voted that this Certificate of Amendment of Articles of Incorporation authorizing a reverse stock split of the Corporation's stock at a ratio of 1-for-20, and increasing the authorized preferred stock, be filed. The effective date for this reverse stock split will be Tuesday, April 21, 2003.
The undersigned further certifies that ARTICLE V of the Articles of Incorporation, originally filed on August 18, 1988, and as amended, are amended to read as follows:
ARTICLE "V" is hereby amended to read as follows:
This Corporation is authorized to issue two classes of shares of stock to be designated as "Common Stock" and "Preferred Stock". The total number of shares of Common Stock which this Corporation is authorized to issue is One Hundred Million (100,000,000) shares, par value $0.001. The total number of shares of Preferred Stock which this Corporation is authorized to issue is Two Million Five Hundred Thousand (2,500,000) shares, par value $0.001.
Effective April 21, 2003, the issued and outstanding shares of common stock of Anza Capital, Inc. shall be subject to a 1-for-20 reverse stock split.
The shares of Preferred Stock may be issued from time to time in one or more series. The Board of Directors of the Corporation (the "Board of Directors") is expressly authorized to provide for the issue of all or any of the shares of the Preferred Stock in one or more series, and to fix the number of shares and to determine or alter for each such series, such voting powers, full or limited, or no voting powers, and such designations, preferences, and relative, participating, optional, or other rights and such qualifications, limitations, or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by the Board of Directors providing for the issue of such shares (a "Preferred Stock Designation") and as may be permitted by the General Corporation Law of the State of Nevada. The Board of Directors is also expressly authorized to increase or decrease (but not below the number of shares of such series then outstanding) the number of shares of any series subsequent to the issue of shares of that series. In case the number of shares of any such series shall be so decreased, the shares constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series."
The undersigned hereby certifies that he has on this 12th day of April, 2003 executed this Certificate amending the Articles of Incorporation heretofore filed with the Secretary of State of Nevada.
RESTATED
ARTICLES OF INCORPORATION
OF
ANZA CAPITAL, INC.
The undersigned being the President and Secretary of Anza Capital, Inc., a Nevada Corporation, hereby certify that by unanimous written consent of the Board of Directors on February 28, 2003, and approved by the shareholders at the annual meeting held on April 11, 2003, it was voted that the Corporation would amend and restate its articles of incorporation in accordance with Nevada Revised Statutes 78.403, as follows:
ARTICLE I
This corporation is incorporated pursuant to the laws of the State of Nevada.
ARTICLE II
The name of this corporation is: ANZA CAPITAL, INC.
ARTICLE III
The duration of this Corporation shall be perpetual.
ARTICLE IV
The Corporation shall have unlimited power to engage in and do any lawful act concerning any or all lawful business for which corporations may be organized under the Nevada corporation codes.
ARTICLE V
This Corporation is authorized to issue two classes of shares of stock to be designated as "Common Stock" and "Preferred Stock". The total number of shares of Common Stock which this Corporation is authorized to issue is One Hundred Million (100,000,000) shares, par value $0.001. The total number of shares of Preferred Stock which this Corporation is authorized to issue is Two Million Five Hundred Thousand (2,500,000) shares, par value $0.001.
The shares of Preferred Stock may be issued from time to time in one or more series. The Board of Directors of the Corporation (the "Board of Directors") is expressly authorized to provide for the issue of all or any of the shares of the Preferred Stock in one or more series, and to fix the number
of shares and to determine or alter for each such series, such voting powers, full or limited, or no voting powers, and such designations, preferences, and relative, participating, optional, or other rights and such qualifications, limitations, or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by the Board of Directors providing for the issue of such shares (a "Preferred Stock Designation") and as may be permitted by the General Corporation Law of the State of Nevada. The Board of Directors is also expressly authorized to increase or decrease (but not below the number of shares of such series then outstanding) the number of shares of any series subsequent to the issue of shares of that series. In case the number of shares of any such series shall be so decreased, the shares constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series.
ARTICLE VI
The Corporation will not commence business until consideration of the value of at least five Hundred Dollars ($500.00) has been received for the issuance of shares.
ARTICLE VII
Omitted.
ARTICLE VIII
The stock of this Corporation shall not be subject to any assessment to pay the debts of the Corporation
A. Number of Directors. The initial Board of Directors of the Corporation shall consist of five members who need not be shareholders of the Corporation, or residents of the State of Nevada.
B. Names of Initial Board. Ommitted.
C. Voting for Directors. Directors shall be elected by a vote of such majority of a quorum of shareholders present at any meeting held for such purpose. Cumulative voting shall not be allowed.
ARTICLE X
No contract or transaction between the Corporation and one or more of its directors or officers or shareholders, or between the Corporation and any other entity in which one or more of its officers, directors or shareholders or officers, directors or shareholders, shall be void or voidable solely for this reason, or solely because the officers, directors or shareholders or present at, or participate in the meeting of the Board of Directors, committee thereof, or shareholders which authorized the transaction. Interested officers, directors or shareholders may be counted for purposes of a quorum, and interested shareholders may vote on the question of approval of such contract or transaction, provided, however, that full disclosure of their interest is made prior to such vote to the other shareholders present at such meeting, or if by proxy, in a statement in writing delivered to such other shareholders not later than the date on which their proxy is requested for such meeting.
ARTICLE XI
In addition to the other powers now or hereafter conferred upon the Board of Directors by the Articles of Incorporation, by the By-Laws of the Corporation, or the laws of the State of Nevada, the Board of Directors may from time to time distribute to the shareholders in partial liquidation, out of the capital surplus of the Corporation, a portion of the corporate assts, in ash or in kind, and the Board of Directors may cause the Corporation to purchase, take, receive, or otherwise acquire its own shares out of the capital surplus of the Corporation; subject, however, to the limitations contained in the Nevada corporation codes.
ARTICLE XII
The right to make distributions to stockholders of assets or cash belonging to the Corporation in partial liquidation of the assets of the Corporation is hereby granted to the Board of Directors of the Corporation.
ARTICLE XIII
The right to sell or acquire stock or assets of this Corporation without stockholders' approval is hereby granted to the Board of Directors of the Corporation.
ARTICLE XIV
In addition to, and in no way limiting the powers or authority now or hereafter conferred upon the Corporation by the Articles of Incorporation, the By-Laws of the Corporation, or the laws of the State of Nevada, the Corporation shall possess, and may exercise all powers of indemnification of officers, directors, employees, agents, and other persons and all powers and authority incidental thereto (including without limitation of power and authority to advance expenses, and to purchase and maintain insurance with respect thereto), without regard to whether or not such powers and authority are specifically provided for by Nevada corporation codes. The Board of Directors of the Corporation is hereby authorized and empowered on behalf of the Corporation and without shareholder action, to exercise all of the Corporation's authority and powers of indemnification.
ARTICLE XV
The Corporation reserves the right to amend, alter, change, or repeal any provisions contained herein, or to add any provision to, its Articles of Incorporation, from time to time, and in any manner now or hereafter prescribed or permitted by Nevada corporation codes, and all rights and powers conferred upon directors and shareholders hereby are granted, subject to this reservation.
ARTICLE XVI
Omitted.
ARTICLE XVII
The initial By-Laws of the Corporation shall be adopted by the Board of Directors. The power to amend, alter, change, or repeal the By-Laws or adopt new By-Laws shall be vested in the Board of Directors of the Corporation.
ARTICLE XVIII
Omitted.
The number of shares of the corporation outstanding and entitled to vote on this Restated Articles of Incorporation is 99,347,900 shares of common stock; that the said change(s) and the Restated Articles of Incorporation have been consented to and approved by a majority of all the Stockholders of each class of stock outstanding and entitled to vote thereon. The changes set forth herein shall be effective upon the filing of these Restated Articles of Incorporation.
Dated: April 12, 2003
SECOND RESTATED
BYLAWS
OF
ANZA CAPITAL, INC.
a Nevada corporation
SECOND RESTATED
BYLAWS
OF
ANZA CAPITAL, INC.
a Nevada corporation ARTICLE I OFFICES 1 Section 1. Principal Office 1 Section 2. Other Offices 1 |
ARTICLE II
DIRECTORS - MANAGEMENT 1
Section 1. Powers, Standard of Care 1
A. Powers 1
B. Standard of Care; Liability 1
C. Exception for Close Corporation 2
Section 2. Number and Qualification of Directors 2
Section 3. Election and Term of Office of Directors 2
Section 4. Vacancies 2
Section 5. Removal of Directors 3
Section 6. Place of Meetings 3
Section 7. Annual Meetings 4
Section 8. Other Regular Meetings 4
Section 9. Special Meetings/Notices 4
Section 10. Waiver of Notice 4
Section 11. Quorums 5
Section 12. Adjournment 5
Section 13. Notice of Adjournment 5
Section 14. Board of Directors Provided by Articles or Bylaws 5
Section 15. Directors Action by Unanimous Written Consent 5 Section 16. Compensation of Directors 5 Section 17. Committees 5 Section 18. Meetings and Action of Committees 6 Section 19. Advisory Directors 6 ARTICLE III OFFICERS 6 Section 1. Officers 6 Section 2. Election of Officers 6 Section 3. Subordinate Officers, Etc. 6 Section 4. Removal and Resignation of Officers 7 |
Section 5. Vacancies 7
Section 6. Chairman of the Board 7
Section 7. President and Chief Executive Officer 7
Section 8. Secretary 7
Section 9. Chief Financial Officer or Treasurer. 8
ARTICLE IV
SHAREHOLDERS' MEETINGS 8
Section 1. Place of Meetings 8
Section 2. Annual Meeting 8
Section 3. Special Meetings 9
Section 4. Notice of Meetings - Reports 9
Section 5. Quorum 10
Section 6. Adjourned Meeting and Notice Thereof 10
Section 7. Waiver or Consent by Absent Shareholders 11
Section 8. Maintenance and Inspection of Bylaws 11
Section 9. Annual Report to Shareholders 12
Section 10. Financial Statements 12
Section 11. Annual Statement of General Information 13
ARTICLE IX
AMENDMENTS TO BYLAWS 13
Section 1. Amendment by Shareholders 13 Section 2. Amendment by Directors 13 Section 3. Record of Amendments 13 ARTICLE X MISCELLANEOUS 13 Section 1. Shareholders' Agreements 13 Section 2. Effect of Shareholders' Agreements 13 Section 3. Subsidiary Corporations 14 Section 4. Accounting Year 14 Section 5. Form 14 |
SECOND RESTATED
BYLAWS
OF
ANZA CAPITAL, INC.
A NEVADA CORPORATION
ARTICLE I
OFFICES
ARTICLE II
DIRECTORS - MANAGEMENT
(i) Each Director shall exercise such powers and otherwise perform such duties, in good faith, in the matters such Director believes to be in the best interests of the Corporation, and with such care, including reasonable inquiry, using ordinary prudence, as a person in a like position would use under similar circumstances.
(ii) In performing the duties of a Director, a Director shall be entitled to rely on information, opinions, reports, or statements, including financial statements and other financial data, in which case prepared or presented by:
(a) One or more officers or employees of the Corporation whom the Director believes to be reliable and competent in the matters presented,
(b) Counsel, independent accountants or other persons as to which the Director believes to be within such person's professional or expert competence, or
(c) A Committee of the Board upon which the Director does not serve, as to matters within its designated authority, which committee the Director believes to merit confidence, so long as in any such case the Director acts in good faith, after reasonable inquiry when the need therefore is indicated by the circumstances and without knowledge that would cause such reliance to be unwarranted.
A. Vacancies on the Board of Directors may be filled by a majority of the remaining Directors, though less than a quorum, or by a sole remaining Director, except that a vacancy created by the removal of a Director by the vote or written consent of the Shareholders, or by a court order, may be filled only by the vote of a majority of the shares entitled to vote, represented at a duly held meeting at which a quorum is present, or by the written consent of holders of the majority of the outstanding shares entitled to vote. Each Director so elected shall hold office until the next annual meeting of the Shareholders and until a successor has been elected and qualified.
B. A vacancy or vacancies on the Board of Directors shall be deemed to exist in the event of the death, resignation or removal of any Director, or if the Board of Directors by resolution declares vacant the office of a Director who has been declared of unsound mind by an order of court or convicted of a felony.
C. The Shareholders may elect a Director or Directors at any time to fill any vacancy or vacancies not filled by the Directors, but any such election by written consent shall require the consent of a majority of the outstanding shares entitled to vote.
D. Any Director may resign, effective on giving written notice to the Chairman of the Board, the President, the Secretary, or the Board of Directors, unless the notice specifies a later time for that resignation to become effective. If the resignation of a Director is effective at a future time, the Board of Directors may, prior to the effective date of a Director's resignation, elect a successor to take office when the resignation becomes effective.
E. No reduction of the authorized number of Directors shall have the effect of removing any Director before that Director's term of office expires.
A. The entire Board of Directors, or any individual Director, may be removed from office as provided by the Act. In such case, the remaining members, if any, of the Board of Directors may elect a successor Director to fill such vacancy for the remaining unexpired term of the Director so removed.
B. No Director may be removed (unless the entire Board is removed) when the votes cast against removal or not consenting in writing to such removal would be sufficient to elect such Director if voted cumulatively at an election at which the same total number of votes were cast (or, if such action is taken by written consent, all shares entitled to vote, were voted) and the entire number of Directors authorized at the time of the Directors most recent election were then being elected; and when by the provisions of the Articles of Incorporation the holders of the shares of any class or series voting as a class or series are entitled to elect one or more Directors, any Director so elected may be removed only by the applicable vote of the holders of the shares of that class or series.
A. Other regular meetings of the Board of Directors shall be held without call at such time as shall from time to time be fixed by the Board of Directors. Such regular meetings may be held without notice, provided the time and place of such meetings has been fixed by the Board of Directors, and further provided the notice of any change in the time of such meeting shall be given to all the Directors. Notice of a change in the determination of the time shall be given to each Director in the same manner as notice for such special meetings of the Board of Directors.
B. If said day falls upon a holiday, such meetings shall be held on the next succeeding day thereafter.
A. Special meetings of the Board of Directors for any purpose or purposes may be called at any time by the Chairman of the Board or the President or any Vice President or the Secretary or any two Directors.
B. Notice of the time and place for special meetings shall be delivered personally or by telephone to each Director or sent by first class mail or telegram, charges prepaid, addressed to each Director at his or her address as it is shown in the records of the Corporation. In case such notice is mailed, it shall be deposited in the United States mail at least four days prior to the time of holding the meeting. In case such notice is delivered personally, or by telephone or telegram, it shall be delivered personally or be telephone or to the telegram company at least 48 hours prior to the time of the holding of the meeting. Any oral notice given personally or by telephone may be communicated to either the Director or to a person at the office of the Director who the person giving the notice has reason to believe will promptly communicate same to the Director. The notice need not specify the purpose of the meeting, nor the place, if the meeting is to be held at the principal executive office of the Corporation.
A. The transactions of any meeting of the Board of Directors, however called, noticed, or wherever held, shall be as valid as though had at a meeting duly held after the regular call and notice if a quorum be present and if, either before or after the meeting, each of the Directors not present signs a written waiver of notice, a consent to holding the meeting or an approval of the minutes thereof. Waivers of notice or consent need not specify the purposes of the meeting. All such waivers, consents and approvals shall be filed with the corporate records or made part of the minutes of the meeting.
B. Notice of a meeting shall also be deemed given to any Director who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to such Director.
ARTICLE III
OFFICERS
A. Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by a majority of the Directors at that time in office, at any regular or special meeting of the Board of Directors, or, except in the case of an officer chosen by the Board of Directors, by any officer upon whom such power of removal may be conferred by the Board of Directors.
B. Any officer may resign at any time by giving written notice to the Board of Directors. Any resignation shall take effect on the date of the receipt of that notice or at any later time specified in that notice; and, unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the Corporation under any contract to which the officer is a party.
A. The Secretary shall keep, or cause to be kept, a book of minutes of all meetings of the Board of Directors and Shareholders at the principal office of the Corporation or such other place as the Board of Directors may order. The minutes shall include the time and place of holding the meeting, whether regular or special, and if a special meeting, how authorized, the notice thereof given, and the names of those present at Directors' and committee meetings, the number of shares present or represented at Shareholders' meetings and the proceedings thereof.
B. The Secretary shall keep, or cause to be kept, at the principal office of the Corporation or at the office of the Corporation's transfer agent, a share register, or duplicate share register, showing the names of the Shareholders and their addresses; the number and classes or shares held by each; the number and date of certificates issued for the same; and the number and date of cancellation of every certificate surrendered for cancellation.
C. The Secretary shall give, or cause to be given, notice of all the meetings of the Shareholders and of the Board of Directors required by the Bylaws or by law to be given. The Secretary shall keep the seal of the Corporation in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or by the Bylaws.
A. The Chief Financial Officer shall keep and maintain, or cause to be kept and maintained, in the manner the Chief Financial Officer deems appropriate in the best interest of the Corporation, adequate and correct accounts of the properties and business transactions of the Corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, earnings (or surplus) and shares issued. The books of account shall, at all reasonable times, be open to inspection by any Director.
B. The Chief Financial Officer shall deposit all monies and other valuables in the name and to the credit of the Corporation with such depositaries as may be designated by the Board of Directors. The Chief Financial Officer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, shall render to the President and Directors, whenever they request it, an account of all of the transactions of the Chief Financial Officer and of the financial condition of the Corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or the Bylaws.
ARTICLE IV
SHAREHOLDERS' MEETINGS
A. The annual meeting of the Shareholders shall be held, each year, as follows:
Time of Meeting: 10:00 a.m. Date of Meeting: October 15
B. If this day shall be a legal holiday, then the meeting shall be held on the next succeeding business day, at the same time. At the annual meeting, the Shareholders shall elect a Board of Directors, consider reports of the affairs of the Corporation and transact such other business as may be properly brought before the meeting.
C. If the above date is inconvenient, the annual meeting of Share- holders shall be held each year on a date and at a time designated by the Board of Directors within ninety days of the above date upon proper notice to all Shareholders.
A. Special meetings of the Shareholders for any purpose or purposes whatsoever, may be called at any time by the Board of Directors, the Chairman of the Board, the President, or by one or more Shareholders holding shares in the aggregate entitled to cast not less than 10% of the votes at any such meeting. Except as provided in paragraph B below of this Section 3, notice shall be given as for the annual meeting.
B. If a special meeting is called by any person or persons other than the Board of Directors, the request shall be in writing, specifying the time of such meeting and the general nature of the business proposed to be transacted, and shall be delivered personally or sent by registered mail or by telegraphic or other facsimile transmission to the Chairman of the Board, the President, or the Secretary of the Corporation. The officer receiving such request shall forthwith cause notice to be given to the Shareholders entitled to vote, in accordance with the provisions of Sections 4 and 5 of this Article IV, indicating that a meeting will be held at the time requested by the person or persons calling the meeting, not less than 35 nor more than 60 days after the receipt of the request. If the notice is not given within 20 days after receipt of the request, the person or persons requesting the meeting may give the notice in the manner provided in these Bylaws. Nothing contained in this paragraph of this Section shall be construed as limiting, fixing or affecting the time when a meeting of Shareholders called by action of the Board of Directors may be held.
A. Notice of any Shareholders meetings, annual or special, shall be given in writing not less than 10 days nor more than 60 days before the date of the meeting to Shareholders entitled to vote thereat by the Secretary or the Assistant Secretary, or if there be no such officer, or in the case of said Secretary or Assistant Secretary's neglect or refusal, by any Director or Shareholder.
B. Such notices or any reports shall be given personally or by mail or other means of written communication as provided in the Act and shall be sent to the Shareholder's address appearing on the books of the Corporation, or supplied by the Shareholder to the Corporation for the purpose of notice, and in the absence thereof, as provided in the Act by posting notice at a place where the principal executive office of the Corporation is located or by publication at least once in a newspaper of general circulation in the county in which the principal executive office is located.
C. Notice of any meeting of Shareholders shall specify the place, the day and the hour of meeting, and (i) in case of a special meeting, the general nature of the business to be transacted and that no other business may be transacted, or (ii) in the case of an annual meeting, those matters which the Board of Directors, at the date of mailing of notice, intends to present for action by the Shareholders. At any meetings where Directors are elected, notice shall include the names of the nominees, if any, intended at the date of notice to be presented for election.
D. Notice shall be deemed given at the time it is delivered personally or deposited in the mail or sent by other means of written communication. The officer giving such notice or report shall prepare and file in the minute book of the Corporation an affidavit or declaration thereof.
E. If action is proposed to be taken at any meeting for approval of (i) contracts or transactions in which a Director has a direct or indirect financial interest, (ii) an amendment to the Articles of Incorporation, (iii) a reorganization of the Corporation, (iv) dissolution of the Corporation, or (v) a distribution to preferred Shareholders, the notice shall also state the general nature of such proposal.
A. The holders of a majority of the shares entitled to vote at a Shareholders' meeting, present in person, or represented by proxy, shall constitute a quorum at all meetings of the Shareholders for the transaction of business except as otherwise provided by the Act or by these Bylaws.
B. The Shareholders present at a duly called or held meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough Shareholders to leave less than a quorum, if any action taken (other than adjournment) is approved by a majority of the shares required to constitute a quorum.
A. Any Shareholders' meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of the majority of the shares represented at such meeting, either in person or by proxy, but in the absence of a quorum, no other business may be transacted at such meeting.
B. When any meeting of Shareholders, either annual or special, is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at a meeting at which the adjournment is taken, unless a new record date for the adjourned meeting is fixed, or unless the adjournment is for more than 45 days from the date set for the original meeting, in which case the Board of Directors shall set a new record date. Notice of any adjourned meeting shall be given to each Shareholder of record entitled to vote at the adjourned meeting in accordance with the provisions of Section 4 of this Article IV. At any adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting.
A. The transactions of any meeting of Shareholders, either annual or special, however called and noticed, shall be valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the Shareholders entitled to vote, not present in person or by proxy, sign a written waiver of notice, or a consent to the holding of such meeting or an approval of the minutes thereof.
B. The waiver of notice or consent need not specify either the business to be transacted or the purpose of any regular or special meeting of Shareholders, except that if action is taken or proposed to be taken for approval of any of those matters specified in Section E of Section 4 of this Article IV, the waiver of notice or consent shall state the general nature of such proposal. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.
C. Attendance of a person at a meeting shall also constitute a waiver of notice of such meeting, except when the person objects, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and except that attendance at a meeting is not a waiver of any right to object to the consideration of matters not included in the notice. A Shareholder or Shareholders of the Corporation holding at least 5% in the aggregate of the outstanding voting shares of the Corporation may (i) inspect, and copy the records of Shareholders' names and addresses and shareholdings during usual business hours upon five days prior written demand upon the Corporation, and/or (ii) obtain from the transfer agent by paying such transfer agent's usual charges for such a list, a list of the Shareholders' names and addresses who are entitled to vote for the election of Directors, and their shareholdings, as of the most recent record date for which such list has been compiled or as of a date specified by the Shareholders subsequent to the day of demand. Such list shall be made available by the transfer agent on or before the later of five days after the demand is received or the date specified therein as the date as of which the list is to be compiled. The record of Shareholders shall also be open to inspection upon the written demand of any Shareholder or holder of a voting trust certificate, at any time during usual business hours, for a purpose reasonably related to such holder's interest as a Shareholder or as a holder of a voting trust certificate. Any inspection and copying under this Section may be made in person or by an agent or attorney of such Shareholder or holder of a voting trust certificate making such demand.
A. Provided the Corporation has 100 Shareholders or less, the Annual Report to Shareholders referred to in the Act is expressly dispensed with, but nothing herein shall be interpreted as prohibiting the Board of Directors from issuing annual or other period reports to Shareholders of the Corporation as they deem appropriate.
B. Should the Corporation have 100 or more Shareholders, an Annual Report to Shareholders must be furnished not later than 120 days after the end of each fiscal period. The Annual Report to Shareholders shall be sent at least 15 days before the annual meeting of the Shareholders to be held during the next fiscal year and in the manner specified in Section 4 of Article V of these Bylaws for giving notice to Shareholders of the Corporation. The Annual Report to Shareholders shall contain a Balance Sheet as of the end of the fiscal year, an Income Statement, and a Statement of Cash Flows or similar financial statements as the Chief Financial Officer deems appropriate in the best interest of the Corporation, for the fiscal year, accompanied by any report of independent accountants or, if there is no such report, the certificate of an authorized officer of the Corporation that the statements were prepared without audit from the books and records of the Corporation.
A. A copy of any annual financial statement and any Income Statement of the Corporation for each quarterly period of each fiscal year, and any accompanying Balance Sheet of the Corporation as of the end of each such period, that has been prepared by the Corporation shall be kept on file at the principal executive office of the Corporation for 12 months from the date of its execution, and each such statement shall be exhibited at all reasonable times to any Shareholder demanding an examination of such statement or a copy shall be made for any such Shareholder.
B. If a Shareholder or Shareholders holding at least 5% of the outstanding shares of any class of stock of the Corporation make a written request to the Corporation for an Income Statement of the Corporation for the three month, six month or nine month period of the then current fiscal year ended more than 30 days prior to the date of the request, and a Balance Sheet of the Corporation at the end of such period, the Chief Financial Officer shall cause such statement to be prepared, if not already prepared, and shall deliver personally or mail such statement or statements to the person making the request within 30 days after the receipt of such request. If the Corporation has not sent to the Shareholders its Annual Report for the last fiscal year, this report shall likewise be delivered or mailed to such Shareholder or Shareholders within 30 days after such request.
C. The Corporation also shall, upon the written request of any Shareholder, mail to the Shareholder a copy of the last annual, semi-annual or quarterly Income Statement which it has prepared and a Balance Sheet as of the end of such period. This quarterly Income Statement and Balance Sheet referred to in this Section shall be accompanied by the report thereon, if any, of any independent accountants engaged by the Corporation or the certificate of authorized officer of the Corporation such that financial statements were prepared without audit from the books and records of the Corporation.
ARTICLE V
AMENDMENTS TO BYLAWS
ARTICLE VI
MISCELLANEOUS
CERTIFICATE OF SECRETARY
I, the undersigned, certify that:
1 I am the duly elected and acting secretary of Anza Capital, Inc., a Nevada corporation; and
2 The foregoing Bylaws, consisting of 14 pages, are the Bylaws of this Corporation as adopted by the Board of Directors in accordance with the Nevada Business Corporation Act and that such Bylaws have not been amended and are in full force and effect.
IN WITNESS WHEREOF, I have subscribed my name and affixed the seal of this Corporation on April 12, 2003.
TABLE OF CONTENTS ----------------- Page ---- SECTION 1. PURPOSE. 1 SECTION 2. DEFINITIONS. 1 (a) "Award" 1 (b) "Board of Directors" 1 (c) "Change in Control" 1 (d) "Code" 1 (e) "Committee" 1 (f) "Common-Law Employee" 1 (g) "Company" 2 (h) "Employee" 2 (i) "Exchange Act" 2 (j) "Exercise Price" 2 (k) "Fair Market Value" 2 (l) "Incentive Stock Option" or "ISO" 2 (m) "Nonstatutory Option" or "NSO" 2 (n) "Offeree" 2 (o) "Option" 3 (p) "Optionee" 3 (q) "Outside Director" 3 (r) "Participant" 3 (s) "Plan" 3 (t) "Plan Year" 3 (u) "Purchase Price" 3 (v) "Restricted Share" 3 (w) "Service" 3 (x) "Share" 3 (y) "Stock" 3 (z) "Stock Award Agreement" 3 (aa) "Stock Option Agreement" 3 (bb) "Stock Purchase Agreement" 3 (cc) "Subsidiary" 3 (dd) "Total and Permanent Disability" 3 (ee) "W-2 Payroll" 3 SECTION 3. ADMINISTRATION. 4 (a) Committee Membership 4 (b) Committee Procedures 4 (c) Committee Responsibilities 4 (d) Committee Liability 4 (e) Financial Reports 4 SECTION 4. ELIGIBILITY. 4 (a) General Rule 4 (b) Ten-Percent Shareholders 4 |
(c) Attribution Rules 5 (d) Outstanding Stock 5 SECTION 5. STOCK SUBJECT TO PLAN. 5 (a) Basic Limitation 5 (b) Additional Shares 5 SECTION 6. TERMS AND CONDITIONS OF AWARDS OR SALES. 5 (a) Stock Purchase Agreement 5 (b) Duration of Offers 6 (c) Purchase Price 6 (d) Payment for Shares 6 (e) Exercise of Awards on Termination of Service 6 SECTION 7. ADDITIONAL TERMS AND CONDITIONS OF RESTRICTED 6 (a) Form and Amount of Award 6 (b) Exercisability 7 (c) Effect of Change in Control 7 (d) Voting Rights 7 SECTION 8. TERMS AND CONDITIONS OF OPTIONS. 7 (a) Stock Option Agreement 7 (b) Number of Shares 7 (c) Exercise Price 7 (d) Exercisability 7 (e) Effect of Change in Control 7 (f) Term 8 (g) Exercise of Options on Termination of Service 8 (h) Payment of Option Shares 8 (i) No Rights as a Shareholder 8 (j) Modification, Extension and Assumption of Options 8 SECTION 9. ADJUSTMENT OF SHARES. 9 (a) General 9 (b) Reorganizations 9 (c) Reservation of Rights 9 SECTION 10. WITHHOLDING TAXES. 9 (a) General 9 (b) Share Withholding 9 (c) Cashless Exercise/Pledge 9 (d) Other Forms of Payment 9 SECTION 11. ASSIGNMENT OR TRANSFER OF AWARDS. 10 (a) General 10 (b) Trusts 10 |
SECTION 12. LEGAL REQUIREMENTS. 10 SECTION 13. NO EMPLOYMENT RIGHTS. 10 SECTION 14. DURATION AND AMENDMENTS. 10 (a) Term of the Plan 10 (b) Right to Amend or Terminate the Plan 10 (c) Effect of Amendment or Termination 11 |
ANZA CAPITAL, INC. ------------------ |
The purpose of the Anza Capital, Inc. 2003 Securities Plan (the "Plan") is to offer selected employees, directors and consultants an opportunity to acquire a proprietary interest in the success of the Company, or to increase such interest, to encourage such selected persons to remain in the employ of the Company, and to attract new employees with outstanding qualifications. The Plan seeks to achieve this purpose by providing for Awards in the form of Restricted Shares and Options (which may constitute Incentive Stock Options or Nonstatutory Stock Options) as well as the direct award or sale of Shares of the Company's Common Stock. Awards may be granted under this Plan in reliance upon federal and state securities law exemptions.
(b) "Board of Directors" shall mean the Board of Directors of the Company, as constituted from time to time.
(c) "Change in Control" shall mean:
(i) The consummation of a merger, consolidation, sale of the Company's stock, or other reorganization of the Company (other than a reincorporation of the Company), if after giving effect to such merger, consolidation or other reorganization of the Company, the stockholders of the Company immediately prior to such merger, consolidation or other reorganization do not represent a majority interest of the holders of voting securities (on a fully diluted basis) with the ordinary voting power to elect directors of the surviving or resulting entity after such merger, consolidation or other reorganization; or
(ii) The sale of all or substantially all of the assets of the Company to a third party who is not an affiliate of the Company.
(iii) The term Change in Control shall not include: (a) a transaction the sole purpose of which is to change the state of the Company's incorporation, or (b) the Company's initial public offering.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(e) "Committee" shall mean a committee of the Board of Directors which is authorized to administer the Plan under Section 3.
(f) "Common-Law Employee" shall mean an individual paid from W-2 Payroll of the Company or a Subsidiary. If, during any period, the Company (or Subsidiary, as applicable) has not treated an individual as a Common-Law Employee and, for that reason, has not paid such individual in a manner which results in the issuance of a Form W-2 and withheld taxes with respect to him or her, then that individual shall not be an eligible Employee for that period, even if any person, court of law or government agency determines, retroactively, that that individual is or was a Common-Law Employee during all or any portion of that period.
(g) "Company" shall mean Anza Capital, Inc., an Nevada corporation.
(h) "Employee" shall mean (i) any individual who is a Common-Law Employee
of the Company or of a Subsidiary, (ii) a member of the Board of Directors,
including (without limitation) an Outside Director, or an affiliate of a member
of the Board of Directors, (iii) a member of the board of directors of a
Subsidiary, or (iv) an independent contractor who performs services for the
Company or a Subsidiary. Service as a member of the Board of Directors, a member
of the board of directors of a Subsidiary or an independent contractor shall be
considered employment for all purposes of the Plan except the second sentence of
Section 4(a).
(i) "Exchange Act" means the Securities and Exchange Act of 1934, as amended.
(j) "Exercise Price" shall mean the amount for which one Share may be purchased upon exercise of an Option, as specified by the Committee in the applicable Stock Option Agreement.
(k) "Fair Market Value" means the market price of Shares, determined by the Committee as follows:
(i) If the Shares were traded over-the-counter on the date in question but were not traded on the Nasdaq Stock Market or the Nasdaq National Market System, then the Fair Market Value shall be equal to the mean between the last reported representative bid and asked prices quoted for such date by the principal automated inter-dealer quotation system on which the Shares are quoted or, if the Shares are not quoted on any such system, by the "Pink Sheets" published by the National Quotation Bureau, Inc.;
(ii) If the Shares were traded over-the-counter on the date in question and were traded on the Nasdaq Stock Market or the Nasdaq National Market System, then the Fair Market Value shall be equal to the last- transaction price quoted for such date by the Nasdaq Stock Market or the Nasdaq National Market;
(iii) If the Shares were traded on a stock exchange on the date in question, then the Fair Market Value shall be equal to the closing price reported by the applicable composite transactions report for such date; and
(iv) If none of the foregoing provisions is applicable, then the Fair Market Value shall be determined by the Committee in good faith on such basis as it deems appropriate.
In all cases, the determination of Fair Market Value by the Committee shall be conclusive and binding on all persons.
(l) "Incentive Stock Option" or "ISO" shall mean an employee incentive stock option described in Code section 422(b).
(m) "Nonstatutory Option" or "NSO" shall mean an employee stock option that is not an ISO.
(n) "Offeree" shall mean an individual to whom the Committee has offered the right to acquire Shares under the Plan (other than upon exercise of an Option).
(o) "Option" shall mean an Incentive Stock Option or Nonstatutory Option granted under the Plan and entitling the holder to purchase Shares.
(p) "Optionee" shall mean an individual or estate who holds an Option.
(q) "Outside Director" shall mean a member of the Board who is not a Common-Law Employee of the Company or a Subsidiary.
(r) "Participant" shall mean an individual or estate who holds an Award.
(s) "Plan" shall mean this 2003 Omnibus Securities Plan of Anza Capital, Inc.
(t) "Plan Year" shall mean any twelve (12) month period (or shorter period during the final year of this Plan) commencing May 1 during the term of this Plan.
(u) "Purchase Price" shall mean the consideration for which one Share may be acquired under the Plan (other than upon exercise of an Option), as specified by the Committee.
(v) "Restricted Share" shall mean a Share sold or granted to an eligible Employee which is nontransferable and subject to substantial risk of forfeiture until restrictions lapse.
(w) "Service" shall mean service as an Employee.
(x) "Share" shall mean one share of Stock, as adjusted in accordance with
Section 9 (if applicable).
(y) "Stock" shall mean the common stock of the Company.
(z) "Stock Award Agreement" shall mean the agreement between the Company and the recipient of a Restricted Share which contains the terms, conditions and restrictions pertaining to such Restricted Share.
(aa) "Stock Option Agreement" shall mean the agreement between the Company and an Optionee which contains the terms, conditions and restrictions pertaining to his or her Option.
(bb) "Stock Purchase Agreement" shall mean the agreement between the Company and an Offeree who acquires Shares under the Plan which contains the terms, conditions and restrictions pertaining to the acquisition of such Shares.
(cc) "Subsidiary" means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company, if each of the corporations other than the last corporation in the unbroken chain owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Subsidiary on a date after the adoption of the Plan shall be considered a Subsidiary commencing as of such date.
(dd) "Total and Permanent Disability" means that the Optionee is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment.
(ee) "W-2 Payroll" means whatever mechanism or procedure that the Company or a Subsidiary utilizes to pay any individual which results in the issuance of Form W-2 to the individual. "W-2 Payroll" does not include any mechanism or procedure which results in the issuance of any form other than a Form W-2 to an individual, including, but not limited to, any Form 1099 which may be issued to an independent contractor, an agency employee or a consultant. Whether a mechanism or procedure qualifies as a "W-2 Payroll" shall be determined in the absolute discretion of the Company (or Subsidiary, as applicable), and the Company or Subsidiary determination shall be conclusive and binding on all persons.
Plan Year Available Shares --------- ---------------- May 1, 2003 through April 30, 2004 750,000 Each subsequent Plan Year beginning 10% of outstanding stock on April May 1, 2004 30 of the year preceding each such such Plan Year |
In any event, the number of Shares which are subject to Awards or other rights outstanding at any time under the Plan shall not exceed the number of Shares which then remain available for issuance under the Plan. The Company, during the term of the Plan, shall at all times reserve and keep available sufficient Shares to satisfy the requirements of the Plan.
[END OF PLAN]
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED.
ANZA CAPITAL, INC.
2003 OMNIBUS SECURITIES PLAN
INCENTIVE STOCK OPTION AGREEMENT
INCENTIVE STOCK This Option is intended to be an incentive stock option OPTION under section 422 of the Internal Revenue Code and will be interpreted accordingly. VESTING No Shares will vest until you have performed --------- (----) months of Service from the commencement of your employment with the Company. Your Option shall vest as to -------- of the Shares on the date ------- (----) months from the Vesting Start Date as shown on the cover sheet. Thereafter, Shares shall vest at the rate of ------- of the Shares at the end of each full month thereafter. After you have completed --------- (----) months of Service, the number of Shares which vest under this Option at the Exercise Price shall be equal to the product of the number of full months of your continuous employment with the Company ("Service") (including any approved leaves of absence) from the Vesting Start Date times the number of Shares covered by this Option times --------. The resulting number of Shares will be rounded to the nearest whole number. No additional Shares will vest after your Service has terminated for any reason. You should note that you may exercise the Option prior to vesting. In that case, the Company has a right to repurchase the unvested shares at the original exercise price if you terminate employment before vesting in all shares you purchased. Also, if you exercise before vesting, you should consider making an 83(b) election. Please see the attached Tax Summary. The 83(b) election must be filed within 30 --------------------------------------------- days of the date you exercise. ---------------------------------- TERM Your Option will expire in any event at the close of business at Company headquarters on the day before the tenth anniversary (fifth anniversary for a 10% owner) of the Date of Grant, as shown on the cover sheet. (It will expire earlier if your Service terminates, as described below.) REGULAR If your Service terminates for any reason except death, TERMINATION Disability or for "Cause," your Option will expire at the close of business at Company headquarters on the 30th day after your termination date. During that 30-day period, you may exercise that portion of your Option that was vested on your termination date. |
DEATH If you die while in Service with the Company, your Option will expire at the close of business at Company headquarters on the date six months after the date of death. During that six-month period, your estate or heirs may exercise that portion of your Option that was vested on the date of death. If your Service terminates because of your Disability, your Option will expire at the close of business at Company headquarters on the date six months after your termination date. (However, if your Disability is not expected to result in death or to last for a continuous period of at least 12 months, your Option will be eligible for ISO tax treatment only if it is exercised within three months following the termination of your Service.) During that six-month period, you may exercise that portion of your Option that was vested on the date of your Disability. DISABILITY "Disability" means that you are unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. |
LEAVES OF ABSENCE For purposes of this Option, your Service does not terminate when you go on a bona fide leave of absence that was approved by the Company in writing, if the terms of the leave provide for continued service crediting, or when continued service crediting is required by applicable law. However, your Service will be treated as terminating 30 days after you went on leave, unless your right to return to active work is guaranteed by law or by a contract. Your Service terminates in any event when the approved leave ends unless you immediately return to active work. The Company determines which leaves count for this purpose, and when your Service terminates for all purposes under the Plan. The Company also determines the extent to which you may exercise the vested portion of your Option during a leave of absence.
- Your personal check, a cashier's check or a money order.
- Shares which you have owned for six months and which are surrendered to the Company. The value of the Shares, determined as of the effective date of the Option exercise, will be applied to the Exercise Price.
- To the extent that a public market for the Shares exists as determined by the Company, by delivery (on a form prescribed by the Committee) of an irrevocable direction to a securities broker to sell Shares and to deliver all or part of the sale proceeds to the Company in payment of the aggregate Exercise Price.
- Any other form of legal consideration approved by the Committee.
WITHHOLDING TAXES You will not be allowed to exercise this Option unless you
make acceptable arrangements to pay any withholding or other taxes that may be due as a result of the Option exercise or the sale of Shares acquired upon exercise of this Option. RESTRICTIONS ON By signing this Agreement, you agree not to exercise this RESALE Option or sell any Shares acquired upon exercise of this Option at a time when applicable laws, regulations or Company or underwriter trading policies prohibit exercise or sale. In particular, the Company shall have the right to designate one or more periods of time, each of which shall not exceed 180 days in length, during which this Option shall not be exercisable if the Company determines (in its sole discretion) that such limitation on exercise could in any way facilitate a lessening of any restriction on transfer pursuant to the Securities Act or any state securities laws with respect to any issuance of securities by the Company, facilitate the registration or qualification of any securities by the Company under the Securities Act or any state securities laws, or facilitate the perfection of any exemption from the registration or qualification requirements of the Securities Act or any applicable state securities laws for the issuance or transfer of any securities. Such limitation on exercise shall not alter the vesting schedule set forth in this Agreement other than to limit the periods during which this Option shall be exercisable. Furthermore, in respect of any underwritten public offering by the Company, you agree that you will not sell or otherwise transfer or dispose of any Shares covered by this Option during a reasonable and customary period of time as agreed to by the Company and the underwriters, not to exceed the greater of (a) 180 days following the effective date of the registration statement of the Company filed under the Securities Act in respect of such offering and (b) such other period of time as agreed to by holders of a majority of the then outstanding Shares. By signing this Agreement you agree to execute and deliver such other agreements as may be reasonably requested by the Company or the underwriter which are consistent with the foregoing or which are necessary to give further effect thereto. The Company may impose stop-transfer instructions with respect to the Shares subject to the foregoing restriction until the end of such period. |
If the sale of Shares under the Plan is not registered under the Securities Act of 1933, as amended (the "Securities Act"), but an exemption is available which requires an investment or other representation, you shall represent and agree at the time of exercise that the Shares being acquired upon exercise of this Option are being acquired for investment, and not with a view to the sale or distribution thereof, and shall make such other representations as are deemed necessary or appropriate by the Company and its counsel. The Company's In the event that you propose to sell, pledge or otherwise Right of First transfer to a third party any Shares acquired under this Refusal Agreement, or any interest in such Shares, the Company shall have the "Right of First Refusal" with respect to all (and not less than all) of such Shares. If you desire to transfer Shares acquired under this Agreement, you must give a written "Transfer Notice" to the Company describing fully the proposed transfer, including the number of Shares proposed to be transferred, the proposed transfer price and the name and address of the proposed transferee. The Transfer Notice shall be signed both by you and by the proposed transferee and must constitute a binding commitment of both parties to the transfer of the Shares. The Company and its assignees shall have the right to purchase all, and not less than all, of the Shares on the terms described in the Transfer Notice (subject, however, to any change in such terms permitted in the next paragraph) by delivery of a Notice of Exercise of the Right of First Refusal within 30 days after the date when the Transfer Notice was received by the Company. The Company's rights under this Subsection shall be freely assignable, in whole or in part. If the Company fails to exercise its Right of First Refusal within 30 days after the date when it received the Transfer Notice, you may, not later than 60 days following receipt of the Transfer Notice by the Company, conclude a transfer of the Shares subject to the Transfer Notice on the terms and conditions described in the Transfer Notice. Any proposed transfer on terms and conditions different from those described in the Transfer Notice, as well as any subsequent proposed transfer by you, shall again be subject to the Right of First Refusal and shall require compliance with the procedure described in the paragraph above. If the Company exercises its Right of First Refusal, you and the Company (or its assignees) shall consummate the sale of the Shares on the terms set forth in the Transfer Notice. The Company's Right of First Refusal shall terminate upon the Company's initial public offering. The Company's Right of First Refusal shall inure to the benefit of its successors and assigns and shall be binding upon any transferee of the Shares. |
RIGHT OF Following termination of your Service for any reason, REPURCHASE the Company shall have the right to purchase all of those vested Shares that you have or will acquire under this Option (unvested Shares which have been exercised are subject to a Repurchase Option set forth in Exhibit A). If --------- the Company fails to provide you with written notice of its intention to purchase such Shares before or within 30 days of the date the Company receives written notice from you of your termination of Service, the Company's right to purchase such Shares shall terminate. If the Company exercises its right to purchase such Shares, the Company will consummate the purchase of such Shares within 60 days of the date of its written notice to you. The purchase price for any Shares repurchased shall be the higher of the fair market value of the Shares on the date of purchase or the aggregate Exercise Price for such Shares and shall be paid in cash. The Company's right of repurchase shall terminate in the event that Stock is listed on an established stock exchange or is quoted regularly on the Nasdaq National Market. The fair market value shall be determined by the Board of Directors in its sole discretion. |
TRANSFER OF OPTION Prior to your death, only you may exercise this Option.
You cannot transfer or assign this Option. For instance, you
may not sell this Option or use it as security for a loan.
If you attempt to do any of these things, this Option will
immediately become invalid. You may, however, dispose of
this Option in your will.
Regardless of any marital property settlement agreement, the Company is not obligated to honor a Notice of Exercise from your spouse or former spouse, nor is the Company obligated to recognize such individual's interest in your Option in any other way.
RETENTION RIGHTS This Agreement does not give you the right to be retained by the Company in any capacity. The Company reserves the right to terminate your Service at any time and for any reason.
SHAREHOLDER RIGHTS Neither you, nor your estate or heirs, have any rights as
a shareholder of the Company until a certificate for the Shares acquired upon exercise of this Option has been issued. No adjustments are made for dividends or other rights if the applicable record date occurs before your stock certificate is issued, except as described in the Plan. ADJUSTMENTS In the event of a stock split, a stock dividend or a similar change in the Company's Stock, the number of Shares covered by this Option and the Exercise Price per share may be adjusted pursuant to the Plan. Your Option shall be subject to the terms of the agreement of merger, liquidation or reorganization in the event the Company is subject to such corporate activity. LEGENDS All certificates representing the Shares issued upon exercise of this Option shall, where applicable, have endorsed thereon the following legends: |
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND OPTIONS TO PURCHASE SUCH SHARES SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE REGISTERED HOLDER, OR SUCH HOLDER'S PREDECESSOR IN INTEREST. SUCH AGREEMENT IMPOSES CERTAIN TRANSFER RESTRICTIONS AND GRANTS CERTAIN REPURCHASE RIGHTS TO THE COMPANY (OR ITS ASSIGNS) UPON THE SALE OF THE SHARES OR UPON TERMINATION OF SERVICE WITH THE COMPANY. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY BY THE HOLDER OF SHARES REPRESENTED BY THIS CERTIFICATE. THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT REGISTRATION AND QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED." APPLICABLE LAW This Agreement will be interpreted and enforced under the laws of the State of Nevada (without regard to their choice of law provisions). |
THE PLAN AND OTHER The text of the Plan is incorporated in this Agreement AGREEMENTS by reference. Certain capitalized terms used in this Agreement are defined in the Plan.
This Agreement, including its attachments, and the Plan constitute the entire understanding between you and the Company regarding this Option. Any prior agreements, commitments or negotiations concerning this Option are superseded.
BY SIGNING THE COVER SHEET OF THIS AGREEMENT, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS DESCRIBED ABOVE AND IN THE PLAN. YOU ALSO ACKNOWLEDGE THAT YOU HAVE READ SECTION 11, "PURCHASER'S INVESTMENT REPRESENTATIONS" OF ATTACHMENT A AND THAT YOU CAN AND HEREBY DO MAKE THE SAME REPRESENTATIONS WITH RESPECT TO THE GRANT OF THIS OPTION.
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED.
ANZA CAPITAL, INC.
2003 OMNIBUS SECURITIES PLAN
NONSTATUTORY STOCK OPTION AGREEMENT
Anza Capital, Inc. (the "Company"), hereby grants an Option to purchase shares of its common stock ("Shares") to the Optionee named below. The terms and conditions of the Option are set forth in this cover sheet, in the attachment and in the Company's 2003 Omnibus Securities Plan (the "Plan").
Date of Grant:-----------------------------
Name of Optionee:--------------------------
Optionee's Social Security Number:---------------------------
Number of Shares Covered by Option:------------------------
Exercise Price per Share: $---------------
Vesting Start Date:-------------------------
[must be at least 85% fair market value on Date of Grant]
--- Check here if Optionee is a 10% owner (so that exercise price must be 110% of fair market value and term will not exceed 5 years).
BY SIGNING THIS COVER SHEET, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS DESCRIBED IN THE ATTACHED AGREEMENT AND IN THE PLAN, A COPY OF WHICH IS ALSO ATTACHED.
Optionee: -------------------------------------------------- (Signature) Company: -------------------------------------------------- (Signature) |
Title: ------------------------------------------
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED.
ANZA CAPITAL, INC.
2003 OMNIBUS SECURITIES PLAN
NONSTATUTORY STOCK OPTION AGREEMENT
NONSTATUTORY STOCK This Option is not intended to be an incentive stock option
OPTION under section 422 of the Internal Revenue Code and will be interpreted accordingly. VESTING No Shares will vest until you have performed ------- (----) months of Service from the commencement of your employment with the Company. Your Option shall vest as to ------- of the Shares on the date ------- (----) months from the Vesting Start Date as shown on the cover sheet. Thereafter, Shares shall vest at the rate of -------- of the Shares at the end of each full month thereafter. After you have completed -------- (----) months of Service, the number of Shares which vest under this Option at the Exercise Price shall be equal to the product of the number of full months of your continuous employment with the Company ("Service") (including any approved leaves of absence) from the Vesting Start Date times the number of Shares covered by this Option times --------. The resulting number of Shares will be rounded to the nearest whole number. No additional Shares will vest after your Service has terminated for any reason. You should note that you may exercise the Option prior to vesting. In that case, the Company has a right to repurchase the unvested shares at the original exercise price if you terminate employment before vesting in all shares you purchased. Also, if you exercise before vesting, you should consider making an 83(b) election. Please see the attached Tax Summary. The 83(b) election must be filed within 30 days ----------------------------------------------- of the date you exercise. ---------------------------- TERM Your Option will expire in any event at the close of business at Company headquarters on the day before the tenth anniversary (fifth anniversary for a 10% owner) of the Date of Grant, as shown on the cover sheet. (It will expire earlier if your Service terminates, as described below.) REGULAR If your Service terminates for any reason except death, TERMINATION Disability, or for "Cause" your Option will expire at the close of business at Company headquarters on the 30th day after your termination date. During such 30-day period, you may exercise that portion of your Option that was vested on your termination date. |
DEATH If you die while in Service with the Company, your Option will expire at the close of business at Company headquarters on the date six months after the date of death. During that six-month period, your estate or heirs may exercise that portion of your Option that was vested on your date of death. DISABILITY If your Service terminates because of your Disability Disability, your Option will expire at the close of business at Company headquarters on the date six months after your termination date. During that six-month period, you may exercise that portion of your Option that was vested on your date of Disability. "Disability" means that you are unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. |
LEAVES OF ABSENCE For purposes of this Option, your Service does not terminate when you go on a bona fide leave of absence that was approved by the Company in writing, if the terms of the leave provide for continued service crediting, or when continued service crediting is required by applicable law. However, your Service will be treated as terminating 30 days after you went on leave, unless your right to return to work is guaranteed by law or by a contract. Your service terminates in any event when the approved leave ends unless you immediately return to Service. The Company determines which leaves count for this purpose, and when your Service terminates for all purposes under the Plan. The Company also determines the extent to which you may exercise the vested portion of your Option during a leave of absence.
- Your personal check, a cashier's check or a money order.
- Shares which you have owned for six months and which are surrendered to the Company. The value of the Shares, determined as of the effective date of the Option exercise, will be applied to the Exercise Price.
- To the extent that a public market for the Shares exists as determined by the Company, by delivery (on a form prescribed by the Committee) of an irrevocable direction to a securities broker to sell Shares and to deliver all or part of the sale proceeds to the Company in payment of the aggregate Exercise Price.
- Any other form of legal consideration approved by the Committee.
WITHHOLDING TAXES You will not be allowed to exercise this Option unless you
make acceptable arrangements to pay any withholding or other taxes that may be due as a result of the Option exercise or the sale of Shares acquired upon exercise of this Option. RESTRICTIONS ON By signing this Agreement, you agree not to exercise this RESALE Option or sell any Shares acquired upon exercise of this Option at a time when applicable laws, regulations or Company or underwriter trading policies prohibit exercise or sale. In particular, the Company shall have the right to designate one or more periods of time, each of which shall not exceed 180 days in length, during which this Option shall not be exercisable if the Company determines (in its sole discretion) that such limitation on exercise could in any way facilitate a lessening of any restriction on transfer pursuant to the Securities Act or any state securities laws with respect to any issuance of securities by the Company, facilitate the registration or qualification of any securities by the Company under the Securities Act or any state securities laws, or facilitate the perfection of any exemption from the registration or qualification requirements of the Securities Act or any applicable state securities laws for the issuance or transfer of any securities. Such limitation on exercise shall not alter the vesting schedule set forth in this Agreement other than to limit the periods during which this Option shall be exercisable. Furthermore, in respect of any underwritten public offering by the Company, you agree that you will not sell or otherwise transfer or dispose of any Shares covered by this Option during a reasonable and customary period of time as agreed to by the Company and the underwriters, not to exceed the greater of (a) 180 days following the effective date of the registration statement of the Company filed under the Securities Act in respect of such offering and (b) such other period of time as agreed to by holders of a majority of the then outstanding Shares. By signing this Agreement you agree to execute and deliver such other agreements as may be reasonably requested by the Company or the underwriter which are consistent with the foregoing or which are necessary to give further effect thereto. The Company may impose stop-transfer instructions with respect to the Shares subject to the foregoing restriction until the end of such period. |
If the sale of Shares under the Plan is not registered under the Securities Act of 1933, as amended (the "Securities Act"), but an exemption is available which requires an investment or other representation, you shall represent and agree at the time of exercise that the Shares being acquired upon exercise of this Option are being acquired for investment, and not with a view to the sale or distribution thereof, and shall make such other representations as are deemed necessary or appropriate by the Company and its counsel. THE COMPANY'S In the event that you propose to sell, pledge or otherwise RIGHT OF FIRST transfer to a third party any Shares acquired under this REFUSAL Agreement, or any interest in such Shares, the Company shall have the "Right of First Refusal" with respect to all (and not less than all) of such Shares. If you desire to transfer Shares acquired under this Agreement, you must give a written "Transfer Notice" to the Company describing fully the proposed transfer, including the number of Shares proposed to be transferred, the proposed transfer price and the name and address of the proposed transferee. The Transfer Notice shall be signed both by you and by the proposed transferee and must constitute a binding commitment of both parties to the transfer of the Shares. The Company and its assignees shall have the right to purchase all, and not less than all, of the Shares on the terms described in the Transfer Notice (subject, however, to any change in such terms permitted in the next paragraph) by delivery of a notice of exercise of the Right of First Refusal within 30 days after the date when the Transfer Notice was received by the Company. The Company's rights under this Subsection shall be freely assignable, in whole or in part. If the Company fails to exercise its Right of First Refusal within 30 days after the date when it received the Transfer Notice, you may, not later than 60 days following receipt of the Transfer Notice by the Company, conclude a transfer of the Shares subject to the Transfer Notice on the terms and conditions described in the Transfer Notice. Any proposed transfer on terms and conditions different from those described in the Transfer Notice, as well as any subsequent proposed transfer by you, shall again be subject to the Right of First Refusal and shall require compliance with the procedure described in the paragraph above. If the Company exercises its Right of First Refusal, you and the Company (or its assignees) shall consummate the sale of the Shares on the terms set forth in the Transfer Notice. The Company's Right of First Refusal shall terminate upon the Company's initial public offering. The Company's Right of First Refusal shall inure to the benefit of its successors and assigns and shall be binding upon any transferee of the Shares. |
RIGHT OF Following termination of your Service for any reason, the REPURCHASE Company shall have the right to purchase all of those vested Shares that you have or will acquire under this Option (unvested Shares which have been exercised are subject to a Repurchase Option set forth in Exhibit A). If the Company --------- fails to provide you with written notice of its intention to purchase such Shares before or within 30 days of the date the Company receives written notice from you of your termination of Service, the Company's right to purchase such Shares shall terminate. If the Company exercises its right to purchase such Shares, the Company will consummate the purchase of such Shares within 60 days of the date of its written notice to you. The purchase price for any Shares repurchased shall be the higher of the fair market value of the Shares on the date of purchase or the aggregate Exercise Price for such Shares and shall be paid in cash. The Company's right of repurchase shall terminate in the event that Stock is listed on an established stock exchange or is quoted regularly on the Nasdaq National Market. The fair market value shall be determined by the Board of Directors in its sole discretion. |
TRANSFER OF OPTION Prior to your death, only you may exercise this Option.
You cannot transfer or assign this Option. For instance, you
may not sell this Option or use it as security for a loan.
If you attempt to do any of these things, this Option will
immediately become invalid. You may, however, dispose of
this Option in your will.
Regardless of any marital property settlement agreement, the Company is not obligated to honor a Notice of Exercise from your spouse or former spouse, nor is the Company obligated to recognize such individual's interest in your Option in any other way.
RETENTION RIGHTS This Agreement does not give you the right to be retained by the Company in any capacity. The Company reserves the right to terminate your Service at any time and for any reason.
SHAREHOLDER RIGHTS Neither you, nor your estate or heirs, have any rights as
a shareholder of the Company until a certificate for the Shares acquired upon exercise of this Option has been issued. No adjustments are made for dividends or other rights if the applicable record date occurs before your stock certificate is issued, except as described in the Plan. ADJUSTMENTS In the event of a stock split, a stock dividend or a similar change in the Company Stock, the number of Shares covered by this Option and the Exercise Price per share may be adjusted pursuant to the Plan. Your Option shall be subject to the terms of the agreement of merger, liquidation or reorganization in the event the Company is subject to such corporate activity. LEGENDS All certificates representing the Shares issued upon exercise of this Option shall, where applicable, have endorsed thereon the following legends: |
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND OPTIONS TO PURCHASE SUCH SHARES SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE REGISTERED HOLDER, OR SUCH HOLDER'S PREDECESSOR IN INTEREST. SUCH AGREEMENT IMPOSES CERTAIN TRANSFER RESTRICTIONS AND GRANTS CERTAIN REPURCHASE RIGHTS TO THE COMPANY (OR ITS ASSIGNS) UPON THE SALE OF THE SHARES OR UPON TERMINATION OF SERVICE WITH THE COMPANY. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY BY THE HOLDER OF SHARES REPRESENTED BY THIS CERTIFICATE. THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT REGISTRATION AND QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED." APPLICABLE LAW This Agreement will be interpreted and enforced under the laws of the State of Nevada (without regard to their choice of law provisions). |
THE PLAN AND OTHER The text of the Plan is incorporated in this Agreement AGREEMENTS by reference. Certain capitalized terms used in this Agreement are defined in the Plan.
This Agreement and the Plan constitute the entire understanding between you and the Company regarding this Option. Any prior agreements, commitments or negotiations concerning this Option are superseded.
BY SIGNING THE COVER SHEET OF THIS AGREEMENT, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS DESCRIBED ABOVE AND IN THE PLAN. YOU ALSO ACKNOWLEDGE THAT YOU HAVE READ SECTION 11, "PURCHASER'S INVESTMENT REPRESENTATIONS" OF ATTACHMENT A AND THAT YOU CAN AND HEREBY DO MAKE THE SAME REPRESENTATIONS WITH RESPECT TO THE GRANT OF THIS OPTION.
THIS AGREEMENT is dated as of -----------, ----, between Anza Capital, Inc. (the "Company"), and -----------------("Purchaser").
W I T N E S S E T H:
WHEREAS, the Company and Purchaser are parties to that certain --- Incentive --- Nonstatutory Stock Option Agreement dated as of -----------, ---- (the "Option Agreement") pursuant to which the Purchaser has the right to purchase up to ---------- shares of the Company's common stock (the "Option Shares"); and
WHEREAS, the Option is exercisable with respect to certain of the Option Shares as of the date hereof; and
WHEREAS, pursuant to the Option Agreement, Purchaser desires to purchase shares of the Company as herein described, on the terms and conditions set forth in this Agreement, the Option Agreement and the Anza Capital, Inc. 2003 Omnibus Securities Plan (the "Plan"). Certain capitalized terms used in this Agreement are defined in the Plan.
NOW, THEREFORE, it is agreed between the parties as follows:
(a) Pursuant to the terms of the Option Agreement, Purchaser hereby agrees to purchase from the Company and the Company agrees to sell and issue to Purchaser --------- shares of the Company's common stock (the "Stock") for the Exercise Price per share specified in the Option Agreement payable by personal check, cashier's check or money order, if permitted by the Option Agreement, as follows: -------------------------------. Payment shall be delivered at the Closing, as such term is hereinafter defined.
(b) The closing hereunder (the "Closing") shall occur at the offices of the Company on ----------,-----, or such other time and place as may be designated by the Company (the "Closing Date").
All unvested shares of the Stock purchased by the Purchaser pursuant to this Agreement (sometimes referred to as the "Repurchase Option Stock") shall be subject to the following option (the "Repurchase Option"):
(a) In the event the Purchaser terminates service with the Company ("Service") for any reason, with or without cause, the Company may exercise the Repurchase Option.
(b) Purchaser understands that the Stock is being sold in order to induce Purchaser to become and/or remain associated with the Company and to work diligently for the success of the Company and that the Repurchase Option Stock will continue to vest in accordance with the schedule set forth in the Option Agreement. Accordingly, the Company shall have the right at any time within 90 days after the termination of Service to purchase from the Purchaser all shares of Stock purchased hereunder which have not vested in accordance with the terms of such vesting schedule in the Option Agreement. The purchase price for such unvested shares of Repurchase Option Stock shall be the Exercise Price per share paid by Purchaser for such shares pursuant to the Option (the "Option Price"). The purchase price shall be paid by certified or cashier's check or by cancellation of any indebtedness of Purchaser to the Company.
(c) Nothing in this Agreement shall be construed as a right by purchaser to be employed by Company, or a parent or subsidiary of Company.
The Repurchase Option shall be exercised by written notice signed by an officer of the Company and delivered or mailed as provided in Section 16 of this Agreement and to the Escrow Agent as provided in Section 16 of the Joint Escrow Instructions attached as Exhibit B to the Option Agreement.
If the Company waives or fails to exercise the Repurchase Option as to all of the shares subject thereto, the Company may, in the discretion of its Board of Directors, assign the Repurchase Option to any other holder or holders of preferred or common stock of the Company in such proportions as such Board of Directors may determine. In the event of such an assignment, the assignee shall pay to the Company in cash an amount equal to the fair market value of the Repurchase Option. The Company shall promptly, upon expiration of the 90-day period referred to in Section 2 above, notify Purchaser of the number of shares subject to the Repurchase Option assigned to such stockholders and shall notify both the Purchaser and the assignees of the time, place and date for settlement of such purchase, which must be made within 90 days from the date of cessation of continuous employment. In the event that the Company and/or such assignees do not elect to exercise the Repurchase Option as to all or part of the shares subject to it, the Repurchase Option shall expire as to all shares which the Company and/or such assignees have not elected to purchase.
(a) As security for Purchaser's faithful performance of the terms of this Agreement and to ensure the availability for delivery of Purchaser's shares upon exercise of the Repurchase Option herein provided for, Purchaser agrees at the Closing hereunder, to deliver to and deposit with the Escrow Agent named in the Joint Escrow Instructions attached to the Option Agreement as Exhibit B, the certificate or certificates evidencing the Option Stock subject to the Repurchase Option and two Assignments Separate from Certificate duly executed (with date and number of shares in blank) in the form attached to the Option Agreement as Exhibit D. Such documents are to be held by the Escrow Agent and delivered by the Escrow Agent pursuant to the Joint Escrow Instructions, which instructions shall also be delivered to the Escrow Agent at the Closing hereunder.
(b) Within 30 days after the last day of each successive completed calendar quarter after the Closing Date, if Purchaser so requests, the Escrow Agent will deliver to Purchaser certificates representing so many shares of Stock as are no longer subject to the Repurchase Option (less such shares as have been previously delivered). Ninety days after cessation of Purchaser's employment with the Company the Company will direct the Escrow Agent to deliver to Purchaser a certificate or certificates representing the number of shares not repurchased by the Company or its assignees pursuant to exercise of the Repurchase Option (less such shares as have been previously delivered).
Subject to the provisions of the Articles of Incorporation of the Company, if, from time to time during the term of the Repurchase Option:
(a) there is any stock dividend or liquidating dividend of cash and/or property, stock split or other change in the character or amount of any of the outstanding securities of the Company, or
(b) there is any consolidation, merger or sale of all or substantially all, of the assets of the Company,
then, in such event, any and all new, substituted or additional securities or other property to which Purchaser is entitled by reason of Purchaser's ownership of the shares shall be immediately subject to such Repurchase Option with the same force and effect as the shares of Option Stock from time to time subject to the Repurchase Option. While the total Option Price shall remain the same after each such event, the Option Price per share of Option Stock upon exercise of the Repurchase Option shall be appropriately and equitably adjusted as determined by the Board of Directors of the Company.
Before any shares of Stock registered in the name of Purchaser and not subject to the Repurchase Option may be sold or transferred, such shares shall first be offered to the Company as set forth in the Option Agreement.
If the Company makes available, at the time and place and in the amount and form provided in this Agreement, the consideration for the Stock to be repurchased in accordance with the provisions of Sections 2 and 7 of this Agreement, then from and after such time the person from whom such shares are to be repurchased shall no longer have any rights as a holder of such shares (other than the right to receive payment of such consideration in accordance with this Agreement). Such shares shall be deemed to have been repurchased in accordance with the applicable provisions hereof, whether or not the certificate(s) therefor have been delivered as required by this Agreement.
Purchaser shall have the right to transfer all or any portion of Purchaser's interest in the shares issued under this Agreement which have been delivered to Purchaser under the provisions of Section 5 of this Agreement, to a trust established by Purchaser for the benefit of Purchaser, Purchaser's spouse or Purchaser's children, without being subject to the provisions of Section 7 hereof, provided that the trustee on behalf of the trust shall agree in writing to be bound by the terms and conditions of this Agreement. The transferee shall execute a copy of Exhibit C attached to the Option Agreement and file the same with the Secretary of the Company.
All certificates representing the Stock purchased under this Agreement shall, where applicable, have endorsed thereon the legends set forth in the Option Agreement and any other legends required by applicable securities laws.
(a) This Agreement is made with Purchaser in reliance upon Purchaser's representation to the Company, which by Purchaser's acceptance hereof Purchaser confirms, that the Stock which Purchaser will receive will be acquired with Purchaser's own funds for investment for an indefinite period for Purchaser's own account, not as a nominee or agent, and not with a view to the sale or distribution of any part thereof, and that Purchaser has no present intention of selling, granting participation in, or otherwise distributing the same, but subject, nevertheless, to any requirement of law that the disposition of Purchaser's property shall at all times be within Purchaser's control. By executing this Agreement, Purchaser further represents that Purchaser does not have any contract, understanding or agreement with any person to sell, transfer, or grant participation, to such person or to any third person, with respect to any of the Stock.
(b) Purchaser understands that the Stock will not be registered or qualified under federal or state securities laws on the ground that the sale provided for in this Agreement is exempt from registration or qualification under federal or state securities laws and that the Company's reliance on such exemption is predicated on Purchaser's representations set forth herein.
(c) Purchaser agrees that in no event will Purchaser make a disposition of any of the Stock (including a disposition under Section 9 of this Agreement), unless and until (i) Purchaser shall have notified the Company of the proposed disposition and shall have furnished the Company with a statement of the circumstances surrounding the proposed disposition and (ii) Purchaser shall have furnished the Company with an opinion of counsel satisfactory to the Company to the effect that (A) such disposition will not require registration or qualification of such Stock under federal or state securities laws or (B) appropriate action necessary for compliance with the federal or state securities laws has been taken or (iii) the Company shall have waived, expressly and in writing, its rights under clauses (i) and (ii) of this section.
(d) With respect to a transaction occurring prior to such date as the Plan and Stock thereunder are covered by a valid Form S-8 or similar federal registration statement, this subsection shall apply unless the transaction is covered by the exemption in Nevada General Corporation Law or a similar broad based exemption. In connection with the investment representations made herein, Purchaser represents that Purchaser is able to fend for himself or herself in the transactions contemplated by this Agreement, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of Purchaser's investment, has the ability to bear the economic risks of Purchaser's investment and has been furnished with and has had access to such information as would be made available in the form of a registration statement together with such additional information as is necessary to verify the accuracy of the information supplied and to have all questions answered by the Company.
(e) Purchaser understands that if the Company does not register with the Securities and Exchange Commission pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act") or if a registration statement covering the Stock (or a filing pursuant to the exemption from registration under Regulation A of the Securities Act of 1933) under the Securities Act of 1933 is not in effect when Purchaser desires to sell the Stock, Purchaser may be required to hold the Stock for an indeterminate period. Purchaser also acknowledges that Purchaser understands that any sale of the Stock which might be made by Purchaser in reliance upon Rule 144 under the Securities Act of 1933 may be made only in limited amounts in accordance with the terms and conditions of that Rule.
The Company covenants and agrees that (a) at all times after it first becomes subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, it will use its best efforts to comply with the current public information requirements of Rule 144(c)(1) under the Securities Act of 1933, and that if prior to becoming subject to such reporting requirements an over-the-counter market develops for the Stock, it will make publicly available the information required by Rule 144(c)(2); (b) it will furnish Purchaser, upon request, with all information required for the preparation and filing of Form 144; and (c) it will on a timely basis use its best efforts to file all reports required to be filed and make all disclosures, including disclosures of materially adverse information, required to permit Purchaser to make the required representations in Form 144.
The Company shall not be required (a) to transfer on its books any shares of Stock of the Company which shall have been sold or transferred in violation of any of the provisions set forth in this Agreement or (b) to treat as owner of such shares or to accord the right to vote as such owner or to pay dividends to any transferee to whom such shares shall have been so transferred.
Except as otherwise provided herein, Purchaser shall, during the term of this Agreement, exercise all rights and privileges of a stockholder of the Company with respect to the Stock.
The parties agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement.
Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon the earliest of personal delivery, receipt or the third full day following deposit in the United States Post Office with postage and fees prepaid, addressed to the other party hereto at the address last known or at such other address as such party may designate by 10 days' advance written notice to the other party hereto.
This Agreement shall inure to the benefit of the successors and assigns of the Company and, subject to the restrictions on transfer herein set forth, be binding upon Purchaser and Purchaser's heirs, executors, administrators, successors and assigns. The failure of the Company in any instance to exercise the Repurchase Option or rights of first offer described herein shall not constitute a waiver of any other Repurchase Option or right of first offer that may subsequently arise under the provisions of this Agreement. No waiver of any breach or condition of this Agreement shall be deemed to be a waiver of any other or subsequent breach or condition, whether of a like or different nature.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Nevada, as such laws are applied to contracts entered into and performed in such state.
THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF NEVADA AND THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE QUALIFICATION. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
No modification of this Agreement shall be valid unless made in writing and signed by the parties hereto.
This Agreement and the Option Agreement constitute the entire complete and final agreement between the parties hereto with regard to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
ANZA CAPITAL, INC. PURCHASER
By ----------------------------- -----------------------------
ANZA CAPITAL, INC.
A NEVADA CORPORATION
STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement (the "Agreement") is entered into effective this 28th day of February, 2003 by and between Anza Capital, Inc., a Nevada corporation ("Anza" or the "Company") and Keyway Investments, Ltd. (the "Shareholder"). Each of the Company and the Shareholder shall be referred to as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Company has undertaken a recapitalization of its corporate structure, which will include (but not be limited to) the voluntary exchange of certain preferred stock for newly created preferred stock, the exchange of debt and warrants for stock, and a reverse stock split (the "Recapitalization");
WHEREAS, the Shareholder is the record and beneficial owner of 4,006 shares of Series C Convertible Preferred Stock (the "Surrendered Shares");
WHEREAS, in connection with the Recapitalization, the Company has offered for the Shareholder to convert the Surrendered Shares into 8,181,491 shares of Company common stock (the "Conversion Common Shares"), 2003 shares of newly created Series D Convertible Preferred Stock (the "Preferred Exchange Shares"), and warrants to acquire 183,168 shares of Company common stock (the "Exchange Warrants"), in accordance with the terms and conditions hereof, and the Shareholder desires to accept the offer and consummate the exchange.
NOW, THEREFORE, for good and adequate consideration, the receipt of which is hereby acknowledged, the Parties covenant, promise and agree as follows:
AGREEMENT
(a) Within three (3) business days of the execution of this Agreement, the Shareholder shall surrender to the Company the Surrendered Shares, duly endorsed for transfer to the Company.
(b) Effective as of the date of this Agreement, the Shareholder shall convert 2003 of the Surrendered Shares into the Conversion Common Shares. The Conversion Common Shares shall be validly issued, fully paid, and non assessable, shall be restricted in accordance with Rule 144 promulgated under the Securities Act of 1933, and shall be subject to a 20-for-1 reverse stock split currently contemplated as part of the Recapitalization.
(c) Effective as of the Exchange Date (as hereinafter defined), the remaining number of Surrendered Shares not exchanged for Conversion Common Shares shall automatically be exchanged for the Preferred Exchange Shares and the Exchange Warrants. The Preferred Exchange Shares shall be validly issued, fully paid, and non assessable, and shall be restricted in accordance with Rule 144 promulgated under the Securities Act of 1933.
(d) The rights, privileges, and preferences of the Preferred Exchange Shares shall be as set forth in the Certificate of Designation of the Rights, Preferences, Privileges and Restrictions of the Series D Convertible Preferred Stock of Anza Capital, Inc., a copy of which is attached hereto as Exhibit "A" (the "Certificate of Designation").
(e) The Exchange Warrants shall be exercisable for a period of five (5)
years from the Exchange Date, and shall have an exercise price as follows: (i)
61,056 shares at $0.50 per share, (ii) 61,056 shares at $0.75 per share, and
(iii) 61,056 shares at $0.95 per share. The warrant agreements have been
attached hereto as Exhibits "B-D."
(f) The Exchange Date shall be the date on which the Certificate of Designation is filed with the Nevada Secretary of State, which date is anticipated to be within three (3) business days of the completion of the Company's Annual Shareholders Meeting.
(g) The Company's Annual Shareholders Meeting is currently scheduled for the middle of April, 2003. If the Company's Annual Shareholders Meeting does not take place on or before June 30, 2003 (the "Termination Date"), then this Agreement and the exchange of the remaining Surrendered Shares for Preferred Exchange Shares shall automatically be cancelled. In such an event, the exchange of Surrendered Shares for Conversion Common Shares shall remain effective as of the date of this Agreement.
(h) Between the date of this Agreement and the Termination Date, the Shareholder shall remain the record and beneficial owner of the Surrendered Shares not exchanged for Conversion Common Shares, and shall have all voting power associated therewith; however, the Shareholder hereby waives and suspends its rights to dividends, its conversion rights, redemption rights, and all other rights set forth in the Certificate of Designations, Preferences and Rights of Series C Convertible Preferred Stock of E-Net Financial.com Corporation dated April 7, 2000 until the earlier to occur of the Exchange Date or the Termination Date. In the event this Agreement is terminated on the Termination Date, then all rights waived and suspended by this subsection shall be reinstated effective as of the date of this Agreement.
(a) Shareholder shall transfer title in and to the Surrendered Shares to the Company free and clear of all liens, security interests, pledges, encumbrances, charges, restrictions, demands and claims, of any kind or nature whatsoever, whether direct or indirect or contingent. This Agreement has been duly executed and delivered by the Shareholder. This Agreement constitutes, and upon execution and delivery thereof by the Shareholder, will constitute, a valid and binding agreement of the Shareholder enforceable against the Shareholder in accordance with its respective terms.
(b) The Shareholder is not a party to any partnership, management, shareholders' or joint venture or similar agreement which would affect the Shareholder's performance of this Agreement or the Shareholder's representation and warranties in this Agreement.
(c) No form of general solicitation or general advertising was used by the Shareholder or the Company or, to the best of its actual knowledge, any other person acting on behalf of the Shareholder or the Company, in connection with the exchange. Neither the Shareholder, nor, to its knowledge, any person acting on behalf of the Shareholder, has, either directly or indirectly, sold or offered for sale to any person (other than the Company) any of the Surrendered Shares, and the Shareholder represents that neither itself nor any person authorized to act on its behalf (except that the Shareholder makes no representation as to the Company) will sell or offer for sale any such security to, or solicit any offers to buy any such security from, or otherwise approach or negotiate in respect thereof with, any person or persons so as thereby to cause the issuance or sale of any of the Surrendered Shares to be in violation of any of the provisions of Section 5 of the Securities Act of 1933 or any other provision of law.
(d) None of the Surrendered Shares are or will be subject to any voting trust or agreement. No person holds or has the right to receive any proxy or similar instrument with respect to the Surrendered Shares. Except as provided in this Agreement, the Shareholder is not a party to any agreement which offers or grants to any person the right to purchase or acquire any of the Surrendered Shares. There is no applicable local, state or federal law, rule, regulation, or decree which would, as a result of the sale contemplated by this Agreement, impair, restrict or delay any voting rights with respect to the Surrendered Shares.
(e) The representations and warranties herein by the Shareholder will be true and correct in all material respects on and as of the date hereof and will, except as provided herein, survive the Exchange Date.
(f) The Shareholder acknowledges that the Shareholder has been furnished with such financial and other information concerning the Company, the directors and officers of the Company, the business of the Company, and the proposed Recapitalization of the Company as the Shareholder considers necessary in connection with the Shareholder's exchange of the Surrendered Shares. As a result, the Shareholder is familiar with the business, operations, properties, financial condition, and recapitalization plan of the Company and has discussed with officers or legal counsel of the Company any questions the Shareholder may have had with respect thereto. The Shareholder has consulted with the Shareholder's own legal, accounting, tax, investment and other advisers with respect to the tax treatment, merits, and risks of the transactions contemplated hereby.
(g) The Shareholder hereby agrees to indemnify and defend the Company and its directors and officers and hold them harmless from and against any and all liability, damage, cost or expense incurred on account of or arising out of:
(i) Any breach of or inaccuracy in the Shareholder's representations, warranties or agreements herein;
(ii) Any disposition of any Surrendered Shares contrary to any of the Shareholder's representations, warranties or agreements herein;
(iii) Any action, suit or proceeding based on a claim that any of said representations, warranties or agreements were inaccurate or misleading or otherwise cause for obtaining damages or redress from the Company or any director or officer of the Company.
(h) The representations, warranties and agreements contained in this Agreement shall be binding on the Shareholder's successors, assigns, heirs and legal representatives and shall inure to the benefit of the respective successors and assigns of the Company and its directors and officers.
(i) Shareholder shall deliver, along with a signed copy of this Agreement, all stock certificates representing the Surrendered Shares, fully endorsed to the Company or accompanied by an Irrevocable Stock Power transferring the Surrendered Shares to the Company.
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of Nevada, with full power and authority to own, lease, use, and operate its properties and to carry on its business as and where now owned, leased, used, operated and conducted. The Company has all requisite corporate power and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby and to effect the exchange of the shares in accordance with the terms hereof.
(b) The information heretofore furnished by the Company to the Share- holder for purposes of or in connection with this Agreement or any transaction contemplated hereby does not, and all such information hereafter furnished by the Company to the Shareholder will not (in each case taken together and on the date as of which such information is furnished), contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they are made, not misleading.
(c) The representations and warranties herein by the Company will be true and correct in all material respects on and as of the date hereof and will, except as provided herein, survive the Exchange Date.
5. This Agreement may not be amended, canceled, revoked or otherwise modified except by written agreement subscribed by all of the Parties to be charged with such modification.
6. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective partners, employees, agents, servants, heirs, administrators, executors, successors, representatives and assigns.
7. All Parties hereto agree to pay their own costs and attorneys' fees except as follows:
(a) In the event of any action, suit or other proceeding instituted to remedy, prevent or obtain relief from a breach of this Agreement, arising out of a breach of this Agreement, involving claims within the scope of the releases contained in this Agreement, or pertaining to a declaration of rights under this Agreement, the prevailing Party shall recover all of such Party's attorneys' fees and costs incurred in each and every such action, suit or other proceeding, including any and all appeals or petitions therefrom.
(b) As used herein, attorneys' fees shall be deemed to mean the full and actual costs of any legal services actually performed in connection with the matters involved, calculated on the basis of the usual fee charged by the attorneys performing such services.
8. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California including all matters of construction, validity, performance, and enforcement and without giving effect to the principles of conflict of laws. Venue for any action brought under this Agreement shall be in the appropriate court in Orange County, California.
9. The Parties agree and stipulate that each and every term and condition contained in this Agreement is material, and that each and every term and condition may be reasonably accomplished within the time limitations, and in the manner set forth in this Agreement.
10. The Parties agree and stipulate that time is of the essence with respect to compliance with each and every item set forth in this Agreement.
11. This Agreement, along with the exhibits hereto, sets forth the entire agreement and understanding of the Parties hereto and supersedes any and all prior agreements, arrangements and understandings related to the subject matter hereof. No understanding, promise, inducement, statement of intention, representation, warranty, covenant or condition, written or oral, express or implied, whether by statute or otherwise, has been made by any party hereto which is not embodied in this Agreement or the written statements, certificates, or other documents delivered pursuant hereto or in connection with the transactions contemplated hereby, and no Party hereto shall be bound by or liable for any alleged understanding, promise, inducement, statement, representation, warranty, covenant or condition not so set forth.
12. This Agreement may be executed in one or more counterparts, each of which when executed and delivered shall be an original, and all of which when executed shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto, agreeing to be bound hereby, execute this Agreement upon the date first set forth above.
"Shareholder" "Company" Keyway Investments, Ltd. Anza Capital, Inc. /s/ Paul Moore /s/ Vincent Rinehart ------------------------- ---------------------- By: Paul Moore By: Vincent Rinehart Its: Director Its: President |
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
Keyway No. 1 WARRANT Anza Capital, Inc. (Incorporated under the laws of the State of Nevada) |
THIS IS TO CERTIFY that, for value received, Keyway Investments, Ltd., or
its assigns (the "Holder") is entitled, subject to the terms and conditions set
forth herein, to purchase from Anza Capital, Inc., a Nevada corporation (the
"Company") up to Sixty One Thousand Fifty Six (61,056) fully paid and
nonassessable shares of common stock of the Company (the "Warrant Securities")
at the initial price of $0.50 per share but subject to adjustment as provided in
Section 3 below, (the "Exercise Price"), upon payment by cashier's check or wire
transfer of the Exercise Price for such shares of the Common Stock to the
Company at the Company's offices.
1. EXERCISABILITY. This Warrant may be exercised in whole or in part at any time, or from time to time, between the date of April ___, 2003 and 5:00 p.m. Pacific Time on April ___, 2008, by presentation and surrender hereof to the Company of a notice of election to purchase duly executed and accompanied by payment by check or wire transfer of the Exercise Price.
2. MANNER OF EXERCISE. In case of the purchase of less than all the Warrant Securities, the Company shall cancel this Warrant upon the surrender hereof and shall execute and deliver a new warrant of like tenor for the balance of the Warrant Securities. Upon the exercise of this Warrant, the issuance of certificates for securities, properties or rights underlying this Warrant shall be made forthwith (and in any event within five (5) business days thereafter) without charge to the Holder including, without limitation, any tax that may be payable in respect of the issuance thereof: provided, however, that the Company shall not be required to pay any tax in respect of income or capital gain of the Holder.
If and to the extent this Warrant is exercised, in whole or in part, the Holder shall be entitled to receive a certificate or certificates representing the Warrant Securities so purchased, upon presentation and surrender to the Company of the form of election to purchase attached hereto duly executed, and accompanied by payment of the purchase price.
3. ADJUSTMENT IN NUMBER OF SHARES.
(A) Adjustment for Reclassifications. In case at any time or from time to time after the issue date the holders of the Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received, or, on or after the record date fixed for the determination of eligible stockholders, shall have become entitled to receive, without payment therefore, other or additional stock or other securities or property (including cash) by way of stock split, spin-off, reclassification, combination of shares or similar corporate rearrangement (exclusive of any stock dividend of its or any subsidiary's capital stock), then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1, shall be entitled to receive the amount of stock and other securities and property which such Holder would hold on the date of such exercise if on the issue date he had been the holder of record of the number of shares of Common Stock of the Company called for on the face of this Warrant and had thereafter, during the period from the issue date, to and including the date of such exercise, retained such shares and/or all other or additional stock and other securities and property receivable by him as aforesaid during such period, giving effect to all adjustments called for during such period. In the event of any such adjustment, the Exercise Price shall be adjusted proportionally.
(B) Adjustment for Reorganization, Consolidation, Merger. In case of any reorganization of the Company (or any other corporation the stock or other securities of which are at the time receivable on the exercise of this Warrant) after the issue date, or in case, after such date, the Company (or any such other corporation) shall consolidate with or merge into another corporation or convey all or substantially all of its assets to another corporation, then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1 at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities or property to which such Holder would be entitled had the Holder exercised this Warrant immediately prior thereto, all subject to further adjustment as provided herein; in each such case, the terms of this Warrant shall be applicable to the shares of stock or other securities or property receivable upon the exercise of this Warrant after such consummation.
4. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall be construed as requiring the Holder to exercise this Warrant prior to or in connection with the effectiveness of a registration statement.
5. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised, this Warrant shall not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company, or to any other rights whatsoever except the rights herein expressed, and, no dividends shall be payable or accrue in respect of this Warrant.
6. REGISTRATION RIGHTS. If the Company at any time proposes to register any of its securities under the Act, including under an SB-2 Registration Statement or otherwise, it will at such time give written notice to all holders of outstanding warrants of its intention so to do. Upon the written request of a holder or holders of any such warrants given within 30 days after receipt of any such notice, the Company will use its best efforts to cause all shares underlying the exercise of such warrants to be registered under the Act (with the securities which the Company at the time propose to register); provided, however, that the Company may, as a condition precedent to its effective such registration, require each Holder to agree with the Company and the managing underwriter or underwriters of the offering to be made by the Company in connection with such registration that such Holder will not sell any securities of the same class or convertible into the same class as those registered by the Company (including any class into which the securities registered by the Company are convertible) for such reasonable period after such registration becomes effective (not exceeding 90 days) as shall then be specified in writing by such underwriter or underwriters if in the opinion of such underwriter or underwriters the Company's offering would be materially adversely affected in the absence of such an agreement. All expenses incurred by the Company in complying with this Section, including without limitation all registration and filing fees, listing fees, printing expenses, fees and disbursements of all independent accountants, or counsel for the Company and the expense of any special audits incident to or required by any such registration and the expenses of complying with the securities or blue sky laws of any jurisdiction shall be paid by the Company.
7. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by the Holder to the Company for new warrants of like tenor representing in the aggregate the right to purchase the number of Warrant Securities purchasable hereunder, each of such new warrants to represent the right to purchase such number of Warrant Securities as shall be designated by the Holder at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it and reimbursement to the company of all reasonable expenses incidental thereto, and upon surrender and cancellation hereof, if mutilated, the Company will make and deliver a new warrant of like tenor and amount, in lieu hereof.
8. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required to issue certificates representing fractions of securities upon the exercise of this Warrant, nor shall it be required to issue scrip or pay cash in lieu of fractional interests. All fractional interests shall be eliminated by rounding any fraction up to the nearest whole number of securities, properties or rights receivable upon exercise of this Warrant.
9. RESERVATION OF SECURITIES. The Company shall at all times reserve and keep available out of its authorized shares of Common Stock or other securities, solely for the purpose of issuance upon the exercise of this Warrant, such number of shares of Common Stock or other securities, properties or rights as shall be issuable upon the exercise hereof. The Company covenants and agrees that, upon exercise of this Warrant and payment of the Principal Value, all shares of Common Stock and other securities issuable upon such exercise shall be duly and validly issued, fully paid, non-assessable and not subject to the preemptive rights of any stockholder.
10. NOTICES TO HOLDER. If at any time prior to the expiration of this Warrant or its exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of any class of its securities for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of current or retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of a class of its securities any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or merger) or a sale of all or substantially all of its property, assets and business as an entirety shall be proposed.
then, in any one or more said events, the Company shall give written notice of such event to the Holder at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholder entitled to such dividend, distribution, convertible or exchangeable securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of closing the transfer books, as the case may be.
11. TRANSFERABILITY. This Warrant may be transferred or assigned by the Holder only with the express written permission of the Company.
12. INFORMATIONAL REQUIREMENTS. The Company will transmit to the Holder such information, documents and reports as are generally distributed to stockholders of the Company concurrently with the distribution thereof to such stockholders.
13. NOTICE. Notices to be given to the Company or the Holder shall be deemed to have been sufficiently given if delivered personally or sent by overnight courier or messenger, or by facsimile transmission. Notices shall be deemed to have been received on the date of personal delivery or facsimile transmission. The address of the Company and of the Holder shall be as set forth in the Company's books and records.
14. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the jurisdiction of any court of the State of California, and of any federal court located in California, in any action or proceeding arising out of or in connection with this Warrant. The Company waives personal service of any summons, complaint or other process in connection with any such action or proceeding and agrees that service thereof may be made, by certified mail directed to the Company at the location provided in Section 13 hereof, or, in the alternative, in any other form or manner permitted by law. Orange County, California shall be proper venue.
15. SUCCESSORS. All the covenants and provisions of this Warrant shall be binding upon and inure to the benefit of the Company, the Holder and their respective legal representatives, successors and assigns.
16. ATTORNEYS FEES. In the event the Holder or any holder hereof shall refer this Warrant to an attorney to enforce the terms hereof, the Company agrees to pay all the costs and expenses incurred in attempting or effecting collection hereunder, including reasonable attorney's fees, whether or not suit is instituted.
17. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE RULES GOVERNING CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by the signature of its President and to be delivered in Santa Ana, California.
Dated: April ___, 2003 Anza Capital, Inc., a Nevada corporation ___________________________________ |
By: Vincent Rinehart Its: President
[FORM OF ELECTION TO PURCHASE]
The undersigned, the holder of the attached Warrant, hereby irrevocably elects to exercise the purchase right represented by this Warrant Certificate for, and to purchase securities of Anza Capital, Inc. and herewith makes payment of $___________ therefor, and requests that the certificates for such securities be issued in the name of, and delivered to _______________________, whose address is _________________________________________.
Dated: ____________________, 20___ _______________________________ By: __________________________ (Signature must conform in all respects to name of holder as specified on the face of the Warrant Certificate) |
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
Keyway No. 2 WARRANT
Anza Capital, Inc.
(Incorporated under the laws of the State of Nevada)
THIS IS TO CERTIFY that, for value received, Keyway Investments, Ltd., or
its assigns (the "Holder") is entitled, subject to the terms and conditions set
forth herein, to purchase from Anza Capital, Inc., a Nevada corporation (the
"Company") up to Sixty One Thousand Fifty Six (61,056) fully paid and
nonassessable shares of common stock of the Company (the "Warrant Securities")
at the initial price of $0.75 per share but subject to adjustment as provided in
Section 3 below, (the "Exercise Price"), upon payment by cashier's check or wire
transfer of the Exercise Price for such shares of the Common Stock to the
Company at the Company's offices.
1. EXERCISABILITY. This Warrant may be exercised in whole or in part at any time, or from time to time, between the date of April ___, 2003 and 5:00 p.m. Pacific Time on April ___, 2008, by presentation and surrender hereof to the Company of a notice of election to purchase duly executed and accompanied by payment by check or wire transfer of the Exercise Price.
2. MANNER OF EXERCISE. In case of the purchase of less than all the Warrant Securities, the Company shall cancel this Warrant upon the surrender hereof and shall execute and deliver a new warrant of like tenor for the balance of the Warrant Securities. Upon the exercise of this Warrant, the issuance of certificates for securities, properties or rights underlying this Warrant shall be made forthwith (and in any event within five (5) business days thereafter) without charge to the Holder including, without limitation, any tax that may be payable in respect of the issuance thereof: provided, however, that the Company shall not be required to pay any tax in respect of income or capital gain of the Holder.
If and to the extent this Warrant is exercised, in whole or in part, the Holder shall be entitled to receive a certificate or certificates representing the Warrant Securities so purchased, upon presentation and surrender to the Company of the form of election to purchase attached hereto duly executed, and accompanied by payment of the purchase price.
3. ADJUSTMENT IN NUMBER OF SHARES.
(A) Adjustment for Reclassifications. In case at any time or from time to time after the issue date the holders of the Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received, or, on or after the record date fixed for the determination of eligible stockholders, shall have become entitled to receive, without payment therefore, other or additional stock or other securities or property (including cash) by way of stock split, spin-off, reclassification, combination of shares or similar corporate rearrangement (exclusive of any stock dividend of its or any subsidiary's capital stock), then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1, shall be entitled to receive the amount of stock and other securities and property which such Holder would hold on the date of such exercise if on the issue date he had been the holder of record of the number of shares of Common Stock of the Company called for on the face of this Warrant and had thereafter, during the period from the issue date, to and including the date of such exercise, retained such shares and/or all other or additional stock and other securities and property receivable by him as aforesaid during such period, giving effect to all adjustments called for during such period. In the event of any such adjustment, the Exercise Price shall be adjusted proportionally.
(B) Adjustment for Reorganization, Consolidation, Merger. In case of any reorganization of the Company (or any other corporation the stock or other securities of which are at the time receivable on the exercise of this Warrant) after the issue date, or in case, after such date, the Company (or any such other corporation) shall consolidate with or merge into another corporation or convey all or substantially all of its assets to another corporation, then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1 at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities or property to which such Holder would be entitled had the Holder exercised this Warrant immediately prior thereto, all subject to further adjustment as provided herein; in each such case, the terms of this Warrant shall be applicable to the shares of stock or other securities or property receivable upon the exercise of this Warrant after such consummation.
4. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall be construed as requiring the Holder to exercise this Warrant prior to or in connection with the effectiveness of a registration statement.
5. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised, this Warrant shall not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company, or to any other rights whatsoever except the rights herein expressed, and, no dividends shall be payable or accrue in respect of this Warrant.
6. REGISTRATION RIGHTS. If the Company at any time proposes to register any of its securities under the Act, including under an SB-2 Registration Statement or otherwise, it will at such time give written notice to all holders of outstanding warrants of its intention so to do. Upon the written request of a holder or holders of any such warrants given within 30 days after receipt of any such notice, the Company will use its best efforts to cause all shares underlying the exercise of such warrants to be registered under the Act (with the securities which the Company at the time propose to register); provided, however, that the Company may, as a condition precedent to its effective such registration, require each Holder to agree with the Company and the managing underwriter or underwriters of the offering to be made by the Company in connection with such registration that such Holder will not sell any securities of the same class or convertible into the same class as those registered by the Company (including any class into which the securities registered by the Company are convertible) for such reasonable period after such registration becomes effective (not exceeding 90 days) as shall then be specified in writing by such underwriter or underwriters if in the opinion of such underwriter or underwriters the Company's offering would be materially adversely affected in the absence of such an agreement. All expenses incurred by the Company in complying with this Section, including without limitation all registration and filing fees, listing fees, printing expenses, fees and disbursements of all independent accountants, or counsel for the Company and the expense of any special audits incident to or required by any such registration and the expenses of complying with the securities or blue sky laws of any jurisdiction shall be paid by the Company.
7. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by the Holder to the Company for new warrants of like tenor representing in the aggregate the right to purchase the number of Warrant Securities purchasable hereunder, each of such new warrants to represent the right to purchase such number of Warrant Securities as shall be designated by the Holder at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it and reimbursement to the company of all reasonable expenses incidental thereto, and upon surrender and cancellation hereof, if mutilated, the Company will make and deliver a new warrant of like tenor and amount, in lieu hereof.
8. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required to issue certificates representing fractions of securities upon the exercise of this Warrant, nor shall it be required to issue scrip or pay cash in lieu of fractional interests. All fractional interests shall be eliminated by rounding any fraction up to the nearest whole number of securities, properties or rights receivable upon exercise of this Warrant.
9. RESERVATION OF SECURITIES. The Company shall at all times reserve and keep available out of its authorized shares of Common Stock or other securities, solely for the purpose of issuance upon the exercise of this Warrant, such number of shares of Common Stock or other securities, properties or rights as shall be issuable upon the exercise hereof. The Company covenants and agrees that, upon exercise of this Warrant and payment of the Principal Value, all shares of Common Stock and other securities issuable upon such exercise shall be duly and validly issued, fully paid, non-assessable and not subject to the preemptive rights of any stockholder.
10. NOTICES TO HOLDER. If at any time prior to the expiration of this Warrant or its exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of any class of its securities for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of current or retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of a class of its securities any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or merger) or a sale of all or substantially all of its property, assets and business as an entirety shall be proposed.
then, in any one or more said events, the Company shall give written notice of such event to the Holder at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholder entitled to such dividend, distribution, convertible or exchangeable securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of closing the transfer books, as the case may be.
11. TRANSFERABILITY. This Warrant may be transferred or assigned by the Holder only with the express written permission of the Company.
12. INFORMATIONAL REQUIREMENTS. The Company will transmit to the Holder such information, documents and reports as are generally distributed to stockholders of the Company concurrently with the distribution thereof to such stockholders.
13. NOTICE. Notices to be given to the Company or the Holder shall be deemed to have been sufficiently given if delivered personally or sent by overnight courier or messenger, or by facsimile transmission. Notices shall be deemed to have been received on the date of personal delivery or facsimile transmission. The address of the Company and of the Holder shall be as set forth in the Company's books and records.
14. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the jurisdiction of any court of the State of California, and of any federal court located in California, in any action or proceeding arising out of or in connection with this Warrant. The Company waives personal service of any summons, complaint or other process in connection with any such action or proceeding and agrees that service thereof may be made, by certified mail directed to the Company at the location provided in Section 13 hereof, or, in the alternative, in any other form or manner permitted by law. Orange County, California shall be proper venue.
15. SUCCESSORS. All the covenants and provisions of this Warrant shall be binding upon and inure to the benefit of the Company, the Holder and their respective legal representatives, successors and assigns.
16. ATTORNEYS FEES. In the event the Holder or any holder hereof shall refer this Warrant to an attorney to enforce the terms hereof, the Company agrees to pay all the costs and expenses incurred in attempting or effecting collection hereunder, including reasonable attorney's fees, whether or not suit is instituted.
17. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE RULES GOVERNING CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by the signature of its President and to be delivered in Santa Ana, California.
Dated: April ___, 2003 Anza Capital, Inc., a Nevada corporation ___________________________________ |
By: Vincent Rinehart Its: President
[FORM OF ELECTION TO PURCHASE]
The undersigned, the holder of the attached Warrant, hereby irrevocably elects to exercise the purchase right represented by this Warrant Certificate for, and to purchase securities of Anza Capital, Inc. and herewith makes payment of $___________ therefor, and requests that the certificates for such securities be issued in the name of, and delivered to _______________________, whose address is _________________________________________.
Dated: ____________________, 20___ ______________________________ By: __________________________ (Signature must conform in all respects to name of holder as specified on the face of the Warrant Certificate) ___________________________________ (Insert Social Security or Other Identifying Number of Holder) |
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
Keyway No. 3 WARRANT
Anza Capital, Inc.
(Incorporated under the laws of the State of Nevada)
THIS IS TO CERTIFY that, for value received, Keyway Investments, Ltd., or
its assigns (the "Holder") is entitled, subject to the terms and conditions set
forth herein, to purchase from Anza Capital, Inc., a Nevada corporation (the
"Company") up to Sixty One Thousand Fifty Six (61,056) fully paid and
nonassessable shares of common stock of the Company (the "Warrant Securities")
at the initial price of $0.95 per share but subject to adjustment as provided in
Section 3 below, (the "Exercise Price"), upon payment by cashier's check or wire
transfer of the Exercise Price for such shares of the Common Stock to the
Company at the Company's offices.
1. EXERCISABILITY. This Warrant may be exercised in whole or in part at any time, or from time to time, between the date of April ___, 2003 and 5:00 p.m. Pacific Time on April ___, 2008, by presentation and surrender hereof to the Company of a notice of election to purchase duly executed and accompanied by payment by check or wire transfer of the Exercise Price.
2. MANNER OF EXERCISE. In case of the purchase of less than all the Warrant Securities, the Company shall cancel this Warrant upon the surrender hereof and shall execute and deliver a new warrant of like tenor for the balance of the Warrant Securities. Upon the exercise of this Warrant, the issuance of certificates for securities, properties or rights underlying this Warrant shall be made forthwith (and in any event within five (5) business days thereafter) without charge to the Holder including, without limitation, any tax that may be payable in respect of the issuance thereof: provided, however, that the Company shall not be required to pay any tax in respect of income or capital gain of the Holder.
If and to the extent this Warrant is exercised, in whole or in part, the Holder shall be entitled to receive a certificate or certificates representing the Warrant Securities so purchased, upon presentation and surrender to the Company of the form of election to purchase attached hereto duly executed, and accompanied by payment of the purchase price.
3. ADJUSTMENT IN NUMBER OF SHARES.
(A) Adjustment for Reclassifications. In case at any time or from time to time after the issue date the holders of the Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received, or, on or after the record date fixed for the determination of eligible stockholders, shall have become entitled to receive, without payment therefore, other or additional stock or other securities or property (including cash) by way of stock split, spin-off, reclassification, combination of shares or similar corporate rearrangement (exclusive of any stock dividend of its or any subsidiary's capital stock), then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1, shall be entitled to receive the amount of stock and other securities and property which such Holder would hold on the date of such exercise if on the issue date he had been the holder of record of the number of shares of Common Stock of the Company called for on the face of this Warrant and had thereafter, during the period from the issue date, to and including the date of such exercise, retained such shares and/or all other or additional stock and other securities and property receivable by him as aforesaid during such period, giving effect to all adjustments called for during such period. In the event of any such adjustment, the Exercise Price shall be adjusted proportionally.
(B) Adjustment for Reorganization, Consolidation, Merger. In case of any reorganization of the Company (or any other corporation the stock or other securities of which are at the time receivable on the exercise of this Warrant) after the issue date, or in case, after such date, the Company (or any such other corporation) shall consolidate with or merge into another corporation or convey all or substantially all of its assets to another corporation, then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1 at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities or property to which such Holder would be entitled had the Holder exercised this Warrant immediately prior thereto, all subject to further adjustment as provided herein; in each such case, the terms of this Warrant shall be applicable to the shares of stock or other securities or property receivable upon the exercise of this Warrant after such consummation.
4. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall be construed as requiring the Holder to exercise this Warrant prior to or in connection with the effectiveness of a registration statement.
5. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised, this Warrant shall not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company, or to any other rights whatsoever except the rights herein expressed, and, no dividends shall be payable or accrue in respect of this Warrant.
6. REGISTRATION RIGHTS. If the Company at any time proposes to register any of its securities under the Act, including under an SB-2 Registration Statement or otherwise, it will at such time give written notice to all holders of outstanding warrants of its intention so to do. Upon the written request of a holder or holders of any such warrants given within 30 days after receipt of any such notice, the Company will use its best efforts to cause all shares underlying the exercise of such warrants to be registered under the Act (with the securities which the Company at the time propose to register); provided, however, that the Company may, as a condition precedent to its effective such registration, require each Holder to agree with the Company and the managing underwriter or underwriters of the offering to be made by the Company in connection with such registration that such Holder will not sell any securities of the same class or convertible into the same class as those registered by the Company (including any class into which the securities registered by the Company are convertible) for such reasonable period after such registration becomes effective (not exceeding 90 days) as shall then be specified in writing by such underwriter or underwriters if in the opinion of such underwriter or underwriters the Company's offering would be materially adversely affected in the absence of such an agreement. All expenses incurred by the Company in complying with this Section, including without limitation all registration and filing fees, listing fees, printing expenses, fees and disbursements of all independent accountants, or counsel for the Company and the expense of any special audits incident to or required by any such registration and the expenses of complying with the securities or blue sky laws of any jurisdiction shall be paid by the Company.
7. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by the Holder to the Company for new warrants of like tenor representing in the aggregate the right to purchase the number of Warrant Securities purchasable hereunder, each of such new warrants to represent the right to purchase such number of Warrant Securities as shall be designated by the Holder at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it and reimbursement to the company of all reasonable expenses incidental thereto, and upon surrender and cancellation hereof, if mutilated, the Company will make and deliver a new warrant of like tenor and amount, in lieu hereof.
8. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required to issue certificates representing fractions of securities upon the exercise of this Warrant, nor shall it be required to issue scrip or pay cash in lieu of fractional interests. All fractional interests shall be eliminated by rounding any fraction up to the nearest whole number of securities, properties or rights receivable upon exercise of this Warrant.
9. RESERVATION OF SECURITIES. The Company shall at all times reserve and keep available out of its authorized shares of Common Stock or other securities, solely for the purpose of issuance upon the exercise of this Warrant, such number of shares of Common Stock or other securities, properties or rights as shall be issuable upon the exercise hereof. The Company covenants and agrees that, upon exercise of this Warrant and payment of the Principal Value, all shares of Common Stock and other securities issuable upon such exercise shall be duly and validly issued, fully paid, non-assessable and not subject to the preemptive rights of any stockholder.
10. NOTICES TO HOLDER. If at any time prior to the expiration of this Warrant or its exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of any class of its securities for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of current or retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of a class of its securities any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or merger) or a sale of all or substantially all of its property, assets and business as an entirety shall be proposed.
then, in any one or more said events, the Company shall give written notice of such event to the Holder at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholder entitled to such dividend, distribution, convertible or exchangeable securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of closing the transfer books, as the case may be.
11. TRANSFERABILITY. This Warrant may be transferred or assigned by the Holder only with the express written permission of the Company.
12. INFORMATIONAL REQUIREMENTS. The Company will transmit to the Holder such information, documents and reports as are generally distributed to stockholders of the Company concurrently with the distribution thereof to such stockholders.
13. NOTICE. Notices to be given to the Company or the Holder shall be deemed to have been sufficiently given if delivered personally or sent by overnight courier or messenger, or by facsimile transmission. Notices shall be deemed to have been received on the date of personal delivery or facsimile transmission. The address of the Company and of the Holder shall be as set forth in the Company's books and records.
14. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the jurisdiction of any court of the State of California, and of any federal court located in California, in any action or proceeding arising out of or in connection with this Warrant. The Company waives personal service of any summons, complaint or other process in connection with any such action or proceeding and agrees that service thereof may be made, by certified mail directed to the Company at the location provided in Section 13 hereof, or, in the alternative, in any other form or manner permitted by law. Orange County, California shall be proper venue.
15. SUCCESSORS. All the covenants and provisions of this Warrant shall be binding upon and inure to the benefit of the Company, the Holder and their respective legal representatives, successors and assigns.
16. ATTORNEYS FEES. In the event the Holder or any holder hereof shall refer this Warrant to an attorney to enforce the terms hereof, the Company agrees to pay all the costs and expenses incurred in attempting or effecting collection hereunder, including reasonable attorney's fees, whether or not suit is instituted.
17. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE RULES GOVERNING CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by the signature of its President and to be delivered in Santa Ana, California.
Dated: April ___, 2003 Anza Capital, Inc., a Nevada corporation ___________________________________ |
By: Vincent Rinehart Its: President
[FORM OF ELECTION TO PURCHASE]
The undersigned, the holder of the attached Warrant, hereby irrevocably elects to exercise the purchase right represented by this Warrant Certificate for, and to purchase securities of Anza Capital, Inc. and herewith makes payment of $___________ therefor, and requests that the certificates for such securities be issued in the name of, and delivered to _______________________, whose address is _________________________________________.
Dated: ____________________, 20___ ______________________________ By: __________________________ (Signature must conform in all respects to name of holder as specified on the face of the Warrant Certificate) ___________________________________ (Insert Social Security or Other Identifying Number of Holder) |
ANZA CAPITAL, INC.
A NEVADA CORPORATION
STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement (the "Agreement") is entered into effective this 28th day of February, 2003 by and between Anza Capital, Inc., a Nevada corporation ("Anza" or the "Company") and Cranshire Capital, L.P. (the "Shareholder"). Each of the Company and the Shareholder shall be referred to as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Company has undertaken a recapitalization of its corporate structure, which will include (but not be limited to) the voluntary exchange of certain preferred stock for newly created preferred stock, the exchange of debt and warrants for stock, and a reverse stock split (the "Recapitalization");
WHEREAS, the Shareholder is the record and beneficial owner of 6,151 shares of Series C Convertible Preferred Stock (the "Surrendered Shares");
WHEREAS, in connection with the Recapitalization, the Company has offered for the Shareholder to convert the Surrendered Shares into 12,562,245 shares of Company common stock (the "Conversion Common Shares"), 3075.5 shares of newly created Series D Convertible Preferred Stock (the "Preferred Exchange Shares"), and warrants to acquire 281,244 shares of Company common stock (the "Exchange Warrants"), in accordance with the terms and conditions hereof, and the Shareholder desires to accept the offer and consummate the exchange.
NOW, THEREFORE, for good and adequate consideration, the receipt of which is hereby acknowledged, the Parties covenant, promise and agree as follows:
AGREEMENT
(a) Within three (3) business days of the execution of this Agreement, the Shareholder shall surrender to the Company the Surrendered Shares, duly endorsed for transfer to the Company.
(b) Effective as of the date of this Agreement, the Shareholder shall convert 3075.5 of the Surrendered Shares into the Conversion Common Shares. The Conversion Common Shares shall be validly issued, fully paid, and non assessable, shall be restricted in accordance with Rule 144 promulgated under the Securities Act of 1933, and shall be subject to a 20-for-1 reverse stock split currently contemplated as part of the Recapitalization.
(c) Effective as of the Exchange Date (as hereinafter defined), the remaining number of Surrendered Shares not exchanged for Conversion Common Shares shall automatically be exchanged for the Preferred Exchange Shares and the Exchange Warrants. The Preferred Exchange Shares shall be validly issued, fully paid, and non assessable, and shall be restricted in accordance with Rule 144 promulgated under the Securities Act of 1933.
(d) The rights, privileges, and preferences of the Preferred Exchange Shares shall be as set forth in the Certificate of Designation of the Rights, Preferences, Privileges and Restrictions of the Series D Convertible Preferred Stock of Anza Capital, Inc., a copy of which is attached hereto as Exhibit "A" (the "Certificate of Designation").
(e) The Exchange Warrants shall be exercisable for a period of five (5)
years from the Exchange Date, and shall have an exercise price as follows: (i)
93,748 shares at $0.50 per share, (ii) 93,748 shares at $0.75 per share, and
(iii) 93,748 shares at $0.95 per share. The warrant agreements have been
attached hereto as Exhibits "B-D."
(f) The Exchange Date shall be the date on which the Certificate of Designation is filed with the Nevada Secretary of State, which date is anticipated to be within three (3) business days of the completion of the Company's Annual Shareholders Meeting.
(g) The Company's Annual Shareholders Meeting is currently scheduled for the middle of April, 2003. If the Company's Annual Shareholders Meeting does not take place on or before June 30, 2003 (the "Termination Date"), then this Agreement and the exchange of the remaining Surrendered Shares for Preferred Exchange Shares shall automatically be cancelled. In such an event, the exchange of Surrendered Shares for Conversion Common Shares shall remain effective as of the date of this Agreement.
(h) Between the date of this Agreement and the Termination Date, the Shareholder shall remain the record and beneficial owner of the Surrendered Shares not exchanged for Conversion Common Shares, and shall have all voting power associated therewith; however, the Shareholder hereby waives and suspends its rights to dividends, its conversion rights, redemption rights, and all other rights set forth in the Certificate of Designations, Preferences and Rights of Series C Convertible Preferred Stock of E-Net Financial.com Corporation dated April 7, 2000 until the earlier to occur of the Exchange Date or the Termination Date. In the event this Agreement is terminated on the Termination Date, then all rights waived and suspended by this subsection shall be reinstated effective as of the date of this Agreement.
(a) Shareholder shall transfer title in and to the Surrendered Shares to the Company free and clear of all liens, security interests, pledges, encumbrances, charges, restrictions, demands and claims, of any kind or nature whatsoever, whether direct or indirect or contingent. This Agreement has been duly executed and delivered by the Shareholder. This Agreement constitutes, and upon execution and delivery thereof by the Shareholder, will constitute, a valid and binding agreement of the Shareholder enforceable against the Shareholder in accordance with its respective terms.
(b) The Shareholder is not a party to any partnership, management, shareholders' or joint venture or similar agreement which would affect the Shareholder's performance of this Agreement or the Shareholder's representation and warranties in this Agreement.
(c) No form of general solicitation or general advertising was used by the Shareholder or the Company or, to the best of its actual knowledge, any other person acting on behalf of the Shareholder or the Company, in connection with the exchange. Neither the Shareholder, nor, to its knowledge, any person acting on behalf of the Shareholder, has, either directly or indirectly, sold or offered for sale to any person (other than the Company) any of the Surrendered Shares, and the Shareholder represents that neither itself nor any person authorized to act on its behalf (except that the Shareholder makes no representation as to the Company) will sell or offer for sale any such security to, or solicit any offers to buy any such security from, or otherwise approach or negotiate in respect thereof with, any person or persons so as thereby to cause the issuance or sale of any of the Surrendered Shares to be in violation of any of the provisions of Section 5 of the Securities Act of 1933 or any other provision of law.
(d) None of the Surrendered Shares are or will be subject to any voting trust or agreement. No person holds or has the right to receive any proxy or similar instrument with respect to the Surrendered Shares. Except as provided in this Agreement, the Shareholder is not a party to any agreement which offers or grants to any person the right to purchase or acquire any of the Surrendered Shares. There is no applicable local, state or federal law, rule, regulation, or decree which would, as a result of the sale contemplated by this Agreement, impair, restrict or delay any voting rights with respect to the Surrendered Shares.
(e) The representations and warranties herein by the Shareholder will be true and correct in all material respects on and as of the date hereof and will, except as provided herein, survive the Exchange Date.
(f) The Shareholder acknowledges that the Shareholder has been furnished with such financial and other information concerning the Company, the directors and officers of the Company, the business of the Company, and the proposed Recapitalization of the Company as the Shareholder considers necessary in connection with the Shareholder's exchange of the Surrendered Shares. As a result, the Shareholder is familiar with the business, operations, properties, financial condition, and recapitalization plan of the Company and has discussed with officers or legal counsel of the Company any questions the Shareholder may have had with respect thereto. The Shareholder has consulted with the Shareholder's own legal, accounting, tax, investment and other advisers with respect to the tax treatment, merits, and risks of the transactions contemplated hereby.
(g) The Shareholder hereby agrees to indemnify and defend the Company and its directors and officers and hold them harmless from and against any and all liability, damage, cost or expense incurred on account of or arising out of:
(i) Any breach of or inaccuracy in the Shareholder's representations, warranties or agreements herein;
(ii) Any disposition of any Surrendered Shares contrary to any of the Shareholder's representations, warranties or agreements herein;
(iii) Any action, suit or proceeding based on a claim that any of said representations, warranties or agreements were inaccurate or misleading or otherwise cause for obtaining damages or redress from the Company or any director or officer of the Company.
(h) The representations, warranties and agreements contained in this Agreement shall be binding on the Shareholder's successors, assigns, heirs and legal representatives and shall inure to the benefit of the respective successors and assigns of the Company and its directors and officers.
(i) Shareholder shall deliver, along with a signed copy of this Agreement, all stock certificates representing the Surrendered Shares, fully endorsed to the Company or accompanied by an Irrevocable Stock Power trans- ferring the Surrendered Shares to the Company.
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of Nevada, with full power and authority to own, lease, use, and operate its properties and to carry on its business as and where now owned, leased, used, operated and conducted. The Company has all requisite corporate power and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby and to effect the exchange of the shares in accordance with the terms hereof.
(b) The information heretofore furnished by the Company to the Share- holder for purposes of or in connection with this Agreement or any transaction contemplated hereby does not, and all such information hereafter furnished by the Company to the Shareholder will not (in each case taken together and on the date as of which such information is furnished), contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they are made, not misleading.
(c) The representations and warranties herein by the Company will be true and correct in all material respects on and as of the date hereof and will, except as provided herein, survive the Exchange Date.
5. This Agreement may not be amended, canceled, revoked or otherwise modified except by written agreement subscribed by all of the Parties to be charged with such modification.
6. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective partners, employees, agents, servants, heirs, administrators, executors, successors, representatives and assigns.
7. All Parties hereto agree to pay their own costs and attorneys' fees except as follows:
(a) In the event of any action, suit or other proceeding instituted to remedy, prevent or obtain relief from a breach of this Agreement, arising out of a breach of this Agreement, involving claims within the scope of the releases contained in this Agreement, or pertaining to a declaration of rights under this Agreement, the prevailing Party shall recover all of such Party's attorneys' fees and costs incurred in each and every such action, suit or other proceeding, including any and all appeals or petitions therefrom.
(b) As used herein, attorneys' fees shall be deemed to mean the full and actual costs of any legal services actually performed in connection with the matters involved, calculated on the basis of the usual fee charged by the attorneys performing such services.
8. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California including all matters of construction, validity, performance, and enforcement and without giving effect to the principles of conflict of laws. Venue for any action brought under this Agreement shall be in the appropriate court in Orange County, California.
9. The Parties agree and stipulate that each and every term and condition contained in this Agreement is material, and that each and every term and condition may be reasonably accomplished within the time limitations, and in the manner set forth in this Agreement.
10. The Parties agree and stipulate that time is of the essence with respect to compliance with each and every item set forth in this Agreement.
11. This Agreement, along with the exhibits hereto, sets forth the entire agreement and understanding of the Parties hereto and supersedes any and all prior agreements, arrangements and understandings related to the subject matter hereof. No understanding, promise, inducement, statement of intention, representation, warranty, covenant or condition, written or oral, express or implied, whether by statute or otherwise, has been made by any party hereto which is not embodied in this Agreement or the written statements, certificates, or other documents delivered pursuant hereto or in connection with the transactions contemplated hereby, and no Party hereto shall be bound by or liable for any alleged understanding, promise, inducement, statement, representation, warranty, covenant or condition not so set forth.
12. This Agreement may be executed in one or more counterparts, each of which when executed and delivered shall be an original, and all of which when executed shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto, agreeing to be bound hereby, execute this Agreement upon the date first set forth above.
"Shareholder" "Company" Cranshire Capital, L.P. Anza Capital, Inc. By: /s/ M. Kopin By: /s/ Vincent Rinehart ------------------------------------ --------------------------- Its: President -- Downsview Capital Its: President The General Partner |
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
Cranshire No. 1 WARRANT
Anza Capital, Inc.
(Incorporated under the laws of the State of Nevada)
THIS IS TO CERTIFY that, for value received, Cranshire Capital, L.P., or its assigns (the "Holder") is entitled, subject to the terms and conditions set forth herein, to purchase from Anza Capital, Inc., a Nevada corporation (the "Company") up to Ninety Three Thousand Seven Hundred Forty Eight (93,748) fully paid and nonassessable shares of common stock of the Company (the "Warrant Securities") at the initial price of $0.50 per share but subject to adjustment as provided in Section 3 below, (the "Exercise Price"), upon payment by cashier's check or wire transfer of the Exercise Price for such shares of the Common Stock to the Company at the Company's offices.
1. EXERCISABILITY. This Warrant may be exercised in whole or in part at any time, or from time to time, between the date of April ___, 2003 and 5:00 p.m. Pacific Time on April ___, 2008, by presentation and surrender hereof to the Company of a notice of election to purchase duly executed and accompanied by payment by check or wire transfer of the Exercise Price.
2. MANNER OF EXERCISE. In case of the purchase of less than all the Warrant Securities, the Company shall cancel this Warrant upon the surrender hereof and shall execute and deliver a new warrant of like tenor for the balance of the Warrant Securities. Upon the exercise of this Warrant, the issuance of certificates for securities, properties or rights underlying this Warrant shall be made forthwith (and in any event within five (5) business days thereafter) without charge to the Holder including, without limitation, any tax that may be payable in respect of the issuance thereof: provided, however, that the Company shall not be required to pay any tax in respect of income or capital gain of the Holder.
If and to the extent this Warrant is exercised, in whole or in part, the Holder shall be entitled to receive a certificate or certificates representing the Warrant Securities so purchased, upon presentation and surrender to the Company of the form of election to purchase attached hereto duly executed, and accompanied by payment of the purchase price.
3. ADJUSTMENT IN NUMBER OF SHARES.
(A) Adjustment for Reclassifications. In case at any time or from time to time after the issue date the holders of the Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received, or, on or after the record date fixed for the determination of eligible stockholders, shall have become entitled to receive, without payment therefore, other or additional stock or other securities or property (including cash) by way of stock split, spin-off, reclassification, combination of shares or similar corporate rearrangement (exclusive of any stock dividend of its or any subsidiary's capital stock), then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1, shall be entitled to receive the amount of stock and other securities and property which such Holder would hold on the date of such exercise if on the issue date he had been the holder of record of the number of shares of Common Stock of the Company called for on the face of this Warrant and had thereafter, during the period from the issue date, to and including the date of such exercise, retained such shares and/or all other or additional stock and other securities and property receivable by him as aforesaid during such period, giving effect to all adjustments called for during such period. In the event of any such adjustment, the Exercise Price shall be adjusted proportionally.
(B) Adjustment for Reorganization, Consolidation, Merger. In case of any reorganization of the Company (or any other corporation the stock or other securities of which are at the time receivable on the exercise of this Warrant) after the issue date, or in case, after such date, the Company (or any such other corporation) shall consolidate with or merge into another corporation or convey all or substantially all of its assets to another corporation, then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1 at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities or property to which such Holder would be entitled had the Holder exercised this Warrant immediately prior thereto, all subject to further adjustment as provided herein; in each such case, the terms of this Warrant shall be applicable to the shares of stock or other securities or property receivable upon the exercise of this Warrant after such consummation.
4. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall be construed as requiring the Holder to exercise this Warrant prior to or in connection with the effectiveness of a registration statement.
5. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised, this Warrant shall not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company, or to any other rights whatsoever except the rights herein expressed, and, no dividends shall be payable or accrue in respect of this Warrant.
6. REGISTRATION RIGHTS. If the Company at any time proposes to register any of its securities under the Act, including under an SB-2 Registration Statement or otherwise, it will each such time give written notice to all holders of outstanding warrants of its intention so to do. Upon the written request of a holder or holders of any such warrants given within 30 days after receipt of any such notice, the Company will use its best efforts to cause all shares underlying the exercise of such warrants to be registered under the Act (with the securities which the Company at the time propose to register); provided, however, that the Company may, as a condition precedent to its effective such registration, require each Holder to agree with the Company and the managing underwriter or underwriters of the offering to be made by the Company in connection with such registration that such Holder will not sell any securities of the same class or convertible into the same class as those registered by the Company (including any class into which the securities registered by the Company are convertible) for such reasonable period after such registration becomes effective (not exceeding 90 days) as shall then be specified in writing by such underwriter or underwriters if in the opinion of such underwriter or underwriters the Company's offering would be materially adversely affected in the absence of such an agreement. All expenses incurred by the Company in complying with this Section, including without limitation all registration and filing fees, listing fees, printing expenses, fees and disbursements of all independent accountants, or counsel for the Company and the expense of any special audits incident to or required by any such registration and the expenses of complying with the securities or blue sky laws of any jurisdiction shall be paid by the Company.
7. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by the Holder to the Company for new warrants of like tenor representing in the aggregate the right to purchase the number of Warrant Securities purchasable hereunder, each of such new warrants to represent the right to purchase such number of Warrant Securities as shall be designated by the Holder at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it and reimbursement to the company of all reasonable expenses incidental thereto, and upon surrender and cancellation hereof, if mutilated, the Company will make and deliver a new warrant of like tenor and amount, in lieu hereof.
8. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required to issue certificates representing fractions of securities upon the exercise of this Warrant, nor shall it be required to issue scrip or pay cash in lieu of fractional interests. All fractional interests shall be eliminated by rounding any fraction up to the nearest whole number of securities, properties or rights receivable upon exercise of this Warrant.
9. RESERVATION OF SECURITIES. The Company shall at all times reserve and keep available out of its authorized shares of Common Stock or other securities, solely for the purpose of issuance upon the exercise of this Warrant, such number of shares of Common Stock or other securities, properties or rights as shall be issuable upon the exercise hereof. The Company covenants and agrees that, upon exercise of this Warrant and payment of the Principal Value, all shares of Common Stock and other securities issuable upon such exercise shall be duly and validly issued, fully paid, non-assessable and not subject to the preemptive rights of any stockholder.
10. NOTICES TO HOLDER. If at any time prior to the expiration of this Warrant or its exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of any class of its securities for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of current or retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of a class of its securities any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or merger) or a sale of all or substantially all of its property, assets and business as an entirety shall be proposed.
then, in any one or more said events, the Company shall give written notice of such event to the Holder at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholder entitled to such dividend, distribution, convertible or exchangeable securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of closing the transfer books, as the case may be.
11. TRANSFERABILITY. This Warrant may be transferred or assigned by the Holder only with the express written permission of the Company.
12. INFORMATIONAL REQUIREMENTS. The Company will transmit to the Holder such information, documents and reports as are generally distributed to stockholders of the Company concurrently with the distribution thereof to such stockholders.
13. NOTICE. Notices to be given to the Company or the Holder shall be deemed to have been sufficiently given if delivered personally or sent by overnight courier or messenger, or by facsimile transmission. Notices shall be deemed to have been received on the date of personal delivery or facsimile transmission. The address of the Company and of the Holder shall be as set forth in the Company's books and records.
14. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the jurisdiction of any court of the State of California, and of any federal court located in California, in any action or proceeding arising out of or in connection with this Warrant. The Company waives personal service of any summons, complaint or other process in connection with any such action or proceeding and agrees that service thereof may be made, by certified mail directed to the Company at the location provided in Section 13 hereof, or, in the alternative, in any other form or manner permitted by law. Orange County, California shall be proper venue.
15. SUCCESSORS. All the covenants and provisions of this Warrant shall be binding upon and inure to the benefit of the Company, the Holder and their respective legal representatives, successors and assigns.
16. ATTORNEYS FEES. In the event the Holder or any holder hereof shall refer this Warrant to an attorney to enforce the terms hereof, the Company agrees to pay all the costs and expenses incurred in attempting or effecting collection hereunder, including reasonable attorney's fees, whether or not suit is instituted.
17. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE RULES GOVERNING CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by the signature of its President and to be delivered in Santa Ana, California.
Dated: April 12, 2003 Anza Capital, Inc., a Nevada corporation ---------------------------- |
By: Vincent Rinehart Its: President
[FORM OF ELECTION TO PURCHASE]
The undersigned, the holder of the attached Warrant, hereby irrevocably elects to exercise the purchase right represented by this Warrant Certificate for, and to purchase securities of Anza Capital, Inc. and herewith makes payment of $___________ therefor, and requests that the certificates for such securities be issued in the name of, and delivered to _______________________, whose address is _________________________________________.
(Signature must conform in all respects to name of holder as specified on the face of the Warrant Certificate)
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
Cranshire No. 2 WARRANT
Anza Capital, Inc.
(Incorporated under the laws of the State of Nevada)
THIS IS TO CERTIFY that, for value received, Cranshire Capital, L.P., or its assigns (the "Holder") is entitled, subject to the terms and conditions set forth herein, to purchase from Anza Capital, Inc., a Nevada corporation (the "Company") up to Ninety Three Thousand Seven Hundred Forty Eight (93,748) fully paid and nonassessable shares of common stock of the Company (the "Warrant Securities") at the initial price of $0.75 per share but subject to adjustment as provided in Section 3 below, (the "Exercise Price"), upon payment by cashier's check or wire transfer of the Exercise Price for such shares of the Common Stock to the Company at the Company's offices.
1. EXERCISABILITY. This Warrant may be exercised in whole or in part at any time, or from time to time, between the date of April 12, 2003 and 5:00 p.m. Pacific Time on April 12, 2008, by presentation and surrender hereof to the Company of a notice of election to purchase duly executed and accompanied by payment by check or wire transfer of the Exercise Price.
2. MANNER OF EXERCISE. In case of the purchase of less than all the Warrant Securities, the Company shall cancel this Warrant upon the surrender hereof and shall execute and deliver a new warrant of like tenor for the balance of the Warrant Securities. Upon the exercise of this Warrant, the issuance of certificates for securities, properties or rights underlying this Warrant shall be made forthwith (and in any event within five (5) business days thereafter) without charge to the Holder including, without limitation, any tax that may be payable in respect of the issuance thereof: provided, however, that the Company shall not be required to pay any tax in respect of income or capital gain of the Holder.
If and to the extent this Warrant is exercised, in whole or in part, the Holder shall be entitled to receive a certificate or certificates representing the Warrant Securities so purchased, upon presentation and surrender to the Company of the form of election to purchase attached hereto duly executed, and accompanied by payment of the purchase price.
3. ADJUSTMENT IN NUMBER OF SHARES.
(A) Adjustment for Reclassifications. In case at any time or from time to time after the issue date the holders of the Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received, or, on or after the record date fixed for the determination of eligible stockholders, shall have become entitled to receive, without payment therefore, other or additional stock or other securities or property (including cash) by way of stock split, spin-off, reclassification, combination of shares or similar corporate rearrangement (exclusive of any stock dividend of its or any subsidiary's capital stock), then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1, shall be entitled to receive the amount of stock and other securities and property which such Holder would hold on the date of such exercise if on the issue date he had been the holder of record of the number of shares of Common Stock of the Company called for on the face of this Warrant and had thereafter, during the period from the issue date, to and including the date of such exercise, retained such shares and/or all other or additional stock and other securities and property receivable by him as aforesaid during such period, giving effect to all adjustments called for during such period. In the event of any such adjustment, the Exercise Price shall be adjusted proportionally.
(B) Adjustment for Reorganization, Consolidation, Merger. In case of any reorganization of the Company (or any other corporation the stock or other securities of which are at the time receivable on the exercise of this Warrant) after the issue date, or in case, after such date, the Company (or any such other corporation) shall consolidate with or merge into another corporation or convey all or substantially all of its assets to another corporation, then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1 at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities or property to which such Holder would be entitled had the Holder exercised this Warrant immediately prior thereto, all subject to further adjustment as provided herein; in each such case, the terms of this Warrant shall be applicable to the shares of stock or other securities or property receivable upon the exercise of this Warrant after such consummation.
4. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall be construed as requiring the Holder to exercise this Warrant prior to or in connection with the effectiveness of a registration statement.
5. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised, this Warrant shall not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company, or to any other rights whatsoever except the rights herein expressed, and, no dividends shall be payable or accrue in respect of this Warrant.
6. REGISTRATION RIGHTS. If the Company at any time proposes to register any of its securities under the Act, including under an SB-2 Registration Statement or otherwise, it will at such time give written notice to all holders of outstanding warrants of its intention so to do. Upon the written request of a holder or holders of any such warrants given within 30 days after receipt of any such notice, the Company will use its best efforts to cause all shares
underlying the exercise of such warrants to be registered under the Act (with the securities which the Company at the time propose to register); provided, however, that the Company may, as a condition precedent to its effective such registration, require each Holder to agree with the Company and the managing underwriter or underwriters of the offering to be made by the Company in connection with such registration that such Holder will not sell any securities of the same class or convertible into the same class as those registered by the Company (including any class into which the securities registered by the Company are convertible) for such reasonable period after such registration becomes effective (not exceeding 90 days) as shall then be specified in writing by such underwriter or underwriters if in the opinion of such underwriter underwriters the Company's offering would be materially adversely affected in the absence of such an agreement. All expenses incurred by the Company in complying with this Section, including without limitation all registration and filing fees, listing fees, printing expenses, fees and disbursements of all independent accountants, or counsel for the Company and the expense of any special audits incident to or required by any such registration and the expenses of complying with the securities or blue sky laws of any jurisdiction shall be paid by the Company.
7. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by the Holder to the Company for new warrants of like tenor representing in the aggregate the right to purchase the number of Warrant Securities purchasable hereunder, each of such new warrants to represent the right to purchase such number of Warrant Securities as shall be designated by the Holder at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it and reimbursement to the company of all reasonable expenses incidental thereto, and upon surrender and cancellation hereof, if mutilated, the Company will make and deliver a new warrant of like tenor and amount, in lieu hereof.
8. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required to issue certificates representing fractions of securities upon the exercise of this Warrant, nor shall it be required to issue scrip or pay cash in lieu of fractional interests. All fractional interests shall be eliminated by rounding any fraction up to the nearest whole number of securities, properties or rights receivable upon exercise of this Warrant.
9. RESERVATION OF SECURITIES. The Company shall at all times reserve and keep available out of its authorized shares of Common Stock or other securities, solely for the purpose of issuance upon the exercise of this Warrant, such number of shares of Common Stock or other securities, properties or rights as shall be issuable upon the exercise hereof. The Company covenants and agrees that, upon exercise of this Warrant and payment of the Principal Value, all shares of Common Stock and other securities issuable upon such exercise shall be duly and validly issued, fully paid, non-assessable and not subject to the preemptive rights of any stockholder.
10. NOTICES TO HOLDER. If at any time prior to the expiration of this Warrant or its exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of any class of its securities for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of current or retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of a class of its securities any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or merger) or a sale of all or substantially all of its property, assets and business as an entirety shall be proposed.
then, in any one or more said events, the Company shall give written notice of such event to the Holder at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholder entitled to such dividend, distribution, convertible or exchangeable securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of closing the transfer books, as the case may be.
11. TRANSFERABILITY. This Warrant may be transferred or assigned by the Holder only with the express written permission of the Company.
12. INFORMATIONAL REQUIREMENTS. The Company will transmit to the Holder such information, documents and reports as are generally distributed to stockholders of the Company concurrently with the distribution thereof to such stockholders.
13. NOTICE. Notices to be given to the Company or the Holder shall be deemed to have been sufficiently given if delivered personally or sent by overnight courier or messenger, or by facsimile transmission. Notices shall be deemed to have been received on the date of personal delivery or facsimile transmission. The address of the Company and of the Holder shall be as set forth in the Company's books and records.
14. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the jurisdiction of any court of the State of California, and of any federal court located in California, in any action or proceeding arising out of or in connection with this Warrant. The Company waives personal service of any summons, complaint or other process in connection with any such action or proceeding and agrees that service thereof may be made, by certified mail directed to the Company at the location provided in Section 13 hereof, or, in the alternative, in any other form or manner permitted by law. Orange County, California shall be proper venue.
15. SUCCESSORS. All the covenants and provisions of this Warrant shall be binding upon and inure to the benefit of the Company, the Holder and their respective legal representatives, successors and assigns.
16. ATTORNEYS FEES. In the event the Holder or any holder hereof shall refer this Warrant to an attorney to enforce the terms hereof, the Company agrees to pay all the costs and expenses incurred in attempting or effecting collection hereunder, including reasonable attorney's fees, whether or not suit is instituted.
17. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE RULES GOVERNING CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by the signature of its President and to be delivered in Santa Ana, California.
Dated: April 12, 2003 Anza Capital, Inc., a Nevada corporation ---------------------------- |
By: Vincent Rinehart Its: President
[FORM OF ELECTION TO PURCHASE]
The undersigned, the holder of the attached Warrant, hereby irrevocably elects to exercise the purchase right represented by this Warrant Certificate for, and to purchase securities of Anza Capital, Inc. and herewith makes payment of $___________ therefor, and requests that the certificates for such securities be issued in the name of, and delivered to _______________________, whose address is _________________________________________.
(Signature must conform in all respects to name of holder as specified on the face of the Warrant Certificate)
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
Cranshire No. 3 WARRANT
Anza Capital, Inc.
(Incorporated under the laws of the State of Nevada)
THIS IS TO CERTIFY that, for value received, Cranshire Capital, L.P., or its assigns (the "Holder") is entitled, subject to the terms and conditions set forth herein, to purchase from Anza Capital, Inc., a Nevada corporation (the "Company") up to Ninety Three Thousand Seven Hundred Forty Eight (93,748) fully paid and nonassessable shares of common stock of the Company (the "Warrant Securities") at the initial price of $0.95 per share but subject to adjustment as provided in Section 3 below, (the "Exercise Price"), upon payment by cashier's check or wire transfer of the Exercise Price for such shares of the Common Stock to the Company at the Company's offices.
1. EXERCISABILITY. This Warrant may be exercised in whole or in part at anytime, or from time to time, between the date of April ___, 2003 and 5:00 p.m. Pacific Time on April ___, 2008, by presentation and surrender hereof to the Company of a notice of election to purchase duly executed and accompanied by payment by check or wire transfer of the Exercise Price.
2. MANNER OF EXERCISE. In case of the purchase of less than all the Warrant Securities, the Company shall cancel this Warrant upon the surrender hereof and shall execute and deliver a new warrant of like tenor for the balance of the Warrant Securities. Upon the exercise of this Warrant, the issuance of certificates for securities, properties or rights underlying this Warrant shall be made forthwith (and in any event within five (5) business days thereafter) without charge to the Holder including, without limitation, any tax that may be payable in respect of the issuance thereof: provided, however, that the Company shall not be required to pay any tax in respect of income or capital gain of the Holder.
If and to the extent this Warrant is exercised, in whole or in part, the Holder shall be entitled to receive a certificate or certificates representing the Warrant Securities so purchased, upon presentation and surrender to the Company of the form of election to purchase attached hereto duly executed, and accompanied by payment of the purchase price.
3. ADJUSTMENT IN NUMBER OF SHARES.
(A) Adjustment for Reclassifications. In case at any time or from time to time after the issue date the holders of the Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received, or, on or after the record date fixed for the determination of eligible stockholders, shall have become entitled to receive, without payment therefore, other or additional stock or other securities or property (including cash) by way of stock split, spin-off, reclassification, combination of shares or similar corporate rearrangement (exclusive of any stock dividend of its or any subsidiary's capital stock), then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1, shall be entitled to receive the amount of stock and other securities and property which such Holder would hold on the date of such exercise if on the issue date he had been the holder of record of the number of shares of Common Stock of the Company called for on the face of this Warrant and had thereafter, during the period from the issue date, to and including the date of such exercise, retained such shares and/or all other or additional stock and other securities and property receivable by him as aforesaid during such period, giving effect to all adjustments called for during such period. In the event of any such adjustment, the Exercise Price shall be adjusted proportionally.
(B) Adjustment for Reorganization, Consolidation, Merger. In case of any reorganization of the Company (or any other corporation the stock or other securities of which are at the time receivable on the exercise of this Warrant) after the issue date, or in case, after such date, the Company (or any such other corporation) shall consolidate with or merge into another corporation or convey all or substantially all of its assets to another corporation, then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1 at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities or property to which such Holder would be entitled had the Holder exercised this Warrant immediately prior thereto, all subject to further adjustment as provided herein; in each such case, the terms of this Warrant shall be applicable to the shares of stock or other securities or property receivable upon the exercise of this Warrant after such consummation.
4. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall be construed as requiring the Holder to exercise this Warrant prior to or in connection with the effectiveness of a registration statement.
5. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised, this Warrant shall not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company, or to any other rights whatsoever except the rights herein expressed, and, no dividends shall be payable or accrue in respect of this Warrant.
6. REGISTRATION RIGHTS. If the Company at any time proposes to register any of its securities under the Act, including under an SB-2 Registration Statement or otherwise, it will at such time give written notice to all holders of outstanding warrants of its intention so to do. Upon the written request of a holder or holders of any such warrants given within 30 days after receipt of any such notice, the Company will use its best efforts to cause all shares underlying the exercise of such warrants to be registered under the Act (with the securities which the Company at the time propose to register); provided, however, that the Company may, as a condition precedent to its effective such registration, require each Holder to agree with the Company and the managing underwriter or underwriters of the offering to be made by the Company in connection with such registration that such Holder will not sell any securities of the same class or convertible into the same class as those registered by the Company (including any class into which the securities registered by the Company are convertible) for such reasonable period after such registration becomes effective (not exceeding 90 days) as shall then be specified in writing by such underwriter or underwriters if in the opinion of such underwriter or underwriters the Company's offering would be materially adversely affected in the absence of such an agreement. All expenses incurred by the Company in complying with this Section, including without limitation all registration and filing fees, listing fees, printing expenses, fees and disbursements of all independent accountants, or counsel for the Company and the expense of any special audits incident to or required by any such registration and the expenses of complying with the securities or blue sky laws of any jurisdiction shall be paid by the Company.
7. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by the Holder to the Company for new warrants of like tenor representing in the aggregate the right to purchase the number of Warrant Securities purchasable hereunder, each of such new warrants to represent the right to purchase such number of Warrant Securities as shall be designated by the Holder at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it and reimbursement to the company of all reasonable expenses incidental thereto, and upon surrender and cancellation hereof, if mutilated, the Company will make and deliver a new warrant of like tenor and amount, in lieu hereof.
8. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required to issue certificates representing fractions of securities upon the exercise of this Warrant, nor shall it be required to issue scrip or pay cash in lieu of fractional interests. All fractional interests shall be eliminated by rounding any fraction up to the nearest whole number of securities, properties or rights receivable upon exercise of this Warrant.
9. RESERVATION OF SECURITIES. The Company shall at all times reserve and keep available out of its authorized shares of Common Stock or other securities, solely for the purpose of issuance upon the exercise of this Warrant, such number of shares of Common Stock or other securities, properties or rights as shall be issuable upon the exercise hereof. The Company covenants and agrees that, upon exercise of this Warrant and payment of the Principal Value, all shares of Common Stock and other securities issuable upon such exercise shall be duly and validly issued, fully paid, non-assessable and not subject to the preemptive rights of any stockholder.
10. NOTICES TO HOLDER. If at any time prior to the expiration of this Warrant or its exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of any class of its securities for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of current or retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of a class of its securities any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or merger) or a sale of all or substantially all of its property, assets and business as an entirety shall be proposed.
then, in any one or more said events, the Company shall give written notice of such event to the Holder at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholder entitled to such dividend, distribution, convertible or exchangeable securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of closing the transfer books, as the case may be.
11. TRANSFERABILITY. This Warrant may be transferred or assigned by the Holder only with the express written permission of the Company.
12. INFORMATIONAL REQUIREMENTS. The Company will transmit to the Holder such information, documents and reports as are generally distributed to stockholders of the Company concurrently with the distribution thereof to such stockholders.
13. NOTICE. Notices to be given to the Company or the Holder shall be deemed to have been sufficiently given if delivered personally or sent by overnight courier or messenger, or by facsimile transmission. Notices shall be deemed to have been received on the date of personal delivery or facsimile transmission. The address of the Company and of the Holder shall be as set forth in the Company's books and records.
14. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the jurisdiction of any court of the State of California, and of any federal court located in California, in any action or proceeding arising out of or in connection with this Warrant. The Company waives personal service of any summons, complaint or other process in connection with any such action or proceeding and agrees that service thereof may be made, by certified mail directed to the Company at the location provided in Section 13 hereof, or, in the alternative, in any other form or manner permitted by law. Orange County, California shall be proper venue.
15. SUCCESSORS. All the covenants and provisions of this Warrant shall be binding upon and inure to the benefit of the Company, the Holder and their respective legal representatives, successors and assigns.
16. ATTORNEYS FEES. In the event the Holder or any holder hereof shall refer this Warrant to an attorney to enforce the terms hereof, the Company agrees to pay all the costs and expenses incurred in attempting or effecting collection hereunder, including reasonable attorney's fees, whether or not suit is instituted.
17. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE RULES GOVERNING CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by the signature of its President and to be delivered in Santa Ana, California.
Dated: April ___, 2003 Anza Capital, Inc., a Nevada corporation ________________________________ |
By: Vincent Rinehart Its: President
[FORM OF ELECTION TO PURCHASE]
The undersigned, the holder of the attached Warrant, hereby irrevocably elects to exercise the purchase right represented by this Warrant Certificate for, and to purchase securities of Anza Capital, Inc. and herewith makes payment of $___________ therefor, and requests that the certificates for such securities be issued in the name of, and delivered to _______________________, whose address is _________________________________________.
Dated: _________________, 20___ _________________________________ By: ___________________________ (Signature must conform in all respects to name of holder as specified on the face of the Warrant Certificate) |
ANZA CAPITAL, INC.
A NEVADA CORPORATION
STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement (the "Agreement") is entered into effective this 28th day of February, 2003 by and between Anza Capital, Inc., a Nevada corporation ("Anza" or the "Company") and EURAM Cap Strat. "A" Fund Limited (the "Shareholder"). Each of the Company and the Shareholder shall be referred to as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Company has undertaken a recapitalization of its corporate structure, which will include (but not be limited to) the voluntary exchange of certain preferred stock for newly created preferred stock, the exchange of debt and warrants for stock, and a reverse stock split (the "Recapitalization");
WHEREAS, the Shareholder is the record and beneficial owner of 4,051 shares of Series C Convertible Preferred Stock (the "Surrendered Shares");
WHEREAS, in connection with the Recapitalization, the Company has offered for the Shareholder to convert the Surrendered Shares into 8,273,395 shares of Company common stock (the "Conversion Common Shares"), 2025.5 shares of newly created Series D Convertible Preferred Stock (the "Preferred Exchange Shares"), and warrants to acquire 185,226 shares of Company common stock (the "Exchange Warrants"), in accordance with the terms and conditions hereof, and the Shareholder desires to accept the offer and consummate the exchange.
NOW, THEREFORE, for good and adequate consideration, the receipt of which is hereby acknowledged, the Parties covenant, promise and agree as follows:
AGREEMENT
(a) Within three (3) business days of the execution of this Agreement, the Shareholder shall surrender to the Company the Surrendered Shares, duly endorsed for transfer to the Company.
(b) Effective as of the date of this Agreement, the Shareholder shall convert 2025.5 of the Surrendered Shares into the Conversion Common Shares. The Conversion Common Shares shall be validly issued, fully paid, and non assessable, shall be restricted in accordance with Rule 144 promulgated under the Securities Act of 1933, and shall be subject to a 20-for-1 reverse stock split currently contemplated as part of the Recapitalization.
(c) Effective as of the Exchange Date (as hereinafter defined), the remaining number of Surrendered Shares not exchanged for Conversion Common Shares shall automatically be exchanged for the Preferred Exchange Shares and the Exchange Warrants. The Preferred Exchange Shares shall be validly issued, fully paid, and non assessable, and shall be restricted in accordance with Rule 144 promulgated under the Securities Act of 1933.
(d) The rights, privileges, and preferences of the Preferred Exchange Shares shall be as set forth in the Certificate of Designation of the Rights, Preferences, Privileges and Restrictions of the Series D Convertible Preferred Stock of Anza Capital, Inc., a copy of which is attached hereto as Exhibit "A" (the "Certificate of Designation").
(e) The Exchange Warrants shall be exercisable for a period of five (5)
years from the Exchange Date, and shall have an exercise price as follows: (i)
61,742 shares at $0.50 per share, (ii) 61,742 shares at $0.75 per share, and
(iii) 61,742 shares at $0.95 per share. The warrant agreements have been
attached hereto as Exhibits "B-D."
(f) The Exchange Date shall be the date on which the Certificate of Designation is filed with the Nevada Secretary of State, which date is anticipated to be within three (3) business days of the completion of the Company's Annual Shareholders Meeting.
(g) The Company's Annual Shareholders Meeting is currently scheduled for the middle of April, 2003. If the Company's Annual Shareholders Meeting does not take place on or before June 30, 2003 (the "Termination Date"), then this Agreement and the exchange of the remaining Surrendered Shares for Preferred Exchange Shares shall automatically be cancelled. In such an event, the exchange of Surrendered Shares for Conversion Common Shares shall remain effective as of the date of this Agreement.
(h) Between the date of this Agreement and the Termination Date, the Shareholder shall remain the record and beneficial owner of the Surrendered Shares not exchanged for Conversion Common Shares, and shall have all voting power associated therewith; however, the Shareholder hereby waives and suspends its rights to dividends, its conversion rights, redemption rights, and all other rights set forth in the Certificate of Designations, Preferences and Rights of Series C Convertible Preferred Stock of E-Net Financial.com Corporation dated April 7, 2000 until the earlier to occur of the Exchange Date or the Termination Date. In the event this Agreement is terminated on the Termination Date, then all rights waived and suspended by this subsection shall be reinstated effective as of the date of this Agreement.
(a) Shareholder shall transfer title in and to the Surrendered Shares to the Company free and clear of all liens, security interests, pledges, encumbrances, charges, restrictions, demands and claims, of any kind or nature whatsoever, whether direct or indirect or contingent. This Agreement has been duly executed and delivered by the Shareholder. This Agreement constitutes, and upon execution and delivery thereof by the Shareholder, will constitute, a valid and binding agreement of the Shareholder enforceable against the Shareholder in accordance with its respective terms.
(b) The Shareholder is not a party to any partnership, management, shareholders' or joint venture or similar agreement which would affect the Shareholder's performance of this Agreement or the Shareholder's representation and warranties in this Agreement.
(c) No form of general solicitation or general advertising was used by the Shareholder or the Company or, to the best of its actual knowledge, any other person acting on behalf of the Shareholder or the Company, in connection with the exchange. Neither the Shareholder, nor, to its knowledge, any person acting on behalf of the Shareholder, has, either directly or indirectly, sold or offered for sale to any person (other than the Company) any of the Surrendered Shares, and the Shareholder represents that neither itself nor any person authorized to act on its behalf (except that the Shareholder makes no representation as to the Company) will sell or offer for sale any such security to, or solicit any offers to buy any such security from, or otherwise approach or negotiate in respect thereof with, any person or persons so as thereby to cause the issuance or sale of any of the Surrendered Shares to be in violation of any of the provisions of Section 5 of the Securities Act of 1933 or any other provision of law.
(d) None of the Surrendered Shares are or will be subject to any voting trust or agreement. No person holds or has the right to receive any proxy or similar instrument with respect to the Surrendered Shares. Except as provided in this Agreement, the Shareholder is not a party to any agreement which offers or grants to any person the right to purchase or acquire any of the Surrendered Shares. There is no applicable local, state or federal law, rule, regulation, or decree which would, as a result of the sale contemplated by this Agreement, impair, restrict or delay any voting rights with respect to the Surrendered Shares.
(e) The representations and warranties herein by the Shareholder will be true and correct in all material respects on and as of the date hereof and will, except as provided herein, survive the Exchange Date.
(f) The Shareholder acknowledges that the Shareholder has been furnished with such financial and other information concerning the Company, the directors and officers of the Company, the business of the Company, and the proposed Recapitalization of the Company as the Shareholder considers necessary in connection with the Shareholder's exchange of the Surrendered Shares. As a result, the Shareholder is familiar with the business, operations, properties, financial condition, and recapitalization plan of the Company and has discussed with officers or legal counsel of the Company any questions the Shareholder may have had with respect thereto. The Shareholder has consulted with the Shareholder's own legal, accounting, tax, investment and other advisers with respect to the tax treatment, merits, and risks of the transactions contemplated hereby.
(g) The Shareholder hereby agrees to indemnify and defend the Company and its directors and officers and hold them harmless from and against any and all liability, damage, cost or expense incurred on account of or arising out of:
(i) Any breach of or inaccuracy in the Shareholder's representations, warranties or agreements herein;
(ii) Any disposition of any Surrendered Shares contrary to any of the Shareholder's representations, warranties or agreements herein;
(iii) Any action, suit or proceeding based on a claim that any of said representations, warranties or agreements were inaccurate or misleading or otherwise cause for obtaining damages or redress from the Company or any director or officer of the Company.
(h) The representations, warranties and agreements contained in this Agreement shall be binding on the Shareholder's successors, assigns, heirs and legal representatives and shall inure to the benefit of the respective successors and assigns of the Company and its directors and officers.
(i) Shareholder shall deliver, along with a signed copy of this Agreement, all stock certificates representing the Surrendered Shares, fully endorsed to the Company or accompanied by an Irrevocable Stock Power trans- ferring the Surrendered Shares to the Company.
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of Nevada, with full power and authority to own, lease, use, and operate its properties and to carry on its business as and where now owned, leased, used, operated and conducted. The Company has all requisite corporate power and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby and to effect the exchange of the shares in accordance with the terms hereof.
(b) The information heretofore furnished by the Company to the Share- holder for purposes of or in connection with this Agreement or any transaction contemplated hereby does not, and all such information hereafter furnished by the Company to the Shareholder will not (in each case taken together and on the date as of which such information is furnished), contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they are made, not misleading.
(c) The representations and warranties herein by the Company will be true and correct in all material respects on and as of the date hereof and will, except as provided herein, survive the Exchange Date.
5. This Agreement may not be amended, canceled, revoked or otherwise modified except by written agreement subscribed by all of the Parties to be charged with such modification.
6. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective partners, employees, agents, servants, heirs, administrators, executors, successors, representatives and assigns.
7. All Parties hereto agree to pay their own costs and attorneys' fees except as follows:
(a) In the event of any action, suit or other proceeding instituted to remedy, prevent or obtain relief from a breach of this Agreement, arising out of a breach of this Agreement, involving claims within the scope of the releases contained in this Agreement, or pertaining to a declaration of rights under this Agreement, the prevailing Party shall recover all of such Party's attorneys' fees and costs incurred in each and every such action, suit or other proceeding, including any and all appeals or petitions therefrom.
(b) As used herein, attorneys' fees shall be deemed to mean the full and actual costs of any legal services actually performed in connection with the matters involved, calculated on the basis of the usual fee charged by the attorneys performing such services.
8. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California including all matters of construction, validity, performance, and enforcement and without giving effect to the principles of conflict of laws. Venue for any action brought under this Agreement shall be in the appropriate court in Orange County, California.
9. The Parties agree and stipulate that each and every term and condition contained in this Agreement is material, and that each and every term and condition may be reasonably accomplished within the time limitations, and in the manner set forth in this Agreement.
10. The Parties agree and stipulate that time is of the essence with respect to compliance with each and every item set forth in this Agreement.
11. This Agreement, along with the exhibits hereto, sets forth the entire agreement and understanding of the Parties hereto and supersedes any and all prior agreements, arrangements and understandings related to the subject matter hereof. No understanding, promise, inducement, statement of intention, representation, warranty, covenant or condition, written or oral, express or implied, whether by statute or otherwise, has been made by any party hereto which is not embodied in this Agreement or the written statements, certificates, or other documents delivered pursuant hereto or in connection with the transactions contemplated hereby, and no Party hereto shall be bound by or liable for any alleged understanding, promise, inducement, statement, representation, warranty, covenant or condition not so set forth.
12. This Agreement may be executed in one or more counterparts, each of which when executed and delivered shall be an original, and all of which when executed shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto, agreeing to be bound hereby, execute this Agreement upon the date first set forth above.
"Shareholder" "Company" EURAM Cap Strat. "A" Fund Limited Anza Capital, Inc. /s/ M. Kopin /s/ Vincent Rinehart --------------------------- ---------------------- By: M. Kopin By: Vincent Rinehart Its: President Its: President |
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
EURAM No. 1 WARRANT
Anza Capital, Inc.
(Incorporated under the laws of the State of Nevada)
THIS IS TO CERTIFY that, for value received, EURAM Cap Strat. "A" Fund Limited, or its assigns (the "Holder") is entitled, subject to the terms and conditions set forth herein, to purchase from Anza Capital, Inc., a Nevada corporation (the "Company") up to Sixty One Thousand Seven Hundred Forty Two (61,742) fully paid and nonassessable shares of common stock of the Company (the "Warrant Securities") at the initial price of $0.50 per share but subject to adjustment as provided in Section 3 below, (the "Exercise Price"), upon payment by cashier's check or wire transfer of the Exercise Price for such shares of the Common Stock to the Company at the Company's offices.
1. EXERCISABILITY. This Warrant may be exercised in whole or in part at any time, or from time to time, between the date of April ___, 2003 and 5:00 p.m. Pacific Time on April ___, 2008, by presentation and surrender hereof to the Company of a notice of election to purchase duly executed and accompanied by payment by check or wire transfer of the Exercise Price.
2. MANNER OF EXERCISE. In case of the purchase of less than all the Warrant Securities, the Company shall cancel this Warrant upon the surrender hereof and shall execute and deliver a new warrant of like tenor for the balance of the Warrant Securities. Upon the exercise of this Warrant, the issuance of certificates for securities, properties or rights underlying this Warrant shall be made forthwith (and in any event within five (5) business days thereafter) without charge to the Holder including, without limitation, any tax that may be payable in respect of the issuance thereof: provided, however, that the Company shall not be required to pay any tax in respect of income or capital gain of the Holder.
If and to the extent this Warrant is exercised, in whole or in part, the Holder shall be entitled to receive a certificate or certificates representing the Warrant Securities so purchased, upon presentation and surrender to the Company of the form of election to purchase attached hereto duly executed, and accompanied by payment of the purchase price.
3. ADJUSTMENT IN NUMBER OF SHARES.
(A) Adjustment for Reclassifications. In case at any time or from time to time after the issue date the holders of the Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received, or, on or after the record date fixed for the determination of eligible stockholders, shall have become entitled to receive, without payment therefore, other or additional stock or other securities or property (including cash) by way of stock split, spin-off, reclassification, combination of shares or similar corporate rearrangement (exclusive of any stock dividend of its or any subsidiary's capital stock), then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1, shall be entitled to receive the amount of stock and other securities and property which such Holder would hold on the date of such exercise if on the issue date he had been the holder of record of the number of shares of Common Stock of the Company called for on the face of this Warrant and had thereafter, during the period from the issue date, to and including the date of such exercise, retained such shares and/or all other or additional stock and other securities and property receivable by him as aforesaid during such period, giving effect to all adjustments called for during such period. In the event of any such adjustment, the Exercise Price shall be adjusted proportionally.
(B) Adjustment for Reorganization, Consolidation, Merger. In case of any reorganization of the Company (or any other corporation the stock or other securities of which are at the time receivable on the exercise of this Warrant) after the issue date, or in case, after such date, the Company (or any such other corporation) shall consolidate with or merge into another corporation or convey all or substantially all of its assets to another corporation, then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1 at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities or property to which such Holder would be entitled had the Holder exercised this Warrant immediately prior thereto, all subject to further adjustment as provided herein; in each such case, the terms of this Warrant shall be applicable to the shares of stock or other securities or property receivable upon the exercise of this Warrant after such consummation.
4. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall be construed as requiring the Holder to exercise this Warrant prior to or in connection with the effectiveness of a registration statement.
5. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised, this Warrant shall not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company, or to any other rights whatsoever except the rights herein expressed, and, no dividends shall be payable or accrue in respect of this Warrant.
6. REGISTRATION RIGHTS. If the Company at any time proposes to register any of its securities under the Act, including under an SB-2 Registration Statement or otherwise, it will each such time give written notice to all holders of outstanding warrants of its intention so to do. Upon the written request of a holder or holders of any such warrants given within 30 days after receipt of any such notice, the Company will use its best efforts to cause all shares underlying the exercise of such warrants to be registered under the Act (with the securities which the Company at the time propose to register); provided, however, that the Company may, as a condition precedent to its effective such registration, require each Holder to agree with the Company and the managing underwriter or underwriters of the offering to be made by the Company in connection with such registration that such Holder will not sell any securities of the same class or convertible into the same class as those registered by the Company (including any class into which the securities registered by the Company are convertible) for such reasonable period after such registration becomes effective (not exceeding 90 days) as shall then be specified in writing by such underwriter or underwriters if in the opinion of such underwriter or underwriters the Company's offering would be materially adversely affected in the absence of such an agreement. All expenses incurred by the Company in complying with this Section, including without limitation all registration and filing fees, listing fees, printing expenses, fees and disbursements of all independent accountants, or counsel for the Company and the expense of any special audits incident to or required by any such registration and the expenses of complying with the securities or blue sky laws of any jurisdiction shall be paid by the Company.
7. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by the Holder to the Company for new warrants of like tenor representing in the aggregate the right to purchase the number of Warrant Securities purchasable hereunder, each of such new warrants to represent the right to purchase such number of Warrant Securities as shall be designated by the Holder at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it and reimbursement to the company of all reasonable expenses incidental thereto, and upon surrender and cancellation hereof, if mutilated, the Company will make and deliver a new warrant of like tenor and amount, in lieu hereof.
8. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required to issue certificates representing fractions of securities upon the exercise of this Warrant, nor shall it be required to issue scrip or pay cash in lieu of fractional interests. All fractional interests shall be eliminated by rounding any fraction up to the nearest whole number of securities, properties or rights receivable upon exercise of this Warrant.
9. RESERVATION OF SECURITIES. The Company shall at all times reserve and keep available out of its authorized shares of Common Stock or other securities, solely for the purpose of issuance upon the exercise of this Warrant, such number of shares of Common Stock or other securities, properties or rights as shall be issuable upon the exercise hereof. The Company covenants and agrees that, upon exercise of this Warrant and payment of the Principal Value, all shares of Common Stock and other securities issuable upon such exercise shall be duly and validly issued, fully paid, non-assessable and not subject to the preemptive rights of any stockholder.
10. NOTICES TO HOLDER. If at any time prior to the expiration of this Warrant or its exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of any class of its securities for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of current or retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of a class of its securities any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or merger) or a sale of all or substantially all of its property, assets and business as an entirety shall be proposed.
then, in any one or more said events, the Company shall give written notice of such event to the Holder at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholder entitled to such dividend, distribution, convertible or exchangeable securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of closing the transfer books, as the case may be.
11. TRANSFERABILITY. This Warrant may be transferred or assigned by the Holder only with the express written permission of the Company.
12. INFORMATIONAL REQUIREMENTS. The Company will transmit to the Holder such information, documents and reports as are generally distributed to stockholders of the Company concurrently with the distribution thereof to such stockholders.
13. NOTICE. Notices to be given to the Company or the Holder shall be deemed to have been sufficiently given if delivered personally or sent by overnight courier or messenger, or by facsimile transmission. Notices shall be deemed to have been received on the date of personal delivery or facsimile transmission. The address of the Company and of the Holder shall be as set forth in the Company's books and records.
14. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the jurisdiction of any court of the State of California, and of any federal court located in California, in any action or proceeding arising out of or in connection with this Warrant. The Company waives personal service of any summons, complaint or other process in connection with any such action or proceeding and agrees that service thereof may be made, by certified mail directed to the Company at the location provided in Section 13 hereof, or, in the alternative, in any other form or manner permitted by law. Orange County, California shall be proper venue.
15. SUCCESSORS. All the covenants and provisions of this Warrant shall be binding upon and inure to the benefit of the Company, the Holder and their respective legal representatives, successors and assigns.
16. ATTORNEYS FEES. In the event the Holder or any holder hereof shall refer this Warrant to an attorney to enforce the terms hereof, the Company agrees to pay all the costs and expenses incurred in attempting or effecting collection hereunder, including reasonable attorney's fees, whether or not suit is instituted.
17. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE RULES GOVERNING CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by the signature of its President and to be delivered in Santa Ana, California.
Dated: April 12, 2003 Anza Capital, Inc., a Nevada corporation ---------------------------- |
By: Vincent Rinehart Its: President
[FORM OF ELECTION TO PURCHASE]
The undersigned, the holder of the attached Warrant, hereby irrevocably elects to exercise the purchase right represented by this Warrant Certificate for, and to purchase securities of Anza Capital, Inc. and herewith makes payment of $___________ therefor, and requests that the certificates for such securities be issued in the name of, and delivered to _______________________, whose address is _________________________________________.
(Signature must conform in all respects to name of holder as specified on the face of the Warrant Certificate)
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
EURAM No. 2 WARRANT
Anza Capital, Inc.
(Incorporated under the laws of the State of Nevada)
THIS IS TO CERTIFY that, for value received, EURAM Cap Strat. "A" Fund Limited, or its assigns (the "Holder") is entitled, subject to the terms and conditions set forth herein, to purchase from Anza Capital, Inc., a Nevada corporation (the "Company") up to Sixty One Thousand Seven Hundred Forty Two (61,742) fully paid and nonassessable shares of common stock of the Company (the "Warrant Securities") at the initial price of $0.75 per share but subject to adjustment as provided in Section 3 below, (the "Exercise Price"), upon payment by cashier's check or wire transfer of the Exercise Price for such shares of the Common Stock to the Company at the Company's offices.
1. EXERCISABILITY. This Warrant may be exercised in whole or in part at any time, or from time to time, between the date of April ___, 2003 and 5:00 p.m. Pacific Time on April ___, 2008, by presentation and surrender hereof to the Company of a notice of election to purchase duly executed and accompanied by payment by check or wire transfer of the Exercise Price.
2. MANNER OF EXERCISE. In case of the purchase of less than all the Warrant Securities, the Company shall cancel this Warrant upon the surrender hereof and shall execute and deliver a new warrant of like tenor for the balance of the Warrant Securities. Upon the exercise of this Warrant, the issuance of certificates for securities, properties or rights underlying this Warrant shall be made forthwith (and in any event within five (5) business days thereafter) without charge to the Holder including, without limitation, any tax that may be payable in respect of the issuance thereof: provided, however, that the Company shall not be required to pay any tax in respect of income or capital gain of the Holder.
If and to the extent this Warrant is exercised, in whole or in part, the Holder shall be entitled to receive a certificate or certificates representing the Warrant Securities so purchased, upon presentation and surrender to the Company of the form of election to purchase attached hereto duly executed, and accompanied by payment of the purchase price.
3. ADJUSTMENT IN NUMBER OF SHARES.
(A) Adjustment for Reclassifications. In case at any time or from time to time after the issue date the holders of the Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received, or, on or after the record date fixed for the determination of eligible stockholders, shall have become entitled to receive, without payment therefore, other or additional stock or other securities or property (including cash) by way of stock split, spin-off, reclassification, combination of shares or similar corporate rearrangement (exclusive of any stock dividend of its or any subsidiary's capital stock), then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1, shall be entitled to receive the amount of stock and other securities and property which such Holder would hold on the date of such exercise if on the issue date he had been the holder of record of the number of shares of Common Stock of the Company called for on the face of this Warrant and had thereafter, during the period from the issue date, to and including the date of such exercise, retained such shares and/or all other or additional stock and other securities and property receivable by him as aforesaid during such period, giving effect to all adjustments called for during such period. In the event of any such adjustment, the Exercise Price shall be adjusted proportionally.
(B) Adjustment for Reorganization, Consolidation, Merger. In case of any reorganization of the Company (or any other corporation the stock or other securities of which are at the time receivable on the exercise of this Warrant) after the issue date, or in case, after such date, the Company (or any such other corporation) shall consolidate with or merge into another corporation or convey all or substantially all of its assets to another corporation, then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1 at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities or property to which such Holder would be entitled had the Holder exercised this Warrant immediately prior thereto, all subject to further adjustment as provided herein; in each such case, the terms of this Warrant shall be applicable to the shares of stock or other securities or property receivable upon the exercise of this Warrant after such consummation.
4. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall be construed as requiring the Holder to exercise this Warrant prior to or in connection with the effectiveness of a registration statement.
5. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised, this Warrant shall not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company, or to any other rights whatsoever except the rights herein expressed, and, no dividends shall be payable or accrue in respect of this Warrant.
6. REGISTRATION RIGHTS. If the Company at any time proposes to register any of its securities under the Act, including under an SB-2 Registration Statement or otherwise, it will each such time give written notice to all holders of outstanding warrants of its intention so to do. Upon the written request of a holder or holders of any such warrants given within 30 days after receipt of any such notice, the Company will use its best efforts to cause all shares underlying the exercise of such warrants to be registered under the Act (with the securities which the Company at the time propose to register); provided, however, that the Company may, as a condition precedent to its effective such registration, require each Holder to agree with the Company and the managing underwriter or underwriters of the offering to be made by the Company in connection with such registration that such Holder will not sell any securities of the same class or convertible into the same class as those registered by the Company (including any class into which the securities registered by the Company are convertible) for such reasonable period after such registration becomes effective (not exceeding 90 days) as shall then be specified in writing by such underwriter or underwriters if in the opinion of such underwriter or underwriters the Company's offering would be materially adversely affected in the absence of such an agreement. All expenses incurred by the Company in complying with this Section, including without limitation all registration and filing fees, listing fees, printing expenses, fees and disbursements of all independent accountants, or counsel for the Company and the expense of any special audits incident to or required by any such registration and the expenses of complying with the securities or blue sky laws of any jurisdiction shall be paid by the Company.
7. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by the Holder to the Company for new warrants of like tenor representing in the aggregate the right to purchase the number of Warrant Securities purchasable hereunder, each of such new warrants to represent the right to purchase such number of Warrant Securities as shall be designated by the Holder at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it and reimbursement to the company of all reasonable expenses incidental thereto, and upon surrender and cancellation hereof, if mutilated, the Company will make and deliver a new warrant of like tenor and amount, in lieu hereof.
8. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required to issue certificates representing fractions of securities upon the exercise of this Warrant, nor shall it be required to issue scrip or pay cash in lieu of fractional interests. All fractional interests shall be eliminated by rounding any fraction up to the nearest whole number of securities, properties or rights receivable upon exercise of this Warrant.
9. RESERVATION OF SECURITIES. The Company shall at all times reserve and keep available out of its authorized shares of Common Stock or other securities, solely for the purpose of issuance upon the exercise of this Warrant, such number of shares of Common Stock or other securities, properties or rights as shall be issuable upon the exercise hereof. The Company covenants and agrees that, upon exercise of this Warrant and payment of the Principal Value, all shares of Common Stock and other securities issuable upon such exercise shall be duly and validly issued, fully paid, non-assessable and not subject to the preemptive rights of any stockholder.
10. NOTICES TO HOLDER. If at any time prior to the expiration of this Warrant or its exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of any class of its securities for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of current or retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of a class of its securities any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or merger) or a sale of all or substantially all of its property, assets and business as an entirety shall be proposed.
then, in any one or more said events, the Company shall give written notice of such event to the Holder at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholder entitled to such dividend, distribution, convertible or exchangeable securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of closing the transfer books, as the case may be.
11. TRANSFERABILITY. This Warrant may be transferred or assigned by the Holder only with the express written permission of the Company.
12. INFORMATIONAL REQUIREMENTS. The Company will transmit to the Holder such information, documents and reports as are generally distributed to stockholders of the Company concurrently with the distribution thereof to such stockholders.
13. NOTICE. Notices to be given to the Company or the Holder shall be deemed to have been sufficiently given if delivered personally or sent by overnight courier or messenger, or by facsimile transmission. Notices shall be deemed to have been received on the date of personal delivery or facsimile transmission. The address of the Company and of the Holder shall be as set forth in the Company's books and records.
14. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the jurisdiction of any court of the State of California, and of any federal court located in California, in any action or proceeding arising out of or in connection with this Warrant. The Company waives personal service of any summons, complaint or other process in connection with any such action or proceeding and agrees that service thereof may be made, by certified mail directed to the Company at the location provided in Section 13 hereof, or, in the alternative, in any other form or manner permitted by law. Orange County, California shall be proper venue.
15. SUCCESSORS. All the covenants and provisions of this Warrant shall be binding upon and inure to the benefit of the Company, the Holder and their respective legal representatives, successors and assigns.
16. ATTORNEYS FEES. In the event the Holder or any holder hereof shall refer this Warrant to an attorney to enforce the terms hereof, the Company agrees to pay all the costs and expenses incurred in attempting or effecting collection hereunder, including reasonable attorney's fees, whether or not suit is instituted.
17. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE RULES GOVERNING CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by the signature of its President and to be delivered in Santa Ana, California.
Dated: April 12, 2003 Anza Capital, Inc., a Nevada corporation ---------------------------- |
By: Vincent Rinehart Its: President
[FORM OF ELECTION TO PURCHASE]
The undersigned, the holder of the attached Warrant, hereby irrevocably elects to exercise the purchase right represented by this Warrant Certificate for, and to purchase securities of Anza Capital, Inc. and herewith makes payment of $___________ therefor, and requests that the certificates for such securities be issued in the name of, and delivered to _______________________, whose address is _________________________________________.
(Signature must conform in all respects to name of holder as specified on the face of the Warrant Certificate)
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
EURAM No. 3 WARRANT Anza Capital, Inc. (Incorporated under the laws of the State of Nevada) |
THIS IS TO CERTIFY that, for value received, EURAM Cap Strat. "A" Fund Limited, or its assigns (the "Holder") is entitled, subject to the terms and conditions set forth herein, to purchase from Anza Capital, Inc., a Nevada corporation (the "Company") up to Sixty One Thousand Seven Hundred Forty Two (61,742) fully paid and nonassessable shares of common stock of the Company (the "Warrant Securities") at the initial price of $0.95 per share but subject to adjustment as provided in Section 3 below, (the "Exercise Price"), upon payment by cashier's check or wire transfer of the Exercise Price for such shares of the Common Stock to the Company at the Company's offices.
1. EXERCISABILITY. This Warrant may be exercised in whole or in part at any time, or from time to time, between the date of April ___, 2003 and 5:00 p.m. Pacific Time on April ___, 2008, by presentation and surrender hereof to the Company of a notice of election to purchase duly executed and accompanied by payment by check or wire transfer of the Exercise Price.
2. MANNER OF EXERCISE. In case of the purchase of less than all the Warrant Securities, the Company shall cancel this Warrant upon the surrender hereof and shall execute and deliver a new warrant of like tenor for the balance of the Warrant Securities. Upon the exercise of this Warrant, the issuance of certificates for securities, properties or rights underlying this Warrant shall be made forthwith (and in any event within five (5) business days thereafter) without charge to the Holder including, without limitation, any tax that may be payable in respect of the issuance thereof: provided, however, that the Company shall not be required to pay any tax in respect of income or capital gain of the Holder.
If and to the extent this Warrant is exercised, in whole or in part, the Holder shall be entitled to receive a certificate or certificates representing the Warrant Securities so purchased, upon presentation and surrender to the Company of the form of election to purchase attached hereto duly executed, and accompanied by payment of the purchase price.
3. ADJUSTMENT IN NUMBER OF SHARES.
(A) Adjustment for Reclassifications. In case at any time or from time to time after the issue date the holders of the Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received, or, on or after the record date fixed for the determination of eligible stockholders, shall have become entitled to receive, without payment therefore, other or additional stock or other securities or property (including cash) by way of stock split, spin-off, reclassification, combination of shares or similar corporate rearrangement (exclusive of any stock dividend of its or any subsidiary's capital stock), then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1, shall be entitled to receive the amount of stock and other securities and property which such Holder would hold on the date of such exercise if on the issue date he had been the holder of record of the number of shares of Common Stock of the Company called for on the face of this Warrant and had thereafter, during the period from the issue date, to and including the date of such exercise, retained such shares and/or all other or additional stock and other securities and property receivable by him as aforesaid during such period, giving effect to all adjustments called for during such period. In the event of any such adjustment, the Exercise Price shall be adjusted proportionally.
(B) Adjustment for Reorganization, Consolidation, Merger. In case of any reorganization of the Company (or any other corporation the stock or other securities of which are at the time receivable on the exercise of this Warrant) after the issue date, or in case, after such date, the Company (or any such other corporation) shall consolidate with or merge into another corporation or convey all or substantially all of its assets to another corporation, then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1 at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities or property to which such Holder would be entitled had the Holder exercised this Warrant immediately prior thereto, all subject to further adjustment as provided herein; in each such case, the terms of this Warrant shall be applicable to the shares of stock or other securities or property receivable upon the exercise of this Warrant after such consummation.
4. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall be construed as requiring the Holder to exercise this Warrant prior to or in connection with the effectiveness of a registration statement.
5. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised, this Warrant shall not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company, or to any other rights whatsoever except the rights herein expressed, and, no dividends shall be payable or accrue in respect of this Warrant.
6. REGISTRATION RIGHTS. If the Company at any time proposes to register any of its securities under the Act, including under an SB-2 Registration Statement or otherwise, it will each such time give written notice to all holders of outstanding warrants of its intention so to do. Upon the written request of a holder or holders of any such warrants given within 30 days after receipt of any such notice, the Company will use its best efforts to cause all shares underlying the exercise of such warrants to be registered under the Act (with the securities which the Company at the time propose to register); provided, however, that the Company may, as a condition precedent to its effective such registration, require each Holder to agree with the Company and the managing underwriter or underwriters of the offering to be made by the Company in connection with such registration that such Holder will not sell any securities of the same class or convertible into the same class as those registered by the Company (including any class into which the securities registered by the Company are convertible) for such reasonable period after such registration becomes effective (not exceeding 90 days) as shall then be specified in writing by such underwriter or underwriters if in the opinion of such underwriter or underwriters the Company's offering would be materially adversely affected in the absence of such an agreement. All expenses incurred by the Company in complying with this Section, including without limitation all registration and filing fees, listing fees, printing expenses, fees and disbursements of all independent accountants, or counsel for the Company and the expense of any special audits incident to or required by any such registration and the expenses of complying with the securities or blue sky laws of any jurisdiction shall be paid by the Company.
7. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by the Holder to the Company for new warrants of like tenor representing in the aggregate the right to purchase the number of Warrant Securities purchasable hereunder, each of such new warrants to represent the right to purchase such number of Warrant Securities as shall be designated by the Holder at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it and reimbursement to the company of all reasonable expenses incidental thereto, and upon surrender and cancellation hereof, if mutilated, the Company will make and deliver a new warrant of like tenor and amount, in lieu hereof.
8. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required to issue certificates representing fractions of securities upon the exercise of this Warrant, nor shall it be required to issue scrip or pay cash in lieu of fractional interests. All fractional interests shall be eliminated by rounding any fraction up to the nearest whole number of securities, properties or rights receivable upon exercise of this Warrant.
9. RESERVATION OF SECURITIES. The Company shall at all times reserve and keep available out of its authorized shares of Common Stock or other securities, solely for the purpose of issuance upon the exercise of this Warrant, such number of shares of Common Stock or other securities, properties or rights as shall be issuable upon the exercise hereof. The Company covenants and agrees that, upon exercise of this Warrant and payment of the Principal Value, all shares of Common Stock and other securities issuable upon such exercise shall be duly and validly issued, fully paid, non-assessable and not subject to the preemptive rights of any stockholder.
10. NOTICES TO HOLDER. If at any time prior to the expiration of this Warrant or its exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of any class of its securities for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of current or retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of a class of its securities any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or merger) or a sale of all or substantially all of its property, assets and business as an entirety shall be proposed.
then, in any one or more said events, the Company shall give written notice of such event to the Holder at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholder entitled to such dividend, distribution, convertible or exchangeable securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of closing the transfer books, as the case may be.
11. TRANSFERABILITY. This Warrant may be transferred or assigned by the Holder only with the express written permission of the Company.
12. INFORMATIONAL REQUIREMENTS. The Company will transmit to the Holder such information, documents and reports as are generally distributed to stockholders of the Company concurrently with the distribution thereof to such stockholders.
13. NOTICE. Notices to be given to the Company or the Holder shall be deemed to have been sufficiently given if delivered personally or sent by overnight courier or messenger, or by facsimile transmission. Notices shall be deemed to have been received on the date of personal delivery or facsimile transmission. The address of the Company and of the Holder shall be as set forth in the Company's books and records.
14. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the jurisdiction of any court of the State of California, and of any federal court located in California, in any action or proceeding arising out of or in connection with this Warrant. The Company waives personal service of any summons, complaint or other process in connection with any such action or proceeding and agrees that service thereof may be made, by certified mail directed to the Company at the location provided in Section 13 hereof, or, in the alternative, in any other form or manner permitted by law. Orange County, California shall be proper venue.
15. SUCCESSORS. All the covenants and provisions of this Warrant shall be binding upon and inure to the benefit of the Company, the Holder and their respective legal representatives, successors and assigns.
16. ATTORNEYS FEES. In the event the Holder or any holder hereof shall refer this Warrant to an attorney to enforce the terms hereof, the Company agrees to pay all the costs and expenses incurred in attempting or effecting collection hereunder, including reasonable attorney's fees, whether or not suit is instituted.
17. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE RULES GOVERNING CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by the signature of its President and to be delivered in Santa Ana, California.
Dated: April 12, 2003 Anza Capital, Inc., a Nevada corporation ---------------------------- |
By: Vincent Rinehart Its: President
[FORM OF ELECTION TO PURCHASE]
The undersigned, the holder of the attached Warrant, hereby irrevocably elects to exercise the purchase right represented by this Warrant Certificate for, and to purchase securities of Anza Capital, Inc. and herewith makes payment of $___________ therefor, and requests that the certificates for such securities be issued in the name of, and delivered to _______________________, whose address is _________________________________________.
(Signature must conform in all respects to name of holder as specified on the face of the Warrant Certificate)
ANZA CAPITAL, INC.
A NEVADA CORPORATION
STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement (the "Agreement") is entered into effective this 28th day of February, 2003 by and between Anza Capital, Inc., a Nevada corporation ("Anza" or the "Company") and The dotCom Fund, LLC (the "Shareholder"). Each of the Company and the Shareholder shall be referred to as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Company has undertaken a recapitalization of its corporate structure, which will include (but not be limited to) the voluntary exchange of certain preferred stock for newly created preferred stock, the exchange of debt and warrants for stock, and a reverse stock split (the "Recapitalization");
WHEREAS, the Shareholder is the record and beneficial owner of 2,195 shares of Series C Convertible Preferred Stock (the "Surrendered Shares");
WHEREAS, in connection with the Recapitalization, the Company has offered for the Shareholder to convert the Surrendered Shares into 4,482,869 shares of Company common stock (the "Conversion Common Shares"), 1097.5 shares of newly created Series D Convertible Preferred Stock (the "Preferred Exchange Shares"), and warrants to acquire 100,362 shares of Company common stock (the "Exchange Warrants"), in accordance with the terms and conditions hereof, and the Shareholder desires to accept the offer and consummate the exchange.
NOW, THEREFORE, for good and adequate consideration, the receipt of which is hereby acknowledged, the Parties covenant, promise and agree as follows:
AGREEMENT
(a) Within three (3) business days of the execution of this Agreement, the Shareholder shall surrender to the Company the Surrendered Shares, duly endorsed for transfer to the Company.
(b) Effective as of the date of this Agreement, the Shareholder shall convert 1097.5 of the Surrendered Shares into the Conversion Common Shares. The Conversion Common Shares shall be validly issued, fully paid, and non assessable, shall be restricted in accordance with Rule 144 promulgated under the Securities Act of 1933, and shall be subject to a 20-for-1 reverse stock split currently contemplated as part of the Recapitalization.
(c) Effective as of the Exchange Date (as hereinafter defined), the remaining number of Surrendered Shares not exchanged for Conversion Common Shares shall automatically be exchanged for the Preferred Exchange Shares and the Exchange Warrants. The Preferred Exchange Shares shall be validly issued, fully paid, and non assessable, and shall be restricted in accordance with Rule 144 promulgated under the Securities Act of 1933.
(d) The rights, privileges, and preferences of the Preferred Exchange Shares shall be as set forth in the Certificate of Designation of the Rights, Preferences, Privileges and Restrictions of the Series D Convertible Preferred Stock of Anza Capital, Inc., a copy of which is attached hereto as Exhibit "A" (the "Certificate of Designation").
(e) The Exchange Warrants shall be exercisable for a period of five (5)
years from the Exchange Date, and shall have an exercise price as follows: (i)
33,454 shares at $0.50 per share, (ii) 33,454 shares at $0.75 per share, and
(iii) 33,454 shares at $0.95 per share. The warrant agreements have been
attached hereto as Exhibits "B-D."
(f) The Exchange Date shall be the date on which the Certificate of Designation is filed with the Nevada Secretary of State, which date is anticipated to be within three (3) business days of the completion of the Company's Annual Shareholders Meeting.
(g) The Company's Annual Shareholders Meeting is currently scheduled for the middle of April, 2003. If the Company's Annual Shareholders Meeting does not take place on or before June 30, 2003 (the "Termination Date"), then this Agreement and the exchange of the remaining Surrendered Shares for Preferred Exchange Shares shall automatically be cancelled. In such an event, the exchange of Surrendered Shares for Conversion Common Shares shall remain effective as of the date of this Agreement.
(h) Between the date of this Agreement and the Termination Date, the Shareholder shall remain the record and beneficial owner of the Surrendered Shares not exchanged for Conversion Common Shares, and shall have all voting power associated therewith; however, the Shareholder hereby waives and suspends its rights to dividends, its conversion rights, redemption rights, and all other rights set forth in the Certificate of Designations, Preferences and Rights of Series C Convertible Preferred Stock of E-Net Financial.com Corporation dated April 7, 2000 until the earlier to occur of the Exchange Date or the Termination Date. In the event this Agreement is terminated on the Termination Date, then all rights waived and suspended by this subsection shall be reinstated effective as of the date of this Agreement.
(a) Shareholder shall transfer title in and to the Surrendered Shares to the Company free and clear of all liens, security interests, pledges, encumbrances, charges, restrictions, demands and claims, of any kind or nature whatsoever, whether direct or indirect or contingent. This Agreement has been duly executed and delivered by the Shareholder. This Agreement constitutes, and upon execution and delivery thereof by the Shareholder, will constitute, a valid and binding agreement of the Shareholder enforceable against the Shareholder in accordance with its respective terms.
(b) The Shareholder is not a party to any partnership, management, shareholders' or joint venture or similar agreement which would affect the Shareholder's performance of this Agreement or the Shareholder's representation and warranties in this Agreement.
(c) No form of general solicitation or general advertising was used by the Shareholder or the Company or, to the best of its actual knowledge, any other person acting on behalf of the Shareholder or the Company, in connection with the exchange. Neither the Shareholder, nor, to its knowledge, any person acting on behalf of the Shareholder, has, either directly or indirectly, sold or offered for sale to any person (other than the Company) any of the Surrendered Shares, and the Shareholder represents that neither itself nor any person authorized to act on its behalf (except that the Shareholder makes no representation as to the Company) will sell or offer for sale any such security to, or solicit any offers to buy any such security from, or otherwise approach or negotiate in respect thereof with, any person or persons so as thereby to cause the issuance or sale of any of the Surrendered Shares to be in violation of any of the provisions of Section 5 of the Securities Act of 1933 or any other provision of law.
(d) None of the Surrendered Shares are or will be subject to any voting trust or agreement. No person holds or has the right to receive any proxy or similar instrument with respect to the Surrendered Shares. Except as provided in this Agreement, the Shareholder is not a party to any agreement which offers or grants to any person the right to purchase or acquire any of the Surrendered Shares. There is no applicable local, state or federal law, rule, regulation, or decree which would, as a result of the sale contemplated by this Agreement, impair, restrict or delay any voting rights with respect to the Surrendered Shares.
(e) The representations and warranties herein by the Shareholder will be true and correct in all material respects on and as of the date hereof and will, except as provided herein, survive the Exchange Date.
(f) The Shareholder acknowledges that the Shareholder has been furnished with such financial and other information concerning the Company, the directors and officers of the Company, the business of the Company, and the proposed Recapitalization of the Company as the Shareholder considers necessary in connection with the Shareholder's exchange of the Surrendered Shares. As a result, the Shareholder is familiar with the business, operations, properties, financial condition, and recapitalization plan of the Company and has discussed with officers or legal counsel of the Company any questions the Shareholder may have had with respect thereto. The Shareholder has consulted with the Shareholder's own legal, accounting, tax, investment and other advisers with respect to the tax treatment, merits, and risks of the transactions contemplated hereby.
(g) The Shareholder hereby agrees to indemnify and defend the Company and its directors and officers and hold them harmless from and against any and all liability, damage, cost or expense incurred on account of or arising out of:
(i) Any breach of or inaccuracy in the Shareholder's representations, warranties or agreements herein;
(ii) Any disposition of any Surrendered Shares contrary to any of the Shareholder's representations, warranties or agreements herein;
(iii) Any action, suit or proceeding based on a claim that any of said representations, warranties or agreements were inaccurate or misleading or otherwise cause for obtaining damages or redress from the Company or any director or officer of the Company.
(h) The representations, warranties and agreements contained in this Agreement shall be binding on the Shareholder's successors, assigns, heirs and legal representatives and shall inure to the benefit of the respective successors and assigns of the Company and its directors and officers.
(i) Shareholder shall deliver, along with a signed copy of this Agreement, all stock certificates representing the Surrendered Shares, fully endorsed to the Company or accompanied by an Irrevocable Stock Power transferring the Surrendered Shares to the Company.
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of Nevada, with full power and authority to own, lease, use, and operate its properties and to carry on its business as and where now owned, leased, used, operated and conducted. The Company has all requisite corporate power and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby and to effect the exchange of the shares in accordance with the terms hereof.
(b) The information heretofore furnished by the Company to the Shareholder for purposes of or in connection with this Agreement or any transaction contemplated hereby does not, and all such information hereafter furnished by the Company to the Shareholder will not (in each case taken together and on the date as of which such information is furnished), contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they are made, not misleading.
(c) The representations and warranties herein by the Company will be true and correct in all material respects on and as of the date hereof and will, except as provided herein, survive the Exchange Date.
5. This Agreement may not be amended, canceled, revoked or otherwise modified except by written agreement subscribed by all of the Parties to be charged with such modification.
6. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective partners, employees, agents, servants, heirs, administrators, executors, successors, representatives and assigns.
7. All Parties hereto agree to pay their own costs and attorneys' fees except as follows:
(a) In the event of any action, suit or other proceeding instituted to remedy, prevent or obtain relief from a breach of this Agreement, arising out of a breach of this Agreement, involving claims within the scope of the releases contained in this Agreement, or pertaining to a declaration of rights under this Agreement, the prevailing Party shall recover all of such Party's attorneys' fees and costs incurred in each and every such action, suit or other proceeding, including any and all appeals or petitions therefrom.
(b) As used herein, attorneys' fees shall be deemed to mean the full and actual costs of any legal services actually performed in connection with the matters involved, calculated on the basis of the usual fee charged by the attorneys performing such services.
8. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California including all matters of construction, validity, performance, and enforcement and without giving effect to the principles of conflict of laws. Venue for any action brought under this Agreement shall be in the appropriate court in Orange County, California.
9. The Parties agree and stipulate that each and every term and condition contained in this Agreement is material, and that each and every term and condition may be reasonably accomplished within the time limitations, and in the manner set forth in this Agreement.
10. The Parties agree and stipulate that time is of the essence with respect to compliance with each and every item set forth in this Agreement.
11. This Agreement, along with the exhibits hereto, sets forth the entire agreement and understanding of the Parties hereto and supersedes any and all prior agreements, arrangements and understandings related to the subject matter hereof. No understanding, promise, inducement, statement of intention, representation, warranty, covenant or condition, written or oral, express or implied, whether by statute or otherwise, has been made by any party hereto which is not embodied in this Agreement or the written statements, certificates, or other documents delivered pursuant hereto or in connection with the transactions contemplated hereby, and no Party hereto shall be bound by or liable for any alleged understanding, promise, inducement, statement, representation, warranty, covenant or condition not so set forth.
12. This Agreement may be executed in one or more counterparts, each of which when executed and delivered shall be an original, and all of which when executed shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto, agreeing to be bound hereby, execute this Agreement upon the date first set forth above.
"Shareholder" "Company" The dotCom Fund, LLC Anza Capital, Inc. /s/ Mark Price /s/ Vincent Rinehart -------------------------------- -------------------------------- By: Mark Price By: Vincent Rinehart Its: Manager of Managing Member Its: President |
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
dotCom No. 1 WARRANT
Anza Capital, Inc.
(Incorporated under the laws of the State of Nevada)
THIS IS TO CERTIFY that, for value received, dotCom Fund, LLC, or its assigns (the "Holder") is entitled, subject to the terms and conditions set forth herein, to purchase from Anza Capital, Inc., a Nevada corporation (the "Company") up to Thirty Three Thousand Four Hundred Fifty Four (33,454) fully paid and nonassessable shares of common stock of the Company (the "Warrant Securities") at the initial price of $0.50 per share but subject to adjustment as provided in Section 3 below, (the "Exercise Price"), upon payment by cashier's check or wire transfer of the Exercise Price for such shares of the Common Stock to the Company at the Company's offices.
1. EXERCISABILITY. This Warrant may be exercised in whole or in part at any time, or from time to time, between the date of April ___, 2003 and 5:00 p.m. Pacific Time on April ___, 2008, by presentation and surrender hereof to the Company of a notice of election to purchase duly executed and accompanied by payment by check or wire transfer of the Exercise Price.
2. MANNER OF EXERCISE. In case of the purchase of less than all the Warrant Securities, the Company shall cancel this Warrant upon the surrender hereof and shall execute and deliver a new warrant of like tenor for the balance of the Warrant Securities. Upon the exercise of this Warrant, the issuance of certificates for securities, properties or rights underlying this Warrant shall be made forthwith (and in any event within five (5) business days thereafter) without charge to the Holder including, without limitation, any tax that may be payable in respect of the issuance thereof: provided, however, that the Company shall not be required to pay any tax in respect of income or capital gain of the Holder.
If and to the extent this Warrant is exercised, in whole or in part, the Holder shall be entitled to receive a certificate or certificates representing the Warrant Securities so purchased, upon presentation and surrender to the Company of the form of election to purchase attached hereto duly executed, and accompanied by payment of the purchase price.
3. ADJUSTMENT IN NUMBER OF SHARES.
(A) Adjustment for Reclassifications. In case at any time or from time to time after the issue date the holders of the Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received, or, on or after the record date fixed for the determination of eligible stockholders, shall have become entitled to receive, without payment therefore, other or additional stock or other securities or property (including cash) by way of stock split, spin-off, reclassification, combination of shares or similar corporate rearrangement (exclusive of any stock dividend of its or any subsidiary's capital stock), then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1, shall be entitled to receive the amount of stock and other securities and property which such Holder would hold on the date of such exercise if on the issue date he had been the holder of record of the number of shares of Common Stock of the Company called for on the face of this Warrant and had thereafter, during the period from the issue date, to and including the date of such exercise, retained such shares and/or all other or additional stock and other securities and property receivable by him as aforesaid during such period, giving effect to all adjustments called for during such period. In the event of any such adjustment, the Exercise Price shall be adjusted proportionally.
(B) Adjustment for Reorganization, Consolidation, Merger. In case of any reorganization of the Company (or any other corporation the stock or other securities of which are at the time receivable on the exercise of this Warrant) after the issue date, or in case, after such date, the Company (or any such other corporation) shall consolidate with or merge into another corporation or convey all or substantially all of its assets to another corporation, then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1 at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities or property to which such Holder would be entitled had the Holder exercised this Warrant immediately prior thereto, all subject to further adjustment as provided herein; in each such case, the terms of this Warrant shall be applicable to the shares of stock or other securities or property receivable upon the exercise of this Warrant after such consummation.
4. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall be construed as requiring the Holder to exercise this Warrant prior to or in connection with the effectiveness of a registration statement.
5. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised, this Warrant shall not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company, or to any other rights whatsoever except the rights herein expressed, and, no dividends shall be payable or accrue in respect of this Warrant.
6. REGISTRATION RIGHTS. If the Company at any time proposes to register any of its securities under the Act, including under an SB-2 Registration Statement or otherwise, it will at such time give written notice to all holders of outstanding warrants of its intention so to do. Upon the written request of a holder or holders of any such warrants given within 30 days after receipt of any such notice, the Company will use its best efforts to cause all shares
underlying the exercise of such warrants to be registered under the Act (with the securities which the Company at the time propose to register); provided, however, that the Company may, as a condition precedent to its effective such registration, require each Holder to agree with the Company and the managing underwriter or underwriters of the offering to be made by the Company in connection with such registration that such Holder will not sell any securities of the same class or convertible into the same class as those registered by the Company (including any class into which the securities registered by the Company are convertible) for such reasonable period after such registration becomes effective (not exceeding 90 days) as shall then be specified in writing by such underwriter or underwriters if in the opinion of such underwriter underwriters the Company's offering would be materially adversely affected in the absence of such an agreement. All expenses incurred by the Company in complying with this Section, including without limitation all registration and filing fees, listing fees, printing expenses, fees and disbursements of all independent accountants, or counsel for the Company and the expense of any special audits incident to or required by any such registration and the expenses of complying with the securities or blue sky laws of any jurisdiction shall be paid by the Company.
7. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by the Holder to the Company for new warrants of like tenor representing in the aggregate the right to purchase the number of Warrant Securities purchasable hereunder, each of such new warrants to represent the right to purchase such number of Warrant Securities as shall be designated by the Holder at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it and reimbursement to the company of all reasonable expenses incidental thereto, and upon surrender and cancellation hereof, if mutilated, the Company will make and deliver a new warrant of like tenor and amount, in lieu hereof.
8. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required to issue certificates representing fractions of securities upon the exercise of this Warrant, nor shall it be required to issue scrip or pay cash in lieu of fractional interests. All fractional interests shall be eliminated by rounding any fraction up to the nearest whole number of securities, properties or rights receivable upon exercise of this Warrant.
9. RESERVATION OF SECURITIES. The Company shall at all times reserve and keep available out of its authorized shares of Common Stock or other securities, solely for the purpose of issuance upon the exercise of this Warrant, such number of shares of Common Stock or other securities, properties or rights as shall be issuable upon the exercise hereof. The Company covenants and agrees that, upon exercise of this Warrant and payment of the Principal Value, all shares of Common Stock and other securities issuable upon such exercise shall be duly and validly issued, fully paid, non-assessable and not subject to the preemptive rights of any stockholder.
10. NOTICES TO HOLDER. If at any time prior to the expiration of this Warrant or its exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of any class of its securities for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of current or retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of a class of its securities any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or merger) or a sale of all or substantially all of its property, assets and business as an entirety shall be proposed.
then, in any one or more said events, the Company shall give written notice of such event to the Holder at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholder entitled to such dividend, distribution, convertible or exchangeable securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of closing the transfer books, as the case may be.
11. TRANSFERABILITY. This Warrant may be transferred or assigned by the Holder only with the express written permission of the Company.
12. INFORMATIONAL REQUIREMENTS. The Company will transmit to the Holder such information, documents and reports as are generally distributed to stockholders of the Company concurrently with the distribution thereof to such stockholders.
13. NOTICE. Notices to be given to the Company or the Holder shall be deemed to have been sufficiently given if delivered personally or sent by overnight courier or messenger, or by facsimile transmission. Notices shall be deemed to have been received on the date of personal delivery or facsimile transmission. The address of the Company and of the Holder shall be as set forth in the Company's books and records.
14. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the jurisdiction of any court of the State of California, and of any federal court located in California, in any action or proceeding arising out of or in connection with this Warrant. The Company waives personal service of any summons, complaint or other process in connection with any such action or proceeding and agrees that service thereof may be made, by certified mail directed to the Company at the location provided in Section 13 hereof, or, in the alternative, in any other form or manner permitted by law. Orange County, California shall be proper venue.
15. SUCCESSORS. All the covenants and provisions of this Warrant shall be binding upon and inure to the benefit of the Company, the Holder and their respective legal representatives, successors and assigns.
16. ATTORNEYS FEES. In the event the Holder or any holder hereof shall refer this Warrant to an attorney to enforce the terms hereof, the Company agrees to pay all the costs and expenses incurred in attempting or effecting collection hereunder, including reasonable attorney's fees, whether or not suit is instituted.
17. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE RULES GOVERNING CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by the signature of its President and to be delivered in Santa Ana, California.
Dated: April 12, 2003 Anza Capital, Inc., a Nevada corporation ---------------------------- |
By: Vincent Rinehart Its: President
[FORM OF ELECTION TO PURCHASE]
The undersigned, the holder of the attached Warrant, hereby irrevocably elects to exercise the purchase right represented by this Warrant Certificate for, and to purchase securities of Anza Capital, Inc. and herewith makes payment of $___________ therefor, and requests that the certificates for such securities be issued in the name of, and delivered to _______________________, whose address is _________________________________________.
(Signature must conform in all respects to name of holder as specified on the face of the Warrant Certificate)
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
dotCom No. 2 WARRANT
Anza Capital, Inc.
(Incorporated under the laws of the State of Nevada)
THIS IS TO CERTIFY that, for value received, dotCom Fund, LLC, or its assigns (the "Holder") is entitled, subject to the terms and conditions set forth herein, to purchase from Anza Capital, Inc., a Nevada corporation (the "Company") up to Thirty Three Thousand Four Hundred Fifty Four (33,454) fully paid and nonassessable shares of common stock of the Company (the "Warrant Securities") at the initial price of $0.75 per share but subject to adjustment as provided in Section 3 below, (the "Exercise Price"), upon payment by cashier's check or wire transfer of the Exercise Price for such shares of the Common Stock to the Company at the Company's offices.
1. EXERCISABILITY. This Warrant may be exercised in whole or in part at any time, or from time to time, between the date of April ___, 2003 and 5:00 p.m. Pacific Time on April ___, 2008, by presentation and surrender hereof to the Company of a notice of election to purchase duly executed and accompanied by payment by check or wire transfer of the Exercise Price.
2. MANNER OF EXERCISE. In case of the purchase of less than all the Warrant Securities, the Company shall cancel this Warrant upon the surrender hereof and shall execute and deliver a new warrant of like tenor for the balance of the Warrant Securities. Upon the exercise of this Warrant, the issuance of certificates for securities, properties or rights underlying this Warrant shall be made forthwith (and in any event within five (5) business days thereafter) without charge to the Holder including, without limitation, any tax that may be payable in respect of the issuance thereof: provided, however, that the Company shall not be required to pay any tax in respect of income or capital gain of the Holder.
If and to the extent this Warrant is exercised, in whole or in part, the Holder shall be entitled to receive a certificate or certificates representing the Warrant Securities so purchased, upon presentation and surrender to the Company of the form of election to purchase attached hereto duly executed, and accompanied by payment of the purchase price.
3. ADJUSTMENT IN NUMBER OF SHARES.
(A) Adjustment for Reclassifications. In case at any time or from time to time after the issue date the holders of the Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received, or, on or after the record date fixed for the determination of eligible stockholders, shall have become entitled to receive, without payment therefore, other or additional stock or other securities or property (including cash) by way of stock split, spin-off, reclassification, combination of shares or similar corporate rearrangement (exclusive of any stock dividend of its or any subsidiary's capital stock), then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1, shall be entitled to receive the amount of stock and other securities and property which such Holder would hold on the date of such exercise if on the issue date he had been the holder of record of the number of shares of Common Stock of the Company called for on the face of this Warrant and had thereafter, during the period from the issue date, to and including the date of such exercise, retained such shares and/or all other or additional stock and other securities and property receivable by him as aforesaid during such period, giving effect to all adjustments called for during such period. In the event of any such adjustment, the Exercise Price shall be adjusted proportionally.
(B) Adjustment for Reorganization, Consolidation, Merger. In case of any reorganization of the Company (or any other corporation the stock or other securities of which are at the time receivable on the exercise of this Warrant) after the issue date, or in case, after such date, the Company (or any such other corporation) shall consolidate with or merge into another corporation or convey all or substantially all of its assets to another corporation, then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1 at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities or property to which such Holder would be entitled had the Holder exercised this Warrant immediately prior thereto, all subject to further adjustment as provided herein; in each such case, the terms of this Warrant shall be applicable to the shares of stock or other securities or property receivable upon the exercise of this Warrant after such consummation.
4. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall be construed as requiring the Holder to exercise this Warrant prior to or in connection with the effectiveness of a registration statement.
5. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised, this Warrant shall not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company, or to any other rights whatsoever except the rights herein expressed, and, no dividends shall be payable or accrue in respect of this Warrant.
6. REGISTRATION RIGHTS. If the Company at any time proposes to register any of its securities under the Act, including under an SB-2 Registration Statement or otherwise, it will each such time give written notice to all holders of outstanding warrants of its intention so to do. Upon the written request of a holder or holders of any such warrants given within 30 days after receipt of any such notice, the Company will use its best efforts to cause all shares underlying the exercise of such warrants to be registered under the Act (with the securities which the Company at the time propose to register); provided, however, that the Company may, as a condition precedent to its effective such registration, require each Holder to agree with the Company and the managing underwriter or underwriters of the offering to be made by the Company in connection with such registration that such Holder will not sell any securities of the same class or convertible into the same class as those registered by the Company (including any class into which the securities registered by the Company are convertible) for such reasonable period after such registration becomes effective (not exceeding 90 days) as shall then be specified in writing by such underwriter or underwriters if in the opinion of such underwriter or underwriters the Company's offering would be materially adversely affected in the absence of such an agreement. All expenses incurred by the Company in complying with this Section, including without limitation all registration and filing fees, listing fees, printing expenses, fees and disbursements of all independent accountants, or counsel for the Company and the expense of any special audits incident to or required by any such registration and the expenses of complying with the securities or blue sky laws of any jurisdiction shall be paid by the Company.
7. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by the Holder to the Company for new warrants of like tenor representing in the aggregate the right to purchase the number of Warrant Securities purchasable hereunder, each of such new warrants to represent the right to purchase such number of Warrant Securities as shall be designated by the Holder at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it and reimbursement to the company of all reasonable expenses incidental thereto, and upon surrender and cancellation hereof, if mutilated, the Company will make and deliver a new warrant of like tenor and amount, in lieu hereof.
8. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required to issue certificates representing fractions of securities upon the exercise of this Warrant, nor shall it be required to issue scrip or pay cash in lieu of fractional interests. All fractional interests shall be eliminated by rounding any fraction up to the nearest whole number of securities, properties or rights receivable upon exercise of this Warrant.
9. RESERVATION OF SECURITIES. The Company shall at all times reserve and keep available out of its authorized shares of Common Stock or other securities, solely for the purpose of issuance upon the exercise of this Warrant, such number of shares of Common Stock or other securities, properties or rights as shall be issuable upon the exercise hereof. The Company covenants and agrees that, upon exercise of this Warrant and payment of the Principal Value, all shares of Common Stock and other securities issuable upon such exercise shall be duly and validly issued, fully paid, non-assessable and not subject to the preemptive rights of any stockholder.
10. NOTICES TO HOLDER. If at any time prior to the expiration of this Warrant or its exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of any class of its securities for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of current or retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of a class of its securities any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or merger) or a sale of all or substantially all of its property, assets and business as an entirety shall be proposed.
then, in any one or more said events, the Company shall give written notice of such event to the Holder at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholder entitled to such dividend, distribution, convertible or exchangeable securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of closing the transfer books, as the case may be.
11. TRANSFERABILITY. This Warrant may be transferred or assigned by the Holder only with the express written permission of the Company.
12. INFORMATIONAL REQUIREMENTS. The Company will transmit to the Holder such information, documents and reports as are generally distributed to stockholders of the Company concurrently with the distribution thereof to such stockholders.
13. NOTICE. Notices to be given to the Company or the Holder shall be deemed to have been sufficiently given if delivered personally or sent by overnight courier or messenger, or by facsimile transmission. Notices shall be deemed to have been received on the date of personal delivery or facsimile transmission. The address of the Company and of the Holder shall be as set forth in the Company's books and records.
14. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the jurisdiction of any court of the State of California, and of any federal court located in California, in any action or proceeding arising out of or in connection with this Warrant. The Company waives personal service of any summons, complaint or other process in connection with any such action or proceeding and agrees that service thereof may be made, by certified mail directed to the Company at the location provided in Section 13 hereof, or, in the alternative, in any other form or manner permitted by law. Orange County, California shall be proper venue.
15. SUCCESSORS. All the covenants and provisions of this Warrant shall be binding upon and inure to the benefit of the Company, the Holder and their respective legal representatives, successors and assigns.
16. ATTORNEYS FEES. In the event the Holder or any holder hereof shall refer this Warrant to an attorney to enforce the terms hereof, the Company agrees to pay all the costs and expenses incurred in attempting or effecting collection hereunder, including reasonable attorney's fees, whether or not suit is instituted.
17. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE RULES GOVERNING CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by the signature of its President and to be delivered in Santa Ana, California.
Dated: April 12, 2003 Anza Capital, Inc., a Nevada corporation ---------------------------- |
By: Vincent Rinehart Its: President
[FORM OF ELECTION TO PURCHASE]
The undersigned, the holder of the attached Warrant, hereby irrevocably elects to exercise the purchase right represented by this Warrant Certificate for, and to purchase securities of Anza Capital, Inc. and herewith makes payment of $___________ therefor, and requests that the certificates for such securities be issued in the name of, and delivered to _______________________, whose address is _________________________________________.
(Signature must conform in all respects to name of holder as specified on the face of the Warrant Certificate)
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
dotCom No. 3 WARRANT
Anza Capital, Inc.
(Incorporated under the laws of the State of Nevada)
THIS IS TO CERTIFY that, for value received, dotCom Fund, LLC, or its assigns (the "Holder") is entitled, subject to the terms and conditions set forth herein, to purchase from Anza Capital, Inc., a Nevada corporation (the "Company") up to Thirty Three Thousand Four Hundred Fifty Four (33,454) fully paid and nonassessable shares of common stock of the Company (the "Warrant Securities") at the initial price of $0.95 per share but subject to adjustment as provided in Section 3 below, (the "Exercise Price"), upon payment by cashier's check or wire transfer of the Exercise Price for such shares of the Common Stock to the Company at the Company's offices.
1. EXERCISABILITY. This Warrant may be exercised in whole or in part at any time, or from time to time, between the date of April ___, 2003 and 5:00 p.m. Pacific Time on April ___, 2008, by presentation and surrender hereof to the Company of a notice of election to purchase duly executed and accompanied by payment by check or wire transfer of the Exercise Price.
2. MANNER OF EXERCISE. In case of the purchase of less than all the Warrant Securities, the Company shall cancel this Warrant upon the surrender hereof and shall execute and deliver a new warrant of like tenor for the balance of the Warrant Securities. Upon the exercise of this Warrant, the issuance of certificates for securities, properties or rights underlying this Warrant shall be made forthwith (and in any event within five (5) business days thereafter) without charge to the Holder including, without limitation, any tax that may be payable in respect of the issuance thereof: provided, however, that the Company shall not be required to pay any tax in respect of income or capital gain of the Holder.
If and to the extent this Warrant is exercised, in whole or in part, the Holder shall be entitled to receive a certificate or certificates representing the Warrant Securities so purchased, upon presentation and surrender to the Company of the form of election to purchase attached hereto duly executed, and accompanied by payment of the purchase price.
3. ADJUSTMENT IN NUMBER OF SHARES.
(A) Adjustment for Reclassifications. In case at any time or from time to time after the issue date the holders of the Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received, or, on or after the record date fixed for the determination of eligible stockholders, shall have become entitled to receive, without payment therefore, other or additional stock or other securities or property (including cash) by way of stock split, spin-off, reclassification, combination of shares or similar corporate rearrangement (exclusive of any stock dividend of its or any subsidiary's capital stock), then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1, shall be entitled to receive the amount of stock and other securities and property which such Holder would hold on the date of such exercise if on the issue date he had been the holder of record of the number of shares of Common Stock of the Company called for on the face of this Warrant and had thereafter, during the period from the issue date, to and including the date of such exercise, retained such shares and/or all other or additional stock and other securities and property receivable by him as aforesaid during such period, giving effect to all adjustments called for during such period. In the event of any such adjustment, the Exercise Price shall be adjusted proportionally.
(B) Adjustment for Reorganization, Consolidation, Merger. In case of any reorganization of the Company (or any other corporation the stock or other securities of which are at the time receivable on the exercise of this Warrant) after the issue date, or in case, after such date, the Company (or any such other corporation) shall consolidate with or merge into another corporation or convey all or substantially all of its assets to another corporation, then and in each such case the Holder of this Warrant, upon the exercise hereof as provided in Section 1 at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities or property to which such Holder would be entitled had the Holder exercised this Warrant immediately prior thereto, all subject to further adjustment as provided herein; in each such case, the terms of this Warrant shall be applicable to the shares of stock or other securities or property receivable upon the exercise of this Warrant after such consummation.
4. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall be construed as requiring the Holder to exercise this Warrant prior to or in connection with the effectiveness of a registration statement.
5. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised, this Warrant shall not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company, or to any other rights whatsoever except the rights herein expressed, and, no dividends shall be payable or accrue in respect of this Warrant.
6. REGISTRATION RIGHTS. If the Company at any time proposes to register any of its securities under the Act, including under an SB-2 Registration Statement or otherwise, it will at such time give written notice to all holders of outstanding warrants of its intention so to do. Upon the written request of a holder or holders of any such warrants given within 30 days after receipt of any such notice, the Company will use its best efforts to cause all shares
underlying the exercise of such warrants to be registered under the Act (with the securities which the Company at the time propose to register); provided, however, that the Company may, as a condition precedent to its effective such registration, require each Holder to agree with the Company and the managing underwriter or underwriters of the offering to be made by the Company in connection with such registration that such Holder will not sell any securities of the same class or convertible into the same class as those registered by the Company (including any class into which the securities registered by the Company are convertible) for such reasonable period after such registration becomes effective (not exceeding 90 days) as shall then be specified in writing by such underwriter or underwriters if in the opinion of such underwriter underwriters the Company's offering would be materially adversely affected in the absence of such an agreement. All expenses incurred by the Company in complying with this Section, including without limitation all registration and filing fees, listing fees, printing expenses, fees and disbursements of all independent accountants, or counsel for the Company and the expense of any special audits incident to or required by any such registration and the expenses of complying with the securities or blue sky laws of any jurisdiction shall be paid by the Company.
7. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by the Holder to the Company for new warrants of like tenor representing in the aggregate the right to purchase the number of Warrant Securities purchasable hereunder, each of such new warrants to represent the right to purchase such number of Warrant Securities as shall be designated by the Holder at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it and reimbursement to the company of all reasonable expenses incidental thereto, and upon surrender and cancellation hereof, if mutilated, the Company will make and deliver a new warrant of like tenor and amount, in lieu hereof.
8. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required to issue certificates representing fractions of securities upon the exercise of this Warrant, nor shall it be required to issue scrip or pay cash in lieu of fractional interests. All fractional interests shall be eliminated by rounding any fraction up to the nearest whole number of securities, properties or rights receivable upon exercise of this Warrant.
9. RESERVATION OF SECURITIES. The Company shall at all times reserve and keep available out of its authorized shares of Common Stock or other securities, solely for the purpose of issuance upon the exercise of this Warrant, such number of shares of Common Stock or other securities, properties or rights as shall be issuable upon the exercise hereof. The Company covenants and agrees that, upon exercise of this Warrant and payment of the Principal Value, all shares of Common Stock and other securities issuable upon such exercise shall be duly and validly issued, fully paid, non-assessable and not subject to the preemptive rights of any stockholder.
10. NOTICES TO HOLDER. If at any time prior to the expiration of this Warrant or its exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of any class of its securities for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of current or retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of a class of its securities any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or merger) or a sale of all or substantially all of its property, assets and business as an entirety shall be proposed.
then, in any one or more said events, the Company shall give written notice of such event to the Holder at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholder entitled to such dividend, distribution, convertible or exchangeable securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of closing the transfer books, as the case may be.
11. TRANSFERABILITY. This Warrant may be transferred or assigned by the Holder only with the express written permission of the Company.
12. INFORMATIONAL REQUIREMENTS. The Company will transmit to the Holder such information, documents and reports as are generally distributed to stockholders of the Company concurrently with the distribution thereof to such stockholders.
13. NOTICE. Notices to be given to the Company or the Holder shall be deemed to have been sufficiently given if delivered personally or sent by overnight courier or messenger, or by facsimile transmission. Notices shall be deemed to have been received on the date of personal delivery or facsimile transmission. The address of the Company and of the Holder shall be as set forth in the Company's books and records.
14. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the jurisdiction of any court of the State of California, and of any federal court located in California, in any action or proceeding arising out of or in connection with this Warrant. The Company waives personal service of any summons, complaint or other process in connection with any such action or proceeding and agrees that service thereof may be made, by certified mail directed to the Company at the location provided in Section 13 hereof, or, in the alternative, in any other form or manner permitted by law. Orange County, California shall be proper venue.
15. SUCCESSORS. All the covenants and provisions of this Warrant shall be binding upon and inure to the benefit of the Company, the Holder and their respective legal representatives, successors and assigns.
16. ATTORNEYS FEES. In the event the Holder or any holder hereof shall refer this Warrant to an attorney to enforce the terms hereof, the Company agrees to pay all the costs and expenses incurred in attempting or effecting collection hereunder, including reasonable attorney's fees, whether or not suit is instituted.
17. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE RULES GOVERNING CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by the signature of its President and to be delivered in Santa Ana, California.
Dated: April 12, 2003 Anza Capital, Inc., a Nevada corporation ---------------------------- |
By: Vincent Rinehart Its: President
[FORM OF ELECTION TO PURCHASE]
The undersigned, the holder of the attached Warrant, hereby irrevocably elects to exercise the purchase right represented by this Warrant Certificate for, and to purchase securities of Anza Capital, Inc. and herewith makes payment of $___________ therefor, and requests that the certificates for such securities be issued in the name of, and delivered to _______________________, whose address is _________________________________________.
(Signature must conform in all respects to name of holder as specified on the face of the Warrant Certificate)
ANZA CAPITAL, INC.
A NEVADA CORPORATION
STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement (the "Agreement") is entered into effective this 28th day of February, 2003 by and between Anza Capital, Inc., a Nevada corporation ("Anza" or the "Company") and Barbara Dunster (the "Shareholder"). Each of the Company and the Shareholder shall be referred to as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Company has undertaken a recapitalization of its corporate structure, which will include (but not be limited to) the voluntary exchange of certain preferred stock for newly created preferred stock, the exchange of debt and warrants for stock, and a reverse stock split (the "Recapitalization");
WHEREAS, the Shareholder is the record and beneficial owner of approxi- mately 347,643 shares of Series A Convertible Preferred Stock (the "Surrendered Shares");
WHEREAS, in connection with the Recapitalization, the Company has offered for the Shareholder to convert the Surrendered Shares into 173,822 shares of newly created Series E Convertible Preferred Stock (the "Preferred Exchange Shares"), in accordance with the terms and conditions hereof, and the Shareholder desires to accept the offer and consummate the exchange.
NOW, THEREFORE, for good and adequate consideration, the receipt of which is hereby acknowledged, the Parties covenant, promise and agree as follows:
AGREEMENT
(a) Within three (3) business days of the execution of this Agreement, the Shareholder shall surrender to the Company the Surrendered Shares, duly endorsed for transfer to the Company.
(b) Effective as of the Exchange Date (as hereinafter defined), the Surrendered Shares shall automatically be exchanged for the Preferred Exchange Shares. The Preferred Exchange Shares shall be validly issued, fully paid, and non assessable, and shall be restricted in accordance with Rule 144 promulgated under the Securities Act of 1933.
(c) The rights, privileges, and preferences of the Preferred Exchange Shares shall be as set forth in the Certificate of Designation of the Rights, Preferences, Privileges and Restrictions of the Series E Convertible Preferred Stock of Anza Capital, Inc., a copy of which is attached hereto as Exhibit "A" (the "Certificate of Designation").
(d) The Exchange Date shall be the date on which the Certificate of Designation is filed with the Nevada Secretary of State, which date is anticipated to be within three (3) business days of the completion of the Company's Annual Shareholders Meeting.
(e) The Company's Annual Shareholders Meeting is currently scheduled for the middle of April, 2003. If the Company's Annual Shareholders Meeting does not take place on or before June 30, 2003 (the "Termination Date"), then this Agreement and the exchange of the Surrendered Shares for Preferred Exchange Shares shall automatically be cancelled.
(f) Between the date of this Agreement and the Termination Date, the Shareholder shall remain the record and beneficial owner of the Surrendered Shares, and shall have all voting power associated therewith; however, the Shareholder hereby waives and suspends its rights to dividends, its conversion rights, redemption rights, and all other rights set forth in the Certificate of Amendment of Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock of Anza Capital, Inc. dated March 1, 2002 until the earlier to occur of the Exchange Date or the Termination Date. In the event this Agreement is terminated on the Termination Date, then all rights waived and suspended by this subsection shall be reinstated effective as of the date of this Agreement.
(a) Shareholder shall transfer title in and to the Surrendered Shares to the Company free and clear of all liens, security interests, pledges, encumbrances, charges, restrictions, demands and claims, of any kind or nature whatsoever, whether direct or indirect or contingent. This Agreement has been duly executed and delivered by the Shareholder. This Agreement constitutes, and upon execution and delivery thereof by the Shareholder, will constitute, a valid and binding agreement of the Shareholder enforceable against the Shareholder in accordance with its respective terms.
(b) The Shareholder is not a party to any partnership, management, shareholders' or joint venture or similar agreement which would affect the Shareholder's performance of this Agreement or the Shareholder's representation and warranties in this Agreement.
(c) No form of general solicitation or general advertising was used by the Shareholder or the Company or, to the best of its actual knowledge, any other person acting on behalf of the Shareholder or the Company, in connection with
the Exchange. Neither the Shareholder, nor, to its knowledge, any person acting on behalf of the Shareholder, has, either directly or indirectly, sold or offered for sale to any person (other than the Company) any of the Surrendered Shares, and the Shareholder represents that neither itself nor any person authorized to act on its behalf (except that the Shareholder makes no representation as to the Company) will sell or offer for sale any such security to, or solicit any offers to buy any such security from, or otherwise approach or negotiate in respect thereof with, any person or persons so as thereby to cause the issuance or sale of any of the Surrendered Shares to be in violation of any of the provisions of Section 5 of the Securities Act of 1933 or any other provision of law.
(d) None of the Surrendered Shares are or will be subject to any voting trust or agreement. No person holds or has the right to receive any proxy or similar instrument with respect to the Surrendered Shares. Except as provided in this Agreement, the Shareholder is not a party to any agreement which offers or grants to any person the right to purchase or acquire any of the Surrendered Shares. There is no applicable local, state or federal law, rule, regulation, or decree which would, as a result of the sale contemplated by this Agreement, impair, restrict or delay any voting rights with respect to the Surrendered Shares.
(e) The representations and warranties herein by the Shareholder will be true and correct in all material respects on and as of the date hereof and will, except as provided herein, survive the Exchange Date.
(f) The Shareholder acknowledges that the Shareholder has been furnished with such financial and other information concerning the Company, the directors and officers of the Company, the business of the Company, and the proposed Recapitalization of the Company as the Shareholder considers necessary in connection with the Shareholder's exchange of the Surrendered Shares. As a result, the Shareholder is familiar with the business, operations, properties, financial condition, and recapitalization plan of the Company and has discussed with officers or legal counsel of the Company any questions the Shareholder may have had with respect thereto. The Shareholder has consulted with the Shareholder's own legal, accounting, tax, investment and other advisers with respect to the tax treatment, merits, and risks of the transactions contemplated hereby.
(g) The Shareholder hereby agrees to indemnify and defend the Company and its directors and officers and hold them harmless from and against any and all liability, damage, cost or expense incurred on account of or arising out of:
(i) Any breach of or inaccuracy in the Shareholder's representations, warranties or agreements herein;
(ii) Any disposition of any Surrendered Shares contrary to any of the Shareholder's representations, warranties or agreements herein;
(iii) Any action, suit or proceeding based on a claim that any of said representations, warranties or agreements were inaccurate or misleading or otherwise cause for obtaining damages or redress from the Company or any director or officer of the Company.
(h) The representations, warranties and agreements contained in this Agreement shall be binding on the Shareholder's successors, assigns, heirs and legal representatives and shall inure to the benefit of the respective successors and assigns of the Company and its directors and officers.
(i) Shareholder shall deliver, along with a signed copy of this Agreement, all stock certificates representing the Surrendered Shares, fully endorsed to the Company or accompanied by an Irrevocable Stock Power transferring the Surrendered Shares to the Company.
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of Nevada, with full power and authority to own, lease, use, and operate its properties and to carry on its business as and where now owned, leased, used, operated and conducted. The Company has all requisite corporate power and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby and to effect the exchange of the Shares in accordance with the terms hereof.
(b) The information heretofore furnished by the Company to the Shareholder for purposes of or in connection with this Agreement or any transaction contemplated hereby does not, and all such information hereafter furnished by the Company to the Shareholder will not (in each case taken together and on the date as of which such information is furnished), contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they are made, not misleading.
(c) The representations and warranties herein by the Company will be true and correct in all material respects on and as of the date hereof and will, except as provided herein, survive the Exchange Date.
5. This Agreement may not be amended, canceled, revoked or otherwise modified except by written agreement subscribed by all of the Parties to be charged with such modification.
6. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective partners, employees, agents, servants, heirs, administrators, executors, successors, representatives and assigns.
7. All Parties hereto agree to pay their own costs and attorneys' fees except as follows:
(a) In the event of any action, suit or other proceeding instituted to remedy, prevent or obtain relief from a breach of this Agreement, arising out of a breach of this Agreement, involving claims within the scope of the releases contained in this Agreement, or pertaining to a declaration of rights under this Agreement, the prevailing Party shall recover all of such Party's attorneys' fees and costs incurred in each and every such action, suit or other proceeding, including any and all appeals or petitions therefrom.
(b) As used herein, attorneys' fees shall be deemed to mean the full and actual costs of any legal services actually performed in connection with the matters involved, calculated on the basis of the usual fee charged by the attorneys performing such services.
8. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California including all matters of construction, validity, performance, and enforcement and without giving effect to the principles of conflict of laws. Venue for any action brought under this Agreement shall be in the appropriate court in Orange County, California.
9. The Parties agree and stipulate that each and every term and condition contained in this Agreement is material, and that each and every term and condition may be reasonably accomplished within the time limitations, and in the manner set forth in this Agreement.
10. The Parties agree and stipulate that time is of the essence with respect to compliance with each and every item set forth in this Agreement.
11. This Agreement, along with the exhibits hereto, sets forth the entire agreement and understanding of the Parties hereto and supersedes any and all prior agreements, arrangements and understandings related to the subject matter hereof. No understanding, promise, inducement, statement of intention, representation, warranty, covenant or condition, written or oral, express or implied, whether by statute or otherwise, has been made by any party hereto which is not embodied in this Agreement or the written statements, certificates, or other documents delivered pursuant hereto or in connection with the transactions contemplated hereby, and no Party hereto shall be bound by or liable for any alleged understanding, promise, inducement, statement, representation, warranty, covenant or condition not so set forth.
12. This Agreement may be executed in one or more counterparts, each of which when executed and delivered shall be an original, and all of which when executed shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto, agreeing to be bound hereby, execute this Agreement upon the date first set forth above.
"Shareholder" "Company" Anza Capital, Inc. /s/ Barbara Dunster /s/ Vincent Rinehart ------------------------------- ------------------------------ By: Barbara Dunster By: Vincent Rinehart Its: President |
ANZA CAPITAL, INC.
A NEVADA CORPORATION
STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement (the "Agreement") is entered into effective this 28th day of February, 2003 by and between Anza Capital, Inc., a Nevada corporation ("Anza" or the "Company") and the Staron Family Trust (the "Shareholder"). Each of the Company and the Shareholder shall be referred to as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Company has undertaken a recapitalization of its corporate structure, which will include (but not be limited to) the voluntary exchange of certain preferred stock for newly created preferred stock, the exchange of debt and warrants for stock, and a reverse stock split (the "Recapitalization");
WHEREAS, the Shareholder is the record and beneficial owner of 86,911 shares of Series A Convertible Preferred Stock (the "Surrendered Shares");
WHEREAS, in connection with the Recapitalization, the Company has offered for the Shareholder to convert the Surrendered Shares into 43,456 shares of newly created Series E Convertible Preferred Stock (the "Preferred Exchange Shares"), in accordance with the terms and conditions hereof, and the Shareholder desires to accept the offer and consummate the exchange.
NOW, THEREFORE, for good and adequate consideration, the receipt of which is hereby acknowledged, the Parties covenant, promise and agree as follows:
AGREEMENT
(a) Within three (3) business days of the execution of this Agreement, the Shareholder shall surrender to the Company the Surrendered Shares, duly endorsed for transfer to the Company.
(b) Effective as of the Exchange Date (as hereinafter defined), the Surrendered Shares shall automatically be exchanged for the Preferred Exchange Shares. The Preferred Exchange Shares shall be validly issued, fully paid, and non assessable, and shall be restricted in accordance with Rule 144 promulgated under the Securities Act of 1933.
(c) The rights, privileges, and preferences of the Preferred Exchange Shares shall be as set forth in the Certificate of Designation of the Rights, Preferences, Privileges and Restrictions of the Series E Convertible Preferred Stock of Anza Capital, Inc., a copy of which is attached hereto as Exhibit "A" (the "Certificate of Designation").
(d) The Exchange Date shall be the date on which the Certificate of Designation is filed with the Nevada Secretary of State, which date is anticipated to be within three (3) business days of the completion of the Company's Annual Shareholders Meeting.
(e) The Company's Annual Shareholders Meeting is currently scheduled for the middle of April, 2003. If the Company's Annual Shareholders Meeting does not take place on or before June 30, 2003 (the "Termination Date"), then this Agreement and the exchange of the Surrendered Shares for Preferred Exchange Shares shall automatically be cancelled.
(f) Between the date of this Agreement and the Termination Date, the Shareholder shall remain the record and beneficial owner of the Surrendered Shares, and shall have all voting power associated therewith; however, the Shareholder hereby waives and suspends its rights to dividends, its conversion rights, redemption rights, and all other rights set forth in the Certificate of Amendment of Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock of Anza Capital, Inc. dated March 1, 2002 until the earlier to occur of the Exchange Date or the Termination Date. In the event this Agreement is terminated on the Termination Date, then all rights waived and suspended by this subsection shall be reinstated effective as of the date of this Agreement.
(a) Shareholder shall transfer title in and to the Surrendered Shares to the Company free and clear of all liens, security interests, pledges, encumbrances, charges, restrictions, demands and claims, of any kind or nature whatsoever, whether direct or indirect or contingent. This Agreement has been duly executed and delivered by the Shareholder. This Agreement constitutes, and upon execution and delivery thereof by the Shareholder, will constitute, a valid and binding agreement of the Shareholder enforceable against the Shareholder in accordance with its respective terms.
(b) The Shareholder is not a party to any partnership, management, shareholders' or joint venture or similar agreement which would affect the Shareholder's performance of this Agreement or the Shareholder's representation and warranties in this Agreement.
(c) No form of general solicitation or general advertising was used by the Shareholder or the Company or, to the best of its actual knowledge, any other person acting on behalf of the Shareholder or the Company, in connection with the Exchange. Neither the Shareholder, nor, to its knowledge, any person acting
on behalf of the Shareholder, has, either directly or indirectly, sold or offered for sale to any person (other than the Company) any of the Surrendered Shares, and the Shareholder represents that neither itself nor any person authorized to act on its behalf (except that the Shareholder makes no representation as to the Company) will sell or offer for sale any such security to, or solicit any offers to buy any such security from, or otherwise approach or negotiate in respect thereof with, any person or persons so as thereby to cause the issuance or sale of any of the Surrendered Shares to be in violation of any of the provisions of Section 5 of the Securities Act of 1933 or any other provision of law.
(d) None of the Surrendered Shares are or will be subject to any voting trust or agreement. No person holds or has the right to receive any proxy or similar instrument with respect to the Surrendered Shares. Except as provided in this Agreement, the Shareholder is not a party to any agreement which offers or grants to any person the right to purchase or acquire any of the Surrendered Shares. There is no applicable local, state or federal law, rule, regulation, or decree which would, as a result of the sale contemplated by this Agreement, impair, restrict or delay any voting rights with respect to the Surrendered Shares.
(e) The representations and warranties herein by the Shareholder will be true and correct in all material respects on and as of the date hereof and will, except as provided herein, survive the Exchange Date.
(f) The Shareholder acknowledges that the Shareholder has been furnished with such financial and other information concerning the Company, the directors and officers of the Company, the business of the Company, and the proposed Recapitalization of the Company as the Shareholder considers necessary in connection with the Shareholder's exchange of the Surrendered Shares. As a result, the Shareholder is familiar with the business, operations, properties, financial condition, and recapitalization plan of the Company and has discussed with officers or legal counsel of the Company any questions the Shareholder may have had with respect thereto. The Shareholder has consulted with the Shareholder's own legal, accounting, tax, investment and other advisers with respect to the tax treatment, merits, and risks of the transactions contemplated hereby.
(g) The Shareholder hereby agrees to indemnify and defend the Company and its directors and officers and hold them harmless from and against any and all liability, damage, cost or expense incurred on account of or arising out of:
(i) Any breach of or inaccuracy in the Shareholder's representations, warranties or agreements herein;
(ii) Any disposition of any Surrendered Shares contrary to any of the Shareholder's representations, warranties or agreements herein;
(iii) Any action, suit or proceeding based on a claim that any of said representations, warranties or agreements were inaccurate or misleading or otherwise cause for obtaining damages or redress from the Company or any director or officer of the Company.
(h) The representations, warranties and agreements contained in this Agreement shall be binding on the Shareholder's successors, assigns, heirs and legal representatives and shall inure to the benefit of the respective successors and assigns of the Company and its directors and officers.
(i) Shareholder shall deliver, along with a signed copy of this Agreement, all stock certificates representing the Surrendered Shares, fully endorsed to the Company or accompanied by an Irrevocable Stock Power transferring the Surrendered Shares to the Company.
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of Nevada, with full power and authority to own, lease, use, and operate its properties and to carry on its business as and where now owned, leased, used, operated and conducted. The Company has all requisite corporate power and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby and to effect the exchange of the Shares in accordance with the terms hereof.
(b) The information heretofore furnished by the Company to the Shareholder for purposes of or in connection with this Agreement or any transaction contemplated hereby does not, and all such information hereafter furnished by the Company to the Shareholder will not (in each case taken together and on the date as of which such information is furnished), contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they are made, not misleading.
(c) The representations and warranties herein by the Company will be true and correct in all material respects on and as of the date hereof and will, except as provided herein, survive the Exchange Date.
5. This Agreement may not be amended, canceled, revoked or otherwise modified except by written agreement subscribed by all of the Parties to be charged with such modification.
6. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective partners, employees, agents, servants, heirs, administrators, executors, successors, representatives and assigns.
7. All Parties hereto agree to pay their own costs and attorneys' fees except as follows:
(a) In the event of any action, suit or other proceeding instituted to remedy, prevent or obtain relief from a breach of this Agreement, arising out of a breach of this Agreement, involving claims within the scope of the releases contained in this Agreement, or pertaining to a declaration of rights under this Agreement, the prevailing Party shall recover all of such Party's attorneys' fees and costs incurred in each and every such action, suit or other proceeding, including any and all appeals or petitions therefrom.
(b) As used herein, attorneys' fees shall be deemed to mean the full and actual costs of any legal services actually performed in connection with the matters involved, calculated on the basis of the usual fee charged by the attorneys performing such services.
8. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California including all matters of construction, validity, performance, and enforcement and without giving effect to the principles of conflict of laws. Venue for any action brought under this Agreement shall be in the appropriate court in Orange County, California.
9. The Parties agree and stipulate that each and every term and condition contained in this Agreement is material, and that each and every term and condition may be reasonably accomplished within the time limitations, and in the manner set forth in this Agreement.
10. The Parties agree and stipulate that time is of the essence with respect to compliance with each and every item set forth in this Agreement.
11. This Agreement, along with the exhibits hereto, sets forth the entire agreement and understanding of the Parties hereto and supersedes any and all prior agreements, arrangements and understandings related to the subject matter hereof. No understanding, promise, inducement, statement of intention, representation, warranty, covenant or condition, written or oral, express or implied, whether by statute or otherwise, has been made by any party hereto which is not embodied in this Agreement or the written statements, certificates, or other documents delivered pursuant hereto or in connection with the transactions contemplated hereby, and no Party hereto shall be bound by of liable for any alleged understanding, promise, inducement, statement, representation, warranty, covenant or condition not so set forth.
12. This Agreement may be executed in one or more counterparts, each of which when executed and delivered shall be an original, and all of which when executed shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto, agreeing to be bound hereby, execute this Agreement upon the date first set forth above.
"Shareholder" "Company" Staron Family Trust Anza Capital, Inc. /s/ Alfred Staron /s/ Vincent Rinehart --------------------------- ------------------------------ By: Alfred Staron By: Vincent Rinehart Its: Its: President |
ANZA CAPITAL, INC.
A NEVADA CORPORATION
DEBT EXCHANGE AGREEMENT
This Debt Exchange Agreement (the "Agreement") is entered into effective this 28th day of February, 2003 by and between Anza Capital, Inc., a Nevada corporation ("Anza" or the "Company") and Vincent Rinehart (the "Noteholder"). Each of the Company and the Noteholder shall be referred to as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Company has undertaken a recapitalization of its corporate structure, which will include (but not be limited to) the voluntary exchange of certain preferred stock for newly created preferred stock, the exchange of debt and warrants for stock, and a reverse stock split (the "Recapitalization");
WHEREAS, the Noteholder is the record and beneficial owner of a promissory note dated June 27, 2001 in the original principal amount of $485,446.00, payable by the Company (as e-Net Financial.com Corporation, the Company's previous name) to AMRES Holding LLC (a predecessor to the Noteholder) (the "Surrendered Note");
WHEREAS, the current principal balance due and owing under the Surrendered Note is $360,446 (the "Surrendered Note Principal"), plus accrued interest through the date hereof equal to $73,043.06 (the "Surrendered Note Interest");
WHEREAS, the Noteholder is the holder of options to acquire 2,500,000 shares of Company common stock as evidenced by that certain Stock Option Agreement dated June 1, 2001, amended on July 2, 2001, and granted to Noteholder pursuant to the terms of his employment agreement dated June 1, 2001 (the "Surrendered Options").
WHEREAS, in connection with the Recapitalization, the Company has offered for the Noteholder to cancel the Surrendered Options and convert the Surrendered Note into 6,000,000 shares of Company common stock (the "Conversion Common Shares"), and 18,800 shares of newly created Series F Convertible Preferred Stock (the "Preferred Exchange Shares"), in accordance with the terms and conditions hereof, and the Noteholder desires to accept the offer and consummate the exchange.
NOW, THEREFORE, for good and adequate consideration, the receipt of which is hereby acknowledged, the Parties covenant, promise and agree as follows:
AGREEMENT
(a) Within three (3) business days of the execution of this Agreement, the Noteholder shall surrender to the Company the Surrendered Note, duly endorsed for transfer to the Company.
(b) Effective as of the date of this Agreement, the Noteholder shall convert all of the Surrendered Note Interest and an aggregate of $46,956.94 of the Surrendered Note Principal into the Conversion Common Shares. The Conversion Common Shares shall be validly issued, fully paid, and non assessable, shall be restricted in accordance with Rule 144 promulgated under the Securities Act of 1933, and shall be subject to a 20-for-1 reverse stock split currently contemplated as part of the Recapitalization.
(c) Effective as of the Exchange Date (as hereinafter defined), the remainder of the Surrendered Note Principal shall automatically be exchanged for the Preferred Exchange Shares. The Preferred Exchange Shares shall be validly issued, fully paid, and non assessable, and shall be restricted in accordance with Rule 144 promulgated under the Securities Act of 1933. Also effective as of the Exchange Date, the Surrendered Options shall automatically be cancelled and terminated in their entirety.
(d) The rights, privileges, and preferences of the Preferred Exchange Shares shall be as set forth in the Certificate of Designation of the Rights, Preferences, Privileges and Restrictions of the Series F Convertible Preferred Stock of Anza Capital, Inc., a copy of which is attached hereto as Exhibit "A" (the "Certificate of Designation").
(e) The Exchange Date shall be the date on which the Certificate of Designation is filed with the Nevada Secretary of State, which date is anticipated to be within three (3) business days of the completion of the Company's Annual Shareholders Meeting.
(f) The Company's Annual Shareholders Meeting is currently scheduled for the middle of April, 2003. If the Company's Annual Shareholders Meeting does not take place on or before June 30, 2003 (the "Termination Date"), then this Agreement and the exchange of the Surrendered Note for Preferred Exchange Shares shall automatically be cancelled. In such an event, the exchange of Surrendered Note for Conversion Common Shares shall remain effective as of the date of this Agreement.
(g) Between the date of this Agreement and the Termination Date, the Noteholder shall remain the record and beneficial owner of the Surrendered Note and the Surrendered Options; however, the Noteholder hereby waives and suspends its rights to interest, its conversion rights, and all other rights set forth in the Surrendered Note until the earlier to occur of the Exchange Date or the Termination Date. In the event this Agreement is terminated on the Termination Date, then all rights waived and suspended by this subsection shall be reinstated effective as of the date of this Agreement.
(a) Noteholder shall transfer title in and to the Surrendered Note and the Surrendered Options to the Company free and clear of all liens, security interests, pledges, encumbrances, charges, restrictions, demands and claims, of any kind or nature whatsoever, whether direct or indirect or contingent. This Agreement has been duly executed and delivered by the Noteholder. This Agreement constitutes, and upon execution and delivery thereof by the Noteholder, will constitute, a valid and binding agreement of the Noteholder enforceable against the Noteholder in accordance with its respective terms.
(b) The Noteholder is not a party to any partnership, management, shareholders' or joint venture or similar agreement which would affect the Noteholder's performance of this Agreement or the Noteholder's representation and warranties in this Agreement.
(c) No form of general solicitation or general advertising was used by the Noteholder or the Company or, to the best of its actual knowledge, any other person acting on behalf of the Noteholder or the Company, in connection with the exchange. Neither the Noteholder, nor, to its knowledge, any person acting on behalf of the Noteholder, has, either directly or indirectly, sold or offered for sale to any person (other than the Company) any of the Surrendered Note or the Surrendered Options, and the Noteholder represents that neither itself nor any person authorized to act on its behalf (except that the Noteholder makes no representation as to the Company) will sell or offer for sale any such security to, or solicit any offers to buy any such security from, or otherwise approach or negotiate in respect thereof with, any person or persons so as thereby to cause the issuance or sale of any of the Surrendered Note or the Surrendered Options to be in violation of any of the provisions of Section 5 of the Securities Act of 1933 or any other provision of law.
(d) The Surrendered Note and Surrendered Options are not and will not be subject to any voting trust or agreement. No person holds or has the right to receive any proxy or similar instrument with respect to the Surrendered Note or Surrendered Options. Except as provided in this Agreement, the Noteholder is not a party to any agreement which offers or grants to any person the right to purchase or acquire any of the Surrendered Note or Surrendered Options. There is no applicable local, state or federal law, rule, regulation, or decree which would, as a result of the sale contemplated by this Agreement, impair, restrict or delay any voting rights with respect to the Surrendered Note or Surrendered Options.
(e) The representations and warranties herein by the Noteholder will be true and correct in all material respects on and as of the date hereof and will, except as provided herein, survive the Exchange Date.
(f) The Noteholder acknowledges that the Noteholder has been furnished with such financial and other information concerning the Company, the directors and officers of the Company, the business of the Company, and the proposed Recapitalization of the Company as the Noteholder considers necessary in connection with the Noteholder's exchange of the Surrendered Note. As a result, the Noteholder is familiar with the business, operations, properties, financial condition, and recapitalization plan of the Company and has discussed with officers or legal counsel of the Company any questions the Noteholder may have had with respect thereto. The Noteholder has consulted with the Noteholder's own legal, accounting, tax, investment and other advisers with respect to the tax treatment, merits, and risks of the transactions contemplated hereby.
(g) The Noteholder hereby agrees to indemnify and defend the Company and its directors and officers and hold them harmless from and against any and all liability, damage, cost or expense incurred on account of or arising out of:
(i) Any breach of or inaccuracy in the Noteholder's representations, warranties or agreements herein;
(ii) Any disposition of the Surrendered Note or Surrendered Options contrary to any of the Noteholder's representations, warranties or agreements herein;
(iii) Any action, suit or proceeding based on a claim that any of said representations, warranties or agreements were inaccurate or misleading or otherwise cause for obtaining damages or redress from the Company or any director or officer of the Company.
(h) The representations, warranties and agreements contained in this Agreement shall be binding on the Noteholder's successors, assigns, heirs and legal representatives and shall inure to the benefit of the respective successors and assigns of the Company and its directors and officers.
(i) Noteholder shall deliver, along with a signed copy of this Agreement, the Surrendered Note and the Surrendered Options, fully endorsed to the Company for cancellation.
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of Nevada, with full power and authority to own, lease, use, and operate its properties and to carry on its business as and where now owned, leased, used, operated and conducted. The Company has all requisite corporate power and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby and to effect the exchange of the Surrendered Note in accordance with the terms hereof.
(b) The information heretofore furnished by the Company to the Noteholder for purposes of or in connection with this Agreement or any transaction contemplated hereby does not, and all such information hereafter furnished by the Company to the Noteholder will not (in each case taken together and on the date as of which such information is furnished), contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they are made, not misleading.
(c) The representations and warranties herein by the Company will be true and correct in all material respects on and as of the date hereof and will, except as provided herein, survive the Exchange Date.
5. This Agreement may not be amended, canceled, revoked or otherwise modified except by written agreement subscribed by all of the Parties to be charged with such modification.
6. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective partners, employees, agents, servants, heirs, administrators, executors, successors, representatives and assigns.
7. All Parties hereto agree to pay their own costs and attorneys' fees except as follows:
(a) In the event of any action, suit or other proceeding instituted to remedy, prevent or obtain relief from a breach of this Agreement, arising out of a breach of this Agreement, involving claims within the scope of the releases contained in this Agreement, or pertaining to a declaration of rights under this Agreement, the prevailing Party shall recover all of such Party's attorneys' fees and costs incurred in each and every such action, suit or other proceeding, including any and all appeals or petitions therefrom.
(b) As used herein, attorneys' fees shall be deemed to mean the full and actual costs of any legal services actually performed in connection with the matters involved, calculated on the basis of the usual fee charged by the attorneys performing such services.
8. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California including all matters of construction, validity, performance, and enforcement and without giving effect to the principles of conflict of laws. Venue for any action brought under this Agreement shall be in the appropriate court in Orange County, California.
9. The Parties agree and stipulate that each and every term and condition contained in this Agreement is material, and that each and every term and condition may be reasonably accomplished within the time limitations, and in the manner set forth in this Agreement.
10. The Parties agree and stipulate that time is of the essence with respect to compliance with each and every item set forth in this Agreement.
11. This Agreement, along with the exhibits hereto, sets forth the entire agreement and understanding of the Parties hereto and supersedes any and all prior agreements, arrangements and understandings related to the subject matter hereof. No understanding, promise, inducement, statement of intention, representation, warranty, covenant or condition, written or oral, express or implied, whether by statute or otherwise, has been made by any party hereto which is not embodied in this Agreement or the written statements, certificates, or other documents delivered pursuant hereto or in connection with the transactions contemplated hereby, and no Party hereto shall be bound by of liable for any alleged understanding, promise, inducement, statement, representation, warranty, covenant or condition not so set forth.
12. This Agreement may be executed in one or more counterparts, each of which when executed and delivered shall be an original, and all of which when executed shall constitute one and the same instrument.
[remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the Parties hereto, agreeing to be bound hereby, execute this Agreement upon the date first set forth above.
"Noteholder" "Company" Anza Capital, Inc. /s/ Vincent Rinehart /s/ Vincent Rinehart --------------------------- --------------------------- By: Vincent Rinehart By: Vincent Rinehart Its: President /s/ Scott Presta --------------------------- By: Scott Presta Its: Director |
CERTIFICATE OF DESIGNATION
OF THE RIGHTS, PREFERENCES, PRIVILEGES
AND RESTRICTIONS, WHICH HAVE NOT BEEN SET
FORTH IN THE CERTIFICATE OF INCORPORATION
OR IN ANY AMENDMENT THERETO,
OF THE
SERIES D CONVERTIBLE PREFERRED STOCK
OF
ANZA CAPITAL, INC.
The undersigned, Vincent Rinehart, does hereby certify that:
A. He is the duly elected and acting President, CEO, and Secretary of Anza Capital, Inc., a Nevada corporation (the "Company").
B. Pursuant to the Unanimous Written Consent of the Board of Directors of the Company dated February 28, 2003, and approval of the Company's shareholders at a meeting duly held on April 11, 2003, the Board of Directors and Shareholders duly adopted the following resolutions:
WHEREAS, the Certificate of Incorporation of the Company, as amended, authorizes a class of stock designated as Preferred Stock, no par value (the "Preferred Class"), comprising one million (1,000,000) shares and provides that the Board of Directors of the Company may fix the terms, including any dividend rights, dividend rates, conversion rights, voting rights, rights and terms of any redemption, redemption price or prices, and liquidation preferences, if any, of the Preferred Class;
WHEREAS, the Board of Directors believes it in the best interests of the Company to create a series of preferred stock consisting of 15,000 shares and designated as the "Series D Convertible Preferred Stock" having certain rights, preferences, privileges, restrictions and other matters relating to the Series D Convertible Preferred Stock. No shares of Series D Convertible Preferred Stock have been issued;
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby fix and determine the rights, preferences, privileges, restrictions and other matters relating do the Class A Convertible Preferred Stock as follows:
1.1 "Board" shall mean the Board of Directors of the Company.
1.2 "Company" shall mean Anza Capital, Inc., a Nevada corporation.
1.3 "Common Stock" shall mean the Common Stock, $0.001 par value per share, of the Company.
1.4 "Common Stock Dividend" shall mean a stock dividend declared and paid on the Common Stock that is payable in shares of Common Stock.
1.5 "Distribution" shall mean the transfer of cash or property by the Company to one or more of its stockholders without consideration, whether by dividend or otherwise (except a dividend in shares of Company's stock).
1.6 "Original Issue Date" shall mean the date on which the first share of Series D Convertible Preferred Stock is issued by the Company.
1.7 "Original Issue Price" shall mean $126.81 per share for the Series D Convertible Preferred Stock.
1.8 "Series D Convertible Preferred Stock" shall mean the Series D Convertible Preferred Stock, no par value per share, of the Company.
1.9 "Subsidiary" shall mean any corporation or limited liability company of which at least fifty percent (50%) of the outstanding voting stock or membership interests, as the case may be, is at the time owned directly or indirectly by the Company or by one or more of such subsidiary corporations:
3.1 Series D Convertible Preferred Stock. The holders of each share of Series D Preferred Stock then outstanding shall be entitled to be paid, out of the Available Funds and Assets, and prior and in preference to any payment or distribution (or any setting apart of any payment or distribution) of any Available Funds and Assets on any shares of Common Stock or subsequent series of preferred stock, an amount per share equal to the Original Issue Price of the Series D Convertible Preferred Stock plus all declared but unpaid dividends on the Series D Convertible Preferred Stock. If upon any liquidation, dissolution or winding up of the Company, the Available Funds and Assets shall be insufficient to permit the payment to holders of the Series D Convertible Preferred Stock of their full preferential amount as described in this subsection, then all of the remaining Available Funds and Assets shall be distributed among the holders of the then outstanding Series D Convertible Preferred Stock pro rata, according to the number of outstanding shares of Series D Convertible Preferred Stock held by each holder thereof.
3.2 Merger or Sale of Assets. A reorganization or any other consolidation
or merger of the Company with or into any other corporation, or any other sale
of all or substantially all of the assets of the Company, shall not be deemed to
be a liquidation, dissolution or winding up of the Company within the meaning of
this Section 3, and the Series D Convertible Preferred Stock shall be entitled
only to (i) the right provided in any agreement or plan governing the
reorganization or other consolidation, merger or sale of assets transaction,
(ii) the rights contained in the Nevada Revised Statutes and (iii) the rights
contained in other Sections hereof.
3.3 Non-Cash Consideration. If any assets of the Company distributed to shareholders in connection with any liquidation, dissolution or winding up of the Company are other than cash, then the value of such assets shall be their fair market value as determined by the Board, except that any securities to be distributed to shareholders in a liquidation, dissolution or winding up of the Company shall be valued as follows:
(a) The method of valuation of securities not subject to investment letter or other similar restrictions on free marketability shall be as follows:
(i) if the securities are then traded on a national securities exchange or the Nasdaq National Market (or a similar national quotation system), then the value shall be deemed to be the average of the closing prices of the securities on such exchange or system over the ten (10) day period ending three (3) days prior to the distribution; and,
(ii) if actively traded over-the-counter, then the value shall be deemed to be the average of the closing bid prices over the ten (10) day period ending three (3) days prior to the distribution; and
(iii) if there is no active public market, then the value shall be the fair market value thereof, as determined mutually in good faith by (i) the Board of Directors of the Company and (ii) the holders of the Series D Convertible Preferred Stock acting as a group. In the event the Company and the holders cannot mutually agree upon a value, then the value shall be determined by a mutually acceptable third party licensed business valuation expert paid for equally by both parties.
(b) The method of valuation of securities subject to investment letter or other restrictions on free marketability shall be to make an appropriate discount from the market value determined as above in subparagraphs (a)(i), (ii) or (iii) of this subsection to reflect the approximate fair market value thereof.
(a) Conversion of Preferred Stock. Each share of Series D Convertible Preferred Stock shall be convertible, at the option of the holder thereof at any time after the first twelve (12) months following the date of issuance thereof, into One Hundred Twenty Six and Eight One Hundredths (126.81) fully paid and nonassessable share of Common Stock of the Company (the "Conversion Shares").
(b) Procedures for Exercise of Conversion Rights. The holders of any shares of Series D Convertible Preferred Stock may exercise their conversion rights as to all such shares or any part thereof by delivering to the Company during regular business hours, at the office of any transfer agent of the Company for the Series D Convertible Preferred Stock, or at the principal office of the Company or at such other place as may be designated by the Company, the certificate or certificates for the shares to be converted, duly endorsed for transfer to the Company, accompanied by written notice stating that the holder elects to convert such shares. Conversion shall be deemed to have been effected on the date when such delivery is made, and such date is referred to herein as the "Conversion Date." As promptly as practicable after the Conversion Date, the Company shall issue and deliver to or upon the written order of such holder, at such office or other place designated by the Company, a certificate or certificates for the number of full shares of Common Stock to which such holder is entitled and a check for cash with respect to any fractional interest in a share of Common Stock as provided in section 4(c) below. The holder shall be deemed to have become a shareholder of record on the Conversion Date. Upon conversion of only a portion of the number of shares of Series D Convertible Preferred Stock represented by a certificate surrendered for conversion, the Company shall issue and deliver to or upon the written order of the holder of the certificate so surrendered for conversion, at the expense of the Company, a new certificate covering the number of shares of Series D Convertible Preferred Stock representing the unconverted portion of the certificate so surrendered.
(c) No Fractional Shares. No fractional shares of Common Stock or scrip shall be issued upon conversion of shares of Series D Convertible Preferred Stock. If more than one share of Series D Convertible Preferred Stock shall be surrendered for conversion at any one time by the same holder, the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of Series D Convertible Preferred Stock so surrendered. Instead of any fractional shares of Common Stock which would otherwise be issuable upon conversion of any shares of Series D Convertible Preferred Stock, the Company shall pay a cash adjustment in respect of such fractional interest equal to the fair market value of such fractional interest as determined by the Company's Board of Directors.
(d) Payment of Taxes for Conversions. The Company shall pay any and all issue and other taxes that may be payable in respect of any issue or delivery of shares of Common Stock on conversion pursuant hereto of Series D Convertible Preferred Stock. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock in a name other than that in which the shares of Series D Convertible Preferred Stock so converted were registered, and no such issue or delivery shall be made unless and until the person requesting such issue has paid to the Company the amount of any such tax, or has established, to the satisfaction of the Company, that such tax has been paid.
(e) Reservation of Common Stock. The Company shall at all times reserve and keep available, out of its authorized but unissued Common Stock, solely for the purpose of effecting the conversion of the Series D Convertible Preferred Stock, the full number of shares of Common Stock deliverable upon the conversion of all shares of all series of preferred stock from time to time outstanding.
(f) Registration or Listing of Shares of Common Stock. If any shares of Common Stock to be reserved for the purpose of conversion of shares of Series D Convertible Preferred Stock require registration or listing with, or approval of, any governmental authority, stock exchange or other regulatory body under any federal or state law or regulation or otherwise, before such shares may be validly issued or delivered upon conversion, the Company will in good faith and as expeditiously as possible endeavor to secure such registration, listing or approval, as the case may be. This subsection shall not obligate the Company to prepare and file a resale registration statement with the Securities and Exchange Commission.
(g) Status of Common Stock Issued Upon Conversion. All shares of Common Stock which may be issued upon conversion of the shares of Series D Convertible Preferred Stock will upon issuance by the Company be validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the issuance thereof, and their resale will be subject to the terms and conditions of Rule 144 promulgated under the Securities Act of 1933.
(h) Status of Converted Preferred Stock. In case any shares of Series D Convertible Preferred Stock shall be converted pursuant to this section 4, the shares so converted shall be canceled and shall not be issuable by the Company.
(a) General Provisions. In case, at any time after the date hereof, of any capital reorganization, or any reclassification of the stock of the Company (other than a change in par value or as a result of a stock dividend or subdivision, split-up or combination of shares), or the consolidation or merger of the Company with or into another person (other than a consolidation or merger in which the Company is the continuing entity and which does not result in any change in the Common Stock), or of the sale or other disposition of all or substantially all the properties and assets of the Company as an entirety to any other person, the shares of Series D Convertible Preferred Stock shall, after such reorganization, reclassification, consolidation, merger, sale or other disposition, be convertible into the kind and number of shares of stock or other securities or property of the Company or of the entity resulting from such consolidation or surviving such merger or to which such properties and assets shall have been sold or otherwise disposed to which such holder would have been entitled if immediately prior to such reorganization, reclassification, consolidation, merger, sale or other disposition it had converted its shares of Series D Convertible Preferred Stock into Common Stock. The provisions of this section 5(a) shall similarly apply to successive reorganizations, reclassi- fications, consolidations, mergers, sales or other dispositions.
(b) Adjustment for Stock Splits. In case the Company shall at any time subdivide the outstanding shares of Common Stock, or shall issue a stock dividend on its outstanding Common Stock, the number of Conversion Shares shall be proportionately increased, and in case the Company shall at any time combine the outstanding shares of Common Stock, the number of Conversion Shares shall be proportionately decreased, effective at the close of business on the date of such subdivision, dividend, or combination, as the case may be.
(c) No Impairment. The Company will not, through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, including amending this Certificate of Designation, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this section 5 and in the taking of all such action as may be necessary or appropriate in order to protect the conversion rights of the holders of Series D Convertible Preferred Stock against impairment. This provision shall not restrict the Company from amending its Articles of Incorporation in accordance with the Nevada Revised Statutes and the terms hereof.
IN WITNESS WHEREOF, the Company has caused this Certificate of Designation of Series D Convertible Preferred Stock to be duly executed by its President and attested to by its Secretary and has caused its corporate seal to be affixed hereto effective as of April 12, 2003.
CERTIFICATE OF DESIGNATION
OF THE RIGHTS, PREFERENCES, PRIVILEGES
AND RESTRICTIONS, WHICH HAVE NOT BEEN SET
FORTH IN THE CERTIFICATE OF INCORPORATION
OR IN ANY AMENDMENT THERETO,
OF THE
SERIES E CONVERTIBLE PREFERRED STOCK
OF
ANZA CAPITAL, INC.
The undersigned, Vincent Rinehart, does hereby certify that:
A. He is the duly elected and acting President, CEO, and Secretary of Anza Capital, Inc., a Nevada corporation (the "Company").
B. Pursuant to the Unanimous Written Consent of the Board of Directors of the Company dated February 28, 2003, and approval of the Company's shareholders at a meeting duly held on April 11, 2003, the Board of Directors and Shareholders duly adopted the following resolutions:
WHEREAS, the Certificate of Incorporation of the Company, as amended, authorizes a class of stock designated as Preferred Stock, no par value (the "Preferred Class"), comprising one million (1,000,000) shares and provides that the Board of Directors of the Company may fix the terms, including any dividend rights, dividend rates, conversion rights, voting rights, rights and terms of any redemption, redemption price or prices, and liquidation preferences, if any, of the Preferred Class;
WHEREAS, the Board of Directors believes it in the best interests of the Company to create a series of preferred stock consisting of 250,000 shares and designated as the "Series E Convertible Preferred Stock" having certain rights, preferences, privileges, restrictions and other matters relating to the Series E Convertible Preferred Stock. No shares of Series E Convertible Preferred Stock have been issued;
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby fix and determine the rights, preferences, privileges, restrictions and other matters relating do the Class A Convertible Preferred Stock as follows:
1.1 "Board" shall mean the Board of Directors of the Company.
1.2 "Company" shall mean Anza Capital, Inc., a Nevada corporation.
1.3 "Common Stock" shall mean the Common Stock, $0.001 par value per share, of the Company.
1.4 "Common Stock Dividend" shall mean a stock dividend declared and paid on the Common Stock that is payable in shares of Common Stock.
1.5 "Distribution" shall mean the transfer of cash or property by the Company to one or more of its stockholders without consideration, whether by dividend or otherwise (except a dividend in shares of Company's stock).
1.6 "Original Issue Date" shall mean the date on which the first share of Series E Convertible Preferred Stock is issued by the Company.
1.7 "Original Issue Price" shall mean $1.00 per share for the Series E Convertible Preferred Stock.
1.8 "Series E Convertible Preferred Stock" shall mean the Series E Convertible Preferred Stock, no par value per share, of the Company.
1.9 "Subsidiary" shall mean any corporation or limited liability company of which at least fifty percent (50%) of the outstanding voting stock or membership interests, as the case may be, is at the time owned directly or indirectly by the Company or by one or more of such subsidiary corporations:
3.1 Series E Convertible Preferred Stock. The holders of each share of Series E Preferred Stock then outstanding shall be entitled to be paid, out of the Available Funds and Assets, and prior and in preference to any payment or distribution (or any setting apart of any payment or distribution) of any Available Funds and Assets on any shares of Common Stock or subsequent series of preferred stock, an amount per share equal to the Original Issue Price of the Series E Convertible Preferred Stock plus all declared but unpaid dividends on the Series E Convertible Preferred Stock. If upon any liquidation, dissolution or winding up of the Company, the Available Funds and Assets shall be insufficient to permit the payment to holders of the Series E Convertible Preferred Stock of their full preferential amount as described in this subsection, then all of the remaining Available Funds and Assets shall be distributed among the holders of the then outstanding Series E Convertible Preferred Stock pro rata, according to the number of outstanding shares of Series E Convertible Preferred Stock held by each holder thereof.
3.2 Merger or Sale of Assets. A reorganization or any other consolidation or merger of the Company with or into any other corporation, or any other sale of all or substantially all of the assets of the Company, shall not be deemed to be a liquidation, dissolution or winding up of the Company within the meaning of this Section 3, and the Series E Convertible Preferred Stock shall be entitled only to (i) the right provided in any agreement or plan governing the reorganization or other consolidation, merger or sale of assets transaction, (ii) the rights contained in the Nevada Revised Statutes and (iii) the rights contained in other Sections hereof.
3.3 Non-Cash Consideration. If any assets of the Company distributed to shareholders in connection with any liquidation, dissolution or winding up of the Company are other than cash, then the value of such assets shall be their fair market value as determined by the Board, except that any securities to be distributed to shareholders in a liquidation, dissolution or winding up of the Company shall be valued as follows:
(a) The method of valuation of securities not subject to investment letter or other similar restrictions on free marketability shall be as follows:
(i) if the securities are then traded on a national securities exchange or the Nasdaq National Market (or a similar national quotation system), then the value shall be deemed to be the average of the closing prices of the securities on such exchange or system over the ten (10) day period ending three (3) days prior to the distribution; and,
(ii) if actively traded over-the-counter, then the value shall be deemed to be the average of the closing bid prices over the ten (10) day period ending three (3) days prior to the distribution; and
(iii) if there is no active public market, then the value shall be the fair market value thereof, as determined mutually in good faith by (i) the Board of Directors of the Company and (ii) the holders of the Series E Convertible Preferred Stock acting as a group. In the event the Company and the holders cannot mutually agree upon a value, then the value shall be determined by a mutually acceptable third party licensed business valuation expert paid for equally by both parties.
(b) The method of valuation of securities subject to investment
letter or other restrictions on free marketability shall be to make an
appropriate discount from the market value determined as above in subparagraphs
(a)(i), (ii) or (iii) of this subsection to reflect the approximate fair market
value thereof.
(a) Conversion of Preferred Stock. Each share of Series E Convertible Preferred Stock shall be convertible, at any time after the Original Issue Date but only upon the mutual written consent of the holder and the Company, which consent shall be obtained before any conversions shall take place, into that number of fully paid and nonassessable shares of Common Stock of the Company described in section 4(b) below.
(b) Determination of Number of Shares of Common Stock Upon Conversion. The number of shares of Common Stock into which each share of Series E Convertible Preferred Stock may be converted shall be determined by dividing the Original Issue Price by the Conversion Price (determined as hereinafter provided) in effect at the time of conversion. Notwithstanding the foregoing, each share of Series E Convertible Preferred Stock may be converted into a maximum of two (2) shares of Common Stock (subject to adjustment as set forth in section 5) (the "Maximum Conversion Shares").
(c) Determination of Initial Conversion Price. The conversion
price per share (the "Conversion Price") at which shares of Common Stock shall
initially be issuable upon conversion of the Series E Convertible Preferred
Stock shall be equal to the average of the closing bid price for the last ten
(10) trading days prior to the Conversion Date (as hereinafter defined).
(d) Procedures for Exercise of Conversion Rights. The holders of any shares of Series E Convertible Preferred Stock may exercise their conversion rights as to all such shares or any part thereof by delivering to the Company during regular business hours, or at such other place as may be designated by the Company, the certificate or certificates for the shares to be converted,
duly endorsed for transfer to the Company, accompanied by written notice stating that the holder elects to convert such shares. Conversion shall be deemed to have been effected on the date when such delivery is made, and such date is referred to herein as the "Conversion Date." As promptly as practicable after the Conversion Date, the Company shall issue and deliver to or upon the written order of such holder, at such office or other place designated by the Company, a certificate or certificates for the number of full shares of Common Stock to which such holder is entitled and a check for cash with respect to any fractional interest in a share of Common Stock as provided in section 4(e) below. The holder shall be deemed to have become a shareholder of record on the Conversion Date, and the applicable Conversion Price shall be the Conversion Price in effect on the Conversion Date. Upon conversion of only a portion of the number of shares of Series E Convertible Preferred Stock represented by a certificate surrendered for conversion, the Company shall issue and deliver to or upon the written order of the holder of the certificate so surrendered for conversion, at the expense of the Company, a new certificate covering the number of shares of Series E Convertible Preferred Stock representing the unconverted portion of the certificate so surrendered.
(e) No Fractional Shares. No fractional shares of Common Stock or scrip shall be issued upon conversion of shares of Series E Convertible Preferred Stock. If more than one share of Series E Convertible Preferred Stock shall be surrendered for conversion at any one time by the same holder, the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of Series E Convertible Preferred Stock so surrendered. Instead of any fractional shares of Common Stock which would otherwise be issuable upon conversion of any shares of Series E Convertible Preferred Stock, the Company shall pay a cash adjustment in respect of such fractional interest equal to the fair market value of such fractional interest as determined by the Company's Board of Directors.
(f) Payment of Taxes for Conversions. The Company shall pay any and all issue and other taxes that may be payable in respect of any issue or delivery of shares of Common Stock on conversion pursuant hereto of Series F Convertible Preferred Stock. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock in a name other than that in which the shares of Series F Convertible Preferred Stock so converted were registered, and no such issue or delivery shall be made unless and until the person requesting such issue has paid to the Company the amount of any such tax, or has established, to the satisfaction of the Company, that such tax has been paid.
(g) Reservation of Common Stock. The Company shall at all times reserve and keep available, out of its authorized but unissued Common Stock, solely for the purpose of effecting the conversion of the Series F Convertible Preferred Stock, the full number of shares of Common Stock deliverable upon the conversion of all shares of all series of preferred stock from time to time outstanding.
(h) Registration or Listing of Shares of Common Stock. If any shares of Common Stock to be reserved for the purpose of conversion of shares of Series F Convertible Preferred Stock require registration or listing with, or approval of, any governmental authority, stock exchange or other regulatory body under any federal or state law or regulation or otherwise, before such shares may be validly issued or delivered upon conversion, the Company will in good faith and as expeditiously as possible endeavor to secure such registration, listing or approval, as the case may be. This subsection shall not obligate the Company to prepare and file a resale registration statement with the Securities and Exchange Commission.
(i) Status of Common Stock Issued Upon Conversion. All shares of Common Stock which may be issued upon conversion of the shares of Series E Convertible Preferred Stock will upon issuance by the Company be validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the issuance thereof, and their resale will be subject to the terms and conditions of Rule 144 promulgated under the Securities Act of 1933.
(j) Status of Converted Preferred Stock. In case any shares of Series E Convertible Preferred Stock shall be converted pursuant to this section 4, the shares so converted shall be canceled and shall not be issuable by the Company.
(a) General Provisions. In case, at any time after the date hereof, of any capital reorganization, or any reclassification of the stock of the Company (other than a change in par value or as a result of a stock dividend or subdivision, split-up or combination of shares), or the consolidation or merger of the Company with or into another person (other than a consolidation or merger in which the Company is the continuing entity and which does not result in any change in the Common Stock), or of the sale or other disposition of all or substantially all the properties and assets of the Company as an entirety to any other person, the shares of Series D Convertible Preferred Stock shall, after such reorganization, reclassification, consolidation, merger, sale or other disposition, be convertible into the kind and number of shares of stock or other securities or property of the Company or of the entity resulting from such consolidation or surviving such merger or to which such properties and assets shall have been sold or otherwise disposed to which such holder would have been entitled if immediately prior to such reorganization, reclassification, consolidation, merger, sale or other disposition it had converted its shares of Series D Convertible Preferred Stock into Common Stock. The provisions of this section 5(a) shall similarly apply to successive reorganizations, reclassi- fications, consolidations, mergers, sales or other dispositions.
(b) Adjustment for Stock Splits. In case the Company shall at any time subdivide the outstanding shares of Common Stock, or shall issue a stock dividend on its outstanding Common Stock, the number of Maximum Conversion Shares shall be proportionately increased, and in case the Company shall at any time combine the outstanding shares of Common Stock, the number of Maximum Conversion Shares shall be proportionately decreased, effective at the close of business on the date of such subdivision, dividend, or combination, as the case may be.
(c) No Impairment. The Company will not, through any reorgani- zation, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, including amending this Certificate of Designation, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this section 5 and in the taking of all such action as may be necessary or appropriate in order to protect the conversion rights of the holders of Series D Convertible Preferred Stock against impairment. This provision shall not restrict the Company from amending its Articles of Incorporation in accordance with the Nevada Revised Statutes and the terms hereof.
(a) At any time after the Original Issue Date the Company may call any or all of the Series E Convertible Preferred Stock by providing five (5) days written notice to the holders whose shares shall be called. The price to be paid by the Company shall be equal to the Original Issue Price. Any accrued but unpaid dividends as set forth in Section 2 must also be paid by the Company at the same time as the call price.
IN WITNESS WHEREOF, the Company has caused this Certificate of Designation of Series E Convertible Preferred Stock to be duly executed by its President and attested to by its Secretary and has caused its corporate seal to be affixed hereto effective as of April 12, 2003.
CERTIFICATE OF DESIGNATION
OF THE RIGHTS, PREFERENCES, PRIVILEGES
AND RESTRICTIONS, WHICH HAVE NOT BEEN SET
FORTH IN THE CERTIFICATE OF INCORPORATION
OR IN ANY AMENDMENT THERETO,
OF THE
SERIES F CONVERTIBLE PREFERRED STOCK
OF
ANZA CAPITAL, INC.
The undersigned, Vincent Rinehart, does hereby certify that:
A. He is the duly elected and acting President, CEO, and Secretary of Anza Capital, Inc., a Nevada corporation (the "Company").
B. Pursuant to the Unanimous Written Consent of the Board of Directors of the Company dated February 28, 2003, and approval of the Company's shareholders at a meeting duly held on April 11, 2003, the Board of Directors and Shareholders duly adopted the following resolutions:
WHEREAS, the Certificate of Incorporation of the Company, as amended, authorizes a class of stock designated as Preferred Stock, no par value (the "Preferred Class"), comprising one million (1,000,000) shares and provides that the Board of Directors of the Company may fix the terms, including any dividend rights, dividend rates, conversion rights, voting rights, rights and terms of any redemption, redemption price or prices, and liquidation preferences, if any, of the Preferred Class;
WHEREAS, the Board of Directors believes it in the best interests of the Company to create a series of preferred stock consisting of 25,000 shares and designated as the "Series F Convertible Preferred Stock" having certain rights, preferences, privileges, restrictions and other matters relating to the Series F Convertible Preferred Stock. No shares of Series F Convertible Preferred Stock have been issued;
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby fix and determine the rights, preferences, privileges, restrictions and other matters relating do the Class A Convertible Preferred Stock as follows:
1.1 "Board" shall mean the Board of Directors of the Company.
1.2 "Company" shall mean Anza Capital, Inc., a Nevada corporation.
1.3 "Common Stock" shall mean the Common Stock, $0.001 par value per share, of the Company.
1.4 "Common Stock Dividend" shall mean a stock dividend declared and paid on the Common Stock that is payable in shares of Common Stock.
1.5 "Distribution" shall mean the transfer of cash or property by the Company to one or more of its stockholders without consideration, whether by dividend or otherwise (except a dividend in shares of Company's stock).
1.6 "Original Issue Date" shall mean the date on which the first share of Series F Convertible Preferred Stock is issued by the Company.
1.7 "Original Issue Price" shall mean $16.675 per share for the Series F Convertible Preferred Stock.
1.8 "Series F Convertible Preferred Stock" shall mean the Series F Convertible Preferred Stock, no par value per share, of the Company.
1.9 "Subsidiary" shall mean any corporation or limited liability company of which at least fifty percent (50%) of the outstanding voting stock or membership interests, as the case may be, is at the time owned directly or indirectly by the Company or by one or more of such subsidiary corporations:
2.1 In each fiscal quarter, the holders of the then outstanding Series F
Convertible Preferred Stock shall be entitled to receive, not later than thirty
(30) days following the end of the previous applicable quarter, noncumulative
dividends equal to 1.75 shares of Company common stock for each share of Series
F Convertible Preferred Stock then outstanding. The Company may, at its sole
discretion, pay this dividend in cash valued at the average of the closing bid
price for the last ten (10) trading days of the applicable quarter. No dividends
(other than a Common Stock Dividend) shall be paid, and no Distribution shall be
made, with respect to the Common Stock unless dividends in such amount shall
have been paid or declared and set apart for payment to the holders of the
Series F Convertible Preferred Stock simultaneously.
3.1 Series F Convertible Preferred Stock. The holders of each share of Series F Preferred Stock then outstanding shall be entitled to be paid, out of the Available Funds and Assets, and prior and in preference to any payment or distribution (or any setting apart of any payment or distribution) of any Available Funds and Assets on any shares of Common Stock or subsequent series of preferred stock, an amount per share equal to the Original Issue Price of the Series F Convertible Preferred Stock plus all declared but unpaid dividends on the Series F Convertible Preferred Stock. If upon any liquidation, dissolution or winding up of the Company, the Available Funds and Assets shall be insufficient to permit the payment to holders of the Series F Convertible Preferred Stock of their full preferential amount as described in this subsection, then all of the remaining Available Funds and Assets shall be distributed among the holders of the then outstanding Series F Convertible Preferred Stock pro rata, according to the number of outstanding shares of Series F Convertible Preferred Stock held by each holder thereof.
3.2 Merger or Sale of Assets. A reorganization or any other consolidation
or merger of the Company with or into any other corporation, or any other sale
of all or substantially all of the assets of the Company, shall not be deemed to
be a liquidation, dissolution or winding up of the Company within the meaning of
this Section 3, and the Series F Convertible Preferred Stock shall be entitled
only to (i) the right provided in any agreement or plan governing the
reorganization or other consolidation, merger or sale of assets transaction,
(ii) the rights contained in the Nevada Revised Statutes and (iii) the rights
contained in other Sections hereof.
3.3 Non-Cash Consideration. If any assets of the Company distributed to shareholders in connection with any liquidation, dissolution or winding up of the Company are other than cash, then the value of such assets shall be their fair market value as determined by the Board, except that any securities to be distributed to shareholders in a liquidation, dissolution or winding up of the Company shall be valued as follows:
(a) The method of valuation of securities not subject to investment letter or other similar restrictions on free marketability shall be as follows:
(i) if the securities are then traded on a national securities exchange or the Nasdaq National Market (or a similar national quotation system), then the value shall be deemed to be the average of the closing prices of the securities on such exchange or system over the ten (10) day period ending three (3) days prior to the distribution; and,
(ii) if actively traded over-the-counter, then the value shall be deemed to be the average of the closing bid prices over the ten (10) day period ending three (3) days prior to the distribution; and
(iii) if there is no active public market, then the value shall be the fair market value thereof, as determined mutually in good faith by (i) the Board of Directors of the Company and (ii) the holders of the Series F Convertible Preferred Stock acting as a group. In the event the Company and the holders cannot mutually agree upon a value, then the value shall be determined by a mutually acceptable third party licensed business valuation expert paid for equally by both parties.
(b) The method of valuation of securities subject to investment letter
or other restrictions on free marketability shall be to make an appropriate
discount from the market value determined as above in subparagraphs (a)(i),
(ii) or (iii) of this subsection to reflect the approximate fair market
value thereof.
(a) Conversion of Preferred Stock. Each share of Series F Convertible Preferred Stock shall be convertible, at the option of the holder thereof at any time after the first twelve (12) months following the date of issuance thereof, into one hundred (100) shares of fully paid and nonassessable share of Common Stock of the Company (the "Conversion Shares").
(b) Procedures for Exercise of Conversion Rights. The holders of any shares of Series F Convertible Preferred Stock may exercise their conversion rights as to all such shares or any part thereof by delivering to the Company during regular business hours, at the office of any transfer agent of the Company for the Series F Convertible Preferred Stock, or at the principal office of the Company or at such other place as may be designated by the Company, the certificate or certificates for the shares to be converted, duly endorsed for transfer to the Company, accompanied by written notice stating that the holder elects to convert such shares. Conversion shall be deemed to have been effected on the date when such delivery is made, and such date is referred to herein as the "Conversion Date." As promptly as practicable after the Conversion Date, the Company shall issue and deliver to or upon the written order of such holder, at such office or other place designated by the Company, a certificate or certificates for the number of full shares of Common Stock to which such holder is entitled and a check for cash with respect to any fractional interest in a share of Common Stock as provided in section 4(c) below. The holder shall be deemed to have become a shareholder of record on the Conversion Date. Upon conversion of only a portion of the number of shares of Series F Convertible Preferred Stock represented by a certificate surrendered for conversion, the Company shall issue and deliver to or upon the written order of the holder of the certificate so surrendered for conversion, at the expense of the Company, a new certificate covering the number of shares of Series F Convertible Preferred Stock representing the unconverted portion of the certificate so surrendered.
(c) No Fractional Shares. No fractional shares of Common Stock or scrip shall be issued upon conversion of shares of Series F Convertible Preferred Stock. If more than one share of Series F Convertible Preferred Stock shall be surrendered for conversion at any one time by the same holder, the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of Series F Convertible Preferred Stock so surrendered. Instead of any fractional shares of Common Stock which would otherwise be issuable upon conversion of any shares of Series F Convertible Preferred Stock, the Company shall pay a cash adjustment in respect of such fractional interest equal to the fair market value of such fractional interest as determined by the Company's Board of Directors.
(d) Payment of Taxes for Conversions. The Company shall pay any and all issue and other taxes that may be payable in respect of any issue or delivery of shares of Common Stock on conversion pursuant hereto of Series F Convertible Preferred Stock. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock in a name other than that in which the shares of Series F Convertible Preferred Stock so converted were registered, and no such issue or delivery shall be made unless and until the person requesting such issue has paid to the Company the amount of any such tax, or has established, to the satisfaction of the Company, that such tax has been paid.
(e) Reservation of Common Stock. The Company shall at all times reserve and keep available, out of its authorized but unissued Common Stock, solely for the purpose of effecting the conversion of the Series F Convertible Preferred Stock, the full number of shares of Common Stock deliverable upon the conversion of all shares of all series of preferred stock from time to time outstanding.
(f) Registration or Listing of Shares of Common Stock. If any shares of Common Stock to be reserved for the purpose of conversion of shares of Series F Convertible Preferred Stock require registration or listing with, or approval of, any governmental authority, stock exchange or other regulatory body under any federal or state law or regulation or otherwise, before such shares may be validly issued or delivered upon conversion, the Company will in good faith and as expeditiously as possible endeavor to secure such registration, listing or approval, as the case may be. This subsection shall not obligate the Company to prepare and file a resale registration statement with the Securities and Exchange Commission.
(g) Status of Common Stock Issued Upon Conversion. All shares of Common Stock which may be issued upon conversion of the shares of Series F Convertible Preferred Stock will upon issuance by the Company be validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the issuance thereof, and their resale will be subject to the terms and conditions of Rule 144 promulgated under the Securities Act of 1933.
(h) Status of Converted Preferred Stock. In case any shares of Series F Convertible Preferred Stock shall be converted pursuant to this section 4, the shares so converted shall be canceled and shall not be issuable by the Company.
(a) General Provisions. In case, at any time after the date hereof, of any capital reorganization, or any reclassification of the stock of the Company (other than a change in par value or as a result of a stock dividend or subdivision, split-up or combination of shares), or the consolidation or merger of the Company with or into another person (other than a consolidation or merger in which the Company is the continuing entity and which does not result in any change in the Common Stock), or of the sale or other disposition of all or substantially all the properties and assets of the Company as an entirety to any other person, the shares of Series F Convertible Preferred Stock shall, after such reorganization, reclassification, consolidation, merger, sale or other disposition, be convertible into the kind and number of shares of stock or other securities or property of the Company or of the entity resulting from such consolidation or surviving such merger or to which such properties and assets shall have been sold or otherwise disposed to which such holder would have been entitled if immediately prior to such reorganization, reclassification, consolidation, merger, sale or other disposition it had converted its shares of Series F Convertible Preferred Stock into Common Stock. The provisions of this section 5(a) shall similarly apply to successive reorganizations, reclassifications, consolidations, mergers, sales or other dispositions.
(b) Adjustment for Stock Splits. In case the Company shall at any time subdivide the outstanding shares of Common Stock, or shall issue a stock dividend on its outstanding Common Stock, the number of Conversion Shares shall be proportionately increased, and in case the Company shall at any time combine the outstanding shares of Common Stock, the number of Conversion Shares shall be proportionately decreased, effective at the close of business on the date of such subdivision, dividend, or combination, as the case may be.
(c) No Impairment. The Company will not, through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, including amending this Certificate of Designation, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this section 5 and in the taking of all such action as may be necessary or appropriate in order to protect the conversion rights of the holders of Series F Convertible Preferred Stock against impairment. This provision shall not restrict the Company from amending its Articles of Incorporation in accordance with the Nevada Revised Statutes and the terms hereof.
IN WITNESS WHEREOF, the Company has caused this Certificate of Designation of Series F Convertible Preferred Stock to be duly executed by its President and attested to by its Secretary and has caused its corporate seal to be affixed hereto effective as of April 12, 2003.
By: ----------------------------
Vincent Rinehart,
President and Secretary