XXXXXX'X, INC.
FORM OF WARRANT AGREEMENT
[Date]
To: The persons listed on Schedule I hereto
Xxxxxx'x, Inc., a Delaware corporation (the "Company"), hereby issues to
you stock purchase warrants entitling the holders to purchase the number of
units set forth opposite your name on Schedule I hereto, which aggregate ______
units, each of which is currently equal to one share of Common Stock of the
Company (a "Unit"), to be evidenced by an instrument in the form attached hereto
as Exhibit A (hereinafter referred to as the "Warrant", and the Warrant and all
instruments hereafter issued in replacement, substitution, combination, or
subdivision thereof being hereinafter collectively referred to as the
"Warrants"). The number and character of shares of Common Stock comprising a
Unit and purchasable upon exercise of the Warrants are subject to adjustment as
provided in Section 6 below. The Warrants will be exercisable as to all or any
lesser number of Units covered thereby, subject to the restrictions of Section 4
below, at the Purchase Price per Unit as defined below, at any time and from
time to time after the date hereof and ending at 5:00 p.m., Austin, Texas time,
on the Expiration Date (as defined below).
The issuance of the Warrants shall take place at such time and place as
you and the Company mutually agree.
1. DEFINITIONS.
As used herein, the following terms, unless the context otherwise
requires, shall have for all purposes hereof the following respective meanings:
(a) The term "Act" refers to the Securities Act of 1933 and the
Securities Act of 1934, collectively, as amended from time to time.
(b) The term "Affiliate" refers (i) with respect to an individual, to
his parents, siblings, spouse, his or their lineal descendants, and any
corporation, partnership, trust, and other entity controlled by any such
affiliates, and (ii) with respect to a corporation, partnership, trust, or other
entity, to persons directly or indirectly controlling, controlled by, or under
common control therewith, including officers and directors.
(c) The term "Commission" refers to the Securities and Exchange
Commission.
(d) The term "Common Stock" refers to the Company's common stock
authorized in its Certificate of Incorporation as of the Effective Date, $0.01
par value.
(e) The term "Effective Date" shall mean the date first set forth
above.
(f) The term "Exercise Date" shall have the meaning set forth in
Section 5 below.
(g) The term "Expiration Date" shall mean ________________.
(h) The term "Fair Market Value" on the day shall mean such amount
determined in good faith by the Board of Directors of the Company; provided,
however, that if the Underlying Securities are traded on the NASDAQ quotation
system or are listed on an established U.S. stock exchange or exchanges, such
Fair Market Value shall be deemed to be the closing price of the Underlying
Securities as reported for that day in The Wall Street Journal listing of
composite transactions for such quotation system or stock exchange or, if no
sale of Underlying Securities shall have been made on any quotation system or
stock exchange on that day, on the next preceding day on which there was a sale
of such security reported.
(i) The term "Other Securities" refers to any securities of the
Company or any other person (corporate or other-wise), any property (including
cash), and any right to receive any securities or property that the holders of
the Warrants at any time shall be entitled to receive, or shall have received,
upon the exercise of the Warrants, in lieu of or in addition to Common Stock, or
which at any time shall be issuable or shall have been issued in exchange for or
in replacement of Common Stock or Other Securities pursuant to Section 6 hereof
or otherwise; provided, however, that Other Securities does not include cash
dividends payable to holders of Common Stock or Other Securities, which cash
dividend was payable to holders of record prior to the Exercise Date.
(j) The term "Purchase Price" shall mean $_______ per Unit.
(k) The term "Stockholders Agreement" refers to that certain
Stockholders Agreement, dated August 10, 1990, between the Company and certain
of its stockholders (the "Stockholders"), which was amended by Amendment No 1 to
Stockholders Agreement, dated March 25, 1994, Amendment No. 2 to Stockholders
Agreement, dated May, 1995, Amendment No. 3 to Stockholders Agreement, dated
June 9, 1995, and Amendment No. 4 to Stockholders Agreement, dated November 11,
1996, among the Company and the Stockholders as amended from time to time
pursuant to the terms thereof.
(l) The term "Warrantholder" refers to the persons listed on Schedule
I hereto, and any transferee or transferees of permitted by Section 3(a) below.
(m) The term "Underlying Securities" refers to the shares of Common
Stock (and Other Securities) issuable under this Warrant Agreement and the
Warrants pursuant to the exercise, in whole or in part, of the Warrants.
2. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to you as follows:
(a) EXISTENCE. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation.
(n) CORPORATE AND OTHER ACTION. The Company has all requisite power
and authority (corporate and other), and has taken all necessary corporate
action, to authorize, execute, deliver, and perform this Warrant Agreement; to
execute, issue, sell, and deliver the Warrants and a certificate or certificates
evidencing the Warrants; to authorize and reserve for issuance and, upon payment
from time to time of the Purchase Price, to issue, sell, and deliver the shares
of the
XXXXXX'X, INC.
WARRANT AGREEMENT - PAGE 2
Underlying Securities issuable upon exercise of the Warrants; and to perform
all of its obligations under this Warrant Agreement and the Warrants. This
Warrant Agreement has been duly executed and delivered by the Company and is
a legal, valid, and binding agreement of the Company enforceable in
accordance with its terms. No authorization, approval, consent, or other
order of any regulatory authority is required for such authorization, issue,
or sale.
(o) SHARES AUTHORIZED. There are sufficient authorized and unissued
shares of Common Stock for issuance upon the exercise of all the Warrants issued
or issuable pursuant to this Warrant Agreement.
(p) NO VIOLATION. The execution and delivery of this Warrant
Agreement, the consummation of the transactions herein contemplated, and the
compliance with the terms and provisions of this Warrant Agreement and of the
Warrants will not conflict with, or result in a breach of, or constitute a
default or an event permitting acceleration under, any statute, the Certificate
of Incorporation or Bylaws of the Company, or any indenture, mortgage, deed of
trust, note, bank loan, credit agreement, franchise, license, lease, permit, or
any other agreement, understanding, instrument, judgment, decree, order, law,
statute, rule, or regulation to which the Company is a party or by which it is
bound.
(q) VALIDITY. The Warrant, when delivered to you, will be duly
authorized, executed, and delivered and will be a legal, valid, and binding
obligation of the Company enforceable in accordance with its terms. The shares
of Underlying Securities of the Company, when delivered to you upon payment of
the Purchase Price, will I be duly authorized and validly issued and
outstanding, fully paid and nonassessable, and free of preemptive rights.
3. COMPLIANCE WITH THE ACT.
(a) PURCHASE FOR INVESTMENT: TRANSFERABILITY. You represent and
warrant to the Company that the Warrants and the shares of Underlying Securities
are being acquired for investment and not with a view to the distribution or
resale thereof You agree not to make any sale, assignment, hypothecation, or
other disposition of the Warrant except pursuant to the Stockholders Agreement,
while you are a party thereto, as in effect on the date of such disposition, and
in compliance with the Act and the Company's Certificate of Incorporation and
Bylaws. The Warrant shall be transferred upon receipt by the Company of the
Warrant, with the Form of Assignment properly executed, and the assignee to whom
the Warrant has been transferred shall be treated for all purposes as the holder
of record of the Warrant. As soon as practicable, the Company, at
Warrantholder's expense (including the payment by it of any applicable issue
taxes), will cause to be issued in the name of, and delivered to, such assignee,
a Warrant in the form attached hereto as Exhibit A.
(r) LEGEND. Each certificate representing Underlying Securities shall
be imprinted with any and all legends provided for in the Bylaws Of the Company
and the Stockholders Agreement, as in effect as of the date of issuance of such
certificate (if applicable), in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR UNDER THE SECURITIES
XXXXXX'X, INC.
WARRANT AGREEMENT - PAGE 3
LAWS OF ANY STATE, AND MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
OR AN OPINION OF COUNSEL SATISFACTORY TO XXXXXX'X, INC. (THE
"COMPANY") TO THE EFFECT THAT AN EXEMPTION FROM REGISTRATION
THEREUNDER IS AVAILABLE.
4. EXERCISE OF WARRANTS: PARTIAL EXERCISE.
(a) EXERCISE IN FULL. Warrants may be exercised in full by the
Warrantholder by surrender of the Warrant, with the Form of Subscription at the
end thereof and the Stockholders Agreement, as in effect on the date of such
exercise, each duly executed by such Warrantholder, to the Company at its
principal executive offices, accompanied by certified or bank cashier's check
payable to the order of the Company in the amount obtained by multiplying the
number of Units represented by the respective Warrant or Warrants by the
Purchase Price per Unit.
(s) PARTIAL EXERCISE. Each Warrant may be exercised in part by the
Warrantholder by surrender of the Warrant, with the Form of Subscription at the
end thereof and the Stockholders Agreement, as in effect on the date of such
exercise, each duly executed by such Warrantholder, in the manner and at the
place provided in Subsection 4(a) hereof, accompanied by certified or bank
cashier's check payable to the order of the Company in the amount obtained by
multiplying the number of Units designated by the Warrantholder in the form of
subscription attached to the Warrant by the Purchase Price per Unit. Upon any
such partial exercise, the Company at its expense will forthwith issue and
deliver to the Warrantholder a new Warrant of like tenor, in the name of the
Warrantholder thereof, covering the number of Units not purchased pursuant to
this Subsection 4(b).
5. DELIVERY OF STOCK CERTIFICATES ETC., ON EXERCISE. Any exercise of the
Warrants pursuant to Section 4 hereof shall be deemed to have been effected
immediately prior to the close of business on the date on which the Warrants
with the completed Form of Subscription, a certified check for the aggregate
Purchase Price, and the executed Stockholders Agreement shall have been received
by the Company (the "Exercise Date"). At such time, the person or persons in
whose name or names any certificate or certificates for shares of Underlying
Securities shall be issuable upon such exercise shall be deemed to have become
and shall be treated for all purposes as the holder or holders of record of the
shares of Underlying Securities so purchased. As soon as practicable after any
Exercise Date, the Company at its expense (including the payment by it of any
applicable issue taxes) will cause to be issued in the name of, and delivered
to, the purchasing Warrantholder, a certificate or certificates for the number
of fully paid and nonassessable shares of the Underlying Securities to which
such Warrantholder shall be entitled upon such exercise, plus in lieu of any
fractional share to which such Warrantholder would otherwise be entitled, cash
in an amount determined pursuant to Subsection 7(h) hereof. Such certificate
shall contain the legends required by Subsection 3(b) hereof.
6. ANTI-DILUTION PROVISIONS. The Warrants are subject to the following
terms and conditions:
(a) STOCK DISTRIBUTIONS, SPLITS, AND COMBINATIONS; ADJUSTMENTS. In
case (i) the outstanding shares of the Common Stock (or Other Securities) shall
be subdivided into a greater number of shares, (ii) a non-cash dividend or
distribution in Common Stock (or Other Securities) shall be paid in respect of
Common Stock (or Other Securities), or (iii) the outstanding shares of
XXXXXX'X, INC.
WARRANT AGREEMENT - PAGE 4
Common Stock (or Other Securities) shall be combined into a smaller number of
shares thereof, the number of shares of Underlying Securities per Unit
subsequent to such subdivision or combination or at the record date of such
dividend or distribution shall, simultaneously with the effectiveness of such
subdivision or combination or immediately after the record date of such
dividend or distribution, be equal to the number of shares of Common Stock
and Other Securities a holder would have owned and had a right to receive as
a result of such subdivision, combination, dividend, or distribution if such
holder had actually held of record immediately prior to the effectiveness of
such subdivision or combination or immediately prior to the record date of
such dividend or distribution the number of shares of Underlying Securities
purchasable per Unit immediately prior to the effectiveness of such
subdivision or combination or the record date of such dividend or
distribution.
(b) REORGANIZATIONS AND RECAPITALIZATIONS. In case the Company shall
be reorganized or recapitalized by reclassifying its outstanding Common Stock
(or Other Securities) into a stock with different par value or by changing its
outstanding Common Stock (or Other Securities) with par value to stock without
par value, then, as a condition of such reorganization or recapitalization, as
the case may be, immediately after the effective time of such reorganization or
recapitalization Warrantholder shall thereafter have the right to purchase, upon
the terms and conditions specified herein, the number of shares of Underlying
Securities per Unit that a holder would have owned and had the right to receive
as a result of such reorganization or recapitalization if such holder had
actually held of record immediately prior to the date of such reorganization or
recapitalization the number of shares of Underlying Securities purchasable per
Unit immediately prior to such reorganization or recapitalization. If any
consolidation or merger of the Company with another corporation, or the sale of
all or substantially all of its assets to any other person, shall be effected in
such a way that holders of Common Stock and Other Securities shall be entitled
to receive stock, securities, or assets with respect to or in exchange for
Common Stock and Other Securities, then, as a condition of such consolidation,
merger, or sale, immediately after the effective time of such consolidation,
merger, or sale the Warrantholder shall have the right to purchase and receive
upon the basis and upon the terms and conditions specified in this Warrant
Agreement the number of shares of Underlying Securities per Unit that a holder
would have owned and had a right to receive as a result of such consolidation,
merger, or sale if such holder had actually held immediately prior to the record
date of such consolidation, merger, or sale the number of shares of Underlying
Securities purchasable per Unit immediately prior to such consolidation, merger,
or sale.
(c) NOTICE OF CHANGE OF UNDERLYING SECURITIES. Whenever the number of
shares of Underlying Securities per Unit or the kind or amount of securities or
assets purchasable pursuant to the Warrants shall be adjusted pursuant to any of
the provisions of this Warrant Agreement, or the number of shares of Underlying
Securities or the kind or amount of securities or assets receivable upon
conversion of Underlying Securities shall be adjusted pursuant to the terms
thereof, the Company shall forthwith thereafter cause to be sent to
Warrantholder a notice setting forth such adjustment and also setting forth in
detail the facts requiring such adjustments.
(d) ADDITIONAL NOTICES. In case:
(i) the Company shall declare a dividend (or any other
distribution) on its Common Stock; or
XXXXXX'X, INC.
WARRANT AGREEMENT - PAGE 5
(ii) the Company shall authorize the granting to the holders of
its Common Stock of rights to subscribe for or purchase any shares of capital
stock of any class or of any other rights; or
(iii) of any reclassification of the Common Stock of the Company
(other than a subdivision or combination of its outstanding shares of Common
Stock), or of any consolidation or merger to which the Company is a party and
for which approval of any stockholders of the Company is required, or of the
sale or transfer of all or substantially all of the assets of the Company; or
(iv) of the voluntary or involuntary dissolution, liquidation,
or winding up of the Company;
then the Company shall cause to be delivered to Warrantholder, at least twenty
(20) days prior to the applicable record date hereinafter specified, a notice
stating (A) the date on which a record is to be taken for the purpose of such
dividend, distribution or rights, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, or (B) the date on which
such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
7. FURTHER COVENANTS OF THE COMPANY.
(a) DILUTION OR IMPAIRMENTS. The Company will not, by amendment of
its Certificate of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities, or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms of the Warrants or of this Warrant Agreement, but win at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the Warrantholder against dilution or other impairment. Without
limiting the generality of the foregoing, the Company:
(i) shall at all times have authorized, reserve and keep
available, solely for issuance and delivery upon the exercise of the Warrants,
free from preemptive rights, all shares of the Underlying Securities from time
to time issuable upon the exercise of the Warrants and shall ensure that the par
value per share, if any, of the Underlying Securities is at all times equal to
or less than the then effective Purchase Price per share of Underlying
Securities; and
(ii) will take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of Common Stock and Other Securities upon the exercise
of the Warrants from time to time outstanding
(b) TITLE TO STOCK. All shares of the Underlying Securities delivered
upon the exercise of the Warrants shall be validly issued, fully paid, and
nonassessable; the Warrantholder shall receive good and marketable title to the
Underlying Securities, free and clear of all voting and
XXXXXX'X, INC.
WARRANT AGREEMENT - PAGE 6
other trust arrangements, liens, encumbrances, equities, and claims
whatsoever, except the restrictions on transfers set forth in the Bylaws of
the Company and the Stockholders Agreement; and the Company shall have paid
all taxes, if any, in respect of the issuance thereof.
(c) REGISTRATION OF UNDERLYING SECURITIES. If at any time the Company
proposes or determines to register any Common Stock held by a stockholder of the
Company (other than pursuant to registration on Form S-8 or any successor form)
in an underwritten offering to the public for cash, the Company will (a)
promptly give written notice thereof to the Warrantholder and (b) include in
such registration (and any related qualification under blue sky laws or other
state securities laws), and in the underwriting involved therein, all the Common
Stock specified by the Warrantholder in a written request, received by the
Company within thirty (30) days after the mailing of such written notice by the
Company; provided that if the managing underwriters advise the Company in
writing. that in their opinion marketing factors require a limitation in the
number of securities to be included, the Company will include in such
registration (i) first, any Common Stock offered by the Company, and (ii)
second, if all the Company's Common Stock is included in the registration, the
number of shares of Common Stock requested to be included that, in the opinion
of such underwriters, can be sold, pro rata among the respective stockholders of
the Company on the basis of the amount of Common Stock owned by each such
stockholder. The Company shall not grant any registration rights inconsistent
with the rights granted herein. The price at which the Warrantholder's Common
Stock being registered in such offering are offered to the public shall be equal
to the price at which the Company's Common Stock is offered to the public in
such registration. No securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
The Warrantholder shall be required to pay underwriting discounts and
commissions, pay expenses of the offering, provide indemnification to the
Company and the underwriters, provide a lockup agreement, and comply with such
other terms and conditions, in each case, only to the extent required of the
other stockholders selling Common Stock pursuant to such offering.
(d) LISTING ON SECURITIES EXCHANGE. If the Company at any time shall
list any Common Stock on any national securities exchange, the Company will, at
its expense, simultaneously list on such exchange, upon official notice of
issuance upon the exercise of the Warrants, and maintain such listing of, all
shares of Common Stock included in the Underlying Securities from time to time
issuable upon the exercise of the Warrants or upon conversion of Underlying
Securities, and the Company will so list on any national securities exchange and
will maintain such listing of, any Other Securities if and at the time that any
securities of such class shall be listed on such national securities exchange by
the Company.
(e) REMEDIES. The Company stipulates that the remedies at law of the
Warrantholder or any holder of Underlying Securities in the event of any default
or threatened default by the Company in the performance of or compliance with
any of the terms of this Warrant Agreement or the Warrants are not and will not
be adequate and that such terms may be specifically enforced by a decree for the
specific performance of any agreement contained herein or in the Warrants or by
an injunction against a violation of any of the terms hereof or thereof or
otherwise.
(f) EXCHANGE OF WARRANTS. Subject to Subsection 3(a) and Section 4
hereof, upon surrender for exchange of the Warrant to the Company, the Company
at its expense xxxx
XXXXXX'X, INC.
WARRANT AGREEMENT - PAGE 7
promptly issue and deliver to or upon the order of the holder thereof a new
Warrant of like tenor, in the name of such holder or as such holder (upon
payment by such Warrantholder of any applicable transfer expenses and taxes)
may direct, calling in the aggregate for the purchase of the number of shares
of the Underlying Securities called for on the face or faces of the Warrant
so surrendered.
(g) REPLACEMENT OF WARRANTS. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutilation of
any Warrant and, in the case of any such loss, theft, or destruction, upon
delivery of an indemnity agreement reasonably satisfactory in form and amount to
the Company or, in the case of such mutilation, upon surrender and cancellation
of such Warrant, the Company, at the expense of the Warrantholder, will execute
and deliver, in lieu thereof, a new Warrant of like tenor.
(h) REPORTING BY THE COMPANY. The Company agrees that during the term
of the Warrants and as long as you hold Underlying Securities, it will use
reasonable efforts to keep current in the filing of all forms and other
materials, if any, which it may be required to file with the appropriate
regulatory authority pursuant to the Act and all other forms and reports
required to be filed with any regulatory authority having jurisdiction over the
Company.
(i) FRACTIONAL SHARES. No fractional shares of Underlying Securities
are to be issued upon the exercise of any Warrant, but the Company shall pay a
cash adjustment in respect of any fraction of a share that would otherwise be
issuable in an amount equal to such fraction multiplied by the Fair Market Value
per share of Underlying Securities on the Exercise Date.
8. OTHER WARRANTHOLDERS. The Warrants are issued upon the following terms,
to all of which each holder or owner thereof by the taking thereof consents and
agrees: (a) any person who shall become a transferee, within the limitations on
transfer imposed by Subsection 3(a) hereof, shall take such Warrant subject to
the provisions of Subsection 3(a) hereof and the other provisions hereof and
thereupon shall be authorized to represent itself as absolute owner thereof and
subject to the restrictions contained in this Warrant Agreement, (b) the Company
may treat the registered holder thereof as the absolute owner thereof for all
purposes, notwithstanding any notice to the contrary, and (c) all references to
the words "you" and "your" in this Warrant Agreement shall be deemed to apply
with equal effect to any person to whom a Warrant has been transferred in
accordance', with the terms hereof, and where appropriate, to any person holding
shares of the Underlying Securities.
9. INDEMNIFICATION. The Company agrees to indemnify and to hold harmless
the Warrantholder from any liability incurred by any such Warrantholder as a
result of the Company's breach of this Agreement. Warrantholder agrees to
indemnify and to hold harmless the Company from any liability incurred by the
Company as a result of Warrantholder's breach of this Agreement.
10. MISCELLANEOUS. All notices, certificates, and other communications from
or at the request of the Company to any Warrantholder shall be deemed
effectively given upon (i) personal delivery or delivery by nationally
recognized overnight courier to the party to be notified, (ii) delivery by
facsimile transmission, or (iii) deposit with the United States Post Office by
registered, or certified mail, postage prepaid, to the facsimile phone number or
address, as the
XXXXXX'X, INC.
WARRANT AGREEMENT - PAGE 8
case may be, as may have been furnished to the Company in writing by such
Warrantholder. This Warrant Agreement and any of the terms hereof may be
changed, waived, discharged, or terminated by an instrument in writing signed
by the Company and the Warrantholder. This Warrant Agreement shall be
construed and enforced in accordance with and governed by the internal laws
of the State of Delaware. The headings in this Warrant Agreement are for
purpose of reference only and shall not limit or otherwise affect any of the
terms hereof. This Warrant Agreement, together with the forms of instruments
annexed hereto as Exhibit A, constitutes the full and complete agreement of
the parties hereto with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Company and Warrantholder have each caused this
Warrant Agreement to be executed by its respective duly-authorized corporate
officer.
COMPANY:
XXXXXX'X INC.
By:__________________________________
Xxxxxxx X. Spain, President
XXXXXX'X, INC.
WARRANT AGREEMENT - PAGE 9
SCHEDULE I
Name No. of Units
---- ------------
EXHIBIT A
STOCK PURCHASE WARRANT
[remainder of this page intentionally left blank]
FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To Xxxxxx'x, Inc.:
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, __________________________________ (______)(*) Units to
purchase Underlying Securities of Xxxxxx'x, Inc. and herewith makes payment of
_______________________________________ ($________________) therefor, and
requests that the certificate or certificates for such shares be issued in the
name of and delivered to the undersigned.
Dated:
------------------------------
Warrantholder:
By:
-------------------------------------------------------
(Signature must conform in all respects to name of holder
as specified on the face of the within Warrant)
Printed Name:
-----------------------
Title:
------------------------------
------------------------------------
------------------------------------
------------------------------------
(Address)
---------------------
(*) Insert here the number of Units called for on the face of the
Warrant or, in the case of a partial exercise, the portion thereof as to
which the Warrant is being exercised, in either case without making any
adjustment for additional Underlying Securities or property or cash which,
pursuant to the adjustment provisions of the Warrant Agreement pursuant to
which the Warrant was granted, may be deliverable upon exercise. In the
event that the number of Units indicated exceeds the number exercisable
pursuant to the restrictions of Section 4(c) of the Warrant Agreement, the
number of Units subscribed for shall be deemed to be the total number
exercisable on the date of the Form of Subscription.
FORM OF ASSIGNMENT
(To be signed only upon transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers
unto ________________________________________ the right represented by the
within Warrant to purchase ________________________ (______) Units of Underlying
Securities of Xxxxxx'x, Inc. to which the within Warrant relates, and appoints
Attorney to transfer such right on the books of Xxxxxx'x, Inc. with fall power
of substitution in the premises.
The undersigned represents and Warrants that the transfer of the within
Warrant is permitted by the terms of the Warrant Agreement pursuant to which the
within Warrant has been issued, and the transferee hereof, by his acceptance of
this Assignment, represents and warrants that he is familiar with the terms; of
said Warrant Agreement and agrees to be bound by the terms thereof with the same
force and effect as if a signatory thereto.
Dated:
------------------------
Signed in the presence of:
------------------------------ Assignor:
---------------------------------------
---------------------------------------
(Signature must conform in all respects
to name of holder as specified on the
face of the within Warrant)
Assignee:
---------------------------------------
By:
------------------------------------
Printed Name:
--------------------------
Title:
---------------------------------
Tax ID No.:
----------------------------
NEITHER THIS WARRANT NOR THE SECURITIES THAT MAY BE PURCHASED PURSUANT TO THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES
LAWS OF ANY STATE. THIS WARRANT AND THE SECURITIES THAT MAY BE PURCHASED
PURSUANT TO THIS WARRANT ARE BEING OFFERED AND SOLD IN RELIANCE UPON CERTAIN
EXEMPTIONS AFFORDED BY SUCH ACTS AND MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACTS OR AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
XXXXXX'X, INC.
STOCK PURCHASE WARRANT
THIS IS TO CERTIFY THAT _______________ is entitled to purchase at any
time or from time to time after the date hereof until 5:00 p.m., Austin, Texas
time, on the Expiration Date (as defined in the Warrant Agreement) up to
____________ (_____) Units at a Purchase Price of ______________ Dollars
($_____) per Unit, subject to the requirements and limitations of Section 4 of
the Warrant Agreement. On the date hereof, each Unit is equal to one share of
Common Stock, $0.01 par value, of Xxxxxx'x, Inc., a Delaware corporation (the
"Company"), subject to adjustment pursuant to Section 6 of the Warrant
Agreement. This Warrant is issued pursuant to a Warrant. Agreement, dated as of
________________ (the "Warrant Agreement"), between the Company, and certain
other Warrantholders, and all rights of the holder of this Warrant are subject
to the terms and provisions of the Warrant Agreement, copies of which are
available for inspection at the offices of the Company.
TRANSFER OF THIS WARRANT IS RESTRICTED AS PROVIDED IN THE WARRANT
AGREEMENT. Subject to the provisions of the Securities Act of 1933 and of the
Warrant Agreement, this Warrant and all rights hereunder are transferable, in
whole or in part, at the principal executive offices of the Company, by the
holder hereof in person or by his or its duly authorized attorney, upon
surrender of this Warrant, together with the Assignment hereof duly endorsed.
Until transfer hereof on the books of the Company, the Company may treat the
registered holder as the owner hereof for all purposes.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
and its corporate seal, (where applicable) to be hereunto affixed in Austin,
Texas by its proper corporate officer thereunto duly authorized, effective the
____th day of ____________.
XXXXXX'X, INC.
By:
--------------------------------
Xxxxxxx X. Spain, President
SIGNATURE PAGE
TO
WARRANT AGREEMENT
BETWEEN XXXXXX'X, INC. AND CERTAIN STOCKHOLDERS
DATED _________________
The above Warrant Agreement is accepted and agreed to as of the Effective Date.
WARRANT HOLDER:
______________________________ Dated:____________________________
Printed Name:
Title: (*)____________________
CO-OWNER: (*)
______________________________ Dated:____________________________
Printed Name:_________________
SPOUSE: (*)
______________________________ Dated:____________________________
Printed Name:_________________
(*) If the warrant is held jointly, then all co-owners must sign (as co-owner.)
if the warrant is held individually in a community property state, then it is
appropriate for the spouse to sign (as spouse). If the warrant is held by other
than a person (i.e. a corporation, organization, trust, etc.), then please
indicate title/capacity of person signing for the warrantholder.
