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Exhibit 10.7(b)
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
THE SALE OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO THE TERMS AND CONDITIONS OF A ROYALTY AND CONSULTING AGREEMENT AND A
REGISTRATION RIGHTS AGREEMENT BY AND BETWEEN THE HOLDER AND THE CORPORATION.
COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY
OF THE CORPORATION.
No.: W-Cert. #~ Void after
September 12, 2002
COMPRESSENT CORPORATION
COMMON STOCK PURCHASE WARRANT
Issued September 12, 1997
This Warrant is issued, for good and valuable consideration, receipt of
which is hereby acknowledged, to Name~ (the "Holder") by Compressent
Corporation, a Florida corporation (the "Company").
1. Purchase of Shares. Subject to the terms and conditions hereinafter set
forth, the Holder is entitled, upon surrender of this Warrant to the Company, to
purchase from the Company # shares~ fully paid and non-assessable shares of the
Company's Common Stock (the "Shares").
2. Purchase Price. The purchase price per share for the Shares shall be $10.00
(the "Warrant Price").
3. Exercise Period. This Warrant is exercisable at any time before the close
of business on September 12, 2002 (the "Exercise Period"). Notwithstanding the
foregoing, the Exercise Period shall terminate and this Warrant shall cease to
be exercisable upon the merger, sale of all or substantially all of the assets
of the Company, or other corporate transaction, as a result of which the
shareholders of the Company as of immediately prior to the consummation of such
transaction do not hold a majority of the voting power of the shareholders of
the resulting entity as of immediately subsequent to the consummation of such
transaction (a "Major Transaction"). The Company shall give the Holder at least
twenty (20) days' prior written notice of the closing of any such Major
Transaction.
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4. Method of Exercise. The Holder may exercise this Warrant, in whole or in
part, at any time, or from time to time, during the Exercise Period. Each such
exercise shall be effected by the surrender of this Warrant to the Chief
Financial Officer of the Company at its principal offices, together with the
payment to the Company (i) in cash, by check or by wire transfer to an account
designated by the Company, (ii) by cancellation by the Holder of any
then-outstanding indebtedness of the Company to the Holder, or (iii) by a
combination of (i) and (ii) of an amount equal to the aggregate purchase price
for the number of Shares being purchased. On or prior to the date of each such
exercise, Holder shall deliver to the Chief Financial Officer of the Company:
(a) a Notice of Exercise in the form attached hereto as Exhibit 1 duly executed
by the Holder, and (b) unless a registration statement under the Securities Act
of 1933 shall be in effect with respect to the Shares, an Investment
Representation Statement in the form attached hereto as Exhibit 2 duly executed
by the Holder.
5. Net Issue Exercise. In lieu of the payment methods set forth in Section 4
above, immediately prior to the closing of a Major Transaction, the Holder may
elect to exchange all or a portion of this Warrant for Shares equal to the value
of the amount of the Warrant being exchanged on the date of exchange. If the
Holder elects to exchange this Warrant as provided in this Section 5, the Holder
shall tender to the Company the Warrant for the amount being exchanged, along
with written notice of the Holder's election to exchange some or all of the
Warrant, and the Company shall issue to the Holder the number of Shares computed
using the following formula:
X = Y (A-B)
------
A
Where X = the number of Shares to be issued to the Holder.
Y = the number of Shares purchasable under the amount of the
Warrant being exchanged (as adjusted to the date of such
calculation).
A = the Fair Market Value of a Share.
B = the Purchase Price (as adjusted to the date of such
calculation).
All references herein to an "exercise" of the Warrant shall include an
exchange pursuant to this Section 5. In the event the Holder elects to exercise
this Warrant pursuant to this Section 5 in connection with a Major Transaction,
Market Value of a Share shall be determined by dividing the fair market value of
the aggregate consideration to be paid to the holders of Common Stock of the
Company (as determined by the Board of Directors, acting in good faith) by the
aggregate number of shares of the Company's capital Common Stock outstanding
immediately prior to the consummation of such Major Transaction which shall be
deemed to
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include the number of shares of Common Stock to be issued upon the exercise of
this Warrant pursuant to this Section 5.
6. Adjustments for Stock Splits, Etc. In the event of any stock split, stock
dividend, or combination with respect to the Common Stock of the Company, the
number of Shares of Common Stock subject to this Warrant and the Warrant Price
shall be appropriately adjusted.
7. Reservation of Shares. The Company covenants that it will at all times keep
available such number of authorized shares of its Common Stock sufficient to
permit the exercise of this Warrant for the full number of Shares specified
herein.
8. Restrictions on Transfer. Holder shall not, without the prior written consent
of the Company, sell, transfer, give, pledge, hypothecate, or otherwise dispose
of any interest in this Warrant or the Shares until the earlier of (a) the
occurrence of a Major Transaction, or (b) the fifth anniversary of the Effective
Date. Notwithstanding the foregoing, Holder may transfer without consideration
for estate planning purposes, all or a portion of the Warrant and/or Shares, to
his parents, siblings, spouse, or children, or to a trustee for the benefit of
one or more of such persons, (each, an "Estate Transferee"); provided, that each
such Estate Transferee shall have agreed in writing to be bound by the terms and
conditions of this Warrant.
9. Restricted Securities. The Holder understands that this Warrant and the
Shares issuable hereunder constitute "restricted securities" under the federal
securities laws inasmuch as they are being, or will be, acquired from the
Company in transactions not involving a public offering and accordingly may not,
under such laws and applicable regulations, be resold or transferred without
registration under the Securities Act of 1933 or an applicable exemption from
registration. In this connection, the Holder acknowledges that Rule 144 of the
Securities and Exchange Commission is not now, and may not in the future be,
available for resale of the Warrant or the Shares. Therefore, The Holder agrees
not to make any disposition of all or any portion of the Warrant or the Shares
unless: (i) There is then in effect a registration statement under the Act
covering such proposed disposition and such disposition is made in accordance
with such registration statement; (ii) Such disposition is made in conformity
with the requirement of Rule 144; (iii) The Holder has furnished the Company
with an opinion of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration of such Shares under the Act, or (iv)
An authorized representative of the Securities and Exchange Commission (the
"SEC") shall have rendered written advice to the Holder to the effect that the
SEC would take no action, or that the staff of the SEC would not recommend that
the SEC take action, with respect to such disposition, and a copy of such
written advice shall have been delivered to the Company.
The Holder further acknowledges that the Warrant and the Shares shall bear the
following legends:
(i) THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
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PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS
SOLD PURSUANT TO RULE 144 OF SUCH ACT OR OTHERWISE IN ACCORDANCE WITH THE TERMS
OF AGREEMENTS AMONG THE COMPANY AND THE REGISTERED HOLDER HEREOF. COPIES OF SUCH
AGREEMENTS MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE
CORPORATION.
(ii) Any legend required by the blue sky laws of the State of
California or any other applicable state.
10. No Shareholder Rights. Prior to exercise of this Warrant, the Holder shall
not enjoy the rights of a shareholder of the Company with respect to the shares
subject to this Warrant.
11. Counterparts. For the convenience of the parties, any number of counterparts
of this Warrant may be executed by the parties hereto and each such executed
counterpart shall be, and shall be deemed to be, an original instrument.
12. Governing Law. This Warrant shall be governed by the laws of the State of
California as applied to agreements among California residents entered into and
to be performed entirely within California.
COMPRESSENT CORPORATION
Xxx Xxxxxxxxx, Chief Executive Officer
ACCEPTED AND AGREED:
NAME~
By:
Name:
Title:
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EXHIBIT 1
NOTICE OF EXERCISE
(TO BE EXECUTED UPON EXERCISE OF WARRANT)
COMPRESSENT CORPORATION
The undersigned hereby irrevocably elects to exercise the Warrant for
shares of capital stock, as provided for therein, and (check the applicable
box):
Tenders payment of the purchase price in the form of cash,
by check or wire transfer, in the amount of $__________________
for _______ shares of Common Stock.
Elects the Net Issue Exercise option pursuant to Section 5 of the
Warrant.
The undersigned hereby affirms the statements and covenants in the
Warrant. Please issue a certificate or certificates for such shares in the name
of:
(Please sign and print name, title and taxpayer identification number)
Name~
__________________________________
__________________________________
(Address)
By:
Name:
Title:
Taxpayer Identification Number:
Note: The above signature should correspond exactly with the name on the first
page of this Warrant.
If said number of shares shall not be all the shares purchasable under
the within Warrant, a new Warrant is to be issued in the name of the Holder for
the balance remaining of the shares purchasable thereunder.
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EXHIBIT 2
INVESTMENT REPRESENTATION STATEMENT
_________ Shares of Common Stock of Compressent Corporation
In connection with the purchase of the above-listed securities the
undersigned hereby represents to Compressent Corporation (the "Company") as
follows:
Investment Representation.
(a) The shares to be received by the undersigned upon the exercise of
the Warrant (the "Securities") are being acquired by the undersigned for
investment for his own account, not as a nominee or agent, and not with a view
to the sale or distribution of any part thereof, and the undersigned has no
present intention of selling, or otherwise distributing the same. By executing
this Statement, the undersigned further represents that he does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer, or grant participation to such person or to any third person, with
respect to any of the Securities.
(b) The undersigned understands that the Securities have not been
registered under the Securities Act of 1933, as amended (the "Act"), or
applicable state securities laws, on the ground that the issuance of the
Securities is exempt pursuant to Section 4(2) of the Act and state law
exemptions relating to offers and sales not by means of a public offering, and
that the Company's reliance on such exemptions is predicated on the
undersigned's representations set forth herein.
(c) The undersigned agrees that in no event will he make a disposition
of any of the Securities unless and until (i) he 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) he
shall have furnished the Company with an opinion of counsel satisfactory to the
Company and the Company's counsel to the effect that (A) appropriate action
necessary for compliance with the Act and any applicable state securities laws
has been taken or an exemption from the registration requirements of the Act and
such laws is available, and (B) that the proposed transfer will not violate any
of said laws.
(d) The undersigned represents that he is able to fend for himself in
the transactions contemplated by this Statement, has together with his
professional advisors who are not affiliated with Equilibrium such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of its investments, and has the ability to bear the economic
risks (including the risk of a total loss) of its investment. The undersigned
represents
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that he has had the opportunity to ask questions of the Company
concerning the Company's business and assets and to obtain any additional
information which he considered necessary to verify the accuracy of the
information provided to him, and has had all questions which have been asked by
him satisfactorily answered by the Company.
(e) The undersigned acknowledges that the Securities issuable upon
exercise of the Warrant must be held indefinitely unless subsequently registered
under the Act or an exemption from such
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registration is available, except as provided otherwise herein. The undersigned
is aware of the provisions of Rule 144 promulgated under the Act which permit
limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things, the existence
of a public market for the shares, the availability of certain current public
information about the Company, the resale occurring not less than two years
after a party has purchased and paid for the security to be sold, the sale being
through a "broker's transaction" or in transactions directly with a "market
maker" (as provided by Rule 144(f)) and the number of shares being sold during
any three-month period not exceeding specified limitations. The undersigned is
aware that the conditions for resale set forth in Rule 144 have not been
satisfied.
Dated:
NAME~
By:
Name:
Title:
