EXHIBIT 4.1
THIS WARRANT (THIS "WARRANT") HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW. NEITHER THIS
WARRANT NOR ANY WARRANT SHARES ISSUABLE UPON EXERCISE HEREOF NOR ANY INTEREST OR
PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, MORTGAGED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE
ACT AND APPLICABLE STATE SECURITIES LAWS.
CEPTOR CORPORATION
COMMON STOCK PURCHASE WARRANT
377,359 SHARES ORIGINAL ISSUE DATE: OCTOBER 7, 2005
This Warrant is issued in connection with and pursuant to that certain
Common Stock Purchase Agreement (the "PURCHASE AGREEMENT") dated as of October
7, 2005, by and between CEPTOR CORPORATION, a Delaware corporation (the
"COMPANY") and FUSION CAPITAL FUND II, LLC (the "BUYER").
FOR VALUE RECEIVED, the Buyer, the registered holder hereof, or its
permitted assigns (the "HOLDER"), is entitled to purchase from the Company,
during the period specified in this Warrant, 377,359 fully paid and
non-assessable shares (subject to adjustment as hereinafter provided) of Common
Stock (the "WARRANT SHARES"), of the Company at the purchase price per share
provided in Section 1.2 of this Warrant (the "WARRANT EXERCISE Price"), all
subject to the terms and conditions set forth in this Warrant. All terms not
otherwise defined herein shall have the meaning ascribed to them in the Purchase
Agreement.
SECTION 1. PERIOD FOR EXERCISE AND EXERCISE PRICE.
1.1 PERIOD FOR EXERCISE. The right to purchase shares of Warrant Shares
represented by this Warrant shall be immediately exercisable, and shall expire
at 5:00 p.m., Chicago local time, December 31, 2010 (the "EXPIRATION DATE").
From and after the Expiration Date this Warrant shall be null and void and of no
further force or effect whatsoever.
1.2 WARRANT EXERCISE PRICE. The Warrant Exercise Price per share of
Warrant Shares shall be $0.01 per share (subject to adjustment as hereinafter
provided).
SECTION 2. EXERCISE OF WARRANT.
2.1 MANNER OF EXERCISE. The Holder may exercise this Warrant, in whole
or in part, immediately, but not after the Expiration Date, during normal
business hours on any Trading Day by surrendering this Warrant to the Company at
the principal office of the Company, accompanied by a Warrant Exercise Form in
substantially the form annexed hereto duly executed by the Buyer and by payment
of the Warrant Exercise Price for the number of shares of Warrant Shares for
which this Warrant is then exercisable, either (i) in immediately available
funds, (ii) by delivery of an instrument evidencing indebtedness owing by the
Company to the Holder in the appropriate amount, (iii) by authorizing the
Company to retain shares of Common Stock which would otherwise be issuable upon
exercise of this Warrant (in accordance with Section 2.4 hereof) or (iv) in a
combination of (i), (ii) or (iii) above, provided, however, that in no event
shall the Holder be entitled to exercise this Warrant for a number of Warrant
Shares in excess of that number of Warrant Shares which, upon giving effect to
such exercise, would cause the aggregate number of shares of Common Stock
beneficially owned by the Holder to exceed 9.9% of the outstanding shares of the
Common Stock following such exercise. For purposes of the foregoing proviso, the
aggregate number of shares of Common Stock beneficially owned by the Holder
shall include the number of shares of Common Stock issuable upon exercise of
this Warrant with respect to which determination of such proviso is being made,
but shall exclude the shares of Common Stock which would be issuable upon (i)
exercise of the remaining, unexercised Warrants beneficially owned by the Holder
and (ii) exercise or conversion of the unexercised or unconverted portion of any
other securities of the Company beneficially owned by the Holder subject to a
limitation on conversion or exercise analogous to the limitation contained
herein. Except as set forth in the preceding sentence, for purposes of this
paragraph, beneficial ownership shall be calculated in accordance with Section
13(d) of the Securities Exchange Act of 1934, as amended. The Holder may waive
the foregoing limitation by written notice to the Company upon not less than 61
days prior written notice (with such waiver taking effect only upon the
expiration of such 61 day notice period).
2.2 WHEN EXERCISE EFFECTIVE. Each exercise of this Warrant shall be
deemed to have been effected on the day on which all requirements of Section 2.1
shall have been met with respect to such exercise. At such time the person in
whose name any certificate for shares of Warrant Shares shall be issuable upon
such exercise shall be deemed for all corporate purposes to have become the
Holder of record of such shares, regardless of the actual delivery of
certificates evidencing such shares.
2.3 DELIVERY OF STOCK CERTIFICATES. As soon as practicable after each
exercise of this Warrant, and in any event no later than 2 days after such
exercise, the Company at its expense will issue Warrant Shares via credit to the
Buyer's account with DTC for the number of Warrant Shares to which such Buyer is
entitled upon such Buyer's submission of the applicable Warrant Exercise Form
or, if the Transfer Agent is not participating in The DTC Fast Automated
Securities Transfer Program and DWAC system, issue and surrender to the address
as specified in the Warrant Exercise Form, a certificate, registered in the name
of the Buyer or its designee, for the number of shares of Common Stock to which
the Buyer shall be entitled to upon such exercise.
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2.4 CASHLESS EXERCISE. The Holder may, by providing notice thereof to
the Company along with the Warrant Exercise Form, elect to exercise the Warrant
for a number of Warrant Shares determined in accordance with the following
formula:
X = Y(A-B)
------
A
Where:
X = The number of Warrant Shares to be issued to the
Holder.
Y = The number of Warrant Shares purchasable under this
Warrant (at the date of such exercise).
A = The fair market value of one share of Common Stock
(or other security for which the Warrant is then
exercisable at the date of such exercise).
B = Exercise Price (as adjusted to the date of such
exercise).
For purposes of this Section 2.4, the "fair market value" per share shall be the
closing sale price of the Common Stock for the one Trading Day immediately prior
to the notice of exercise of the Warrant.
SECTION 3. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. The Warrant
Exercise Price and the kind of securities issuable upon exercise of the Warrant
shall be adjusted from time to time as follows:
3.1 SUBDIVISION OR COMBINATION OF SHARES (STOCK SPLITS). If the Company
at any time effects a subdivision or combination of the outstanding Common Stock
(through a stock split or otherwise), the number of shares of Warrant Shares
shall be increased, in the case of a subdivision, or the number of shares of
Warrant Shares shall be decreased, in the case of a combination, in the same
proportions as the Common Stock is subdivided or combined, in each case
effective automatically upon, and simultaneously with, the effectiveness of the
subdivision or combination which gives rise to the adjustment.
3.2 STOCK DIVIDENDS. If the Company at any time pays a dividend, or
makes any other distribution, to holders of Common Stock payable in shares of
Common Stock, or fixes a record date for the determination of holders of Common
Stock entitled to receive a dividend or other distribution payable in shares of
Common Stock, then the number of shares of Warrant Shares in effect immediately
prior to such action shall be proportionately increased so that the Holder
hereof may receive upon exercise of the Warrant the aggregate number of shares
of Common Stock which he or it would have owned immediately following such
action if the Warrant had been exercised immediately prior to such action. The
adjustment shall become effective immediately as of the date the Company shall
take a record of the holders of its Common Stock for the purpose of receiving
such dividend or distribution (or if no such record is taken, as of the
effectiveness of such dividend or distribution).
3.3 RECLASSIFICATION, CONSOLIDATION OR MERGER. If at any time, as a result
of:
(a) a capital reorganization or reclassification (other than a
subdivision, combination or dividend provided for elsewhere in this Section 3),
or
(b) a merger or consolidation of the Company with another corporation
(whether or not the Company is the surviving corporation), the Common Stock
issuable upon exercise of the Warrants shall be changed into or exchanged for
the same or a different number of shares of any class or classes of stock of the
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Company or any other corporation, or other securities convertible into such
shares, then, as a part of such reorganization, reclassification, merger or
consolidation, appropriate adjustments shall be made in the terms of the
Warrants (or of any securities into which the Warrants are exercised or for
which the Warrants are exchanged), so that:
(y) the Holders of Warrants or of such substitute securities shall
thereafter be entitled to receive, upon exercise of the Warrants or
of such substitute securities, the kind and amount of shares of
stock, other securities, money and property which such Holders would
have received at the time of such capital reorganization,
reclassification, merger, or consolidation, if such Holders had
exercised their Warrants immediately prior to such capital
reorganization, reclassification, merger, or consolidation, and
(z) the Warrants or such substitute securities shall thereafter be
adjusted on terms as nearly equivalent as may be practicable to the
adjustments theretofore provided in this Section 3.3.
3.4 OTHER ACTION AFFECTING COMMON STOCK. If at any time the Company
takes any action affecting its Common Stock, other than an action described in
any of Sections 3.1 - 3.3 which, in the opinion of the Board of Directors of the
Company (the "BOARD"), would have an adverse effect upon the exercise rights of
the Warrants, the Warrant Exercise Price or the kind of securities issuable upon
exercise of the Warrants, or both, shall be adjusted in such manner and at such
time as the Board may in good faith determine to be equitable in the
circumstances; provided, however, that the purpose of this Section is to prevent
the Company from taking any action which has the effect of diluting the number
of shares of Warrant Shares issuable upon exercise of this Warrant.
3.5 NOTICE OF ADJUSTMENT EVENTS. Whenever the Company contemplates the
occurrence of an event which would give rise to adjustments under this Section
3, the Company shall mail to each Warrant Holder, at least 20 days prior to the
record date with respect to such event or, if no record date shall be
established, at least 20 days prior to such event, a notice specifying (i) the
nature of the contemplated event, and (ii) the date on which any such record is
to be taken for the purpose of such event, and (iii) the date on which such
event is expected to become effective, and (iv) the time, if any is to be fixed,
when the holders of record of Common Stock (or other securities) shall be
entitled to exchange their shares of Common Stock (or other securities) for
securities or other property deliverable in connection with such event.
3.6 NOTICE OF ADJUSTMENTS. Whenever the kind or number of securities
issuable upon exercise of the Warrants, or both, shall be adjusted pursuant to
Section 3, the Company shall deliver a certificate signed by its Chief Executive
Officer and by its Chief Financial Officer, setting forth, in reasonable detail,
the event requiring the adjustment, the amount of the adjustment, the method by
which such adjustment was calculated (including a description of the basis on
which the Board made any determination hereunder), and the Warrant Exercise
Price and the kind of securities issuable upon exercise of the Warrants after
giving effect to such adjustment, and shall cause copies of such certificate to
be mailed (by first class mail postage prepaid) to each Warrant Holder promptly
after each adjustment.
SECTION 4. RESERVATION OF STOCK, ETC. The Company covenants and agrees that
it will at all times have authorized, reserve and keep available, solely for
issuance and delivery upon the exercise of this Warrant, the number of shares of
Warrant Shares from time to time issuable upon the exercise of this Warrant. The
Company further covenants and agrees that this Warrant is, and any Warrants
issued in substitution for or replacement of this Warrant and all Warrant
Shares, will upon issuance be duly authorized and validly issued and, in the
case of Warrant Shares, upon issuance will be fully paid and non-assessable and
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free from all preemptive rights of any stockholder, and from all taxes, liens
and charges with respect to the issue thereof (other than transfer taxes) and,
if the Common Stock of the Company is then listed on any national securities
exchanges (as defined in the Exchange Act of 1934, as amended (the "EXCHANGE
ACT")) or quoted on NASDAQ, shall be, subject to the restrictions set forth in
Section 5, duly listed or quoted thereon, as the case may be. In the event that
the number of authorized but unissued shares of such Common Stock shall not be
sufficient to effect the exercise of this entire Warrant into Warrant Shares,
then in addition to such other remedies as shall be available to the Holder of
this Warrant, the Company shall promptly take such corporate action as may be
necessary to increase its authorized but unissued shares of such Common Stock to
such number of shares as shall be sufficient for such purpose.
SECTION 5. OWNERSHIP, TRANSFER AND SUBSTITUTION OF WARRANTS.
5.1 OWNERSHIP OF WARRANTS. The Company may treat the person in whose
name any Warrant is registered on the register kept at the principal office of
the Company as the owner and Holder thereof for all purposes, notwithstanding
any notice to the contrary, but in all events recognizing any transfers made in
accordance with the terms of this Warrant.
5.2 TRANSFER AND EXCHANGE OF WARRANTS. Upon the surrender of any
Warrant, properly endorsed, for registration of transfer or for exchange at the
principal office of the Company, the Company at its expense will execute and
deliver to the Holder thereof, upon the order of such Holder, a new Warrant or
Warrants of like tenor, in the name of such Holder or as such Holder may direct,
for such number of shares with respect to each such Warrant, the aggregate
number of shares in any event not to exceed the number of shares for which the
Warrant so surrendered had not been exercised.
5.3 REGISTRATION RIGHTS. THE HOLDER OF THIS WARRANT IS ENTITLED TO
CERTAIN REGISTRATION RIGHTS WITH RESPECT TO THE WARRANT SHARES ISSUABLE UPON
EXERCISE THEREOF. SAID REGISTRATION RIGHTS ARE SET FORTH IN A REGISTRATION
RIGHTS AGREEMENT BY AND BETWEEN THE BUYER AND THE COMPANY. If the registration
statement contemplated in the registration rights agreement is not effective at
the time of any issuance and the shares are not exempt from registration under
Rule 144, the Warrant Shares shall be issued in certificated form and shall bear
the following restrictive legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT
BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF
HOLDER'S COUNSEL, IN A CUSTOMARY FORM, THAT REGISTRATION
IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE
SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER
SAID ACT.
5.4 EXEMPTION FROM REGISTRATION. If an opinion of Buyer's counsel
provides that registration is not required for the proposed exercise or transfer
of this Warrant or the proposed transfer of the Warrant Shares and that the
proposed exercise or transfer in the absence of registration would require the
Company to take any action including executing and filing forms or other
documents with the Securities and Exchange Commission (the "SEC") or any state
securities agency, or delivering to the Holder any form or document in order to
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establish the right of the Holder to effectuate the proposed exercise or
transfer, the Company agrees promptly, at its expense, to take any such action;
and provided, further, that the Company will reimburse the Holder in full for
any expenses (including but not limited to the fees and disbursements of such
counsel, but excluding brokers' commissions) incurred by the Holder or owner of
Warrant Shares on his, her or its behalf in connection with such exercise or
transfer of the Warrant or transfer of Warrant Shares.
SECTION 6. NO RIGHTS OR LIABILITIES AS SHAREHOLDER. Nothing contained in this
Warrant shall be construed as conferring upon the Holder hereof any rights as a
shareholder of the Company or as imposing any liabilities on such holder to
purchase any securities or as a shareholder of the Company, whether such
liabilities are asserted by the Company or by creditors of the Company.
SECTION 7. RULE 144 SALES. At the request of any Holder who proposes to sell
securities in compliance with Rule 144 of the SEC, the Company will (i)
forthwith furnish to such Holder a written statement of compliance with the
filing requirements of the SEC as set forth in Rule 144, as such rules may be
amended from time to time and (ii) make available to the public and such Holder
such information as will enable the Holder to make sales pursuant to Rule 144.
SECTION 8. MISCELLANEOUS.
8.1 AMENDMENT AND WAIVER. This Warrant may be amended with, and only
with, the written consent of the Company and the Holder. Any waiver of any term,
covenant, agreement or condition contained in this Warrant shall not be deemed a
waiver of any other term, covenant, agreement or condition, and any waiver of
any default in any such term, covenant, agreement or condition shall not be
deemed a waiver of any later default thereof or of any default of any other
term, covenant, agreement or condition.
8.2 REPRESENTATIONS AND WARRANTIES TO SURVIVE CLOSING. All
representations, warranties and covenants contained herein shall survive the
execution and delivery of this Warrant and the issuance of any Warrant Shares
upon the exercise hereof.
8.3 SEVERABILITY. In the event that any court or any governmental
authority or agency declares all or any part of any Section of this Warrant to
be unlawful or invalid, such unlawfulness or invalidity shall not serve to
invalidate any other Section of this Warrant, and in the event that only a
portion of any Section is so declared to be unlawful or invalid, such
unlawfulness or invalidity shall not serve to invalidate the balance of such
Section.
8.4 BINDING EFFECT; NO THIRD PARTY BENEFICIARIES. All provisions of this
Warrant shall be binding upon and inure to the benefit of the parties and their
respective heirs, legatees, executors, administrators, legal representatives,
successors, and permitted transferees and assigns. No person other than the
holder of this Warrant and the Company shall have any legal or equitable right,
remedy or claim under or in respect of, this Warrant.
8.5 NOTICES. Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Warrant must be in
writing and will be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one Trading Day after deposit with
a nationally recognized overnight delivery service, in each case properly
addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:
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If to the Company:
CepTor Corporation
000 Xxxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxx
With a copy to:
Xxxxxx Xxxxxxxx Frome
Xxxxxxxxxx & Wolosky LLP
Park Avenue Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 212-451-2222
Attention: Xxxxxx X. Xxxxxx Esq.
If to the Buyer:
Fusion Capital Fund II, LLC
000 Xxxxxxxxxxx Xxxx Xxxxx, Xxxxx 0-000
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxx
If to the Transfer Agent:
American Stock Transfer
& Trust Company
0000 00xx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxxxx
or at such other address and/or facsimile number and/or to the attention of such
other person as the recipient party has specified by written notice given to
each other party three (3) Trading Days prior to the effectiveness of such
change. Written confirmation of receipt (A) given by the recipient of such
notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, and recipient facsimile number or (C) provided by a nationally recognized
overnight delivery service, shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from a nationally recognized overnight delivery
service in accordance with clause (i), (ii) or (iii) above, respectively.
8.6 TAXES, COSTS AND EXPENSES. The Company covenants and agrees that it
will pay when due and payable any and all federal, state and local taxes (other
than income taxes) and any other costs and expenses which may be payable in
respect of the preparation, issuance, delivery, exercise, surrender or transfer
of this Warrant pursuant to the terms of this Warrant or the issuance of any
shares of Warrant Shares as a result thereof. If any suit or action is
instituted or attorneys employed to enforce this Warrant or any part thereof,
the Company promises and agrees to pay all costs and expenses associated
therewith, including reasonable attorneys' fees and court costs.
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8.7 GOVERNING LAW; JURISDICTION; JURY TRIAL. The corporate laws of the
State of Delaware shall govern all issues concerning the relative rights of the
Company and its shareholders. All other questions concerning the construction,
validity, enforcement and interpretation of this Warrant shall be governed by
the internal laws of the State of Illinois, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of Illinois or
any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of Illinois. Each party hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting in
the City of Chicago, for the adjudication of any dispute hereunder or under the
other Transaction Documents or in connection herewith or therewith, or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such
party at the address for such notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT
OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
8.8 LOSS OF WARRANT. Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and (in the case of loss, theft or destruction) of indemnification in
form and substance acceptable to the Company in its reasonable discretion, and
upon surrender and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver a new Warrant of like tenor and date.
8.9 ENTIRE AGREEMENT. This Warrant, the Purchase Agreement and the
Registration Rights Agreement of even date herewith represent the entire
agreement and understanding between the parties concerning the subject matter
hereof and supercede all prior and contemporaneous agreements, understandings,
representations and warranties with respect thereto.
8.10 HEADINGS. The headings used herein are used for convenience only and
are not to be considered in construing or interpreting this Warrant.
COMPANY:
CEPTOR CORPORATION
BY:_______________________
NAME: ____________________
TITLE: _____________________
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WARRANT EXERCISE FORM
---------------------
Date:______________
CepTor Corporation
000 Xxxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxx
Ladies and Gentlemen:The undersigned, being the registered holder of your
Warrant for the purchase of _______________ Warrant Shares issued ____________,
accompanying this letter, hereby irrevocably exercises such Warrant for
____________ shares of Warrant Shares (as defined in said Warrant), and herewith
makes payment therefor [via "cash-less exercise"] in accordance with the
Warrant, and requests that such shares of Warrant Shares be issued in the name
of, and delivered to FUSION CAPITAL FUND II, LLC, at the address shown below the
signature line hereof.
If said number of shares shall not be all the shares issuable upon exercise of
the attached Warrant, a new Warrant is to be issued in the name of the
undersigned for the balance remaining of such shares less any fraction of a
share paid in cash.
FUSION CAPITAL FUND II, LLC
BY: FUSION CAPITAL PARTNERS, LLC
By:_________________________
Name:
Title:
Fusion Capital Fund II, LLC
000 Xxxxxxxxxxx Xxxx Xxxxx, Xxxxx 0-000
Xxxxxxx, XX 00000
