UWINK, INC. WARRANT
EXHIBIT
4.19
Dated
November 7, 2007
WARRANT
THIS
CERTIFIES that, for value received, ____________ and its registered assigns
(the
“HOLDER”), is entitled to subscribe for and purchase from uWINK, INC., a
Delaware corporation (the “COMPANY”), up to _______ fully paid and nonassessable
shares (the “WARRANT SHARES”) of common stock, $.001 par value, of the Company
(the “COMMON STOCK”) at an exercise price of $[2.40] per share (the “EXERCISE
PRICE”) subject to adjustment as provided in Section 3 hereof, at any time or
from time to time during the period (the “EXERCISE PERIOD”) commencing on the
date hereof and ending on the five year anniversary of the date hereof (the
“EXPIRATION DATE”). At 6:30 p.m., New York City time on the Expiration Date, the
portion of this warrant not exercised prior thereto shall be and become void
and
of no value.
This
Warrant is issued pursuant to that certain Subscription Agreement dated November
___, 2007 between the Company and the Investor (the “SUBSCRIPTION
AGREEMENT. This warrant is one of several warrants that in aggregate
enable the respective holders thereof to acquire 5,191,750 shares of the Common
Stock (hereinafter collectively referred to as the “WARRANTS”).
Notwithstanding
anything herein to the contrary, if, and only to the extent that, the Holder
is
a placement agent in connection with the offering contemplated by the Placement
Agency Agreement, this Warrant and the securities issuable upon exercise hereof
may not be sold, transferred, assigned, pledged, or hypothecated, or be the
subject of any hedging, short sale, derivative, put, or call transaction that
would result in the effective economic disposition of such securities by any
person for a period of six (6) months immediately following the date of
effectiveness of the public offering of the Company’s securities pursuant to
Registration Statement No. 333-144029, as amended, as filed with the Securities
and Exchange Commission, except in accordance with NASD Rule
2710(g)(2).
SECTION
1. EXERCISE OF WARRANT.
(a) The
rights
represented by this Warrant may be exercised by the Holder hereof, in whole
or
in part, at any time and from time to time during the Exercise Period, by (i)
delivery of written notice to the Company in the form attached as Exhibit A
hereto (the “EXERCISE NOTICE”) at least five (5) Trading Days (defined below)
prior to the date of exercise of the Warrant, (ii) the surrender of this Warrant
(properly endorsed) at the office of the Company, or at such other agency or
office of the Company in the United States of America as it may designate by
notice in writing to the Holder hereof at the address of such Holder appearing
on the books of the Company and (iii) delivery payment to the Company of the
Exercise Price for the Warrant Shares being purchased. In the event of the
exercise of the rights represented by this Warrant, a certificate or
certificates for the Warrant Shares so purchased, registered in the name of
the
Holder, and if such exercise shall not have been for all Warrant Shares, a
new
Warrant, registered in the name of the Holder hereof, of like tenor to this
Warrant, shall be delivered to the Holder hereof within a reasonable time,
not
exceeding five (5) Trading Days, after the rights represented by this Warrant
shall have been so exercised. The person in whose name any certificate for
Warrant Shares is issued upon exercise of this Warrant shall for all purposes
be
deemed to have become the holder of record of such Warrant Shares on the date
on
which the Warrant was surrendered and payment of the Exercise Price and any
applicable taxes was made, irrespective of the date of delivery of such
certificate, except that, if the date of such surrender and payment is a date
when the stock transfer books of the Company are closed, such person shall
be
deemed to have become the holder of such Warrant Shares at the close of business
on the next succeeding date on which the stock transfer books are
open.
1
(b) The
Company
shall, upon request of the Holder, use its best efforts to deliver Warrant
Shares hereunder electronically through the facilities of The Depository Trust
Corporation or another established clearing corporation performing similar
functions.
(c) For
purposes
of this agreement, “TRADING DAY” means: (i) any day on which the Common Stock is
listed and traded on the American Stock Exchange (“AMEX”), or (ii) if the Common
Stock is not then listed and traded on AMEX, then a day on which trading occurs
on any of the New York Stock Exchange, any market which is a part of the Nasdaq
Stock Market or the OTC Bulletin Board (each, an “ELIGIBLE MARKET”) (or any
successor thereto), or (iii) if trading ceases to occur on an Eligible Market
(or any successor thereto), any day other than Saturday, Sunday or other day
on
which commercial banks in New York City are authorized or required by law to
remain closed.
(d) In
addition
to any other rights available to a Holder, if the Company fails to deliver
to
the Holder a certificate representing Warrant Shares by the third (3rd) Trading
Day after the date on which delivery of such certificate is required by this
Warrant, and if after such third (3rd) Trading Day the Holder purchases (in
an
open market transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a bona fide sale by the Holder of the Warrant Shares that the
Holder anticipated receiving from the Company (a “BUY-IN”), then the Company
shall, within three (3) Trading Days after the Holder’s request and in the
Holder’s discretion, either: (i) pay cash to the Holder in an amount equal to
the closing price of the Common Stock, as listed on the OTC Bulletin Board
or
any national exchange on which the Common Stock is then listed (the “Closing
Price”), on the date of such purchase by the Holder (plus brokerage commissions,
if any) for the shares of Common Stock so purchased less the Exercise Price
(the
“BUY-IN PRICE”), at which point the Company’s obligation to deliver such
certificate (and to issue such Common Stock) shall terminate, or (ii) promptly
honor its obligation to deliver to the Holder a certificate or certificates
representing such Common Stock and pay cash to the Holder in an amount equal
to
the excess (if any) of the Buy-In Price over the product of: (A) such number
of
shares of Common Stock, times (B) the Closing Price on the date of the event
giving rise to the Company’s obligation to deliver such
certificate.
(e) The
Company’s
obligations to issue and deliver Warrant Shares in accordance with the terms
hereof are absolute and unconditional upon satisfaction by the Holder of the
conditions to exercise this Warrant set forth in sub-section (a) above,
irrespective of any action or inaction by the Holder to enforce the same, any
waiver or consent with respect to any provision hereof, the recovery of any
judgment against any person or any action to enforce the same, or any setoff,
counterclaim, recoupment, limitation or termination, or any breach or alleged
breach by the Holder or any other person of any obligation to the Company (other
than the Holder’s obligations with respect to the exercise hereof in accordance
with sub-section (a) above) or any violation or alleged violation of law by
the
Holder or any other person, and irrespective of any other circumstance which
might otherwise limit such obligation of the Company to the Holder in connection
with the issuance of Warrant Shares. Nothing herein shall limit a Holder’s right
to pursue any other remedies available to it hereunder, at law or in equity
including, without limitation, a decree of specific performance and/or
injunctive relief with respect to the Company’s failure to timely deliver
certificates representing shares of Common Stock upon exercise of the Warrant
as
required pursuant to the terms hereof.
2
SECTION 2. PAYMENT OF EXERCISE PRICE.
The
Holder shall pay the Exercise Price in immediately available funds; PROVIDED,
HOWEVER, that if at any time there is no effective registration statement
registering the issuance of the Warrant Shares or no current prospectus
available for, the resale of the Warrant Shares by the Holder, the Holder may
satisfy its obligation to pay the Exercise Price through a “cashless exercise,”
in which event the Company shall issue to the Holder the number of Warrant
Shares determined as follows:
X
= Y
[(A-B)/A]
where:
X
= the
number of Warrant Shares to be issued to the Holder.
Y
= the
number of Warrant Shares with respect to which this Warrant is being
exercised.
A
= the
arithmetic average of the Closing Prices for the five Trading Days immediately
prior to (but not including) the Exercise Date.
B
= the
Exercise Price.
SECTION
3. ADJUSTMENT OF EXERCISE PRICE. The Exercise Price and number of
Warrant Shares issuable upon exercise of this Warrant are subject to adjustment
from time to time as set forth in this Section 3.
(a) STOCK
DIVIDENDS AND SPLITS. If the Company, at any time while this Warrant is
outstanding: (i) pays a stock dividend on its Common Stock or otherwise makes
a
distribution on any class of capital stock that is payable in shares of Common
Stock, (ii) subdivides outstanding shares of Common Stock into a larger number
of shares, or (iii) combines outstanding shares of Common Stock into a smaller
number of shares, then in each such case the Exercise Price shall be multiplied
by a fraction of which the numerator shall be the number of shares of Common
Stock outstanding immediately before such event and of which the denominator
shall be the number of shares of Common Stock outstanding immediately after
such
event. Any adjustment made pursuant to clause (i) of this paragraph shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution, and any
adjustment pursuant to clause (ii) or (iii) of this paragraph shall become
effective immediately after the effective date of such subdivision or
combination.
3
(b) FUNDAMENTAL
TRANSACTIONS. If, at any time while this Warrant is outstanding: (i) the Company
effects any merger or consolidation of the Company with or into another person
and the Company is not the surviving party, (ii) the Company effects any sale
of
all or substantially all of its assets in one or a series of related
transactions, (iii) any tender offer or exchange offer (whether by the Company
or another person) is completed pursuant to which holders of Common Stock are
permitted to tender or exchange their shares for other securities, cash or
property, or (iv) the Company effects any reclassification of the Common Stock
or any compulsory share exchange pursuant to which the Common Stock is
effectively converted into or exchanged for other securities, cash or property
(other than as a result of a subdivision or combination of shares of Common
Stock covered by Section 3(a) above) (in any such case, a “FUNDAMENTAL
TRANSACTION”), then the Holder shall have the right thereafter to receive, upon
exercise of this Warrant, the same amount and kind of securities, cash or
property as it would have been entitled to receive upon the occurrence of such
Fundamental Transaction if it had been, immediately prior to such Fundamental
Transaction, the holder of the number of Warrant Shares then issuable upon
exercise in full of this Warrant (the “ALTERNATE CONSIDERATION”). The
aggregate Exercise Price for this Warrant will not be affected by any such
Fundamental Transaction, but the Company shall apportion such aggregate Exercise
Price among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration.
If
holders of Common Stock are given any choice as to the securities, cash or
property to be received in a Fundamental Transaction, then the Holder shall
be
given the same choice as to the Alternate Consideration it receives upon any
exercise of this Warrant following such Fundamental Transaction. In the event
of
a Fundamental Transaction, the Company shall or shall cause the successor or
purchasing person, as the case may be, to execute with the Holder a written
agreement providing that:
|
|
(i)
|
this
Warrant shall thereafter entitle the Holder to purchase the Alternate
Consideration in accordance with this Section
3(b),
|
|
|
(ii)
|
in
the case of any such successor or purchasing person, upon such
consolidation, merger, statutory exchange, combination, sale or conveyance
such successor or purchasing person shall be jointly and severally
liable
with the Company for the performance of all of the Company’s obligations
under this Warrant and the Placement Agency Agreement,
and
|
|
|
(iii)
|
if
registration or qualification is required under the Exchange Act
or
applicable state law for the public resale by the Holder of shares
of
stock and other securities so issuable upon exercise of this Warrant,
all
rights applicable to registration of the Common Stock issuable upon
exercise of this Warrant shall apply to the Alternate
Consideration.
|
4
If,
in
the case of any Fundamental Transaction, the Alternate Consideration includes
shares of stock, other securities, other property or assets of a person other
than the Company or any such successor or purchasing person, as the case may
be,
in such Fundamental Transaction, then the Company shall cause such written
agreement to also be executed by such other person and to contain such
additional provisions to protect the interests of the Holder as the Board of
Directors of the Company shall reasonably consider necessary by reason of the
foregoing. At the Holder’s request, any successor to the Company or surviving
entity in such Fundamental Transaction shall issue to the Holder a new warrant
consistent with the foregoing provisions and evidencing the Holder’s right to
purchase the Alternate Consideration for the aggregate Exercise Price upon
exercise thereof. The Company shall cause the terms of any agreement pursuant
to
which a Fundamental Transaction is effected to include terms requiring any
such
successor or surviving entity to comply with the provisions of this paragraph
(c) and insuring that the Warrant (or any such replacement security) will be
similarly adjusted upon any subsequent transaction analogous to a Fundamental
Transaction. If any Fundamental Transaction constitutes or results in a “Rule
13e-3 transaction” as defined in Rule 13e-3 under the Exchange Act with respect
to the Company in which the consideration issued consists principally of cash
or
stock in a non-public company, the Company (or any such successor or surviving
entity) will, upon request of the Holder, purchase the Warrant from the Holder
for a purchase price, payable in cash within five (5) Trading Days after such
request (or, if later, on the effective date of the Fundamental Transaction),
equal to the Black-Scholes value of the remaining unexercised portion of this
Warrant on the date of such request.
(c) ADJUSTMENTS
FOR OTHER DISTRIBUTIONS. In the event the Company shall declare a
distribution payable in securities of other Persons, evidences of indebtedness
issued by the Company or other Persons, assets (excluding cash dividends or
distributions to the holders of Common Stock paid out of current or retained
earnings and declared by the Company’s Board of Directors) or options or rights
not referred to in Sections 3(a) or (b), then, in each such case, upon exercise
of this Warrant within ninety (90) days of such distribution, the Holder shall
be entitled to a proportionate share of any such distribution as though the
Holder was the actual record holder of the number of Warrant Shares as of the
record date fixed for the determination of the holders of Common Stock entitled
to receive such distribution.
(d) CALCULATIONS.
All calculations under this Section 3 shall be made to the nearest cent or
rounded up to the nearest whole share, as applicable. The number of shares
of
Common Stock outstanding at any given time shall not include shares owned or
held by or for the account of the Company, and the disposition of any such
shares shall be considered an issue or sale of Common Stock.
(e) NOTICE
OF
ADJUSTMENTS. Upon the occurrence of each adjustment pursuant to this Section
3,
the Company at its expense will promptly compute such adjustment in accordance
with the terms of this Warrant and prepare a certificate setting forth such
adjustment, including a statement of the adjusted Exercise Price and adjusted
number or type of Warrant Shares or other securities issuable upon exercise
of
this Warrant (as applicable), describing the transactions giving rise to such
adjustments and showing in detail the facts upon which such adjustment is based.
Upon written request, the Company will promptly deliver a copy of each such
certificate to the Holder and to the Company’s transfer agent.
5
SECTION 4. ADJUSTMENT OF WARRANT SHARES.
Upon
each
adjustment of the Exercise Price as provided in Section 3, the Holder shall
thereafter be entitled to subscribe for and purchase, at the Exercise Price
resulting from such adjustment, the number of Warrant Shares equal to the
product of (i) the number of Warrant Shares existing prior to such adjustment
and (ii) the quotient obtained by dividing (A) the Exercise Price existing
prior
to such adjustment by (B) the new Exercise Price resulting from such adjustment.
No fractional shares of capital stock of the Company shall be issued as a result
of any such adjustment, and any fractional shares resulting from the
computations pursuant to this paragraph shall be rounded up to the nearest
whole
share.
SECTION
5. REDEMPTION.
(a) REDEMPTION. Not
less than all of the outstanding Warrants may be redeemed, at the option of
the
Company, prior to the Expiration Date, at the office of the Company, upon the
notice referred to in Section 5(b) below, at the price of $0.05 per Warrant
(“REDEMPTION PRICE”), at any time the last sale price of the Common Stock has
been at least two hundred percent (200%) above the then effective exercise
price of the Warrants on each of the twenty (20) consecutive Trading Days
ending within three business days prior to the date on which notice of
redemption is given (the satisfaction of the applicable foregoing condition
shall be certified by the Company).
(b) DATE
FIXED
FOR, AND NOTICE OF, REDEMPTION. In the event the Company shall elect to redeem
the outstanding Warrants, the Company shall fix a date for the redemption.
Notice of redemption shall be mailed by first class mail, postage prepaid,
by
the Company or the Company’s agent at its direction not less than 30 days from
the date fixed for redemption to the registered holders of the outstanding
Warrants to be redeemed at their last address as they shall appear on the
registration books. Any notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the registered
holder received such notice.
(c) EXERCISE
AFTER NOTICE OF REDEMPTION. The outstanding Warrants may be exercised in
accordance with Section 1 of this Agreement at any time after notice of
redemption shall have been given by the Company pursuant to Section 5(b)
hereof and prior to the date fixed for redemption. On and after the redemption
date, the record holder of the outstanding Warrants shall have no further rights
except to receive, upon surrender of the outstanding Warrants, the Redemption
Price.
(d) OUTSTANDING
WARRANTS ONLY. The Company understands that the redemption rights provided
for
by this Section 5 apply only to outstanding Warrants. To the extent a
person holds rights to purchase Warrants, such purchase rights shall not be
extinguished by redemption. However, once such purchase rights are exercised,
the Company may redeem the Warrants issued upon such exercise provided that
the
criteria for redemption set forth in this Section 5 are then
satisfied.
6
SECTION
6. NO STOCKHOLDER RIGHTS.
This
Warrant shall not entitle the Holder hereof to any voting rights or other rights
as a stockholder of the Company.
SECTION
7. COVENANTS OF THE COMPANY
(a) The
Company
shall at all times have authorized and reserved, or shall authorize and reserve,
a sufficient number of shares of its Common Stock to provide for the exercise
of
the rights represented by this Warrant.
(b) The
Company
shall (i) keep a registration statement relating to the Warrant Shares or their
resale continuously effective until the Expiration Date (including such day),
and (ii) have a sufficient number of authorized but unissued and otherwise
unreserved shares of Common Stock available to issue the Warrant Shares pursuant
to a registration statement upon exercise of the Warrant.
SECTION
8. ASSIGNMENT, TRANSFER OF WARRANT.
This
Warrant may be assigned by the Holder by delivery of a completed Form of
Assignment attached as Exhibit B hereto. This Warrant and all rights hereunder
are transferable, in whole, or in part, at the agency or office of the Company
or at the office of any warrant agent appointed by the Company, by the Holder
hereof in person or by duly authorized attorney, upon surrender of this Warrant
properly endorsed. Each taker and holder of this Warrant, by taking or holding
the same, consents and agrees that this Warrant, when endorsed, in blank, shall
be deemed negotiable, and, when so endorsed the holder hereof may be treated
by
the Company and all other persons dealing with this Warrant as the absolute
owner hereof for any purposes and as the person entitled to exercise the rights
represented by this Warrant, or to the transfer hereof on the books of the
Company, any notice to the contrary notwithstanding; but until each transfer
on
such books, the Company may treat the registered holder hereof as the owner
hereof for all purposes.
SECTION
9. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT.
If
this
Warrant is lost, stolen, mutilated or destroyed, the Company may, on such terms
as to indemnity or otherwise as it may in its discretion impose (which shall,
in
the case of a mutilated Warrant, include the surrender thereof), issue a new
Warrant of like denomination and tenor as the Warrant so lost, stolen, mutilated
or destroyed. Any such new Warrant shall constitute an original contractual
obligation of the Company, whether or not the allegedly lost, stolen, mutilated
or destroyed Warrant shall be at any time enforceable by anyone.
SECTION
10. NOTICES.
All
notices, advices and communications to be given or otherwise made to any party
to this Agreement shall be deemed to be sufficient if contained in a written
instrument delivered in person or by facsimile transmission or duly sent by
first class registered or certified mail, return receipt requested, postage
prepaid, or by overnight courier, or by electronic mail, with a copy thereof
to
be sent by mail (as aforesaid) within 24 hours of such electronic mail,
addressed to such party as provided in the Subscription Agreement or to such
other address as the party to whom notice is to be given may have furnished
to
the other parties hereto in writing in accordance herewith. Any such notice
or
communication shall be deemed to have been delivered and received (i) in the
case of personal delivery or delivery by facsimile transmission, on the date
of
such delivery, (ii) in the case of nationally-recognized overnight courier,
on
the next business day after the date when sent and (ii) in the case of mailing,
on the third business day following that on which the piece of mail containing
such communication is posted. As used in this Section 12, “business day” shall
mean any day other than a day on which banking institutions in the State of
New
York are legally closed for business.
7
SECTION 12. BINDING EFFECT ON SUCCESSORS.
Subject
to the provisions hereof relating to Fundamental Transactions, this Warrant
shall be binding upon any corporation succeeding the Company by merger,
consolidation or acquisition of all or substantially all of the Company’s
assets.
SECTION
13. DESCRIPTIVE HEADINGS AND GOVERNING LAW.
(a) The
description headings of the several sections and paragraphs of this Warrant
are
inserted for convenience only and do not constitute a part of this Warrant.
This
Warrant shall be construed and enforced in accordance with, and the rights
of
the parties shall be governed by, the laws of the State of New York (without
giving effect to conflicts of law principles thereof).
(b) The
Company
will not, by amendment of its governing documents 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 this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of
all
such action as may be necessary or appropriate in order to protect the rights
of
the Holder against impairment. Without limiting the generality of the foregoing,
the Company: (i) will not increase the par value of any Warrant Shares above
the
amount payable therefor on such exercise, (ii) will take all such action as
may
be reasonably necessary or appropriate in order that the Company may validly
and
legally issue fully paid and nonassessable Warrant Shares on the exercise of
this Warrant, and (iii) will not close its shareholder books or records in
any
manner which interferes with the timely exercise of this Warrant.
(c) EACH
PARTY
AGREES THAT ALL LEGAL PROCEEDINGS CONCERNING THE INTERPRETATIONS, ENFORCEMENT
AND DEFENSE OF THE TRANSACTIONS CONTEMPLATED BY ANY OF THE TRANSACTION DOCUMENTS
(WHETHER BROUGHT AGAINST A PARTY HERETO OR ITS RESPECTIVE AFFILIATES, DIRECTORS,
OFFICERS, SHAREHOLDERS, EMPLOYEES OR AGENTS) SHALL BE COMMENCED EXCLUSIVELY
IN
THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF
MANHATTAN. EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK,
BOROUGH OF MANHATTAN FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED
HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY OF THIS WARRANT),
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 IMPROPER. EACH PARTY
HERETO 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 VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE
OF
DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS
WARRANT 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 HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS WARRANT OR ANY OF THE TRANSACTION DOCUMENTS
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. IF EITHER PARTY SHALL
COMMENCE AN ACTION OR PROCEEDING TO ENFORCE ANY PROVISIONS OF THIS WARRANT
OR
ANY TRANSACTION DOCUMENT, THEN THE PREVAILING PARTY IN SUCH ACTION OR PROCEEDING
SHALL BE REIMBURSED BY THE OTHER PARTY FOR ITS REASONABLE ATTORNEYS FEES AND
OTHER REASONABLE COSTS AND EXPENSES INCURRED WITH THE INVESTIGATION, PREPARATION
AND PROSECUTION OF SUCH ACTION OR PROCEEDING.
8
SECTION 14. FRACTIONAL SHARES.
No
fractional shares shall be issued upon exercise of this Warrant. The Company
shall, in lieu of issuing any fractional share, pay the Holder entitled to
such
fraction a sum in cash equal to such fraction multiplied by the then effective
Exercise Price.
SECTION
15. SEVERABILITY.
In
case
any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
[SIGNATURE
PAGE FOLLOWS]
9
IN
WITNESS WHEREOF, the undersigned has caused this Warrant to be executed by
its
duly authorized officer as of the date first above written.
| UWINK, INC. | |
|
By:
__________________________________
Name:
Title:
|
10
EXHIBIT
A
FORM
OF
EXERCISE NOTICE
(To
be
executed by the Holder to exercise the right to purchase shares of Common Stock
under the foregoing Warrant)
To: uWink,
Inc.
The
undersigned is the Holder of Warrant No. _______ (the “Warrant”) issued by
uWink, Inc., a Delaware corporation (the “Company”). Capitalized terms used
herein and not otherwise defined have the respective meanings set forth in
the
Warrant.
1. The
Warrant is currently exercisable to purchase a total
of ______________ Warrant Shares.
2. The
undersigned Holder hereby exercises its right to
purchase _______________ Warrant Shares pursuant to the
Warrant.
3. The
Holder intends that payment of the Exercise Price shall be made as (check
one):
__________ “Cash
Exercise” under Section 2
__________ “Cashless
Exercise” under Section 2 (if permitted)
4. If
the holder has elected a Cash Exercise under Section 2 (if permitted), the
holder shall pay the sum of $____________ to the Company in accordance with
the
terms of the Warrant.
5. Pursuant
to this exercise, the Company shall deliver to the holder _______________
Warrant Shares in accordance with the terms of the Warrant.
6. Following
this exercise, the Warrant shall be exercisable to purchase a total of
______________ Warrant Shares.
Dated: ,
| Name of Holder (Print) | |
|
By:
Name:
Title:
|
(Signature
must conform in all respects to name of holder as specified on the face of
the
Warrant)
11
EXHIBIT
B
FORM
OF
ASSIGNMENT
[To
be
completed and 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 ____________ shares of Common Stock of uWink, Inc. to which the within
Warrant relates and appoints ________________ attorney to transfer said right
on
the books of uWink, Inc. with full power of substitution in the
premises.
Dated: ,
(Signature
must conform in all respects to name of holder as specified
on the face of the Warrant)
Address
of Transferee
In
the
presence of:
12
