THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED HEREUNDER MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE
SECURITIES AND RESTRICTING THEIR TRANSFER OR SALE MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD HEREOF TO THE SECRETARY OF THE
COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.
WARRANT TO PURCHASE COMMON STOCK
OF
XXXXXXXXXXX.XXX, INC.
In consideration of the sum of ten dollars ($10.00) previously paid to
XXXXXXXXXXX.XXX, INC., a Nevada corporation (the "Company"), receipt and
sufficiency of which are hereby acknowledged, this certifies that, for value
received, C3 Capital, LLC or its registered assigns ("Holder") is entitled,
subject to the terms and conditions set forth below, to purchase from the
Company, in whole or in part, that number of fully paid and non-assessable
shares of the common stock, par value $0.01 per share, of the Company (the
"Warrant Shares") as set forth in Section 2 below and at a purchase price per
share (the "Exercise Price") as set forth in Section 2 below. The term "Warrant"
as used herein shall mean this Warrant, and any warrants delivered in
substitution or exchange therefor as provided herein.
1. TERM OF WARRANT; PURPOSE; VESTING.
(a) Subject to the terms and conditions set forth herein, this Warrant
shall be exercisable in accordance with the provisions contained in Section
3 hereof until 5:00 p.m., Pacific time, December 31, 2005 (the "Exercise
Period"), and shall be void thereafter.
(b) This Warrant is issued as payment by the Company to the initial
Holder under a Referral Agreement between the Company and initial Holder,
dated January 26, 2001 ("Agreement").
(c) The right to purchase Warrant Shares pursuant to this Warrant
shall vest and become exercisable during the Exercise Period in accordance
with the following schedule:
Upon the Company collecting Qualified Revenue (defined in the Agreement),
other than Qualified Revenue referred to and covered by that certain other
Warrant issued simultaneously herewith pursuant to the Agreement, which provides
an exercise price of $11.00 per share, in the amounts set forth below, the
number of Warrant Shares indicated shall vest and become exercisable as follows:
Qualified Revenue Warrant Shares Vesting
-------------------------------- ------------------------------
Additional Cumulative Additional Cumulative
---------- ---------- ---------- ----------
$3,375,000 $3,375,000 75,000 75,000
$1,125,000 $4,500,000 25,000 100,000
$1,125,000 $5,625,000 25,000 125,000
$1,125,000 $6,750,000 25,000 150,000
$6,750,000 $13,500,000 100,000 250,000
$13,500,000 $27,000,000 100,000 350,000
$27,000,000 $54,000,000 100,000 450,000
$54,000,000 $108,000,000 100,000 550,000
(d) The vesting calculation under Section 1(c) shall be calculated
each consecutive fiscal quarter of the Company, beginning with the fiscal
quarter ended December 31, 2000 and ending with the fiscal quarter ended
September 30, 2005. This Warrant shall become exercisable as to the Warrant
Shares vesting pursuant to
1
Section 1(c) on the last day of the fiscal quarter in which Xxxxxx has
earned the vesting of all Warrant Shares subject to Section 1(c). The
Company shall provide Holder with written notice within 45 days after the
end of each fiscal quarter of the number of Warrant Shares vesting during
such fiscal quarter under Section 1(c) as set forth in the Agreement. The
vesting calculations shall, subject to the provisions of this Agreement
with respect thereto (including but not limited to provisions regarding
arbitration of disputes), be made by the Company in good faith and its
determinations shall be final and binding on the parties.
2. NUMBER OF SHARES, EXERCISE PRICE.
(a) This Warrant shall be exercisable for up to five hundred fifty
thousand (550,000) shares of common stock of the Company vested in
accordance with Section 1(c).
(b) All Warrant Shares vested pursuant to Section 1(c) for Qualified
Revenue shall be exercisable at an exercise price determined as of the
dates of vesting with respect to such Warrant Shares equal to the average
of the opening price and closing price on such day for shares of the
Company's common stock on the Nasdaq National Market (as applicable, the
"Exercise Price"), as adjusted to reflect any stock dividend, stock split
or other conversion of the number of shares of the Company into a different
number of shares, however denominated.
3. EXERCISE OF WARRANT.
(a) This Warrant may be exercised by the Holder by the surrender of
this Warrant to the Company, with the Notice of Exercise annexed hereto
duly completed and executed on behalf of the Holder, at the office of the
Company (or such other office or agency of the Company as it may designate
by notice in writing to the Holder at the address of the Holder appearing
on the books of the Company) during the Exercise Period and: (x) the
delivery of payment to the Company, for the account of the Company, by
cash, wire transfer of immediately available funds to a bank account
specified by the Company, or by certified or bank cashier's check, of the
Exercise Price for the number of Warrant Shares specified in the Exercise
Form in lawful money of the United States of America or (y) pursuant to a
net issuance election in accordance with Section 3(b) hereof. The Company
agrees that such Warrant Shares shall be deemed to be issued to the Holder
as the record holder of such Warrant Shares as of the close of business on
the date on which this Warrant shall have been surrendered and payment made
for the Warrant Shares as aforesaid. A stock certificate or certificates
for the Warrant Shares specified in the Exercise Form shall be delivered to
the Holder as promptly as practicable, and in any event within ten (10)
days, thereafter. If this Warrant shall have been exercised only in part,
the Company shall, at the time of delivery of the stock certificate or
certificates, deliver to the Holder a new Warrant evidencing the rights to
purchase the remaining Warrant Shares, which new Warrant shall in all other
respects be identical with this Warrant. No adjustments shall be made on
Warrant Shares issuable on the exercise of this Warrant for any cash
dividends paid or payable to holders of record of common stock prior to the
date as of which the Holder shall be deemed to be the record holder of such
Warrant Shares. However, the number of Warrant Shares shall be adjusted to
reflect any stock dividend, stock split or other conversion of the number
of shares of the Company into a different number of shares, however
denominated.
(b) In lieu of exercising this Warrant pursuant to Section 3(a), the
Holder may elect to receive, without the payment by the Holder of any
additional consideration, shares equal to the value of this Warrant or any
portion hereof by the surrender of this Warrant or such portion to the
Company, with the Net Issue Election Notice annexed hereto duly executed,
at the office of the Company. Thereupon, the Company shall issue to the
Holder such number of fully paid and nonassessable shares of Common Stock
as is computed using the following formula:
X = Y (A-B)/A, where:
X = the number of shares to be issued to the Holder pursuant to
this Section 3(b).
Y = the number of shares of Common Stock otherwise issuable under
this Warrant (as adjusted to the date of such calculation).
2
A = the closing stock price of one share of the Company's common
stock as reported by the Nasdaq National Market the business day
immediately prior to the Exercise Date (as defined below).
B = the Exercise Price in effect under this Warrant at the time
the net issue election is made pursuant to this Section 3(b).
This Warrant shall automatically be deemed to be exercised in full pursuant
to the provisions of this Section 3, without any further action on behalf
of the Holder, immediately prior to the time this Warrant would otherwise
expire pursuant to the terms of this Warrant.
(c) This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above (the "Exercise Date"), and the person entitled to receive
the shares of common stock issuable upon such exercise shall be treated for
all purposes as the holder of record of such shares as of the close of
business on such date. As promptly as practicable on or after such date and
in any event within three (3) business days thereafter, the Company at its
expense shall issue and deliver to the person or persons entitled to
receive the same a certificate or certificates for the number of shares
issuable upon such exercise. In the event that this Warrant is exercised in
part, the Company at its expense will execute and deliver a new Warrant of
like tenor exercisable for the number of shares for which this Warrant may
then be exercised.
4. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. In lieu of
any fractional share to which the Holder would otherwise be entitled, the
Company shall make a cash payment equal to the Exercise Price multiplied by such
fraction.
5. REPLACEMENT OF WARRANT. On receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and, in
the case of loss, theft or destruction, on delivery of an indemnity agreement
reasonably satisfactory in form and substance to the Company or, in the case of
mutilation, on surrender and cancellation of this Warrant, the Company at its
expense shall execute and deliver, in lieu of this Warrant, a new warrant of
like tenor and amount.
6. RIGHTS OF STOCKHOLDERS. The Holder of this Warrant shall not be entitled to
vote or receive dividends or be deemed the holder of common stock nor shall
anything contained herein be construed to confer upon the Holder, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of stock, change
of par value, or change of stock to no par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until the Warrant shall have been
exercised as provided herein.
7. TRANSFER OF WARRANT.
(a) WARRANT REGISTER. The Company will maintain a register (the
"Warrant Register") containing the names and addresses of the Holder or
Holders. Any Holder of this Warrant or any portion thereof may change his
address as shown on the Warrant Register by written notice to the Company
requesting such change. Any notice or written communication required or
permitted to be given to the Holder may be delivered or given by mail to
such Holder as shown on the Warrant Register and at the address shown on
the Warrant Register. Until this Warrant is transferred on the Warrant
Register of the Company, the Company may treat the Holder as shown on the
Warrant Register as the absolute owner of this Warrant for all purposes,
notwithstanding any notice to the contrary.
(b) WARRANT AGENT. The Company may, by written notice to the Holder,
appoint an agent for the purpose of maintaining the Warrant Register
referred to in Section 7(a) above, issuing the common stock, exchanging
this Warrant, replacing this Warrant, or any or all of the foregoing.
Thereafter, any such registration, issuance, exchange, or replacement, as
the case may be, shall be made at the office of such agent.
(c) TRANSFERABILITY AND NON-NEGOTIABILITY OF WARRANT. This Warrant may
not be transferred or assigned
3
in whole or in part, without compliance with all applicable federal and
state securities laws by the transferor and the transferee (including the
delivery of investment representation letters and legal opinions reasonably
satisfactory to the Company, if such are requested by the Company).
Notwithstanding the foregoing, no investment representation letter or
opinion of counsel shall be required for any transfer of this Warrant (or
any portion thereof) or any shares of common stock issued upon exercise
hereof (i) in compliance with Rule 144 or Rule 144A of the Act, or (ii) by
gift, will or intestate succession by the Holder to his or her spouse or
lineal descendants or ancestors or any trust for any of the foregoing,
provided that in each of the foregoing cases the transferee agrees in
writing to be subject to the terms of this Section 7(c). In addition, if
the holder of the Warrant (or any portion thereof) or any common stock
issued upon exercise hereof delivers to the Company an unqualified opinion
of counsel that no subsequent transfer of such Warrant or common stock
shall require registration under the Act, the Company shall, upon such
contemplated transfer, promptly deliver new documents/certificates for such
Warrant or common stock that do not bear the legend set forth in Section
7(e)(ii) below. Subject to the provisions of this Warrant with respect to
compliance with the Securities Act of 1933, as amended (the "Act"), title
to this Warrant may be transferred by endorsement (by the Holder executing
the Assignment Form annexed hereto) and delivery in the same manner as a
negotiable instrument transferable by endorsement and delivery.
(d) EXCHANGE OF WARRANT UPON A TRANSFER. On surrender of this Warrant
for exchange, properly endorsed on the Assignment Form and subject to the
provisions of this Warrant with respect to compliance with the Act and with
the limitations on assignments and transfers and contained in this Section
7, the Company at its expense shall issue to or on the order of the Holder
a new warrant or warrants of like tenor, in the name of the Holder or as
the Holder (on payment by the Holder of any applicable transfer taxes) may
direct, for the number of shares issuable upon exercise hereof.
(e) COMPLIANCE WITH SECURITIES LAWS.
(i) The initial Holder of this Warrant represents and warrants to
the Company that it is an accredited investor under the Act. The
initial Holder represents and warrants to the Company that it has all
of the information necessary for it to evaluate an investment in the
Company's securities.
(ii) The Holder of this Warrant, by acceptance hereof,
acknowledges that this Warrant and the shares of common stock to be
issued upon exercise hereof are being acquired solely for the Holder's
own account and not as a nominee for any other party, and for
investment, and that the Holder will not offer, sell or otherwise
dispose of this Warrant or any shares of common stock to be issued
upon exercise hereof except under circumstances that will not result
in a violation of the Act or any applicable state securities laws.
Upon the exercise of this Warrant, the Holder shall, if requested by
the Company, confirm in writing, in a form satisfactory to the
Company, that the shares of common stock so purchased are being
acquired solely for the Holder's own account and not as a nominee for
any other party, for investment, and not with a view toward
distribution or resale.
(iii) This Warrant and all shares of common stock issued upon
exercise hereof shall be stamped or imprinted with a legend in
substantially the following form (in addition to any legend required
by state securities laws):
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. SUCH SECURITIES AND ANY SECURITIES OR SHARES
ISSUED HEREUNDER MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF THE
AGREEMENT, COVERING THE PURCHASE OF THESE SECURITIES AND RESTRICTING
THEIR TRANSFER OR SALE MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD HEREOF TO THE SECRETARY OF THE COMPANY AT
ITS PRINCIPAL EXECUTIVE OFFICES."
(iv) The Company agrees to remove promptly, upon the request of
the holder of this Warrant and Securities issuable upon exercise of
the Warrant, the legend set forth in Section 7(e)(ii) above from the
documents/certificates for such securities upon full compliance with
this Agreement and Rules 144 and 145.
4
8. RESERVATION OF STOCK. The Company covenants that during the term this Warrant
is exercisable, the Company will reserve from its authorized and unissued common
stock a sufficient number of shares to provide for the issuance of common stock
upon the exercise of this Warrant (including any adjustment in the number of
Warrant Shares pursuant to Section 3(b) above). The Company further covenants
that all shares that may be issued upon the exercise of rights represented by
this Warrant and payment of the Exercise Price, all as set forth herein, will be
free from all taxes, liens and charges in respect of the issue thereof (other
than taxes in respect of any transfer occurring contemporaneously or otherwise
specified herein). The Company agrees that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary certificates for
shares of common stock upon the exercise of this Warrant.
9. REGISTRATION RIGHTS: COMPANY REGISTRATION.
(a) If the Company shall determine to register any of its securities
for its own account, other than a registration relating solely to employee
benefit plans, or a registration relating solely to a Rule 145 transaction,
or a registration on any registration form that does not permit secondary
sales, the Company will:
(i) promptly give to Holder written notice thereof; and
(ii) use its best efforts to include in such registration (and
any related qualification under blue sky laws or other compliance),
except as set forth in Section 9(b) below, and in any underwriting
involved therein, all or any part (in minimum increments of 100,000
Shares) of the Warrant Shares specified in a written request or
requests, made by Holder and received by the Company within twenty
(20) days after the written notice from the Company described in
clause (i) above is mailed or delivered by the Company. Such written
request may specify all or a part of Holder's Warrant Shares.
(b) UNDERWRITING. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise Holder as a part of the written notice given
pursuant to Section 9(a)(i). In such event, the right of Holder to
registration pursuant to this Section 9 shall be conditioned upon Xxxxxx's
participation in such underwriting and the inclusion of Xxxxxx's Warrant
Shares in the underwriting to the extent provided herein. A Holder
proposing to distribute its securities through such underwriting shall
(together with the Company and the other holders of securities of the
Company with registration rights to participate therein distributing their
securities through such underwriting) enter into an underwriting agreement
in customary form with the representative of the underwriter or
underwriters selected by the Company. If any person does not agree to the
terms of any such underwriting, he shall be excluded therefrom by written
notice from the Company or the underwriter. Any Warrant Shares or other
securities excluded or withdrawn from such underwriting shall be withdrawn
from such registration.
Notwithstanding any other provision of this Section 9, if the
representative of the underwriters advises the Company, in good faith, in
writing, that marketing factors require a limitation on the number of
shares to be underwritten, (i) the representative may (subject to the
limitations set forth below) exclude all Warrant Shares from, or limit the
number of Warrant Shares to be included in the registration and
underwriting, or (ii) the Company may limit, to the extent so advised by
the underwriters, the amount of securities to be included in the
registration by the Company's stockholders (including the Holder), to be
apportioned pro rata among the holders of registrable securities, including
Warrant Shares, according to the total amount of securities entitled to be
included therein owned by each holder of registrable securities, including
Warrant Shares, and subject in all respects to the rights of holders of
registrable securities other than Holder affecting the ability of such
representative or the Company, as applicable, to limit the number of
registrable securities of such holder or holders to be included in such
registration and underwriting.
If registrable securities are withdrawn from the registration as a
result of the holder failing to agree to the terms of any such underwriting
and the number of registrable securities to be included in such
registration was previously reduced as a result of marketing factors, the
Company shall then offer to all persons who have retained the right to
include registrable securities in the registration the right to include
additional securities in the registration in an aggregate amount equal to
the number of shares so withdrawn, apportioned pro rata among the
5
holders of registrable securities, including Warrant Shares, according to
the total amount of securities entitled to be included therein owned by
each holder of registrable securities, including Warrant Shares, and
subject in all respects to the rights of holders of registrable securities
other than Holder affecting the ability of such representative or the
Company, as applicable, to limit the number of registrable securities of
such holder or holders to be included in such registration and
underwriting.
10. REGISTRATION ON FORM S-3.
(a) Provided the Company is qualified for the use of Form S-3, in
addition to the rights contained in the foregoing provisions of Section 9,
Holder shall have the right to request one or more registrations on Form
S-3 (such requests shall be in writing and shall state the number of shares
of Warrant Shares to be disposed of and the intended methods of disposition
of such shares by Xxxxxx), provided, however, that the Company shall not be
obligated to effect any such registration if (i) Holder proposes to sell
Warrant Shares on Form S-3 at an aggregate price to the public of less than
$500,000, or (ii) in the event the Company shall furnish the certification
described in paragraph 10(d)(ii) (but subject to the limitations set forth
therein), or (iii) the Company has, within the six (6) month period
preceding the date of such request already effected one registration on
Form S-3 for Holder pursuant to this Section 10.
(b) If a request complying with the requirements of Section 10(a)
hereof is delivered to the Company, the provisions of Sections 9(a)(i) and
(ii) and Section 10(c) hereof shall apply to such registration. If the
registration is for an underwritten offering, the provisions of Sections
9(b) hereof shall apply to such registration.
(c) The Company shall not be obligated to effect, or to take any
action to effect, any such registration pursuant to this Section 10:
(i) In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in
effecting such registration, qualification, or compliance, unless the
Company is already subject to service in such jurisdiction and except
as may be required by the Act;
(ii) During the period starting with the date sixty (60) days
prior to the Company's good faith estimate of the date of filing of,
and ending on a date one hundred eighty (180) days after the effective
date of, a Company-initiated registration; provided that the Company
is actively employing in good faith all reasonable efforts to cause
such registration statement to become effective.
(d) Subject to the limitations set forth in this Section 10, the
Company shall file a registration statement covering the Warrant Shares so
requested to be registered as soon as practicable after receipt of the
request of Holder; provided, however, that if (i) in the good faith
judgment of the Board of Directors of the Company, such registration would
be seriously detrimental to the Company and the Board of Directors of the
Company concludes, as a result, that it is essential to defer the filing of
such registration statement at such time, and (ii) the Company shall
furnish to Holder a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company for such
registration statement to be filed in the near future and that it is,
therefore, essential to defer the filing of such registration statement,
then the Company shall have the right to defer such filing for the period
during which such disclosure would be seriously detrimental, provided that
(except as provided in clause (c) above) the Company may not defer the
filing for a period of more than one hundred eighty (180) days after
receipt of the request of Xxxxxx, and, provided further, that the Company
shall not defer its obligation in this manner more than once in any twelve
(12) month period.
11. EXPENSES OF REGISTRATION. All Registration Expenses (as defined herein)
incurred in connection with any registration, qualification or compliance
pursuant to Sections 9 and 10 hereof and reasonable fees of one counsel for
Holder shall be borne by the Company. All Selling Expenses (as defined herein)
relating to securities so registered shall be borne by the holders of such
securities pro rata on the basis of the number of shares of securities so
registered on their behalf. "Registration Expenses" shall mean all expenses
incurred in effecting any registration pursuant to this Warrant, including,
without limitation, all registration, qualification, and filing fees, printing
expenses, escrow fees, fees and disbursements of counsel for the Company, fees
and disbursements of one special counsel for the selling stockholders, blue sky
fees and expenses, accounting fees and expenses of
6
any regular or special audits incident to or required by any such registration,
but shall not include Selling Expenses and fees and disbursements of additional
counsel for the stockholders. Registration Expenses do not include the
compensation of regular employees of the Company, which shall be paid in any
event by the Company. "Selling Expenses" shall mean all underwriting discounts
and selling commissions applicable to the sale of Warrant Shares and fees and
disbursements of counsel for any Holder (other than the fees and disbursements
of counsel included in Registration Expenses).
12. AMENDMENTS. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
13. MISCELLANEOUS.
(a) This Warrant shall be governed by the laws of the State of Nevada
as applied to agreements entered into in the State of Nevada by and among
residents of the State of Nevada.
(b) In the event of a dispute with regard to the interpretation of
this Warrant, the prevailing party may collect the cost of attorney's fees,
litigation expenses or such other expenses as may be incurred in the
enforcement of the prevailing party's rights hereunder.
(c) The rights to cause the Company to register securities granted to
a Holder by the Company under Section 10 may be transferred or assigned by
Xxxxxx only to a transferee or assignee of not less than 100,000, provided
that the Company is given written notice at the time of or within a
reasonable time after such transfer or assignment, stating the name and
address of the transferee or assignee and identifying the securities with
respect to which such registration rights are being transferred or
assigned, and, provided further, that the transferee or assignee of such
rights assumes the obligations of such Holder under this Warrant.
(d) This Warrant shall be exercisable as provided for herein, except
that in the event that the expiration date of this Warrant shall fall on a
Saturday, Sunday or United States federally recognized Holiday, this
expiration date for this Warrant shall be extended to 5:00 p.m. Pacific
standard time on the business day following such Saturday, Sunday or
recognized Holiday.
(e) This Warrant shall be governed by and interpreted in accordance
with the laws of the State of New York, excluding its conflicts of law
principles. The parties agree that any and all disputes arising under or
relating to this Warrant shall be resolved exclusively by binding
arbitration in Las Vegas, Nevada before a single arbitrator under the
Commercial Arbitration Rules of the American Arbitration Association. The
decision of the arbitrator shall be final and binding with respect to the
dispute and shall be enforceable in any court of competent jurisdiction.
The prevailing party in any action or proceeding between the parties shall
be entitled to an award of its reasonable attorneys fees and costs.
7
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officers thereunto duly authorized.
Dated: January 26, 2001
COMPANY:
XXXXXXXXXXX.XXX, INC., a Nevada corporation
By
-----------------------------------------
Xxxxx X. Xxxxxxx
SVP & General Counsel
INITIAL HOLDER:
C3 Capital, LLC, a __________________ limited liability company
By
-----------------------------------------
Its
----------------------------------------
8
NOTICE OF EXERCISE
To: XXXXXXXXXXX.XXX, INC.
(1) The undersigned hereby elects to purchase shares of common stock of
XXXXXXXXXXX.XXX INC., pursuant to the terms of the attached Warrant, and tenders
herewith payment of the purchase price for such shares in full.
(2) In exercising this Warrant, the undersigned hereby confirms and acknowledges
that the shares of common stock to be issued upon conversion thereof are being
acquired solely for the account of the undersigned and not as a nominee for any
other party, or for investment, and that the undersigned will not offer, sell or
otherwise dispose of any such shares of common stock except under circumstances
that will not result in a violation of the Securities Act of 1933, as amended,
or any applicable state securities laws.
(3) Please issue a certificate or certificates representing said shares of
common stock in the name of the undersigned or in such other name as is
specified below:
--------------------------------
(Name)
--------------------------------
(Name)
(4) Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of the undersigned or in such other name as is specified
below:
--------------------------------
(Name)
--------------------------------
(Name)
--------------------------------
(Date)
9
NET ISSUE ELECTION NOTICE
To: XXXXXXXXXXX.XXX INC. Date: ____________
The undersigned hereby elects pursuant to the net issue provisions of
Section 3(b) to surrender the right to purchase ________ shares of Common Stock
pursuant to this Warrant.
(1) In exercising this Warrant, the undersigned hereby confirms and acknowledges
that the shares of common stock to be issued upon conversion thereof are being
acquired solely for the account of the undersigned and not as a nominee for any
other party, or for investment, and that the undersigned will not offer, sell or
otherwise dispose of any such shares of common stock except under circumstances
that will not result in a violation of the Securities Act of 1933, as amended,
or any applicable state securities laws.
(2) Please issue a certificate or certificates representing said shares of
common stock in the name of the undersigned or in such other name as is
specified below:
--------------------------------
(Name)
--------------------------------
(Name)
(3) Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of the undersigned or in such other name as is specified
below:
--------------------------------
(Name)
--------------------------------
(Name)
--------------------------------
(Date)
================================
(Address)
10
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under the within Warrant, with respect to the number of shares
of common stock set forth below:
Name of Assignee Address No. of Shares
------------------ ------------------- -------------------
and does hereby irrevocably constitute and appoint Attorney to make such
transfer on the books of XXXXXXXXXXX.XXX, INC., maintained for the purpose, with
full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof or conversion thereof are being acquired for investment and that
the Assignee will not offer, sell or otherwise dispose of this Warrant or any
shares of stock to be issued upon exercise hereof or conversion thereof except
under circumstances which will not result in a violation of the Securities Act
of 1933, as amended, or any applicable state securities laws. Further, the
Assignee has acknowledged that upon exercise of this Warrant, the Assignee
shall, if requested by the Company, confirm in writing, in a form satisfactory
to the Company, that the shares of stock so purchased are being acquired for
investment and not with a view toward distribution or resale.
Dated: ______________, _____
--------------------------------
(Signature of Holder)
11
