Exhibit 4.3
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES LAWS, IN RELIANCE
UPON EXEMPTIONS FROM REGISTRATION FOR NON-PUBLIC OFFERINGS. THIS SECURITY MAY
NOT BE SOLD OR TRANSFERRED UNLESS IT IS REGISTERED UNDER THE SECURITIES ACT AND
UNDER APPLICABLE STATE SECURITIES LAWS OR UNLESS THE ISSUER RECEIVES AN OPINION
OF COUNSEL REASONABLY SATISFACTORY TO IT THAT AN EXEMPTION FROM REGISTRATION IS
AVAILABLE (UNLESS WAIVED).
GENOME THERAPEUTICS CORP.
PURCHASE WARRANT
WARRANT ("WARRANT") TO PURCHASE SHARES OF
COMMON STOCK, $0.10 PAR VALUE PER SHARE
This is to certify that, FOR VALUE RECEIVED, SMITHFIELD FIDUCIARY LLC
("Warrantholder"), is entitled to purchase, subject to the provisions of this
Warrant, from Genome Therapeutics Corp., a corporation organized under the laws
of The Commonwealth of Massachusetts ("Company"), at any time and from time to
time during an exercise period commencing on June 4 2003 and ending on June 4,
2008 ("Expiration Date"), all or a portion of up to 389,317 shares ("Warrant
Shares") of Common Stock, $0.10 par value ("Common Stock"), of the Company, at
an exercise price per share equal to $3.71, subject to adjustment as provided
herein (the exercise price in effect from time to time hereafter being herein
called the "Warrant Price").
This Warrant has been issued pursuant to the terms of the Amendment,
Redemption and Exchange Agreement, dated as of June 4, 2003 (the "Agreement"),
by and between the Company and the Warrantholder. Capitalized terms used herein
and not defined herein shall have the meaning specified in the Agreement or the
Purchase Agreement dated March 5, 2002 (the "Purchase Agreement") among the
Company and certain purchasers of securities of the Company.
Section 1. Registration. The Company shall maintain books for
the transfer and registration of the Warrant. Upon the initial issuance of the
Warrant, the Company shall issue and register the Warrant in the name of the
Warrantholder.
Section 2. Transfers. As provided herein, this Warrant may be
transferred only pursuant to a registration statement filed under the Securities
Act of 1933, as amended (the "Securities Act") or an exemption from registration
thereunder. Subject to such restrictions, the Company shall transfer this
Warrant from time to time, upon the books to be maintained by the Company for
that purpose, upon surrender thereof for transfer properly endorsed or
accompanied by appropriate instructions for transfer upon any such transfer, and
a new Warrant shall be issued to the transferee and the surrendered Warrant
shall be canceled by the Company.
Section 3. Exercise of Warrant
(a) Exercise Procedure. Subject to the foregoing and the other
provisions hereof, the Warrantholder may exercise this Warrant from time to time
by (i) delivering (which may be by fax) a duly executed Warrant Exercise Form in
the form attached hereto (the "Exercise Agreement") to the Company on any
business day at the Company's principal executive offices (or such other office
or agency of the Company as it may designate by notice to the holder hereof),
and (ii) making payment to the Company either (A) in cash, by certified or
official bank check or by wire transfer of immediately available funds for the
account of the Company, of the Warrant Price for the Warrant Shares specified in
the Exercise Agreement or (B) by delivery to the Company of a written notice of
an election to effect a "Cashless Exercise" (as defined below) for the Warrant
Shares specified in the Exercise Agreement. The Warrant Shares so purchased
shall be deemed to be issued to the Warrantholder or such holder's designee, as
the record owner of such shares, as of the close of business on the date on
which the completed Exercise Agreement shall have been delivered to the Company
(or such later date as may be specified in the Exercise Agreement). Certificates
for the Warrant Shares so purchased, representing the aggregate number of shares
specified in the Exercise Agreement, shall be promptly delivered to the
Warrantholder within a reasonable time, not exceeding three (3) business days
after this Warrant shall have been so exercised. The certificates so delivered
shall be in such denominations as may be requested by the Warrantholder and
shall be registered in the name of such holder or such other name as shall be
designated by such holder. If this Warrant shall have been exercised only in
part, then, unless this Warrant has expired, the Company shall (subject to
Section 3(d) below), at its expense, at the time of delivery of such
certificates, deliver to the Warrantholder a new Warrant representing the number
of shares with respect to which this Warrant shall not then have been exercised.
As used herein, "business day" shall mean any day other than a Saturday, Sunday
or a day on which commercial banks in the city of New York, New York are
authorized or required by law or executive order to remain closed.
(b) Cashless Exercise. Notwithstanding anything contained herein
to the contrary, a Cashless Exercise may only be effected if at any time during
the period commencing ten (10) Business Days prior to the holder's delivery of
an Exercise Agreement and ending on the day of delivery of the Exercise
Agreement, a Registration Statement (as defined in the Registration Rights
Agreement) covering the Warrant Shares that are the subject of the Exercise
Agreement is not available for the resale of such Warrant Shares. To effect a
"Cashless Exercise", the Warrantholder shall indicate on the Exercise Agreement
notice of the holder's intention to do so, including a calculation of the number
of shares of Common Stock to be issued upon such exercise in accordance with the
terms hereof. In the event of a Cashless Exercise, in lieu of paying the Warrant
Price in cash, the holder shall surrender this Warrant or the portion hereof
being exercised for that number of shares of Common Stock determined by
multiplying the number of Warrant Shares to which it would otherwise be entitled
by a fraction, the numerator of which shall be the difference between the then
current Fair Market Price per share of the Common Stock and the Warrant Price,
and the denominator of which shall be the then current Fair Market Price per
share of the Common Stock. For this purpose, the "Fair Market Price" of the
Common Stock shall be the closing price of the Common Stock as reported by the
NASDAQ National Market (or other exchange or market on which the Common Stock is
principally traded) on the trading day immediately preceding the date of the
Exercise Agreement.
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(c) Book-Entry. Notwithstanding anything to the contrary set
forth herein, upon exercise of any portion of this Warrant in accordance with
the terms hereof, the Warrantholder shall not be required to physically
surrender this Warrant to the Company unless such holder is purchasing the full
amount of Warrant Shares represented by this Warrant. The Warrantholder and the
Company shall maintain records showing the number of Warrant Shares so purchased
hereunder and the dates of such purchases or shall use such other method,
reasonably satisfactory to the Warrantholder and the Company, so as not to
require physical surrender of this Warrant upon each such exercise. The
Warrantholder and any assignee, by acceptance of this Warrant or a new Warrant,
acknowledge and agree that, by reason of the provisions of this paragraph,
following exercise of any portion of this Warrant, the number of Warrant Shares
which may be purchased upon exercise of this Warrant may be less than the number
of Warrant Shares set forth on the face hereof.
Section 4. Compliance with the Securities Act. Neither this
Warrant nor the Common Stock issued upon exercise hereof nor any other security
issued or issuable upon exercise of this Warrant may be offered or sold except
as provided in this agreement and in conformity with the Securities Act. The
Company may cause the legend set forth on the first page of this Warrant to be
set forth on each Warrant or similar legend on any security issued or issuable
upon exercise of this Warrant until the Warrant Shares have been registered for
resale pursuant to the Agreement and Registration Rights Agreement or until Rule
144(k) under the Securities Act is available, unless counsel for the Company is
of the opinion as to any such security that such legend is unnecessary.
Section 5. Payment of Taxes. The Company will pay any
documentary stamp taxes attributable to the initial issuance of Warrant Shares
issuable upon the exercise of the Warrant; provided, however, that the Company
shall not be required to pay any tax or taxes which may be payable in respect of
any transfer involved in the issuance or delivery of any certificates for
Warrant Shares in a name other than that of the registered holder of this
Warrant in respect of which such shares are issued, and in such case, the
Company shall not be required to issue or deliver any certificate for Warrant
Shares or any Warrant until the person requesting the same has paid to the
Company the amount of such tax or has established to the Company's satisfaction
that such tax has been paid. The holder shall be responsible for income taxes
due under federal or state law, if any such tax is due.
Section 6. Mutilated or Missing Warrants. In case this Warrant
shall be mutilated, lost, stolen, or destroyed, the Company shall issue in
exchange and substitution of and upon cancellation of the mutilated Warrant, or
in lieu of and substitution for the Warrant lost, stolen or destroyed, a new
Warrant of like tenor and for the purchase of a like number of Warrant Shares,
but only upon receipt of evidence reasonably satisfactory to the Company of such
loss, theft or destruction of the Warrant, and with respect to a lost, stolen or
destroyed Warrant, reasonable indemnity or bond with respect thereto, if
requested by the Company.
Section 7. Reservation of Common Stock. The Company hereby
represents and warrants that there have been reserved, and the Company shall at
all applicable times keep reserved, out of the authorized and unissued Common
Stock, a number of shares sufficient to provide for the maximum potential
exercise of the rights of purchase represented by the Warrant
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(without regard to the limitations on exercise set forth herein), and the
transfer agent for the Common Stock ("Transfer Agent"), and every subsequent
transfer agent for the Common Stock or other shares of the Company's capital
stock issuable upon the exercise of any of the right of purchase aforesaid,
shall be irrevocably authorized and directed at all times to reserve such number
of authorized and unissued shares of Common Stock as shall be requisite for such
purpose. The Company agrees that all Warrant Shares issued upon exercise of the
Warrant shall be, at the time of delivery of the certificates for such Warrant
Shares, duly authorized, validly issued, fully paid and non-assessable shares of
Common Stock of the Company. The Company will keep a conformed copy of this
Warrant on file with the Transfer Agent and with every subsequent transfer agent
for the Common Stock or other shares of the Company's capital stock issuable
upon the exercise of the rights of purchase represented by the Warrant. The
Company will supply from time to time the Transfer Agent with duly executed
stock certificates required to honor the outstanding Warrant.
Section 8. Warrant Price. The Warrant Price, subject to
adjustment as provided in Section 9, shall, if payment is made in cash or by
certified check, be payable in lawful money of the United States of America.
Section 9. Adjustments. Subject and pursuant to the provisions
of this Section 9, the Warrant Price and number of Warrant Shares subject to
this Warrant shall be subject to adjustment from time to time as set forth
hereinafter.
(a) If the Company shall at any time or from time to time while
the Warrant is outstanding, pay a dividend or make a distribution on its Common
Stock in shares of Common Stock, subdivide its outstanding shares of Common
Stock into a greater number of shares or combine its outstanding shares into a
smaller number of shares or issue by reclassification of its outstanding shares
of Common Stock any shares of its capital stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), then the number of Warrant Shares
purchasable upon exercise of the Warrant and the Warrant Price in effect
immediately prior to the date upon which such change shall become effective,
shall be adjusted by the Company so that the Warrantholder thereafter exercising
the Warrant shall be entitled to receive the number of shares of Common Stock or
other capital stock which the Warrantholder would have received if the Warrant
had been exercised immediately prior to such event. Such adjustment shall be
made successively whenever any event listed above shall occur.
(b) If any capital reorganization, reclassification of the
capital stock of the Company, consolidation or merger of the Company with
another corporation, or sale, transfer or other disposition of all or
substantially all of the Company's assets to another corporation shall be
effected, then, as a condition of such reorganization, reclassification,
consolidation, merger, sale, transfer or other disposition, lawful and adequate
provision shall be made whereby each Warrantholder shall thereafter have the
right to purchase and receive upon the basis and upon the terms and conditions
herein specified and in lieu of the Warrant Shares immediately theretofore
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issuable upon exercise of the Warrant (whether or not then exercisable), such
shares of stock, securities or assets as would have been issuable or payable
with respect to or in exchange for a number of Warrant Shares equal to the
number of Warrant Shares immediately theretofore issuable upon exercise of the
Warrant (whether or not then exercisable), had such reorganization,
reclassification, consolidation, merger, sale, transfer or other disposition not
taken place, and in any such case appropriate provision shall be made with
respect to the rights and interests of each Warrantholder to the end that the
provisions hereof (including, without limitations, provision for adjustment of
the Warrant Price) shall thereafter be applicable, as nearly equivalent as may
be practicable in relation to any shares of stock, securities or properties
thereafter deliverable upon the exercise hereof. The Company shall not effect
any such consolidation, merger, sale, transfer or other disposition unless prior
to or simultaneously with the consummation thereof the successor corporation (if
other than the Company) resulting from such consolidation or merger, or the
corporation purchasing or otherwise acquiring such assets or other appropriate
corporation or entity shall assume, by written instrument executed and delivered
to the Company, the obligation to deliver to the holder of the Warrant such
shares of stock, securities or assets as, in accordance with the foregoing
provisions, such holder may be entitled to purchase and the other obligations
under this Warrant. The provisions of this paragraph (b) shall similarly apply
to successive reorganizations, reclassifications, consolidations, mergers,
sales, transfers or other dispositions.
(c) In case the Company shall fix a record date for the making
of a distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness or assets
(other than cash dividends or cash distributions payable out of consolidated
earnings or earned surplus or dividends or distributions referred to in Section
9(a)), or subscription rights or warrants, the Warrant Price to be in effect
after such record date shall be determined by multiplying the Warrant Price in
effect immediately prior to such record date by a fraction, the numerator of
which shall be the total number of shares of Common Stock outstanding multiplied
by the Fair Market Value per share of Common Stock (as defined below), less the
fair market value (as determined by the Company's Board of Directors in good
faith) of said assets or evidences of indebtedness so distributed, or of such
subscription rights or warrants, and the denominator of which shall be the total
number of shares of Common Stock outstanding multiplied by such current Fair
Market Value per share of Common Stock. Such adjustment shall be made
successively whenever such a record date is fixed. For this purpose, the "Fair
Market Value" of the Common Stock shall be the closing price of the Common Stock
as reported by the NASDAQ National Market (or other Principal Market) on the
Trading Day immediately preceding such event.
(d) In the event that the Company or any of its subsidiaries (A)
issues or sells any Common Stock or Convertible Securities or (B) directly or
indirectly effectively reduces the conversion, exercise or exchange price for
any Convertible Securities which are currently outstanding, at or to an
effective Per Share Selling Price which is less than the greater of (I) the
closing sale price per share of the Common Stock on the Principal Market on the
Trading Day next preceding such issue or sale or, in the case of issuances to
holders of its Common Stock, the date fixed for the determination of
stockholders entitled to receive such warrants, rights, or options ("Closing
Price"), or (II) the Warrant Price, then in each such case the Warrant Price in
effect immediately prior to such issue or sale or record date, as applicable,
shall be automatically reduced effective concurrently with such issue or sale to
an amount determined by multiplying the Warrant Price then in effect by a
fraction, (x) the numerator of which shall be the sum of (1)
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the number of shares of Common Stock outstanding immediately prior to such issue
or sale, plus (2) the number of shares of Common Stock which the aggregate
consideration received by the Company from Persons other than the holders of
Warrants for such additional shares would purchase at such Closing Price or
Warrant Price, as the case may be, and (y) the denominator of which shall be the
number of shares of Common Stock of the Company outstanding immediately after
such issue or sale (excluding any shares outstanding or deemed outstanding which
were issued or deemed issued to the holders of Warrants as part of such issue or
sale). Upon consummation of a Change in Control Transaction (as defined in the
Notes issued pursuant to the Purchase Agreement), the provisions of clause (I)
in the first sentence of this Section 9(d) shall cease to have any further force
or effect.
The foregoing provision shall not apply to any issuances or sales of
Common Stock or Convertible Securities in any transaction described in clauses
(i) through (viii) of the definition of Excluded Transaction (as defined in the
Notes issued pursuant to the Purchase Agreement) or in any transaction described
in clause (ix) of the definition of Excluded Transaction where the Per Share
Selling Price is greater than the then applicable Warrant Price.
For the purposes of the foregoing adjustments, in the case of the
issuance of any Convertible Securities, the maximum number of shares of Common
Stock issuable upon exercise, exchange or conversion of such Convertible
Securities shall be deemed to be outstanding, provided that no further
adjustment shall be made upon the actual issuance of Common Stock upon exercise,
exchange or conversion of such Convertible Securities.
For purposes of this Section 9(d), if an event occurs that triggers more
than one of the above adjustment provisions, then only one adjustment shall be
made and the calculation method which yields the greatest downward adjustment in
the Warrant Price shall be used.
(e) An adjustment shall become effective immediately after the
record date in the case of each dividend or distribution and immediately after
the effective date of each other event which requires an adjustment.
(f) In the event that, as a result of an adjustment made
pursuant to Section 9, the holder of this Warrant shall become entitled to
receive any shares of capital stock of the Company other than shares of Common
Stock, the number of such other shares so receivable upon exercise of this
Warrant shall be subject thereafter to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the provisions with respect
to the Warrant Shares contained in this Warrant.
(g) In the event of any adjustment in the number of Warrant
Shares issuable hereunder upon exercise, the Warrant Price shall be inversely
proportionately increased or decreased, as the case may be, such that the
aggregate purchase price for Warrant Shares upon full exercise of this Warrant
shall remain the same. Similarly, in the event of any adjustment in the Warrant
Price, the number of Warrant Shares issuable hereunder upon exercise shall be
inversely proportionately increased or decreased, as the case may be, such that
the aggregate purchase price for Warrant Shares upon full exercise of this
Warrant shall remain the same.
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Section 10. Fractional Interest. The Company shall not be
required to issue fractions of Warrant Shares upon the exercise of the Warrant.
If any fraction of a Warrant Share would, except for the provisions of this
Section, be issuable upon the exercise of the Warrant (or specified portions
thereof), the Company shall round such calculation to the nearest whole number
and disregard the fraction.
Section 11. Benefits. Nothing in this Warrant shall be
construed to give any person, firm or corporation (other than the Company and
the Warrantholder) any legal or equitable right, remedy or claim, it being
agreed that this Warrant shall be for the sole and exclusive benefit of the
Company and the Warrantholder.
Section 12. Notices to Warrantholder. Upon the happening of any
event requiring an adjustment of the Warrant Price, the Company shall forthwith
give written notice thereof to the Warrantholder at the address appearing in the
records of the Company, stating the adjusted Warrant Price and the adjusted
number of Warrant Shares resulting from such event and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. In the event of a dispute with respect to any such
calculation, the certificate of the Company's independent certified public
accountants shall be conclusive evidence of the correctness of any computation
made, absent manifest error. Failure to give such notice to the Warrantholder or
any defect therein shall not affect the legality or validity of the subject
adjustment. At the Warrantholder's request, the Company shall deliver to the
Warrantholder as of a requested date a notice specifying the Warrant Price and
the number of Warrant Shares into which this Warrant is exercisable as of such
date.
Section 13. Identity of Transfer Agent. The Transfer Agent for
the Common Stock is:
EquiServe Trust Company, N.A.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Forthwith upon the appointment of any subsequent transfer agent
for the Common Stock or other shares of the Company's capital stock issuable
upon the exercise of the rights of purchase represented by the Warrant, the
Company will fax to the Warrantholder a statement setting forth the name and
address of such transfer agent.
Section 14. Notices. Any notice pursuant hereto to be given or
made by the Warrantholder to or on the Company shall be sufficiently given or
made personally or if sent by an internationally recognized courier by next day
or two day delivery service, addressed as follows:
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Genome Therapeutics Corp.
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxx, CFO
or such other address as the Company may specify in writing by notice to the
Warrantholder complying as to delivery with the terms of this Section 14.
Any notice pursuant hereto to be given or made by the Company to
or on the Warrantholder shall be sufficiently given or made if personally
delivered or if sent by an internationally recognized courier service by
overnight or two-day service, to the address set forth on the books of the
Company or, as to each of the Company and the Warrantholder, at such other
address as shall be designated by such party by written notice to the other
party complying as to delivery with the terms of this Section 14.
All such notices, requests, demands, directions and other
communications shall, when sent by courier, be effective two (2) days after
delivery to such courier as provided and addressed as aforesaid.
Section 15. Registration Rights. The initial holder of this
Warrant is entitled to the benefit of certain registration rights in respect of
the Warrant Shares as provided in the Agreement and the Registration Rights
Agreement incorporated by reference therein.
Section 16. Successors. All the covenants and provisions hereof
by or for the benefit of the Warrantholder shall bind and inure to the benefit
of its respective successors and assigns hereunder.
Section 17. Governing Law. This Warrant shall be deemed to be a
contract made under the laws of the State of New York, without giving effect to
its conflict of law principles, and for all purposes shall be construed in
accordance with the laws of said State.
Section 18. Limitations on Exercise. Notwithstanding anything
to the contrary contained herein, the number of shares of Common Stock that may
be acquired by the holder upon exercise pursuant to the terms hereof shall not
exceed a number that, when added to the total number of shares of Common Stock
deemed beneficially owned by such holder (other than by virtue of the ownership
of securities or rights to acquire securities (including the Warrant Shares)
that have limitations on the holder's right to convert, exercise or purchase
similar to the limitation set forth herein), together with all shares of Common
Stock deemed beneficially owned (other than by virtue of the ownership of
securities or rights to acquire securities that have limitations on the right to
convert, exercise or purchase similar to the limitation set forth herein) by the
holder's "affiliates" (as defined in Rule 144 of the Securities Act)
("Aggregation Parties") that would be aggregated for purposes of determining
whether a group under Section 13(d) of the Securities Exchange Act of 1934, as
amended, exists, would exceed 4.99% of the total issued and outstanding shares
of the Common Stock (the "Restricted Ownership
8
Percentage"). Each holder shall have the right at any time and from time to time
to reduce its Restricted Ownership Percentage immediately upon notice to the
Corporation.
Section 19. Replacement Warrants. The Company agrees that
within ten (10) business days after any request from time to time of the
Warrantholder, it shall deliver to such holder a new Warrant in substitution of
this Warrant which is identical in all respects except that the then Warrant
Price shall be appropriately specified in the Warrant and the number of Warrant
Shares into which this Warrant is or may become exercisable shall be
appropriately specified in the Warrant. Such changes are intended not as
amendments to the Warrant but only as clarification of the foregoing numbers for
convenience purposes, and such changes shall not affect any provisions
concerning adjustments to the Warrant Price or number of Warrant Shares
contained herein.
Section 20. Absolute Obligation to Issue Warrant Shares. The
Company's obligations to issue and deliver Warrant Shares in accordance with the
terms hereof are absolute and unconditional, irrespective of any action or
inaction by the holder hereof to enforce the same, any waiver or consent with
respect to any provision hereof (other than a waiver of the issuance or delivery
of shares), the recovery of any judgment against any Person or any action to
enforce the same, or any setoff, counterclaim or recoupment, or any breach or
alleged breach by the holder hereof or any other Person of any obligation to the
Company 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 hereof in connection with the
issuance of Warrant Shares. The Company will at no time close its shareholder
books or records in any manner which interferes with the timely exercise of this
Warrant.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed as of June 4, 2003.
GENOME THERAPEUTICS CORP.
By:
----------------------------
Name:
Title:
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GENOME THERAPEUTICS CORP.
WARRANT EXERCISE FORM
Genome Therapeutics Corp.
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxx, CFO
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant ("Warrant") for, and to purchase
thereunder by (CHECK AS APPLICABLE):
[ ] payment by cash, wire transfer or certified check,
[ ] Cashless Exercise of the within Warrant pursuant to Section 3(c) of
the Warrant,
_______________ shares of Common Stock* ("Warrant Shares") provided for therein,
and requests that certificates for the Warrant Shares be issued as follows:
Name: _______________________________
Address: _______________________________
_______________________________
_______________________________
and, if the number of Warrant Shares shall not be all the Warrant Shares
purchasable upon exercise of the Warrant, that a new Warrant for the balance of
the Warrant Shares (subject to book-entry) be delivered to the undersigned.
In lieu of delivering physical certificates representing the Warrant
Shares purchasable upon exercise of this Warrant, provided the Company's
transfer agent is participating in the Depository Trust Company ("DTC") Fast
Automated Securities Transfer ("FAST") program, upon request of the Holder, the
Company shall use its best efforts to cause its transfer agent to electronically
transmit the Warrant Shares issuable upon conversion or exercise to the
undersigned, by crediting the account of the undersigned's prime broker with DTC
through its Deposit Withdrawal Agent Commission ("DWAC") system.
Dated: Signature:
--------------------- -------------------------
-------------------------
Name (please print)
-------------------------
Address
--------
* NOTE: If exercise of the Warrant is made by surrender of the Warrant and the
number of shares indicated exceeds the maximum number of shares to which a
holder is entitled, the Company will issue such maximum number of shares
purchasable upon exercise of the Warrant registered in the name of the
undersigned Warrantholder or the undersigned's Assignee as below indicated
and deliver same to the address stated below.
