EXHIBIT 10.12(f)
NEITHER THESE SECURITIES NOR THE SECURITIES FOR WHICH THESE SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE OF
THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR
OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY SUCH SECURITIES.
CITIZENS, INC.
UNIT WARRANT
Warrant No. U-2 Dated: July 12, 2004
Citizens, Inc., a Colorado corporation (the "COMPANY"), hereby
certifies that, for value received, Smithfield Fiduciary LLC, or its registered
assigns (the "HOLDER"), is entitled to purchase from the Company at any time and
from time to time from and after the date hereof and through and including the
twelve month anniversary of the Effective Date (the "EXPIRATION DATE") and
subject to the following terms and conditions, up to a total of 1,250 Additional
Units (as adjusted for any stock dividend, stock split, stock combination or
other similar event) at an exercise price equal to $1,000 per Additional Unit
(as adjusted for any stock dividend, stock split, stock combination or other
similar event) (the "EXERCISE PRICE"). Each "ADDITIONAL UNIT" entitles the
Holder to (a) one share of Series A-2 Senior Convertible Preferred Stock (the
"SERIES A-2 PREFERRED STOCK") of the Company (the sum of all such shares, the
"ADDITIONAL SHARES"), and (b) a warrant in the form attached as Exhibit C to the
Purchase Agreement (all such warrants, the "ADDITIONAL WARRANTS"), exercisable
for [ ](1) shares of Common Stock (the sum of all such shares, the "ADDITIONAL
WARRANT SHARES"), with an exercise price per share calculated as set forth in
Section 4(b) of this Unit Warrant. This Unit Warrant (this "UNIT WARRANT") is
one of a series of similar unit warrants issued pursuant to that certain
Securities Purchase Agreement, dated as of July 12, 2004, and among the Company
and the Purchasers identified therein (the "PURCHASE AGREEMENT"). All such unit
warrants are referred to herein, collectively, as the "UNIT WARRANTS."
1. Definitions. In addition to the terms defined elsewhere in this Unit
Warrant, capitalized terms that are not otherwise defined herein have the
meanings given to such terms in the Purchase Agreement.
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(1) 27.5% warrant coverage.
2. Registration of Unit Warrant. The Company shall register this Unit
Warrant, upon records to be maintained by the Company for that purpose (the
"UNIT WARRANT REGISTER"), in the name of the record Holder hereof from time to
time. The Company may deem and treat the registered Holder of this Unit Warrant
as the absolute owner hereof for the purpose of any exercise hereof or any
distribution to the Holder, and for all other purposes, absent actual notice to
the contrary.
3. Registration of Transfers. The Company shall register the transfer
of any portion of this Unit Warrant in the Unit Warrant Register, upon surrender
of this Unit Warrant, with the Form of Assignment attached hereto duly completed
and signed, to the Transfer Agent or to the Company at its address specified
herein. Upon any such registration or transfer, a new unit warrant to purchase
the Additional Units, in substantially the form of this Unit Warrant (any such
new unit warrant, a "NEW UNIT WARRANT"), evidencing the portion of this Unit
Warrant so transferred shall be issued to the transferee and a New Unit Warrant
evidencing the remaining portion of this Unit Warrant not so transferred, if
any, shall be issued to the transferring Holder. The acceptance of the New Unit
Warrant by the transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations of a holder of a Unit Warrant.
4. Exercise and Duration of Unit Warrant.
(a) This Unit Warrant shall be exercisable by the registered
Holder at any time and from time to time on or after the date hereof to and
including the Expiration Date. At 6:30 p.m., New York City time on the
Expiration Date, the portion of this Unit Warrant not exercised prior thereto
shall be and become void and of no value.
(b) A Holder may exercise this Unit Warrant by delivering to
the Company (i) an exercise notice, in the form attached hereto (the "EXERCISE
NOTICE"), appropriately completed and duly signed, and (ii) payment of the
Exercise Price for the number of Additional Units as to which this Unit Warrant
is being exercised, and the date such items are delivered to the Company (as
determined in accordance with the notice provisions hereof) is an "EXERCISE
DATE." Subject to the adjustments in Section 9 below, the number of Additional
Warrant Shares issuable upon exercise of the Additional Warrants to be issued
upon any exercise of this Unit Warrant shall be equal to the product of 0.275
multiplied by the number of shares of Common Stock issuable upon conversion of
all the Additional Shares, rounded up to the nearest whole number. The exercise
price per Additional Warrant Share for the Additional Warrants shall be equal to
110% of the "A-2 Conversion Price" (as defined below)(as adjusted for any stock
dividend, stock split, stock combination or other similar event). The number of
Additional Shares shall be equal to the number of Additional Units and the
conversion price for such Series A-2 Preferred Stock (the "A-2 Conversion Price)
shall be equal to 110% of the arithmetic average of Volume Weighted Average
Price for the 30 consecutive Trading Days immediately prior to the Exercise
Date, but in no event greater than $11.50 or lower than $7.00 (in each case, as
adjusted for any stock dividend, stock split, stock combination or other similar
event). The Holder shall not be required to deliver the original Unit Warrant in
order to effect an exercise hereunder. Execution and delivery of the Exercise
Notice shall have the same effect as cancellation of the original Unit Warrant
and issuance of a New Unit Warrant evidencing the right to purchase the
remaining number of Additional Units.
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5. Delivery of Additional Shares and Additional Warrant.
(a) Upon exercise of this Unit Warrant, the Company shall
promptly (but in no event later than three Trading Days after the Exercise Date)
issue or cause to be issued and cause to be delivered to or upon the written
order of the Holder and in such name or names as the Holder may designate, (i) a
certificate for the Additional Shares issuable upon such exercise, free of
restrictive legends unless a registration statement covering the resale of the
Additional Shares and naming the Holder as a selling stockholder thereunder is
not then effective and the Additional Shares are not freely transferable without
volume restrictions pursuant to Rule 144 under the Securities Act, (ii)
Additional Warrants exercisable for the appropriate number of Additional Warrant
Shares as calculated pursuant to Section 4(b) hereof, (iii) the legal opinion of
Company Counsel, substantially in the form of Exhibit E to the Purchase
Agreement, executed by such counsel and delivered to the Holders, and (iv) a
certificate from an officer of the Company that each of the representations and
warranties of the Company set forth in Section 3.1 of the Purchase Agreement are
true and correct as of the date when made and as of the Exercise Date as though
made on and as of such date, and each of the other conditions set forth in
Section 5.1 of the Purchase Agreement have been satisfied as of the Exercise
Date. The Holder, or any Person so designated by the Holder to receive
Additional Shares and the Additional Warrants, shall be deemed to have become
holder of record of such Additional Shares and Additional Warrants as of the
Exercise Date.
(b) This Unit Warrant is exercisable, either in its entirety
or, from time to time, for a portion of the number of Additional Units. Upon
surrender of this Unit Warrant following one or more partial exercises, the
Company shall issue or cause to be issued, at its expense, a New Unit Warrant
evidencing the right to purchase the remaining number of Additional Units.
(c) In addition to any other rights available to a Holder, if
the Company fails to deliver to the Holder a certificate representing Additional
Shares or Additional Warrants by the third Trading Day after the date on which
delivery of such certificate is required by this Unit Warrant and the Holder
purchases (in an open market transaction or otherwise) shares of Common Stock to
deliver in satisfaction of a sale by the Holder of the Additional Shares or
Additional Warrants that the Holder anticipated receiving from the Company (a
"BUY-IN"), then in the Holder's sole discretion, the Company shall, within three
Trading Days after the Holder's request, either (i) pay cash to the Holder in an
amount equal to the Holder's total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased (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.
(d) Subject to Section 7, the Company's obligations to issue
and deliver Additional Shares and the Additional Warrants in accordance with the
terms hereof are absolute and unconditional, 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
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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 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 Additional Shares and
the Additional Warrants. Nothing herein shall limit a Xxxxxx'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 the Additional Warrants
or Additional Shares upon exercise of this Unit Warrant as required pursuant to
the terms hereof.
6. Charges, Taxes and Expenses. Issuance and delivery of certificates
for shares of Additional Shares and the Additional Warrants upon exercise of
this Unit Warrant shall be made without charge to the Holder for any issue or
transfer tax, withholding tax, transfer agent fee or other incidental tax or
expense in respect of the issuance of such certificates and the Additional
Warrants, all of which taxes and expenses shall be paid by the Company;
provided, however, that the Company shall not be required to pay any tax which
may be payable in respect of any transfer involved in the registration of any
certificates for Additional Shares or the Additional Warrants in a name other
than that of the Holder. The Holder shall be responsible for all other tax
liability that may arise as a result of holding or transferring this Unit
Warrant or receiving Additional Shares or the Additional Warrants upon exercise
hereof.
7. Replacement of Unit Warrant. If this Unit Warrant is mutilated,
lost, stolen or destroyed, the Company shall issue or cause to be issued in
exchange and substitution for and upon cancellation hereof, or in lieu of and
substitution for this Unit Warrant, a New Unit Warrant, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or
destruction and customary and reasonable indemnity, if requested. Applicants for
a New Unit Warrant under such circumstances shall also comply with such other
reasonable regulations and procedures and pay such other reasonable third-party
costs as the Company may prescribe.
8. Reservation of Additional Shares and Additional Warrant Shares. The
Company covenants that it will at all times reserve and keep available out of
the aggregate of its authorized but unissued and otherwise unreserved Common
Stock, solely for the purpose of enabling it, upon exercise of the Unit
Warrants, to issue Common Stock upon the conversation of the Additional Shares
and to issue Additional Warrant Shares upon the exercise of the Additional
Warrants, the number of shares of Common Stock (as adjusted for any stock
dividend, stock split, stock combination or other similar event) which are then
issuable and deliverable upon the exercise of this entire Unit Warrant, free
from preemptive rights or any other contingent purchase rights of persons other
than the Holder (taking into account the adjustments and restrictions of Section
9). The Company covenants that all Additional Shares so issuable and deliverable
shall, upon issuance and the payment of the applicable Exercise Price in
accordance with the terms hereof, be duly and validly authorized, issued and
fully paid and nonassessable. The Company will take all such action as may be
necessary to assure that such shares of Common Stock may be issued as provided
herein without violation of any applicable law or regulation, or of any
requirements of any securities exchange or automated quotation system upon which
the Common Stock may be listed.
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9. Certain Adjustments.
(a) The (i) exercise price per Additional Warrant Share and
the conversion price per Additional Share and (ii) the number of Additional
Warrant Shares issuable upon exercise of the Additional Warrants, shall be
adjusted for any stock dividend, stock split, stock combination or other similar
event in accordance with Section 9 of the Additional Warrant and Section 15 of
the Certificate of Designation, respectively.
(b) Simultaneously with any adjustment pursuant to this
Section 9, the number of Additional Warrant Shares that may be purchased upon
exercise of the Additional Warrants shall be increased or decreased
proportionately, so that after such adjustment the aggregate exercise price
payable thereunder for the increased or decreased number of Additional Warrant
Shares shall be the same as the aggregate exercise price in effect immediately
prior to such adjustment.
(c) All calculations under this Section 9 shall be made to the
nearest cent or the nearest 1/100th of a 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.
(d) Upon the occurrence of each adjustment pursuant to this
Section 9, the Company at its expense will promptly compute such adjustment in
accordance with the terms of this Unit Warrant and prepare a certificate setting
forth such adjustment, including a statement of the adjusted exercise price per
Additional Warrant Share and the number of Additional Warrant Shares issuable
upon exercise of the Additional Warrant, describing the transactions giving rise
to such adjustments and showing in detail the facts upon which such adjustment
is based.
10. Payment of Exercise Price. The Holder shall pay the Exercise Price
in cash by delivering to the Company immediately available funds equal to the
Exercise Price.
11. Call Right.
(a) Subject to the provisions of this Section 11, if after the
Effective Date the Volume Weighted Average Price of the Company's Common Stock
on the New York Stock Exchange is equal to or above $10.50 per share (as
adjusted for any stock splits, stock combinations, stock dividends and other
similar events) (the "THRESHOLD PRICE") for each of thirty (30) consecutive
Trading Days, then the Company shall have the right, but not the obligation (the
"CALL RIGHT"), on thirty (30) days prior written notice to the Holder, to
require the Holder to exercise any unexercised portion of this Unit Warrant for
which an Exercise Notice has not yet been delivered (the "CALL AMOUNT") and as
to which exercise is permitted pursuant to Section 4(a) above.
(b) To exercise this Call Right, the Company shall deliver to
the Holder an irrevocable written notice (a "CALL NOTICE"), indicating the Call
Amount. The date that the Company delivers the Call Notice to the Holder shall
be referred to as the "CALL DATE." Within thirty (30) days of receipt of the
Call Notice, and provided that the Holder is permitted to exercise this Unit
Warrant pursuant to Section 4(a) above, the Holder shall exercise this Warrant
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in whole or in part in accordance with Section 4(b) above. Any unexercised
portion of this Unit Warrant to which the Call Notice does not pertain (the
"REMAINING PORTION") will be unaffected by such Call Notice.
(c) Notwithstanding anything to the contrary set forth in this
Unit Warrant, the Company may not deliver a Call Notice or require the
cancellation of any unexercised Call Amount (and any Call Notice will be void),
unless from the beginning of the thirty (30) consecutive Trading Days used to
determine whether the Common Stock has achieved the Threshold Price through the
date on which the Holder exercises the Call Amount (the "CALL PERIOD") (i) the
Company shall have honored in accordance with the terms of this Unit Warrant any
Exercise Notice delivered by 6:30 p.m. (New York City time) on the Call Date,
(ii) the Registration Statement shall be effective as to all Underlying Shares
and the prospectus thereunder available for use by the Holder for the resale all
such Underlying Shares, and (iii) the Closing Price on each Trading Day during
the Call Period is greater than the Threshold Price.
12. Fractional Shares. The Company shall not be required to issue or
cause to be issued fractional Additional Shares. If any fraction of an
Additional Share would, except for the provisions of this Section, be issuable
upon exercise of this Unit Warrant, the number of Additional Shares to be issued
will be rounded up to the nearest whole share.
13. Notices. Any and all notices or other communications or deliveries
hereunder (including without limitation any Exercise Notice) shall be in writing
and shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section prior to 6:30 p.m. (New York City
time) on a Trading Day, (ii) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section on a day that is not a Trading Day or
later than 6:30 p.m. (New York City time) on any Trading Day, (iii) the Trading
Day following the date of mailing, if sent by nationally recognized overnight
courier service, or (iv) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices or communications shall be as
set forth in the Purchase Agreement.
14. Unit Warrant Agent. The Company shall serve as unit warrant agent
under this Unit Warrant. Upon 30 days' notice to the Holder, the Company may
appoint a new unit warrant agent. Any corporation into which the Company or any
new unit warrant agent may be merged or any corporation resulting from any
consolidation to which the Company or any new unit warrant agent shall be a
party or any corporation to which the Company or any new unit warrant agent
transfers substantially all of its corporate trust or shareholders services
business shall be a successor unit warrant agent under this Unit Warrant without
any further act. Any such successor unit warrant agent shall promptly cause
notice of its succession as unit warrant agent to be mailed (by first class
mail, postage prepaid) to the Holder at the Holder's last address as shown on
the Unit Warrant Register.
15. No Rights as Stockholder until Exercise. Subject to Section 9 of
this Unit Warrant and the provisions of any other Transaction Documents, prior
to the exercise of this Unit Warrant as provided herein, the Holder shall not be
entitled to vote or receive dividends or be deemed the holder of Additional
Shares or Additional Warrants or any other securities of the
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Company that may at any time be issuable on the exercise hereof for any purpose,
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 the stockholders at
any meeting thereof, or to give or withhold consent to any corporate action or
to receive notice of meetings, or to receive dividend or subscription rights.
16. Miscellaneous.
(a) Subject to the restrictions on transfer set forth on the
first page hereof, this Unit Warrant may be assigned by the Holder. This Unit
Warrant may not be assigned by the Company. This Unit Warrant shall be binding
on and inure to the benefit of the parties hereto and their respective
successors and assigns. Subject to the preceding sentence, nothing in this Unit
Warrant shall be construed to give to any Person other than the Company and the
Holder any legal or equitable right, remedy or cause of action under this Unit
Warrant. This Unit Warrant may be amended only in writing signed by the Company
and the Holder and their successors and assigns.
(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
Unit 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 Additional Shares or Additional Warrants 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 Additional Units on the exercise of
this Unit Warrant, and (iii) will not close its shareholder books or records in
any manner which interferes with the timely exercise of this Unit Warrant.
(c) GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL. ALL QUESTIONS
CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS
UNIT WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. EACH PARTY 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 THE TRANSACTION
DOCUMENTS), 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 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 UNIT 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
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PROCESS IN ANY MANNER PERMITTED BY LAW. THE COMPANY AND HOLDER HEREBY WAIVE ALL
RIGHTS TO A TRIAL BY JURY.
(d) The headings herein are for convenience only, do not
constitute a part of this Unit Warrant and shall not be deemed to limit or
affect any of the provisions hereof.
(e) In case any one or more of the provisions of this Unit
Warrant shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Unit 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 Unit Warrant.
[REMAINDER OF XXXX INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Unit Warrant to be duly
executed by its authorized officer as of the date first indicated above.
CITIZENS, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title: President
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FORM OF EXERCISE NOTICE
[To be executed by the Holder to exercise the right to purchase Additional Units
under the foregoing Unit Warrant]
To: Citizens, Inc.
The undersigned is the Holder of Unit Warrant No. _______ (the "UNIT WARRANT")
issued by Citizens, Inc., a Colorado corporation (the "COMPANY"). Capitalized
terms used herein and not otherwise defined have the respective meanings set
forth in the Unit Warrant.
1. The Unit Warrant is currently exercisable to purchase a total of
______________ Additional Units entitling the Holder to ____________
Additional Shares and Additional Warrants exercisable to purchase a
total of __________ Additional Warrant Shares.
2. The undersigned Holder hereby exercises its right to purchase
_________________ Additional Units pursuant to the Unit Warrant.
3. The Holder shall pay the sum of $____________ to the Company in
accordance with the terms of the Unit Warrant.
4. Pursuant to this exercise, the Company shall deliver to the Holder
___________Additional Shares and Additional Warrants exercisable to
purchase a total of __________ Additional Warrant Shares in accordance
with the terms of the Unit Warrant.
5. Following this exercise, the Unit Warrant shall be exercisable to
purchase a total of ______________ Additional Units.
Dated:______________,_______ Name of Xxxxxx:
(Print)___________________________
By:_______________________________
Name:_____________________________
Title:____________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Unit Warrant)
