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EXHIBIT 6.43
WARRANT AGREEMENT, DATED APRIL 15, 1997, BY AND BETWEEN
THE COMPANY AND BERKSHIRE INTERNATIONAL FINANCE
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THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE TRANSFERRED, SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED, OFFERED OR OTHERWISE DISPOSED OF UNLESS THEY
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAW OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
No. WA - 300,000
Certificate for KCD Holdings Incorporated Common Stock
Purchase Warrants EXERCISABLE COMMENCING ON
THE DATE OF ISSUANCE
HEREOF AND ENDING
5:00 P.M., PACIFIC STANDARD TIME, ON THE EXPIRATION DATE
WARRANT CERTIFICATE
THIS CERTIFIES that Berkshire International Finance, Inc., a Delaware
corporation is the registered holder (the "Warrantholder") of 300,000 Common
Stock Purchase Warrants (the "Warrants") as set forth above, each which
represents the right to purchase one fully paid and non-assessable share of
common stock, par value U.S. $0.002 per share (the "Shares") of KCD Holdings
Incorporated, a Nevada corporation (the "Company"), at the exercise price of
U.S. $2.50 per share (the "Exercise Price"), at any time prior to the Expiration
Date hereinafter referred to, by surrendering this Warrant Certificate, with the
form of Election to Purchase set forth hereon duly executed, at the Company's
office located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (the "Office"), and by paying in full the Exercise Price, plus transfer
taxes, if any, in United States currency by certified check, bank cashier's
check or money order payable to the order of the Company.
Section 1. Duration and Exercise of Warrants.
(a) The Warrants represented by this Warrant Certificate shall be
immediately exercisable and shall expire at 5:00 p.m. Pacific Standard time, on
April 15, 2001 (the "Expiration Date"). Any Warrant Certificate not surrendered
to the Company for exercise or redemption prior to the close of business of the
Expiration Date shall be void and invalid.
(b) Subject to the provisions of this Warrant Certificate, after the date of
this Warrant Certificate and prior to the close of business on the Expiration
Date, the Warrantholder shall have the right to purchase from the Company the
number of Shares specified above at the Exercise Price. In order to exercise
such right, the Warrantholder shall surrender the Warrant Certificate evidencing
such Warrants to the Company at the Office with the form of Election to Purchase
set forth hereon duly completed and signed, and shall tender payment in full to
the Company for the Company's account together with such taxes as are specified
in Section 4 hereof, for each Share with respect to which such Warrants are
being exercised. Such Exercise Price and taxes shall be paid in full by
certified check, bank cashier's check or money order, payable in United States
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currency to the order of the Company. In addition, if the Shares deliverable
upon exercise have not been registered pursuant to the Securities Act, the
Warrantholder shall deliver a duly executed certificate substantially in the
form of Exhibit "A" hereto.
(c) The Warrants evidenced by this Warrant Certificate shall be exercisable in
multiples of one (1) Warrant. If less than all of the Warrants evidenced by this
Warrant Certificate are exercised at any time prior to the close of business on
the Expiration Date, a new Warrant Certificate shall be issued to the
Warrantholder by the Company for the remaining number of Warrants evidenced by
the Warrant Certificate so surrendered.
(d) The Warrants evidenced by this Warrant Certificate may not be exercised or
redeemed if such exercise or redemption would constitute a violation of any
applicable United States Federal or state statute or regulation or if any
required approval of a governmental authority having jurisdiction shall not have
been secured. The Company shall be entitled to require as a condition to
exercise or redemption that the Warrantholder make such representations as are
necessary to demonstrate compliance with applicable United States Federal and
state securities laws.
Section 2. Issuance of Share Certificate. Upon surrender of this Warrant
Certificate and payment of the Exercise Price, and, if the Shares deliverable on
exercise have not been registered under the Securities Act, upon delivery of a
certificate in the form of Exhibit "A" hereto, the Company shall issue
certificates representing the Shares ("Share Certificates") for the number of
full Shares to which the holder of such Warrants is entitled, registered in
accordance with the instructions set forth in the Election to Purchase. If such
Shares have not been registered under the Securities Act, the Share Certificates
shall bear a legend substantially similar to the legend on this Warrant
Certificate.
Section 3. Reorganization. In case of any reorganization of the Company, or
in the case of the consolidation or merger of the Company with or into any other
legal entity (other than a merger or consolidation in which the Company is a
continuing legal entity) or of the sale of the properties and assets of the
Company as, or an entity to any other legal entity (collectively,
"Reorganizations"), each Warrant shall after such Reorganization be exercisable,
upon the terms and conditions specified in this Warrant Certificate, for the
stock or other securities or property (including cash) to which a holder of the
number of Shares purchasable (at the time of such Reorganization) upon exercise
of such Warrant would have been entitled upon such Reorganization if such
Warrant had been exercised in full immediately prior to such Reorganization; and
in any case, if necessary, the provisions set forth in this Section 3 with
respect to the rights and interests thereafter of the holders of the Warrants
shall be appropriately adjusted so as to be applicable, as nearly as may
reasonably be, to any such stock or other securities or property thereafter
deliverable upon exercise of the Warrants. The Company shall not effect any such
Reorganization unless simultaneously with the consummation thereof, the
successor (if other than the Company) resulting from such Reorganization or the
legal entity purchasing such assets shall assume, by written instrument executed
and delivered to the holder of each Warrant, the obligation to deliver to the
holder of each Warrant such stock, securities or assets as, in accordance with
the foregoing provisions, such holders may be entitled to purchase, and the
other obligations under this Warrant Certificate.
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Section 4. Payment of Taxes. The Company will pay all registration and
transfer taxes and charges that may be imposed by the United States of America
or any state or territory thereof ("Taxes") attributable to the initial issuance
of Shares upon the exercise of Warrants prior to the close of business on the
Expiration date; provided, however that the Company shall not be required to pay
any taxes which may be payable in respect of transfer involved in the issuance
of any Warrant Certificates or any Share Certificate(s) in the name of other
than that of the Warrantholder of record surrendered upon the exercise of a
Warrant, and the Company shall not be required to issue or deliver such Share
Certificate(s) unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such Taxes or shall have
established to the satisfaction of the Company that such Taxes have been paid.
Section 5. Registration of Warrant Certificate.
(a) The Warrant Certificate shall be registered in the name of the record
holder to whom it is distributed.
(b) The Company may deem and treat the Warrantholder of record as the
absolute owner of this Warrant Certificate (notwithstanding any notation of
ownership or other writing thereon made by anyone) for the purpose of any
exercise thereof and any distribution to the holder thereof and for all other
purposes, and the Company shall not be affected by any notice to the Contrary.
Section 6. Registration Rights
6.1. Demand Registration. If at any time after April 15, 1997 and prior to
the Expiration Date, Warrantholder shall request Company in writing to register
under the Securities Act the Shares then owned by Warrantholder (which request
shall (i) specify the number of shares to be offered and sold, (ii) express
Warrantholder's present intent to offer such shares for distribution, (iii)
describe in general terms the nature or method of the proposed offer and sale
thereof and (iv) contain the undertaking of Warrantholder to provide all such
information and materials and take all such action as may be required in order
to permit Company to comply with all applicable requirements of the SEC and to
obtain acceleration of the effective date of such registration statement),
Company shall, subject to the provisions of Section 6.4 below, use all
reasonable efforts to cause the offering of the shares so specified in such
request to be registered with the SEC so as to permit the sale or other
distribution by Warrantholder of the Shares specified in its request, and in
connection therewith, prepare and file on an appropriate form, as Company and
Warrantholder shall together reasonably determine, a registration statement
under the Securities Act to effect such registration. Company shall not be
required to effect more than one registration pursuant to this Section 6.1;
provided, however, that if an offering is not completed for any cause other than
a cause attributable to Warrantholder, the registration effected in connection
with such offering shall not be counted for the purposes of this sentence.
6.2. Piggyback Registration. If Company shall propose the registration under
the Securities Act of an offering of its Common Stock, Company shall give
written notice as promptly as possible of such proposed registration to
Warrantholder and will use all reasonable efforts to cause the offering of the
Shares then owned by Warrantholder, if Warrantholder shall so request within 15
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days after the giving of such notice, to be included, upon the same terms
(including the method of distribution) in any such offering; provided, however,
that (a) Company shall not be required to give notice or include such shares in
any such registration if the proposed registration is primarily (i) a
registration of a stock option or compensation plan or of securities issued or
issuable pursuant to any such plan, or (ii) a registration of securities
proposed to be issued in exchange for securities or assets of, or in connection
with a merger or consolidation, with another corporation; (b) Company shall not
be required to include such shares in any such registration if Company is
advised in writing by its investment banking firm that the inclusion of such
shares would in its opinion have a material adverse effect on such proposed
offering of Common Stock; and (c) Company may, without the consent of
Warrantholder, withdraw such registration statement and abandon the proposed
offering in which Warrantholder had requested to participate.
6.3. Certain Conditions to Registration Rights. The obligation of Company to
use all reasonable efforts to cause Shares to be registered under the Securities
Act are subject to each of the following limitations, conditions and
qualifications;
(a) Company shall be entitled to postpone for a reasonable period of time
(not to exceed 120 days from the date of request to register pursuant to Section
6.1 above) the filing of a registration statement otherwise required to be
prepared and filed by it pursuant to Section 6.1 if Company is, at the time it
receives a request for registration pursuant to Section 6.1, conducting or
about to conduct within the next 60 days an offering or a private placement of
its securities and Company is advised in writing by its investment banking firm
that such offering or placement would in its opinion be materially and adversely
affected by the registration so demanded.
(b) In case of any offering or distribution by Warrantholder pursuant to an
underwritten or similar offering, the managing underwriter shall be an
investment banking firm or other party approved by Company, such approval not to
be unreasonably withheld.
6.4. Additional Covenants. In connection with any registration undertaken by
Company under Sections 6.1 or 6.2 of Shares,
(a) Company shall:
(i) furnish to Warrantholder or its underwriter such number of
copies of any prospectus (including any preliminary prospectus) as
Warrantholder may reasonably request in order to effect the offering and
sale of the shares to be offered and sold by Warrantholder;
(ii) use its best efforts to qualify the offering under applicable
Blue Sky laws or such other securities laws of jurisdictions within the
U.S. as may be necessary to enable Warrantholder to offer and sell the
shares; provided, however, that Company shall not be obligated to
qualify as a foreign corporation to do business under the laws of any
jurisdiction in which it is not then qualified or to file any general
consent to service of process;
(iii) except as provided in Sections 6.4(b)(i) below, pay all SEC
and blue sky registration and filing fees, printing and engraving
expenses, fees and disbursements of counsel
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for Company, transfer agents' and registrars' fees, fees and
disbursements of accountants used by Company in connection with such
registration and expenses incidental to any post-effective amendment to
any registration;
(iv) furnish Warrantholder with unlegended certificates representing
ownership of the shares sold pursuant to the registration in such
numbers and denomination as Warrantholder shall reasonably request,
meeting the requirements of such national securities exchange in the
U.S.A. or NASDAQ, if any, upon which such securities are listed or
quoted or are proposed to be listed or quoted; and
(b) Warrantholder shall:
(i) with respect to a registration (including any post-effective
amendments) pursuant to Section 6.1 or 6.2 above, pay all underwriting
discounts and commissions attributable to the Shares owned by
Warrantholder included in such offering and registration and expenses
directly incurred by Warrantholder (including, without limitation, fees
and disbursements of its counsel and accountants), in connection with
the offering and the registration thereof (whether or not a registration
statement is filed or becomes effective).
6.5 Indemnification Relating to Registrations. (a) In the case of each
registration effected by Company pursuant to this Article 6, Company agrees to
indemnify and hold harmless Warrantholder (or any party which shall have
succeeded to Warrantholder's registration rights), its officers and directors,
each underwriter of the shares so registered and each person who controls any
such underwriter within the meaning of Section 15 of the Securities Act, against
any and all losses, claims, damages or liabilities to which they or any of them
may become subject under the Securities Act or any other statute or common law
of the U.S. or any jurisdiction therein, including any amount paid in settlement
of any litigation, commenced or threatened, if such settlement is effected with
the written consent of Company, and to reimburse them for any legal or other
expenses incurred by them in connection with investigating any claims and
defending any actions insofar as any such losses, claims, damages, liabilities
or actions arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the registration statement
relating to the sale of such shares, or any post-effective amendment thereof, or
the omission or alleged omission to state therein a material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, (ii) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, if used prior to the
effective date of such registration statement, or contained in the prospectus
(as amended or supplement if Company shall have filed with the SEC any amendment
thereof or supplement thereto) if used within the period during which Company is
required to keep the registration statement to which such prospectus relates
current, or the omission or alleged omission to state therein (if so used) a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the indemnification agreement contained in this Section 6.5 shall not (x)
apply to such losses, claims, damages, expenses, liabilities or actions arising
out of, or based upon, any such untrue statement or alleged untrue statement, or
any such omission or alleged omission, if such statement or omission was made in
reliance upon and in conformity with information furnished in writing to
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Company by Warrantholder or such underwriter for use in connection with
preparation of the registration statement or any preliminary prospectus or
prospectus contained in the registration statement or any such amendment thereof
or supplement thereto or (y) inure to the benefit of any underwriter from whom
the person asserting any such losses, claims, damages, expenses, liabilities or
actions purchased the securities which are the subject thereof (or to the
benefit of any person controlling such underwriter) if such underwriter failed
to send or give a copy of the prospectus to such person at or prior to the
written confirmation of the sale of such securities to such person.
(b) In the case of each registration effected by Warrantholder or Company
pursuant to this Article 6, Warrantholder (or any party which shall have
succeeded to Warrantholder's registration rights) ad each underwriter of the
shares to be registered (each such party and such underwriters being referred to
severally in this Section 6.5 as the "Indemnifying Party") shall agree, in the
same manner and to the same extent as set forth in Section 6.5(a) above, to
indemnify and hold harmless Company and each person, if any, who controls
Company within the meaning of Section 15 of the Securities Act, its directors
and officers (each an "Indemnified Party"), with respect to any statement in or
omission from such registration statement or any post-effective amendment
thereof or any preliminary prospectus or prospectus (as amended or as
supplemented, if amended or supplemented as aforesaid) contained in such
registration statement if such statement or omission was made in reliance upon
and in conformity with information furnished in writing to Company by an
Indemnifying Party for use in connection with the preparation of such
registration statement or any preliminary prospectus or prospectus contained in
such registration statement or any such amendment thereof or supplement thereto.
(c) Each Indemnified Party will, promptly after the receipt of notice of the
commencement of any action against such Indemnified Party in respect of which
indemnity may be sought from an Indemnifying Party on account of an indemnity
agreement provided for in this Section 6, notify the Indemnifying Party in
writing of the commencement thereof. The omission of any Indemnified Party so to
notify an Indemnifying Party of any such action shall relieve the Indemnifying
Party from any liability in respect of such action which it may have to such
Indemnified Party on account of the indemnity agreement provided for in this
Section 6 but shall not relieve the Indemnifying Party from any other liability
which it may have to such Indemnified Party. In case any such action shall be
brought against any Indemnified Party and it shall notify an Indemnifying Party
of the commencement thereof, the Indemnifying Party will be entitled to
participate therein and, to the extent it may wish, jointly with any other
Indemnifying Party similarly notified, assume the defense thereof with counsel
satisfactory to such Indemnified Party, and after notice from the Indemnifying
Party to such Indemnified Party of its election so to assume the defense
thereof, the Indemnifying Party will not be liable to such Indemnified Party
under this Section 6 for any legal or other expenses subsequently incurred by
such Indemnified Party in connection with the defense thereof other than
reasonable costs of preparing for and answering investigations and monitoring
claims or actions.
Section 7. Nontransferable. This Warrant Certificate and the Warrants
represented hereby shall be neither transferable nor assignable, either
voluntarily or involuntarily, other than by will or by the laws of descent and
distribution and may be exercised during Warrantholder's lifetime, only by
Warrantholder.
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Section 8. Mutilated or Missing Warrant Certificates. In case this Warrant
Certificate shall be mutilated, lost, stolen or destroyed, the Company shall
issue and deliver, in exchange and substitution for and upon cancellation of the
mutilated Warrant Certificate, or in lieu of and substitution for any Warrant
Certificate lost, stolen or destroyed, a new Warrant Certificate of like tenor
and representing an equivalent number of Warrants, but only upon receipt of
evidence satisfactory to the Company of such loss, theft or destruction of such
Warrant Certificate and indemnity or bond, if requested, also satisfactory to
the Company. Applications for such substitute Warrant Certificate shall also
comply with such other reasonable conditions and charges as the Company may
prescribe.
Section 9. Notices.
(a) Any notice or demand authorized by this Warrant Certificate to be given
or made by the Warrantholder to or on the Company shall be in writing and shall
be sufficiently given or made if delivered personally against receipt thereof or
by overnight courier addressed (until another address is given in writing by the
Company) to the Office. All such notices and demand shall be deemed to have been
given on the date of receipt.
(b) Any notice or demand pursuant to this Warrant Certificate to be given by
the Company to the Warrantholder shall be sufficiently given or made if
delivered personally against receipt thereof or by overnight courier addressed
(until another address is filed in writing by the Warrantholder with the
Company) to the address specified in the Warrant register maintained by the
Company. All such notices and demands shall be deemed to have been given on the
date of receipt.
Section 10. Rights of Warrantholders; Voting. Nothing contained in this
Warrant Certificate shall be construed as conferring upon the Warrantholder any
of the rights of a shareholder of the Company, including without limitation to
the right to vote, to receive dividends and other distributions, to receive any
notice of, or attend to, meetings of shareholders or any proceedings of the
Company.
Section 11. Supplements and Amendments. The Company may from time to time
supplement or amend this Warrant Certificate without the consent or concurrence
of a Warrantholder in order to cure any ambiguity, manifest error or other
mistake in this Warrant Certificate, or to make provision in regard to any
matters or questions arising hereunder which the Company may deem necessary or
desirable and which shall not adversely affect, alter or change the interests of
the Warrantholder, without the written consent of the Company.
Section 12. Warrant Agent. The Company may appoint an agent, which agent may
be changed from time to time without notice to the Warrantholder, for the
purpose of issuing the Shares on the exercise of the Warrants, exchanging
Warrants, replacing Warrants or any of the foregoing, and thereafter any such
issuance, exchange or replacement shall be made at such office by such agent.
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Section 13. Successors. All the representations, warranties, covenants and
provisions of this Warrant Certificate by or for the benefit of the Company or
the Warrantholder shall bind and insure to the benefit of their respective
successors and assigns hereunder.
Section 14. Governing Law. This Warrant Certificate shall be deemed to be a
contract made under the laws of the state of California and for all purposes
shall be governed in accordance with the laws of said State, regardless of the
laws that might be applied under applicable principles of conflicts of laws,
with jurisdiction and venue deemed proper in Los Angeles County.
Section 15. Benefits of This Warrant Certificate. Nothing in this Warrant
Certificate shall be construed to give any person or entity other than the
Company and the Warrantholder any legal or equitable right, remedy or claim
under this Warrant Certificate, and this Warrant Certificate shall be for the
sole benefit of the Company and the Warrantholder.
Section 16. Interpretation. The headings contained in this Warrant
Certificate are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Warrant Certificate.
Section 17. Invalidity of Provisions. If any provision of the Warrant
Certificate is or becomes invalid, illegal or unenforceable in any respect, such
provision shall be amended to the extent necessary to cause it to express the
intent of the parties and be valid, legal and enforceable. The amendment of such
provision shall not affect the validity, legality or enforceability of any other
provision hereof.
Section 18. Anti-Dilution. In the event that the Company shall at any time
hereafter: (i) pay a dividend in common stock; (ii) subdivide or split its
outstanding common shares; (iii) combine or reclassify its outstanding common
shares into a smaller or greater number of hares; or (iv) issue additional
common shares without consideration in a transaction substantially similar to or
having an affect of the transactions described in clauses (i), (ii) and (iii)
above, then the number of Shares to be issued upon exercise of the Warrants
immediately after the occurrence of any such event shall be adjusted so that the
Warrantholder thereafter may receive the number of Shares it would have owned
immediately following such action if it had exercised the Warrants immediately
prior to such action and the Exercise Price shall be adjusted to reflect such
proportionate increases or decreases in the number of Shares as a result of such
event.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be duly executed on this 15th day of April, 1996.
KCD HOLDINGS INCORPORATED
A Nevada corporation
By:
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Name:
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Title: Vice-President and Director
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ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to ______ exercise of the Warrants
represented by this Warrant Certificate and to purchase the Shares issuable upon
the exercise of said Warrants, and requests that Certificates for such Shares be
issued and delivered as follows:
ISSUE TO:
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(Name)
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(Address, including ZIP Code)
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(Social Security or Tax Identification Number)
DELIVER TO:
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(Name)
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(Address, Including ZIP Code)
If the number of Warrants hereby exercised is less than all the Warrants
represented by this Warrant Certificate, the Undersigned request that a new
Warrant Certificate representing the number of full Warrants not exercised be
issued and delivered as set forth above or otherwise as the undersigned shall
direct in writing.
If full payment of the purchase price with respect to the Warrants exercised
and transfer taxes, if any, the undersigned hereby tenders payment of U.S.
$______ by certified check, bank cashier's check or money order payable in
United States currency to the order of the Company.
Dated:
-------------- -------------------------------------
Signature
(Signature must conform in all respects to
the name holder specified on the face of the
Warrant Certificate)
PLEASE INSERT SOCIAL SECURITY OR TAX
IDENTIFICATION NUMBER OF HOLDER
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EXHIBIT A
FORM OF WARRANTHOLDERS CERTIFICATE
The undersigned (the "Purchaser") is exercising the Warrants (the "Warrants")
tendered with this certificate, and in connection with such exercise, hereby
certifies to KCD Holdings Incorporated (the "Company") that the purchaser
understands and agrees that:
1. The shares of common stock of the Company (the "Shares") deliverable upon
exercises of the Warrants are not registered pursuant to the Securities Act of
1933, as amended (the "Securities Act"), and the offering and the sale of the
Shares is intended to be exempt from registration under the Securities Act.
2. The Shares to be acquired by the Purchaser pursuant to exercise of the
Warrants are being acquired for Purchaser's own account and without a view to
distribution of such Shares or any interest therein; provided that (i) this
representation shall not prejudice the Purchaser's right at all times to sell or
otherwise dispose of all or any part of the Shares so acquired by the Purchaser
pursuant to a registration under the Securities Act or an exemption from such
registration available under the Securities Act.
3. The Purchaser has such knowledge and experience in financial and business
matters so as to be capable of evaluating the merits and risks of its investment
and is able to bear a complete loss of its investment in the Shares.
4. The Purchaser represents and warrants that the Company has made available
to the Purchaser or its agents all documents and information with respect to the
Company and an investment in the Shares considered necessary by the Purchaser in
deciding whether to exercise the Warrants.
5. The Purchaser is an "accredited investor" as such term is defined in
Regulation D under the Securities Act.
6. All Shares issued on delivery of this certificate shall bear a legend
substantially in the form as set forth on page 1 of the Warrant Certificate.
IN WITNESS WHEREOF, the Purchaser has caused this Certificate to be duly
executed on this ___ day of _________________, ____.
PURCHASER
Company:
By:
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Name:
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Title:
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