Void after June __, 2008 Warrant No. D-
THIS SECURITY AND ANY SHARES ISSUED UPON THE EXERCISE OR CONVERSION OF
THIS SECURITY HAVE NOT BEEN REGISTERED 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 COMPLIANCE WITH APPLICABLE STATE SECURITIES
LAWS OR BLUE SKY LAWS.
AXS-ONE INC.
CLASS D COMMON STOCK PURCHASE WARRANT
AXS-One Inc. (the "Company"), having its principal office as of the
date hereof at 000 Xxxxx 00 Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, hereby
certifies that, for value received, _____________, or registered assigns, is
entitled, subject to the terms and conditions set forth below, to purchase from
the Company at any time on or from time to time after _______ __, 2005 and
before 5:00 P.M., New York City time, on June __, 2008 (the "Expiration Date"),
__________ fully paid and non-assessable shares of Common Stock (as defined
below), at the initial Purchase Price per share (as defined below) of $2.15. The
number of such shares of Common Stock and the Purchase Price per share are
subject to adjustment as provided in Section 5.
Background. The Company agreed to issue warrants, including
this Warrant, to purchase an aggregate of 453,442 shares of Common Stock
(subject to adjustment as provided in Section 5) in connection with the
Company's private placement of 453.45 units ("Units"), each Unit consisting of
(i) 10,000 shares of Common Stock, (ii) a Class C warrant to purchase 1,000
shares of Common Stock at $1.90 per share, and (iii) a Class D warrant to
purchase 1,000 shares of Common Stock at $2.15 per share.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
"Aggregate Purchase Price" has the meaning set forth in
Section 3.1.
"AMEX" means the American Stock Exchange, Inc.
"Blue Sky Laws" means any state securities or "blue sky" laws.
"Board of Directors" means the board of directors of the
Company.
"Business Day" means any day other than Saturday, Sunday or
other day on which commercial banks in The City of New York are authorized or
required by law to remain closed.
"Company" includes the Company and any corporation which shall
succeed to or assume the obligations of the Company hereunder. The term
"corporation" shall include an association, joint stock company, business trust,
limited liability company or other similar organization.
"Common Stock" means the Company's Common Stock, $.01 par
value per share, authorized as of the date hereof, and any stock of any class or
classes (however designated) hereafter authorized upon reclassification thereof,
which, if the Board of Directors declares any dividends or distributions, has
the right to participate in the distribution of earnings and assets of the
Company after the payment of dividends or other distributions on any shares of
capital stock of the Company entitled to a preference and in the voting for the
election of directors of the Company.
"Convertible Securities" means (i) options to purchase or
rights to subscribe for Common Stock, (ii) securities by their terms convertible
into or exchangeable for Common Stock or (iii) options to purchase or rights to
subscribe for such convertible or exchangeable securities.
"Exchange Act" means the Securities Exchange Act of 1934 as
the same shall be in effect at the time.
"Holder" means any record owner of Warrants or Underlying
Securities.
"Investor" has the meaning set forth in the Unit Subscription
Agreement.
"Investor Rights Agreement" has the meaning set forth in
Section 1.
"Market Price" means at any date (i) if the principal trading
market for such securities is AMEX or another exchange, the average of the
closing sale prices per share for the last ten previous trading days in which a
sale was reported, as officially reported on any consolidated tape, (ii) if the
principal market for such securities is the over-the-counter market, the average
of the closing sale prices per share on the last ten previous trading days in
which a sale was reported as set forth by Nasdaq or, (iii) if the security is
not listed on another exchange or Nasdaq, the average of the closing sale prices
per share on the last ten previous trading days in which a sale was reported as
set forth in the National Quotation Bureau sheet listing such securities for
such days. Notwithstanding the foregoing, if there is no reported closing sale
price,
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as the case may be, reported on any of the ten trading days preceding the event
requiring a determination of Market Price hereunder, then the Market Price shall
be the average of the high bid and asked prices for the last ten previous
trading days in which a sale was reported; and if there is no reported high bid
and asked prices, as the case may be, reported on any of the ten trading days
preceding the event requiring a determination of Market Price hereunder, then
the Market Price shall be determined in good faith by resolution of the Board of
Directors.
"Nasdaq" means the Nasdaq SmallCap Market or Nasdaq Stock
Market.
"Notice" has the meaning set forth in Section 21.
"Original Issue Date" means June __, 2005.
"Other Securities" refers to any stock (other than Common
Stock) and other securities of the Company or any other Person (corporate or
otherwise) which the Holders of the Warrants at any time shall be entitled to
receive, or shall have received, upon the exercise of the Warrants, in lieu of
or in addition to Common Stock, or which at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 5 or 6.
"Person" means any individual, sole proprietorship,
partnership, corporation, limited liability company, business trust,
unincorporated association, joint stock corporation, trust, joint venture or
other entity, any university or similar institution, or any government or any
agency or instrumentality or political subdivision thereof.
"Purchase Price per share" means $2.15 per share, as may be
adjusted from time to time in accordance with Section 5 or 6.
"registered" and "registration" refer to a registration
effected by filing a registration statement in compliance with the Securities
Act, to permit the disposition of Underlying Securities issued or issuable upon
the exercise of Warrants, and any post-effective amendments and supplements
filed or required to be filed to permit any such disposition.
"Securities Act" means the Securities Act of 1933 as the same
shall be in effect at the time.
"Underlying Securities" means any Common Stock or Other
Securities issued or issuable upon exercise of Warrants.
"Unit Subscription Agreement" means the Unit Subscription
Agreement, dated as of June 17, 2005, among the Company and the Investors.
"Warrant" means, as applicable, (i) the Class D Warrants
dated as of the date hereof, originally issued by the Company pursuant to the
Unit Subscription Agreement, of which this Warrant is one, evidencing rights to
purchase up to an aggregate of 453,442 shares of Common Stock, and all Warrants
issued upon transfer, division or combination of, or in
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substitution for, any thereof (all Warrants shall at all times be identical as
to terms and conditions and date, except as to the number of shares of Common
Stock for which they may be exercised) or (ii) each right as set forth in this
Warrant to purchase one share of Common Stock, as adjusted from time to time in
accordance with Section 5 or 6.
1. Registration, etc. The Holder shall have the rights to
registration of Underlying Securities issuable upon exercise of the Warrants
that are set forth in the Investor Rights Agreement, dated the Original Issue
Date, among the Company and each of the Investors (the "Investor Rights
Agreement").
2. Sale or Exercise Without Registration. If, at the time of
any exercise, transfer or surrender for exchange of a Warrant or of Underlying
Securities previously issued upon the exercise of Warrants, such Warrant or
Underlying Securities shall not be registered under the Securities Act, the
Company may require, as a condition of allowing such exercise, transfer or
exchange, that the Holder or transferee of such Warrant or Underlying
Securities, as the case may be, furnish to the Company an opinion of counsel,
reasonably satisfactory to the Company, to the effect that such exercise,
transfer or exchange may be made without registration under the Securities Act
and without registration or qualification under any applicable Blue Sky Laws,
provided that nothing contained in this Section 2 shall relieve (a) the Company
from complying with the Investor Rights Agreement or (b) the Holder from its
obligations under the Unit Subscription Agreement.
3. Exercise of Warrant.
3.1. Exercise in Full. Subject to the provisions
hereof, this Warrant may be exercised in full by the Holder hereof by
surrender of this Warrant, with the form of subscription at the end
hereof duly executed by such Holder, to the Company at its the
principal office of the Company set forth at the head of this Warrant
(or such other location as the Company from time to time may advise the
Holder in writing), accompanied by payment, in cash or by certified or
official bank check payable to the order of the Company, in the amount
obtained (the "Aggregate Purchase Price") by multiplying (a) the number
of shares of Common Stock then issuable upon exercise of this Warrant
by (b) the Purchase Price per share on the date of such exercise.
3.2. Partial Exercise. Subject to the provisions
hereof, this Warrant may be exercised in part by surrender of this
Warrant in the manner and at the place provided in Section 3.1 except
that the amount payable by the Holder upon any partial exercise shall
be the amount obtained by multiplying (a) the number of shares of
Common Stock designated by the Holder in the subscription at the end
hereof by (b) the Purchase Price per share on the date of such
exercise. Upon any such partial exercise, the Company at its expense
shall forthwith issue and deliver to or upon the order of the Holder
hereof a new Warrant or Warrants of like tenor, in the name of the
Holder hereof or as such Holder (upon payment by such Holder of any
applicable transfer taxes and subject to the provisions of Section 2)
may request, calling in the aggregate on the face or faces thereof for
the number of shares of Common Stock equal to the number of such
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shares issuable prior to such partial exercise of this Warrant minus
the number of such shares designated by the Holder in the subscription
at the end hereof.
3.3. Company to Reaffirm Obligations. The Company
shall, at the time of any exercise of this Warrant, upon the request of
the Holder hereof, acknowledge in writing its continuing obligation to
afford to such Holder any rights (including, without limitation, any
right to registration of the Underlying Securities, if any) to which
such Holder shall continue to be entitled after such exercise in
accordance with the provisions of this Warrant; provided, however, that
if the Holder of this Warrant shall fail to make any such request, such
failure shall not affect the continuing obligation of the Company to
afford such Holder any such rights.
3.4. Certain Exercises. If an exercise of this
Warrant is to be made in connection with a registered public offering
or sale of the Company, such exercise may, at the election of the
Holder, be conditioned on the consummation of the public offering or
sale of the Company, in which case such exercise shall not be deemed
effective until the consummation of such transaction.
4. Delivery of Stock Certificates, etc., on Exercise. As soon
as practicable after the exercise of this Warrant in full or in part, and in any
event within three Business Days thereafter, the Company at its own expense
(including the payment by it of any applicable issue taxes) shall cause to be
issued in the name of and delivered to the Holder hereof, or as such Holder
(upon payment by such Holder of any applicable transfer taxes and subject to the
provisions of Section 2) may direct, a certificate or certificates for the
number of fully paid and non-assessable shares of Common Stock or other
Securities to which such Holder shall be entitled upon such exercise, plus, in
lieu of any fractional share to which such Holder would otherwise be entitled,
cash equal to such fraction multiplied by the then current Market Price of one
full share.
5. Adjustment for Dividends.
(a) In case at any time or from time to time after the
Original Issue Date, the Company shall at any time declare or pay a dividend
upon its Common Stock payable in shares of Common Stock, the Purchase Price per
share in effect immediately prior to such dividend shall be proportionately
reduced.
(b) If the number of shares of Common Stock outstanding
at any time after the Original Issue Date is decreased by a combination or
reverse stock split of the outstanding shares of Common Stock, the Purchase
Price per share shall be increased in proportion to such decrease. If the number
of shares of Common Stock outstanding at any time after the Original Issue Date
is increased by a forward stock split of the outstanding shares of Common Stock
or otherwise, the Purchase Price per share shall be decreased in proportion to
such increase.
(c) Upon each adjustment to the Purchase Price per
share, the Holder of this Warrant shall thereafter be entitled to purchase, at
the Purchase Price per share resulting
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from such adjustment, the number of shares of Common Stock obtained by
multiplying the Purchase Price per share in effect immediately prior to such
adjustment by the number of shares of Common Stock purchasable pursuant hereto
immediately prior to such adjustment, and dividing the product thereof by the
Purchase Price per share resulting from such adjustment.
6. Reorganization, Consolidation, Merger, etc. In case the
Company after the Original Issue Date shall (a) effect a reorganization, (b)
consolidate with or merge into any other Person, or (c) transfer all or
substantially all of its properties or assets to any other Person under any plan
or arrangement contemplating the dissolution of the Company, then, in each such
case, the Holder of this Warrant, upon the exercise hereof as provided in
Section 3 at any time after the consummation of such reorganization,
consolidation or merger or the effective date of such dissolution, as the case
may be, shall be entitled to receive (and the Company or its successors or
assigns shall be entitled to deliver), in lieu of the Underlying Securities
issuable upon such exercise prior to such consummation or such effective date,
the stock and other securities and property (including cash) to which such
Holder would have been entitled upon such consummation or in connection with
such dissolution, as the case may be, if such Holder had so exercised this
Warrant immediately prior thereto. Upon receipt of such stock and other
securities and property (including cash), if any, the rights of the Holder under
this Warrant shall terminate and cease and this Warrant shall expire and be of
no force and effect. In any such case, the Company (or its successors or
assigns) shall be entitled to make appropriate adjustments in the application of
the provisions of this Warrant with respect to the rights and interests of the
Holder after such reorganization, merger, consolidation or dissolution. The
Company shall not effect any such reorganization, consolidation, merger or
dissolution, unless prior to or simultaneously with the consummation thereof,
the successor corporation resulting from such consolidation or merger or the
corporation purchasing such assets shall confirm or assume, by written
instrument, the obligation to deliver to each Holder the shares of stock, cash,
other securities or assets to which, in accordance with the foregoing
provisions, each Holder may be entitled to and all other obligations of the
Company under this Warrant.
7. Further Assurances; Reports. The Company shall take all
such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and non-assessable shares of Underlying
Securities upon the exercise of all Warrants from time to time outstanding. For
so long as the Holder holds this Warrant, the Company shall deliver to the
Holder contemporaneously with delivery to the holders of Common Stock, a copy of
each report of the Company delivered to such holders.
8. Certificate as to Adjustments. In each case of any
adjustment or readjustment in the Underlying Securities, the Company shall, at
its expense, promptly cause its Chief Financial Officer to compute such
adjustment or readjustment in accordance with the terms of this Warrant and
prepare a certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is based, and the
number of shares of Common Stock or Other Securities outstanding or deemed to be
outstanding. The Company shall forthwith mail a copy of each such certificate to
the Holder.
9. Notices of Record Date, etc. In the event of
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(a) any taking by the Company of a record of its
stockholders for the purpose of determining the stockholders
thereof who are entitled to receive any dividend or other
distribution (other than a quarterly dividend payable solely in
cash), or any right to subscribe for, purchase or otherwise
acquire any shares of stock of any class or any other securities
or property, or to receive any other right, or for the purpose
of determining stockholders who are entitled to vote in
connection with any proposed capital reorganization of the
Company, any reclassification or recapitalization of the capital
stock of the Company or any transfer of all or substantially all
the assets of the Company to or consolidation or merger of the
Company with or into any other Person, or
(b) any voluntary or involuntary dissolution,
liquidation or winding-up of the Company,
then and in each such event the Company shall mail or cause to be mailed to each
Holder of a Warrant a notice specifying (i) the date on which any such record is
to be taken for the purpose of such dividend, distribution or right, and stating
the amount and character of such dividend, distribution or right and (ii) the
date on which any such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up is to
take place, and the time, if any, as of which the Holders of record of
Underlying Securities shall be entitled to exchange their shares of Underlying
Securities for securities or other property deliverable upon such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up. Such notice shall be mailed at
least 20 days prior to the date therein specified.
10. Reservation of Stock, etc., Issuable on Exercise of
Warrants. The Company shall at all times reserve and keep available, solely for
issuance and delivery upon the exercise of the Warrants, all shares of Common
Stock (or Other Securities) from time to time issuable upon the exercise of the
Warrants.
11. Listing on Securities Exchanges; Registration; Issuance of
Certain Securities. In furtherance and not in limitation of any other provision
of this Warrant, if the Company at any time shall list any Common Stock (or
Other Securities) on any national securities exchange or Nasdaq, the Company
shall, at its expense, simultaneously list the Underlying Securities from time
to time issuable upon the exercise of the Warrants on such exchange or Nasdaq,
upon official notice of issuance.
12. Exchange of Warrants. Subject to the provisions of Section
2, upon surrender for exchange of this Warrant, properly endorsed, to the
Company, as soon as practicable (and in any event within three Business Days)
the Company at its own expense shall issue and deliver to or upon the order of
the Holder thereof a new Warrant or Warrants of like tenor, in the name of such
Holder or as such Holder (upon payment by such Holder of any applicable transfer
taxes) may direct, calling in the aggregate on the face or faces thereof for the
number of shares of Common Stock called for on the face of this Warrant so
surrendered.
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13. Replacement of Warrants. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of any such loss, theft or
destruction, upon delivery of an indemnity agreement reasonably satisfactory in
form and amount to the Company or, in the case of any such mutilation, upon
surrender and cancellation of this Warrant, the Company at its expense shall
execute and deliver, in lieu thereof, a new Warrant of like tenor.
14. Warrant Agent. The Company may, by written notice to each
Holder of a Warrant, appoint an agent having an office in New York, New York,
for the purpose of issuing Common Stock (or Other Securities) upon the exercise
of the Warrants pursuant to Section 3, exchanging Warrants pursuant to Section
12, and replacing Warrants pursuant to Section 13, or any of the foregoing, and
thereafter any such issuance, exchange or replacement, as the case may be, shall
be made at such office by such agent.
15. Remedies. The Company stipulates that the remedies at law
of the Holder of this Warrant in the event of any default or threatened default
by the Company in the performance of or compliance with any of the terms of this
Warrant may not be adequate, and that such terms may be specifically enforced by
a decree for the specific performance of any agreement contained herein or by an
injunction that may be sought against a violation of any of the terms hereof or
otherwise.
16. No Rights as Stockholder. This Warrant does not entitle
the Holder hereof to any voting rights or other rights as a stockholder of the
Company prior to the exercise hereof.
17. Negotiability, etc. Subject to Section 2, this Warrant is
issued upon the following terms, to all of which each Holder or owner hereof by
the taking hereof consents and agrees that:
(a) subject to the provisions of this Warrant and the
Unit Subscription Agreement, title to this Warrant may be
transferred by endorsement (by the Holder hereof executing the
form of assignment at the end hereof); and
(b) until this Warrant is transferred on the books of
the Company, the Company may treat the registered Holder
hereof as the absolute owner hereof for all purposes,
notwithstanding any notice to the contrary.
18. Entire Agreement; Successors and Assigns. This Warrant,
the Unit Subscription Agreement and the Investor Rights Agreement constitute the
entire contract between the parties relative to the subject matter hereof. This
Warrant, the Unit Subscription Agreement and the Investor Rights Agreement
supersede any previous agreement among the parties with respect to the subject
matter hereof. The terms and conditions of this Warrant shall inure to the
benefit of and be binding upon the respective permitted executors,
administrators, heirs, successors and assigns of the parties. Nothing in this
Warrant, expressed or implied, is intended to confer upon any party, other than
the Holder and the Company, any rights, remedies, obligations or liabilities
under or by reason of this Warrant.
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19. Governing Law; Jurisdiction. This Warrant shall be
governed by and construed in accordance with the laws of the State of New York
without regard to principles of conflicts of law. Each of the Holder and the
Company hereby irrevocably consents and submits to the jurisdiction of any New
York State or United States Federal Court sitting in the State of New York,
County of New York, over any action or proceeding arising out of or relating to
this Warrant and irrevocably consents to the service of any and all process in
any such action or proceeding in the manner for the giving of notices at its
address specified in Section 21. Each of the Holder and the Company further
waives any objection to venue in the State of New York, County of New York and
any objection to an action or proceeding in such state and county on the basis
of forum non conveniens. Each of the Holder and the Company also waives any
right to trial by jury.
20. Headings. The headings of the sections of this Warrant are
for convenience and shall not by themselves determine the interpretation of this
Warrant.
21. Notices. Any notice or other communication required or
permitted to be given hereunder (each a "Notice") shall be given in writing and
shall be made by personal delivery or sent by courier or certified or registered
first-class mail (postage pre-paid), addressed to a party at its address shown
below or at such other address as such party may designate by three days'
advance Notice to the other party.
Any Notice to the Holder shall be sent to the address for such
Xxxxxx set forth on books and records of the Company.
Any Notice to the Company shall be sent to:
AXS-One Inc.
000 Xxxxx 00 Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Financial Officer
Each Notice shall be deemed given and effective upon receipt
(or refusal of receipt).
22. Severability. Whenever possible, each provision of this
Warrant shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be deemed prohibited
or invalid under such applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, and such prohibition or invalidity
shall not invalidate the remainder of such provision or any other provision of
this Warrant.
23. Amendments and Waivers. Any provision of this Warrant may
be amended and the observance of any provision of this Warrant may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Holder of
the Warrant.
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24. Construction. Words (including capitalized terms defined
herein) in the singular shall be held to include the plural and vice versa as
the context requires. The words "herein", "hereinafter", "hereunder" and words
of similar import used in this Warrant shall, unless otherwise stated, refer to
this Warrant as a whole and not to any particular provision of this Warrant. All
references to "$" in this Warrant and the other agreements contemplated hereby
shall refer to United States dollars (unless otherwise specified expressly). Any
reference to any gender includes the other genders.
25. Assignability. Subject to Section 2, this Warrant is fully
assignable at any time.
Dated: June __, 2005
AXS-ONE INC.
By:
------------------------------
Name:
Title:
Attest:___________________________
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FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To: AXS-ONE INC.
The undersigned, the Holder of the within Warrant, hereby
irrevocably elects to exercise the purchase right represented by such Warrant
for, and to purchase thereunder, * shares of Common Stock of AXS-One Inc., and
herewith makes payment of $__________ and requests that the certificates for
such shares be issued in the name of, and delivered to, ___________________,
whose address is _______________________.
The undersigned represents that the undersigned is acquiring such
securities for its own account for investment and not with a view to or for sale
in connection with any distribution thereof (except for any resale pursuant to,
and in accordance with a valid registration statement effective under the
Securities Act of 1933).
Dated:
------------------------------------------
(Signature must conform in all respects to
the name of the Holder as specified on the
face of the Warrant)
------------------------------------------
(Address)
* Insert here the number of shares called for on the face of the Warrant (or,
in the case of a partial exercise, the portion thereof as to which the
Warrant is being exercised).
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FORM OF ASSIGNMENT
(To be signed by the Holder only upon transfer of Warrant)
For value received, the undersigned hereby sells, assigns and
transfers unto _________________________ the right represented by the within
Warrant to purchase _________ shares of Common Stock of AXS-One Inc. to which
the within Warrant relates, and hereby does irrevocably constitute and appoint
______________________________ Attorney to transfer such right on the books of
AXS-One Inc. with full power of substitution in the premises. The Warrant being
transferred hereby is one of the Class D Warrants issued by AXS-One Inc. as of
June __, 2005 to purchase an aggregate of _________ shares of Common Stock.
Dated:_______________
------------------------------------------
(Signature must conform in all respects
to name of Xxxxxx as specified on the face
of the Warrant)
------------------------------------------
(Address)
-----------------------------------
Signature guaranteed by a bank or
trust company having its principal
office in New York City or by a
Member Firm of the New York Stock
Exchange or American Stock Exchange
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