Exhibit 4.4
WARRANT
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR QUALIFIED UNDER STATE
SECURITIES LAWS BUT HAVE BEEN, OR WILL BE, AS THE CASE MAY BE, ISSUED PURSUANT
TO AN EXEMPTION FROM SUCH REGISTRATION AND MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHEREWISE DISPOSED OF UNLESS (I) THE ISSUER THEREOF
SHALL HAVE RECEIVED AN OPINION OF COUNSEL TO THE EFFECT THAT NO REGISTRATION OR
QUALIFICATION THEREOF IS LEGALLY REQUIRED FOR SUCH TRANSFER OR (II) COVERED BY
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND QUALIFIED UNDER
APPLICABLE STATE SECURITIES LAWS.
No. W-CS-000__ Warrant to Purchase ____ Shares of
Common Stock (subject
to adjustment)
WARRANT TO PURCHASE COMMON STOCK
OF
XXXXXXXXX.XXX, INC.
Void after ___________________or as otherwise provided herein.
This certifies that, for value received, ____________________________,
or its registered assigns ("Holder") is entitled, subject to the terms set forth
below, to purchase from XXXXXXXXX.XXX, INC. (the "Company"), a Delaware
corporation, ___________________ shares of the Common Stock of the Company (the
"Shares"), as constituted on __________________ (the "Warrant Issue Date"), upon
surrender hereof, at the principal office of the Company referred to below, with
the subscription form attached hereto duly executed, and simultaneous payment
therefor in lawful money of the United States or otherwise as hereinafter
provided, at the exercise price (the "Exercise Price") as set forth in Section 2
below. The number, character and Exercise Price of such Shares are subject to
adjustment as provided below. The term "Warrant" as used herein shall include
this Warrant, which is one of a series of warrants issued for the Shares of the
Company, and any warrants delivered in substitution or exchange therefor as
provided herein.
1. Term of Warrant. Subject to the terms and conditions set forth
herein, this Warrant shall be exercisable, in whole or in part, during the term
commencing on the Warrant Issue Date and ending on at 5:00 P.M., Pacific
standard time and shall be void thereafter.
2. Exercise Price. The Exercise Price at which this Warrant may be
exercised shall be per Share.
3. Exercise of Warrant.
(a) The purchase rights represented by this Warrant are exercisable by
the Holder in whole during the term hereof as described in Section 1 above, by
the surrender of this Warrant and the Notice of Exercise annexed hereto duly
completed and executed on behalf of the Holder, at the office of the Company (or
such other office or agency of the Company as it may designate by notice in
writing to the Holder at the address of the Holder appearing on the books of the
Company), upon payment (i) in cash or by check acceptable to the Company, (ii)
by cancellation by the Holder of indebtedness of the Company to the Holder, or
(iii) by a combination of (i) and (ii), of the Exercise Price of the Shares to
be purchased.
(b) This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person entitled to receive the Shares of Common Stock
issuable upon such exercise shall be treated for all purposes as the holder of
record of such Shares as of the close of business on such date. As promptly as
practicable on or after such date and in any event within ten (10) days
thereafter, the Company at its expense shall issue and deliver to the person or
persons entitled to receive the same a certificate or certificates for the
number of Shares issuable upon such exercise.
4. No Fractional Shares or Scrip. No fractional Shares or scrip
representing fractional Shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise be
entitled, the Company shall make a cash payment equal to the Exercise Price
multiplied by such fraction.
5. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and substance to the Company
or, in the case of mutilation, on surrender and cancellation of this Warrant,
the Company at its expense shall execute and deliver, in lieu of this Warrant, a
new warrant of like tenor and amount.
6. Rights of Stockholders. Nothing contained in this Warrant shall be
determined as conferring upon or entitle the Holder to any rights of a
stockholder of the Company.
7. Repurchase Right
(a) Xxxxx of Repurchase Right. The Company is hereby granted the right
(the "Repurchase Right"), exercisable at any time (i) during the ninety (90) day
period following completion of services under the initial term of the service
agreement between Holder and the Company (the "Termination Date"), (ii) during
the sixty (60) day period following an exercise of the Warrant that occurs after
the Termination Date, or (iii) during the sixty (60) day period immediately
prior to a Corporate Transaction as defined below, to repurchase all or (at the
discretion of the Company) any portion of the exercised or unexercised Shares
held by Xxxxxx and represented by this Warrant.
(b) Corporate Transaction. A corporate transaction ("Corporate
Transaction") shall be defined as (1) a reorganization (other than a
combination, reclassification, exchange or subdivision of shares otherwise
provided for herein), or (2) a merger, acquisition or consolidation of the
Company with or into another corporation in which the Company is not the
surviving entity, or a reverse triangular merger in which the Company is the
surviving entity but the Shares of the Company's capital stock outstanding
immediately prior to the merger are converted by virtue of the merger into other
property, whether in the form of securities, cash or otherwise, or (3) a sale,
transfer, or other disposition of all or substantially all of the properties and
assets of the Company, or (4) the closing of a secondary public offering by the
Company of its equity securities pursuant to an effective registration statement
filed under the Securities Act.
(c) Exercise of the Repurchase Right. The Repurchase Right shall be
exercisable by written notice delivered to each the Holder prior to the
expiration of the time periods specified above. The notice shall indicate the
number of Shares to be repurchased and the date on which the repurchase is to be
effected, such date to be not more than thirty (30) days after the date of
notice ("Repurchase Date"). On the Repurchase Date, the Company and/or its
assigns shall pay to the Holder in cash or cash equivalents (including the
cancellation of any purchase-money indebtedness) an amount equal to the greater
of either (1) the estimated Fair Market Value of the Shares business day
immediately preceding the Repurchase Date, or (2) the Exercise Price previously
paid for the Shares which are to be repurchased from the Holder. Upon such
payment or into escrow for the benefit of the Holder, the Company and/or its
assigns shall become the legal and beneficial owner of the Shares being
repurchased and all rights and interest thereon or related thereto, and the
Company shall have the right to transfer to its own name or its assigns the
number of Shares being repurchased, without further action by the Holder.
(d) Assignment. Whenever the Company shall have the right to purchase
Shares under this Repurchase Right, the Company may designate and assign one or
more employees, officers, directors or shareholders of the Company or other
persons or organizations, to exercise all or a part of the Company's Repurchase
Right.
(e) Termination of the Repurchase Right. The Repurchase Right shall
terminate with respect to any Shares for which it is not timely exercised. In
addition, the Repurchase Right shall terminate, and cease to be exercisable,
with respect to all Shares upon the Registration Date.
(f) Additional Shares or Substituted Securities. In the event of any
stock split, stock dividend, recapitalization, combination of shares, exchange
of shares or other change affecting the outstanding Common Stock as a class
effected without the Company's receipt of consideration, any new, substituted or
additional securities or other property (including money paid other than as a
regular cash dividend) which is by reason of any such transaction distributed
with respect to the Shares shall be immediately subject to the Repurchase Right,
but only to the extent the Shares are at the time covered by such right.
Appropriate adjustments to reflect the distribution of such securities or
property shall be made to the price per share to be paid upon the exercise of
the Repurchase Right in order to reflect the effect of any such transaction upon
the Company's capital structure.
(g) Corporate Transaction. Immediately prior to the consummation of a
Corporate Transaction, the Repurchase Right shall automatically lapse in its
entirety, except to the extent the Repurchase Right is to be assigned to the
successor corporation (or its parent company) in connection with such Corporate
Transaction, the right shall apply to the new capital stock or other property
(including cash paid other than as a regular cash dividend) received in exchange
for the Shares in consummation of the Corporate Transaction, but only to the
extent the Shares are at the time covered by such right. Appropriate adjustments
shall be made to the price per share payable upon exercise of the Repurchase
Right to reflect the effect of the Corporate Transaction upon the Company's
capital structure.
8. Transfer of Warrant.
(a) Warrant Register. The Company will maintain a register (the
"Warrant Register") containing the names and addresses of the Holder or Holders.
Any Holder of this Warrant or any portion thereof may change his address as
shown on the Warrant Register by written notice to the Company requesting such
change. Any notice or written communication required or permitted to be given to
the Holder may be delivered or given by mail to such Holder as shown on the
Warrant Register and at the address shown on the Warrant Register. Until this
Warrant is transferred on the Warrant Register of the Company, the Company may
treat the Holder as shown on the Warrant Register as the absolute owner of this
Warrant for all purposes, notwithstanding any notice to the contrary.
(b) Warrant Agent. The Company may, by written notice to the Holder,
appoint an agent for the purpose of maintaining the Warrant Register referred to
in Section 8(a) above, issuing the Common Stock or other securities then
issuable upon the exercise of this Warrant, exchanging this Warrant, replacing
this Warrant, or any or all of the foregoing. Thereafter, any such registration,
issuance, exchange, or replacement, as the case may be, shall be made at the
office of such agent.
(c) Transferability and Nonnegotiability of Warrant. This Warrant may
not be transferred or assigned in whole or in part without compliance with all
applicable federal and state securities laws by the transferor and the
transferee (including the delivery of investment representation letters and
legal opinions reasonably satisfactory to the Company, if such are requested by
the Company) and the written consent of the Company. Subject to the provisions
of this Warrant with respect to compliance with the Securities Act, title to
this Warrant may be transferred by endorsement (by the Holder executing the
Assignment Form annexed hereto) and delivery in the same manner as a negotiable
instrument transferable by endorsement and delivery.
(d) Exchange of Warrant Upon a Transfer. On surrender of this Warrant
for exchange, properly endorsed on the Assignment Form and subject to the
provisions of this Warrant with respect to compliance with the Securities Act
and with the limitations on assignments and transfers and contained in this
Section 8, the Company at its expense shall issue to or on the order of the
Holder a new warrant or warrants of like tenor, in the name of the Holder or as
the Holder (on payment by the Holder of any applicable transfer taxes) may
direct, for the number of Shares issuable upon exercise hereof.
(e) Compliance with Securities Laws.
(i) The Holder of this Warrant, by acceptance hereof,
acknowledges that this Warrant and the Shares to be issued upon exercise hereof
or conversion thereof are being acquired solely for the Holder's own account and
not as a nominee for any other party, and for investment, and that the Holder
will not offer, sell or otherwise dispose of this Warrant or any Shares to be
issued upon exercise hereof or conversion thereof except under circumstances
that will not result in a violation of the Securities Act or any state
securities laws. Upon exercise of this Warrant, the Holder shall, if requested
by the Company, confirm in writing, in a form satisfactory to the Company, that
the Shares of Common Stock so purchased are being acquired solely for the
Holder's own account and not as a nominee for any other party, for investment,
and not with a view toward distribution or resale.
(ii) This Warrant and all Shares issued upon exercise hereof
or conversion thereof shall be stamped or imprinted with a legend in
substantially the following form (in addition to any legend required by state
securities laws):
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR
QUALIFIED UNDER STATE SECURITIES LAWS BUT HAVE BEEN, OR WILL BE, AS THE
CASE MAY BE, ISSUED PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION AND
MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHEREWISE
DISPOSED OF UNLESS (I) THE ISSUER THEREOF SHALL HAVE RECEIVED AN
OPINION OF COUNSEL TO THE EFFECT THAT NO REGISTRATION OR QUALIFICATION
THEREOF IS LEGALLY REQUIRED FOR SUCH TRANSFER OR (II) COVERED BY AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND QUALIFED
UNDER APPLICABLE STATE SECURITIES LAWS.
9. Reservation of Stock. The Company covenants that during the term
this Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of Shares to provide for the issuance
of Common Stock upon the exercise of this Warrant and, from time to time, will
take all steps necessary to amend its Certificate of Incorporation (the
"Certificate") to provide sufficient reserves of Shares issuable upon exercise
of the Warrant. The Company further covenants that all Shares that may be issued
upon the exercise of rights represented by this Warrant and payment of the
Exercise Price, all as set forth herein, will be free from all taxes, liens and
charges in respect of the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously or otherwise specified herein). The Company
agrees that its issuance of this Warrant shall constitute full authority to its
officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for Shares upon the exercise of
this Warrant.
10. Notices.
(a) Whenever the Exercise price or number of Shares purchasable
hereunder shall be adjusted pursuant to Section 12 hereof, the Company shall
issue a certificate signed by its Chief Financial Officer setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated, and the Exercise
Price and number of Shares purchasable hereunder after giving effect to such
adjustment, and shall cause a copy of such certificate to be mailed (by
first-class mail, postage prepaid) to the Holder of this Warrant.
(b) If:
(i) the Company shall take a record of the holders of its
Common Stock (or other stock or securities at the time receivable upon
the exercise of this Warrant) for the purpose of entitling them to
receive any dividend or other distribution, or any right to subscribe
for or purchase any Shares of stock of any class or any other
securities, or to receive any other right, or
(ii) in the event of any capital reorganization of the
Company, any reclassification of the capital stock of the Company, any
consolidation or merger of the Company with or into another
corporation, or any conveyance of all or substantially all of the
assets of the Company to another corporation, or
(iii) in the event of any voluntary dissolution, liquidation
or winding-up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Holder or Holders a notice specifying, as the case may be, (A) the date on which
a 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, or
(B) the date on which such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding-up is to take place, and
the time, if any is to be fixed, as of which the holders of record of Common
Stock shall be entitled to exchange their Shares of Common Stock (or such other
stock or securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up. Such notice shall be mailed at least 15
days prior to the date therein specified.
(c) All such notices, advises and communications shall be deemed to
have been received (i) in the case of personal delivery, on the date of such
delivery and (ii) in the case of mailing, on the third business day following
the date of such mailing.
11. Amendments. Except as otherwise provided herein, this Warrant and
any term hereof may be changed, waived, discharged or terminated only by an
instrument in writing signed by the party against which enforcement of such
change, waiver, discharge or termination is sought.
12. Adjustments. The Exercise Price and the number of Shares
purchasable hereunder are subject to adjustment from time to time as follows:
(a) Merger, Sale of Assets, etc. If at any time while this Warrant is
outstanding and unexpired there shall be a Corporate Transaction, as defined in
Section 7(b), and if the Company declines in writing to exercise those
Repurchase Rights as set forth in Section 7, lawful provision shall be made so
that the Holder of this Warrant shall thereafter be entitled to receive upon
exercise of this Warrant, during the period specified herein and upon payment of
the Exercise Price then in effect, the number of Shares or other securities or
property of the successor corporation resulting from such reorganization,
merger, consolidation, sale or transfer that a Holder of the Shares deliverable
upon exercise of this Warrant would have been entitled to receive in such
Corporate Transaction if this Warrant had been exercised immediately before such
Corporate Transaction, all subject to further adjustment as provided in this
Section 12. The foregoing provisions of this Section 12(a) shall similarly apply
to successive Corporate Transactions and to the stock or securities of any other
corporation that are at the time receivable upon the exercise of this Warrant.
If the per-share consideration payable to the Holder hereof for shares in
connection with any such transaction is in a form other than cash or marketable
securities, then the value of such consideration shall be determined in good
faith by the Company's Board of Directors. In all events, appropriate adjustment
(as determined in good faith by the Company's Board of Directors) shall be made
in the application of the provisions of this Warrant with respect to the rights
and interests of the Holder after the transaction, to the end that the
provisions of this Warrant shall be applicable after that event, as near as
reasonably may be, in relation to any shares or other property deliverable after
that event upon exercise of this Warrant.
(b) Reclassification, etc. If the Company, at any time while this
Warrant, or any portion thereof, remains outstanding and unexpired by
reclassification of securities or otherwise, shall change any of the securities
as to which purchase rights under this Warrant exist into the same or a
different number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities that were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 12.
(c) Split, Subdivision or Combination of Shares. If the Company at any
time while this Warrant, or any portion thereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which purchase
rights under this Warrant exist, into a different number of securities of the
same class, the Exercise Price for such securities shall be proportionately
decreased in the case of a split or subdivision or proportionately increased in
the case of a combination.
(d) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 12, the Company at its
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each Holder of this Warrant a certificate
setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. The Company shall, upon the
written request, at any time, of any such Holder, furnish or cause to be
furnished to such Holder a like certificate setting forth: (i) such adjustments
and readjustments; (ii) the Exercise Price at the time in effect; and (iii) the
number of Shares and the amount, if any, of other property that at the time
would be received upon the exercise of the Warrant.
(e) No Impairment. The Company will not, by any voluntary action, avoid
or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Section 12 and in
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holders of this Warrant against impairment.
13. Miscellaneous.
(a) Entire Agreement. This Warrant constitutes the entire agreement
between the Company and the Holder with respect to this Warrant.
(b) Binding Effects; Benefits. This Warrant shall inure to the benefit
of and shall be binding upon the Company and the Holder and their respective
successors. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company and the Holder, or their
respective successors, any rights, remedies, obligations or liabilities under or
by reason of this Warrant.
(c) Amendments and Waivers. This Warrant may not be modified or amended
except by an instrument or instruments in writing signed by the Company and the
Holder. Either the Company or the Holder may, by an instrument in writing, waive
compliance by the other party with any term or provision of this Warrant on the
part of such other party hereto to be performed or complied with. The waiver by
any such party of a breach of any term or provision of this Warrant shall not be
construed as a waiver of any subsequent breach.
(d) Section and Other Headings. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
(e) Further Assurances. Each of the Company and the Holder shall do and
perform all such further acts and things and execute and deliver all such other
certificates, instruments and documents as the Company or the Holder may, at any
time and from time to time, reasonably request in connection with the
performance of any of the provisions of this Agreement.
(f) Notices. All notices and other communications required or permitted
to be given under this Warrant shall be in writing and shall be deemed to have
been duly given if delivered personally or sent by United States mail, postage
prepaid, to the parties hereto at the following addresses or to such other
address as any party hereto shall hereafter specify by notice to the other party
hereto:
If to the Company, addressed to:
XXXXXXXXX.XXX, INC.
00 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000
Phone: (000) 000-0000
If to the Holder, addressed to:
Telecopier:
Phone:
Except as otherwise provided herein, all such notices and communications shall
be deemed to have been received on the date of delivery thereof, if delivered
personally, or on the third Business Day after the mailing thereof.
(g) Severability. Any term or provision of this Warrant which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the terms and provisions of this Warrant or
affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
(h) Governing Law. This Warrant shall be deemed to be a contract made
under the laws of the State of California as entered into in California between
residents of California.
(i) Market Standoff. By accepting this Warrant, if the Holder is an
officer, director or other person covered by the Company's trading policies, the
Holder agrees not to exercise this Warrant or sell any Warrant Shares acquired
upon exercise of this Warrant at a time when applicable laws, regulations or
Company trading policies prohibit exercise or sale, including, without
limitation, during any periods (typically during the period preceding the
announcement of quarterly earnings or other material events) in which the
Company closes the "trading window" for sales thereby prohibiting sales during
such periods by Company officers, directors and others.
In addition, whether Holder of this Warrant is an employee of the
Company or not, if requested by the Company and an underwriter of the Common
Stock (or other securities) of the Company, the Holder shall not pledge, sell,
offer to sell, contract to sell, grant any option to purchase, make any short
sale or otherwise dispose of any Warrant of the Company, or any options or
warrants to purchase any Shares of the Warrant of the Company or any securities
convertible into or exchangeable for Shares of Common Stock of the Company,
whether now owned or hereinafter acquired, owned directly by the Holder or with
respect to which the Holder has beneficial ownership within the rules and
regulations of the Securities and Exchange Commission (the "Commission");
otherwise than (i) as a bona fide gift or gifts, provided that the donee or
donees thereof agree to be bound by the restrictions set forth herein, (ii) a
transfer to any trust for the direct or indirect benefit of the Holder or his
immediate family provided that the trustee of the trust agrees to be bound by
the restrictions set forth herein, held by the Holder during the one hundred
eighty (180) day period following the effective date of a registration statement
of the Company filed under the Securities Act provided that:
(i) such one hundred eighty (180) day "market stand-off"
agreement shall only apply to any secondary registration statement of
the Company filed after the Warrant Issue Date, including securities to
be sold on its behalf to the public in an underwritten offering, and
provided further that, for subsequent filings of registration
statements under the Securities Act the period during which the Holder
shall not sell or otherwise transfer or dispose of any Warrant Shares
(other than those included in the registration) shall be ninety (90)
days. The market stand-off agreement with respect to subsequent filings
of registration statements under the Securities Act shall no longer
apply to the Holder at such time as the Holder own less than five
percent (5%) of the outstanding Common Stock of the Company and the
Holder ceases to be deemed an affiliate of the Company for purposes of
the Securities Act.
(ii) In the event of any stock dividend, stock split,
recapitalization, or other change affecting the Company's outstanding
Common Stock effected without receipt of consideration, then any new,
substituted, or additional securities distributed with respect to the
Warrant Shares shall be immediately subject to the provisions of this
Section, to the same extent the Warrant Shares are at such time covered
by such provisions.
For purposes of this section, "immediate family" shall mean any relationship by
blood, marriage or adoption, not more remote than first cousin. The Holder also
agrees and consents to the entry of stop transfer instructions with the
Company's transfer agent and registrar against the transfer of the Holder's
Warrant Shares except in compliance with the foregoing restrictions.
IN WITNESS WHEREOF, XXXXXXXXX.XXX, INC. has caused this Warrant to be
executed by its officers thereunto duly authorized on the following Warrant
Issue Date.
Dated: June 24, 1999.
HOLDER: XXXXXXXXX.XXX, INC.
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By: By:
-------------------------------- ----------------------------------
Its: Its:
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NOTICE OF EXERCISE
To: XXXXXXXXX.XXX, INC.
(1) The undersigned hereby elects to purchase __________ Shares of
Common Stock of XXXXXXXXX.XXX, INC., pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price for such Shares in
full.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the Shares of the Common Stock to be issued upon conversion
thereof are being acquired solely for the account of the undersigned and not as
a nominee for any other party, or for investment, and that the undersigned will
not offer, sell or otherwise dispose of any such Shares of Common Stock except
under circumstances that will not result in a violation of the Securities Act or
any state securities laws.
(3) Please issue a certificate or certificates representing said Shares
of Common Stock in the name of the undersigned or in such other name as is
specified below:
-------------------------------------
(Name)
-------------------------------------
(Name)
(4) Please issue a new Warrant for the unexercised portion of the
attached Warrant in the name of the undersigned or in such other name as is
specified below:
--------------------------------------
(Name)
------------------------------ --------------------------------------
(Date) (Signature)
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under the within Warrant, with respect to the number
of Shares of Common Stock set forth below:
Name of Assignee Address No. of Shares
---------------- ------- -------------
and does hereby irrevocably constitute and appoint Attorney ____________________
to make such transfer on the books of XXXXXXXXX.XXX, INC., maintained for the
purpose, with full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the
Assignee acknowledges that this Warrant and the Shares of stock to be issued
upon exercise hereof or conversion thereof are being acquired for investment and
that the Assignee will not offer, sell or otherwise dispose of this Warrant or
any Shares of stock to be issued upon exercise hereof or conversion thereof
except under circumstances which will not result in a violation of the
Securities Act of 1933, as amended, or any state securities laws. Further, the
Assignee has acknowledged that upon exercise of this Warrant, the Assignee
shall, if requested by the Company, confirm in writing, in a form satisfactory
to the Company, that the Shares of stock so purchased are being acquired for
investment and not with a view toward distribution or resale.
Dated:
-------------------,----------------.
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Signature of Holder
