EXHIBIT 10.23
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED HEREUNDER MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE
SECURITIES AND RESTRICTING THEIR TRANSFER OR SALE MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD HEREOF TO THE SECRETARY OF THE
COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.
No. [___]
Warrant to Purchase Shares
of common stock
WARRANT TO PURCHASE COMMON STOCK
OF
XXXXXXXXXXX.XXX, INC.
In consideration of the sum of ten dollars ($10.00) previously paid to
XXXXXXXXXXX.XXX, INC., a Nevada corporation (the "Company"), receipt
and sufficiency of which are hereby acknowledged, this certifies that, for value
received, Sprint Communications Company, L.P. or its registered assigns
("Holder") is entitled, subject to the terms and conditions set forth below, to
purchase from the Company, in whole or in part that number of fully paid and
nonassessable shares of the common stock, par value $0.01 per share, of the
Company (the "Warrant Shares") as set forth in Section 2 below and at a purchase
price per share (the "Exercise Price") as set forth in Section 2 below. This
Warrant is being issued pursuant to that certain Warrant Purchase Agreement, of
even date herewith. The term "Warrant" as used herein shall mean this Warrant,
and any warrants delivered in substitution or exchange therefor as provided
herein.
1. Term of Warrant; Vesting.
-------------------------
(a) Subject to the terms and conditions set forth herein, this Warrant
shall be exercisable in accordance with the provisions contained in Section 2
hereof, and ending at 5:00 p.m., Pacific time, June 30, 2001 (the "Exercise
Period"), and shall be void thereafter.
(b) This Warrant is issued pursuant to a Warrant Purchase Agreement
between the Company and initial Holder. Section 2 of that Agreement provides
that the Company and initial Holder shall enter into a mutually agreeable
Strategic Marketing Partner Agreement. The right to purchase Warrant Shares
pursuant to this Warrant shall vest and become exercisable during the
Exercisable Period in accordance with the following schedule:
(i) 900,000 Warrant Shares shall immediately vest. This Warrant
shall become exercisable for such Warrant Shares twelve (12) months from the
date of the signing of the Agreement by Company; and
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(ii) Up to 900,000 Warrant Shares shall vest pursuant to this Section
1(b)(ii) based upon the amount of incremental net revenue received by the
Company, after payment of applicable commissions, from the sale pursuant to
the Agreement of new customer subscriptions to access and use Company's
web-based eCommerce procurement solution ("New Customer Net Revenue"). The
vesting calculation under this Section 1(b)(ii) shall be calculated each
consecutive quarter year (each, a "Quarter"), beginning with the three
month period ended on April 30, 2000 and ending with the three month period
ended April 30, 2001. The number of Warrant Shares vesting each Quarter
pursuant to this Section 1(b)(ii) shall be equal to (1) the annualized New
Customer Net Revenue for that Quarter less 12% (i.e., deducting for a one
percent (1%) per month attrition rate), divided by (2) $45.00, rounded to
the nearest whole share. The maximum number of Warrant Shares that may vest
pursuant to this Section 1(b)(ii) on a cumulative basis is 900,000, in the
aggregate. This Warrant shall become exercisable as to the Warrant Shares
vesting pursuant to this Section 1(b)(ii) on the sooner of (1) twelve (12)
months from the date of the signing of the Agreement by Company or (2) the
last day of the Quarter in which Holder has earned the vesting of all
900,000 Warrant Shares subject to this Section 1(b)(ii). Company shall
provide Holder with a vesting notice under this Section 1 (b)(ii) within 45
days after the end of such Quarter. All amounts under this Section 1
(b)(ii) shall be determined reasonably by the Company in good faith.
2. Number of Shares, Exercise Price.
---------------------------------
(a) This Warrant shall be exercisable for up to one million eight
hundred thousand (1,800,000) shares of common stock of the Company vested in
accordance with Section 1(b)(i) and Section 1(b)(ii), as applicable, at an
exercise price per share equal to $143.688 per share (the "Exercise Price"), as
adjusted to reflect any stock dividend, stock split or other conversion of the
number of shares of the Company into a different number of shares, however
denominated and as adjusted pursuant to Section 1 hereof.
3. Exercise of Warrant.
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(a) This Warrant may be exercised by the Holder by the surrender of this
Warrant to the Company, with 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) during the Exercise Period and: (x) the delivery of payment to the
Company, for the account of the Company, by cash, wire transfer of immediately
available funds to a bank account specified by the Company, or by certified or
bank cashier's check, of the Exercise Price for the number of Warrant Shares
specified in the Exercise Form in lawful money of the United States of America
or (y) pursuant to a net issuance election in accordance with Section 3(b)
hereof. The Company agrees that such Warrant Shares shall be deemed to be issued
to the Holder as the record holder of such Warrant Shares as of the close of
business on the date on which this Warrant shall have been surrendered and
payment made for the Warrant Shares as aforesaid. A stock certificate or
certificates for the Warrant Shares specified in the Exercise Form shall be
delivered to the Holder as promptly as practicable, and in any
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event within ten (10) days, thereafter. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of the stock
certificate or certificates, deliver to the
Holder a new Warrant evidencing the rights to purchase the remaining Warrant
Shares, which new Warrant shall in all other respects be identical with this
Warrant. No adjustments shall be made on Warrant Shares issuable on the exercise
of this Warrant for any cash dividends paid or payable to holders of record of
common stock prior to the date as of which the Holder shall be deemed to be the
record holder of such Warrant Shares. However, the number of Warrant Shares
shall be adjusted to reflect any stock dividend, stock split or other conversion
of the number of shares of the Company into a different number of shares,
however denominated.
(b) In lieu of exercising this Warrant pursuant to Section 3(a), the
Holder may elect to receive, without the payment by the Holder of any additional
consideration, shares equal to the value of this Warrant or any portion hereof
by the surrender of this Warrant or such portion to the Company, with the Net
Issue Election Notice annexed hereto duly executed, at the office of the
Company. Thereupon, the Company shall issue to the Holder such number of fully
paid and nonassessable shares of Common Stock as is computed using the following
formula:
X = Y (A-B)
---------
A
where
X = the number of shares to be issued to the Holder pursuant to this Section
3(b).
Y = the number of shares of Common Stock otherwise issuable under this
Warrant (as adjusted to the date of such calculation).
A = the closing stock price of one share of the Company's common stock as
reported by the Nasdaq national market the business day immediately
prior to the Exercise Date (as defined below).
B = the Exercise Price in effect under this Warrant at the time the net
issue election is made pursuant to this Section 3(b).
This Warrant shall automatically be deemed to be exercised in full pursuant to
the provisions of this Section 3, without any further action on behalf of the
Holder, immediately prior to the time this Warrant would otherwise expire
pursuant to the terms of this Warrant.
(c) 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 (the "Exercise Date"), 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 three (3) business 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. In the event that this Warrant is exercised in part, the Company at
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its expense will execute and deliver a new Warrant of like tenor exercisable for
the number of shares for which this Warrant may then be exercised.
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. The Holder of this Warrant shall not be
-----------------------
entitled to vote or receive dividends or be deemed the holder of commnon stock
nor shall anything contained herein be construed to confer upon the Holder, as
such, any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of stock, change
of par value, or change of stock to no par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until the Warrant shall have been
exercised as provided herein.
7. 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 7(a) above, issuing the common stock, 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 (1) separate from the
Agreement (i.e., the Holder must also be a party, directly or by way of
assignment, to the Agreement) and (2) without compliance with all applicable
federal and state securities laws by the transferor and the transferee
(including
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the delivery of investment representation letters and legal opinions reasonably
satisfactory to the Company, if such are requested by the Company).
Notwithstanding the foregoing, no investment representation letter or opinion of
counsel shall be required for any transfer of this Warrant (or any portion
thereof) or any shares of common stock issued upon exercise hereof (i) in
compliance with Rule 144 or Rule 144A of the Act, or (ii) by gift, will or
intestate succession by the Holder to his or her spouse or lineal descendants or
ancestors or any trust for any of the foregoing, provided that in each of the
foregoing cases the transferee agrees in writing to be subject to the terms of
this Section 7(c). In addition, if the holder of the Warrant (or any portion
thereof) or any common stock issued upon exercise hereof delivers to the Company
an unqualified opinion of counsel that no subsequent transfer of such Warrant or
common stock shall require registration under the Act, the Company shall, upon
such contemplated transfer, promptly deliver new documents/certificates for such
Warrant or common stock that do not bear the legend set forth in Section
7(e)(ii) below. Subject to the provisions of this Warrant with respect to
compliance with the Securities Act of 1933, as amended (the "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, property endorsed on the Assignment Form and subject to the
provisions of this Warrant with respect to compliance with the Act and with the
limitations on assignments and transfers and contained in this Section 7, 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 initial Holder of this Warrant represents and warrants to
the Company that it is an accredited investor under the Act. The initial
Holder represents and warrants to the Company that it has all of the
information necessary for it to evaluate an investment in the Company's
securities.
(ii) The Holder of this Warrant, by acceptance hereof, acknowledges
that this Warrant and the shares of common stock to be issued upon exercise
hereof 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 of
common stock to be issued upon exercise hereof except under circumstances
that will not result in a violation of the Act or any applicable state
securities laws. Upon the 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.
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(iii) This Warrant and all shares of common stock issued upon
exercise hereof shall be stamped or imprinted with a legend in
substantially the following form (in addition to any legend required by
state securities laws):
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGIS- TERED UNDER THE
SECURITIES ACT OF 1933. SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED
HEREUNDER MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF THE
AGREEMENT, COVERING THE PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR
TRANSFER OR SALE MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE
HOLDER OF RECORD HEREOF TO THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL
EXECUTIVE OFFICES."
(iv) The Company agrees to remove promptly, upon the request of the
holder of this Warrant and Securities issuable upon exercise of the
Warrant, the legend set forth in Section 7(e)(ii) above from the
documents/certificates for such securities upon full compliance with this
Agreement and Rules 144 and 145.
8. 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 (including any adjustment in
the number of Warrant Shares pursuant to Section 3(a) above). 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 of common stock upon the exercise of this Warrant.
9. Registration Rights: Company Registration.
------------------------------------------
(a) If the Company shall determine to register any of its securities
either for its own account, other than a registration relating solely to
employee benefit plans, or a registration relating solely to a Rule 145
transaction, or a registration on any registration form that does not permit
secondary sales, the Company will:
(i) promptly give to Holder written notice thereof; and
(ii) use its best efforts to include in such registration (and any
related qualification under blue sky laws or other compliance), except as
set forth in Section 9(b) below, and in any underwriting involved therein,
all or any part (in minimum increments of 100,000 Shares) of the Warrant
Shares specified in a written request or requests, made by Holder and
received by the Company within twenty (20) days after the written notice
from the Company described in clause (i)
8
above is mailed or delivered by the Company. Such written request may specify
all or a part of Holder's Warrant Shares.
(b) Underwriting. If the registration of which the Company gives notice
-------------
is for a registered public offering involving an underwriting, the Company shall
so advise Holder as a part of the written notice given pursuant to Section
9(a)(i). In such event, the right of Holder to registration pursuant to this
Section 9 shall be conditioned upon Holder's participation in such underwriting
and the inclusion of Holder's Warrant Shares in the underwriting to the extent
provided herein. A Holder proposing to distribute its securities through such
underwriting shall (together with the Company and the other holders of
securities of the Company with registration rights to participate therein
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters selected by the Company.
Notwithstanding any other provision of this Section 9, if the
representative of the underwriters advises the Company, in good faith, in
writing, that marketing factors require a limitation on the number of shares to
be underwritten, the representative may (subject to the limitations set forth
below) exclude all Warrant Shares from, or limit the number of Warrant Shares to
be included in, the registration and underwriting. If the registration is the
first Company-initiated registered offering of the Company's securities to the
general public, the Company may limit, to the extent so advised by the
underwriters, the amount of securities (including Warrant Shares) to be included
in the registration by the Company's stockholders (including the Holder), and
such securities shall be apportioned pro rata among the selling stockholders
according to the total amount of securities entitled to be included therein
owned by each selling stockholder, or the Company may exclude, to the extent so
advised by the underwriters, such underwritten securities entirely from such
registration. If such registration is the second or any subsequent Company-
initiated registered offering of the Company's securities to the general public,
the Company may limit, to the extent so advised by the underwriters, the amount
of securities to be included in the registration by the Company's stockholders
(including the Holder); provided, however, that the aggregate value of Warrant
Shares to be included in such registration may not be so reduced to less than
twenty-five percent (25%) of the total value of all securities included in
such registration, to be apportioned pro rata among the holders of registrable
securities according to the total amount of securities entitled to be included
therein owned by each holder of registrable securities. If any person does not
agree to the terms of any such underwriting, he shall be excluded therefrom by
written notice from the Company or the underwriter. Any Warrant Shares or other
securities excluded or withdrawn from such underwriting shall be withdrawn
from such registration.
If shares are so withdrawn from the registration or if the number of shares
of Warrant Shares to be included in such registration was previously reduced as
a result of marketing factors, the Company shall then offer to all persons who
have retained the right to include securities in the registration the right to
include additional securities in the registration in an aggregate amount equal
to the number of shares so withdrawn.
9
10. Registration on Form S-3
------------------------
(a) The Company shall use its best efforts to qualify for registration
on Form S-3 or any comparable or successor form or forms. After the Company has
qualified for the use of Form S-3, in addition to the rights contained in the
foregoing provisions of Section 9, Holder shall have the right to request one or
more registrations on Form S-3 (such requests shall be in writing and shall
state the number of shares of Warrant Shares to be disposed of and the intended
methods of disposition of such shares by Holder), provided, however, that the
Company shall not be obligated to effect any such registration if (i) Holder
proposes to sell Warrant Shares on Form S-3 at an aggregate price to the public
of less than $500,000, or (ii) in the event the Company shall furnish the
certification described in paragraph 10(d)(ii) (but subject to the limitations
set forth therein), or (iii) the Company has, within the six (6) month period
preceding the date of such request already effected one registration on Form S-3
for the Holders pursuant to this Section 10.
(b) If a request complying with the requirements of Section 10(a)
hereof is delivered to the Company, the provisions of Sections 9(a)(i) and (ii)
and Section 10(c) hereof shall apply to such registration. If the registration
is for an underwritten offering, the provisions of Sections 9(b) hereof shall
apply to such registration.
(c) The Company shall not be obligated to effect, or to take any action
to effect, any such registration pursuant to this Section 10:
(i) In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting
such registration, qualification, or compliance, unless the Company is
already subject to service in such jurisdiction and except as may be
required by the Act;
(ii) During the period starting with the date sixty (60) days
prior to the Company's good faith estimate of the date of filing of, and
ending on a date one hundred eighty (180) days after the effective date
of, a Company-initiated registration; provided that the Company is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective;
(d) Subject to the foregoing clauses (i) and (ii), the Company shall
file a registration statement covering the Warrant Shares so requested to be
registered as soon as practicable after receipt of the request of Holder;
provided, however, that if (i) in the good faith judgment of the Board of
Directors of the Company, such registration would be seriously detrimental to
the Company and the Board of Directors of the Company concludes, as a result,
that it is essential to defer the filing of such registration statement at such
time, and (ii) the Company shall furnish to Holder a certificate signed by the
President of the Company stating that in the good faith judgment of the Board
of Directors of the Company, it would be seriously detrimental to the Company
for such registration statement to be filed in the near future and that it is,
therefore, essential to defer the filing of such registration statement, then
the Company shall have the right to defer such filing for the period during
which such disclosure would be seriously detrimental, provided that (except as
provided in clause (c) above) the Company may not defer the filing for a period
of more than one hundred eighty (ISO) days after receipt of the request of
Holder, and,
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provided further, that the Company shall not defer its obligation in this manner
more than once in any twelve (12) month period.
11. Expenses of Registration. All Registration Expenses (as defined
-------------------------
herein) incurred in connection with any registration, qualification or
compliance pursuant to Sections 9 and 10 hereof and reasonable fees of one
counsel for Holder shall be borne by the Company. All Selling Expenses (as
defined herein) relating to securities so registered shall be borne by the
holders of such securities pro rata on the basis of the number of shares of
securities so registered on their behalf. "Registration Expenses" shall mean all
expenses incurred in effecting any registration pursuant to this Warrant,
including, without limitation, all registration, qualification, and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company, fees and disbursements of one special counsel for the selling
stockholders, blue sky fees and expenses, accounting fees and expenses of any
regular or special audits incident to or required by any such registration, but
shall not include Selling Expenses and fees and disbursements of additional
counsel for the stockholders. Registration Expenses do not include the
compensation of regular employees of the Company, which shall be paid in any
event by the Company. "Selling Expenses" shall mean all underwriting discounts
and selling commissions applicable to the sale of Warrant Shares and fees and
disbursements of counsel for any Holder (other than the fees and disbursements
of counsel included in Registration Expenses).
12. Amendments. This Warrant and any term hereof may be changed, waived,
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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.
13. Miscellaneous.
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(a) This Warrant shall be governed by the laws of the State of Nevada as
applied to agreements entered into in the State of Nevada by and among residents
of the State of Nevada.
(b) In the event of a dispute with regard to the interpretation of this
Warrant, the prevailing party may collect the cost of attorney's fees,
litigation expenses or such other expenses as may be incurred in the enforcement
of the prevailing party's rights hereunder.
(c) The rights to cause the Company to register securities granted to a
Holder by the Company under Section 10 may be transferred or assigned by Holder
only to a transferee or assignee of not less than 100,000, provided that the
Company is given written notice at the time of or within a reasonable time after
such transfer or assignment, stating the name and address of the transferee or
assignee and identifying the securities with respect to which such registration
rights are being transferred or assigned, and, provided further, that the
transferee or assignee of such rights assumes the obligations of such Holder
under this Warrant.
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(d) This Warrant shall be exercisable as provided for herein, except that
in the event that the expiration date of this Warrant shall fall on a Saturday,
Sunday or United States federally recognized Holiday, this expiration date for
this Warrant shall be extended to 5:00 p.m. Pacific standard time on the
business day following such Saturday, Sunday or recognized Holiday.
IN WITNESS WHEREOF, XXXXXXXXXXX.XXX, INC. has caused this Warrant to be
executed by its officers thereunto duly authorized.
Dated: November __, 1999.
HOLDER
------
SPRINT, INC.
By /s/ Xxxxxxx X. Schyley
-------------------------------
Its Director, Corporate Development
-------------------------------
XXXXXXXXXXX.XXX, INC., a Nevada
corporation
By /s/ Xxxxxxxxxxx X. Carton, Pres.
--------------------------------
Xxxxxxxxxxx X. Carton
President/Chief Operating Officer/
Secretary
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NOTICE OF EXERCISE
To: XXXXXXXXXXX.XXX, INC.
(1) The undersigned hereby elects to purchase shares of common stock of
XXXXXXXXXXX.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 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 of
1933, as amended, or any applicable 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) (Name)
13
NET ISSUE ELECTION NOTICE
To: XXXXXXXXXXX.XXX INC. Date: ____________
The undersigned hereby elects pursuant to the net issue provisions of
Section 3(b) to surrender the right to purchase ________ shares of Common Stock
pursuant to this Warrant.
(1) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of 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 of
1933, as amended, or any applicable state securities laws.
(2) 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)
(3) 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:
--------------------- --------------------------------
(Date) (Name)
--------------------------------
Signature
Address:
-----------------------
-----------------------
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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 XXXXXXXXXXX.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 applicable 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
15
