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EXHIBIT 4.12
AMENDED WARRANTS
(Noncancellable)
FOR GOOD AND VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, Genomic Solutions, Inc., a Delaware corporation, 0000 Xxxxxxx
Xxxxx, Xxxxx X, Xxx Xxxxx, Xxxxxxxx 00000, hereinafter referred to as the
"Company", grants to hereinafter referred to as "Optionee", or assigns, the
right to purchase shares of common stock of the Company at an initial
exercise price per share of one cent. The Warrants may be exercised by Optionee
at any time in whole or in part. The Warrants will expire on April 23, 2009.
(A) Stock Dividends. In the event that the Company shall issue any
shares of common stock as a dividend upon its common stock before these Warrants
are exercised, Optionee upon exercising these Warrants after the date of 'record
when said stock dividends are payable, shall be entitled to receive, in addition
to the shares of common stock purchased hereunder, without the payment of
further consideration, the number of shares of the common stock which it would
have been entitled to receive if it had been a holder of record on such record
date of the number of shares of the common stock then purchasable under these
Warrants (increased proportionately on account of any prior common stock
dividends).
(2) Splits. In the event that the Company by amendment of its Articles
of Incorporation or otherwise shall split up its outstanding shares of common
stock into a greater number of shares, or decrease the outstanding shares by
combination or otherwise, the number of shares of common stock called for by
these warrants shall be increased or decreased correspondingly on account of
each such stock Split or combination without any increase or decrease in the
total purchase price (for all shares).
(C) Adjustment for Reclassification, Exchange, or Substitution. If the
Common Stock purchasable upon exercise of this Warrant shall be changed into the
same or a different number of shares of any class or classes of stock, whether
by capital reorganization, reclassification, or otherwise (other than a
subdivision or combination of shares or stock dividend provided for above, or a
reorganization, merger, consolidation or sale of assets provided for below),
then and in each such event the holder of this Warrant shall have the right
thereafter to be issued upon the exercise of this Warrant the kind and amounts
of shares of stock and other securities and property receivable upon such
reorganization, reclassification or other change, by holders of the number of
shares of Common Stock purchasable upon exercise of the Warrant immediately
prior to such reorganization, reclassification, or change, all subject to
further adjustment as provided herein.
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(D) Reorganization, Mergers, Consolidations, or Sales of Assets. If at
any time or from time to time there shall be a capital reorganization of the
Common Stock (other than a subdivision, combination, reclassification, or
exchange of shares provided for above) or a merger or consolidation of the
Company with or into another corporation, or the sale of all or substantially
all of the Company's properties and assets to any other person, then:
1. If in any such transaction, the shareholders of Company receive
cash or Freely Marketable Securities (as hereinafter defined), or a combination
thereof, this Warrant shall be exercised immediately prior to the consummation
of any such transaction (but such exercise may be conditioned upon the
consummation of such transaction) and thereafter, the holder of this Warrant
shall be entitled to receive, upon the surrender of this Warrant and payment of
the applicable purchase price, only the cash or the Freely Marketable Securities
to which a holder of common stock deliverable upon exercise of this Warrant
immediately prior to the consummation of such transaction would have been
entitled to received on account of such transaction.
2. If the provisions of subsection (D) (1) are not applicable,
provision shall be made so that as a part of such reorganization, merger,
consolidation, or sale, the holders of this Warrant shall thereafter be entitled
to receive upon exercise of this Warrant the number of shares of stock or other
securities or property of the Company, or of the successor corporation resulting
from such merger or consolidation or sale, to which a holder of Common Stock
deliverable upon exercise would have been entitled on such capital
reorganization, merger, consolidation, or sale.
3. For purposes of this Warrant, "Freely Marketable Securities"
shall mean securities of a class registered under Section 12(b) or Section 12(g)
of the Securities Exchange Act of 1934 (or if not so registered, with respect to
which an underwritten public offering of such securities shall have been
completed pursuant to a Registration Statement filed under the Securities Act of
1933 and as a consequence of the distribution of securities pursuant to such
offering will necessitate registration of such class of securities under the
Securities Exchange Act of 1934), which may be resold by the holder thereof
without a requirement for any registration under federal or state securities
laws, provided however, that underwriter lock-up provisions not exceeding 180
days or limitations on the manner in which such securities may be sold or the
quantity of such securities which may be sold in any three month period under
Rule 145 of the rules and regulations promulgated under the Securities Act of
1933 (but not a delay in the time at which such securities may be sold other
than resulting from the foregoing) shall not be considered to render otherwise
Freely Marketable Securities not freely marketable.
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(E) Successive Application of Provisions. Appropriate adjustment
shall be made in the application of these provisions with respect to the rights
of the holders of the Warrant after a stock dividend, stock split,
reclassification, exchange, substitution, reorganization, merger, consolidation,
or sale to the end that these provisions (including adjustment of the Minimum
Company Value then in effect and the number of shares purchasable upon exercise
of the Warrant) shall be applicable after that event as nearly equivalent as may
be practicable.
(F) Sale of Shares Below Minimum Company Value. The provisions of this
subsection "F" shall apply to the issue or sale of Additional Shares of Common
Stock (as hereinafter defined) or Convertible Securities as defined in
subsection "F-3".
1. If at any time or from time to time after April 23, 1999 the
Company shall issue or sell Additional Shares of Common Stock, other than as a
dividend as provided above, and other than upon a subdivision as provided above,
for a consideration per share less than $5.00 (the "Minimum Company Value") (or,
if an adjusted Minimum Company Value shall be in effect by reason of a previous
adjustment, then less than such adjusted Minimum Company Value) then and in each
such case, as of the opening of business on the date of such issue or sale,
Optionee shall have the right to purchase upon exercise of this Warrant the
number of shares of common stock of the Company as results from dividing the
number of shares of common stock of Company which were purchasable upon exercise
of this Warrant as of the close of business the preceding day by a fraction (i)
the numerator of which shall be (a) the number of shares of Common Stock
outstanding (including any Additional Shares of Common Stock and the shares
subject to outstanding options or warrants excluded from the definition of
Additional Shares of Common Stock hereunder immediately prior to such issue or
sale), plus (b) the number of shares of Common stock which the aggregate
consideration received by the Company for the total number of Additional Shares
of Common Stock so issued would purchase at such Minimum Company Value, and (ii)
the denominator of which shall be the number of shares of Common Stock
outstanding (including any Additional Shares of Common Stock and the shares
subject to outstanding options or warrants excluded from the definition of
Additional Shares of Common Stock hereunder) immediately prior to such issue or
sale plus the number of such Additional Shares of Common Stock so issued.
2. For the purpose of making any adjustment in the number of
shares of Common Stock purchasable on exercise of this Warrant as provided
above, the consideration received by the Company for any issue or sale of
securities shall, (a) to the extent it consists of cash, be computed at the net
amount of cash received by the Company after deduction of any underwriting or
similar commissions, concessions, or compensation paid or allowed by the Company
in connection with such issue or sale, (b) to
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the extent it consists of property other than cash, be computed at the fair
value of that property as determined in good faith by the Board; and (c) if
Additional Shares of Common Stock, Convertible Securities (as hereinafter
defined), or rights or options to purchase either Additional Shares of Common
Stock or Convertible Securities are issued or sold together with other stock or
securities or other assets of the Company for a consideration that covers both,
be computed as the portion of the consideration so received that may be
reasonably determined in good faith by the Board to be allocable to such
Additional Shares of Common Stock, Convertible Securities or rights or options.
3. For the purpose of the adjustment provided above, if at any
time or from time to time after April 23, 1999, the Company shall issue any
rights or options for the purchase of, or stock or other securities convertible
into Additional Shares of Common Stock (such convertible stock or securities
being hereinafter referred to as "Convertible Securities"), then, in each case,
if the Effective Price (as hereinafter defined) of such rights, options, or
Convertible Securities shall be less than the then existing Minimum Company
Value, the Company shall be deemed to have issued at the time of the issuance of
such rights or options or Convertible Securities the maximum number of
Additional Shares of Common Stock issuable upon exercise or conversion thereof
and to have received as consideration for the issuance of such shares an amount
equal to the total amount of the consideration, if any, received by the Company
for the issuance of such shares, rights or options or Convertible Securities,
plus in the case of such options or rights, the minimum amounts of
consideration, if any, payable to the Company upon exercise or conversion of
such options or rights.
If any such rights or options or the conversion privilege represented
by any such Convertible Securities shall expire or be cancelled without having
been exercised, the number of shares of common stock which may be purchased upon
exercise of this Warrant shall be readjusted to the number of shares of common
stock that would have been applicable had any adjustment been made on the basis
that the only Additional Shares of Common Stock so issued were the Additional
Shares of Common Stock, if any, actually issued or sold on the exercise of such
rights or options or rights of conversion of such Convertible Securities, and
such Additional Shares of Common Stock, if any, were issued or sold for the
consideration actually received by the Company upon such exercise, plus the
consideration, if any, actually received by the Company for the granting of all
such rights or options, whether or not exercised, plus the consideration
received for issuing or selling the convertible Securities actually converted
plus the consideration, if any, actually received by the Company on the
conversion of such Convertible Securities.
4. For the purpose of the adjustment provided for above, if at any
time or from time to time after April 23, 1999,
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the Company shall issue any rights or options for the purchase of Convertible
Securities, then, in each such case, if the Effective Price thereof is less than
the then current Minimum Company Value, the Company shall be deemed to have
issued at the time of the issuance of such rights or options the maximum number
of Additional Shares of Common Stock issuable upon conversion of the total
amount of Convertible Securities covered by such rights or options and to have
received as consideration for the issuance of such Additional Shares of Common
Stock an amount equal to the amount of consideration, if any, received by the
Company for the issuance of such rights or options, plus the minimum amounts of
consideration, if any, payable to the Company upon exercise of such rights or
options plus the minimum amounts of consideration, if any, payable to the
Company upon the conversion of such Convertible Securities.
The provisions above for the readjustment of the number of shares of
common stock which may be purchased upon exercise of this Warrant after the
expiration of rights or options or the rights of conversion of Convertible
Securities, shall apply mutatis mutandis to the rights, options and Convertible
Securities referred to in this subsection.
5. "Effective Price" for purposes hereof shall mean the quotient
determined by dividing the total of all of such consideration by such maximum
number of Additional Shares of Common Stock. No further adjustment in the number
of shares of common stock which may be purchased upon exercise of this Warrant
shall be made as a result of the actual issuance of Additional Shares of Common
Stock or Convertible Securities on the exercise of any such rights or options or
on the conversion of any such Convertible Securities.
(G) Definition. The term "Additional Shares of Common Stock" as used
herein shall mean all shares of Common Stock issued by the Company after April
23, 1999 whether or not subsequently reacquired or retired by the Company, other
than (i) up to (x) 2,162,020 shares of common stock issued upon exercise of
outstanding incentive or non-qualified stock options, and (y) 968,751 shares of
common stock issued upon exercise of incentive or non-qualified options
hereafter granted with an exercise price of not less than $2.00 per share, to
employees, consultants or non-employee directors pursuant to the existing stock
option plans adopted by the Board, (ii) 5,093,576 shares of common stock issued
upon conversion of the outstanding shares of Series B Preferred Stock, (iii)
4,070,339 shares of common stock issued upon conversion of the outstanding
shares of Series C Preferred Stock, (iv) 1, 100, 000 shares of common stock
issued upon conversion of the outstanding shares of Series D Preferred Stock,
(v) 270,027 shares of common stock issued upon conversion of the outstanding
shares of Series M Preferred Stock, and (vi) shares of common stock issued upon
exercise of any Warrants issued pursuant to the terms of the Business Loan
Agreement between Company, White Pines Limited Partnership I, Pacific
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Capital L.P., Chase Venture Capital Associates, L.P., American Healthcare
Fund II, Xxx X. X. Bund Xxxxx Xxxxxx Prototype PS Plan Account #206-08291
12445, Xxxxx Consulting Associates, Inc., Volunteer Healthcare Associates,
L.L.C., McDonald Investments Inc. Custodian FBO X. Xxxxxxxx XxXxxxxx III
IRA Rollover Account #00000000, X. Xxxxxxx Xxxxxxxxx, Xxxxxx X. Xxxxxxx,
Xxxx X. Xxxxxxxxx, Grove Investment Partners, Xxxxxx X. Xxxxxx Living Trust
u/a/d September 9, 1997, Xxxx X. Xxxxxx, XxXxxxxx Investments Inc.
Custodian FBO Xxxxxx X. Xxxxx XXX Rollover Account #00000000, National City
Bank of MI/IL, Custodian FBO Xxxxxxx X. Xxxxxx XXX Rollover Account dated
June 12, 1991 Account #MI-1491-00-4, Xxxxxxx and Associates Profit Sharing
Plan u/a/d January 1, 1991 and Xxxxxxx X. Xxxxxxxx dated April 23, 1999
(hereinafter referred to as the "Loan Agreement").
(H) Accountants' Certificate of Adjustment. In each case of an
adjustment or readjustment of the Minimum Company value or the number of shares
of Common Stock or other securities issuable upon exercise of the Warrant, the
Company shall compute such adjustment or readjustment in accordance herewith and
prepare a certificate showing such adjustment or readjustment, and shall mail
such certificate, by first class mail, postage prepaid, to the registered holder
hereof at the holder's address as shown in the Company's books. The certificate
shall set forth such adjustment or readjustment, describing in detail the facts
upon which such adjustment or readjustment is based including a statement of the
Minimum Company Value at the time in effect, and the number of additional shares
of Common Stock and the type and amount, if any, of other property which at the
time would be received upon exercise of the Warrant.
(I) Exercise.
1. OPTIONAL. This Warrant may be exercised at any time in whole or
part by delivering to the Company (a) the form of Exercise Notice attached
hereto duly completed and executed by the holder of this Warrant, (b) this
Warrant certificate for notation thereon of such exercise, and (c) either
payment of the applicable purchase price or the election to exercise this
Warrant in accordance with "4" below. Upon any exercise of this Warrant only
in part, a new Warrant of like tenor shall be executed and delivered by Company
to the holder of this Warrant representing the right to subscribe for and
purchase the balance of the number of shares remaining after giving effect to
such exercise in part of this Warrant.
2. MANDATORY. This Warrant shall be exercised concurrent with the
consummation of the sale by Company of its common stock in a firm commitment
underwriting pursuant to a registration statement on Form S-1, Form SB-1, Form
SB-2, or their then equivalents, filed under the Securities Act of 1933, as
amended, and resulting in an aggregate offering price to the public of at least
$20,000,000, and where the offering price to the public is not less than $8.00
per share.
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3. EFFECT OF EXERCISE. The holder will be deemed to be the holder
of record of the shares of common stock as to which this Warrant was exercised
in accordance with this Warrant, effective at the close of business on the date
(a) such exercise is completed and all documents specified in "(l)" above are
delivered to the Company, or (b) the later of (x) the consummation of the sale
contemplated by "(2)" above, or (y) the surrender thereafter of this Warrant to
the Company together with either payment of the applicable purchase price or the
election to exercise this Warrant in accordance with "4" below. The holder
hereof, upon such surrender, and payment or election, shall become entitled as
of such date to all dividends, subscription and other rights of a holder of
record of such shares of the common stock. When issued, said shares shall be
fully paid and nonassessable and free from any liens and charges.
4. NET EXERCISE. Instead of payment of the applicable purchase
price, the Optionee may exercise this Warrant by electing to receive, without
the payment by the Optionee of any additional consideration, shares of common
stock equal to the value of this Warrant by the surrender of all or part of this
Warrant to the Company with the Exercise Notice specifying reliance on this
subsection I (4). Thereupon, the Company shall issue to the Optionee such number
of fully paid and nonassessable shares of common stock as is computed using the
following formula:
X = Y (A-B)
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A
where
X = the number of shares to be issued to the Optionee pursuant
to this subsection I (4).
Y = the number of shares of common stock subject to issuance upon exercise of
the portion of the Warrant the Optionee elects to exercise pursuant to this
subsection I (4).
A = the "Fair Market Value" of one share of common stock on the date the net
exercise election is made pursuant to this subsection I (4) as agreed to by
Company and Optionee within ten days of the date of such exercise, or in the
absence of such an agreement, as determined by appraisal in the manner
provided in subsection K below.
B = the Exercise Price in effect under this Warrant at the time the net exercise
election is made pursuant to this subsection I (4).
5. FRACTIONAL SHARES. No fractional shares shall be issued upon
the exercise of this Warrant. In lieu of fractional shares, the Company shall
pay the holder a sum in cash
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equal to the fair market value of the fractional shares if "Fair Market Value"
was determined as contemplated by "4" above, then such amount; otherwise as
determined by the Board) on the date of exercise.
(J) Shares Reserved. The Company shall at all times authorize and
reserve unissued, a number of shares of its common stock sufficient to satisfy
the rights of the holders of these Warrants, and shall keep the transfer agent
supplied with sufficient stock certificates to provide for the exercise of all
outstanding warrants.
(K) Put. Optionee may require the Company to redeem these Warrants or
the shares of common stock issued upon exercise of the Warrants at any time
beginning April 23, 2004 and prior to the date on which Company shall have
completed an "Initial Public offering" as defined in the Registration Rights
Agreement dated April 23, 1999 between the parties. The price per share shall be
the greater of (i) "Fair Market Value" as agreed to by Company and Optionee, or
in the absence of such an agreement, as determined by appraisal as hereinafter
provided, or (ii) based on a value of the Company determined in accordance with
the following formula:
Value = (EBITDA + Extraordinary Expense -Extraordinary Income) times
seven plus cash and cash equivalents minus Long Term Debt
EBITDA shall be defined as the earnings of the Company before
interest, taxes, depreciation and amortization. The EBITDA utilized
for determining the value of the Company shall be the greater of (i)
EBITDA for the last fiscal year immediately preceding the redemption
of the Warrants or shares, or (ii) one-half of the aggregate EBITDA
for the two fiscal years immediately preceding the redemption of the
Warrants or shares.
If "Fair Market Value" is to be determined by appraisal, Company and Optionee
shall each appoint one independent appraiser who is a regionally or nationally
recognized investment banking firm, or an independent appraiser who is a member
of a recognized professional organization, within ten days of notice by either
Company or Optionee to the other that appraisal is being demanded. Within 20
days of appointment, each appraiser shall determine the price at which the
shares would exchange between a willing buyer and a willing seller, when the
former is not under any compulsion to buy and the latter is not under any
compulsion to sell, both having reasonable knowledge of the relevant facts. For
purposes of determining the value of the shares, it shall be assumed that the
business of the Company is ongoing. The mean of the values determined in each
such appraisal shall constitute "Fair Market Value". The cost of the appraisals
shall be borne by the Company.
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No adjustment shall be made to the price per share determined pursuant to the
foregoing for any discounts, including, but not limited to, discounts based upon
a lack of marketability or shares constituting a minority interest in the stock
of the Company.
All computations and determinations for the purpose of the foregoing
determination of value shall be made in accordance with generally accepted
principles of accounting consistently applied.
(L) Payment of Redemption Price. The redemption price applicable under
the provisions of subsection (K) shall be determined within 30 days of the date
on which Optionee shall notify Company that Optionee is requiring a redemption
of this Warrant or the shares. The redemption price shall be paid to Optionee in
cash within ten days thereafter upon surrender by Optionee of this Warrant or
the shares, provided however, that such payment of the redemption price shall be
subject to the ability of Company reasonably to obtain debt or' equity financing
which may be necessary to fund such payment. In the event that Company shall be
unable to pay the redemption price solely for the reason specified in the
preceding sentence within 90 days of when due, Optionee shall have the right, at
Optionee's sole discretion, to either:
(i) rescind the demand for the redemption of this Warrant or the
shares whereupon all rights of Optionee to require redemption of this Warrant or
the shares at any future date in accordance with the terms and provisions of
subsection K and this subsection (L) shall remain in full force and effect, or
(ii) accept payment of the redemption price by the execution and
delivery by Company to Optionee of a Promissory Note in the amount of the
redemption price, in the form of the Promissory Note attached as Exhibit A to
the Loan Agreement, except that such Promissory Note would be payable in two
equal consecutive annual installments commencing one year after the redemption
of the Warrants or the shares. Any such Promissory Note would thereafter
constitute a "Note" for all purposes under the Loan Agreement, including without
limitation, that payment of the indebtedness represented by such Promissory Note
would be secured by the Collateral subject to the Security Agreement.
(M) Construction. The validity and interpretation of the terms and
provisions of this Warrant shall be governed by the laws of the State of
Delaware. The descriptive headings of the several sections of this warrant are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions thereof.
(N) Exchange of Warrant. This Warrant is exchangeable upon the
surrender hereof by the registered holder at the office of the Company for new
Warrants of like tenor representing in the aggregate the rights to subscribe for
and purchase the number of
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shares which may be subscribed for and purchased hereunder, each of such new
Warrants to represent the right to subscribe for and purchase such number of
shares as shall be designated by the holder at the time of such surrender.
(0) Lost Warrant Certificate. If this Warrant is lost, stolen,
mutilated or destroyed, the Company shall, upon request in writing from the
registered holder, issue a new warrant of like denomination, tenor and date as
this warrant, subject to the Company's right to require the holder to give the
Company a bond or other satisfactory security sufficient to indemnify the
Company against any claim that may be made against it (including any expense or
liability) on account of the alleged loss, theft, mutilation or destruction of
this warrant or the issuance of such new Warrant.
(P) Waivers and Amendments. This Warrant or any provision hereof may
be changed, waived, discharged or terminated only by a statement in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought.
(Q) Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be delivered by personal delivery,
reputable overnight courier service telecopier or mailed by United States mail,
first class postage prepaid, or by registered or certified mail with return
receipt requested, addressed as specified in the heading hereof. Each of the
parties shall be entitled to specify a different address by giving five days'
advance written notice as aforesaid to the other parties.
IN WITNESS WHEREOF, these Warrants are issued this 21st day of June,
1999.
GENOMIC SOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, President
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR SALE, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAW OR UNLESS THE CORPORATION HAS RECEIVED AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED TO
EFFECTUATE SUCH TRANSACTION.
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NOTICE OF EXERCISE
TO GENOMIC SOLUTIONS, INC.
The undersigned hereby irrevocably elects to exercise the Warrant
delivered herewith as to shares of common stock and requests that
certificates for such shares be issued in the name of and delivered to the
undersigned at the address stated below, and, if additional shares remain
available for purchase pursuant to the Warrant, the new Warrant evidencing the
right to purchase the balance of such shares shall be registered in the name of,
and delivered to, the undersigned at the address stated below. The undersigned
hereby agrees with and represents to the Company that said shares of common
stock are acquired for investment and not with a view to, or for sale in
connection with, any distribution or public offering thereof within the meaning
of the Securities Act of 1933, as amended.
[delete one of the following]
The undersigned elects to exercise the Warrant in accordance with subsection
1(4) thereof.
Payment is enclosed in the amount of $
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Dated:
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By
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Its
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ADDRESS:
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PHONE:
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FACSIMILE:
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