SMART MOVE, INC.*** WARRANT TO PURCHASE SHARES OF COMMON STOCK Warrant to Purchase 3,515,625 Shares (subject to adjustment as set forth herein) Exercise Price $0.40 Per Share (subject to adjustment as set forth herein) VOID AFTER 5:00 P.M., MOUNTAIN...
Exhibit
10.53
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
July 28, 2008
***SMART MOVE, INC.***
WARRANT TO PURCHASE SHARES OF COMMON STOCK
Warrant to Purchase 3,515,625 Shares
(subject to adjustment as set forth herein)
(subject to adjustment as set forth herein)
Exercise Price $0.40 Per Share
(subject to adjustment as set forth herein)
(subject to adjustment as set forth herein)
VOID AFTER 5:00 P.M., MOUNTAIN TIME, ON
July 28, 2013
July 28, 2013
THIS CERTIFIES that, for value received, XXXXXX X. XXXXXXXX, and his successors and assigns
(the “HOLDER”) is entitled, upon the terms hereof, and subject to the exercise conditions and
limitations set forth in Section 17, at any time and from time to time on and after the date
hereof (the “COMMENCEMENT DATE”), and on and prior to 5:00 p.m. Mountain Time on the fifth
anniversary of the date of issuance hereof (the “EXPIRATION DATE”), but not thereafter, to
subscribe for and purchase from SMART MOVE, INC., a Delaware corporation (the “COMPANY”), 3,515,625
shares (the “WARRANT SHARES”) of common stock, $0.0001 par value per share (“COMMON STOCK”), of
the Company. The purchase price of one share of Common Stock under this Warrant shall be the
Exercise Price, as defined below and as may be adjusted from time to time pursuant to the terms
hereof. The Exercise Price and the number of shares for which this Warrant is exercisable shall be
subject to adjustment as provided herein. This Warrant is being issued in connection with the
Purchase Agreement dated on or about the date hereof (the “PURCHASE AGREEMENT”) entered into
between the Company, the Holder and the other Purchasers named therein (if any).
“CHANGE IN CONTROL TRANSACTION” will be deemed to exist if (i) there occurs any consolidation,
merger or other business combination of the Company with or into any other corporation or other
entity or person (whether or not the Company is the surviving corporation), or any other corporate
reorganization or transaction or series of related transactions in which in any of such events the
voting stockholders of the Company prior to such event cease to own 50% or more of the voting
stock, or corresponding voting equity interests, of the surviving corporation after such event
(including without limitation any “going private” transaction under Rule 13e-3 promulgated pursuant
to the Exchange Act), (ii) any tender offer by the Company under Rule 13e-4 promulgated pursuant to
the Exchange Act for 20% or more of the Company’s Common Stock, (iii) any person (as defined in
Section 13(d) of the Exchange Act), together with its affiliates and associates (as such terms are
defined in Rule 405 under the Act), beneficially owns or is deemed to beneficially own (as
described in Rule 13d-3 under the Exchange Act without regard to the 60-day limit on the exercise
period) in excess of 50% of the Company’s voting power, (iv) there is a replacement of more than
one-half of the members of the Company’s Board of Directors which is not approved by those
individuals who are members of the Company’s Board of Directors on the date thereof, or (v) in one
or a series of related transactions, there is a sale or transfer of all or substantially all of the
assets of the Company, determined on a consolidated basis.
“CONVERTIBLE SECURITIES” means any convertible securities, warrants, options or other rights
to subscribe for or to purchase or exchange for, shares of Common Stock.
“EXCHANGE ACT” shall mean the Securities Exchange Act of 1934, as amended.
“EXERCISE DATE” shall have the meaning set forth in Section 4.2.1.
“EXERCISE PRICE” means $0.40 per share.
“PRINCIPAL MARKET” shall mean the American Stock Exchange or such other market or exchange on
which the Common Stock is then principally traded.
“SECURITIES ACT” shall mean the Securities Act of 1933, as amended.
“TRADING DAY” shall mean a day on which there is trading on the Principal Market.
Prior to the expiration hereof and subject to compliance with applicable securities laws, this
Warrant and all rights hereunder are transferable, in whole or in part, provided that the amount
assigned shall be for the right to purchase at least 10,000 Warrant Shares, at the office or agency
of the Company by the holder hereof in person or by duly authorized attorney, upon surrender of this Warrant together with the Assignment Form annexed hereto properly endorsed. The
term “HOLDER” shall refer to the Holder or any subsequent transferee of this Warrant. If this
Warrant is duly assigned in accordance with the terms hereof, then the Company agrees, upon the
request of the assignee, to amend or supplement promptly any effective registration statement
covering the Warrant Shares so that the such assignee is added as a selling stockholder thereunder,
subject to such assignee providing the information required for such amendment or supplement and
provided that no unreasonable change may be required to the description of the intended methods of
distribution as set forth in the Registration Statement by virtue of such transfer.
4.2.1 All exercises of this Warrant are subject to the provisions of Section 17 hereof.
Any exercise permitted hereunder will be deemed to occur as of the date of receipt by the
Company of a validly executed Notice of Exercise (or such later date as may be indicated on
such Notice of Exercise) (such date being referred to herein as the “EXERCISE DATE”) and
payment as required hereunder, whereupon certificates for shares of Common Stock subject to
such Notice of exercise and then purchasable hereunder shall be delivered to the Holder
hereof within five (5) Trading Days after the Exercise Date; provided, that if prior to such
date the Company has not received the Warrant or an affidavit of lost Warrant, then such
delivery may be extended until one Trading Day after receipt of such Warrant or affidavit by
the Company. The Holder may withdraw its Notice of Exercise under Section 4(a) or 4(b) at
any time thereafter, in whole or in part, if the Company fails to timely deliver the
applicable certificates to the Holder as provided in this Warrant.
4.2.2 In lieu of delivering physical certificates representing the Warrant Shares
issuable upon conversion of this Warrant, provided the Company’s transfer agent is
participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer
(“FAST”) program, upon request of the holder, the Company shall use its commercially
reasonable best efforts to cause its transfer agent to electronically transmit the Warrant
Shares issuable upon exercise to the holder, by crediting the account of the holder’s prime
broker with DTC through its Deposit Withdrawal Agent Commission (“DWAC”) system. The time
periods for delivery described above shall apply to the electronic transmittals through the
DWAC system. The Company agrees to coordinate with DTC to accomplish this objective.
10. SATURDAYS, SUNDAYS, HOLIDAYS, ETC. If the last or appointed day for the taking of any
action or the expiration of any right required or granted herein shall be a Saturday, Sunday or a
legal holiday, then such action may be taken or such right may be exercised on the next succeeding
day not a legal holiday.
12.1 STOCK DIVIDENDS, SPLITS, COMBINATIONS AND RECLASSIFICATIONS. If, to the extent not
covered by Section 11 above, the Company or any Subsidiary, at any time while this Warrant or any
portion thereof is issued, outstanding and unexpired: (A) shall declare or pay a stock dividend or
otherwise make a distribution or distributions on any equity securities (including securities
convertible into or exchangeable or exercisable for such equity securities) in shares of Common
Stock; (B) subdivide outstanding Common Stock into a larger number of shares; (C) combine
outstanding Common Stock into a smaller number of shares; or (D) issue any shares of its capital
stock in a reclassification of the Common Stock (including without limitation in connection with
any merger or consolidation), then the Exercise Price hereunder shall be adjusted by multiplying
the Exercise Price by a fraction of which the numerator shall be the number of shares of Common
Stock (excluding treasury shares, if any) outstanding before such event and of which the
denominator shall be the number of shares of Common Stock (excluding treasury shares, if any)
outstanding after such event. Any adjustment made pursuant to this Section 12(a) shall become
effective immediately after the record date for the determination of shareholders entitled to
receive such dividend or distribution and shall become effective immediately after the effective
date in the case of a subdivision or combination.
13.1 the Company shall declare a dividend (or any other distribution) on its Common Stock; or
13.2 the Company shall declare a cash dividend on or a redemption of its Common Stock; or
13.3 the Company shall authorize the granting to all holders of the Common Stock rights or
warrants to subscribe for or purchase any shares of capital stock of any class or of any rights; or
13.4 the approval of any stockholders of the Company shall be required in connection with any
reclassification of the Common Stock of the Company, any consolidation or merger to which the
Company is a party, any sale or transfer of all or substantially all of the assets of the Company,
or any compulsory share exchange whereby the Common Stock is converted into other securities, cash
or property; or
13.5 the Company shall authorize the voluntary dissolution, liquidation or winding up of the
affairs of the Company; then the Company shall cause to be mailed to each Holder at their last
addresses as they shall appear upon the Warrant register of the Company, at least 20 calendar days
prior to the applicable record or effective date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend, distribution, redemption,
rights or warrants, or if a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are
to be determined and/or (y) the date on which such reclassification, consolidation, merger, sale,
transfer or share exchange is expected to become effective or close, and the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation or winding up.
17.1 Except as expressly provided in this Section 17, the number of shares of Common Stock
that may be acquired by the Holder at any time upon exercise of this Warrant shall not: i) exceed a
number that when added to the total number of shares of Common Stock which Holder or Holder’s
“affiliates” (as defined in Rule 144 of the Securities Act) then own(s) or is/are deemed to
beneficially own or that would be aggregated for purposes of determining whether a group under
Section 13(d) of the Exchange Act exists (“AGGREGATION PARTIES”), would exceed thirty (35%) of the
total issued and outstanding shares of the Common Stock (the “RESTRICTED OWNERSHIP PERCENTAGE”); or
ii) under any other circumstances have the effect of causing or enabling a CHANGE IN CONTROL
TRANSACTION to occur that would not otherwise occur. For purposes of this Section 17.1, the number
of shares Holder beneficially owns or is deemed to beneficially own shall have the meaning
described in Rule 13d-3 under the Exchange Act, determined without regard to the 60-day limit on
the exercise period, except that the RESTRICTED OWNERSHIP PERCENTAGE shall be deemed to exclude all
shares of Common stock concurrently being sold by the Holder and all shares remaining acquirable
hereunder or under other CONVERTIBLE SECURITIES then held by the Holder that are expressly subject
to the terms of this Section 17.1 and Section 17.2 below.
17.2 The Holder and the Company each agrees that the RESTRICTED OWNERSHIP PERCENTAGE
limitations set forth in Section 17.1 shall be applicable for so long as the shares of the
Company’s Common Stock are traded in the PRINCIPAL MARKET, and the terms of Section 17.1 above and
this Section 17.2 are hereby adopted to be incorporated by reference into the terms of any and all
other existing warrants, convertible notes or other securities currently evidencing Holder’s right
to acquire unissued shares of Common Stock of the Company. The Company and Holder each
acknowledges that the effect of these limitations may be that Holder’s ability fully to exercise
this Warrant to purchase shares of Common Stock and/or to exercise conversion or purchase rights
under other CONVERTIBLE SECURITIES may depend upon the extent to which Holder’s prior or
concurrent sale or other disposition of shares of Common Stock has reduced Holder’s beneficial
ownership (or that of AGGREGATION PARTIES) to a level not exceeding the RESTRICTED OWNERSHIP PERCENTAGE.
17.3 The Holder further covenants at all times on each day during which Holder elects to
exercise his right to purchase shares of Common Stock hereunder (each such time being referred to
as a “COVENANT EVENT “) that Holder will not acquire shares of Common Stock pursuant to any right
to acquire such shares hereunder to the extent the number of shares so acquired by such Holder and
its Aggregation Parties would exceed the RESTRICTED OWNERSHIP PERCENTAGE. This Section 17.3
controls in the case of any conflict with any other provision of any agreement entered into in
connection with Xxxxxx’s prior acquisition of any CONVERTIBLE SECURITIES issued by the Company.
17.4 The limitations contained in Sections 17.1, 17.2 and 17.3 above of this Section 17
maybe enforced by the Company as follows: the Company’s obligation to issue Common Stock which
would exceed the limits referred to in Sections 17.1, 17.2 and 17.3 of this Section 17 shall be
suspended to the extent necessary until such time, if any, as shares of Common Stock may be issued
in compliance with such restrictions. If the Holder of the Warrant has remitted funds for the
exercise of warrants, and if the limitations of this Section 17 apply on a basis that will require
deferral of such exercise in whole or in part as to any such shares by more than ten (10) business
days, the Company will promptly notify the Holder of the cancellation of the Holder’s exercise
request as to such shares and will return to the Holder of the Warrant any funds corresponding to
the shares subject to deferred exercise.
17.5 The Company hereby acknowledges that the Holder may be prevented from fully exercising
the Warrant and other CONVERTIBLE SECURITIES covered prior to the EXPIRATION DATE to the extent
that: i) the level of Holder’s ownership of Common Stock on the EXERCISE DATE exceeds the
RESTRICTED OWNERSHIP PERCENTAGE, and ii) Holder is unable to reduce his ownership of shares of
Common Stock as a result of the volume limitations of Rule 144, which restrict the number of shares
that may be sold by an affiliate in any three-month period to the greater of 1% of the number of
shares then outstanding or the average weekly trading volume of the Company’s common stock during
the four calendar weeks preceding the filing of a notice on Form 144 (“RULE 144 LIMITATIONS”). The
Company and Holder agree that if the Holder has sent to the Company at least one Notice of Exercise
of the Warrant and/or other CONVERTIBLE SECURITIES made subject to the RESTRICTED OWNERSHIP
PERCENTAGE under Section 17.2 hereof to the Company during the twelve months immediately preceding
the Expiration Date, to the extent the Holder was not permitted to complete the exercise covered by
such Notice(s) solely because of the applicability of the RESTRICTED OWNERSHIP PERCENTAGE and/or
RULE 144 LIMITATIONS, then the Holder shall be permitted to continue the process of exercising (or
attempting to exercise) this Warrant and/or other CONVERTIBLE SECURITIES for up to an additional
eighteen months after the EXPIRATION DATE, but only as to the specific number of shares of Common
Stock which the Holder had elected to purchase but was unable to purchase pursuant to such
Notice(s) of Exercise.
18.1. Holder Not A Shareholder. Except as otherwise specifically provided in this
Warrant, prior to the exercise of the Warrant no Holder shall be entitled to any of the rights of a
shareholder of the Company, including the right as a shareholder to (a) vote or consent or (b)
receive dividends or any other distributions made in respect of Shares.
18.2. Notices. Any notice, demand or delivery to be made pursuant to the provisions
of this Warrant shall be in writing and (a) shall be deemed to have been given or made one day
after the date sent (i) if by the Company, by prepaid overnight delivery addressed to each Holder
at its last known address appearing on the books of the Company maintained for such purpose or (ii)
if by a Holder, by prepaid overnight delivery, addressed to the Company at the Company’s address at
0000 Xxxxxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000; and (b) if given by
courier or confirmed facsimile transmission shall be deemed to have been made or given when
received. Each Holder and the Company may each designate a different address by notice to the other
in the manner provided in this §18.2.
18.3. Successors and Assigns. Subject to all conditions and limitations contained
herein and to the requirements of applicable law, this Warrant and the rights evidenced by the
Warrant shall inure to the benefit of and be binding upon the lawful successors and assigns of the
Company and each Holder. The provisions of this Warrant are intended to be for the benefit of the
Holder of the Warrant or the Warrant Shares and shall be enforceable by the Holders.
18.4. Actions by Holder; Amendments and Waivers. Any provision of this Warrant may be
amended, waived or modified upon the written consent of the Company and the Holder. Any amendment,
waiver, modification or consent entered into pursuant to this Section 18.4 shall be effective only
in the specific instance and for the specific purpose for which it was given.
18.5. Headings; Severability. The descriptive headings of sections of this Warrant
are provided solely for convenience of reference and shall not, for any purpose, be deemed a part
of this Warrant. Should any part of the Warrant or this Warrant for any reason be declared invalid,
such decision shall not affect the validity of any remaining portion, which shall remain in force
and effect as if the Warrant and this Warrant had been executed with the invalid portion
eliminated. It is the intention of the Company and the Holder that they would have executed and
accepted the remaining portion of the Warrant and this Warrant without including in such remaining
portion any such part, parts or portion which may, for any reason, be hereafter declared invalid.
18.6. Governing Law. The Warrant and this Warrant and all matters concerning the
Warrant and this Warrant shall be governed by the laws of the State of Colorado for contracts
entered into and to be performed in such state without regard to principles of conflicts of laws;
provided however, that with respect to the Company’s internal corporate matters, the laws
of the State of Delaware shall govern.
18.7. Survival of Certain Provisions. Except as otherwise provided, the provisions of
this Warrant shall survive the exercise of the Warrant and shall continue in full force and effect
following such exercise until all Warrant Shares are no longer restricted securities under the
federal securities laws.
18.8. Specific Performance. The Company acknowledges and agrees that the Holders
would be damaged irreparably in the event any of the provisions of this Warrant are not performed
in accordance with their specific terms or otherwise are breached. Accordingly, the Company agrees
that the Holders shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Warrant and to enforce specifically this Warrant and the terms and provisions of
this Warrant in any action instituted in any federal or state court in the United States having
jurisdiction over the parties and the matter, in addition to any other remedy to which the Holders
may be entitled, at law or in equity.
18.9. Consent to Jurisdiction. THE COMPANY HEREBY CONSENTS TO THE JURISDICTION OF ANY
STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF DENVER, STATE OF COLORADO AND IRREVOCABLY
AGREES THAT, SUBJECT TO THE HOLDER’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS WARRANT SHALL BE LITIGATED IN SUCH COURTS. THE COMPANY ACCEPTS FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND
BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER FINANCING DOCUMENT.
THE COMPANY DESIGNATES AND APPOINTS XXXXX XXXXXX, AND SUCH OTHER PERSON AS MAY HEREAFTER BE
SELECTED BY THE COMPANY WHO IRREVOCABLY AGREES IN WRITING TO SO SERVE AS ITS AGENT TO RECEIVE ON
ITS BEHALF SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE BEING
HEREBY ACKNOWLEDGED BY THE COMPANY TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. A COPY OF
ANY SUCH PROCESS SO SERVED SHALL BE MAILED BY THE HOLDER BY REGISTERED MAIL TO THE COMPANY AT ITS
ADDRESS PROVIDED IN §12.2 AND SHALL BE DEEMED TO HAVE BEEN RECEIVED BY THE COMPANY FIVE (5) DAYS
AFTER BEING SO MAILED. IF ANY AGENT APPOINTED BY THE COMPANY REFUSES TO ACCEPT SERVICE, THE
COMPANY XXXXXX AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING IN
THIS WARRANT SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT OF HOLDER TO BRING PROCEEDINGS AGAINST THE COMPANY IN THE COURTS OF ANY OTHER
JURISDICTION.
18.10. Waiver of Jury Trial. EACH OF THE COMPANY AND THE HOLDER HEREBY WAIVES THE
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY
RELATING TO: (A) THIS WARRANT, OR (B) ANY OTHER PRESENT OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN
THE HOLDER AND THE COMPANY; OR (C) ANY CONDUCT, ACTS OR OMISSIONS OF THE COMPANY OR THE HOLDER OR ANY OF THEIR DIRECTORS, MANAGERS, OFFICERS,
EMPLOYEES, AGENTS, PARTNERS, REPRESENTATIVES, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH THE
COMPANY OR THE HOLDER; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN TORT OR OTHERWISE. EACH
OF THE COMPANY AND THE HOLDER ALSO WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH
MIGHT, BUT FOR THIS WAIVER, BE REQUIRED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE
SUBJECT MATTER OF THIS WARRANT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND
ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF THE COMPANY AND THE HOLDER ACKNOWLEDGES THAT
THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY
RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE
WAIVER IN THEIR RELATED FUTURE DEALINGS. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS WARRANT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE WARRANT. EACH OF THE COMPANY AND THE HOLDER FURTHER WARRANTS AND REPRESENTS THAT
EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
SMART MOVE, INC. | ||
Xxxxx Xxxxxx | ||
President | ||
Xxxxxx X. Xxxxxxxx |
ELECTION TO EXERCISE WARRANT
TO: Smart Move, Inc.:
The undersigned registered holder of the Warrant, a true and correct copy of which is attached to
this election notice, irrevocably exercises the Warrant and purchases pursuant to such exercise
Shares of the Company, makes payment of $ for such Shares, and requests that the
certificates for such Shares be issued in the name of the undersigned holder or its nominee and
delivered to such holder at holder’s address on the books of the Company. The undersigned
represents as of the date hereof that, after giving effect to the exercise of this Warrant pursuant
to this Notice of Exercise, the undersigned will remain in compliance with Section 17.2 of the
Warrant and not exceed the “Restricted Ownership Percentage” contained in Section 17.1 of the
Warrant.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned registered holder of the Warrant attached to this
assignment notice, sells, assigns and transfers unto the Warrant and all rights
evidenced by such Warrant and does irrevocably constitute and irrevocably appoints Corporate Stock
Transfer, Inc. or other duly appointed transfer agent for the securities as the undersigned’s
attorney to transfer such Warrant on the books of the Company.
The undersigned represents as of the date hereof that, after giving effect to all prior exercises
of this Warrant pursuant to any Notice of Exercise, the undersigned assignor is in compliance with
Section 17.2 of the Warrant and has not exceed the “Restricted Ownership Percentage” contained in
Section 17.2 of the Warrant.
Entity Name (if applicable):
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Date:
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Dated:
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