EXHIBIT 4.9
WARRANT TO PURCHASE
COMMON STOCK OF
XCEL MANAGEMENT, INC.
______________________________________
Dated: July 17, 2000
______________________________________________________________________________
NEITHER THE SECURITIES REPRESENTED BY THIS WARRANT NOR THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE; THEREFORE, THIS WARRANT AND THE
SECURITIES ISSUABLE UPON EXERCISE HEREOF, IF ANY, MAY NOT BE SOLD OR TRANSFERRED
EXCEPT UPON SUCH REGISTRATION OR UPON DELIVERY TO THE CORPORATION OF AN OPINION
OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE CORPORATION THAT REGISTRATION
IS NOT REQUIRED FOR SUCH SALE OR TRANSFER.
Garnier Holdings, Ltd./$4.00 per share
Warrant to Purchase
162,500 Shares of
Common Stock, Subject to
Adjustment as herein provided
WARRANT TO PURCHASE COMMON STOCK
XCEL MANAGEMENT, INC.
Dated as of the 17th day of July, 2000.
WHEREAS, the undersigned desires to acquire for investment purposes this
Warrant to Purchase Common Stock providing for the acquisition of 162,500 shares
of common stock, $0.001 par value per share (the "Common Stock"), of XCEL
Management, Inc. (the "Company"), subject to adjustment as provided herein;
WHEREAS, the Company has executed that certain Promissory Note in favor of
the undersigned dated July 17, 2000 (the "Note");
WHEREAS, there are currently outstanding 9,915,424 shares of Common Stock
of the Company;
WHEREAS, the Company is contemplating a reorganization and recapitalization
(the "Contemplated Reorganization") whereby each holder of outstanding Common
Stock of the Company will receive two (2) shares of Common Stock in a newly
formed Delaware entity (the "Surviving Corporation") for every one (1) share of
Common Stock currently held; and
WHEREAS, after the completion of the Contemplated Reorganization, the
shares subject to this Warrant shall represent 325,000 shares of the Surviving
Corporation.
NOW, THEREFORE, for and in consideration of past service and of the mutual
covenants, representations, warranties and agreements contained herein, this is
to certify that:
1. The undersigned or his permitted and registered assigns ("Holder"), is
entitled to purchase from time to time, subject to the provisions and conditions
herein, not later than the termination of the Exercise Period of this Warrant to
Purchase Common Stock (this "Warrant") as set forth in Paragraph 4 below, an
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aggregate of One Hundred Sixty-Two Thousand Five Hundred (162,500) shares of
Common Stock, at the Exercise Price per share set forth in paragraph 2(c)
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herein, and upon such purchase to receive a certificate or certificates
representing such shares of Common Stock. The number of shares of Common Stock
to be received upon the exercise of this Warrant may be adjusted from time to
time as hereinafter set forth.
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2. Defined Terms. As used in this Warrant, the following capitalized terms
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shall have the meanings respectively assigned to them below, which meanings
shall be applicable equally to the singular and plural forms of the terms so
defined.
(a) "Business Day" shall mean any day except a Saturday, Sunday or
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other day on which commercial banks in the State of Texas are authorized or
required by law to close.
(b) "Exercise Period" means the period commencing on the date of this
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Warrant and terminating at 5:00 p.m., Tacoma, Washington time, on the fifth
(5th) anniversary following the Registration Date or, in the event that the
fifth anniversary of the Registration Date is not a Business Day, the
Business Day next following.
(c) "Exercise Price" shall mean a strike price of $4.00 per share. If
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the Note referenced in the recitals hereunder is not paid by 5:00 p.m.,
Central Standard Time, on August 17, 2000, the Exercise Price will decrease
by one-half which, after giving effect to the Contemplated Reorganization,
would be $1.00, and on and after each additional ten (10) day period that
the Note remains unpaid, the Exercise Price will decrease by an additional
ten percent (10%). By way of example only, if the Note is not paid in full
until August 31, 2000, the Exercise Price will be $0.90 (after giving
effect to the Contemplated Reorganization).
(d) "Holder" shall mean the Person(s) then registered as the owner of
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the Warrant or Warrant Securities, as the case may be, on the books and
records of the Company.
(e) "Person" shall mean any natural person, corporation, limited
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partnership, limited liability company, general partnership, joint venture,
association, company, or other organization, whether or not a legal entity,
and any government agency or political subdivision thereof.
(f) "Warrant Securities" shall mean the shares of Common Stock (or
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other securities) of the Company purchasable or purchased from time to time
under this Warrant or acquired upon any transfer of any such shares,
together with all additional securities received in payment of dividends or
distributions on or splits of those securities or received as a result of
the adjustments provided for in Paragraph 6 hereof.
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3. Exercise of Warrant. Subject to and in accordance with the
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provisions and conditions hereof, this Warrant may be exercised from time to
time in whole or in part during the term of this Warrant as set forth in
Paragraph 5 hereof.
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4. Term of Warrant. The term of this Warrant shall commence on the date
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hereof and shall expire on the exercise in full of this Warrant by Holder or at
5:00 p.m. Tacoma, Washington time on the termination of the Exercise Period.
5. Manner of Exercise. Holder may exercise this Warrant in whole or in
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part in
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accordance with the terms hereof by mailing or personally delivering to the
Company (i) this Warrant, (ii) a Notice of Exercise in the form of Exhibit I
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hereto duly executed by Holder and (iii) payment of the Exercise Price per
share, such payment to be in the form of cash, a certified or official bank
check made payable to the Company, or a wire transfer of funds to an account
designated by the Company, or any combination of the foregoing, together with
all federal and state excise taxes applicable upon such exercise. Upon receipt
by the Company of this Warrant, the Notice of Exercise and such payment, this
Warrant shall be deemed to have been exercised with respect to the number of
shares of Common Stock subject to such exercise and specified in the Notice of
Exercise, and Holder shall thereupon become the holder of record of the shares
of Common Stock issuable upon such exercise, notwithstanding the fact that the
stock transfer books of the Company may then be closed or that certificates
representing such shares of Common Stock shall not then be actually delivered to
Holder. As soon as practicable after any exercise, in whole or in part, of the
Warrant, and in any event within ten (10) Business Days thereafter, the Company
will deliver to Holder a stock certificate or certificates representing the
shares of Common Stock so purchased, with such certificate or certificates to be
in such name(s) and such denominations as Holder may specify in the Notice of
Exercise. If this Warrant is exercised for less than all of the shares of
Common Stock subject hereto, the Company shall, upon such exercise and surrender
of this Warrant for cancellation, promptly execute and deliver to Holder a new
Warrant of like tenor evidencing the right of Holder to purchase the balance of
shares of Common Stock purchasable hereunder.
6. Adjustment Provisions.
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(a) If the Company completes the Contemplated Reorganization, the shares
subject to this Warrant will be 325,000 shares in the Surviving Corporation and
the Exercise Price will be $2.00 per share, adjusted, if necessary, if
necessary, as contemplated in Section 2 (c). If the Company shall, during the
term hereof, (i) declare a dividend and make a distribution on the Common Stock
payable in shares of Common Stock, (ii) subdivide or combine its outstanding
shares of Common Stock, (iii) change the number of shares of Common Stock
issuable upon exercise of this Warrant by reclassification, exchange or
substitution, or (iv) reorganize the capital structure of the Company by merger,
reorganization, consolidation or sale of assets, then this Warrant shall, after
the happening of any such event, evidence the right to purchase the number of
shares of Common Stock or other securities that would have been received as a
result of that change with respect to the shares of Common Stock as if such
shares had been purchased under this Warrant immediately before occurrence of
such event. Such adjustment shall be made successively whenever any event
listed above shall occur. Any adjustment under this subparagraph (a) shall
become effective at the close of business on the date any such event occurs (the
"Adjustment Date") and the exercise price shall be adjusted proportionately.
(b) If, during the term of this Warrant, the number of shares of
Common Stock of the Company is adjusted pursuant to subparagraph (a) above, then
the Exercise Price per share to be in effect after such Adjustment Date shall be
determined by multiplying the Exercise Price per share in effect immediately
prior to such Adjustment Date by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding at the closing of business on the
Business Day immediately preceding such Adjustment Date and the denominator of
which shall be
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the number of shares of Common Stock (or the equivalent amount of other
securities) outstanding at the opening of business on the first Business Day
after the Adjustment Date.
(c) Notice of Adjustment. The Company shall give notice of each
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adjustment or readjustment of the number of shares of Common Stock or other
securities issuable upon exercise of this Warrant to Holder or of the Exercise
Price per share at the address set forth in Paragraph 17 hereof.
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7. Fractional Shares. No fractional shares or scrip representing
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fractional shares of Common Stock shall be issued in connection with the
exercise of this Warrant, but Grantor shall pay, in lieu of any fractional
share, a cash payment on the basis of the Exercise Price per share of the Common
Stock to be acquired pursuant to such exercise for such fractional share.
8. Registration Rights. Holder has been granted piggyback registration
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rights with respect to the shares underlying this Warrant as follows:
(a) Definitions. As used herein:
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1. The terms "register," "registered" and "registration" refer
to a registration effected by preparing and filing with the Securities and
Exchange Commission (the "SEC") a registration statement pursuant to the
Securities Act of 1933, as amended (the "Act"), and the declaration or
order of effectiveness of such registration statement, other than any
registration statement on a Form S-8, Form S-4 or as contemplated under
Rule 145 of the Act.
2. For the purposes of this Section 8 the term "Registerable
Securities" means any Warrant Securities purchasable or purchased pursuant
to this Warrant which have not been sold to the public.
(b) If the Company at any time proposes to register any of its
securities under the Act, whether of its own accord or at the demand of any
holders of other such securities pursuant to an agreement with respect to
the registration thereof (provided such agreement does not prohibit third
parties from including additional securities in such registration), and if
the form of registration statement proposed to be used may be used for the
registration of Registerable Securities as contemplated hereunder, the
Company will give notice to Holder not less than 10 days nor more than 30
days prior to the filing of such registration statement of its intention to
proceed with the proposed registration (the "Registration"), and, upon
written request of the Holder made within ten (10) days after the receipt
of any such notice (which request will specify the Registerable Securities
intended to be disposed of by the Holder and state the intended method of
disposition thereof), the Company will use its best efforts to cause all
Registerable Securities of Holder as to which registration has been
requested to be registered under the Act, provided that if such
Registration is in connection with an underwritten public offering,
Holder's Registerable Securities to be included in such Registration shall
be offered upon the same terms and conditions as apply to any other
securities included in such Registration. Notwithstanding anything
contained in this Section
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8(b) to the contrary, the Company shall have no obligation to cause
Registerable Securities to be registered with respect to any Registerable
Securities which shall be eligible for resale under Rule 144 of the
Securities Act.
(c) If a Registration is a primary registration on behalf of the
Company and is in connection with an underwritten public offering, and if
the managing underwriters advise the Company in writing that in their
opinion the amount of securities requested to be included in such
Registration (whether by the Company, the Holder, or other holders of the
Company's securities pursuant to any other rights granted by the Company to
participate in such Registration) exceeds the amount of such securities
which can be successfully sold in such offering, the Company will include
in such Registration the amount of securities requested to be included
which in the opinion of such underwriters can be sold, in the following
order (A) first, all of the securities the Company proposes to sell, and
(B) second, any other securities held by holders with registration rights
requested to be included in such Registration, pro rata among the holders
thereof on the basis of the amount of such securities then owned by such
holders.
(d) If a Registration is a secondary registration on behalf of holders
of securities of the Company and is in connection with an underwritten
public offering, and if the managing underwriters advise the Company in
writing that in their opinion the amount of securities requested to be
included in such Registration (whether by such holders, by the Holder, or
by holders of the Company's securities pursuant to any other rights granted
by the Company to participate in such Registration) exceeds the amount of
such securities which can be sold in such offering, the Company will
include in such Registration the amount of securities requested to be
included which in the opinion of such underwriters can be sold, in the
following order (A) first, all of the securities requested to be included
by holders with demand registration rights who are demanding such
Registration, pro rata among the holders thereof on the basis of the amount
of such securities then owned by such holders, and (B) second, any other
securities held by holders with piggyback registration rights, requested to
be included in such Registration, pro rata among the holders thereof on the
basis of the amount of such securities then owned by such holders.
(e) Indemnification by the Company. The Company will indemnify Holder
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against any and all claims, losses, damages, and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of any material fact contained in any prospectus,
offering circular or other document incident to any registration,
qualification or compliance (or in any related registration statement,
notification or the like) or any omission (or alleged omission) to state
therein any material fact required to be stated therein or necessary to
make the statements therein not misleading, or any violation by the Company
of any rule or regulation promulgated under the Act applicable to, and
relating to any action or inaction required of, the Company in connection
with any such registration, qualification or compliance, and the Company
will reimburse Holder for any legal and any other expenses reasonably
incurred by them in connection with investigating or defending any such
claim, loss, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the
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extent that any such claim, loss, damage or liability arises out of or is
based on any untrue statement or omission based upon written information
furnished to the Company by Holder for use in such prospectus, offering
circular or other document.
(f) Indemnification by Xxxxxx. Holder will indemnify the Company and
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its officers and directors and each entity or individual who controls the
Company (within the meaning of the Act) and their respective successors in
title and assigns against any and all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of any material fact
contained in any prospectus, offering circular or other document incident
to any registration, qualification or compliance (or in any related
registration statement, notification or the like) or any omission (or
alleged omission) to state therein any material fact required to be stated
therein or necessary to make the statement therein not misleading, and
Xxxxxx will reimburse the Company and its officers, directors, and
controlling entities or individuals for any legal and any other expenses
reasonably by them incurred in connection with investigating or defending
any such claim, loss, damage, liability or action; provided, however, that
this paragraph (b) shall apply only if (and only to the extent that) such
statement or omission was made in reliance upon written information
furnished to the Company in an instrument duly executed by Holder or any of
its officers, directors, or controlling entities or individuals and stated
to be specifically for use in such prospectus, offering circular or other
document (or related registration statement, notification or the like) or
any amendment or supplement thereto.
(g) Indemnification Proceedings. Each party entitled to
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indemnification pursuant to this Section 8 (the "Indemnified Party") shall
give notice to the party required to provide indemnification pursuant to
this Section 8 (the "Indemnifying Party") promptly after such Indemnified
Party acquires actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party (at its expense) to assume
the defense of any claim or any litigation resulting therefrom; provided
that counsel for the Indemnifying Party, who shall conduct the defense of
such claim or litigation, shall be acceptable to the Indemnified Party, and
the Indemnified Party may participate in such defense at such party's
expense; and provided, further, that the failure by any Indemnified Party
to give notice as provided in this paragraph (c) shall not relieve the
Indemnifying Party of its obligations under Section 8 except to the extent
that the failure results in a failure of actual notice to the Indemnifying
Party and such Indemnifying Party is damaged solely as a result of the
failure to give notice. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. The reimbursement
required by this Section 8 shall be made by periodic payments during the
course of the investigation or defense, as and when bills are received or
expenses incurred.
9. Restrictions on Transfer. The undersigned represents and warrants
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that this Warrant and Warrant Securities are being purchased for his investment
account without a view towards the
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resale or distribution thereof in violation of applicable securities laws. It is
understood that in case of subsequent sale of such Warrant or the Warrant
Securities under certain circumstances, such sale might be deemed to constitute
a public distribution within the meaning of, and require registration under, the
provisions of the Securities Act of 1933, as amended (the "Act").
(a) The undersigned acknowledges and agrees that unless and until the
Warrant and the Warrant Securities are registered under the Act, this
Warrant and the Warrant Securities shall be "restricted securities" for
purposes of Rule 144 under the Act. The undersigned shall, prior to any
transfer or disposition or attempted transfer or disposition of the Warrant
or the Warrant Securities give written notice to the Company of his
intention to effect such transfer or disposition and shall deliver to the
Company an opinion of legal counsel (reasonably suitable to the Company)
that the proposed transfer or disposition of the Warrant or the Warrant
Securities may be effected without registration thereof under the Act and
without taking any similar action under any other applicable securities
laws, in which case Holder shall be entitled to transfer or dispose of the
Warrant or the Warrant Securities, as applicable, in accordance with the
terms of the notice delivered by the undersigned to the Company. Unless the
Warrant Securities are registered under the Act pursuant to Paragraph 8
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hereof, each certificate evidencing the Warrant Securities so transferred
or disposed of (and each certificate evidencing any untransferred Warrant
Securities) shall bear the following restrictive legend unless in the
opinion of Company counsel such legend is not required:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933 (the "Act") or any state securities
laws. These shares may not be offered for sale, sold or otherwise
transferred except pursuant to an effective registration statement
under the Act or pursuant to an opinion of counsel satisfactory to the
Company stating that an exemption from such registration is available
for such sale and transfer."
(b) Until this Warrant is transferred on the books of the Company,
the Company may treat the registered holder thereof as the absolute owner
and Holder thereof for all purposes, notwithstanding any notice to the
contrary.
10. Stock to be Delivered upon Exercise. The Company will at all times
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keep available through the term of the Exercise Period, solely for delivery upon
the exercise of this Warrant, such number of the shares of Common Stock or other
securities as shall from time to time be sufficient to effect the exercise of
this Warrant.
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11. Replacement of Warrant. Upon receipt of evidence reasonably
----------------------
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction, upon
delivery of an indemnity agreement reasonably satisfactory in form and amount to
the Company or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver, in lieu
thereof, a new warrant of like tenor to Xxxxxx.
12. Specific Performance. The Company stipulates that the remedies at law
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available to the holder of this Warrant in the event of any default or
threatened default by it in the performance of or compliance with any of the
terms of the Agreement are not and will not be adequate, and that such terms may
be specifically enforced by a decree for the specific performance of any
agreement contained herein or by an injunction against a violation of any of the
terms hereof or otherwise.
13. Applicable Law. THIS WARRANT SHALL BE GOVERNED BY, AND CONSTRUED IN
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ACCORDANCE WITH, THE LAWS OF THE STATE OF WASHINGTON, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CHOICE OF LAWS OF SUCH STATE.
14. Entire Agreement. This Warrant constitutes the entire agreement
----------------
between the parties with respect to the subject matter hereof and supersedes any
and all prior agreements and understandings relating to the subject matter
hereof. This Warrant and any of the terms 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.
15. Successors and Assigns. This Warrant shall be binding upon and inure
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to the benefit of the Company and the undersigned and their respective
successors and permitted assigns; provided, however, nothing herein shall be
construed to permit assignment of the Warrant except in accordance with the
provisions herein.
16. Severability. Every provision of this Warrant is intended to be
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severable. If any term or provision hereof (or portion thereof) is determined to
be illegal or unenforceable for any reason whatsoever, such illegality or
unenforceability shall not affect any other term or provision (or portion
thereof) of this Warrant.
17. Notices. All notices and other communications from the Company to the
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holder of this Warrant shall be mailed by first class registered or certified
mail, postage prepaid, at the following address or at such other address as may
have been furnished to the Company in writing by such holder, or, until an
address is so furnished, to the address of the last holder of such Warrant who
has so furnished an address to the Company:
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If to the Company:
XCEL Management, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
If to Holder:
Garnier Holdings, Ltd.
____________________________
____________________________
IN WITNESS WHEREOF, this Warrant has been executed by XCEL MANAGEMENT,
INC., by its duly authorized officers, as of the date first above written.
XCEL MANAGEMENT, INC.:
By: ____________________________________
Name: ___________________________________
Title: __________________________________
The terms and provisions of the Warrant are accepted and agreed to by
the undersigned this 17th day of July, 2000.
GARNIER HOLDINGS, LTD.
By: ______________________________________________
Its: _____________________________________________
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EXHIBIT "I"
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NOTICE OF EXERCISE
(To be executed by Xxxxxx to exercise the
Warrant in whole or in part)
XCEL Management, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Re: Warrant to Purchase Common Stock dated July 17, 2000 by and between
the Company and Garnier Holdings Ltd. (the "Warrant")
Dear Sir or Madam:
The undersigned holder irrevocably elects to exercise the Warrant of XCEL
Management, Inc. to purchase ________ shares of Common Stock of XCEL Management,
Inc. (the "Company") subject to the Warrant, and hereby makes payment of the
amount of $________in the manner described below, representing the Exercise
Price per share of Common Stock multiplied by the number of shares of Common
Stock to be purchased pursuant to this exercise.
By: _________________________________________
$__________cash
$__________certified or bank cashier's check
$__________wire transfer
EXHIBIT "I" - Page 1
