EXHIBIT 4.8
WARRANT CLARIFICATION AGREEMENT
THIS WARRANT CLARIFICATION AGREEMENT ("CLARIFICATION AGREEMENT") is made
as of the __ day of September, 2008, by and among Xxxxxxxxxx, a California
corporation (the "Company"), and each of the investors identified on the
Schedule of Investors attached hereto as EXHIBIT A (individually an "INVESTOR"
and collectively, the "INVESTORS").
RECITALS
A. The Company and the Investors (the "PARTIES") entered into that
certain Securities Purchase Agreement dated May 24, 2007 (the "PURCHASE
AGREEMENT"), pursuant to which the Company issued to the Investors, among other
securities, warrants (the "WARRANTS") to purchase shares of the Company's common
stock.
B. The Warrants issued pursuant to the Purchase Agreement may not be
exercised, offered or sold in the absence of an exemption from the registration
requirements of the Securities Act of 1933, as amended (the "SECURITIES ACT").
C. Each of the Purchase Agreement and the Warrants contains a
restricted securities legend with respect to the exercise, offer and/or sale of
the Warrants.
D. It has come to the attention of the Company that the description of
the restricted securities legend contained in the Purchase Agreement is not
consistent with the restricted securities legend contained in the Warrant and in
neither case does the restricted securities legend accurately describe the
Parties' initial agreement with respect to the limitations on transfer.
E. The Parties now desire to amend certain provisions of each of the
Purchase Agreement and the Warrant to clarify the transfer restrictions imposed
upon the Warrants and to make each consistent with the other, so as to
accurately evidence the initial agreement of the Parties at the time the Parties
entered into the Purchase Agreement and the Warrant on May 24, 2007.
NOW THEREFORE, in consideration of the foregoing premises and the
respective promises and agreements of the parties set forth herein, and for good
and valuable consideration, the amount and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings ascribed thereto in the Purchase
Agreement.
2. AMENDMENTS.
(a) Section 5.1(a) of the Purchase Agreement is hereby amended by
deleting such section in its entirety and inserting in its place the
following:
"(a) The Investors covenant that the Securities will only be
disposed of pursuant to an effective registration statement under,
and in compliance with the requirements of the Securities Act or
pursuant to an available exemption from the registration
requirements of the Securities Act, and in compliance with any
applicable state securities laws. The Investors further covenant
that the Warrants will be exercised in compliance with the
requirements of, the Securities Act pursuant to an available
exemption from the registration requirements of the Securities Act
and in compliance with any applicable state securities laws. In
connection with any transfer of Securities other than pursuant to an
effective registration statement or to the Company, the Company may
require the transferor to provide to the Company an opinion of
counsel selected by the transferor, the form and substance of which
opinion shall be reasonably satisfactory to the Company, to the
effect that such transfer does not require registration under, and
does not constitute and will not result in a violation of, the
Securities Act. Notwithstanding the foregoing, the Company hereby
consents to and agrees to register on the books of the Company and
with its transfer agent, without any such legal opinion, except to
the extent that the transfer agent requests such legal opinion, any
transfer of Securities by an Investor to an Affiliate of such
Investor, provided that the transferee certifies to the Company that
it is an "accredited investor" as defined in Rule 501(a) under the
Securities Act and provided that such Affiliate does not request any
removal of any existing legends on any certificate evidencing the
Securities."
(b) Section 5.1(b) of the Purchase Agreement is hereby amended by
deleting such section in its entirety and inserting in its place the
following:
"(b) The certificates representing the Securities will bear a
legend denoting the restrictions on transfer. Each Investor agrees
to sell, assign, transfer, exercise or convert the Securities only
in accordance with such restrictions, as applicable. The Investors
agree to the imprinting, so long as is required by this SECTION
5.1(B), of a legend which shall be in substantially the following
form on any certificate evidencing any of the Securities:
NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON THE
[EXERCISE/CONVERSION] OF THESE SECURITIES HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS. THE SECURITIES
REPRESENTED HEREBY MAY NOT BE EXERCISED, OFFERED, SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED (EACH
A "TRANSFER") EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSFER NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (B) TO THE
EXTENT THE TRANSFER DOES NOT CONSTITUTE AND WILL NOT RESULT IN
A VIOLATION OF APPLICABLE FEDERAL OR STATE SECURITIES LAWS, AS
EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT (TO THE EXTENT REQUESTED BY COUNSEL OF THE
COMPANY), THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY. THE HOLDER HEREOF AGREES THAT IT
WILL DELIVER, OR CAUSE TO BE DELIVERED, TO EACH PERSON TO WHOM
THE SECURITIES HEREBY REPRESENTED ARE TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THESE SECURITIES
AND THE SECURITIES ISSUABLE UPON [EXERCISE/CONVERSION] OF
THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT SECURED BY SUCH SECURITIES.
Certificates evidencing Securities shall not be required to contain
such legend (i) while a registration statement covering the resale of the
Securities (including the Securities that may be issued upon exercise or
conversion of the Securities) is effective under the Securities Act, (ii)
following any sale of such Securities pursuant to Rule 144 if the holder
provides the Company with a legal opinion (and the documents upon which
the legal opinion is based) reasonably acceptance to the Company to the
effect that the Securities (including the Securities that may be issued
upon exercise or conversion of the Securities) can be sold under Rule 144,
(iii) if the holder provides the Company with a legal opinion (and the
documents upon which the legal opinion is based) reasonably acceptable to
the Company to the effect that the Securities (including the Securities
that maybe issued upon exercise or conversion of the Securities) are
eligible for unlimited resale under Rule 144(b), or (iv) if the holder
provides the Company with a legal opinion (and the documents upon which
the legal opinion is based) reasonably acceptable to the Company to the
effect that the legend is not required under applicable requirements of
the Securities Act (including controlling judicial interpretations and
pronouncements issued by the Staff of the SEC)."
(c) The legend that appears on the face of each of the Warrants
issued pursuant to the Purchase Agreement is hereby amended by deleting
such legend in its entirety and inserting in its place a legend
substantially in the form of the legend appearing in Section 2.2 of this
Clarification Agreement.
3. CLARIFICATIONS. The Parties hereby acknowledge and agree that the
provisions set forth in Section 2 of this Clarification Agreement evidence the
understandings and agreements of the Parties at the time the Parties entered
into the Purchase Agreement and the Warrants on May 24, 2007.
4. MISCELLANEOUS. Except as modified and amended pursuant to this
Clarification Agreement, the Purchase Agreement and the Warrants are and shall
remain in full force and effect. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. This Amendment will
become binding on each Investor when one or more counterparts hereof,
individually or taken together, will bear the signatures of such Investor and
the Company as signatories.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Clarification Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
The Company: XXXXXXXXXX
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Chief Financial Officer
Investor: [ ]
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By:
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Name:
Title:
