MIDAS MEDICI HOLDINGS, INC. COMMON STOCK PURCHASE WARRANT
Exhibit 4.1
NEITHER
THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”). NEITHER THIS WARRANT NOR THE SHARES OF COMMON
STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT MAY BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS
TO THIS WARRANT OR THE UNDERLYING SHARES OF COMMON STOCK UNDER THE SECURITIES
ACT OR ANY APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED. NOTWITHSTANDING THE FOREGOING, THIS WARRANT AND THE SHARES
OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT MAY, HOWEVER, BE PLEDGED
IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR
OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS
DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT.
MIDAS
MEDICI HOLDINGS, INC.
COMMON
STOCK PURCHASE WARRANT
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No. W-___
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Issue
Date: ______________, 2010
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MIDAS MEDICI HOLDINGS, INC., a
corporation organized under the laws of Delaware (the “Company”),
hereby certifies that, for value received, National Securities Corporation with
offices at 000 Xxxxxxx Xxx., Xxx
Xxxx, XX 00000, New York, New York, its transferees, successors and
assigns (the “Holder”),
is entitled, subject to the terms set forth below, to purchase from the Company
at any time during the Exercise Period (as defined below), _____ [5% of shares
purchased in the offering] fully paid and non-assessable shares of the Company’s
common stock, par value $0.001 (“Common
Stock”) at a price of ____ per share [120% of the offering price] (the
“Warrant
Exercise Price”). The number and character of such shares of
Common Stock and the Warrant Exercise Price (as defined below) issuable upon the
exercise of this warrant are subject to adjustment as provided
herein.
1. Definitions. As
used herein the following terms, unless the context otherwise requires, have the
following respective meanings:
“Aggregate
Exercise Price” means with respect to any exercise of this Warrant, in
whole or in part, the number of shares that the Holder is electing to purchase
in such exercise, multiplied by the Exercise Price.
“Cashless
Exercise” has the meaning given such term in Section 2(g).
“Company”
has the meaning set forth in the introductory paragraph of this Warrant and also
includes any corporation that shall succeed or assume the obligations of Midas
Medici Holdings, Inc. hereunder.
“Common
Stock” has the meaning given in the first paragraph of this Warrant and
also includes any other securities into which or for which such common
stock may be converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
“DTC” means
The Depository Trust Company.
“Exchange
Act” means the Exchange Act of 1934, as amended.
“Exercise Delivery
Documents” means (i) a completed Exercise Form (ii) the applicable
Aggregate Exercise Price, or an indication of the Exercise Form that the Holder
is electing a Cashless Exercise, and (iii) this Warrant or an indemnification
undertaking with respect to this Warrant in the case of its loss, theft or
destruction.
“Exercise
Form” means a written notice, in the form attached as Exhibit A, of a
Holder’s election to exercise this Warrant and specifying the number of shares
of Common Stock to be purchased.
1
“Exercise
Period” means the four-year period commencing on the date that is the
first anniversary of the Issue Date and ending at 5:00 p.m., New York City time,
on the day immediately preceding the fifth anniversary of the Issue
Date.
“Fair Market
Value” means with respect to a share of Common Stock as of a particular
date (a “Determination
Date”):
(a) If
the Common Stock is traded on an exchange, then the closing or last
sale price reported for the last business day immediately preceding the
determination date;
(b) If
the Common Stock is not traded on an exchange, but is traded in the
over-the-counter market, then the average of the closing bid and ask prices
reported for the last business day immediately preceding the Determination Date
on which there was a trade of Common Stock;
(c) Except
as provided in clause (d) below, if the Company's Common Stock is not
publicly traded, then as the Holder and the Company agree, or in the absence of
such an agreement, by arbitration in accordance with the rules then standing of
the American Arbitration Association, before a single arbitrator to be chosen
from a panel of persons qualified by education and training to pass on the
matter to be decided; or
(d) If
the Determination Date is the date of a liquidation, dissolution or winding up,
or any event deemed to be a liquidation, dissolution or winding up pursuant to
the Company's charter, then all amounts to be payable per share to holders of
the Common Stock pursuant to the charter in the event of such liquidation,
dissolution or winding up, plus all other amounts to be payable per share in
respect of the Common Stock in liquidation under the charter, assuming for the
purposes of this clause (d) that all of the shares of Common Stock then
issuable upon exercise of this Warrant are outstanding at the Determination
Date.
“Holder” has the meaning given in
the first paragraph of this Warrant.
“Issue
Date” means the date set forth above as the Issue Date.
“Person”
means an individual, a limited liability company, a partnership, joint venture,
a corporation, trust, an unincorporated organization, any other entity or a
government or any department or agency thereof.
“Transfer
Agent” means the Company’s transfer agent.
“Transfer
Endorsement Form” has the meaning given such term in Section 7.
“Transferee”
has the meaning given such term in Section 7.
“Transferor”
has the meaning given such term in Section 7.
“Trustee”
has the meaning given such term in Section 3(b).
“Warrant
Agent” has the meaning given such term in Section 11.
“Warrant Exercise
Price” means $____ per share of Common Stock [120% of the Offering
Price], subject to adjustment as provided in this Warrant.
“Warrant”
means this warrant to purchase Common Stock and any warrant issued in
substitution, replacement or after partial exercise hereof.
“Warrant
Shares” means with respect to any exercise of this Warrant in compliance
with the provisions of Section 2, the shares of
Common Stock issuable or issued upon such exercise.
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2. Exercise
of Warrant.
(a) Exercise
Procedures. Subject to the terms and conditions hereof, this
Warrant may be exercised by the Holder then registered on the books of the
Company, in whole or in part but not for any fractional shares, at any time
during the Exercise Period by delivery of the Exercise Delivery Documents to a
common carrier for overnight delivery to the Company at its address as set forth
in Section 12. No later than the fifth
(5th)
business day following the Company’s receipt of the Exercise Delivery Documents,
the Company shall:
(i) provided
that the Transfer Agent is participating in the DTC Fast Automated Securities
Transfer Program and the Holder has not elected physical delivery of stock
certificate(s) representing the Warrant Shares, cause the Transfer Agent to
credit the aggregate number of Warrant Shares the Holder has elected to purchase
by such exercise to the Holder’s or its designee’s balance account with the DTC;
or
(ii) if the
Transfer Agent is not participating in the DTC Fast Automated Securities
Transfer Program or if the Holder has requested physical delivery of stock
certificate(s) representing the Warrant Shares, the Company shall issue and
surrender (or cause its transfer agent to issue and surrender) to a common
carrier for overnight delivery to the address specified in the Exercise Form, a
certificate, registered in the name of the Holder or its designee, for the
number of shares of Common Stock Holder elected to purchase in such
exercise.
(b) Effective Date of
Exercise. Upon delivery of an Exercise Form and applicable
Aggregate Exercise Price, if required, the Holder, or if applicable its
designee, shall be deemed for all corporate purposes to have become the holder
of record of the Warrant Shares with respect to which this Warrant has been
exercised. Notwithstanding anything herein to the contrary, Warrant
Shares will be issued in the name of a Person other than the Holder only if the
Holder has complied with the provisions of Section 7.
(c) Partial
Exercise. On any partial exercise of this Warrant, the
Company, at its expense, will forthwith issue and deliver to or upon the order
of the Holder a new Warrant of like tenor, in the name of the Holder or its
designee, for the purchase of the whole number of shares of Common Stock for
which such Warrant may still be exercised. Notwithstanding the
foregoing, a new Warrant will be issued in the name of a Person other than the
Holder only if the Holder has complied with the provisions of Section 7 hereof.
(d) Trustee for Warrant
Holders. In the event that a bank or trust company is appointed as
trustee for the Holder of the Warrants pursuant to Subsection 3(b), such bank or trust company shall have all the
powers and duties of a warrant agent (as hereinafter described) and shall
accept, in its own name for the account of the Company or such successor person
as may be entitled thereto, all amounts otherwise payable to the Company or such
successor, as the case may be, on exercise of this Warrant pursuant to this
Section 2.
(e) Warrant Shares; Fractional
Shares. Upon issuance in compliance with the terms of this Warrant, the
Warrant Shares shall be duly and validly issued, fully paid and non-assessable
shares of Common Stock. In lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then Fair Market Value of one full share of Common Stock, together with any
other stock or other securities and property (including cash, where applicable)
to which the Holder is entitled upon such exercise pursuant to Section 2 or otherwise.
(f) Payment of Exercise
Price. Payment of the Aggregate Exercise Price upon exercise
of this Warrant may be made, at the option of the Holder, in (i) cash, wire
transfer or by certified or official bank check payable to the order of the
Company (ii) by exercise of this Warrant as a Cashless Exercise in accordance
with Section 2(g) below, or (iii) by
a combination of any of the foregoing methods.
(g) Cashless
Exercise. The Holder shall have the right to pay
all or a portion of the Aggregate Exercise Price by making a “Cashless
Exercise”, in which case the portion of the Aggregate Exercise Price to be so
paid shall be paid by reducing the number of shares of Common Stock otherwise issuable
pursuant to the Notice of Exercise by an amount equal to (i) the Aggregate
Exercise Price to be so paid divided by (ii) the Fair Market Value per share of
Common Stock.
3
3. Adjustment
for Reorganization, Consolidation, Merger, etc.
(a) Reorganization,
Consolidation, Merger, etc.; Reclassification.
(i) In case
at any time or from time to time, the Company shall effect any merger,
reorganization, restructuring, reverse stock split, consolidation, sale of all
or substantially all of the Company’s assets or any similar transaction or
related transactions (each such transaction, a “Fundamental Change”), then, in
each such case and occurrence, as a condition to the consummation of the
Fundamental Change, proper and adequate provision shall be made by the Company
whereby the Holder on exercise of this Warrant at any time after the
consummation of a Fundamental Change shall receive, in lieu of the Warrant
Shares which would have been issuable on exercise prior to the consummation, the
stock and other securities and property (including cash) to which the Holder
would have been entitled upon such consummation if the Holder had exercised this
Warrant immediately prior to the consummation of the Fundamental Change, all
subject to further adjustment thereafter as provided in Section 4. Notwithstanding the foregoing, in the
event of a Fundamental Change in which outstanding securities of the Company are
to be exchanged for cash or securities of another Person other than the Company
or one of its subsidiaries, or a combination thereof, then as a condition of the
consummation of the Fundamental Change, this Warrant shall be cancelled and
lawful, enforceable and adequate provision shall be made so that the Holder
shall be entitled to (A) exercise this Warrant prior to the consummation of the
Fundamental Change, or (B) receive cash, capital stock or other consideration
equal to the aggregate amount of such consideration the Holder would have
received in such Fundamental Change if it had exercised this Warrant in full
immediately prior to the consummation of the Fundamental Change minus the
aggregate Exercise Price which would have been payable by the Holder had it
exercised this Warrant in full immediately prior to the consummation of the
Fundamental Change, and the Warrant shall be cancelled effective as of the
consummation of the Fundamental Change.
(ii) If the
Company at any time shall, by reclassification or otherwise, change the Common
Stock into the same or a different number of securities of any class or classes
that may be issued or outstanding, this Warrant shall thereafter be deemed to
evidence the right to purchase an adjusted number of such securities and kind of
securities as would have been issuable as the result of such change with respect
to the Common Stock immediately prior to such reclassification or other
change.
(b) Dissolution. In
the event of any dissolution of the Company following a Fundamental Change, the
Company, prior to such dissolution, shall at its expense deliver or cause to be
delivered the stock and other securities and property (including cash, where
applicable) receivable by the Holder of this Warrant after the effective date of
such dissolution to a bank or trust company (a “Trustee”) having its principal
office in New York, New York, as trustee for the Holder of the
Warrants.
(c) Continuation of
Terms. Except as provided in Section 3(a), upon any Fundamental Change (and any dissolution
following any Fundamental Change) referred to in this Section 3, this Warrant shall continue in full force and
effect and the terms hereof shall be applicable to any other securities and
property receivable on the exercise of this Warrant after the consummation of
such Fundamental Change or the effective date of dissolution following any such
transfer, as the case may be, and shall be binding upon the issuer of any other
securities, including, in the case of any such transfer, the person acquiring
all or substantially all of the properties or assets of the Company, whether or
not such person shall have expressly assumed the terms of this
Warrant. In the event this Warrant does not continue in full force
and effect after the consummation of the transaction described in this
Section 3, then only in such event will the
Company’s securities and property (including cash, where applicable) receivable
by the Holder of the Warrants be delivered to the Trustee as contemplated by
Section 3(b).
4. Extraordinary Events
Regarding Common Stock. In the event that the Company shall
(a) issue additional shares of the Common Stock as a dividend or other
distribution on outstanding Common Stock, (b) subdivide its outstanding
shares of Common Stock, or (c) combine its outstanding shares of the Common
Stock into a smaller number of shares of the Common Stock, then, in each such
event, the Warrant Exercise Price shall, simultaneously with the happening of
such event, be adjusted by multiplying the then Warrant Exercise Price by a
fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such event and the denominator of which shall
be the number of shares of Common Stock outstanding immediately after such
event, and the product so obtained shall thereafter be the Warrant Exercise
Price then in effect. The Warrant Exercise Price, as so adjusted, shall be
readjusted in the same manner upon the happening of any successive event or
events described herein in this Section 4. The
number of shares of Common Stock that the Holder of this Warrant shall
thereafter, on the exercise hereof as provided in Section 1, be entitled to receive shall be adjusted to a
number determined by multiplying the number of shares of Common Stock that would
otherwise (but for the provisions of this Section 4) be issuable on such exercise by a fraction of which
(a) the numerator is the Warrant Exercise Price that would otherwise (but
for the provisions of this Section 4) be in
effect, and (b) the denominator is the Warrant Exercise Price in effect on
the date of such exercise.
4
5. Certificate as to
Adjustments. In each case of any adjustment or readjustment in
the shares of Common Stock issuable on the exercise of the Warrants, the Company
at its expense will promptly compute such adjustment or readjustment in
accordance with the terms of the Warrant and prepare a certificate setting forth
such adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based, including a statement of (a) the
consideration received or receivable by the Company for any additional shares of
Common Stock issued or sold or deemed to have been issued or sold, (b) the
number of shares of Common Stock outstanding or deemed to be outstanding, and
(c) the Warrant Exercise Price and the number of shares of Common Stock to
be received upon exercise of this Warrant, in effect immediately prior to such
adjustment or readjustment and as adjusted or readjusted as provided in this
Warrant. The Company will forthwith mail a copy of each such certificate to the
Holder of the Warrant and any Warrant Agent (appointed pursuant to Section 11 hereof).
6. Reservation of Stock, etc.
Issuable on Exercise of Warrant. The Company will at all
times reserve and keep available, solely for issuance and delivery on the
exercise of the Warrants, all shares of Common Stock from time to time issuable
on the exercise of the Warrant.
7. Assignment; Exchange of
Warrant. Subject to compliance with applicable securities
laws, this Warrant, and the rights evidenced hereby, may be transferred by any
registered holder hereof (a “Transferor”). On the surrender
for exchange of this Warrant, with the Transferor's endorsement in the form of
Exhibit B
attached hereto (the “Transferor Endorsement Form”)
and together with an opinion of counsel reasonably satisfactory to the Company
that the transfer of this Warrant will be in compliance with applicable
securities laws, the Company at its expense, but with payment by the Transferor
of any applicable transfer taxes, will issue and deliver to or on the order of
the Transferor thereof a new Warrant or Warrants of like tenor, in the name of
the Transferor and/or the transferee(s) specified in such Transferor Endorsement
Form (each a “Transferee”), calling in the
aggregate on the face or faces thereof for the number of shares of Common Stock
called for on the face or faces of the Warrant so surrendered by the
Transferor.
8. Replacement of
Warrant. On receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and, in
the case of any such loss, theft or destruction of this Warrant, on delivery of
an indemnity agreement or security reasonably satisfactory in form and amount to
the Company or, in the case of any such mutilation, on surrender and
cancellation of this Warrant, the Company at its expense, will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
9. Intentionally
Omitted.
10. Maximum
Exercise. Notwithstanding anything to the contrary contained
herein, the number of shares of Common Stock that may be acquired by the Holder
upon exercise of this Warrant (or otherwise in respect hereof) shall be limited
to the extent necessary to insure that, following such exercise (or other
issuance), the total number of shares of Common Stock then beneficially owned by
such Holder and its affiliates and any other persons whose beneficial ownership
of Common Stock would be aggregated with the Holder's for purposes of Section
13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
do not exceed 4.999% of the total number of issued and outstanding shares of
Common Stock (including for such purpose the shares of Common Stock issuable
upon such exercise). For such purposes, beneficial ownership shall be
determined in accordance with Section 13(d) of the Exchange Act and the rules
and regulations promulgated thereunder. By written notice to the
Company, a Holder may waive the provisions of this Section 10 as to itself but any such waiver will not be
effective until the 61st day after delivery thereof and such waiver shall have
no effect on any other Holder.
11. Transfer on the Company's
Books. Until this Warrant is transferred on the books of the
Company, the Company may treat the registered holder hereof as the absolute
owner hereof for all purposes, notwithstanding any notice to the
contrary.
12. Notices. All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be: (i) if to the Company to: Midas
Medici Group Holdings, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 (Fax
No. (000)000-0000), Attention: Xxxx Xxxxxxx, Chief Executive Officer,
and (ii) if to the Holder, to the name and address set forth on the front page
of this Warrant.
5
13. Miscellaneous. This
Warrant and any of its terms 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. This Warrant shall
be construed and enforced in accordance with and governed by the laws of the
State of New York. Any dispute relating to this Warrant shall be
adjudicated in New York County in the State of New York. The headings
in this Warrant are for purposes of reference only, and shall not limit or
otherwise affect any of the terms hereof. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity or
enforceability of any other provision.
14. Shareholder Status.
The Holder shall not have rights as a shareholder of the Company with respect to
unexercised portions of this Warrant. However, the Holder will have all the
rights of a shareholder of the Company with respect to the shares of Common
Stock to be received by Holder after delivery of an Exercise Form.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed in its name
by an authorized officer as of the date first above written.
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MIDAS
MEDICI HOLDINGS, INC.
By:
_________________________________
Name:
Title:
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7
Exhibit A
SUBSCRIPTION
NOTICE
(to be
signed only on exercise of Warrant)
TO: MIDAS
MEDICI HOLDINGS, INC.:
The
undersigned, pursuant to the provisions set forth in the attached Warrant
(No.____), hereby irrevocably elects to purchase (check applicable
box):
___ ________
shares of the Common Stock covered by such Warrant; or
___ the
maximum number of shares of Common Stock covered by such Warrant pursuant to the
cashless exercise procedure set forth in Section 2 of the
Warrant.
The
undersigned herewith makes payment of the full purchase price for such shares at
the price per share provided for in such Warrant, which is
$___________. Such payment takes the form of (check applicable box or
boxes):
___ $__________
in lawful money of the United States; and/or
___ the
cancellation of such portion of the attached Warrant as is exercisable for a
total of _______ shares of Common Stock (using a Fair Market Value of $_______
per share for purposes of this calculation); and/or
___ the
cancellation of such number of shares of Common Stock as is necessary, in
accordance with the formula set forth in Section 2, to exercise this
Warrant with respect to the maximum number of shares of Common Stock purchasable
pursuant to the cashless exercise procedure set forth in
Section 2.
The
undersigned requests that the certificates for such shares be issued in the name
of, and delivered to _____________________________________________________ whose
address is
_______________________________________________________________________.
Number of
Shares of Common Stock Beneficially Owned on the date of exercise:
_________________.
The
undersigned represents and warrants that the exercise of this Warrant and all
offers and sales by the undersigned of the securities issuable upon exercise of
the within Warrant are and shall be made pursuant to registration of the Common
Stock under the Securities Act of Securities, as amended (the “Securities Act”), or pursuant
to an exemption from registration under the Securities Act.
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Dated:___________________
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(Signature
must conform to name of holder as specified on the face of the
Warrant)
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|||
| Title | |||
| (Address) | |||
8
Exhibit
B
FORM OF
TRANSFEROR ENDORSEMENT
(To be
signed only on transfer of Warrant)
For value
received, the undersigned hereby sells, assigns, and transfers unto the
person(s) named below under the heading “Transferees” the right
represented by the within Warrant to purchase the percentage and number of
shares of Common Stock of MIDAS MEDICI HOLDINGS, INC. to which the within
Warrant relates specified under the headings “Percentage Transferred” and
“Number Transferred,”
respectively, opposite the name(s) of such person(s) and appoints each such
person Attorney to transfer its respective right on the books of MIDAS MEDICI
HOLDINGS, INC. with full power of substitution in the premises.
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Transferees
|
Percentage Transferred
|
Number Transferred
|
| Dated: ______________, ___________ | |||
| (Signature must conform to name of holder as specified on the face of the warrant) | |||
| Signed in the presence of: | |||
| (Name) | |||
| (address) | |||
| ACCEPTED
AND AGREED:
[TRANSFEREE]
|
|||
| (Name) | |||
| (address) | |||
