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EXHIBIT 4.11
This Warrant was originally issued on November 1, 1999, and such
issuance was not registered under the Securities Act of 1933, as amended. The
transfer of this Warrant and the securities obtainable upon exercise thereof is
subject to the conditions on transfer specified in the Note and Equity Purchase
Agreement, dated as of November 1, 1999 (as amended from time to time, the
"Purchase Agreement") by and among the issuer hereof (the "Company"), its
wholly-owned subsidiaries and the Purchaser (as such term is defined in the
Purchase Agreement), and the Company reserves the right to refuse the transfer
of such security until such conditions have been fulfilled with respect to such
transfer. Upon written request, a copy of such conditions will be furnished by
the Company to the holder hereof without charge.
WARRANT
Date of Issuance: November 1, 1999 Certificate No. W-[1]
FOR VALUE RECEIVED, CLEAR HOLDINGS, INC., a Georgia corporation (the
"Company"), hereby grants to AMERICAN CAPITAL STRATEGIES, LTD., or its
registered assigns (the "Registered Holder") the right to purchase from the
Company 1,032,763 shares (as adjusted from time to time hereunder, the "Exercise
Shares"), of the Company's Common Stock, $.01 par value ("Common Stock"), at a
price per share of $.01 (as adjusted from time to time hereunder, the "Exercise
Price"). This Warrant is one of one or more Warrants (collectively, the
"Warrants") originally issued by the Company to certain investors on November 1,
1999. Certain capitalized terms used herein are defined in Section 4 hereof.
Certain capitalized terms used and not defined herein are defined in the Note
and Equity Purchase Agreement dated as of November 1, 1999 (as amended from time
to time, the "Purchase Agreement") by and among the Company, its subsidiaries
named therein, and the Purchaser (as such term is defined in the Purchase
Agreement). The amount and kind of securities purchasable pursuant to the rights
granted hereunder and the purchase price for such securities are subject to
adjustment pursuant to the provisions contained in this Warrant.
This Warrant is subject to the following provisions:
Section 1. Exercise of Warrant.
1A. Exercise Period. The Registered Holder may exercise, in whole
or in part (but not as to a fractional share of Common Stock), the purchase
rights represented by this Warrant at any time and from time to time, to and
including the date that is the tenth anniversary of the original date of
issuance (the "Exercise Period"). The Company will give the Registered Holder
written notice at least 30 days but not more than 90 days prior to the
expiration of the Exercise Period. If at the time of exercise (i) the Company
has in effect a valid election under Subchapter S of the Code, (ii) no uncured
Event of Default or Default shall have occurred and (iii) the Company has never
breached its obligations under Article 9 of the Agreement by failing to honor
any Holder's Put Option in accordance with the terms set forth therein,
Registered Holder shall provide the Company written notice of not more than 90
days prior to Registered Holder's
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determination to exercise this Warrant to permit the Company to complete an
orderly termination of its Subchapter S status under the Code.
(i) Exercise Procedure. This Warrant will be deemed to
have been exercised when the Company has received all of the following items
(the "Exercise Time"):
(a) A completed Exercise Agreement, as described
in paragraph 1C below, executed by the Person exercising all or part of the
purchase rights represented by this Warrant (the "Purchaser");
(b) this Warrant;
(c) if this Warrant is not registered in the
name of the initial Purchaser, an assignment or assignments in the form set
forth in Exhibit II hereto evidencing the assignment of this Warrant to the
Purchaser, in which case the Registered Holder will have complied with the
provisions set forth in Section 6 hereof; and
(d) check payable to the Company in an amount
equal to the product of the Exercise Price multiplied by the number of shares of
Common Stock being purchased upon such exercise (the "Aggregate Exercise
Price"); provided, however, that the Registered Holder may exercise this Warrant
in whole or in part by the surrender of this Warrant to the Company, with a duly
executed Exercise Agreement marked to reflect "Net Issue Exercise" and
specifying the number of shares of Common Stock to be purchased and upon such
Net Issue Exercise, the Registered Holder shall be entitled to pay the exercise
price for Common Stock purchased hereunder by cancellation of shares of Common
Stock to be purchased hereunder, valued at Fair Market Value less the Exercise
Price thereof.
(ii) Certificates for shares of Common Stock purchased
upon exercise of this Warrant will be delivered by the Company to the Purchaser
within five Business Days after the date of the Exercise Time. Unless this
Warrant has expired or all of the purchase rights represented hereby have been
exercised, the Company will prepare a new Warrant, substantially identical
hereto, representing the rights formerly represented by this Warrant which have
not expired or been exercised and will, within such five-day period, deliver
such new Warrant to the Person designated for delivery in the Exercise
Agreement.
(iii) The Common Stock issuable upon the exercise of this
Warrant will be deemed to have been issued to the Purchaser at the Exercise
Time, and the Purchaser will be deemed for all purposes to have become the
record holder of such Common Stock at the Exercise Time.
(iv) The issuance of certificates for shares of Common
Stock upon exercise of this Warrant will be made without charge to the
Registered Holder or the Purchaser for any issuance tax in respect thereof or
other cost incurred by the Company in connection with such exercise and the
related issuance of shares of Common Stock. Each share of Common Stock issuable
upon exercise of this Warrant will, upon payment of the Exercise Price therefor,
be fully paid and nonassessable and free from all liens and charges with respect
to the issuance thereof.
(v) The Company will not close its books against the
transfer of this Warrant or of any share of Common Stock issued or issuable upon
the exercise of this Warrant in any
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manner which interferes with the timely exercise of this Warrant. The Company
will from time to time take all such action as may be necessary to assure that
the par value per share of the unissued Common Stock acquirable upon exercise of
this Warrant is at all times equal to or less than the Exercise Price then in
effect.
(vi) The Company shall assist and cooperate with any
Registered Holder or Purchaser required to make any governmental filings or
obtain any governmental approvals prior to or in connection with any exercise of
this Warrant (including, without limitation, making any filings required to be
made by the Company).
(vii) Notwithstanding any other provision hereof, if an
exercise of any portion of this Warrant is to be made in connection with a
public offering or sale of the Company, the exercise of any portion of this
Warrant may, at the election of the holder hereof, be conditioned upon the
consummation of the public offering or sale of the Company in which case such
exercise shall not be deemed to be effective until the consummation of such
transaction.
(viii) The Company shall at all times reserve and keep
available out of its authorized but unissued shares of Common Stock solely for
the purpose of issuance upon the exercise of the Warrants, the number of shares
of Common Stock issuable upon the exercise of all outstanding Warrants. All
shares of Common Stock that are so issuable shall, when issued, be duly and
validly issued, fully paid and nonassessable and free from all taxes, liens and
charges. The Company shall use its best efforts to assure that all such shares
of Common Stock may be so issued without violation of any applicable law or
governmental regulation or any requirements of any domestic securities exchange
upon which shares of Common Stock may be listed (except for official notice of
issuance which shall be immediately delivered by the Company upon each such
issuance).
1B. Exercise Agreement. Upon any exercise of this Warrant, the
Exercise Agreement will be substantially in the form set forth in Exhibit I
hereto, except that if the shares of Common Stock are not to be issued in the
name of the Person in whose name this Warrant is registered, the Exercise
Agreement will also state the name of the Person to whom the certificates for
the shares of Common Stock are to be issued, and if the number of shares of
Common Stock to be issued does not include all the shares of Common Stock
purchasable hereunder, it will also state the name of the Person to whom a new
Warrant for the unexercised portion of the rights hereunder is to be delivered.
Such Exercise Agreement will be dated the actual date of execution thereof.
1C. Fractional Shares. If a fractional share of Common Stock
would, but for the provisions of paragraph 1A, be issuable upon exercise of the
rights represented by this Warrant, the Company will, within five Business Days
after the date of the Exercise Time, deliver to the Purchaser a check payable to
the Purchaser in lieu of such fractional share in an amount equal to the
difference between Fair Market Value of such fractional share as of the date of
the Exercise Time and the Exercise Price of such fractional share.
Section 2. Adjustment of Number of Exercise Shares. In order to prevent
dilution of the rights granted under this Warrant, the number of Exercise Shares
shall be subject to adjustment from time to time as provided in this Section 2.
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2A. Adjustment of Number of Exercise Shares upon Issuance of
Shares of Common Stock or Stock Equivalents. If and whenever on or after the
Closing Date, the Company issues or sells, or in accordance with paragraph 2B is
deemed to have issued or sold, any shares of Common Stock for a consideration
per share of Common Stock less than the Fair Market Value per share of Common
Stock at the time of such issue or sale (not including the issuance of shares of
Common Stock pursuant to exercise of the Warrants or Exempt Securities), then
forthwith upon such issue or sale, the Exercise Shares will be increased by
multiplying such number by a fraction, (A) the numerator of which is the Fair
Market Value per share of Common Stock at the time of such issue or sale and (B)
the denominator of which is the amount determined by dividing (a) the sum of (1)
the product derived by multiplying the Fair Market Value per share of Common
Stock at the time of such issue or sale times the number of shares of Common
Stock outstanding on a Fully Diluted Basis immediately prior to such issue or
sale, plus (2) the aggregate consideration, if any, received by the Company upon
such issue or sale, by (b) the number of shares of Common Stock outstanding on a
Fully Diluted Basis immediately after such issue or sale; provided, however,
that notwithstanding any other provision of this paragraph 2A or of paragraph
2B, no adjustment shall be made for (i) the issuance of options to acquire
Common Stock pursuant to the Management Option Plan, (ii) the issuance of shares
of Common Stock upon exercise of such management stock options or (iii) the
issuance of shares of Common Stock upon conversion of Preferred Stock.
2B. Effect on Exercise Shares of Certain Events. For purposes of
determining the adjusted Exercise Shares of Common Stock under paragraph 2A
above, the following will be applicable:
(i) Issuance of Stock Equivalents. If the Company in any
manner grants or issues Stock Equivalents other than Exempt Securities as
permitted by the Purchase Agreement and the lowest price per share of Common
Stock for which any one share of Common Stock of the Company or analogous
economic right is issuable upon the exercise of any such Stock Equivalent is
less than the Fair Market Value at the time of the granting or issuing of such
Stock Equivalent, then such shares of Common Stock will be deemed to have been
issued and sold by the Company for such price per share of Common Stock. For
purposes of this paragraph, the "lowest price per share of Common Stock for
which any one share of Common Stock or analogous economic right is issuable"
will be equal to the sum of the lowest amounts of consideration (if any)
received or receivable by the Company with respect to any one share of Common
Stock or analogous economic right upon the exercise of the Stock Equivalent
(whether by conversion, exchange or otherwise) or other similar indication of
the price per share of Common Stock as of the time of granting (such as the
floor value for stock appreciation rights). No further adjustment of the
Exercise Shares will be made upon the actual issue of such shares of Common
Stock or upon the exercise of any rights under the Stock Equivalents.
(ii) Change in Option Price or Conversion Rate. If the
purchase price provided for in any Stock Equivalent, the additional
consideration, if any, payable upon the issue, conversion or exchange of any
Stock Equivalent, or the rate at which any Stock Equivalent is convertible into
or exchangeable for shares of Common Stock changes at any time, the Exercise
Shares in effect at the time of such change will be readjusted to the Exercise
Shares which would have been in effect at such time had such Stock Equivalent
still outstanding provided for such changed purchase price, additional
consideration or changed conversion rate, as the case may be, at the time
initially granted, issued or sold; provided that if such adjustment
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would result in a decrease in the Exercise Shares then in effect, such
adjustment will not be effective until thirty (30) days after written notice
thereof has been given by the Company to all holders of the Warrants.
(iii) Treatment of Expired and Unexercised Stock
Equivalents. Upon the expiration of any Stock Equivalent or the termination of
any right to convert or exchange any Stock Equivalent without the exercise of
such Stock Equivalent, the Exercise Shares then in effect will be adjusted to
the Exercise Shares which would have been in effect at the time of such
expiration or termination had such Stock Equivalent, to the extent outstanding
immediately prior to such expiration or termination, never been issued; provided
that if such expiration or termination would result in a decrease in the
Exercise Shares then in effect, such decrease shall not be effective until
thirty (30) days after written notice thereof has been given to all holders of
the Warrants.
(iv) Calculation of Consideration Received. If any shares
of Common Stock or Stock Equivalents are issued or sold or deemed to have been
issued or sold for cash, the consideration received therefor will be deemed to
be the net amount received by the Company. In case any shares of Common Stock or
Stock Equivalents are issued or sold for a consideration other than cash, the
amount of the consideration other than cash received by the Company will be the
Fair Market Value of such consideration. In case any shares of Common Stock or
Stock Equivalents are issued to the owners of the non-surviving entity in
connection with any merger in which the Company is the surviving entity, the
amount of consideration therefor will be deemed to be the Fair Market Value of
such portion of the net assets and business of the non-surviving entity as is
attributable to such shares of Common Stock or Stock Equivalents, as the case
may be.
(v) Integrated Transactions. In case any Stock Equivalent
is issued in connection with the issue or sale of other securities of the
Company, together comprising one integrated transaction in which no specific
consideration is allocated to such Stock Equivalent by the parties thereto, the
Stock Equivalent will be deemed to have been issued without consideration.
(vi) Record Date. If the Company takes a record of the
holders of Common Stock for the purpose of entitling them (A) to receive a
dividend or other distribution payable in Common Stock, or Stock Equivalents or
(B) to subscribe for or purchase Common Stock or Stock Equivalents, then such
record date will be deemed to be the date of the issue or sale of the shares of
Common Stock deemed to have been issued or sold upon the declaration of such
dividend or the making of such other distribution or the date of the granting of
such right of subscription or purchase, as the case may be.
2C. Subdivision or Combination of Common Stock. If the Company at
any time subdivides (by any stock split, stock dividend, recapitalization or
otherwise) one or more classes of its outstanding shares of Common Stock into a
greater number of shares, the Exercise Shares in effect immediately prior to
such subdivision will be proportionately increased. If the Company at any time
combines (by reverse stock split or otherwise) one or more classes of its
outstanding shares of Common Stock into a smaller number of shares, the Exercise
Shares in effect immediately prior to such combination will be proportionately
decreased.
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2D. Reorganization, Reclassification, Consolidation, Merger or
Sale. Any recapitalization, reorganization, reclassification, consolidation,
merger, sale of all or substantially all of the Company's assets to another
Person or other transaction that is effected in such a way that holders of
Common Stock are entitled to receive (either directly or upon subsequent
liquidation) stock, securities or assets with respect to or in exchange for
Common Stock is referred to herein as "Organic Change." Prior to the
consummation of any Organic Change, the Company will make appropriate provision
(as determined by the Board of Directors, but in form and substance reasonably
satisfactory to the Registered Holders of the Warrants representing a majority
of the Common Stock obtainable upon exercise of all Warrants then outstanding)
to insure that each of the Registered Holders of the Warrants will thereafter
have the right to acquire and receive in lieu of or addition to (as the case may
be) the shares of Common Stock immediately theretofore acquirable and receivable
upon the exercise of such holder's Warrant, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange for the number
of shares of Common Stock immediately theretofore acquirable and receivable upon
exercise of such holder's Warrant had such Organic Change not taken place. In
any such case, the Company will make appropriate provision (in form and
substance satisfactory to the Registered Holders of the Warrants representing a
majority of the Common Stock obtainable upon exercise of all Warrants then
outstanding) with respect to such holders' rights and interests to insure that
the provisions of this Section 2 and Sections 3 and 4 hereof will thereafter be
applicable to the Warrants (including, in the case of any such consolidation,
merger or sale in which the successor entity or purchasing entity is other than
the Company, an immediate adjustment of the Exercise Price to the value for the
Common Stock reflected by the terms of such consolidation, merger or sale, and a
corresponding immediate adjustment in the number of Exercise Shares, if the
value so reflected is less than the Exercise Price in effect immediately prior
to such consolidation, merger or sale). The Company will not effect any such
consolidation, merger or sale, unless prior to the consummation thereof, the
successor entity (if other than the Company) resulting from consolidation or
merger or the corporation purchasing such assets assumes by written instrument
(in form and substance satisfactory to the Registered Holders of Warrants
representing a majority of the Common Stock obtainable upon exercise of all of
the Warrants then outstanding), the obligation to deliver to each such holder
such shares of stock, securities or assets as, in accordance with the foregoing
provisions, such holder may be entitled to acquire.
2E. Notices.
(i) Immediately upon any adjustment of the Exercise
Shares, the Company will give written notice thereof to the Registered Holder,
setting forth in reasonable detail and certifying the calculation of such
adjustment.
(ii) The Company will give written notice to the
Registered Holder at least 20 days prior to the date on which the Company closes
its books or takes a record (A) with respect to any dividend or distribution
upon the Common Stock, (B) with respect to any pro rata subscription offer to
holders of Common Stock or (C) for determining rights to vote with respect to
any Organic Change, dissolution or liquidation.
(iii) The Company will also give written notice to the
Registered Holders at least 20 days prior to the date on which any Organic
Change, dissolution or liquidation will take place.
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Section 3. Dividends
3A. In the event that, during the term of the Warrants, the
Company pays any cash dividend or makes any cash distribution to any holder of
Common Stock each Registered Holder shall be entitled to receive in respect of
its Warrant a dilution fee in cash (the "Dilution Fee") on the date of payment
of such dividend or distribution, which Dilution Fee shall be equal to the
difference between (a) the product of (i) the highest amount per share paid to
holders of Common Stock times (ii) the number of Exercise Shares to which the
Holder is then entitled. No such dividend or distribution shall be paid unless
the Holders shall have received advance written notice thereof at least ten (10)
days prior to the record date.
3B. If the Company declares or pays a dividend upon the Common
Stock payable otherwise than in cash out of earnings or earned surplus
(determined in accordance with generally accepted accounting principles,
consistently applied) except for a stock dividend payable in shares of Common
Stock (a "Liquidating Dividend"), then the Company will pay to the Registered
Holder of this Warrant at the time of payment thereof the Liquidating Dividend
which would have been paid to such Registered Holder on the Common Stock had
this Warrant been fully exercised immediately prior to the date on which a
record is taken for such Liquidating Dividend, or, if no record is taken, the
date as of which the record holders of Common Stock entitled to such dividends
are to be determined.
Section 4. Definitions. The following terms have meanings set forth
below:
"Common Stock" means, collectively, Common Stock and, except for
purposes of the shares obtainable upon exercise of this Warrant, any capital
stock of any class of the Company hereafter authorized that is not limited to a
fixed sum or percentage of par or stated value in respect to the rights of the
holders thereof to participate in dividends or in the distribution of assets
upon any liquidation, dissolution or winding up of the Company.
"Fair Market Value" of any security means the average of the closing
prices of such security's sales on all securities exchanges on which such
security may at the time be listed, or, if there has been no sales on any such
exchange on any day, the average of the highest bid and lowest asked prices on
all such exchanges at the end of each day, or, if on any day such security is
not so listed, the average of the representative bid and asked prices quoted in
the NASDAQ System as of 4:00 P.M., New York time, or, if on any day such
security is not quoted in the NASDAQ System, the average of the highest bid and
lowest asked prices on such day in the domestic over-the-counter market as
reported by the National Quotation Bureau, Incorporated, or any similar
successor organization, in each such case averaged over a period of 21 days
consisting of the day as of which "Fair Market Value" is being determined and
the 20 consecutive Business Days prior to such day. If at any time such security
is not listed on any securities exchange or quoted in the NASDAQ System or the
over-the-counter market, the "Fair Market Value" shall be the fair value
therefor determined jointly by the Board of Directors of the Corporation and the
holders of a majority of the Warrants. If such parties are unable to reach
agreement within reasonable period of time, such Fair Market Value shall be
determined by an appraiser in the same way as the Put Price for Common Stock is
determined under the Purchase Agreement.
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"Fully Diluted Basis" means, at any given time, the number of shares of
Common Stock actually outstanding at such time, plus the number of Stock
Equivalents then outstanding (including Warrants), regardless of their exercise
price or its equivalent.
"Person" means an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization and a government or any
department or agency thereof.
"Stock Equivalents" means any option, warrant, right or similar
security or claim exercisable into, exchangeable for, or convertible to shares
of Common Stock or the economic equivalent value of shares of Common Stock
(including, by way of illustration, stock appreciation rights).
Section 5. No Voting Rights; Limitations of Liability. This Warrant
will not entitle the holder hereof to any voting rights or other rights as a
stockholder of the Company. No provision hereof, in the absence of affirmative
action by the Registered Holder to purchase Common Stock, and no enumeration
herein of the rights or privileges of the Registered Holder shall give rise to
any liability of such holder for the Exercise Price of Common Stock acquirable
by exercise hereof or as a stockholder of the Company.
Section 6. Warrant Transferable. Subject to the transfer conditions
referred to in the legend endorsed hereon, this Warrant and all rights hereunder
are transferable, in whole or in part, without charge to the Registered Holder,
upon surrender of this Warrant with a properly executed Assignment (in the form
of Exhibit II hereto) at the principal office of the Company.
Section 7. Warrant Exchangeable for Different Denominations. This
Warrant is exchangeable, upon the surrender hereof by the Registered Holder at
the principal office of the Company, for new Warrants of like tenor representing
in the aggregate the purchase rights hereunder, and each of such new Warrants
will represent such portion of such rights as is designated by the Registered
Holder at the time of such surrender. The date the Company initially issues this
Warrant will be deemed to be the "Date of Issuance" hereof regardless of the
number of times new certificates representing the unexplored and unexercised
rights formerly represented by this Warrant shall be issued. All Warrants
representing portions of the rights hereunder are referred to herein as the
"Warrants."
Section 8. Replacement. Upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the Registered Holder will be
satisfactory) of the ownership and the loss, theft, destruction or mutilation of
any certificate evidencing this Warrant, and in the case of any such loss, theft
or destruction, upon receipt of indemnity reasonably satisfactory to the Company
(provided that if the holder is a financial institution or other institutional
investor its own agreement will be satisfactory), or, in the case of any such
mutilation upon surrender of such certificate, the Company will (at its expense)
execute and deliver in lieu of such certificate a new certificate of like kind
representing the same rights represented by such lost, stolen, destroyed or
mutilated certificate and dated the date of such lost, stolen, destroyed or
mutilated certificate.
Section 9. Notices. Except as otherwise expressly provided herein, all
notices referred to in this Warrant will be in writing and will be delivered
personally, sent by reputable
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express courier service (charges prepaid) or sent by registered or certified
mail, return receipt requested, postage prepaid and will be deemed to have been
given when so delivered, one Business Day after being so sent or three Business
Days after being so deposited in the U.S. Mail (i) to the Company, at its
principal executive offices and (ii) to the Registered Holder of this Warrant,
at such holder's address as it appears in the records of the Company (unless
otherwise indicated by any such holder).
Section 10. Amendment and Waiver. Except as otherwise provided herein,
the provisions of the Warrants may be amended and the Company may take any
action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
Registered Holders of Warrants representing a majority of the shares of Common
Stock obtainable upon exercise of the Warrants; provided that no such action may
change the Exercise Price of the Warrants or the number of shares or class of
stock obtainable upon exercise of each Warrant without the written consent of
the Registered Holders of Warrants representing at least 60% of the shares of
Common Stock obtainable upon exercise of the Warrants.
Section 11. Descriptive Headings; Governing Law. The descriptive
headings of the several Sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. The construction,
validity and interpretation of this Warrant will be governed by the internal
law, and not the conflicts law, of the State of Maryland.
* * * * *
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
and attested by its duly authorized officers under its corporate seal and to be
dated the Date of Issuance hereof.
CLEAR HOLDINGS, INC.
By:
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Xxxxxxx X. Xxxxxxxx, Xx.
Chief Executive Officer
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EXHIBIT I
EXERCISE AGREEMENT
To:
Dated:
The undersigned, pursuant to the provisions set forth in the
attached Warrant (Certificate No. W- ), hereby agrees to subscribe for the
purchase of shares of the Common Stock covered by such Warrant and makes
payment herewith in full therefor at the price per share provided by such
Warrant.
[ ] CHECK BOX FOR NET ISSUE EXERCISE
Signature
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Address
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EXHIBIT II
ASSIGNMENT
FOR VALUE RECEIVED, _____________ hereby sells, assigns, and
transfers all of the rights of the undersigned under the attached Warrant
(Certificate No. W-___ ) with respect to the number of shares of the Common
Stock covered thereby set forth below, unto:
Names of Assignee Address No. of Shares
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Signature
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