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EXHIBIT 10.3
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ENLIGHTEN SOFTWARE SOLUTIONS, INC.
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this "Agreement") is made and entered
into as of March 6, 2001 between ENLIGHTEN SOFTWARE SOLUTIONS, INC., a
California corporation (the "Company"), and XXXXX TECH CONSULTING, INC., a
Delaware corporation ("Xxxxx Tech"). Certain capitalized terms used herein are
defined in Section 24 hereof.
WHEREAS, the Company desires to obtain a credit facility from
Xxxxx Tech upon the terms and subject to the conditions specified in the certain
Loan Agreement by and between the Company and Xxxxx Tech dated as of February
14, 2001 (the "Loan Agreement"); and
WHEREAS, as an inducement to Xxxxx Tech to enter into the Loan
Agreement and provide the Credit Facility (as such term is defined in the Loan
Agreement), the Company has agreed to issue to Xxxxx Tech Warrants, as
hereinafter described, to purchase shares of the Company's common stock, no par
value per share (the "Common Stock"), upon the terms and subject to the
conditions set forth herein; and
WHEREAS, the Company wishes to set forth, among other things, the
provisions of such Warrants and the terms and conditions on which such Warrants
may be issued, exchanged, exercised and replaced.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
1. GRANT; FORM OF WARRANTS.
The Company shall issue and deliver to Xxxxx Tech on the date
hereof, a warrant (the "Warrant") to purchase 2,000,000 shares of Common Stock.
For all purposes of this Agreement, all shares of Common Stock which Xxxxx Tech
may acquire upon exercise of a Warrant may be referred to as "Warrant Shares."
The number of Warrant Shares for which a Warrant shall be exercisable shall be
calculated in each case based on the criteria set forth herein. The Warrant, and
any additional Warrants which may be issued upon partial exercise, replacement
or transfer of such Warrant or Warrants, shall be evidenced by, and subject to
the terms of a Warrant Certificate (including the Forms of Election to Purchase
and Assignment attached thereto, a "Warrant Certificate") in the form of Exhibit
1 attached hereto, in each case executed on behalf of the Company by the manual
or facsimile signature of the President or Vice President of the Company, or in
facsimile, and attested by the Secretary or an Assistant Secretary of the
Company.
2. EXERCISE PRICE.
Subject to the terms, conditions and adjustments herein set
forth, the Warrants shall be exercisable at a price per share equal to the
Current Market Price ("Exercise Price").
3. REGISTRATION.
All Warrant Certificates shall be numbered and shall be
registered in a warrant register (the "Warrant Register") as they are issued.
Subject to its compliance with the foregoing, the Company shall be entitled to
treat the registered holder of any Warrant on the Warrant Register as the owner
in fact of such Warrant for all purposes and shall not be bound to recognize any
equitable or other claim to or interest in such Warrant on the part of any other
person or entity, and shall not be liable for any registration or transfer of
Warrants which are registered or to be registered in the name of a fiduciary or
the nominee of a fiduciary unless made with the actual knowledge that a
fiduciary or nominee is committing a breach of trust in requesting such
registration or transfer, or with the knowledge of such facts that its
participation therein amounts to bad faith.
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4. TRANSFER OF WARRANTS.
(a) Neither any Warrant nor any Warrant Shares obtained upon
exercise of any Warrant may be offered, sold, transferred, pledged or otherwise
disposed of, in whole or in part, to any Person other than in accordance with
applicable federal and state securities laws.
(b) Except as otherwise permitted by this Section 4, each Warrant
Certificate and each certificate evidencing any Warrant Shares issued upon
exercise of a Warrant shall be stamped or otherwise imprinted with a legend in
substantially the form as set forth on the form of Warrant Certificate attached
hereto as Exhibit 1. Notwithstanding the foregoing, a holder of a Warrant
Certificate or a certificate evidencing any Warrant Shares issued upon exercise
of a Warrant (a "Holder") may require the Company to issue a Warrant Certificate
or stock certificate, in each case without a legend, if and to the extent
permitted by, and in accordance with, applicable law.
(c) Provided that a transfer is permitted under applicable law, a
Warrant may be transferred or endorsed to another party in whole or in part by
surrendering to the Company, or its duly authorized agent, for cancellation the
existing Warrant Certificate evidencing the Warrant to be transferred, endorsed
or accompanied by a written instrument of transfer, in form satisfactory to the
Company, duly executed by the holder thereof in person or by a duly authorized
representative, agent or attorney-in-fact appointed in writing. Upon receipt
thereof by the Company or such agent, the Company shall issue and deliver, or
cause such agent to issue and deliver, in the name of the transferee, a new
Warrant Certificate containing the same terms as the surrendered Warrant
Certificate. In the case of the transfer of fewer than all of the rights
evidenced by the surrendered Warrant Certificate, the Company shall issue a new
Warrant Certificate to the transferring Holder for the remaining number of
shares specified in the Warrant Certificate so surrendered.
5. EXERCISE OF WARRANTS.
(a) Term of Exercise. Each Warrant Certificate shall entitle the
holder thereof to purchase up to such number of Warrant Shares as are specified
in the Warrant Certificate at the Exercise Price, in whole or in part, at any
time or from time to time, on any Business Day during the Exercise Period.
(b) Mechanics of Exercise. To exercise a Warrant, the holder
thereof shall deliver to the Company, or its duly authorized agent, the Warrant
Certificate or Certificates evidencing such Warrant, with the Form of Election
to Purchase attached thereto duly completed and signed, together with payment to
the Company of the Exercise Price for the number of Warrant Shares in respect of
which the Warrant is then exercised. Upon such surrender of the Warrant
Certificate and payment of the Exercise Price as aforesaid, the Company shall
issue and cause to be delivered with all reasonable dispatch (and in any event
within five (5) Business Days of the surrender of such Warrant Certificate and
payment of the applicable Exercise Price) to or upon the written order of the
Holder of such Warrant, in such name or names as such Holder may designate on
the completed Election to Purchase, a certificate or certificates for the number
of Shares so purchased, together with cash, as provided in Section 13 of this
Agreement, in respect of any fraction of a Warrant Share otherwise issuable upon
such surrender. Such certificate or certificates shall be deemed to have been
issued and any person or entity so designated to be named therein shall be
deemed to have become a holder of record of such Warrant Shares as of the date
of the surrender of the Warrant Certificate and payment of the Exercise Price as
aforesaid. If any Warrant is exercised by its Holder in part, the Company shall
issue a new Warrant Certificate to the Holder exercisable for the remaining
number of Warrant Shares specified in the Warrant Certificate so surrendered
(which shall be in all other respects identical to the Warrant Certificate
surrendered).
(c) Payment of Exercise Price. Payment of the Exercise Price may
be made in cash, by certified check or bank draft payable to the order of the
Company, by wire transfer of immediately available funds.
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(d) Payment of Taxes. The Company shall pay all expenses, taxes
and other governmental charges with respect to the issue or delivery of the
Warrant Shares, unless such tax or charge is required by law to be imposed upon
the Holder. The Company shall not be required, however, to pay any transfer tax
or other similar charge imposed in connection with the issue of any certificate
for Warrant Shares in any name other than that of the Holder, and in such case
the Company shall not be required to issue or deliver any stock certificate
until such tax or other charge has been paid or it has been established to the
satisfaction of the Company that no such tax or other charge is due.
6. MUTILATED OR MISSING WARRANT CERTIFICATE.
If a Warrant Certificate is mutilated, lost, stolen or destroyed,
the Company shall issue and deliver (a) in exchange and substitution for and
upon cancellation of any mutilated Warrant Certificate or (b) in lieu of and in
substitution for any Warrant Certificate lost, stolen or destroyed, a new
Warrant Certificate of like tenor representing an equivalent right or interest;
but only upon receipt of evidence reasonably satisfactory to the Company of such
loss, theft or destruction of such Warrant Certificate including, without
limitation, an Affidavit of Loss executed by the Holder.
7. RESERVATION OF COMMON STOCK, ETC.
The Company shall reserve, for so long as any Warrant remains
outstanding, a number of authorized and unissued Warrant Shares sufficient to
provide for the exercise in full of any and all such Warrants, and the transfer
agent for the Common Stock, which may be the Company (the "Transfer Agent"), is
hereby irrevocably authorized and directed at all times until all such Warrants
have been exercised in full or otherwise surrendered for cancellation to reserve
such number of authorized and unissued Warrant Shares as necessary for such
purpose. The Company shall keep copies of this Agreement on file with the
Transfer Agent and shall supply the Transfer Agent with duly executed stock
certificates for issue and delivery for such purpose and will itself provide or
otherwise make available any cash payable as provided in Section 13 of this
Agreement. All Warrant Certificates surrendered upon the exercise of a Warrant
shall be, and such Warrant Certificates shall constitute, sufficient evidence of
the number of Warrant Shares which have been issued upon the exercise of
Warrants. The Company covenants and agrees that upon exercise of the Warrants
and payment of the Exercise Price therefor, all Warrant Shares issuable upon
such exercise shall be duly and validly issued, fully paid and non-assessable,
not subject to the preemptive rights of any shareholder, and free from all
taxes, liens, security interests, charges, and other encumbrances with respect
to the issuance thereof, other than taxes in respect of any transfer occurring
contemporaneously with such issuance.
8. ADJUSTMENTS.
The number of Warrant Shares and the Exercise Price of each
Warrant shall be subject to adjustment from time to time as set forth in this
Section 8. The Company shall give the Holder notice of any event described below
which requires an adjustment pursuant to this Section 8 in accordance with
Section 12.
(a) Mechanical Adjustments. The number of Warrant Shares
purchasable upon the exercise of each Warrant and the Exercise Price shall be
subject to adjustment as follows:
(1) Adjustment for Change in Capital Stock. Subject to
paragraph 8(a)(6) below, in case the Company shall (i) pay a dividend on its
outstanding shares of Common Stock in shares of Common Stock or make a
distribution of shares of Common Stock on its outstanding shares of Common
Stock, (ii) make a distribution on its outstanding shares of Common Stock in
shares of its capital stock other than Common Stock, (iii) subdivide its
outstanding shares of Common Stock into a greater number of shares of Common
Stock, (iv) combine its outstanding shares of Common Stock into a smaller number
of shares of
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Common Stock, or (v) issue, by reclassification of its shares of Common Stock,
other securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the surviving
entity), then the number of Warrant Shares purchasable upon exercise of a
Warrant immediately prior thereto shall be adjusted so that the Holder shall be
entitled to receive the kind and number of Warrant Shares or other securities of
the Company which such Holder would have owned or have been entitled to receive
upon the happening of any of the events described above had such Warrant been
exercised in full immediately prior to the happening of such event or any record
date with respect thereto. An adjustment made pursuant to this paragraph 8(a)(1)
shall become effective immediately after the record date for such event or, if
none, immediately after the effective date of such event. Such adjustment shall
be made successively whenever such an event occurs.
(2) Adjustment for Rights Issue. Subject to paragraph
8(a)(6) below, in case the Company shall issue rights, options or warrants
(collectively, "Rights") to all holders of its outstanding Common Stock
entitling them to subscribe for or purchase shares of Common Stock at a Price
Per Share (as defined in paragraph 8(a)(5) below) which is lower at the record
date mentioned below than the then Current Market Price per share of Common
Stock, the number of Warrant Shares thereafter purchasable upon the exercise of
a Warrant shall be determined by multiplying the number of Warrant Shares
theretofore purchasable upon exercise of such Warrant by a fraction, the
numerator of which shall be the sum of (a) the total number of shares of Common
Stock and shares of Common Stock issuable upon the exercise of Convertible
Securities (as defined in paragraph 8(a)(4) below), each as outstanding on the
date of issuance of such Rights plus (b) the additional Number of Shares (as
defined in paragraph 8(a)(5) below) of Common Stock offered for subscription or
purchase in connection with such Rights and the denominator of which shall be
the sum of (x) the total number of shares of Common Stock and shares of Common
Stock issuable upon the exercise of Convertible Securities, each as outstanding
on the date of issuance of such Rights plus (y) the number of shares which the
aggregate Proceeds (as defined in paragraph 8(a)(5) below) received or
receivable by the Company upon exercise of such Rights would purchase at the
Current Market Price per share of Common Stock at such record date. Such
adjustment shall be made whenever Rights are issued, and shall become effective
immediately after the record date for the determination of shareholders entitled
to receive Rights, provided, that except as provided in paragraph 8(a)(10)
below, no further adjustment of the number of Warrant Shares issuable upon
exercise of such Warrant shall be made upon the actual issue of Warrant Shares.
(3) Adjustment for Other Distributions. Subject to
paragraph 8(a)(6) below, in case the Company shall distribute to all holders of
its shares of Common Stock (x) evidences of indebtedness or assets (excluding
cash dividends or distributions payable out of the consolidated earnings or
surplus legally available for such dividends or distributions and dividends or
distributions referred to in paragraphs 8(a)(1) or (2) above) of the Company or
any corporation or other legal entity a majority of the voting equity or equity
interests of which are owned, directly or indirectly, by the Company (a
"Subsidiary"), or (y) shares of capital stock of a Subsidiary (such evidences of
indebtedness, assets and securities as set forth in clauses (x) and (y) above,
collectively, "Assets"), then in each case the number of Warrant Shares
thereafter purchasable upon the exercise of a Warrant shall be determined by
multiplying the number of Warrant Shares theretofore purchasable upon the
exercise of such Warrant by a fraction, the
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numerator of which shall be the Current Market Price per share of Common Stock
on the date of such distribution and the denominator of which shall be the
difference between (a) such Current Market Price per share of Common Stock and
(b) the fair value as of such record date as determined reasonably and in good
faith by the Board of Directors of the portion of the Assets applicable to one
share of Common Stock. Such adjustment shall be made whenever any such
distribution is made, and shall become effective on the date of distribution
retroactive to the record date for the determination of shareholders entitled to
receive such distribution.
(4) Adjustment for Common Stock and Convertible Securities Issue.
Subject to paragraph 8(a)(6) below, in case the Company shall issue shares of
its Common Stock, or securities convertible into, or exchangeable or exercisable
for Common Stock or Rights to subscribe for or purchase such securities
(collectively, "Convertible Securities") (excluding the issuance of (i) Common
Stock or Convertible Securities issued in any of the transactions described in
paragraphs 8(a)(1), (2) or (3) above or Section 8(d) below, (ii) securities
issued pursuant to or in connection with any Permitted Issuance, or (iii) shares
of Common Stock issued upon the exercise of the Warrants) at a Price Per Share
of Common Stock, in the case of the issuance of Common Stock, or at a Price Per
Share of Common Stock initially deliverable upon conversion or exercise of
exchange of such Convertible Securities, in each case, together with any other
consideration received by the Company in connection with such issuance, below
the then Current Market Price per share of Common Stock on the date the Company
fixed the offering, conversion or exercise or exchange price of such additional
shares, then the number of Warrant Shares thereafter purchasable upon the
exercise of a Warrant shall be determined by multiplying the number of Warrant
Shares theretofore purchasable upon exercise of such Warrant by a fraction, the
numerator of which shall be the sum of (a) the total number of shares of Common
Stock and shares of Common Stock issuable upon the exercise of Convertible
Securities (in each case, excluding all shares being issued for which adjustment
is being made pursuant to this paragraph 8(a)(4)), each as outstanding on such
date plus (b) the additional Number of Shares of Common Stock offered for
subscription or purchase, and the denominator of which shall be the sum of (x)
the total number of shares of Common Stock and shares of Common Stock issuable
upon the exercise of Convertible Securities (in each case, excluding all shares
being issued for which adjustment is being made pursuant to this paragraph
8(a)(4)), each as outstanding on such date plus (y) the number of shares of
Common Stock which the aggregate Proceeds of the total amount of Convertible
Securities so offered would purchase at the Current Market Price Per Share of
Common Stock at such record date. In case the Company shall issue and sell
Convertible Securities for a consideration consisting, in whole or in part, of
property other than cash or its equivalent, then in determining the "Price Per
Share" of Common Stock and the "consideration received by the Company" for
purposes of the first sentence and the immediately preceding sentence of this
paragraph 8(a)(4), the Board of Directors shall reasonably and in good faith
determine the fair value of such property. The determination of whether any
adjustment is required under this paragraph 8(a)(4), by reason of the sale and
issuance of any Convertible Securities and the amount of such adjustment, if
any, shall be made at such time and not at the subsequent time of issuance of
shares of Common Stock upon the exercise, conversion or exchange of Convertible
Securities.
(5) Price Per Share. For purposes of this Section 8(a), "Price
Per Share" shall be defined and determined according to the following formula:
P = R/N
where
P = Price Per Share;
R = the "Proceeds" received or
receivable by the Company which (x)
in the case of shares of Common
Stock is the total amount received
or receivable by the Company in
consideration for the
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issuance and sale of such shares;
(y) in the case of Rights or of
Convertible Securities with respect
to shares of Common Stock, is the
total amount received or receivable
by the Company in consideration for
the issuance and sale of Rights or
such Convertible Securities, plus
the minimum aggregate amount of
additional consideration, other
than the surrender of such
Convertible Securities, payable to
the Company upon exercise,
conversion or exchange thereof; and
(z) in the case of Rights to
subscribe for or purchase such
Convertible Securities, is the
total amount received or receivable
by the Company in consideration for
the issuance and sale of such
Rights plus the minimum aggregate
amount of additional consideration,
other than the surrender of such
Convertible Securities, payable
upon the conversion or exchange or
exercise of such Convertible
Securities; provided that in each
case the proceeds received or
receivable by the Company shall be
the net cash proceeds after
deducting therefrom any
compensation paid or discount
allowed in the sale, underwriting
or purchase thereof by underwriters
or dealers or others performing
similar services; and
N = the "Number of Shares," which (x)
in the case of Common Stock is the
number of shares issued; and (y) in
the case of Rights or of
Convertible Securities with respect
to shares of Common Stock, is the
maximum number of shares of Common
Stock initially issuable upon
exercise, conversion or exchange
thereof.
(6) Minimum Adjustment. No adjustment in the number of
Warrant Shares purchasable hereunder shall be required unless such adjustment
would require an increase or decrease of at least one percent (1%) in the number
of Warrant Shares purchasable upon the exercise of this Warrant; provided that
any adjustments which by reason of this paragraph 8(a)(6) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment, and provided further that notwithstanding the foregoing, all such
adjustments shall be made no later than three years from the date of the first
event that would have required an adjustment but for this paragraph. All
calculations shall be made to the nearest one-thousandth of a Warrant Share and
the nearest cent.
(7) Adjustment in Exercise Price. Whenever the number of
Warrant Shares purchasable upon the exercise of this Warrant is adjusted as
herein provided, the Exercise Price payable upon exercise of this Warrant
immediately prior to such adjustment shall be adjusted by multiplying such
Exercise Price by a fraction, the numerator of which shall be the number of
Warrant Shares purchasable upon the exercise of this Warrant immediately prior
to such adjustment and the denominator of which shall be the number of Warrant
Shares purchasable immediately thereafter.
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(8) Shares of Common Stock. For all purposes of this
Agreement, the term "shares of Common Stock" shall mean (i) the Common Stock
and/or (ii) any other class of stock resulting from successive changes or
reclassification of such shares consisting solely of changes in par value, or
from par value to no par value, or from no par value to par value. If at any
time, as a result of an adjustment made pursuant to this Section 8(a), the
Holder shall become entitled to purchase any securities of the Company other
than shares of Common Stock, thereafter the number of such other shares so
purchasable upon exercise of a Warrant and the Exercise Price shall be subject
to adjustment from time to time in a manner and on terms substantially identical
to the provisions with respect to the Warrant Shares contained in paragraphs (1)
through (7) above, and the provisions of this Agreement with respect to the
Warrant Shares shall apply on like terms to any such other securities.
(9) Expiration of Rights, Etc. Upon the expiration of any
Rights or the expiration of any conversion or exchange rights, if any thereof
shall not have been exercised, the Exercise Price and the number of Warrant
Shares purchasable upon the exercise of this Warrant shall, upon such
expiration, be readjusted and shall thereafter be such as it would have been had
it been originally adjusted (or had the original adjustment not been required,
as the case may be) as if (i) the only shares of Common Stock so issued were the
shares of Common Stock, if any, actually issued or sold upon the exercise of
such Rights or conversion or exchange or exercise rights and (ii) such shares of
Common Stock, if any, were issued or sold for the consideration actually
received by the Company upon such exercise plus the aggregate consideration, if
any, actually received by the Company for the issuance, sale or grant of all of
such Rights or conversion or exchange or exercise rights whether or not
exercised; provided that no such readjustment shall have the effect of
increasing the Exercise Price or decreasing the number of Warrant Shares
purchasable upon the exercise of a Warrant by an amount in excess of the amount
of the adjustment initially made in respect of the issuance, sale or grant of
such Rights or conversion or exchange or exercise rights.
(b) Voluntary Adjustment by the Company. The Company may, at its
option and at any time during the term of a Warrant, reduce the then current
Exercise Price to any amount deemed appropriate by the Board of Directors.
(c) Notice of Adjustment. Whenever the number of Warrant Shares
purchasable upon the exercise of a Warrant or the Exercise Price of Warrant
Shares is adjusted as herein provided, the Company shall promptly mail to the
Holder, at the sole expense of the Company by first class mail, postage prepaid,
notice of such adjustment or adjustments and shall prepare and cause to be
executed and delivered an officer's certificate setting forth the number of
Warrant Shares purchasable upon the exercise of such Warrant and the Exercise
Price of Warrant Shares after such adjustment, setting forth a brief statement
of the facts requiring such adjustment and setting forth in reasonable detail
the computations by which such adjustment was made.
(d) Preservation of Purchase Rights upon Merger or Consolidation.
In case of any consolidation of the Company with or merger of the Company into
another entity, prior to the consummation of such consolidation or merger the
Company and such successor entity shall execute and deliver an agreement, which
shall be binding on the Holder, that the Holder shall have the right upon the
consummation of such consolidation or merger and upon payment of the Exercise
Price in effect immediately prior to such action (after giving effect to any
applicable adjustments under Section 8(a) hereof) to purchase upon exercise of a
Warrant the kind and amount of shares and other securities and property
(including cash) which such Holder would have owned or have been entitled to
receive after the happening of such consolidation or merger had such Warrant
been exercised immediately prior to such action. The Company shall at its sole
expense mail by first class mail, postage prepaid, to the Holder notice of the
execution of any such agreement. Such agreement shall provide for adjustments,
which shall be substantially identical to the adjustments provided for in this
Section 8. The provisions of this Section 8(d) shall similarly apply to
successive consolidations or mergers.
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(e) Statement on Warrant. Irrespective of any adjustments in the
Exercise Price or the number or kind of shares purchasable upon the exercise of
this Warrant, this Warrant theretofore or thereafter issued may continue to
express the same Exercise Price and number and kind of Warrant Shares as are
stated in this Warrant as initially issued.
(f) Notices to Holders. In case, at any time or from time to
time:
(1) the Company shall authorize the issuance to all
holders of shares of Common Stock of rights, options or warrants to subscribe
for or purchase shares of Common Stock or of any other subscription rights or
warrants; or
(2) the Company shall authorize the distribution to all
holders of shares of Common Stock of securities or assets or cash; or
(3) of any consolidation or merger to which the Company is
a party and for which approval of any shareholders of the Company is required,
or of the conveyance or transfer of a substantial portion of the assets of the
Company for which approval of any shareholders of the Company is required, or of
any reclassification or change of Common Stock issuable upon exercise of the
Warrants (other than a change in par value, or from par value to no par value,
or from no par value to par value, or as a result of a subdivision or
combination), or a tender offer or exchange offer for shares of Common Stock; or
(4) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(5) the Company takes any significant action toward a
public offering or sale of shares of Common Stock (including, without
limitation, the engagement of an investment banking firm, underwriter or other
consultant); or
(6) the Company receives a notice from any holder of its
other equity securities that such holder desires to exercise its right to "put"
such securities so held back to the Company;
then the Company shall cause to be given to the Holder at its
address appearing hereon, at least ten (10) Business Days prior to the
applicable record date hereinafter specified or the date on which a registration
statement relating to such public offering is to be filed with the Securities
and Exchange Commission (the "SEC"), or promptly in the case of events for which
there is no record date, by first class mail, postage prepaid, a written notice
stating (i) the date as of which the holders of record of shares of Common Stock
entitled to receive any such rights, options, warrants or distribution are to be
determined, (ii) the initial expiration date set forth in any tender offer or
exchange offer for shares of Common Stock, (iii) the date on which any such
reclassification, consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding up is expected to become effective or consummated, as
well as the date as of which it is expected that holders of record of shares of
Common Stock shall be entitled to exchange such shares for securities or other
property, if any, deliverable upon such reclassification, consolidation, merger,
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conveyance, transfer, dissolution, liquidation, or winding up, (iv) that the
Company intends to proceed with a public offering and notifying the Holder of
the date such registration statement is scheduled to be filed with the SEC, or
(v) the date on which the purchase of shares by the Company is to be effected
pursuant to the exercise of such a put option, together with, in such case, an
officer's certificate stating whether the Company has sufficient funds legally
available to it to make the purchase required in connection with such exercise,
and describing in sufficient detail the calculations made by the Company in
making such statement. The failure to give the notice required by this Section
8(f) or any defect therein shall not affect the legality or validity of any
distribution, right, option, warrant, reclassification, consolidation, merger,
conveyance, transfer, dissolution, liquidation, winding up or action, or the
vote upon any of the foregoing.
9. SECURITIES ACT REGISTRATION.
(a) By acceptance of a Warrant Certificate evidencing the
Warrant, each Holder:
(1) represents and agrees that such Holder is acquiring
the Warrant, and that upon exercise thereof it will acquire the Warrant Shares,
with its own funds for its own account for investment, not as a nominee or
agent, and not with a view to any sale, distribution or transfer thereof in
violation of the Securities Act. By acceptance of a Warrant Certificate
evidencing the Warrant, each Holder further represents that it does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer, or grant participations to such person or to any third person, with
respect to the Warrant or the Warrant Shares.
(2) acknowledges that such Holder has been informed by the
Company or by the previous Holder of the Warrant that the Warrant and any
Warrant Shares obtained upon exercise of any Warrant may not, under the
Securities Act and applicable regulations thereunder, be re-sold, transferred or
otherwise disposed of without registration under the Securities Act or an
applicable exemption from the registration requirements of the Securities Act.
(3) acknowledges that the Warrant and any Warrant Shares
obtained upon exercise of any Warrant at the time of issuance may not be
registered under the Securities Act, and applicable state securities laws, on
the ground that the issuance of such securities is exempt pursuant to Section
4(2) of the Act and state law exemptions relating to offers and sales not by
means of a public offering, and that the Company's reliance on such exemptions
is predicated on the undersigned's representations set forth herein.
(4) acknowledges that an investment in the Company is
highly speculative and represents that the Holder is able to fend for itself in
the transactions contemplated by this Warrant Agreement, has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of its investments, and has the ability to bear the economic
risks (including the risk of a total loss) of its investment. Each Holder
represents that it has had the opportunity to ask questions of the Company
concerning the Company's business and assets and to obtain any additional
information which it considered necessary to verify the accuracy of or to
amplify the Company's disclosures, and has had all questions which have been
asked by it satisfactorily answered by the Company.
(b) As of the date hereof, the parties hereto have executed and
delivered the Registration Rights Agreement pursuant to which the Warrant Shares
shall be considered Registrable Securities (as defined therein). The parties
agree that the Registration Rights Agreement shall govern all matters relating
to the registration of the Warrant Shares under the Securities Act.
10. INFORMATION COVENANTS.
(a) Notice of Shareholder Meetings. Nothing contained in this
Agreement shall be construed as conferring upon any Holder the right to vote or
to consent to or receive notice as a shareholder in respect of the
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meetings of shareholders or the election of directors of the Company or any
other matter, or any rights whatsoever as a shareholder of the Company;
provided, however, that if a meeting of the shareholders of the Company is
called or if consents of the Company's shareholders are solicited to consider
and take action on a proposal for (i) the declaration of a dividend with respect
to the Common Stock, other than in cash, (ii) the voluntary dissolution of the
Company, or (iii) any consolidation, merger or sale of all or substantially all
of its property, assets, business and good will as an entirety, then the Company
shall cause a notice thereof to be sent by first class mail, postage prepaid, at
least five (5) Business Days prior to the record date for determining
shareholders entitled to vote at such meeting or to take action with respect to
such consent, to each Holder of Warrants at such Holder's address appearing on
the Warrant Register.
(b) Cooperation. The Company shall cooperate with the Holder and
each holder of Warrant Shares in supplying such information as may be reasonably
necessary for such holders to complete and file any information reporting forms
presently or hereafter required by the SEC and any state securities agency as a
condition to the availability of an exemption under the Securities Act and any
applicable state securities law for the sale of this Warrant or any Warrant
Shares.
(c) Proper Books and Records. The Company covenants that it will
keep proper books and records in which full, true and correct entries in
conformity with generally accepted accounting principles shall be made of all
dealings and transactions in relation to its business and activities.
11. REPRESENTATIONS AND WARRANTIES.
As an inducement to Xxxxx Tech to enter into this Agreement and
the Registration Rights Agreement (collectively, the "Transaction Documents"),
the Company represents and warrants to Xxxxx Tech as of the date hereof as
follows:
(a) Validity of Securities. The Warrants, when issued and
delivered in accordance with the terms of this Agreement, and the Warrant Shares
issued upon exercise of the Warrants when issued, paid for and delivered in
accordance with the terms of this Agreement and the Warrant Certificates, shall
be duly and validly issued and outstanding, fully paid and nonassessable, not
subject to the preemptive rights of any shareholder and free from all taxes,
liens, security interests, charges, and other encumbrances with respect to the
issuance thereof, other than taxes in respect of any transfer occurring
contemporaneously with such issuance, other than the transfer and other
restrictions contemplated by this Agreement. All issued and outstanding shares
of the Company's capital stock have been duly authorized and validly issued and
are fully paid and nonassessable, are not subject to the preemptive rights of
any shareholder, have been issued in compliance with all applicable federal and
state securities laws and are free from all taxes, liens, security interests,
charges, and other encumbrances with respect to the issuance thereof, other than
taxes in respect of any transfer occurring contemporaneously with such issuance.
(b) Registration Rights. Except for parties to the Registration
Rights Agreement and as set forth on Schedule 11(b) hereto, no Person has any
right to cause the Company to effect the registration under the Securities Act
of any securities of the Company.
12
12. NOTICES.
All notices, demands and other communications provided for or
permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopier, courier
service, overnight mail or personal delivery:
(a) if to Xxxxx Tech:
Xxxxx Tech Consulting, Inc.
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
000 00xx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
(b) if to the Company:
Enlighten Software Solutions, Inc.
000 Xxxxx Xxx, Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attention: Chief Financial Officer
All such notices and communications shall be deemed to have been
duly given when delivered by hand, if personally delivered; when delivered by
courier or overnight mail, if delivered by commercial courier service or
overnight mail; five (5) Business Days after being deposited in the mail,
postage prepaid, if mailed; and when receipt is mechanically acknowledged, if
telecopied. Any party may by notice given in accordance with this Section 12
designate another address or Person for receipt of notices hereunder.
13. FRACTIONAL INTERESTS.
The Company shall not be required to issue fractions of Warrant
Shares on the exercise of Warrants. If the Company elects not to issue fractions
of Warrant Shares, then with respect to any fraction of a Share that would
otherwise have been issuable on the exercise of a Warrant, the Company shall
purchase such fraction for an amount in cash equal to the fraction of the
Current Market Price of such fractional Share.
14. SURVIVAL.
This Agreement shall survive the exercise of the Warrants.
15. NO IMPAIRMENT; NECESSARY ACTIONS.
The Company shall not by any action (including, without
limitation, amending its articles of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action) avoid or seek to avoid the
observance or performance of any of the terms of this Agreement or any Warrant,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such actions as may be necessary or appropriate to
protect the rights of the Holder against
13
impairment. Without limiting the generality of the foregoing, the Company will:
(a) use its commercially reasonable efforts to obtain all such authorizations,
approvals, exemptions or consents from any Governmental Authority having
jurisdiction thereof as may be necessary to enable the Company to perform its
obligations under this Agreement (including, without limitation, making all
necessary filings with such Governmental Authorities, except that the Company
shall not be required to make any such filings as would cause it to be required
to qualify to do business in any such jurisdiction where it would not otherwise
be required to so qualify); (b) take all necessary steps (including, without
limitation, making appropriate amendments to its certificate of incorporation)
to ensure that the Company has authorized a sufficient number of authorized but
unissued shares of its common stock to provide for the issuance of the Warrant
Shares; (c) reserve from such authorized but unissued shares of common stock a
sufficient number of shares to provide for the issuance of the Warrant Shares
upon the exercise of any and all Warrants issued pursuant to this Agreement; and
(d) take all actions as may be necessary or appropriate to ensure that the
Company may validly and legally issue fully paid and non-assessable shares of
Common Stock upon the exercise of any such Warrant that are not subject to any
preemptive rights and are free from all taxes, liens, security interests,
charges, and other encumbrances with respect to the issuance thereof, other than
taxes in respect of any transfer occurring contemporaneously with such issuance.
16. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the
Company and the Holder with respect to this Warrant; provided, that the Company
and the Holder are parties to the Registration Rights Agreement, and the
provisions thereof are deemed incorporated into this Agreement as if the
provisions thereof were originally set forth in full in this Agreement. The
provisions of the Registration Rights Agreement shall be binding on the Holder
without giving effect to any amendment or modification of the Registration
Rights Agreement, unless such amendments or modifications shall have been made
pursuant to the provisions of such Registration Rights Agreement.
17. BINDING EFFECT; BENEFITS.
This Agreement shall inure to the benefit of and shall be binding
upon the Company and the Holder and their respective permitted successors and
assigns. Nothing in this Agreement, expressed or implied, is intended to or
shall confer on any person other than the Company and the Holder, or their
respective permitted successors or assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
18. SECTION AND OTHER HEADINGS.
The section and other headings contained in this Agreement are
for reference purposes only and shall not be deemed to be a part of this
Agreement or to affect the meaning or interpretation of this Agreement.
19. SEVERABILITY.
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the terms and provisions of this Agreement or affecting the
validity or enforceability of any of the terms or provisions of this Agreement
in any other jurisdiction.
20. RIGHTS TO CASH DIVIDENDS; NO OTHER RIGHTS OR LIABILITIES AS
SHAREHOLDER.
Notwithstanding anything to the contrary in this Agreement,
during the Exercise Period, the Company may not declare and pay any cash
dividends to holders of its Common Stock unless the Company pays to each Holder
a cash dividend in an amount equal to that which such Holder would have received
had such Holder's Warrants been exercised immediately prior to the record date
with respect to such dividend for the number of Warrant Shares for which its
Warrants would have been then exercisable. Nothing contained in this Agreement
shall be determined as conferring upon the Holder any rights, other than the
right to receive cash dividends as
14
described in the preceding sentence, as a shareholder of the Company or as
imposing any liabilities on the Holder to purchase any securities whether such
liabilities are asserted by the Company or by creditors or shareholders of the
Company or otherwise.
21. COUNTERPARTS.
This Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which so
executed shall be deemed to be an original; but such counterparts together shall
constitute but one and the same instrument.
22. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Virginia without regard to the conflict of
law provisions thereof.
23. REMEDIES.
Any Holder of a Warrant Certificate or certificate evidencing any
Warrant Shares, in addition to being entitled to exercise all rights granted by
law, including recovery of damages, will be entitled to equitable remedies
including injunctive relief and specific performance of its rights under this
Agreement or such certificate. The Company agrees that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by it
of the provisions of this Agreement and hereby agrees to waive the defense in
any action for injunctive relief or specific performance that a remedy at law
would be adequate. In any action or proceeding brought to enforce any provision
of this Agreement or where any provision hereof is validly asserted as a
defense, the successful party shall be entitled to recover reasonable attorneys'
fees in addition to any other available remedy.
24. CERTAIN DEFINITIONS.
"Affiliate" means, with respect to any Person: (a) any other
Person that directly or indirectly, controls, is controlled by, or is under
common control with, such Person; or (b) a member or a general or limited
partner of such Person.
"Board of Directors" means the Board of Directors of the Company.
"Business Day" means any day other than a Saturday, Sunday or a
day on which national banks are authorized by law to close in the State of
California.
"Current Market Price" per share of Common Stock, for the purpose
of any computation under this Agreement shall mean the average of the last
reported sale price per share of the Common Stock on each of the five
consecutive Trading Days preceding the date of the computation. The last
reported sale price of the Common Stock on a day will be (a) the last sale price
of the Common Stock before 4:00 p.m. reported on the principal stock exchange on
which the Common Stock is listed, or (b) if the Common Stock is not listed on a
stock exchange, the last sale price of the Common Stock before 4:00 p.m.
reported on the principal automated securities price quotation system on which
sale prices of the Common Stock are reported or (c) if the Common Stock is not
listed on a stock exchange and sale prices of the Common Stock are not reported
on an automated quotation system, the mean of the high bid and low asked price
quotations for the Common Stock as reported by National Quotation Bureau
Incorporated if at least two securities dealers have inserted both bid and asked
quotations for the Common Stock on at least five of the ten preceding Trading
Days. If the Common Stock is not traded or quoted as described in any of clause
(a), (b) or (c), the Current Market Price of the Common Stock on a day will be
the fair market value of the Common Stock on that day as determined in good
faith by the Company's Board of Directors based upon (and consistent with)
written advice from a member firm of the New York Stock Exchange, Inc. selected
by the Board of Directors.
"Exercise Form" means an Exercise Form in the form attached to
the form of Warrant Certificate attached hereto as Exhibit 1.
15
"Exercise Period" means the period commencing on the date hereof
and continuing until 5:00 p.m., Arlington, Virginia time, on March 6, 2002.
"Governmental Authority" means any foreign, federal, state, local
or other governmental authority or regulatory body having jurisdiction over the
Company, its Affiliates and the Holder.
"Indebtedness" shall have the meaning ascribed to it in the Loan
Agreement.
"Permitted Issuance" shall mean any issuance of Common Stock or
other securities of the Company pursuant to or in connection with any of the
following: (i) shares of Common Stock or options to purchase Common Stock issued
or granted to officers, directors, employees or consultants of the Company and
its subsidiaries, or, if approved by the Company's Board of Directors, to any
other individual or entity for any purpose other than an equity financing of the
Company; (ii) securities issued to financial institutions or lessors in
conjunction with a bona fide equipment financing, commercial credit arrangement
or similar transaction, provided that such issuance is approved by the Company's
Board of Directors; (iii) securities issued upon conversion of any convertible
securities outstanding as of the date hereof; (iv) securities issued in
connection with business combinations or corporate partnering agreements
approved by the Company's Board of Directors; or (v) securities issued in
connection with the Company's merger or acquisition of, by or into another
corporation.
"Person" means any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, governmental authority or other entity of
any kind, and shall include any successor (by merger or otherwise) of such
entity.
"Registration Rights Agreement" means the certain Registration
Rights Agreement, dated as of the date hereof, by and between the Company and
Xxxxx Tech, as amended from time to time.
"Securities Act" means the Securities Act of 1933, as amended, or
any successor Federal statute, and the rules and regulations of the United
States Securities and Exchange Commission thereunder, all as the same shall be
in effect at the time. Reference to a particular section of the Securities Act
shall be deemed to include a reference to the comparable section, if any, of any
such successor Federal statute.
"Trading Day" shall mean (a) if the Common Stock is listed on at
least one stock exchange, a day on which there is trading on the principal stock
exchange on which the Common Stock is listed, (b) if the Common Stock is not
listed on a stock exchange, but sale prices of the Common Stock are reported on
an automated quotation system, a day on which trading is reported on the
principal automated quotation system on which sales of the Common Stock are
reported or (c) if the Common Stock is not listed on a stock exchange and sale
prices of the Common Stock are not reported on an automated quotation system, a
day on which quotations are reported by National Quotation Bureau Incorporated.
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16
WARRANT AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties hereto has caused this
Warrant Agreement, or a counterpart hereof, to be duly executed and delivered as
of the day, month and year first above written.
Attest: ENLIGHTEN SOFTWARE SOLUTIONS, INC.
/s/ [NAME] By: /s/ Xxxx Xxxxxxx
--------------------------------- ---------------------------------
Name: Name: Xxxx Xxxxxxx
Title: Title: President and CEO
XXXXX TECH CONSULTING, INC.
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Chief Executive Officer
17
SCHEDULE 11(b)
Pursuant to Subscription Agreements (the "Subscription Agreements")
dated as of April 28, 2000 (the "Subscription Closing Date"), the Company issued
and sold 715,885 shares of Common Stock and warrants to purchase up to 859,063
shares of Common Stock to certain investors. Pursuant to the Subscription
Agreements, the Company is obligated to (i) file a registration statement with
the U.S. Securities and Exchange Commission (the "SEC") under the Securities Act
for the sales and distribution of all of such Common Stock issued or issuable
under the Subscription Agreements (the "Subscription Registrable Securities");
(ii) use its best efforts to secure the effectiveness of such registration
statement as soon as practicable thereafter; and (iii) use its best efforts to
cause the registration statement to remain effective until (A) the date ending
two years of the Subscription Closing Date, (B) the date on which all the
Subscription Registrable Securities have been resold, or (C) the date on which
each holder of Subscription Registrable Securities is able to sell all of such
holder's Registrable Securities in a single three month period without
registration under the Securities Act pursuant to Rule 144. On July 27, 2000,
the Company filed a Form SB-2 with the SEC covering the Registrable Securities
(a total of 1,574,948 shares of Common Stock). On September 15, 2000, the
Company filed Amendment Number One to the Form SB-2. The Company will be
required to file further amendments to the Form SB-2 in order to meet its
obligations under the Subscription Agreements.
18
EXHIBIT 1
WARRANT CERTIFICATE
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT
REQUIRED.
THE TRANSFER OR EXCHANGE OF THIS WARRANT MUST BE REGISTERED IN ACCORDANCE WITH
THE WARRANT AGREEMENT REFERRED TO HEREIN.
XX. XX-000 Xxxxx 0, 0000
XXXXXXXXX SOFTWARE SOLUTIONS, INC.
WARRANT CERTIFICATE
THIS CERTIFIES THAT for value received, Xxxxx Tech Consulting,
Inc., or its registered assigns, is the owner of a Warrant which entitles it to
purchase at any time or from time to time on or after the date hereof, as
provided in the Warrant Agreement (as hereinafter defined) up to 2,000,000 fully
paid and nonassessable Shares of the voting common stock (the "Common Stock"),
of Enlighten Software Solutions, Inc., a California corporation (the "Company"),
at the purchase price per Share equal to the Current Market Price as defined in
the Warrant Agreement (the "Exercise Price") upon presentation and surrender of
this Warrant Certificate with the Form of Election to Purchase attached hereto
duly executed. As provided in the Warrant Agreement, the number and kind of
Shares which may be purchased upon the exercise of the Warrant evidenced by this
Warrant Certificate, and the Exercise Price at which such shares are
purchasable, are, upon the happening of certain events, subject to modification
and adjustment.
This Warrant Certificate and the Warrant it represents are
subject to, and entitled to the benefits of, all of the terms, provisions and
conditions of a certain Warrant Agreement dated as of March 6, 2001 (the
"Warrant Agreement") between the Company and Xxxxx Tech Consulting, Inc., which
Warrant Agreement is hereby incorporated herein by reference and made a part
hereof and to which Warrant Agreement reference is hereby made for a full
description of the rights, limitation of rights, obligations, duties and
immunities hereunder of Company and the holder of this Warrant Certificate.
Copies of the Warrant Agreement are on file at the principal office of the
Company.
Subject to the terms of the Warrant Agreement, this Warrant
Certificate, upon surrender at the principal office of the Company, may be
exchanged for another Warrant Certificate or Warrant Certificates of like tenor
and date evidencing a Warrant or Warrants entitling the holder to purchase a
like aggregate number of Shares of Common Stock as the Warrant evidenced by the
Warrant Certificate surrendered entitled such holder to purchase.
No fractional Shares of Common Stock need be issued upon the
exercise of any Warrant evidenced hereby, but in lieu thereof a cash payment may
be made, as provided in the Warrant Agreement.
During the Exercise Period, the Company may not declare and pay
any cash dividends to holders of its Common Stock, unless the Company pays to
the holder of this Warrant Certificate a cash dividend in an amount equal to
that which such holder would have received had such holder's Warrants been
exercised immediately prior to the record date with respect to such dividend for
the number of Warrant Shares for which its Warrants would have been then
exercisable. No holder of this Warrant Certificate shall be entitled to vote or
receive
19
dividends (other than as described in the preceding sentence) or be deemed the
holder of Common Stock or any other securities of the Company which may at any
time be issuable on the exercise hereof for any purpose, nor shall anything
contained in the Warrant Agreement or herein be construed to confer upon the
holder hereof, as such, any of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, to give or withhold consent to any
corporate action (whether upon any recapitalization, issue of stock,
reclassification of stock, change of par value or change of stock to no par
value, consolidation, merger, conveyance or otherwise), to receive notice of
meetings (except as provided in the Warrant Agreement), or to receive dividends
or subscription rights or otherwise, until the Warrant evidenced by this Warrant
Certificate shall have been exercised and the Common Stock purchasable upon the
exercise thereof shall have become deliverable as provided in the Warrant
Agreement.
[Remainder of this page intentionally left blank.]
20
IN WITNESS WHEREOF, the Company has caused the signature (or
facsimile signature) of its President and Secretary to be printed herein and its
corporate seal (or facsimile) to be printed herein.
Attest: ENLIGHTEN SOFTWARE SOLUTIONS, INC.
By:
------------------------- ------------------------------------
Name: Name:
Title: Title:
21
FORM OF ELECTION TO PURCHASE
To be executed if the Holder desires to exercise the Warrant.
TO ENLIGHTEN SOFTWARE SOLUTIONS, INC.:
The undersigned hereby irrevocably elects to exercise the Warrant
evidenced by this Warrant Certificate to purchase _____________ Shares of Common
Stock issuable upon the exercise of such Warrant and requests that certificates
for such Shares be issued in the name of:
----------------------------
Name
----------------------------
Address
----------------------------
Tax Identification Number
If such number of Shares shall not be all the Shares with respect
to which this Warrant is exercisable, a new Warrant for the balance remaining of
such Shares will be registered in the name of and delivered to:
----------------------------
Name
----------------------------
Address
----------------------------
Tax Identification Number
Date:
------------------- ----------------------------
Signature (Signature must
conform in all respects to
name of holder as specified
on the face of this Warrant
Certificate)
22
ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate)
For value received, the undersigned hereby sells, assigns and
transfers unto the within Warrant Certificate, together with all right, title
and interest therein, and does hereby irrevocably constitute and appoint the
Secretary of the Company his agent to transfer said Warrant certificate on the
books of the within-named Company, with full power of substitution in the
premises.
Dated: _________________,_____
-----------------------------------
NOTE: The above signature should
correspond exactly with the name on
the face of this Warrant
Certificate.
---------------------------------
---------------------------------
(Insert Social Security or Other
Identifying Number of Holder)
