THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND NEITHER THE
SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION UNDER
SUCH ACT AND THE RULES AND REGULATIONS THEREUNDER. THE TRANSFER OF SUCH
SECURITIES IS SUBJECT TO THE RESTRICTIONS SET FORTH HEREIN AND SUCH SECURITIES
MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS
WARRANT.
Warrant No. PGOA 1 June 22, 1999
WARRANT
TO PURCHASE SHARES OF COMMON STOCK OF
AJAY SPORTS, INC.
Void after 5:00 p.m. (Central Time) June 22, 2001 50,000 Shares of Common Stock
THIS IS TO CERTIFY that for value received, XXXXXX XXXX, or his permitted
registered assigns, is entitled upon the due exercise hereof at any time during
the Exercise Period (as hereinafter defined) to purchase, in whole or in part,
from AJAY SPORTS, INC., a Delaware corporation, fifty thousand (50,000) (subject
to adjustment as provided herein) shares of common stock, par value $.01 per
share ("Common Shares"), at the exercise price of $2.00 per Common Share if this
Warrant is exercised on or before June 22, 2000, or $2.50 per Common Share if
this Warrant exercised after June 22, 2000 ("Exercise Price") (subject to
adjustment as provided herein) for each such Common Share so purchased and to
exercise the other rights, powers and privileges hereinafter provided, all on
the terms and conditions and pursuant to the provisions hereinafter set forth.
ARTICLE II
DEFINITIONS
The terms defined in this Article I, whenever used in this Warrant, shall
have the respective meanings hereinafter specified. Whenever used in this
Warrant, any noun or pronoun shall be deemed to include both the singular and
plural and to cover all genders.
THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND NEITHER THE
SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION UNDER
SUCH ACT AND THE RULES AND REGULATIONS THEREUNDER. THE TRANSFER OF SUCH
SECURITIES IS SUBJECT TO THE RESTRICTIONS SET FORTH HEREIN AND SUCH SECURITIES
MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS
WARRANT.
Warrant No. PGOA 2 June 22, 1999
WARRANT
TO PURCHASE SHARES OF COMMON STOCK OF
AJAY SPORTS, INC.
Void after 5:00 p.m. (Central Time) June 22, 2001 50,000 Shares of Common Stock
THIS IS TO CERTIFY that for value received, THE XXXX XXXXXX REVOCABLE
LIVING TRUST or its permitted registered assigns, is entitled upon the due
exercise hereof at any time during the Exercise Period (as hereinafter defined)
to purchase, in whole or in part, from AJAY SPORTS, INC., a Delaware
corporation, fifty thousand (50,000) (subject to adjustment as provided herein)
shares of common stock, par value $.01 per share ("Common Shares"), at the
exercise price of $2.00 per Common Share if this Warrant is exercised on or
before June 22, 2000, or $2.50 per Common Share if this Warrant exercised after
June 22, 2000 ("Exercise Price") (subject to adjustment as provided herein) for
each such Common Share so purchased and to exercise the other rights, powers and
privileges hereinafter provided, all on the terms and conditions and pursuant to
the provisions hereinafter set forth.
ARTICLE II
DEFINITIONS
The terms defined in this Article I, whenever used in this Warrant, shall
have the respective meanings hereinafter specified. Whenever used in this
Warrant, any noun or pronoun shall be deemed to include both the singular and
plural and to cover all genders.
"Assignment" means the form of Assignment appearing at the end of this
Warrant.
"Closing Date" means June 22, 1999.
"Commission" means the Securities and Exchange Commission, or any other
federal agency then administering the Securities Act.
"Common Shares" means the Company's authorized shares of common stock, par
value $.01 per share.
"Company" means Ajay Sports, Inc., a Delaware corporation, and any
successor entity.
"Current Market Price" per Common Share on any date herein specified means
the average of the daily market prices (determined as set forth in the next
sentence), if any, for five (5) consecutive business days immediately preceding
such date. The market price for each such business day shall be the average of
the last sale prices on such day on all domestic stock exchanges on which the
Common Shares may then be listed, or, if no sale takes place on such day on any
such exchange, the average of the closing bid and asked prices on such day as
officially quoted on such exchanges, or, if Common Shares are not then listed or
admitted to trading on any domestic stock exchange, the market price for each
business day shall be the last sale price on such day on the Nasdaq National
Market, or, if no sale takes place on such day on the Nasdaq National Market,
the average of the closing bid and asked prices on such day as reported by the
National Association of Securities Dealers, Inc., or if Common Shares are not
then listed or admitted for trading on the Nasdaq National Market, the market
price for each business day shall be the average of the reported bid and asked
prices on such day in the over-the-counter market, as furnished by the National
Quotation Bureau, Inc., or, if such firm at the time is not engaged in the
business of reporting such prices, as furnished by any similar firm then engaged
in such business and selected by the Company or, if there is no such firm or the
Common Shares are not then traded in the over-the-counter market, the market
price shall be such value as is reasonably determined by the Board of Directors
of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
any similar or successor federal statute, and the rules and regulations of the
Commission (or its successor) thereunder, all as the same shall be in effect
from time to time.
"Exercise Period" means the period commencing on the Closing Date, and
terminating at 5:00 p.m., Central time, on June 22, 2001.
"Exercise Price" means the price per Common Share set forth in the first
paragraph of the first page of this Warrant, as such price may be adjusted from
time to time pursuant to Article IV.
"Holder" means the person in whose name this Warrant is registered on the
books of the Company maintained for such purpose.
"Investor Representation Certificate" means a certificate as to the
accuracy, at and as of the time of exercise of this Warrant, of certain
representations and warranties of the Holder set forth in form appearing at the
end of this Warrant.
"Nasdaq" means The National Association of Securities Dealers, Inc.
Automated Quotation System.
"Notice of Exercise" means the form of Notice of Exercise appearing at
the end of this Warrant.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"Transfer" means any offer, sale, gift, disposition, attempted
disposition, liquidating distribution, dividend or distribution in kind,
transfer, assignment, delivery, pledge, hypothecation, of any present or future
interest, right, claim or privilege in or to this Warrant or the Common Shares
issuable upon exercise of this Warrant, as the case may be.
"Warrant" means (a) this warrant dated as of the Closing Date issued to
the person or legal entity named on the first page of this Warrant; and (b) all
warrants issued upon the partial exercise, transfer or division of or in
substitution for such warrant.
ARTICLE III
EXERCISE OF WARRANT
III.1 Right to Exercise. Subject to and upon compliance with the
conditions of this Article II, the Holder shall have the right, at its option,
at any time and from time to time during the Exercise Period, to exercise this
Warrant in whole or in part.
Notice of Exercise; Issuance of Common Shares. To exercise this Warrant,
the Holder shall deliver to the Company at its administrative office at 0000
Xxxxxxx Xxxx Xxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxxx 00000 (a) a Notice of
Exercise duly executed by the Holder and specifying the number of Common Shares
to be purchased, (b) a completed and signed Investor Representation Certificate,
(c) an amount equal to the aggregate Exercise Price for all Common Shares as to
which this Warrant is then being exercised and (d) this Warrant.
Payment of the Exercise Price shall be made, at the option of the Holder,
(i) by wire transfer to an account in a bank located in the United States
designated for such purpose by the Company or (ii) by certified or official bank
check payable to the order of the Company and drawn on a member of the Chicago
or New York Clearing House. Upon receipt thereof, the Company shall, as promptly
as practicable, and in any event within five business days thereafter, provide a
letter of instructions to the Company's transfer agent authorizing and
instructing the transfer agent to cause to be issued and delivered to the Holder
a certificate or certificates representing the aggregate number of full Common
Shares issuable upon such exercise registered in the name of the Holder.
Unless otherwise requested by the Holder, this Warrant shall be deemed to
have been exercised and such certificate or certificates shall be deemed to have
been issued, and the Holder shall be deemed to have become the holder of record
of such shares for all purposes as of the close of business on the date the
Notice of Exercise, together with the Investor Representation Certificate,
payment as herein provided and this Warrant, are received by the Company.
If this Warrant is exercised in part, the Company shall, at the time of
delivery of the instruction letter to the Company's transfer agent authorizing
the issuance of the certificate or certificates for Common Shares, unless this
Warrant has then expired, issue and deliver to the Holder a new Warrant
evidencing the rights of the Holder to purchase the aggregate number of Common
Shares for which this Warrant shall not have been exercised, and this Warrant
shall be cancelled.
Fractional Shares. The Company shall not issue fractional Common Shares or
scrip representing fractional Common Shares upon any exercise of this Warrant.
As to any fractional Common Shares which the Holder would otherwise be entitled
to purchase from the Company upon such exercise, the Company shall purchase from
the Holder such fractional share at a price equal to an amount calculated by
multiplying such fractional share (calculated to the nearest 1/100th of a share)
by its Current Market Price on the date the Notice of Exercise is received by
the Company. Payment of such amount shall be made in cash or by check payable to
the order of the Holder at the time of delivery of any certificate or
certificates arising upon such exercise.
ARTICLE IV
REGISTRATION, TRANSFER AND EXCHANGE
The Company shall keep at its principal office referred to in Section 2.2
a register in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration, Transfer and exchange of this
Warrant. The Company will not at any time, except upon the dissolution,
liquidation or winding up of the Company, close such register so as to result in
preventing or delaying the exercise or permitted Transfer of this Warrant.
Every Warrant presented or surrendered for registration of a permitted
Transfer or exchange shall be accompanied by an Assignment duly executed by the
holder thereof or its attorney duly authorized in writing.
All Warrants issued upon any registration of any permitted Transfer or
exchange of Warrants shall be the valid obligations of the Company, evidencing
the same rights, and entitled to the same benefits as the Warrants surrendered
upon such registration of permitted Transfer or exchange.
Upon receipt by the Company of evidence satisfactory to it (in the
exercise of reasonable discretion) of the ownership of and the loss, theft,
destruction or mutilation of this Warrant and (in case of loss, theft or
destruction) the written agreement of the Holder to indemnify the Company
against any resulting loss or expense, or (in case of mutilation) upon surrender
and cancellation hereof, the Company will execute and deliver in lieu hereof a
replacement Warrant.
No service charge shall be made for any registration of any permitted
Transfer or exchange of Warrants.
The Company and any agent of the Company may treat the person in whose
name this Warrant is registered as the owner of this Warrant for all purposes
whatsoever, and neither the Company nor any agent of the Company shall be
affected by notice to the contrary.
ARTICLE V
ADJUSTMENT PROVISIONS
Splits and Combinations. In case the Company shall at any time subdivide
its outstanding Common Shares into a greater number of shares, the Exercise
Price in effect immediately prior to such subdivision shall be proportionately
reduced, and, conversely, in case the outstanding Common Shares of the Company
shall be combined into a smaller number of shares, the Exercise Price in effect
immediately prior to such combination shall be proportionately increased.
Reorganization, Reclassification or Recapitalization of Company. In case
of any capital reorganization or reclassification or recapitalization of the
capital stock of the Company (other than a change in par value, or from par
value to no par value or from no par value to par value) or in case of the
consolidation or merger of the Company with or into another corporation or in
case of the sale or transfer of the property of the Company as an entirety or
substantially as an entirety, there shall thereafter be deliverable upon the
exercise of this Warrant or any portion thereof (in lieu of the number of Common
Shares theretofore deliverable) the number of shares of capital stock,
beneficial interest or other securities or property to which the Holder would
have been entitled upon such capital reorganization or reclassification of
capital stock, consolidation, merger or sale had it fully exercised this Warrant
immediately prior thereto, and at the same aggregate Exercise Price.
Adjustment of Number of Shares Purchasable. Upon any adjustment of the
Exercise Price as provided in this Article, the Holder shall thereafter be
entitled to purchase, at the Exercise Price resulting from such adjustment, the
number of Common Shares (calculated to the nearest 1/l00th of a share) obtained
by multiplying the Exercise Price in effect immediately prior to such adjustment
by the number of Common Shares purchasable hereunder immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting from
such adjustment.
ARTICLE VI
RESERVATION OF SHARES ISSUABLE ON
EXERCISE OF WARRANT; PREEMPTIVE RIGHTS
The Company will at all times reserve and keep available, solely for
issuance, sale and delivery upon the exercise of this Warrant, a number of
Common Shares equal to the number of full Common Shares issuable upon the
exercise of this Warrant. All Common Shares issuable upon the exercise of this
Warrant shall, when issued, (a) be duly and validly issued, fully paid and
nonassessable, and (b) be free from all taxes, liens and charges with respect to
the issue thereof other than any stock transfer taxes in respect of any transfer
occurring contemporaneously with such issue. No stockholder of the Company has
or shall have any preemptive rights to subscribe for such Common Shares.
ARTICLE VII
RESTRICTIONS ON TRANSFER
Reference in this Article VI to Common Shares issuable upon the exercise
of the Warrants shall include Common Shares theretofore issued upon the exercise
of any Warrants that are then evidenced by certificates required to bear the
legend set forth in Section 6.2.
VII.1 Notice of Proposed Transfer; Registration Not Required. This Warrant
may be Transferred by the Holder only (a) with the express prior written consent
of the Company, which consent may be withheld in the sole discretion of the
Company for any reason; and (b) in compliance with this Article VI in whole (as
to all Common Shares purchasable hereunder) but not in part.
The Holder or the holder of any Common Shares issuable upon the exercise
hereof, by acceptance hereof or thereof, agrees to give written notice to the
Company, prior to any Transfer of this Warrant, such Common Shares or any
portion hereof or thereof, of its intention to make such transfer which notice
shall include a brief description of such proposed Transfer. If the Company
consents to the transfer and if, in the opinion of counsel to the Company, the
proposed Transfer may be effected without registration or qualification under
any federal or state law, such counsel shall, as promptly as practicable, notify
the Company and the Holder in writing of such consent and opinion and of the
terms and conditions, if any, to be observed in such Transfer, whereupon the
Holder shall be entitled to Transfer this Warrant or such Common Shares in
accordance with the terms of the notice delivered to the Company, the Company's
written consent to the Transfer and the opinion of such counsel, subject to the
restrictions on Transfer set forth in this Article VI. Any Transfer or purported
Transfer not in compliance with this Section 6.1 shall be null and void and of
no effect.
Legend on Certificates. In case any Common Shares are issued upon the
exercise in whole or in part of this Warrant or are thereafter Transferred, in
either case under such circumstances that no registration under the Securities
Act is required, each certificate representing such shares shall bear on the
face thereof the following legend:
The shares represented by this certificate have not been registered under
the Securities Act of 1933, as amended, or the securities or blue sky laws
of any state, and any transfer thereof is subject to the conditions
specified in the Warrant dated as June 22, 1999 originally issued by Ajay
Sports, Inc. (the "Company") to Xxxxxx X. Xxxx to purchase Common Shares
of the Company. A copy of the form of such Warrant is on file with the
Secretary of the Company and will be furnished without charge by the
Company to the holder of this certificate upon written request to the
Secretary of the Company at such address.
In the event that (a) a registration statement covering Common Shares
represented by a certificate bearing the legend specified above becomes
effective under the Securities Act or (b) the Company receives an opinion of its
counsel that such legend is no longer necessary on such certificate to protect
the Company from a violation of the Securities Act, the Company shall, or shall
instruct its transfer agent and registrar to, issue in lieu thereof a new
certificate or certificates for such shares in the name of the holder of such
shares without such legend on the face thereof.
Supplying Information. The Company, the Holder and each holder of Common
Shares issuable upon the exercise hereof shall cooperate with each other in
supplying such information as may be necessary for any of such parties to
complete and file any information reporting forms presently or hereafter
required by the Commission or any commissioner or other authority administering
the blue sky or securities laws of any U.S. jurisdiction where Common Shares are
proposed to be sold pursuant to Article VI.
Compliance With Rule 144. For as long as the Company's Common Shares are
registered under Section 12 of the Exchange Act, at the request of Holder if
Holder proposes to sell any of the Common Shares issuable upon the exercise of
this Warrant in compliance with Rule 144 of the Commission, or any similar Rule,
assuming that at such time the provisions of such Rule are applicable to such
Holder and, in the event the Holder is or could be deemed an "affiliate" of the
Company, and the Company is then required to file reports under Section 13 or
15(d) of the Exchange Act, the Company shall make such filings of reports with
the Commission as will enable the Holder to make sales of Common Shares issued
upon exercise hereof pursuant to such Rule.
ARTICLE VIII
MISCELLANEOUS
Holder Not A Stockholder. Prior to the exercise of this Warrant as
hereinbefore provided, the Holder shall not be entitled to any of the rights of
a stockholder of the Company including, without limitation, the right as a
stockholder to (a) vote or consent, or (b) receive (i) dividends or any other
distributions made to stockholders, (ii) notice of, or attend, any meetings of
stockholders of the Company or (iii) notice of any other proceedings of the
Company (except as provided in Articles IV and VI).
Notice Generally. Any notice, demand or delivery to be made pursuant to
the provisions of this Warrant shall be sufficiently given or made if sent by
telecopy or by registered or certified mail (return receipt requested), postage
prepaid, addressed to (a) the Holder at its last known address and telecopy
number appearing on the books of the Company maintained for such purpose or (b)
the Company at its principal office referred to in Section 2.2 (facsimile number
248-851-9080). The Holder and the Company may each designate a different address
by notice to the other pursuant to this Section 7.2
Successors and Assigns. This Warrant and the rights evidenced hereby shall
inure to the benefit of and be binding upon the successors of the Company and,
subject to Article VI, the Holder and the Holder's permitted assigns.
Amendment. This Warrant may not be modified or amended except by
written agreement of the parties.
Headings. The headings of the Articles and Sections of this Warrant
are for the convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
Governing Law. This Warrant shall be governed by the laws of the State
of Delaware.
Dated as of June 22, 1999
ATTEST: AJAY SPORTS, INC.
a Delaware corporation
By/s/ Xxxxxx X. Xxxxxx By/s/ Xxxxxx X. Xxxx
------------------------------ ----------------------------
Xxxxxx X. Xxxxxx, Secretary Xxxxxx X. Xxxx, President
NOTICE OF EXERCISE FORM
(To be executed upon partial
or full exercise of the within Warrant)
The undersigned registered Holder of the within Warrant irrevocably
exercises the within Warrant for and purchases Common Shares of Ajay Sports,
Inc. and herewith tenders payment therefor in the amount of $ , all at the price
and on the terms and conditions specified in the within Warrant and requests
that a certificate (or certificates in denominations of shares) for the Common
Shares of Ajay Sports, Inc. hereby purchased be issued in the name of and
delivered to the undersigned, and if such Common Shares shall not include all
the Common Shares issuable as provided in the within Warrant, that a new Warrant
of like tenor for the number of Common Shares of Ajay Sports, Inc. not being
purchased hereunder be issued in the name of and delivered to the undersigned.
Dated: _____________________
Signature Guaranteed: By:
(Signature of Registered Holder)
Address:
By:
Title:
NOTICE: The signature to this Notice of Exercise must correspond with the
name as written upon the face of the within Warrant in every
particular, without alteration or enlargement or any change
whatever.
The signature to this Notice of Exercise must be medallion
guaranteed by a commercial bank or trust company in the United
States or a member firm of the New York Stock Exchange.
ASSIGNMENT FORM
(To be executed upon a Permitted Transfer
of the within Warrant)
FOR VALUE RECEIVED the undersigned registered Holder of the within Warrant
hereby sells, assigns and transfers unto , whose address is all of the rights of
the undersigned under the within Warrant, with respect to all the Common Shares
issuable as provided in the Warrant, and does hereby irrevocably constitute and
appoint Attorney to register such transfer on the books of Ajay Sports, Inc.
maintained for the purpose, with full power of substitution in the premises.
Dated ______________________
Signature Guaranteed: By:
(Signature of Registered Holder)
By:
Title:
NOTICE: The signature to this Assignment must correspond with the name as
written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatever.
The signature to this Assignment must be medallion guaranteed by a
commercial bank or trust company in the United States or a member
firm of the New York Stock Exchange.
INVESTOR REPRESENTATION CERTIFICATE
In connection with the undersigned investor's exercise of that certain
Warrant to Purchase Shares of Common Stock of Ajay Sports, Inc. (the "Company"),
the undersigned investor hereby makes the following acknowledgments,
representations and warranties to the Company:
1. He understands and acknowledges that none of the shares of common stock
of the Company issuable upon exercise of the Warrant (the "Warrant Shares") have
been registered under the Securities Act of 1933 (the "Securities Act") or
registered or qualified under the securities laws of any state and none may be
offered, sold, contracted for sale, transferred, or otherwise disposed of absent
an effective registration thereof under such Securities Act or an opinion of
counsel, which opinion is reasonably satisfactory in form and substance to the
Company and its counsel, to the effect that such registration is not required
under the Securities Act or applicable state securities laws or that such
transaction complies with the rules promulgated by the Securities and Exchange
Commission (the "Commission") under the Securities Act or applicable state
securities laws. Investor understands that the Company has no obligation, and
does not intend to register the Conversion Shares under applicable federal or
state securities laws and that he must bear the economic risks of this
investment resulting from such limitations.
2. Investor is an "accredited investor" within the meaning of the
Securities Act based upon the following (check all that apply):
(a)___ he is a natural person whose individual net worth, or joint net
worth with his spouse, at the time of purchase exceeds $1,000,000, at the time
of exercise; or
(b) he is a natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and reasonably expects to
reach the same income level in the current year; or
(c) it is a private business development company as defined in
section 202(a)(22) of the Investment Advisors Act of 1940; or
(d) it is either (i) a bank as defined in section 3(a)(2) of the
Securities Act of 1933 (the "Act"), or a savings and loan association or other
institution as defined in section 3(a)(5)(A) of the Act whether acting in its
individual or fiduciary capacity; (ii) a broker or dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934; (iii) an insurance company as
defined in Section 2(13) of the Act; (iv) an investment company registered under
the Investment Company Act of 1940 or a business development company as defined
in section 2(a)(48) of that Act; (v) a Small Business Investment Company
licensed by the U.S. Small Business Administration under Section 301(c) or (d)
of the Small Business Investment Act of 1958; or (vi) an employee benefit plan
within the meaning of Title I of the Employee Retirement Income Security Act of
1974, if the investment decision is made by a plan fiduciary, as defined in
section 3(21) of such Act, which is either a bank, savings and loan association,
insurance company, or registered investment adviser, or if the employee benefit
plan has total assets in excess of $5,000,000 or, if a self-directed plan, with
investment decisions made solely by persons that are Accredited Investors; or
(5) it is any corporation, Massachusetts or similar business trust, partnership,
or organization described in section 501(c)(3) of the Internal Revenue Code, not
formed for the specific purpose of acquiring the securities offered, with total
assets in excess of $5,000,000; or
(6) ___ it is any trust, with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the securities offered, whose purchase is
directed by a sophisticated person as described in Regulation 230.506(b)(2)(ii)
promulgated under the Act;
(7) it is a trust with respect to which the grantor(s) has retained absolute
power in his or her sole discretion to amend or revoke the trust at any time and
such grantor(s) is an accredited investor as indicated in items 2(a) or 2(b)
above; or
(8) it is an entity in which all of its equity owners meet one or more of the
standards set forth in the preceding paragraphs number 2(c) through 2(f), based
upon the questionnaires delivered by such equity owners.
3. Investor has had access to all periodic reports and other documents filed
with the Securities and Exchange Commission by the Company pursuant to the
Company's obligation to file such reports imposed under Section 15 of the
Securities Exchange Act of 1934. Investor has undertaken such review of the
Company and its business and financial position as Investor deemed necessary in
order to make a decision to exercise his Warrant. Investor understands the
various risks of an investment in the Warrant Shares and he can afford to bear
the risks of an investment in the Warrant Shares, including the risk of losing
all or substantially all of the exercise price therefor.
4. Investor is acquiring its Warrant Shares for his own account, as principal,
and not with a view to the resale or distribution of all or any portion of the
Warrant Shares.
5. Investor has not relied upon the Company or any of its directors or officers
for tax, legal or investment or financial advice, but rather has relied only on
his own advisers with respect to evaluating the risks and merits of exercising
the Warrant to purchase the Warrant Shares.
6. Investor hereby agrees to indemnify, defend and hold the Company harmless
from and against any and all loss, cost, damage, liability or expense
(including, without limitation, reasonable attorneys fees, court costs and
reasonable litigation expenses) which the Company may suffer, sustain or incur
as a result from, arising under or in connection with any inaccuracy of any
representation or acknowledgment or failure of performance of any warranty by
Investor hereunder.
INVESTOR
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