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EXHIBIT 4.5
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WARRANT TO PURCHASE COMMON STOCK
OF
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THIS WARRANT AND THE SHARES OF COMMON STOCK
ISSUABLE PURSUANT TO THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED UNLESS REGISTERED UNDER THE ACT OR
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE
FOR VALUE RECEIVED
_____________________________________, a _____________________ corporation (the
"Company"), grants the following rights to __________________________________,
having an address at ____________________________________ ("Holder").
ARTICLE 1. DEFINITIONS
As used herein, the following terms shall have the following meanings, unless
the context shall otherwise require:
(a) "Common Stock" shall mean the common stock, par value $______
per share, of the Company.
(b) "Corporate Office" shall mean the office of the Company (or its
successor) at which at any particular time its principal
business shall be administered, which office is located at the
date hereof at _________________________________
c) "Exercise Date" shall mean any date upon which the Holder shall
give the Company a Notice of Exercise, which shall be deemed the
date of the Notice of Exercise was first deposited in the US
Mails, if mailed, or the date received by the courier company if
delivered by recognized courier company, or the date received by
the Company if otherwise given or delivered.
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(d) "Exercise Price" shall mean the price to be paid to the Company
for each share of Common Stock to be purchased upon exercise of
this Warrant in accordance with the term hereof, which shall be
$_________ per share.
(e) "Expiration Date" shall mean 5:00 PM (Pacific Standard time) on
the second anniversary of the date hereof, if a business day, or
the next succeeding business day thereafter.
(f) "SEC" shall mean the United States Securities and Exchange
Commission.
ARTICLE 2. EXERCISE
2.1 EXERCISE OF WARRANT
This Warrant shall entitle Holder to purchase up to ______ shares of
Common Stock (the "Shares") at the Exercise Price. This Warrant shall be
exercisable at any time and from time to time prior to the Expiration
Date (the "Exercise Period"). This Warrant and the right to purchase
Shares hereunder shall expire and become void at the Expiration Date.
2.2 ACCELERATION OF EXERCISE PERIOD
The Company shall have the right, at any time after the Common Stock has
traded on a recognized public market for twenty-one consecutive days
with a daily closing bid price of $_____________ or more per share, to
accelerate the Exercise Period by sending to the Holder, at the Holder's
address written above, a Notice of Acceleration in substantially the
form attached as Appendix I hereto (the "Notice"). In the event the
Company does accelerate the Exercise Period, the Holder shall have ten
(10) days from the date the Holder receives the Notice within which to
exercise this Warrant in the manner provided for in Section 2.3, after
which time this Warrant and the right to purchase the Shares hereunder,
to the extent not previously exercised, shall expire and become void.
The Holder shall be deemed to have received the Notice five (5) days
after the date the Notice is deposited in the U.S. Mails.
2.3 MANNER OF EXERCISE
(a) Holder may exercise this Warrant at any time and from time to
time during the Exercise Period, in whole or in part (but not in
denominations of fewer than 5,000 Shares, except upon an
exercise of this Warrant with respect to the remaining balance
of Shares purchasable hereunder at the time of exercise), by
delivering to the Company at its Corporate Office (i) a duly
executed Notice of Exercise in substantially the form attached
as Appendix II hereto and (ii) a bank cashier's or certified
check for the aggregate Exercise Price of the Shares being
purchased.
(b) From time to time upon exercise of this Warrant, in whole or
part, in accordance with its terms, the Company will cause its
transfer agent to countersign and deliver stock certificates to
the Holder representing the number of Shares being purchased
pursuant to such exercise, subject to adjustment as described
herein.
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(c) Promptly following any exercise of this Warrant, if the Warrant
has not been fully exercised and has not expired, the Company
will deliver to the Holder a new Warrant for the balance of the
Shares covered hereby.
2.4 TERMINATION
All rights of the Holder in this Warrant, to the extent they have not
been exercised, shall terminate on the Expiration Date.
2.5 NO RIGHT PRIOR TO EXERCISE
Prior to its exercise pursuant to Section 2.3 above, this Warrant shall
not entitle the Holder to any voting or other rights as holder of
Shares.
2.6 ADJUSTMENTS
In case of any reclassification, capital reorganization, stock dividend,
or other change of outstanding shares of Common Stock, or in case of any
consolidation or merger of the Company with or into another corporation
(other than a consolidation or merger in which the Company is the
continuing corporation and which does not result in any
reclassification, capital reorganization, stock dividend, or other
change of outstanding shares of Common Stock), or in case of any sale or
conveyance to another corporation of the property of the Company as, or
substantially as, an entirety (other than a sale/leaseback, mortgage or
other financing transaction), the Company shall cause effective
provision to be made so that the Holder shall have the right thereafter,
by exercising this Warrant, to purchase the kind and number of shares of
stock or other securities or property (including cash) receivable upon
such reclassification, capital reorganization, stock dividend, or other
change, consolidation, merger, sale or conveyance as the Holder would
have been entitled to receive had the Holder exercised this Warrant in
full immediately before such reclassification, capital reorganization,
stock dividend, or other change, consolidation, merger, sale or
conveyance. Any such provision shall include provision for adjustments
that shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 2.6. The foregoing provisions
shall similarly apply to successive reclassifications, capital
reorganizations, stock dividends, and other changes of outstanding
shares of Common Stock and to successive consolidations, mergers, sales
or conveyances.
2.7 FRACTIONAL SHARES
No fractional Shares shall be issuable upon exercise or conversion of
this Warrant and the number of Shares to be issued shall be rounded down
to the nearest whole Share. If a fractional Share interest arises upon
any exercise or conversion of the Warrant, the Company shall eliminate
such fractional Share interest by paying Holder the amount computed by
multiplying the fractional interest by the closing bid price of a full
Share on the date of the Notice of Exercise.
ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY
3.1 REPRESENTATIONS AND WARRANTIES
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The Company hereby represents and warrants to the Holder as follows:
(a) All Shares which may be issued upon the exercise of the purchase
right represented by this Warrant shall, upon issuance, by duly
authorized, validly issued, fully-paid and nonassessable, and
free of any liens and encumbrances except for restrictions on
transfer provided for herein or under applicable federal and
state securities laws, and not subject to any pre-emptive
rights.
(b) The Company is a corporation duly organized and validly existing
under the laws of the State of ____________________, and has the
full power and authority to issue this Warrant and to comply
with the terms hereof. The execution, delivery and performance
by the Company of its obligations under this Warrant, including,
without limitation, the issuance of the Shares upon any exercise
of the Warrant, have been duly authorized by all necessary
corporate action. This Warrant has been duly executed and
delivered by the Company and is a valid and binding obligation
of the Company, enforceable in accordance with its terms, except
as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws affecting
enforceability of creditors' rights generally and except as the
availability of the remedy of specific enforcement, injunctive
relief or other equitable relief is subject to the discretion of
the court before which any proceeding therefor may be brought.
(c) The Company is not subject to or bound by any provision of any
certificate or articles of incorporation or by-laws, mortgage,
deed of trust, lease, note, bond, indenture, other instrument or
agreement, license, permit, trust, custodianship, other
restriction or any applicable provision of any law, statute, any
court, governmental body, administrative agency or arbitrator
which could prevent or be violated by or under which there would
be a default (or right of termination) as a result of the
execution, delivery and performance by the Company of this
Warrant.
ARTICLE 4. MISCELLANEOUS
4.1 TRANSFER
This Warrant may not be transferred or assigned, in whole or in
part, at any time, except in compliance with applicable federal
and state securities laws by the transferor and the transferee
(including, without limitation, the delivery of an investment
representation letter and a legal opinion reasonably
satisfactory to the Company), provided that this Warrant may not
be transferred or assigned such that either the Holder or any
transferee will, following such transfer or assignment, hold a
Warrant for the right to purchase fewer than 5,000 Shares.
4.2 TRANSFER PROCEDURE
Subject to the provisions of Section 4.1, Holder may transfer or
assign this Warrant by giving the Company notice setting forth
the name, address and taxpayer identification number of the
transferee or assignee, if applicable (the
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"transferee"), and surrendering this Warrant to the Company for
reissuance to the transferee (and the Holder, in the event of a
transfer or assignment of this Warrant in part). (Each of the
persons or entities in whose name any such new Warrant shall be
issued are herein referred to as a Holder)
4.3 LOSS, THEFT, DESTRUCTION OR MUTILATION
If this Warrant shall become mutilated or defaced or be
destroyed, lost or stolen, the Company shall execute and deliver
a new Warrant in exchange for and upon surrender and
cancellation of such mutilated or defaced Warrant or, in lieu of
and in substitution for such Warrants so destroyed, lost or
stolen, upon the Holder filing with the Company evidence
satisfactory to it that such Warrant has been so mutilated,
defaced, destroyed, lost or stolen. However, the Company shall
be entitled, as a condition to the execution and delivery of
such new Warrant, to demand indemnity satisfactory to it and
payment of the expenses and charges incurred in connection with
the delivery of such new Warrant. Any Warrant so surrendered to
the Company shall be canceled.
4.4 NOTICES
All notices and other communications from the Company to the
Holder or vice versa shall be deemed delivered and effective
when given personally, by facsimile transmission and confirmed
in writing, or mailed by first-class registered or certified
mail, postage prepaid, at such address and/or facsimile number
as may have been furnished to the Company or the Holder, as the
case may be, in writing by the Company or the Holder from time
to time; provided, however, that the Notice of Exercise may not
be delivered by facsimile transmission.
4.5 WAIVER
This Warrant and any term hereof may be changed, waived, or
terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or
termination is sought.
4.6 GOVERNING LAW
This Warrant shall be governed by and construed in accordance
with the laws of the State of Washington, without giving effect
to its principles regarding conflicts of law.
Dated: , 1998
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Attest: COMPANY NAME
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By:
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Name:
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Title:
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APPENDIX I
NOTICE OF ACCELERATION
Dated:
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__________________________________ (the "Company") does hereby notify you of its
election to exercise its right, pursuant to Section 2.2 of the Warrants issued
to you by the Company on _________________, 1998 (the "Warrant"), to accelerate
the exercise period of such Warrants. Please be advised that you have ten (10)
days from the date you receive this Notice of Acceleration (the "Ten-Day
Period") to exercise your Warrants in the manner provided for in the Warrants.
You will be deemed to have received this Notice of Acceleration five (5) days
after the date when this Notice of Acceleration was first deposited in the U.S.
Mails.
YOU WILL AUTOMATICALLY FORFEIT YOUR RIGHT TO PURCHASE THE SHARES OF COMMON STOCK
ISSUABLE UPON EXERCISE OF SUCH WARRANTS, TO THE EXTENT NOT PREVIOUSLY PURCHASED,
UNLESS THE WARRANTS ARE EXERCISED BEFORE THE END OF THE TEN-DAY PERIOD.
COMPANY NAME
By:
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Name:
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Title:
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APPENDIX II
NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase ________ shares of the Common
Stock of _____________________________ pursuant to the terms of the
attached Warrant, and tenders herewith payment of the purchase price of
such shares in full.
2. Please issue a certificate or certificates representing said shares in
the name of the undersigned or in such other name as specified below.
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(Name)
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(Address)
3. The undersigned represents it is acquiring the shares solely for its own
account and not as a nominee for any other party and not with a view
toward the resale or distribution thereof except in compliance with
applicable securities laws.
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(Signature) (Date)
