Contract
Exhibit 10.19
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON ANY EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE
STATE SECURITIES LAWS AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON, INCLUDING A
PLEDGEE, UNLESS (i) EITHER (A) A REGISTRATION STATEMENT WITH RESPECT THERETO SHALL BE EFFECTIVE
UNDER THE SECURITIES ACT, OR (B) THE COMPANY SHALL HAVE RECEIVED AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT IS AVAILABLE, AND (ii)
THERE SHALL HAVE BEEN COMPLIANCE WITH ALL APPLICABLE STATE SECURITIES OR “BLUE-SKY” LAWS.
| No. | For the Purchase of up to 2,500,000 shares of Common Stock |
WARRANT TO PURCHASE
COMMON STOCK
OF
STARVOX COMMUNICATIONS, INC.
(A CALIFORNIA CORPORATION)
StarVox Communications, Inc., a California corporation (the “Company”), for value received,
the sufficiency of which is hereby acknowledged, certifies that Xxxxxx Capital L.P., or its
permitted assigns (the “Holder”), is entitled, subject to the terms set forth below, to purchase
from the Company, at any time or from time to time at or before 5:00 p.m. New York City local time
on January 22, 2010 (the “Expiration Date”), up to 2,500,000 shares of common stock, par value
$0.001 per share, of the Company (“Common Stock”), at a purchase price per share equal to $0.525
per share (the “Base Price”), as adjusted upon the occurrence of certain events as set forth in
Section 2 of this Warrant. The shares of Common Stock issuable upon exercise of this Warrant, and
the purchase price per share, are hereinafter referred to as “Warrant Stock” and the “Purchase
Price,” respectively.
1. Exercise.
1.1 Manner of Exercise; Payment in Cash. This Warrant may be exercised by the
Holder, in whole or in part, by surrendering this Warrant, with the purchase form appended
hereto as Exhibit A duly executed by the Holder, at the principal office of the
Company, or at such other place as the Company may designate, accompanied by payment in full
of the Purchase Price payable in respect of the number of shares of Warrant Stock
purchased upon such exercise. Payment of the Purchase Price shall be in cash or by
certified or official bank check payable to the order of the Company.
1.2 Effectiveness. Each exercise of this Warrant shall be deemed to have been
effected immediately prior to the close of business on the day on which this Warrant shall
have been surrendered to the Company as provided in Section 1.1 above. At such time, the
person or persons in whose name or names any certificates for Warrant Stock shall be
issuable upon such exercise as provided in Section 1.3 below shall be deemed to have become
the holder or holders of record of the Warrant Stock represented by such certificates.
1.3. Delivery of Certificate(s). As soon as practicable after the exercise of
this Warrant in full or in part, and in any event within three (3) business days thereafter,
the Company, at its sole expense, will cause to be issued in the name of, and delivered to,
the Holder, or, subject to the terms and conditions hereof, as such Holder (upon payment by
such Holder of any applicable transfer taxes) may direct:
(a) A certificate or certificates for the number of full shares of Warrant
Stock to which such Holder shall be entitled upon such exercise, plus, in lieu of
any fractional share to which such Holder would otherwise be entitled, cash in an
amount determined pursuant to Section 1.4 hereof, and
(b) In case such exercise is in part only, a new warrant or warrants (dated the
date hereof) of like tenor, calling in the aggregate on the face or faces thereof
for the number of shares of Warrant Stock (without giving effect to any adjustment
therein) equal to the number of such shares called for on the face of this Warrant
minus the number of such shares purchased by the Holder upon such exercise as
provided in Section 1.1 above.
1.4. Fractional Shares. The Company shall not be required upon the exercise of
this Warrant to issue any fractional shares, but shall make an adjustment therefor in cash
on the basis of the fair market value of the Warrant Stock reasonably determined by the
Board of Directors of the Company (and, in the case of a conversion of this Warrant, in
accordance with Section 1.5(c)).
1.5 Right to Convert Warrant into Stock; Net Issuance.
(a) Right to Convert. In addition to and without limiting the rights of the
Holder under the terms of this Warrant, the Holder shall have the right to convert this
Warrant or any portion thereof (the “Conversion Right”) into shares of Warrant Stock as
provided in this Section 1.5 at any time or from time to time during the term of this
Warrant. Upon exercise of the Conversion Right with respect to a particular number of
shares subject to this Warrant (the “Converted Warrant Shares”), the Company shall deliver
to the Holder (without payment by the Holder of any Purchase Price or any cash or other
consideration) that number of shares of fully paid and nonassessable Warrant Stock equal to
the quotient obtained by dividing (X) the value of this Warrant (or the specified portion
hereof) on the Conversion Date (as defined in subsection (b) hereof), which value shall be
determined by subtracting (A) the aggregate Purchase Price of the
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Converted Warrant Shares immediately prior to the exercise of the Conversion Right from
(B) the aggregate fair market value of the Converted Warrant Shares issuable upon exercise
of this Warrant (or the specified portion hereof) on the Conversion Date (as herein defined)
by (Y) the fair market value of one share of Warrant Stock on the Conversion Date (as herein
defined).
Expressed as a formula, such conversion shall be computed as follows:
| N = | B-A Y |
| where: | N = | the number of shares of Warrant Stock that may be issued to Holder | ||||
| Y = | the fair market value (FMV) of one share of Warrant Stock | |||||
| A = | the aggregate Warrant Price (Converted Warrant Shares x Purchase Price) | |||||
| B = | the aggregate FMV (i.e., FMV x Converted Warrant Shares) |
No fractional shares shall be issuable upon exercise of the Conversion Right, and, if the
number of shares to be issued determined in accordance with the foregoing formula is other
than a whole number, the Company shall pay to the Holder an amount in cash equal to the fair
market value of the resulting fractional share of the Conversation Date (as herein defined).
(b) Method of Exercise. The Conversion Right may be exercised by the Holder by
the surrender of this Warrant at the principal office of the Company together with the
Subscription Form in the form attached hereto, duly completed and executed and indicating
the number of shares subject to this Warrant which are being surrendered (referred to in
Section 1.5(a) hereof as the Converted Warrant Shares) in exercise of the Conversion Right.
Such conversion shall be effective upon receipt by the Company of this Warrant, together
with the aforesaid written statement, or on such later date as is specified therein (the
“Conversion Date”), and, at the election of the Holder hereof, may be made contingent upon
the occurrence of any of the events specified in Section 2.4. Certificates for the shares
issuable upon exercise of the Conversion Right and, if applicable, a new warrant (dated the
date hereof) evidencing the balance of the shares remaining subject to this Warrant, shall
be issued as of the Conversion Date and shall be delivered to the Holder within thirty (30)
days following the Conversion Date.
(c) Determination of Fair Market Value. For purposes of this Section 1.5,
“fair market value” of a share of Warrant Stock as of a particular date (the “Determination
Date”) shall mean:
(1) If the Company’s Common Stock is traded on an exchange or is quoted
on the Nasdaq National or Small Cap Market, then the
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average closing prices over the three-day period ending on the day
prior to the Determination Date;
(2) If the Company’s Common Stock is not traded on an exchange or on
the Nasdaq National or Small Cap Market but is traded in the
over-the-counter market, then the average closing prices over the three-day
period ending on the day prior to the Determination Date;
(3) In the event that the Determination Date is the date of a
liquidation, dissolution or winding up, or any event deemed to be a
liquidation, dissolution or winding up with respect to the Warrant Stock
under the Company’s Articles of Incorporation, then the fair market value
per share of the Warrant Stock shall be determined by aggregating all
amounts to be payable per share to holders of the Warrant Stock in the event
of such liquidation, dissolution or winding up; or
(4) In all other cases, the fair market value per share of the Warrant
Stock shall be determined in good faith by the Company’s Board of Directors
upon review of relevant factors.
2. Certain Adjustments. The Purchase Price and the number of shares of Warrant Stock
deliverable upon exercise of the Warrant shall be subject to adjustment from time to time as
follows:
2.1 Subdivision, Reclassification or Change in Common Stock. In the event of
any subdivision, reclassification or change of the Common Stock into a greater number or
different class or classes of stock, the number of shares of Warrant Stock deliverable upon
exercise of this Warrant shall be determined in accordance with the terms of the Articles of
Incorporation, and the Purchase Price for such Warrant Stock shall be proportionately
reduced.
2.2 Consolidation, Reclassification or Change in Common Stock. In the event of
any consolidation, reclassification or change of the Common Stock into a lesser number or
different class or classes of stock, the number of shares of Warrant Stock deliverable upon
exercise of this Warrant shall be determined in accordance with the terms of the Articles of
Incorporation, and the Purchase Price for such Warrant Stock shall be proportionately
increased.
2.3 Reorganizations. If there shall occur any capital reorganization of the
Common Stock (other than a subdivision, combination, reclassification or change in par
value), then, as part of any such reorganization, lawful provision shall be made so that the
Holder shall have the right thereafter to receive upon the exercise of this Warrant the kind
and amount of shares of stock or other securities or property which such Holder would have
been entitled to receive if, immediately prior to any such reorganization, such Holder had
held the number of shares of Common Stock which were then purchasable upon the exercise of
this Warrant. In any such case, appropriate adjustment (as reasonably determined by the
Board of Directors of the Company) shall be made in the application of the provisions set
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forth herein with respect to the rights and interests thereafter of the Holder such that the
provisions set forth in this Section 2 (including provisions with respect to adjustment of
the Purchase Price) shall thereafter be applicable, as nearly as is reasonably practicable,
in relation to any shares of stock or other securities or property thereafter deliverable
upon the exercise of this Warrant.
2.4 Merger, Consolidation or Sale of Assets. If there shall be a merger or
consolidation of the Company with or into another corporation (other than a merger or
reorganization involving only a change in the state of incorporation of the Company or the
acquisition by the Company of other businesses where the Company survives as a going
concern), or the sale of all or substantially all of the Company’s capital stock or assets
to any other person, then as a part of such transaction, provision shall be made so that the
Holder shall thereafter be entitled to receive the number of shares of stock or other
securities or property of the Company, or of the successor corporation resulting from the
merger, consolidation or sale, to which the Holder would have been entitled if the Holder
had exercised its rights pursuant to this Warrant immediately prior thereto.
Notwithstanding anything to the contrary set forth in this Warrant, in the event that the
Company completes a transaction described in this Section 2.4 with U.S. Wireless Data, Inc.,
then the terms of such transaction shall provide that this Warrant be assumed by the parent
corporation surviving such transaction so that the Holder shall thereafter be entitled to
receive the number of shares of stock or other securities or property of such corporation to
which the Holder would have been entitled if the Holder had exercised its rights pursuant to
this Warrant immediately prior thereto. In any such case, appropriate adjustment shall be
made in the application of the provisions of this Section 2 to the end that the provisions
of this Section 2 shall be applicable after that event in as nearly equivalent a manner as
may be practicable.
2.5 Certificate of Adjustment. When any adjustment is required to be made in
the Purchase Price, the Company shall promptly mail to the Holder a certificate setting
forth the Purchase Price after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. Such certificate shall also set forth the kind and amount
of stock or other securities or property into which this Warrant shall be exercisable
following the occurrence of any of the events specified in this Section 2.
3. Compliance with Securities Act.
3.1 Unregistered Securities. The Holder acknowledges that this Warrant and the
Warrant Stock have not been registered under the Securities Act, and agrees not to sell,
pledge, distribute, offer for sale, transfer or otherwise dispose of this Warrant or any
Warrant Stock in the absence of (i) an effective registration statement under the Securities
Act covering this Warrant or such Warrant Stock and registration or qualification of this
Warrant or such Warrant Stock under any applicable “blue-sky” or state securities law then
in effect, or (ii) an opinion of counsel, satisfactory to the Company, that such
registration and qualification are not required. The Company may delay issuance of the
Warrant Stock until completion of any action or obtaining of any consent, which the Company
deems necessary under any applicable law (including without limitation state securities or
“blue-sky” laws).
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3.2 Legend. Certificates delivered to the Holder pursuant to Section 1.3 shall
bear the following legend or a legend in substantially similar form:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, OR (B) AN OPINION OF COUNSEL, IN A REASONABLY ACCEPTABLE FORM,
THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE
SECURITIES LAWS, OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID
ACT.”
4. Reservation of Stock. The Company agrees that, prior to the expiration of this
Warrant, the Company will at all times have authorized and in reserve, and will keep available,
solely for issuance or delivery upon the exercise of this Warrant, the shares of Common Stock and
other securities and properties as from time to time shall be receivable upon the exercise of this
Warrant, free and clear of all restrictions on sale or transfer and free and clear of all
preemptive rights and rights of first refusal.
5. Replacement of Warrants. Upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and (in the case of loss,
theft or destruction) upon delivery of an indemnity agreement (with surety if reasonably required)
in an amount reasonably satisfactory to the Company, or (in the case of mutilation) upon surrender
and cancellation of this Warrant, the Company will issue, in lieu thereof, a new Warrant of like
tenor.
6. Registration Rights.
6.1. “Piggy Back” Registration. If at any time the Company shall determine to
register under the Securities Act, any of its Common Stock, other than on Form S-8 or its
then equivalent, it shall send to the Holder written notice of such determination and, if
within thirty (30) days after receipt of such notice, the Holder shall so request in
writing, the Company shall use its best efforts to include in such registration statement
all or any part of the Warrant Stock except that if, in connection with any offering
involving an underwriting of Common Stock to be issued by the Company, the managing
underwriter shall impose a limitation on the number of shares of such Common Stock which may
be included in any such registration statement because, in its judgment, such limitation is
necessary to effect an orderly public distribution, and such limitation is imposed
pro rata among the holders of such Common Stock having an incidental (“piggy
back”) right to include such Common Stock in the registration statement according to the
amount of such Common Stock which each holder had requested to be included pursuant to such
right, then the Company shall be obligated to include in such registration statement only
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such limited portion of the Warrant Stock with respect to which the Holder has requested
inclusion hereunder.
6.2. Effectiveness. The Company will use its best efforts to maintain the
effectiveness for up to twelve (12) months of any registration statement pursuant to which
any of the Warrant Stock is being offered, and from time to time will amend or supplement
such registration statement and the prospectus contained therein as and to the extent
necessary to comply with the Securities Act and any applicable state securities statute or
regulation. The Company will also provide the Holder with as many copies of the prospectus
contained in any such registration statement as it may reasonably request.
6.3. Indemnification of Holder. In the event that the Company registers any
of the Warrant Stock under the Securities Act, the Company will indemnify and hold harmless
the Holder from and against any and all losses, claims, damages, expenses or liabilities, to
which it becomes subject under the Securities Act or under any other statute or at common
law or otherwise, and, except as hereinafter provided, will reimburse the Holder for any
legal or other expenses reasonably incurred by it in connection with investigating or
defending any actions whether or not resulting in any liability, insofar as such losses,
claims, damages, expenses, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the registration
statement, in any preliminary or amended preliminary prospectus or in the prospectus (or the
registration statement or prospectus as from time to time amended or supplemented by the
Company) or arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary in order to make the statements
therein not misleading or any violation by the Company of any rule or regulation promulgated
under the Securities Act applicable to the Company and relating to action or inaction
required of the Company in connection with such registration, unless such untrue statement
or omission was made in such registration statement, preliminary or amended, preliminary
prospectus or prospectus in reliance upon and in conformity with information furnished in
writing to the Company in connection therewith by the Holder expressly for use therein.
Promptly after receipt by the Holder of notice of the commencement of any action in respect
of which indemnity may be sought against the Company, the Holder will notify the Company in
writing of the commencement thereof, and, subject to the provisions hereinafter stated, the
Company shall assume the defense of such action (including the employment of counsel, who
shall be counsel reasonably satisfactory to the Holder), and the payment of expenses insofar
as such action shall relate to any alleged liability in respect of which indemnity may be
sought against the Company. The Holder shall have the right to employ separate counsel in
any such action and to participate in the defense thereof but the fees and expenses of such
counsel shall not be at the expense of the Company unless representation of the Holder by
the counsel retained by the Company would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party represented by such
counsel in such proceeding or employment of such counsel has been specifically authorized by
the Company. The Company shall not be liable to indemnify any person for any settlement of
any such action effected without the Company’s consent, which consent shall not be
unreasonably withheld, conditioned or delayed. The
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failure to deliver written notice to the Company within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such action, shall
relieve the Company of liability to the Holder under this Section 6.3 to the extent of such
prejudice, but the omission so to deliver written notice to the Company will not relieve it
of any liability that it may have to any Holder otherwise than under this Section 6.3.
6.4. Indemnification of Company. In the event that the Company registers any
of the Warrant Stock under the Securities Act, the Holder will indemnify and
hold harmless the Company, each of its directors, each of its officers who have
signed the registration statement, each underwriter of the shares so registered
(including any broker or dealer through whom such of the shares may be sold)
and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act from and against any and all losses, claims, damages,
expenses or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act or under any other statute or at common
law or otherwise, and, except as hereinafter provided, will reimburse the
Company and each such director, officer, underwriter or controlling person for
any legal or other expenses reasonably incurred by them or any of them in
connection with investigating or defending any actions whether or not resulting
in any liability, insofar as such losses, claims, damages, expenses,
liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement, in any preliminary or amended preliminary prospectus or in the
prospectus (or in the registration statement or prospectus as from time to time
amended or supplemented) or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein not misleading, but only
insofar as any such statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company in connection
therewith by the Holder expressly for use therein. Promptly after receipt of
notice of the commencement of any action in respect of which indemnity may be
sought against the Holder, the Company will notify the Holder in writing of the
commencement thereof, and the Holder shall, subject to the provisions
hereinafter stated, assume the defense of such action (including the employment
of counsel, who shall be counsel reasonably satisfactory to the Company) and
the payment of expenses insofar as such action shall relate to the alleged
liability in respect of which indemnity may be sought against the Holder. The
Company and each such director, officer, underwriter or controlling person
shall have the right to employ separate counsel in any such action and to
participate in the defense thereof but the fees and expenses of such counsel
shall not be at the expense of the Holder unless representation of the Company
by the counsel retained by the Holder would be inappropriate due to actual or
potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding or employment of such
counsel has been specifically authorized by the Holder. The Holder shall not
be liable to indemnify any person for any settlement of any such action
effected without the Holder’s consent, which consent shall not be unreasonably
withheld, conditioned or delayed. The failure to deliver written notice to the
Holder within a reasonable time of the commencement of any such action, if
prejudicial to its ability to defend such action, shall relieve the Holder of
liability to the Company under this Section 6.4 to the extent of such
prejudice, but the omission so to
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deliver written notice to the Holder will not relieve it of any liability that
it may have to the Company otherwise than under this Section 6.4.
6.5 Termination of Obligation. The Company’s
obligation to register Holder’s
Warrant Stock
pursuant to this
Section 6 shall
terminate at such
time as the Company’s
shares are publicly
traded and all shares
of Common Stock of
the Company issuable
or issued upon
conversion of the
Warrant Stock held by
Holder (and its
affiliates) may be
sold pursuant to Rule
144 during any ninety
(90) day period.
7. Transferability. Except as otherwise set forth in Section 3, this Warrant is not
transferable by the Holder. Any attempted transfer, assignment, pledge, hypothecation or other
disposition of this Warrant or of any rights granted hereunder contrary to the provisions of this
Section 7, or the levy of any attachment or similar process upon this Warrant or such rights, shall
be null and void.
8. No Rights as Shareholder. Until the exercise of this Warrant, the Holder shall not
have or exercise any rights by virtue hereof as a shareholder of the Company.
9. Notices. All notices, requests and other communications hereunder shall be in
writing, shall be either (i) delivered by hand, (ii) made by telex, telecopy or facsimile
transmission, (iii) sent by overnight courier, or (iv) sent by registered mail, postage prepaid,
return receipt requested. In the case of notices from the Company to the Holder, they shall be
sent to the address furnished to the Company in writing by the last Holder who shall have furnished
an address to the Company in writing. All notices from the Holder to the Company shall be
delivered to the Company at its offices at 0000 Xxxxxxx Xxxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000,
Attention: Chief Executive Officer, or such other address as the Company shall so notify the
Holder. All notices, requests and other communications hereunder shall be deemed to have been
given (i) by hand, at the time of the delivery thereof to the receiving party at the address of
such party described above, (ii) if made by telex, telecopy or facsimile transmission, at the time
that receipt thereof has been acknowledged by electronic confirmation or otherwise, (iii) if sent
by overnight courier, on the next business day following the day such notices is delivered to the
courier service, or (iv) if sent by registered mail, on the fifth business day following the day
such mailing is made.
10. Waivers and Modifications. Any term or provision of this Warrant may be waived
only by written document executed by the party entitled to the benefits of such terms or
provisions.
The terms and provisions of this Warrant may be modified or amended only by written agreement
executed by the parties hereto.
11. Headings. The headings in this Warrant are for convenience of reference only and
shall in no way modify or affect the meaning or construction of any of the terms or provisions of
this Warrant.
12. Governing Law. This Warrant will be governed by and construed in accordance with
and governed by the laws of California without giving effect to the conflict of law principles
thereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed, by one of its
officers thereunto duly authorized.
| STARVOX COMMUNICATIONS, INC. |
||||
| By: | /s/Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Chief Executive Officer | |||
EXHIBIT A
PURCHASE FORM
To: STARVOX COMMUNICATIONS, INC.
The undersigned pursuant to the provisions set forth in the attached Warrant hereby irrevocably
elects to (check one):
| (A) purchase shares of Common Stock, par value $0.001 per share, of StarVox Communications, Inc. (the “Common Stock”), covered by such Warrant and herewith makes payment of $ , representing the full purchase price for such shares at the price per share provided for in such Warrant; or | ||||
| (B) convert Warrant Shares into that number of shares of fully paid and nonassessable shares of Common Stock, determined pursuant to the provisions of Section 1.5 of the Warrant. |
Common Stock for which the Warrant may be exercised or converted shall be known herein as
“Warrant Stock.”
The undersigned is aware that Warrant Stock has not been and will not be registered under the
Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws. The
undersigned understands that reliance by the Company on exemptions under the Securities Act is
predicated in part upon the truth and accuracy of the statements of the undersigned in this
Purchase Form.
The undersigned represents and warrants that (i) he has been furnished with all information
which he deems necessary to evaluate the merits and risks of the purchase of Warrant Stock, (ii) he
has had the opportunity to ask questions concerning Warrant Stock and the Company and all questions
posed have been answered to his satisfaction, (iii) he has been given the opportunity to obtain any
additional information he deems necessary to verify the accuracy of any information obtained
concerning Warrant Stock and the Company and (iv) he has such knowledge and experience in financial
and business matters that he is able to evaluate the merits and risks of purchasing Warrant Stock
and to make an informed investment decision relating thereto.
The undersigned hereby represents and warrants that he is purchasing Warrant Stock for his own
account for investment and not with a view to the sale or distribution of all or any part of
Warrant Stock.
The undersigned understands that because Warrant Stock has not been registered under the
Securities Act, he must continue to bear the economic risk of the investment for an indefinite
period of time and Warrant Stock cannot be sold unless it is subsequently registered under
applicable federal and state securities laws or an exemption from such registration is available.
The undersigned agrees that he will in no event sell or distribute or otherwise dispose of all
or any part of Warrant Stock unless (i) there is an effective registration statement under the
Securities Act and applicable state securities laws covering any such transaction involving Warrant
Stock, or (ii) the Company receives an opinion of legal counsel reasonably acceptable to the
Company stating that such transaction is exempt from registration. The undersigned consents to the
placing of a legend on his certificate for Warrant Stock stating: (i) that the resale or transfer
of the Warrant Stock has not been registered and setting forth the restriction on transfer
contemplated hereby; and (ii) to the placing of a stop-transfer order on the books of the Company
and with any transfer agents against Warrant Stock until Warrant Stock may be legally resold or
distributed without restriction.
The undersigned has considered the federal and state income tax implications of the exercise
of the Warrant and the purchase and subsequent sale of the Warrant Stock.
| Signature | ||||||||
| Print Name | ||||||||
| or | ||||||||
| Entity Name: | ||||||||
| By: | ||||||||
| Signature | ||||||||
| Print Name | ||||||||
| Title | ||||||||
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