EXHIBIT 10.64
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON THE EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE. NEITHER THIS WARRANT,
SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE TRANSFERRED EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH SECURITIES ACT AND SUCH LAWS.
, 2002
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XXXXXX TECHNOLOGIES, INC.
COMMON STOCK PURCHASE WARRANT
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THIS COMMON STOCK PURCHASE WARRANT (this "Warrant") certifies that, for
good and valuable consideration, XXXXXX TECHNOLOGIES, INC., a Delaware
corporation (the "Company"), grants to (the "Warrantholder"), the
right to subscribe for and purchase from the Company, during the Exercise Period
(as hereinafter defined), ( ) duly authorized,
validly issued, fully paid and nonassessable shares (the "Warrant Shares"), par
value $.01 per share, of Common Stock of the Company (the "Common Stock"), at
the exercise price per share of equal to $0.17 (subject to adjustment as set
forth below, the "Exercise Price"), all subject to the terms, conditions and
adjustments herein set forth. Capitalized terms used herein shall have the
meanings ascribed to such terms in Paragraph 11 below.
1. Warrant. This Warrant is issued pursuant to, and in accordance with,
the Investment Agreement by and among the Company, Xxxxxxx Capital II, L.P., and
Strategic Entrepreneur Fund II, L.P. (the "Investment Agreement"), and is
subject to the terms thereof.
2. Exercise of Warrant; Payment of Taxes.
2.1 Exercise of Warrant. Subject to the terms and conditions set
forth herein, this Warrant may be exercised at any time, in whole or in
part, by the Warrantholder or any assignee or transferee of this Warrant
pursuant to, and in compliance with Paragraph 3 herein, during the Exercise
Period by:
(a) the surrender of this Warrant to the Company, with a duly
executed Exercise Form; and
(b) the delivery of payment to the Company, for the account of the
Company, by cash, wire transfer of immediately available funds,
certified or official bank check or any other means approved by the
Company, of the aggregate Exercise Price in lawful money of the United
States of America. The Company agrees that the Warrant Shares shall be
deemed to be issued to the Warrantholder as the record holder of such
Warrant Shares as of the close of business on the date on which this
Warrant shall have been surrendered and payment made for the Warrant
Shares as aforesaid (the "Exercise Date").
2.2 Conversion Option.
(a) In lieu of the payment of the aggregate Exercise Price, the
Warrantholder, at its sole discretion, may have the Company convert this
Warrant, in whole or in part, into shares of Common Stock (the
"Conversion Option") as provided for in this Paragraph 2.2. Upon
exercise of the Conversion Option, the Company shall deliver to the
Warrantholder (without payment by
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the Warrantholder of any of the Exercise Price in accordance with
Paragraph 2.1(b)) that number of Warrant Shares computed using the
following formula:
X = Y(A-B)
------
A
Where:
X = the number of Warrant Shares to be issued to the
Warrantholder;
Y = the number of Warrant Shares purchasable under this Warrant
or, if only a portion of the Warrant is being converted, the
portion of the Warrant being converted;
A = the current Market Price per share of the Common Stock (at
the date of such conversion); and
B = the Exercise Price (as adjusted to the date of such
calculation).
For the purpose of this Paragraph 2.2(a), the market price per
share of Common Stock on any date (the "Market Price") shall be deemed
to be the closing price of the Common Stock on the principal national
securities exchange on which the Common Stock is then listed or admitted
to trading or The Nasdaq Stock Market (including The Nasdaq National
Market and The Nasdaq SmallCap Market, as the case may be), if the
Common Stock is then listed or admitted to trading on any national
securities exchange or in such market system. The closing price shall be
the last reported sale price, or, in case no such sale takes place on
such day, the average of the closing bid and asked price, as reported by
said exchange or market system. If the Common Stock is not then so
listed on a national securities exchange or in such market system, the
Market Price shall be deemed to be the mean between the representative
closing bid and asked prices of the Common Stock in the over-the-counter
market as reported by the OTC Bulletin Board or, if the Common Stock is
not then quoted by the OTC Bulletin Board, the Market Price shall be
determined in good faith by the "independent directors" of the Board of
Directors of the Corporation, as defined by The Nasdaq Stock Market.
(b) The Conversion Option may be exercised by the Warrantholder at
its sole discretion on any Business Day prior to the end of the Exercise
Period by surrender of this Warrant to the Company, with a duly executed
Exercise Form with the conversion section completed, exercising the
Conversion Option and specifying the total number of shares of Common
Stock that the Warrantholder will be issued pursuant to such conversion.
2.3 Warrant Shares Certificate. A stock certificate or certificates
for the Warrant Shares specified in the Exercise Form shall be delivered to
the Warrantholder within five (5) Business Days after receipt of the
Exercise Form by the Company and, unless the Conversion Option is
exercised, the payment by the Warrantholder of the aggregate Exercise
Price. If this Warrant is exercised only in part, the Company shall, at the
time of delivery of the stock certificate or certificates, deliver to the
Warrantholder a new Warrant evidencing the right to purchase the remaining
Warrant Shares, which new Warrant shall in all other respects be identical
to this Warrant.
2.4 Payment of Taxes. The Company will pay all documentary stamp or
other issuance taxes, if any, attributable to the original issuance of
Warrant Shares upon the exercise of this Warrant; except that the Company
shall not be required to pay any tax or taxes which may be payable in
respect of any transfer involved in the issue or delivery of any Warrants
or Warrant certificates or Warrant Shares in a name other than that of the
then existing Warrantholder as reflected upon the books of the Company.
3. Transfer of Warrants; Compliance with Securities Laws.
(a) The Company shall maintain a register (the "Warrant Register")
containing the names and addresses of the Warrantholder or Warrantholders.
Any Warrantholder of this Warrant or any portion hereof may change its
address as shown on the Warrant Register by written notice to the Company
requesting such change. Any notice or written communication required or
permitted to be given to the
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Warrantholder may be delivered or given by mail to such Warrantholder as
shown on the Warrant Register and at the address shown on the Warrant
Register. Until this Warrant is transferred on the Warrant Register, the
Company may treat the Warrantholder as shown on the Warrant Register as the
absolute owner of this Warrant for all purposes, notwithstanding any notice
to the contrary.
(b) This Warrant may not be transferred or assigned in whole or in
part without compliance with all applicable federal and state securities
laws by the transferor and the transferee (including the delivery of
investment representation letters and legal opinions reasonably
satisfactory to the Company, if such are requested by the Company). Subject
to the provisions of this Warrant with respect to compliance with the
Securities Act, title to this Warrant may be transferred by endorsement (by
the Warrantholder executing the assignment form that will be provided by
the Company upon request (the "Assignment Form")) and delivery in the same
manner as a negotiable instrument transferable by endorsement and delivery.
(c) On surrender of this Warrant for exchange, properly endorsed on
the Assignment Form and subject to the provisions of this Warrant with
respect to compliance with the Securities Act and with the limitations on
assignments and transfers contained in this Paragraph 3, the Company shall
issue to or on the order of the Warrantholder a new warrant or warrants
with the same terms and conditions, in the name of the Warrantholder and/or
as the Warrantholder (on payment by the Warrantholder of any applicable
transfer and stamp taxes) may direct, for the aggregate number of Warrant
Shares issuable upon exercise thereof.
4. Reservation and Registration of Shares. The Company covenants and
agrees as follows:
(a) All Warrant Shares that are issued upon the exercise of this
Warrant shall, upon issuance, be duly authorized, validly issued, fully
paid and non-assessable, not subject to any preemptive rights, and be 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 issue and other than any
liens, security interests, and other encumbrances not created by the
Company or its subsidiaries.
(b) The Company shall at all times have authorized and reserved, and
shall keep available and free from preemptive rights, a sufficient number
of shares of Common Stock to provide for the exercise of the rights
represented by this Warrant and the Warrant Shares.
5. Adjustment to Exercise Price and Warrant Share Number. The Exercise
Price and the number of Warrant Shares to be received upon exercise of this
Warrant shall be subject to adjustment as follows:
5.1 Dividend, Subdivision, Combination or Reclassification of Common
Stock. If the Company shall at any time or from time to time, after the
issuance of this Warrant but prior to the exercise hereof, (a) make a
dividend or distribution on the outstanding shares of Common Stock payable
in Capital Stock, (b) subdivide the outstanding shares of Common Stock into
a larger number of shares, (c) combine the outstanding shares of Common
Stock into a smaller number of shares or (d) issue any shares of its
Capital Stock in a reclassification of the Common Stock (other than any
such event for which an adjustment is made pursuant to another clause of
this Paragraph 5), then, and in each such case, (i) the aggregate number of
Warrant Shares for which this Warrant is exercisable (the "Warrant Share
Number") immediately prior to such event shall be adjusted so that the
Warrantholder shall be entitled to receive upon exercise of this Warrant
the number of shares of Common Stock or other securities of the Company
that it would have owned or would have been entitled to receive upon or by
reason of any of the events described above, had this Warrant been
exercised immediately prior to the occurrence of such event and (ii) the
Exercise Price payable upon the exercise of this Warrant shall be adjusted
by multiplying such Exercise Price immediately prior to such adjustment by
a fraction, the numerator of which shall be the Warrant Share Number
immediately prior to such adjustment, and the denominator of which shall be
the Warrant Share Number immediately thereafter. An adjustment made
pursuant to this Paragraph 5.1 shall become effective retroactively (x) in
the case of any such dividend or distribution, to a date immediately
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following the close of business on the record date for the determination of
holders of shares of Common Stock entitled to receive such dividend or
distribution, or (y) in the case of any such subdivision, combination or
reclassification, to the close of business on the day upon which such
corporate action becomes effective.
5.2 Other Changes. If the Company at any time or from time to time,
after the issuance of this Warrant but prior to the exercise hereof, shall
take any action affecting its Common Stock similar to or having an effect
similar to any of the actions described in any of Paragraphs 5.1 or 5.6
herein (but not including any action described in any such Paragraph) then,
and in each such case, the Exercise Price and Warrant Share Number shall be
adjusted in such manner and at such time as the Board of Directors in good
faith determines would be equitable in the circumstances (such
determination to be evidenced in a resolution, a certified copy of which
shall be mailed to the Warrantholder).
5.3 No Adjustment; Par Value Minimum. Notwithstanding anything
herein to the contrary, no adjustment under this Paragraph 5 need be made
to the Exercise Price or Warrant Share Number if the Company receives
written notice from the Warrantholder that no such adjustment is required.
Notwithstanding any other provision of this Warrant, the Exercise Price
shall not be adjusted below the par value of a share of Common Stock
5.4 Abandonment. If the Company shall take a record of the holders
of shares of its Common Stock for the purpose of entitling them to receive
a dividend or other distribution, and shall thereafter and before the
distribution to stockholders thereof abandon its plan to pay or deliver
such dividend or distribution, then no adjustment in the Exercise Price or
Warrant Share Number shall be required by reason of the taking of such
record.
5.5 Certificate as to Adjustments. Upon any adjustment in the
Exercise Price or Warrant Share Number, the Company shall within a
reasonable period (not to exceed ten days) following any of the foregoing
transactions deliver to the Warrantholder a certificate, signed by (i) the
Chief Executive Officer of the Company and (ii) the Chief Financial Officer
of the Company, setting forth in reasonable detail the event requiring the
adjustment and the method by which such adjustment was calculated and
specifying the adjusted Exercise Price and Warrant Share Number then in
effect following such adjustment.
5.6 Reorganization, Reclassification, Merger or Sale Transaction. In
case of any capital reorganization, reclassification, Sale Transaction,
mandatory share exchange (other than a Sale Transaction or a mandatory
share exchange in which the Company is the surviving corporation and in
which the Common Stock is not exchanged) of the Company (each, a
"Transaction") at any time after the issuance of this Warrant but prior to
the exercise hereof, the Company shall execute and deliver to the
Warrantholder at least ten Business Days prior to effecting such
Transaction a certificate and, if following a Transaction, the Warrant
shall be exercisable for securities of any Person other than the Company,
such Person shall, no later than simultaneously with the closing of the
Transaction, issue a certificate, stating that the Warrantholder shall have
the right thereafter to exercise this Warrant for the kind and amount of
shares of stock or other securities, property or cash receivable upon such
Transaction by a holder of the number of shares of Common Stock into which
this Warrant could have been exercised immediately prior to such
Transaction, and provision shall be made therefor in the agreement, if any,
relating to such Transaction. Such certificates shall provide for
adjustments which shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Paragraph 5. The provisions of this
Paragraph 5.6 and any equivalent thereof in any such certificate similarly
shall apply to successive transactions.
5.7 Notices. In case at any time or from time to time:
(a) the Company shall pay a dividend (or other distribution) on its
shares of Common Stock, or
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(b) the Company shall authorize the granting to the holders of
shares of its Common Stock, rights or warrants to subscribe for or
purchase any shares of Capital Stock or any other rights or warrants,
then the Company shall mail to the Warrantholder, as promptly as
possible but in any event at least ten Business Days prior to the
applicable date hereinafter specified, a notice stating the date on
which a record is to be taken for the purpose of such dividend,
distribution or granting of rights or warrants or, if a record is not to
be taken, the date as of which the holders of Common Stock of record to
be entitled to such dividend, distribution or granting of rights or
warrants are to be determined. Notwithstanding the foregoing, in the
case of any event to which Paragraph 5.6 is applicable, the Company
shall also deliver the certificate described in such Paragraph 5.6 to
the Warrantholder at least ten (10) Business Days prior to effecting
such reorganization or reclassification as aforesaid.
6. No Dilution or Impairment. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
action, avoid or seek to avoid the observance or performance of any of the terms
of this 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 action as may be necessary or
appropriate in order to protect the rights of the Warrantholder under this
Warrant.
7. Loss or Destruction of Warrant. Subject to the terms and conditions
hereof, upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant and, in the case of
loss, theft or destruction, such bond or indemnification as the Company may
reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor; provided, however, in the event of the loss, theft or destruction
of this Warrant, or the mutilation of this Warrant if the Warrantholder shall
not have delivered such mutilated Warrant to the Company, the Company may
require that the Warrantholder provide a bond or written indemnification in
favor of the Company with respect to any claims, expenses or losses the Company
may incur in connection with such lost, stolen, destroyed or mutilated Warrant.
8. Ownership of Warrant. The Company may deem and treat the Person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant, together with proper
written notice, for transfer.
9. Amendments. Any provision of this Warrant may be amended and the
observance thereof waived with the written consent of the Company and the
Warrantholder or by the written consent of the Company and the Majority
Warrantholders.
10. Representations and Warranties by the Warrantholder. By accepting
this Warrant, the Warrantholder represents and warrants to the Company as
follows:
(a) This Warrant and the Warrant Shares issuable upon exercise of the
Warrantholder's rights contained herein will be acquired for investment for
the Warrantholder's own account and not with a view to the sale or
distribution of any part thereof, and the Warrantholder has no present
intention of selling or engaging in any public distribution of the same
except pursuant to a registration or exemption from the Securities Act.
(b) The Warrantholder understands and acknowledges that (i) the
Warrant Shares issuable upon exercise of the Warrantholder's rights
contained herein are not registered under the Securities Act or qualified
under applicable state securities laws because the issuance contemplated by
this Warrant will be exempt from the registration and qualification
requirements thereof, and (ii) the Company's reliance on such exemptions is
predicated on the accuracy of the representations set forth in this
Paragraph 10.
(c) The Warrantholder has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of
its investment and has the ability to bear the economic risks of its
investment.
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(d) The Warrantholder understands that if the Company's Common Stock
ceases to be registered with the Securities and Exchange Commission
pursuant to Paragraph 12 of the Securities Exchange Act of 1934, and the
rules and regulations promulgated thereunder (the "Exchange Act"), or if
the Company ceases to file the reports required under the Exchange Act, or
if a registration statement covering the securities under the Securities
Act is not in effect when it desires to resell (i) this Warrant or (ii) the
Warrant Shares issuable upon exercise of this Warrant, it may be required
to hold such securities for an indefinite period. The Warrantholder is
aware of the provisions of Rule 144 promulgated under the Securities Act.
(e) The Warrantholder will not offer, sell or otherwise dispose of
this Warrant or any Warrant Shares to be issued upon exercise hereof except
under circumstances that will not result in a violation of the Securities
Act or any state securities laws.
(f) Upon exercise of this Warrant, the Warrantholder shall, if
requested by the Company, confirm in writing, in a form satisfactory to the
Company, that the Warrant Shares so purchased are being acquired solely for
the Warrantholder's own account and not as a nominee for any other party,
for investment, and not with a view toward distribution or resale.
(g) The Warrantholder understands that this Warrant and all Warrant
Shares issued upon exercise hereof shall be stamped or imprinted with a
legend in substantially the form set forth on the first page hereof.
11. Definitions. As used herein, unless the context otherwise requires,
the following terms have the following respective meanings:
"Board of Directors" means the Board of Directors of the Company.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in the State of New York are authorized or
required by law or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in, or other equivalents (however
designated and whether voting or non-voting) of such Person's capital stock
and any and all rights, warrants or options exchangeable for or convertible
into such capital stock (but excluding any debt security whether or not it
is exchangeable for or convertible into such capital stock).
"Change of Control Event" means the Company's dissolution or
liquidation, the consummation of the Company's sale of all or substantially
all of its assets, or the acquisition of a majority of the voting
securities of the Company by another person or entity by means of a stock
sale, stock exchange or a merger (other than a merger which solely effects
a change of domicile) or consolidation or other transaction (other than
pursuant to a resale of securities either under Rule 144 promulgated under
the Securities Act or a registered offering), unless, after such stock
sale, stock exchange, merger, consolidation or other transaction, the
persons and entities who were shareholders of the Company immediately
before the stock sale, stock exchange, merger, consolidation or other
transaction continue to hold at least fifty percent (50%) of the economic
and voting power of the surviving entity. The Company shall provide 10
days' written notice to the Warrantholder prior to the consummation of such
event (the "Change of Control Notice").
"Common Stock" means the Common Stock, par value $.01 per share, of
the Company.
"Company" has the meaning set forth in the first paragraph of this
Warrant.
"Exchange Act" has the meaning set forth in Paragraph 10(d).
"Exercise Date" has the meaning set forth in Paragraph 2.1(b) of this
Warrant.
"Exercise Form" means an Exercise Form in the form annexed hereto as
Exhibit A.
"Exercise Period" means the period beginning on the date one year
after the Investment Closing Date (as defined in the Investment Agreement)
to 5:00 p.m., Eastern time, on June 7, 2006;
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provided, however, the Exercise Period shall begin immediately prior to a
Change of Control Event. In the event of a Change of Control Event
resulting in an acceleration of the Exercise Period, deliverables required
pursuant to Section 2.1 may be made by the Warrantholder prior to the
beginning of the Exercise Period; provided, however, that no exercise shall
occur until the beginning of the Exercise Period.
"Exercise Price" has the meaning set forth in the first paragraph of
this Warrant.
"Investment Agreement" has the meaning set forth in Paragraph 1 of
this Warrant.
"Majority Warrantholders" means the holders of a majority of Warrant
Shares issuable upon exercise of all of the warrants issued pursuant to the
Investment Agreement, assuming the exercise of all such warrants.
"Market Price" has the meaning set forth in Paragraph 2.2(a) of this
Warrant.
"Person" means an individual, firm, corporation, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, governmental body or other entity of any
kind.
"Sale Transaction" shall mean (a) (i) the merger or consolidation of
the Company into or with one or more Persons, (ii) the merger or
consolidation of one or more Persons into or with the Company or (iii) a
tender offer or other business combination if, in the case of (i), (ii) or
(iii), the stockholders of the Company prior to such merger, consolidation,
tender offer or other business combination do not retain at least 50% of
the voting power of the surviving Person or (b) the voluntary sale,
conveyance, exchange or transfer to another Person of (i) the voting
Capital Stock of the Company if, after such sale, conveyance, exchange or
transfer, the stockholders of the Company prior to such sale, conveyance,
exchange or transfer do not retain at least 50% of the voting power of the
Company or (ii) all or substantially all of the assets of the Company.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Securities and Exchange Commission thereunder.
"Transaction" has the meaning set forth in Paragraph 5.6 of this
Warrant.
"Warrant Share Number" has the meaning set forth in Paragraph 5.1 of
this Warrant.
"Warrant Shares" has the meaning set forth in the first paragraph of
this Warrant.
"Warrantholder" has the meaning set forth in the first paragraph of
this Warrant.
12. Miscellaneous
12.1 Entire Agreement. This Warrant, the Escrow Agreement, the
Registration Rights Agreement (as defined in the Investment Agreement), the
Investment Agreement and the Voting Agreement dated October 7, 2002, among
the Company, Xxxxxxx Capital II, L.P. and Strategic Entrepreneur Fund II,
L.P., constitute the entire agreement between the Company and the
Warrantholder with respect to the Warrant and supersedes all prior
agreements and understanding with respects to the subject matter of this
Warrant.
12.2 Binding Effect; Benefits. This Warrant shall inure to the
benefit of and shall be binding upon the Company and the Warrantholder and
their respective permitted successors and assigns. Nothing in this Warrant,
expressed or implied, is intended to or shall confer on any person other
than the Company and the Warrantholder, or their respective permitted
successors or assigns, any rights, remedies, obligations or liabilities
under or by reason of this Warrant.
12.3 Headings. The headings in this Warrant are for convenience of
reference only and shall not limit or otherwise affect the meaning of this
Warrant.
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12.4 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 or personal delivery:
(a) if to the Company:
Xxxxxx Technologies, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Legal Department
with a copy to:
Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P.
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Telecopy:(000) 000-0000
Attention:Xxxxx X. Xxxxxxx, Esq.
(b) if to the Warrantholder to the name and address set forth in
the Warrant Register.
Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail, by registered or certified mail,
addressed (i) to the Warrantholder at the address set forth above, and (ii)
to the Company at the address set forth above, or, if sent by facsimile to
the numbers set forth above, when receipt of such facsimile is verbally
(but not mechanically) acknowledged by the recipient thereof. Any party may
by notice given in accordance with this Paragraph 12.4 designate another
address or Person for receipt of notices hereunder.
12.5 Severability. Any term or provision of this Warrant which is
invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remainder
of the terms and provisions of this Warrant or affecting the validity or
enforceability of any of the terms or provisions of this Warrant in any
other jurisdiction.
12.6 GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE WITHOUT REGARD TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF.
12.7 No Rights or Liabilities as Stockholder. Nothing contained in
this Warrant shall be determined as conferring upon the Warrantholder any
rights as a stockholder of the Company or as imposing any liabilities on
the Warrantholder to purchase any securities whether such liabilities are
asserted by the Company or by creditors or stockholders of the Company or
otherwise.
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IN WITNESS WHEREOF, the Company and the Warrantholder have caused this
Warrant to be executed this day of , 2002.
XXXXXX TECHNOLOGIES, INC.
By:
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Name:
Title:
WARRANTHOLDER:
By:
------------------------------------
Name:
Title:
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EXHIBIT A
EXERCISE FORM
(TO BE EXECUTED UPON EXERCISE OF THIS WARRANT)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to purchase shares of Common Stock
and herewith tenders payment for such shares to the order of the Company in the
amount of $ ] or hereby exercises its Conversion Option in accordance
with the terms of this Warrant. The undersigned requests that a certificate for
such Warrant Shares or number of Warrant Shares to which the undersigned is
entitled calculated pursuant to Paragraph 2.2 be registered in the name of the
undersigned and that such certificates be delivered to the undersigned's address
below.
The undersigned acknowledges and agrees that the representations and
warranties set forth in Paragraph 10 of the Warrant are true and correct as to
the Warrantholders as of the date hereof.
Dated:
Name
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(Print)
Signature:
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Title:
-----------------------------------
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(Street Address)
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(City) (State) (Zip Code)
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