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EXHIBIT 10.113
NEITHER THIS WARRANT NOR THE COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT
HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND NEITHER
THIS WARRANT NOR THE COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT MAY BE
TRANSFERRED EXCEPT AS PROVIDED IN SECTION 4 OF THIS WARRANT.
WARRANT
to Purchase Common Stock of
Wilshire Technologies, Inc.
Expiring March 31, 2003
This Warrant certifies that Trilon Dominion Partners, L.L.C., a
Delaware limited liability company, or registered assigns (the "Holder"), is
entitled to subscribe for and purchase from Wilshire Technologies, Inc., a
corporation organized under the laws of the state of California (the "Company"),
all or any part of duly authorized, validly issued, fully paid and nonassessable
shares of the Company's common stock, no par value per share (the common stock,
including any stock into which it may be changed, reclassified, or converted,
and as it may be adjusted pursuant to Section 10 below, is herein referred to as
the "Common Stock"), as comprise 650,000 shares at a purchase price equal to
$0.41 per share (as it may be adjusted pursuant to Section 10 (B), the "Exercise
Price"). This Warrant may be exercised at any time, and from time to time,
during the period from the date hereof and ending at 5:00 p.m., New York, New
York time, on March 31, 2003 (the "Exercise Period"). The maximum number of
shares so issuable under this Warrant is sometimes referred to as the "Aggregate
Number," and initially the Aggregate Number is 650,000.
This Warrant is issued pursuant to that certain Amended and
Restated Credit Agreement and Revolving Line of Credit, dated as of March 31,
1998, by and between the Company and the Holder (the "Credit Agreement").
Pursuant to the Credit Agreement, the Holder has agreed to extend credit to the
Company in the aggregate principal amount of $7,493,296.92, evidenced by a Grid
Promissory Note dated March 31, 1998 issued by the Company in favor of the
Holder in an aggregate principal amount of $7,493,296.92 and bearing interest at
the prime rate published in The Wall Street Journal (Eastern Edition) plus 3%
(the "Note").
This Warrant is subject to the following provisions, terms and
conditions:
Section 1. Exercise of Warrant.
To exercise this Warrant in whole or in part, the Holder shall
deliver to the Company at its principal office in Carlsbad, California, (a) a
written notice, in substantially the form of the Subscription Notice appearing
at the end of this Warrant, of the Holder's election to exercise this Warrant,
which notice shall specify the number of shares of Common Stock to be purchased,
(b) cash or a certified check payable to the Company, or by crediting such
amount against outstanding indebtedness (including principal and accrued
interest thereon) of the
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Company to the Holder hereof, if any, at the time of exercise, including any
portion of the Note, in an amount equal to the Exercise Price and (c) this
Warrant. The Company shall as promptly as practicable, and in any event within
15 days thereafter, execute and deliver or cause to be executed and delivered,
in accordance with such notice, a certificate or certificates representing the
aggregate number of shares of Common Stock specified in such notice. The stock
certificate or certificates so delivered shall be in the denomination of 1,000
shares each or such lesser or greater denomination as may be specified in such
notice and shall be issued in the name of the Holder or such other name as shall
be designated in such notice. Such certificate or certificates shall be deemed
to have been issued and the Holder or any other person so designated to be named
therein shall be deemed for all purposes to have become a holder of record of
such shares as of the date such notice, with receipt of this Warrant and payment
of the Exercise Price, is received by the Company as aforesaid. If this Warrant
shall have been exercised only in part, the Company shall, at the time of
delivery of said certificate or certificates, deliver to the Holder a new
warrant evidencing the rights of the Holder to purchase the remaining shares of
Common Stock called for by this Warrant, which new warrant shall in all other
respects be identical to this Warrant, or, at the request of the Holder,
appropriate notation may be made on this Warrant and the same returned to the
Holder. The Company shall pay all expenses, taxes and other charges payable in
connection with the preparation, issue and delivery of such stock certificates
and new warrants, except that, in case such stock certificates or new warrants
shall be registered in a name or names other than the name of the Holder, funds
sufficient to pay all stock transfer taxes that are payable upon the issuance of
such stock certificate or certificates or new warrants shall be paid by the
Holder at the time of delivering the notice of exercise mentioned above.
Subject to compliance with applicable securities laws and the
terms of this Agreement, all shares of Common Stock issued upon the exercise of
this Warrant shall be validly issued, fully paid and nonassessable and, if the
Common Stock is then listed on a national securities exchange, or quoted on an
automated quotation system, shall be duly listed or quoted thereon.
The Company shall not be required upon any exercise of this
Warrant to issue a certificate representing any fraction of a share of Common
Stock, but, in lieu thereof, shall pay to the Holder cash in an amount equal to
a corresponding fraction (calculated to the nearest 1/100 of a share) of the
purchase price of one share of Common Stock as of the date of receipt by the
Company of notice of exercise of this Warrant.
Section 2. Right to Convert Warrant.
The Holder shall have the right to convert this Warrant (the
"Conversion Right") at any time prior to the expiration of the Exercise Period,
into shares of Common Stock in accordance with this Section 2; provided that the
Conversion Right shall be exercisable only if there is no outstanding
indebtedness (including principal and accrued interest thereon) of the Company
to the Holder hereof at the time of exercise of such Conversion Right. Upon
exercise of the Conversion Right, the Company shall deliver to the Holder
(without payment by the Holder of the Exercise Price) that number of shares of
Common Stock equal to the quotient obtained by dividing (x) the value of this
Warrant at the time the Conversion Right is exercised
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(determined by subtracting the aggregate Exercise Price for this Warrant (in
effect immediately prior to the exercise of the Conversion Right) from the
amount obtained by multiplying the number of shares of Common Stock issuable
upon the exercise of this Warrant by the Closing Price (as defined below)
immediately prior to the exercise of the Conversion Right) by (y) the Closing
Price of one share of Common Stock immediately prior to the exercise of the
Conversion Right.
For purposes hereof, the "Closing Price" shall mean the average
of the highest reported bid and lowest reported asked prices on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading, or, if the Common Stock is not listed or admitted to trading on any
national securities exchange, the average of the highest reported bid and lowest
reported asked prices, as reported by the National Association of Securities
Dealers, Inc. through NASDAQ or a similar organization if NASDAQ is no longer
reporting such information. If the highest reported bid and lowest reported
asked prices of the Common Stock are not reported, the "Closing Price" shall be
the fair market value of the Common Stock, as determined in good faith by the
Company's Board of Directors.
The Conversion Right may be exercised by the Holder, at any time
or from time to time, prior to its expiration, on any business day by delivering
a written notice (the "Conversion Notice") to the Company at the offices of the
Company, exercising the Conversion Right and specifying (i) the total number of
shares of Common Stock the Holder will purchase pursuant to the conversion and
(ii) a place and date not less than two nor more than seven (7) business days
from the date of the Conversion Notice for the closing of such purchase.
At any closing under this Section 2, (i) the Holder will
surrender this Warrant and (ii) the Company will deliver to the Holder a
certificate or certificates for the number of shares of Common Stock issuable
upon such conversion.
Section 3. Transfer, Division and Combination.
The Company agrees to maintain at its principal office in
Carlsbad, California, books for the registration and transfer of this Warrant,
and, subject to the provisions of Section 4 hereof, this Warrant and all rights
hereunder are transferable, in whole or in part, on such books at such office,
upon surrender of this Warrant at such office, together with a written
assignment of this Warrant duly executed by the Holder or his agent or attorney
and funds sufficient to pay any stock transfer taxes payable upon the making of
such transfer. Upon such surrender and payment, the Company shall execute and
deliver a new warrant or warrants in the name of the assignee or assignees and
in the denominations specified in such instrument of assignment, and this
Warrant shall promptly be canceled. A warrant may be exercised by a new holder
for the purchase of shares of Common Stock without having a new warrant issued.
This Warrant may be divided or combined with other warrants upon
presentation hereof at such principal office in Carlsbad, California, together
with a written notice specifying the names and denominations in which new
warrants are to be issued, signed by the Holder or his agent or attorney.
Subject to compliance with the preceding paragraph as to any transfer that
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may be involved in such division or combination, the Company shall execute and
deliver a new warrant or warrants in exchange for the warrant or warrants to be
divided or combined in accordance with such notice.
Section 4. Restrictions on Exercise and Transfer of Warrants and
Common Stock.
This Warrant shall be exercisable (a) only under circumstances
such that the issue of Common Stock issuable upon such exercise is exempt from
the requirements of registration under the Securities Act of 1933, as amended
(or any similar statute then in effect) (the "1933 Act") and any applicable
securities law or (b) upon registration of such Common Stock in compliance
therewith. This Warrant shall be transferable only under circumstances such that
the transfer is exempt from the requirements of registration under the 1933 Act
and any applicable securities law. By acceptance hereof, the Holder agrees to
comply with such legislation.
Before any transfer or attempted transfer of all or any part of
this Warrant or such Common Stock, the Holder shall give the Company written
notice of its intention so to do describing briefly the manner of any such
proposed transfer. Promptly after receiving such written notice, the Company
shall present copies thereof to Company counsel and, if the Company requests the
Holder to designate special counsel therefor, to any special counsel designated
by the Holder that is reasonably satisfactory to the Company. If, in the opinion
of counsel for the Company and counsel, if any, for the Holder, the proposed
transfer may be effected without registration under the 1933 Act and any
applicable state securities law, the Company, as promptly as practicable, shall
notify the Holder of such opinion, whereupon the securities proposed to be
transferred may be transferred in accordance with the terms of such notice. The
Company shall not be required to effect any such transfer before the receipt of
such favorable opinion or opinions of the effectiveness of registration.
Section 5. Certain Covenants.
The Company covenants and agrees that it will at all times
reserve and set apart and have, free from preemptive rights, a number of shares
of authorized but unissued Common Stock, or other stock or securities
deliverable pursuant to this Warrant, sufficient to enable it at any time to
fulfill all its obligations hereunder.
Section 6. Notices.
In the event that:
(a) the Company proposes to pay any dividend payable in
stock (of any class or classes) or in Convertible Securities, as defined
below, upon its Common Stock or make any distribution (other than
ordinary cash dividends) to the holders of its Common Stock,
(b) the Company proposes to grant to the holders of its
Common Stock generally any rights or options,
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(c) the Company proposes to effect any capital
reorganization or reclassification of capital stock of the Company,
(d) the Company proposes to consolidate with, or merge
into, any other corporation or to transfer its property as an entirety
or substantially as an entirety, or
(e) the Company proposes to effect the liquidation,
dissolution or winding up of the Company,
then the Company shall cause notice of any such intended action to be given to
all holders of record of outstanding "Warrants" (as hereinafter defined) not
less than 20 days before the date on which the transfer books of the Company
shall close or a record shall be taken for such stock dividend, distribution or
granting of rights or options, or the date when such capital reorganization,
reclassification, consolidation, merger, transfer, liquidation, dissolution or
winding up shall be effective, as the case may be.
Any notice or other document required or permitted to be given or
delivered to holders of record of Warrants shall be delivered by facsimile,
reliable courier or first-class mail postage prepaid to each such holder at the
last address shown on the books of the Company maintained for the registry and
transfer of the Warrants. Any notice or other document required or permitted to
be given or delivered to holders of record of Common Stock issued pursuant to
Warrants shall be delivered by facsimile, reliable courier or first-class mail
postage prepaid to each such holder at such holder's address as the same appears
on the stock records of the Company. Any notice or other document required or
permitted to be given or delivered to the Company shall be delivered by
facsimile, reliable courier or first-class mail postage prepaid to the principal
office of the Company in Carlsbad, California, or delivered to the office of one
of the Company's executive officers at such address, or such other address as
shall have been furnished by the Company to the holders of record of such
Warrants and the holders of record of such Common Stock.
Section 7. Limitation of Liability; Not Shareholders.
No provision of this Warrant shall be construed as conferring
upon the Holder the right to vote or to consent or to receive dividends or to
receive notice as a shareholder in respect of meetings of shareholders for the
election of directors of the Company or any other matter whatsoever as
shareholders of the Company. No provision hereof, in the absence of affirmative
action by the Holder to purchase shares of Common Stock, and no mere enumeration
herein of the rights or privileges of the Holder, shall give rise to any
liability of Holder for the purchase price or as a shareholder of the Company,
whether such liability is asserted by the Company, creditors of the Company or
others.
Section 8. Loss, Destruction, etc. of Warrant.
Upon receipt of evidence satisfactory to the Company of the loss,
theft, mutilation or destruction of any warrant, and in the case of any such
loss, theft or destruction upon delivery of a bond of indemnity in such form and
amount as shall be reasonably satisfactory to the
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Company, or in the event of such mutilation upon surrender and cancellation of
this Warrant, the Company will make and deliver a new warrant, of like tenor, in
lieu of such lost, stolen, destroyed or mutilated warrant. Any warrant issued
under the provisions of this Section 8 in lieu of any warrant alleged to be
lost, destroyed or stolen, or of any mutilated warrant, shall constitute an
original contractual obligation on the part of the Company.
Section 9. Term of Warrant.
This Warrant shall become exercisable immediately upon its
issuance to the initial Holder. The expiration time and date of this Warrant
shall be 5:00 p.m. New York, New York time, March 31, 2003.
Section 10. Adjustments to Aggregate Number and Exercise Price.
(A) Adjustments of Number of Shares Issuable Pursuant to this
Warrant.
The Aggregate Number shall be subject to adjustment from time to
time as follows and thereafter as adjusted shall be deemed to be the Aggregate
Number hereunder.
(a) In case at any time or from time to time the Company
shall:
(i) take a record of the holders of its Common
Stock for the purpose of entitling them to receive a dividend
payable in, or other distribution of, Common Stock,
(ii) subdivide its outstanding shares of Common
Stock into a larger number of shares of Common Stock,
(iii) combine its outstanding shares of Common
Stock into a smaller number of shares of Common Stock, or
(iv) enter into any consolidation with or merge
into any other corporation wherein the Company is not the
continuing corporation, or wherein cash or securities of a
corporation other than the Company are distributable to holders
of Common Stock of the Company, or sell or convey its property as
an entirety or substantially as an entirety, and in connection
with such consolidation, merger, sale or conveyance, shares of
stock or cash or other securities shall be issuable or
deliverable in exchange for the Common Stock of the Company,
then the Aggregate Number in effect immediately prior thereto shall be
adjusted so that the holder or holders of this Warrant shall thereafter
be entitled to receive, upon exercise hereof, the number of shares of
Common Stock that such holder or holders would have owned or have been
entitled to receive after the occurrence of such event had this Warrant
been exercised immediately prior to the occurrence of such event. In
case of any such consolidation, merger, sale or conveyance, appropriate
provision (as determined by a resolution of the Board of Directors of
the Company) shall be made with respect to the
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rights and interests thereafter of the Holder, to the end that all the
provisions of this Warrant (including adjustment provisions) shall
thereafter be applicable as nearly as reasonably practicable, in
relation to any such stock or other securities.
(b) In case at any time or from time to time the Company
shall take a record of the holders of its Common Stock for the purpose
of entitling them to receive any dividend or other distribution
(collectively, a "Distribution") of:
(i) cash (other than dividends payable out of
earnings or any surplus legally available for the payment of
dividends under the laws of the state of incorporation of the
Company),
(ii) any evidences of its indebtedness (other than
any obligations or stock convertible into or exchangeable for
shares of Common Stock (such convertible or exchangeable
obligations or stock being hereinafter called "Convertible
Securities")), any shares of its capital stock (other than
additional shares of Common Stock or Convertible Securities) or
any other securities or property of any nature whatsoever (other
than cash), or
(iii) any options or warrants or other rights to
subscribe for or purchase any of the following: any evidences of
its indebtedness (other than Convertible Securities), any shares
of its capital stock (other than additional shares of Common
Stock or Convertible Securities) or any other securities or
property of any nature whatsoever,
then the holder or holders of this Warrant shall be entitled to receive
upon the exercise hereof at any time on or after the taking of such
record the number of shares of Common Stock to be received upon exercise
of this Warrant determined as stated herein and in addition and without
further payment, the cash, stock, securities, other property, options,
warrants and/or other rights to which such holder or holders would have
been entitled by way of the Distribution and subsequent dividends and
distributions to which such holder or holders would have been entitled
by way of the Distribution if such holder or holders (x) had exercised
this Warrant immediately prior to such Distribution, and (y) had
retained the Distribution in respect of the Common Stock and all
subsequent dividends and distributions to which such holder or holders
would have been entitled by way of the Distribution. A reclassification
of the Common Stock into shares of Common Stock and shares of any other
class of stock shall be deemed a distribution by the Company to the
holders of its Common Stock of such shares of such other class of stock
within the meaning of this paragraph (b) and, if the outstanding shares
of Common Stock shall be changed into a larger or smaller number of
shares of Common Stock as a part of such reclassification, such event
shall be deemed a subdivision or combination, as the case may be, of the
outstanding shares of Common Stock within the meaning of paragraph (a)
of this Section 10.
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(c) In case at any time or from time to time the Company
shall (except as hereinafter provided) issue or sell any additional
shares of Common Stock or securities at a price which is less than the
Exercise Price, then the Aggregate Number in effect immediately prior
thereto shall be adjusted immediately so that the Aggregate Number
thereafter shall be an amount equal to the product of (x) the percentage
represented by the fraction, the numerator of which is the Aggregate
Number in effect immediately prior to such issuance or sale and the
denominator of which is the total outstanding shares of Common Stock
immediately prior to such issuance or sale (assuming for purposes of
such calculation the exercise of all of the warrants issued by the
Company, and the conversion, exercise or exchange of all other
securities then outstanding and convertible, exercisable or exchangeable
into shares of Common Stock) as of the date of the sale or issuance by
the Company of the shares requiring the adjustment to the Aggregate
Number pursuant to this Section 10 (such total number of shares of
Common Stock outstanding immediately prior to such issuance or sale, the
"Prior Outstanding Number"), and (y) the total number of shares of
Common Stock outstanding immediately after such issuance or sale
(assuming for purposes of such calculation (i) the exercise of all of
the warrants issued by the Company, and (ii) the conversion, exercise or
exchange of all other securities then outstanding and convertible,
exercisable or exchangeable into shares of Common Stock) (the "New
Outstanding Number");
The provisions of this paragraph (c) shall not apply to
any issuance of additional shares of Common Stock for which an
adjustment is provided under Section 10(A)(a).
(d) In case at any time or from time to time the Company
shall (except as hereinafter provided) take a record of the holders of
its Common Stock for the purpose of entitling them to receive a
distribution of, or shall in any manner issue or sell, any warrants or
other rights to subscribe for or purchase (x) any shares of Common Stock
or (y) any Convertible Securities, whether or not the rights to
subscribe, purchase, exchange or convert thereunder are immediately
exercisable, at a purchase price per share of Common Stock which is less
than the Exercise Price, then the Aggregate Number in effect immediately
prior thereto shall be adjusted immediately so that the Aggregate Number
thereafter shall be an amount equal to the product of (x) the percentage
represented by the fraction, the numerator of which is the Aggregate
Number in effect immediately prior to such distribution, issuance or
sale and the denominator of which is the Prior Outstanding Number and
(y) the New Outstanding Number assuming the exercise of the warrants or
other rights and/or the conversion of the Convertible Securities
distributed, issued or sold at such time.
The provisions of this paragraph (d) shall not apply to
any issuance of additional shares of Common Stock for which an
adjustment is provided under Section 10(A)(a).
(e) In case at any time or from time to time the Company
shall take a record of the holders of its Common Stock for the purpose
of entitling them to receive a
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distribution of or shall in any manner issue or sell Convertible
Securities, whether or not the rights to exchange or convert thereunder
are immediately exercisable, at an exercise price per share of Common
Stock which is less than the Exercise Price, then the Aggregate Number
in effect immediately prior thereto shall be adjusted immediately so
that the Aggregate Number thereafter shall be an amount equal to the
product of (x) the percentage represented by the fraction, the numerator
of which is the Aggregate Number in effect prior to such distribution,
issuance or sale and the denominator of which is the Prior Outstanding
Number and (y) the New Outstanding Number assuming the conversion of the
Convertible Securities distributed, issued or sold at such time.
No adjustment of the Aggregate Number shall be made under
this Section 10(A)(e) upon the issuance of any Convertible Securities
which are issued pursuant to the exercise of any warrants or other
subscription or purchase or similar rights if an adjustment shall
previously have been made.
(f) The following provisions shall be applicable to the
making of adjustments of the Aggregate Number and Exercise Price
hereinbefore and hereinafter provided for in this Section 10:
(i) The sale or other disposition of any issued
shares of Common Stock owned or held by or for the account of the
Company shall be deemed an issuance thereof for the purposes of
this Section 10.
(ii) The adjustments required by the preceding
paragraphs of this Section 10 shall be made whenever and as often
as any specified event requiring an adjustment shall occur,
except as expressly provided herein. For the purpose of any
adjustment, any specified event shall be deemed to have occurred
at the close of business on the date of its occurrence.
(iii) In computing adjustments under this Section
10, fractional interests in Common Stock shall be taken into
account to the nearest one-thousandth (.001) of a share and shall
be aggregated until they equal one whole share.
(iv) If the Company shall take a record of the
holders of its Common Stock for the purpose of entitling them to
receive a dividend, distribution, warrants or subscription or
purchase or similar rights under Sections 10(A)(a) through
10(A)(e) hereof, but abandon its plan to pay or deliver such
dividend, distribution, warrants, subscription or purchase or
similar rights, then no adjustment shall be required by reason of
the taking of such record and any such adjustment previously made
in respect thereof shall be rescinded and annulled.
(v) Notwithstanding anything herein to the
contrary, no adjustment shall be made to the Aggregate Number as
a result of (x) the issuance of shares of Common Stock issued
upon exercise of this Warrant or any other
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warrant or springing warrant heretofore, now or hereafter issued
to Holder, (y) the issuance of securities or options to any
employee, director, officer, contractor or consultant of the
Company pursuant to an approval of the Board of Directors of the
Company or pursuant to any plan approved by the Board of
Directors of the Company, including but not limited to, employee
stock options authorized to be issued pursuant to the Company's
1993 and 1995 Stock Option Plans, or (z) any other warrants or
options outstanding on the date hereof and any other warrants or
springing warrants issued to the Holder.
(vi) Upon the expiration or termination of any of
the warrants or other rights or options referred to in Section
10(A)(d) above or the Convertible Securities referred to in
Section 10(A)(e) above, the Aggregate Number after the expiration
or termination of any such warrants, rights, options or
Convertible Securities, the issuance of which caused an
adjustment to the Aggregate Number, shall be readjusted to such
Aggregate Number as would have been obtained had the adjustment
made upon the issuance of such warrants, rights, options or
Convertible Securities been made upon the basis of only the
number of shares of Common Stock actually issued upon the
exercise of such warrants, options or rights, upon the conversion
or exchange of such securities or upon the exercise of the
options or rights related to such securities and subsequent
conversion or exchange thereof.
(vii) The consideration for any additional shares
of Common Stock issuable pursuant to any options, warrants or
other rights to subscribe for or purchase the same shall be the
consideration received or receivable by the Company for issuing
such options, warrants or other rights, plus the additional
consideration payable to the Company upon the exercise of such
options, warrants or other rights. The consideration for any
additional shares of Common Stock issuable pursuant to the terms
of any Convertible Securities shall be the consideration received
or receivable by the Company for issuing any options, warrants or
other rights to subscribe for or purchase such Convertible
Securities, plus the consideration paid or payable to the Company
in respect of the subscription for or purchase of such
Convertible Securities, plus the additional consideration, if
any, payable to the Company upon the exercise of the right of
conversion, exercise or exchange of such Convertible Securities.
In case of the issuance at any time of any additional shares of
Common Stock or Convertible Securities in payment or satisfaction
of any dividend upon any class of stock other than Common Stock,
the Company shall be deemed to have received for such additional
shares of Common Stock or Convertible Securities a consideration
equal to the amount of such dividend so paid or satisfied.
(g) If any event occurs as to which the other provisions
of this Section 10 are not strictly applicable but the lack of any
provision for the exercise of the rights of a holder or holders of this
Warrant would not, in the judgment of the Board of Directors of the
Company, fairly protect the purchase rights of such holder or holders of
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this Warrant in accordance with the essential intent and principles of
such provisions, or, if strictly applicable, would not, in the judgment
of the Board of Directors of the Company, fairly protect the conversion
rights of the holder or holders of this Warrant in accordance with the
essential intent and principles of such provisions, then the Company
shall appoint a firm of independent certified public accountants in the
United States (which may be the regular auditors of the Company) of
recognized national standing in the United States reasonably
satisfactory to the Holder, which shall give their opinion as to the
adjustments, if any, necessary to preserve without dilution, on a basis
consistent with the essential intent and principles established in the
other provisions of this Section 10, the exercise rights of the holder
or holders of this Warrant. Upon receipt of such opinion, the Company
shall forthwith make any adjustments described therein.
(h) Within 45 days after the end of each fiscal quarter
during which an event occurred that resulted in an adjustment pursuant
to this Section 10, the Company shall cause to be promptly mailed to
each holder of this Warrant (and upon the exercise of this Warrant to
the exercising holder) by first-class mail, postage prepaid, notice of
each adjustment or adjustments to the Aggregate Number effected since
the date of the last such notice and a certificate of the Company's
Chief Financial Officer or, in the case of any such notice delivered
within 45 days after the end of a fiscal year, a firm of independent
public accountants in the United States selected by the Company and
acceptable to the Holder (who may be the regular accountants employed by
the Company), in each case, setting forth the Aggregate Number after
such adjustment, a brief statement of the facts requiring such
adjustment and the computation by which such adjustment was made. The
fees and expenses of such accountants shall be paid by the Company.
(i) The occurrence of a single event shall not trigger an
adjustment of the Aggregate Number under more than one paragraph of this
Section 10.
(B) Adjustments to Exercise Price.
(a) Stock Split or Combination. The Exercise Price shall
be adjusted from time to time in the case of any stock split, dividend
payable in Common Stock, subdivision of the number of shares of the
Common Stock or similar event involving Common Stock (a "Split") or any
reverse stock split, combination or similar event involving the Common
Stock (a "Combination"), and, accordingly, the Exercise Price shall be
proportionately decreased in the case of a Split or increased in the
case of a Combination, as of the close of business on the date the Split
or Combination becomes effective, computed to the nearest cent.
(b) Issuance of Common Stock. The Exercise Price shall be
adjusted from time to time according to the following provisions:
(i) As used in this Section 10(B)(b), the term
"Additional Shares" means any shares of Common Stock or
Convertible Securities issued by
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the Company after the date hereof other than (1) the issuance of
shares of Common Stock issued upon exercise of this Warrant or
any other warrant or springing warrant heretofore, now or
hereafter issued to Holder; (2)shares of Common Stock issued upon
the exercise of any other warrants or options outstanding on the
date hereof and any other warrants or springing warrants issued
to the Holder; (3) the issuance of securities or options to any
employee, director, officer, contractor or consultant of the
Company pursuant to an approval of the Board of Directors of the
Company, including but not limited to, employee stock options
authorized to be issued pursuant to the Company's 1993 and 1995
Stock Option Plans, and (4) shares issued by the Company upon any
Split or Combination or pursuant to any merger, recapitalization
or other event to which the provisions of Paragraph 10(A) apply.
(ii) If the Company shall issue any Additional
Shares either (1) without consideration or (2) for a
consideration per share of Common Stock less than the Exercise
Price in effect immediately prior to the issuance of such
Additional Shares or (3) in the case of Convertible Securities,
at an exercise price per share of Common Stock which is less than
the Exercise Price in effect immediately prior to the issuance of
such Additional Shares, then the Exercise Price (as adjusted
previously pursuant to the terms of this Section 10(B)) shall be
adjusted to a price (computed to the nearest cent and shall be
the new Exercise Price) obtained by applying the following
formula:
NP = (AS x OP) + C
-------------------
AS + NS
where:
NP equal the new Exercise Price
AS equals the number of shares of Common Stock
outstanding (treasury shares not being deemed to
be outstanding) on the date hereof
OP equals the Exercise Price in effect immediately
prior to the calculation
C equals the aggregate consideration received by the
Company for all Additional Shares which were issued
since the date of the last adjustment pursuant to
this formula, or in the case of the first such
adjustment, which were issued after the date hereof
NS equals the number of Additional Shares which were
issued after the date hereof
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provided, however, that adjustment shall be made only if the
result obtained by applying the foregoing formula yields a new
Exercise Price which is less than the Exercise Price in effect
immediately prior to the issuance of such Additional shares.
Section 11. Registration Rights.
(a) Registrable Stock. As used in this Section 11, the
term "Registrable Stock" shall mean (i) all shares of Common Stock that
may be issued upon exercise of this Warrant, and (ii) all shares of
Common Stock that may be issued upon exercise of any other Warrant.
References in this Warrant to rules, regulations and forms
promulgated by the Securities and Exchange Commission shall include
rules, regulations and forms succeeding to the functions thereof,
whether or not bearing the same designation.
The rights and obligations of the Company and the Holder
with respect to the Registrable Stock set forth in this Section 11 shall
supersede any registration rights and obligations of the Company and the
Holder existing prior to the date hereof with respect to the Registrable
Stock.
(b) Request for Registration. If the Company shall receive
a written request (specifying that it is being made pursuant to this
Section 11(b)) from the Holder of the Registrable Stock that the Company
file a registration statement under the 1933 Act, or a similar document
pursuant to any other statute then in effect corresponding to the 1933
Act covering the registration of the Registrable Stock, then the Company
shall use its reasonable best efforts to cause all Registrable Stock to
be registered under the 1933 Act.
Notwithstanding the foregoing, (i) the Company shall not
be obligated to effect a registration pursuant to this Section 11(b)
during the period starting with the date 60 days prior to the Company's
estimated date of filing of, and ending on a date 180 days following the
effective date of a registration statement pertaining to an underwritten
public offering of securities for the account of the Company, provided
that the Company is actively employing in good faith all reasonable
efforts to cause such registration statement to become effective and
that the Company's estimate of the date of filing such registration
statement is made in good faith; and (ii) if the Company shall furnish
to the Holder a certificate signed by the chief executive officer of the
Company stating that in the good faith judgment of the Board of
Directors it would be seriously detrimental to the Company or its
shareholders for a registration statement to be filed in the near
future, then the Company's obligation to use its best efforts to file a
registration statement shall be deferred for a period not to exceed six
months.
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Any request for registration under this Section 11(b) must
be for a firmly underwritten public offering to be managed by an
underwriter or underwriters of recognized national standing reasonably
acceptable to the Company.
(c) Company Registration. Subject to Section 11(g), if at
any time the Company proposes to register any of its Common Stock under
the 1933 Act in connection with the public offering of such securities
solely for cash on a form that would also permit the registration of the
Registrable Stock, the Company shall, each such time, promptly give each
holder of Registrable Stock written notice of such determination. Upon
the written request of the Holder as to all of the Registrable Stock,
given within 20 days after mailing of any such notice by the Company,
the Company shall use its reasonable best efforts to cause to be
registered under the 1933 Act all of the Registrable Stock.
(d) Obligations of the Company. Whenever required under
Sections 11(b), 11(c) or 11(j) to use its reasonable best efforts to
effect the registration of any Registrable Stock, the Company shall, as
expeditiously as reasonably possible:
(1) prepare and file with the Securities and
Exchange Commission a registration statement with respect
to such Registrable Stock and use its reasonable best
efforts to cause such registration statement to become and
remain effective; provided, however, that in connection
with any proposed registration intended to permit an
offering of any securities from time to time (i.e., a
so-called "shelf registration"), the Company shall in no
event be obligated to cause any such registration to
remain effective for more than 90 days;
(2) prepare and file with the Securities and
Exchange Commission such amendments and supplements to
such registration statement and the prospectus used in
connection with such registration statement as may be
necessary to comply with the provisions of the 1933 Act
with respect to the disposition of all securities covered
by such registration statement;
(3) furnish to the holders of Registrable Stock
such numbers of copies of a prospectus, including a
preliminary prospectus, in conformity with the
requirements of the 1933 Act, and such other documents as
they may reasonably request in order to facilitate the
disposition of Registrable Stock owned by them; and
(4) use its reasonable best efforts to register and
qualify the securities covered by such registration
statement under such other securities or Blue Sky Laws of
such jurisdictions as shall be reasonably appropriate for
the distribution of the securities covered by the
registration statement.
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(e) Furnish Information. It shall be a condition precedent
to the obligations of the Company to take any action pursuant to this
Section 11 that the holders of Registrable Stock shall furnish to the
Company such information regarding them, the Registrable Stock held by
them and the intended method of disposition of such securities as the
Company shall reasonably request and as shall be required in connection
with the action to be taken by the Company.
(f) Expenses of Demand Registration. All expenses incurred
in connection with a registration pursuant to Sections 11(b), 11(c) or
11(j) (excluding underwriters' discounts and commissions), including,
without limitation, all registration and qualification fees, printers
and accounting fees, fees and disbursements of counsel for the Company
and the reasonable fees and disbursements of one counsel for the selling
holders, shall be borne by the Company, except to the extent prohibited
or otherwise restricted by state or federal securities laws or
regulations.
(g) Underwriting Requirements:
(1) In connection with any offering involving an
underwriting of shares being issued by the Company, the Company
shall not be required under Section 11(c) to include any of the
holders' Registrable Stock in such underwriting unless they
accept the terms of the underwriting as agreed upon between the
Company and the underwriters selected by it or them, and then
only in such quantity as will not, in the written opinion of the
underwriters, jeopardize the success of the offering by the
Company. If the total amount of securities that all holders
request to be included in such offering exceeds the amount of
securities that the underwriters reasonably believe compatible
with the success of the offering, the Company shall only be
required to include in the offering so many of the securities of
the selling holders as the underwriters believe will not
jeopardize the success of the offering, shall so advise all
selling holders of Registrable Stock and the number of shares of
securities that are entitled to be included in the offering and
underwriting shall be allocated first, to the Company for
securities being sold for its own account, second, among all such
selling holders of Registrable Stock and, third, among all other
selling stockholders, in each case in proportion, as nearly as
practicable, to the respective total amounts of securities owned
by said selling holders of Registrable Stock and other selling
stockholders. If any selling holder of Registrable Stock or any
other selling stockholder disapproves of the terms of any such
underwriting, he, she or it may elect to withdraw therefrom by
written notice to the Company and the underwriter.
(2) In connection with any offering initiated by
any holders of Registrable Stock involving an underwriting of
shares being sold by such holders of Registrable Stock, such
holders shall not be required under Section 11(b) to include any
shares being issued by the Company or sold
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by any other selling stockholders in such underwriting unless the
Company and such other selling stockholders accepts the terms of
the underwriting as agreed upon between such holders of
Registrable Stock and the underwriters selected by it and
reasonably acceptable to the Company, and then only in such
quantity as will not, in the written opinion of the underwriters,
jeopardize the success of the offering by such holders. If the
total amount of securities that all holders request to be
included in such offering exceeds the amount of securities that
the underwriters reasonably believe compatible with the success
of the offering, the holders of Registrable Stock shall only be
required to include in the offering so many of the securities of
the Company as the underwriters believe will not jeopardize the
success of the offering, shall so advise the Company and such
other selling stockholders, and the number of shares of
securities that are entitled to be included in the offering and
underwriting shall be allocated first, among all such selling
holders of Registrable Stock and other securities of the Company
held by such holders, second, to the Company for securities being
sold for its own account and, third, among all other selling
stockholders. If some but not all of the securities in any of the
foregoing classes are includable in the offering the holders in
such class shall be permitted to participate in the offering pro
rata, as among holders in such class. If the Company of any other
selling stockholder disapproves of the terms of any such
underwriting, he, she or it may elect to withdraw therefrom by
written notice to the holders of Registrable Stock and the
underwriter.
(h) Delay of Registration. No holders of Registrable Stock
shall have any right to take any action to restrain, enjoin or otherwise
delay any registration as the result of any controversy that might arise
with respect to the interpretation or implementation of this Section 11.
(i) Indemnification. In the event any shares of
Registrable Stock are included in the registration statement under this
Section 11:
(1) to the extent permitted by law, the Company
will indemnify and hold harmless each holder of Registrable Stock
requesting or joining in a registration, any underwriter (as
defined in the 0000 Xxx) for it and each person, if any, who
controls such holder or underwriter within the meaning of the
1933 Act, against any losses, claims, damages or liabilities,
joint or several, to which they may become subject under the 1933
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based on any untrue or alleged untrue statement of any material
fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact
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required to be stated therein, or necessary to make the
statements therein not misleading or arise out of any violation
by the Company of any rule or regulation promulgated under the
1933 Act applicable to the Company and relating to action or
inaction required of the Company in connection with any such
registration; and will reimburse each such holder, such
underwriter or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this
Section 11(i)(l) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld) nor shall the Company
be liable in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is
based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in connection with such
registration statement, preliminary prospectus, final prospectus,
or amendments or supplements thereto, in reliance upon and in
conformity with written information furnished expressly for use
in connection with such registration by any such holder,
underwriter or controlling person;
(2) to the extent permitted by law, each holder requesting
or joining in a registration will indemnify and hold harmless the
Company, each of its directors, each of its officers who have
signed the registration statement, each person, if any, who
controls the Company within the meaning of the 1933 Act and each
agent and any underwriter for the Company (within the meaning of
the 0000 Xxx) against any losses, claims, damages or liabilities
to which the Company or any such director, officer, controlling
person, agent or underwriter may become subject, under the 1933
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are
based upon any untrue statement or alleged untrue statement of
any material fact contained in such registration statement,
including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, 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 to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged
omission was made in such registration statement, preliminary or
final prospectus, or amendments or supplements thereto, in
reliance upon and in conformity with written information
furnished by such holder expressly for use in connection with
such registration; and each such holder will reimburse any legal
or other expenses reasonably incurred by the Company or any such
director, officer, controlling person, agent or underwriter in
connection with investigating or defending any
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such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this Section 11(i)(2)
shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected
without the consent of such holder (which consent shall not be
unreasonably withheld); and
(3) promptly after receipt by an indemnified party under
this paragraph of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this paragraph, notify
the indemnifying party in writing of the commencement thereof and
the indemnifying party shall have the right to participate in,
and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the
parties. The failure to notify an indemnifying party promptly of
the commencement of any such action, if prejudicial to his
ability to defend such action, shall relieve such indemnifying
party of any liability to the indemnified party under this
paragraph, but the omission so to notify the indemnifying party
will not relieve him of any liability that he may have to any
indemnified party otherwise than under this paragraph.
(j) Registrations on Form S-3.
(1) If (i) the Holder requests in writing
(specifying that the request is being made pursuant to this
Section 11(j)) that the Company file a registration statement on
Form S-3 under the 1933 Act ("Form S-3") (or any successor form
to Form S-3 regardless of its designation) for a public offering
of shares of all of the Registrable Stock, the reasonably
anticipated aggregate price to the public of which would exceed
$500,000, and (ii) the Company is a registrant entitled to use
Form S-3 to register such shares, then the Company shall use its
reasonable best efforts to cause such shares to be registered on
Form S-3 (or any successor form to Form S-3).
(2) All expenses incurred in connection with a
registration requested pursuant to Section 11(j)(1) (excluding
underwriters' discounts and commissions), including, without
limitation, all registration, qualification, printing and
accounting fees, and reasonable fees and disbursements of one
counsel for the selling holder or holders and counsel for the
Company, shall be borne by the Company.
(3) Holders' rights to registration under this
Section 11(j) are in addition to, and not in lieu of, their
rights to registration under Sections 11(b) and 11(c).
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(k) Termination of the Company's Obligations. The Company
shall have no obligations pursuant to Sections 11(b), 11(c) or 11(j) as
to Holder after the Company has included Registrable Stock of Holder in
a registration pursuant to Sections 11(b), 11(c) or 11(j), provided,
however, that if Holder has requested that all of its Registrable Stock
be registered under Section 11(c), but Holder shall be prohibited from
selling all of such stock by virtue of Section 11(g), then Holder's
rights shall not be restricted by the provisions of this Section 11(k)
until such time as it has had an opportunity to sell all of its
Registrable Stock.
(l) Reports Under Securities Exchange Act of 1934. With a
view to making available to the holders of Registrable Stock the
benefits of Rule 144 promulgated under the 1933 Act and any other rule
or regulation of the Securities and Exchange Commission that may at any
time permit a holder to sell securities of the Company to the public
without registration, the Company agrees to use its reasonable best
efforts to:
(1) make and keep public information available, as
those terms are understood and defined in Rule 144, at all times
subsequent to 90 days after the effective date of the first
registration statement covering an underwritten public offering
filed by the Company;
(2) file with the Securities and Exchange
Commission in a timely manner all reports and other documents
required of the Company under the 1933 Act and the Securities
Exchange Act of 1934 (the "1934 Act"); and
(3) furnish to any holder so long as such holder
owns any of the Registrable Stock forthwith upon request a
written statement by the Company that it has complied with the
reporting requirements of Rule 144 (at any time after 90 days
after the effective date of said first registration statement
filed by the Company), and of the 1933 Act and the 1934 Act (at
any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so
filed by the Company as may be reasonably requested in availing
any holder of any rule or regulation of the Securities and
Exchange Commission permitting the selling of any such securities
without registration.
(m) Lockup Agreement. In consideration for the Company's
agreeing to its obligations under this Section 1l, the holder of
Registrable Stock agrees in connection with any registration of the
Company's securities that, upon the request of the Company or the
underwriters managing any underwritten offering of the Company's
securities, not to sell, make any short sale of, loan, grant any option
for the purchase of or otherwise dispose of any Registrable Stock (other
than those included in the registration) without the prior written
consent of the Company or such underwriters, as the case may
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be, for such period of time (not to exceed 180 days) from the effective
date of such registration as the Company or the underwriters may
specify.
(n) Certain Limitations in Connection with Future Grants
of Registration Rights. From and after the date hereof, the Company
shall not enter into any agreement with any holder or prospective holder
of any securities of the Company providing for the granting to such
holder of registration rights unless:
(1) the Company shall use its best efforts to
include the equivalent of Section 11(m) as a term in any such
agreement; and
(2) any such agreement shall include a provision
that, in the case of a public offering involving an underwritten
registered offering under Section 11(c), protects the holders of
Registrable Stock if marketing factors require a limitation on
the number of securities to be included in the underwriting in
the manner in which the Company is protected under Section 11(g);
and
(3) any such agreement does not grant to such
holder or prospective holder registration rights more favorable
that those granted to the holders of Registrable Stock under this
Section 11.
(o) Transfer of Registration Rights. The registration
rights of the Holder of this Warrant under this Section 11 may be
transferred pro rata to any transferee who acquires at least 20% of the
then outstanding shares of Registrable Stock, or this Warrant; provided,
however, that the Company is given written notice by the Holder at the
time of such transfer stating the name and address of the transferee and
identifying the securities with respect to which the rights under this
Section 11 are being assigned.
Section 12. Amendments.
(a) Other than in respect of Section 11 hereof, neither
this Warrant nor any term hereof may be changed, waived, discharged or
terminated orally or in writing, provided that any term of this Warrant
may be amended or the observance of such term may be waived (either
generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Company
and the holders of Warrants that are exercisable for a number of shares
that represent in the aggregate at least a majority of the total number
of shares for which all Warrants are then exercisable (whether or not
the holder of this Warrant consents).
(b) Neither Section 11 of this Warrant nor Section 11 of
any other Warrant, nor any term of either of such Sections 11 may be
changed, waived, discharged or terminated orally or in writing, provided
that any term of Section 11 of this Warrant and any term of Section 11
of any other Warrant may be amended or the observance of such term may
be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent
of the Company
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and the holders of all Warrants that are exercisable for a number of
shares that represent in the aggregate at least a majority of the total
number of shares for which all Warrants are then exercisable (whether or
not the holder of this Warrant consents). As used herein, "Warrants"
means any warrant or springing warrant heretofore, now or hereafter
issued by the Company to Holder.
Section 13. Governing Law.
This Warrant shall be governed by the laws of the State of New
York without regard to its conflict of laws principles or rules.
Section 14. Consent to Jurisdiction.
Any legal action, suit or proceeding arising out of or relating
to this Agreement or the consummation of the transactions contemplated hereby
may only be instituted in any federal court of the Southern District of New York
or any state court located in New York County, State of New York, and each party
agrees not to assert, by way of motion, as a defense or otherwise, in any such
action, suit or proceeding, any claim that it is not subject personally to the
jurisdiction of such courts, that the action, suit or proceeding if brought in
such courts, would be an inconvenient forum, that the venue of the action, suit
or proceeding, if brought in any of such courts, is improper or that this
Agreement or the subject matter hereof may not be enforced in or by such courts
on jurisdictional grounds.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed in its name by its duly authorized officer.
Dated: March 31, 1998
WILSHIRE TECHNOLOGIES, INC.
By: /s/ Xxxx Xxx Xxxxxx
Name: Xxxx Xxx Xxxxxx
Title: President & CEO
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SUBSCRIPTION NOTICE
The undersigned, the Holder, hereby elects to exercise purchase
rights represented by such Warrant: for, and to purchase thereunder, ___________
shares of the Common Stock covered by such Warrant and herewith makes payment in
full therefor of $ ________ cash and/or by cancellation of $__________ of
indebtedness of the Company to the Holder hereof and requests that certificates
for such shares (and any securities or property deliverable upon such exercise)
be issued in the name of and delivered to ____________________________________
whose address is _____________________________________________________ .
The undersigned agrees that, in the absence of an effective
registration statement with respect to Common Stock issued upon this exercise,
the undersigned is acquiring such Common Stock for investment and not with a
view to distribution thereof and that the certificate or certificates
representing such Common Stock may bear a legend substantially as follows:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS
UNLESS THEY ARE SOLD PURSUANT TO RULE 144 PROMULGATED BY THE
SECURITIES AND EXCHANGE COMMISSION UNDER SAID ACT, THEY MAY NOT
BE SOLD OR OTHERWISE TRANSFERRED IN ABSENCE OF SUCH REGISTRATION
AND QUALIFICATION WITHOUT AN OPINION OF COUNSEL FOR THE HOLDER,
REASONABLY SATISFACTORY TO COUNSEL FOR THE COMPANY, THAT SUCH
REGISTRATION AND QUALIFICATION ARE NOT REQUIRED.
Dated:
---------------------
Signature guaranteed:
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________ the rights represented by the
foregoing Warrant of _______________________ and appoints ____________________
attorney to transfer said rights on the books of said corporation, with full
power of substitution in the premises.
Dated:
---------------------
Signature guaranteed:
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 whatsoever.
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FORM OF NOTICE OF CONVERSION
Pursuant to Section 2 of the Warrant to purchase shares of Common
Stock of Wilshire Technologies, Inc. (the "Company"), at an exercise price of $
________ per share, Trilon Dominion Partners, L.L.C. (the "Holder") hereby gives
notice of its desire to convert such Warrant into shares of Common Stock of the
Company in accordance with the terms set forth below:
1. The total number of shares of Common Stock to be purchased
by the Holder pursuant to the conversion is ____________
_______________________________ .
2. The closing of such purchase shall take place on
(a date not less than two nor more than seven business
days from the date of this Conversion Notice) at _______
___________________________________ .
TRILON DOMINION PARTNERS, L.L.C.
By: VC Holdings, Inc. its Managing
Member
Dated: By:
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