EXHIBIT 4(k)
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT
TO THE WARRANT UNDER SUCH ACT AND APPLICABLE LAWS OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS.
Warrant No. 1 Warrant to Purchase 100,000 Shares
Common Stock (subject to adjustment)
WARRANT TO PURCHASE COMMON STOCK
OF
CLINICOR, INC.
VOID AFTER NOVEMBER 25, 2002
This certifies that, for value received, The Xxxxxxxx-Xxxxxxxx Company,
LLC, or registered assigns ("Holder") is entitled, subject to the terms set
forth below, to purchase from CLINICOR, INC. (the "Company"), a Nevada
corporation, 100,000 shares of the Common Stock of the Company, as constituted
on the date hereof (the "Warrant Issue Date"), upon surrender hereof, at the
principal office of the Company referred to below, with the subscription form
attached hereto duly executed, and simultaneous payment therefor in lawful money
of the United States or otherwise as hereinafter provided, at the Exercise Price
as set forth in Section 2 below. The number, character and Exercise Price of
such shares of Common Stock are subject to adjustment as provided below.
1. Term of Warrant. Subject to the terms and conditions set forth
herein, this Warrant shall be exercisable, in whole or in part, during the term
commencing on the Warrant Issue Date and ending at 5:00 p.m. Central standard
time, on November 25, 2002, and shall be void thereafter.
2. Exercise Price. The Exercise Price at which this Warrant may be
exercised shall be $5.50 per share of Common Stock, as adjusted from time to
time pursuant to Section 11 hereof.
3. Exercise of Warrant.
(a) The purchase rights represented by this Warrant are exercisable by
Holder in whole or in part, at any time, or from time to time, during the term
hereof as described in Section 1 above, by the surrender of this Warrant and the
Notice of Exercise annexed hereto duly completed and executed on behalf of
Holder, at the office of the Company (or such other office or agency of the
Company as it may designate by notice in writing to Holder),
together with payment, by certified or official bank check, of the Exercise
Price multiplied by the number of shares being purchased upon exercise.
(b) This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the payment of all taxes, if any, required to be paid by
Holder prior to the issuance of shares upon exercise, and the person entitled to
receive the shares of Common Stock issuable upon such exercise shall be treated
for all purposes as the holder of record of such shares as of the close of
business on such date. As promptly as practicable on or after such date and in
any event within ten (10) days thereafter, the Company at its expense shall
issue and deliver to the person or persons entitled to receive the same a
certificate or certificates for the number of full shares issuable upon such
exercise. In the event that this Warrant is exercised in part, the Company at
its expense will execute and deliver a new Warrant of like tenor exercisable for
the number of shares for which this Warrant may then be exercised.
4. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise be
entitled, the Company shall make a cash payment equal to the Exercise Price
multiplied by such fraction, unless a different cash payment is required to be
made pursuant to Section 78.205 of the Nevada Revised Statutes.
5. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and substance to the Company
or, in the case of mutilation, on surrender and cancellation of this Warrant,
the Company at its expense shall execute and deliver, in lieu of this Warrant, a
new warrant of like tenor and amount.
6. Rights of Shareholders. This Warrant does not confer upon Holder any
right to vote or to consent or to receive notice as a shareholder, as such, in
respect of any matters whatsoever, nor shall anything contained herein be
construed to confer upon Holder, as such, any other rights or liabilities of a
shareholder of the Company until the Warrant shall have been exercised as
provided herein.
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7. Transfer of Warrant.
(a) Warrant Register. The Company will maintain a register (the
"Warrant Register") for the registration and registration of transfer of the
Warrant at its principal office or at such other office as it may designate in
writing or agency as it may designate pursuant to Section 7(b) below. Until
this Warrant is transferred on the Warrant Register of the Company, the Company
may treat the holder as shown on the Warrant Register as the absolute owner of
this Warrant for all purposes, notwithstanding any notice to the contrary.
(b) Warrant Agent. The Company may, by written notice to the Holder,
appoint an agent for the purpose of maintaining the Warrant Register referred to
in Section 7(a) above, issuing the Common Stock or other securities then
issuable upon the exercise of this Warrant, exchanging this Warrant, replacing
this Warrant, or any or all of the foregoing. Thereafter, any such
registration, issuance, exchange, or replacement, as the case may be, shall be
made at the office of such agent.
(c) Transferability and Nonnegotiability of Warrant. 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 of 1933, as amended (the "Act"), title to
this Warrant may be transferred by endorsement (by Holder executing the
Assignment Form annexed hereto) and delivery in the same manner as a negotiable
instrument transferable by endorsement and delivery.
(d) Exchange of Warrant Upon a Transfer. 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 Act and with the
limitations on assignments and transfers contained in this Section 7, the
Company at its expense shall issue to or on the order of Holder a new warrant or
warrants of like tenor, in the name of Holder or as the Holder (on payment by
Holder of any applicable transfer taxes) may direct, for the number of shares
issuable upon exercise hereof.
(e) Compliance with Securities Laws.
(i) The Holder of this Warrant, by acceptance hereof,
acknowledges that this Warrant and the shares of Common Stock to be issued upon
exercise hereof are being acquired solely
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for Holder's own account and not as a nominee for any other party, and for
investment, and that Holder will not offer, sell or otherwise dispose of this
Warrant or any shares of Common Stock to be issued upon exercise hereof except
under circumstances that will not result in a violation of the Act or any state
securities law. Upon exercise of this Warrant, Holder shall, if requested by
the Company, confirm in writing, in a form satisfactory to the Company, that the
shares of Common Stock so purchased are being acquired solely for Holder's own
account and not as a nominee for any other party, for investment, and not with a
view toward distribution or resale.
(ii) Each Warrant shall bear a legend substantially in the
form set forth on the face hereof and all shares of Common Stock issued upon
exercise hereof shall be stamped or imprinted with a legend in substantially the
following form (in addition to any legend required by state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY APPLICABLE STATE SECURITIES LAWS. SAID SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM
UNDER SAID ACT AND APPLICABLE LAWS.
8. Reservation of Stock. The Company covenants that during the term this
Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this Warrant. The Company further
covenants that all shares that may be issued upon the exercise of rights
represented by this Warrant and payment of the Exercise Price, all as set forth
herein, will be duly and validly issued and fully paid and non-assessable, and
not subject to preemptive rights.
9. Notices.
(a) Whenever the Exercise Price or number of shares purchasable
hereunder shall be adjusted pursuant to Section 11 hereof, the Company shall
issue a certificate signed by its chief financial officer setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated, and the Exercise
Price and number of shares purchasable hereunder after giving effect to such
adjustment, and shall cause a copy of such certificate to be delivered to
Holder.
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(b) In case:
(i) The Company shall take a record of the holders of its
Common Stock (or other stock or securities at the time receivable upon
the exercise of this Warrant) for the purpose of entitling them to
receive any dividend or other distribution, or
(ii) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any
consolidation or merger of the Company with or into another
corporation, or any conveyance of all or substantially all of the
assets of the Company to another corporation, or
(iii) of any voluntary dissolution, liquidation or winding-up of
the Company,
then, and in each such case, the Company will mail or cause to be mailed to
Holder or Holders a notice specifying, as the case may be, (A) the date on which
a record is to be taken for the purpose of such dividend or distribution, and
stating the amount and character of such dividend or distribution, or (B) the
date on which such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation or winding-up is to take place, and the
time, if any is to be fixed, as of which the holders of record of Common Stock
(or such stock or securities at the time receivable upon the exercise of this
Warrant) shall be entitled to exchange their shares of Common Stock (or such
other stock or securities) for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up. Such notice shall be mailed at least
fifteen (15) days prior to the date therein specified.
(c) Each such written notice shall be sufficiently given if addressed
to Holder at the last address of Holder appearing on the books of the Company
and delivered in accordance with Section 13.
10. Amendments.
(a) Any term of this Warrant may be amended or the provisions of this
Warrant waived with the written consent of the Company and Holder.
(b) No waivers of, or exceptions to, any term, condition or provision
of this Warrant, in any one or more instances, shall
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be deemed to be, or construed as, a further or continuing waiver of any such
term, condition or provision.
11. Adjustments. The Exercise Price and the number of shares purchasable
hereunder are subject to adjustment from time to time as follows:
(a) Merger, Sale of Assets, etc. If at any time while this Warrant,
or any portion thereof, is outstanding and unexpired there shall be (i) a
reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Company with or into another corporation in which the
Company is not the surviving entity, or a reverse triangular merger in which the
Company is the surviving entity but the shares of the Company's capital stock
outstanding immediately prior to the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash, or
otherwise, or (iii) a sale or transfer of the Company's properties and assets
as, or substantially as, an entirety to any other person, then, as a part of
such reorganization, merger, consolidation, sale or transfer, lawful provision
shall be made so that the holder of this Warrant shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified herein and
upon payment of the Exercise Price then in effect, the number of shares of stock
or other securities or property of the successor corporation resulting from such
reorganization, merger, consolidation, sale or transfer that a holder of the
shares deliverable upon exercise of this Warrant would have been entitled to
receive in such reorganization, consolidation, merger, sale or transfer if this
Warrant had been exercised immediately before such reorganization, merger,
consolidation, sale or transfer, all subject to further adjustment as provided
in this Section 11. The foregoing provisions of this Section 11(a) shall
similarly apply to successive reorganizations, consolidations, mergers, sales
and transfers and to the stock or securities of any other corporation that are
at the time receivable upon the exercise of this Warrant. If the per-share
consideration payable to the holder hereof for shares in connection with any
such transaction is in a form other than cash or marketable securities, then the
value of such consideration shall be determined in good faith by the Company's
Board of Directors. In all events, appropriate adjustment (as determined in
good faith by the Company's Board of Directors) shall be made in the application
of the provisions of this Warrant with respect to the rights and interests of
Holder after the transaction, to the end that the provisions of this Warrant
shall be applicable after that event, as near as reasonably may be, in relation
to any shares or other property deliverable after that event upon exercise of
this Warrant.
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(b) Reclassification, etc. If the Company, at any time while this
Warrant, or any portion hereof, remains outstanding and unexpired, by
reclassification of securities or otherwise, shall change any of the securities
as to which purchase rights under this Warrant exist into the same or a
different number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities that were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 11.
(c) Split, Subdivision or Combination of Shares. If the Company at
any time while this Warrant, or any portion hereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which purchase
rights under this Warrant exist, into a different number of securities of the
same class, the Exercise Price for such securities shall be proportionately
decreased in the case of a split or subdivision or proportionately increased in
the case of a combination.
(d) Adjustments for Dividends in Stock or Other Securities or
Property. If while this Warrant, or any portion hereof, remains outstanding and
unexpired, the holders of the securities as to which purchase rights under this
Warrant exist at the time shall have received, or, on or after the record date
fixed for the determination of eligible stockholders, shall have become entitled
to receive, without payment therefor, other or additional stock or other
securities or property (other than cash) of the Company by way of dividend, then
and in each case, this Warrant shall represent the right to acquire, in addition
to the number of shares of the security receivable upon exercise of this
Warrant, and without payment of any additional consideration therefor, the
amount of such other or additional stock or other securities or property (other
than cash) of the Company that such holder would hold on the date of such
exercise had it been the holder of record of the security receivable upon
exercise of this Warrant on the date hereof and had thereafter, during the
period from the date hereof to and including the date of such exercise, retained
such shares and/or all other additional stock available by it as aforesaid
during such period, giving effect to all adjustments called for during such
period by the provisions of this Section 11.
(e) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 11, the Company at its
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to
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each Holder of this Warrant the certificate described in Section 9(a) above,
(f) No Impairment. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Section 11 and in
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holder of this Warrant against impairment.
12. Registration Rights. Upon exercise of this Warrant, the Holder shall
have and be entitled to exercise certain piggyback registration rights as set
forth below.
(a) Grant of Piggyback Registration Rights. If at any time or from
time to time, the Company shall determine to register any securities, either for
its own account or the account of one or more of the Company's security holders
(other than a registration statement on Form S-8 or Form S-4 or any successor
forms, or a registration on Form S-3 or any successor form for the account of
securities holders, or any registration that does not involve an underwriting)
the Company shall (i) promptly give written notice of such proposed filing and
of the proposed date thereof to the Holder, and (ii) if, on or before the
twentieth (20th) day following the date on which such notice is given, the
Company shall receive a written request from Holder requesting that the Company
include among the securities covered such registration statement some or all of
the shares of Common Stock held or to be held after exercise of the Warrant by
such Holder (the "Warrant Stock"), except as set forth in Section 12(b)(i)
below, the Company shall use its best efforts to include such Warrant Stock in
such registration statement, if filed.
(b) Terms and Conditions of Registration. Except as otherwise
provided herein, in connection with any such registration statement, the
following provisions shall apply:
(i) The right of Holder to registration pursuant to this
Section 12 shall be conditioned upon Holder's participation in the underwriting
associated with such registration and the inclusion of Holder's Warrant Stock in
the underwriting to the extent provided herein. Holder shall (together with the
Company and any other participating holders) enter into an underwriting
agreement in customary form with the managing underwriter selected by the
Company. If the managing underwriter determines that marketing factors require a
limitation of the number of shares to be underwritten, the managing underwriter
may limit the amount of
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Warrant Stock to be included in the registration and underwriting (but not the
number of securities to be sold by the Company unless the Company has otherwise
agreed) on a pro rata basis based on the total number of shares (including
Warrant Stock) proposed to be included in the registration by Holder or other
stockholders having piggyback registration rights, subject to any rights of the
holders of convertible preferred stock of the Company to have the common stock
issued upon conversion of such preferred stock included in such underwriting on
other than a pro rata basis.
If Holder disapproves of the terms of any such underwriting, Holder may
elect to withdraw therefrom by written notice to the Company and the managing
underwriters. Any securities excluded or withdrawn from such underwriting shall
be withdrawn from such registration.
(ii) All expenses in connection with the preparation and filing
of a registration statement shall be borne solely by the Company, except for any
transfer taxes payable with respect to the disposition of such Warrant Stock,
and any underwriting discounts and selling commissions applicable solely to such
sales of and any fees and disbursements of counsel for Holder, which shall be
paid by the Holder of the Warrant Stock being registered.
(iii) Holder shall cooperate fully with the Company and provide
the Company with all information reasonably requested by the Company for
inclusion in the registration statement or as necessary to comply with the
Securities Act.
(iv) The piggyback registration rights granted by this Agreement
are incidental only and nothing shall be deemed to require the Company to take
any action, including without limitation, any registration of securities, that
may give rise to such incidental rights.
(c) Standstill Agreement. Holder, if required by the Company or any
underwriter, shall agree not to sell or otherwise to transfer or dispose of, or
contract to sell or otherwise transfer or dispose of, any Warrant Stock (or
other securities) of the Company held by Holder during the period not to exceed
one hundred and eighty (180) days as requested by the managing underwriter
following the effective date of the first registration statement of the Company
filed under the Securities Act (other than any such securities included in such
registration statement), without prior written consent of the Company or such
underwriter, provided that all officers, and directors of the Company enter into
similar agreements. Such agreement shall be in writing in a form satisfactory to
the Company and such underwriter. The Company may
9
impose a stop-transfer instruction with respect to the shares (or other
securities) subject to the foregoing restriction until the end of such period.
(d) Modification and Waiver. No modification or waiver of any
provision of these registration rights provisions and no consent by Holder to
any departure therefrom by the Company shall be effective unless such
modification or waiver shall be in writing and signed by Holder or by a duly
authorized officer of Holder if Holder is an entity, and the same shall then be
effective only for the period and on the conditions and for the specific
instances and purposes specified in such writing. No notice to or demand on the
Company in any case shall entitle the Company to any other or future notice or
demand in similar or other circumstances.
(e) Stamp or Other Tax. Should any stamp or excise tax become payable
in respect of this Agreement, or any modification hereof, the Company shall pay
the same (including interest and penalties, if any) and shall hold Holder
harmless with respect thereto.
(f) Termination of Registration Rights. The registration rights
granted hereunder will expire as to each Holder the earlier of (i) November 25,
2002 or (ii) upon such date as such Holder may sell all shares of Warrant Stock
owned by such Holder within a three (3) month period pursuant to Rule 144
promulgated under the Securities Act.
13. Miscellaneous.
(a) Notice Generally. All notices, requests, demands or other
communications provided for herein shall be in writing and shall be deemed to
have been given three (3) days after being sent by registered or certified mail,
return receipt requested, or when personally delivered, or successfully sent by
facsimile transmission as evidenced by a fax machine confirmation report
thereof, addressed, as the case may be, to the Holder at The Xxxxxxxx-Xxxxxxxx
Company, LLC, Atlanta Financial Center, 0000 Xxxxxxxxx Xx., X.X., Xxxxxxx,
Xxxxxxx 00000, Facsimile No. 000-000-0000 with a copy to _____________________
Facsimile No. _____________, or as may otherwise be reflected for the Holder on
the books of the Company; or to the Company at Clinicor, Inc., 0000 Xxxx Xxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 Attention: Xxxxxx Xxxxxx, Facsimile No.
(000) 000-0000; with a copy to Graves, Dougherty, Xxxxxx & Xxxxx, 000 Xxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, Attention: Xxxxx Xxxxxxxxxx, Esq., Facsimile
No. (000) 000-0000, or to such other person or address as either party shall
designate to the other from time to time in writing forwarded in like manner.
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(b) Successors and Assigns. Subject to compliance with the provisions
of Section 7, this Warrant and the rights evidenced hereby shall inure to the
benefit of and be binding upon the successors of the Company and the successors
and assigns of Holder. The provisions of this Warrant are intended to be for the
benefit of all Holders from time to time of this Warrant, and shall be
enforceable by any such Holder.
(c) Severability. Wherever possible, each provision of this Warrant
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be modified to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Warrant.
(d) Headings. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.
(e) Governing Law. This Warrant and the transactions contemplate
hereby shall be deemed to be consummated in the State of Nevada and shall be
governed by and interpreted in accordance with the local laws of the State of
Nevada without regard to the provisions thereof relating to conflict of laws.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its officers thereunto duly authorized.
Dated: November 25, 1997
CLINICOR, INC.
By /s/ XXXXX X. XXXXX, XX.
---------------------------
Its VP Finance, Treasurer & CFO
---------------------------
ACCEPTED AND AGREED:
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
By /s/ XXXXXXX X. XXXXXXX
---------------------------------
Its Managing Director
--------------------------------
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EXHIBIT A
NOTICE OF EXERCISE
[To be executed only upon exercise of Warrant]
The undersigned registered owner of this Warrant irrevocably exercises this
Warrant for the purchase of shares of Common Stock of Clinicor, Inc., and
herewith makes payment therefor, all at the price and on the terms and
conditions specified in this Warrant and requests that certificates for the
shares of Common Stock hereby purchased (and any securities or other-property
issuable upon such exercise) be issued in the name of and delivered to the
undersigned and, if such shares of Common Stock shall not include all of the
shares of Common Stock issuable as provided in this Warrant, that a new Warrant
of like tenor and date for the balance of the shares of Common Stock issuable
hereunder be delivered to the undersigned.
-----------------------------------
(Name of Registered Owner)
-----------------------------------
(Signature of Registered Owner)
-----------------------------------
(Street Address)
-----------------------------------
(State) (Zip Code)
NOTICE: The signature on this subscription must correspond with the name as
written upon the face of the Warrant in every particular, without
alteration or enlargement or any change whatsoever.
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under this Warrant, with respect to the number of shares of
Common Stock set forth below:
Name and Address of Assignee: _________________________
_________________________
_________________________
_________________________
No. of Shares of Common Stock: _________________________
and does hereby irrevocably constitute and appoint _____________
attorney-in-fact to register such transfer on the books of CLINICOR, INC.,
maintained for the purpose, with full power of substitution in the premises.
Dated: ______________________________
Print Name: ______________________________
Signature: ______________________________
Witness: ______________________________
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the Warrant in every particular, without alteration or
enlargement or any change whatsoever.
