THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY APPLICABLE
STATE SECURITIES LAWS, HAVE BEEN TAKEN FOR INVESTMENT AND NOT WITH A VIEW TO, OR
IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF, AND MAY NOT BE SOLD OR
TRANSFERRED OR OFFERED FOR SALE OR TRANSFER UNLESS A REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND OTHER APPLICABLE SECURITIES LAWS WITH RESPECT TO
SUCH SECURITIES IS THEN IN EFFECT, OR IN THE OPINION OF COUNSEL (WHICH OPINION
IS REASONABLY SATISFACTORY TO THE ISSUER OF THESE SECURITIES), SUCH REGISTRATION
UNDER THE SECURITIES ACT AND OTHER APPLICABLE SECURITIES LAWS IS NOT REQUIRED.
Date: ______________, 2005 Warrant to Purchase
___________Shares
NUVIM, INC.
(Incorporated under the laws of the State of Delaware)
WARRANT FOR THE PURCHASE OF SHARES OF
COMMON STOCK OF NUVIM, INC.
Warrant Price: $0.40 per share, subject to adjustment as provided below.
THIS IS TO CERTIFY that, for value received, _____________________ and its
registered assigns (collectively, the "Holder"), is entitled to purchase,
subject to the terms and conditions hereinafter set forth, up to __________
shares of the $0.0001 par value common stock ("Common Stock") of NuVim, Inc., a
Delaware corporation (the "Company"), and to receive certificate(s) for the
Common Stock so purchased.
1. Exercise Period and Vesting. The exercise period is the period
beginning on _____________, 2005 (the "Issuance Date") and ending at 5:00 p.m.,
Eastern time, on _____________, 2008 (the "Exercise Period"). This Warrant will
terminate automatically and immediately upon (a) the expiration of the Exercise
Period or (b) a Change of Control. For purposes of this Section 1, a "Change of
Control" shall mean (i) any consolidation or merger involving the Company
pursuant to which the Company's stockholders own less than fifty percent (50%)
of the voting securities of the surviving entity or (ii) the sale of all or
substantially all of the assets of the Company.
2. Exercise of Warrant. This Warrant may be exercised, in whole or in
part, at any time and from time to time during the Exercise Period. Such
exercise shall be accomplished by tender to the Company of the purchase price
set forth above as the warrant price (the "Warrant Price"), in cash, by wire
transfer or by certified check or bank cashier's check, payable to the order of
the Company, together with presentation and surrender to the Company of this
Warrant with an executed subscription in substantially the form attached hereto
as Exhibit A (the "Subscription"). Upon receipt of the foregoing, the Company
will deliver to the Holder, as promptly as possible, a certificate or
certificates representing the shares of Common Stock so purchased, registered in
the name of the Holder or its transferee (as permitted under Section 4 below).
With respect to any exercise of this Warrant, the Holder will for all purposes
be deemed to have become the holder of record of the number of shares of Common
Stock purchased hereunder on the date this Warrant, a properly executed
Subscription and payment of the Warrant Price is received by the Company (the
"Exercise Date"), irrespective of the date of delivery of the certificate
evidencing such shares, except that, if the date of such receipt is a date on
which the stock transfer books of the Company are closed, such person will be
deemed to have become the holder of such shares at the close of business on the
next succeeding date on which the stock transfer books are open. Fractional
shares of Common Stock will not be issued upon the exercise of this Warrant. In
lieu of any fractional shares that would have been issued but for the
immediately preceding sentence, the Holder will be entitled to receive cash
equal to the current market price of such fraction of a share of Common Stock on
the trading day immediately preceding the Exercise Date. In the event this
Warrant is exercised in part, the Company shall issue a new Warrant to the
Holder covering the aggregate number of shares of Common Stock as to which this
Warrant remains exercisable for that is otherwise identical with this Warrant.
The Company acknowledges and agrees that this Warrant was issued on the Issuance
Date.
3. Compliance with Act. The holder of this Warrant, by acceptance hereof,
agrees that this Warrant, and the Common Stock to be issued upon exercise hereof
are being acquired for investment and that such holder will not offer, sell or
otherwise dispose of this Warrant, or any Common Stock except under
circumstances which will not result in a violation of the Securities Act or any
applicable state securities laws. Upon exercise of this Warrant, unless the
Common Stock being acquired are registered under the Securities Act and any
applicable state securities laws or an exemption from such registration is
available, the holder hereof shall confirm in writing that the Common Stock so
purchased are being acquired for investment and not with a view toward
distribution or resale in violation of the Securities Act and shall confirm such
other matters related thereto as may be reasonably requested by the Company.
This Warrant and all Common Stock issued upon exercise of this Warrant (unless
registered under the Securities Act and any applicable state securities laws)
shall be stamped or imprinted with a legend in substantially the following form:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAWS, HAVE BEEN TAKEN FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION
THEREOF, AND MAY NOT BE SOLD OR TRANSFERRED OR OFFERED FOR SALE
OR TRANSFER UNLESS A REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND OTHER APPLICABLE SECURITIES LAWS WITH RESPECT TO SUCH
SECURITIES IS THEN IN EFFECT, OR IN THE OPINION OF COUNSEL
(WHICH OPINION IS REASONABLY SATISFACTORY TO THE ISSUER OF THESE
SECURITIES), SUCH REGISTRATION UNDER THE SECURITIES ACT AND
OTHER APPLICABLE SECURITIES LAWS IS NOT REQUIRED.
-2-
Said legend shall be removed by the Company, upon the request of a holder,
at such time as the restrictions on the transfer of the applicable security
shall have terminated.
4. TRANSFERABILITY.
(a) This Warrant, and the Common Stock issuable upon the exercise
hereof, may not be sold, transferred, pledged or hypothecated unless the Company
shall have been provided with written notice of the sale or other distribution
describing briefly the manner thereof, together with an opinion of counsel, or
other evidence, reasonably satisfactory to it, that such transfer is not in
violation of the Securities Act, and any applicable state securities laws or
unless such transfer shall have been registered under the Securities Act of
1933, as amended. Subject to the satisfaction of the aforesaid condition, this
Warrant and the underlying shares of Common Stock shall be transferable from
time to time by the Holder upon written notice to the Company. Promptly upon
receiving such written notice and reasonably satisfactory opinion or other
evidence, if so requested, the Company, as promptly as practicable but no later
than fifteen (15) days after receipt of the written notice, shall notify such
holder that such holder may sell or otherwise dispose of this Warrant or such
Common Stock, all in accordance with the terms of the notice delivered to the
Company. If a determination has been made pursuant to this Section 4(a) that the
opinion of counsel for the holder or other evidence is not reasonably
satisfactory to the Company, the Company shall so notify the holder promptly
with details thereof after such determination has been made. Notwithstanding the
foregoing, this Warrant or such Common Stock may, as to such federal laws, be
offered, sold or otherwise disposed of in accordance with Rule 144 or 144A under
the Securities Act, provided that the Company shall have been furnished with
such information as the Company may reasonably request to provide a reasonable
assurance that the provisions of Rule 144 or 144A have been satisfied. Each
certificate representing this Warrant or the Common Stock thus transferred
(except a transfer pursuant to Rule 144 or 144A) shall bear a legend as to the
applicable restrictions on transferability in order to ensure compliance with
such laws, unless in the aforesaid opinion of counsel for the holder, such
legend is not required in order to ensure compliance with such laws. The Company
may issue stop transfer instructions to its transfer agent in connection with
such restrictions.
(b) If this Warrant is transferred, in whole or in part, the Company
shall, upon surrender of this Warrant to the Company, deliver to each transferee
a Warrant evidencing the rights of such transferee to purchase the number of
shares of Common Stock that such transferee is entitled to purchase pursuant to
such transfer. The Company may place a legend similar to the legend at the top
of this Warrant on any replacement Warrant and, on each certificate representing
shares issuable upon exercise of this Warrant or any replacement Warrants. Only
a registered Holder may enforce the provisions of this Warrant against the
Company. A transferee of the original registered Holder becomes a registered
Holder only upon delivery to the Company of the original Warrant and an original
Assignment, substantially in the form set forth in Exhibit B attached hereto.
(c) This Warrant is exchangeable upon its surrender by the Holder to
the Company for new Warrants of like tenor and date representing in the
aggregate the right to purchase the number of shares purchasable hereunder, each
of such new Warrants to represent the right to purchase such number of shares as
may be designated by the Holder at the time of such surrender.
-3-
5. ADJUSTMENTS TO WARRANT PRICE AND NUMBER OF SHARES SUBJECT TO WARRANT.
The Warrant Price and the number of shares of Common Stock purchasable upon the
exercise of this Warrant are subject to adjustment from time to time upon the
occurrence of any of the events specified in this Section5.
(a) In case the Company shall (i) pay a dividend or make a
distribution in shares of Common Stock or other securities, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares, (iii)
combine its outstanding shares of Common Stock into a smaller number of shares,
or (iv) issue by reclassification of its shares of Common Stock other securities
of the Company, then the Warrant Price in effect at the time of the record date
for such dividend or on the effective date of such subdivision, combination or
reclassification, and/or the number and kind of securities issuable on such
date, shall be proportionately adjusted so that the Holder of any Warrant
thereafter exercised shall be entitled to receive the aggregate number and kind
of shares of Common Stock (or such other securities other than Common Stock) of
the Company, at the same aggregate Warrant Price, that, if such Warrant had been
exercised immediately prior to such date, the Holder would have owned upon such
exercise and been entitled to receive by virtue of such dividend, distribution,
subdivision, combination or reclassification. Such adjustment shall be made
successively whenever any event listed above shall occur.
(b) Notwithstanding any provision herein to the contrary, no
adjustment in the Warrant Price shall be required unless such adjustment would
require an increase or decrease of at least one-percent (1%) in the Warrant
Price; provided, however, that any adjustments which by reason of this
subsection (d) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Section 5
shall be made to the nearest cent or the nearest one-hundredth of a share, as
the case may be.
(c) In the event that at any time, as a result of an adjustment made
pursuant to subsection (a) above, the Holder of any Warrant thereafter exercised
shall become entitled to receive any shares of capital stock of the Company
other than shares of Common Stock or any other securities or assets, thereafter
the number of such other shares or other securities or assets so receivable upon
exercise of any Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the shares of Common Stock contained in this Section 5, and the other
provisions of this Warrant shall apply on like terms to any such other shares or
other securities or assets.
(d) In addition to the adjustments in the Warrant Price contemplated
otherwise in this Section 5, in the event of an "event of default" as defined in
that certain Bridge Loan Note executed by the Company to represent the
obligation owed by it to the Bridge Note Lender (which is the original holder of
this Warrant), the Warrant Price shall be adjusted on all of the Warrants (both
the originally-issued Warrant and the additional warrant issued pursuant to this
Section 5(d)) from forty cents ($0.40) to thirty-seven and one-half cents
($0.375). In the event that the conditions giving rise to the reduction in the
Warrant Price pursuant to this Section 5(d) are fulfilled, in addition, the
Company has agreed to issue an additional warrant, identical to this Warrant,
entitling the holder to purchase an additional number of shares equal to fifty
percent (50%) of the number of shares issuable upon exercise of this Warrant on
the date of its original issuance.
-4-
6. RESERVATION OF SHARES. The Company agrees at all times to reserve and
hold available out of its authorized but unissued shares of Common Stock a
sufficient number of shares of Common Stock to provide for the exercise of the
purchase rights provided herein. The Company further covenants and agrees that
all shares of Common Stock that may be delivered upon the exercise of this
Warrant will, upon delivery, be fully paid and nonassessable and free from all
taxes, liens and charges with respect to the purchase thereof hereunder.
7. REGISTRATION RIGHTS. The Company has agreed that it will include the
shares issuable upon exercise of these Warrants (including any additional
Warrant issued pursuant to Section 5(d)) on a registration statement that it
will use its best efforts to file within one hundred twenty (120) days after the
final closing of any subsequent debt or equity financing raising gross proceeds
of at least one million dollars ($1,000,000).
8. NOTICES TO HOLDER. Upon any adjustment of the Warrant Price (or number
of shares of Common Stock purchasable upon the exercise of this Warrant)
pursuant to Section 5, the Company shall promptly thereafter cause to be given
to the Holder written notice of such adjustment. Such notice shall include the
Warrant Price (and/or the number of shares of Common Stock purchasable upon the
exercise of this Warrant) after such adjustment, and shall set forth in
reasonable detail the Company's method of calculation and the facts upon which
such calculations were based. Where appropriate, such notice shall be given in
advance and included as a part of any notice required to be given under the
other provisions of this Section 7.
In the event of (a) any fixing by the Company of a record date with
respect to the holders of any class of securities of the Company for the purpose
of determining which of such holders are entitled to dividends or other
distributions, or any rights to subscribe for, purchase or otherwise acquire any
shares of capital stock of any class or any other securities or property, or to
receive any other right, (b) any capital reorganization of the Company, or
reclassification or recapitalization of the capital stock of the Company or any
transfer of all or substantially all of the assets or business of the Company
to, or consolidation or merger of the Company with or into, any other entity or
person, or (c) any voluntary or involuntary dissolution or winding up of the
Company, then and in each such event the Company will give the Holder a written
notice specifying, as the case may be (i) the record date for the purpose of
such dividend, distribution, or right, and stating the amount and character of
such dividend, distribution, or right; or (ii) the date on which any such
reorganization, reclassification, recapitalization, transfer, 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 capital stock or securities receivable upon the exercise of this
Warrant) shall be entitled to exchange their shares of Common Stock (or such
other stock securities) for securities or other property deliverable upon such
event. Any such notice shall be given at least 10 days prior to the earliest
date therein specified.
9. NO RIGHTS AS A STOCKHOLDER. This Warrant does not entitle the Holder to
any voting rights or other rights as a stockholder of the Company, nor to any
other rights whatsoever except the rights herein set forth.
-5-
10. ADDITIONAL COVENANTS OF THE COMPANY. The Company shall comply with the
reporting requirements of Sections 13 and 15(d) of the Securities Exchange Act
of 1934, as amended, for so long as and to the extent that such requirements
apply to the Company.
The Company shall not, by amendment of its Certificate of Incorporation or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities, or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms of this
Warrant. Without limitation of the generality of the foregoing, the Company (a)
will at all times reserve and keep available, solely for issuance and delivery
upon exercise of this Warrant, shares of Common Stock issuable from time to time
upon exercise of this Warrant, (b) will not increase the par value of any shares
of capital stock receivable upon exercise of this Warrant above the amount
payable therefor upon such exercise, and (c) will take all such actions as may
be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable stock.
11. REPRESENTATION AND COVENANTS OF HOLDER. Holder represents and
covenants to the Company as follows:
(a) This Warrant and the Common Stock issuable upon exercise of this
Warrant will be acquired for investment for Holder's own account, and not as a
nominee or agent and not with a view to the distribution of any part thereof.
Holder further represents that it does not have any contract, undertaking
agreement or arrangement with any person to sell, transfer or grant
participations to such person, or to any third person, with respect to this
Warrant. Upon exercise of this Warrant, the Holder shall, if so requested by the
Company, confirm in writing, in a form satisfactory to the Company, that the
Common Stock issuable upon exercise of this Warrant are being acquired for
investment purposes and not with a view toward distribution or resale, other
than in compliance with applicable securities laws, including the Securities
Act.
(b) Holder understands (i) that the Warrant and the Common Stock
issuable upon exercise of this Warrant are not registered under the Securities
Act, or qualified under applicable state securities laws on the ground that the
issuance of this Warrant will be exempt from the registration and qualifications
requirements thereof; (ii) that the Company's reliance on such exemption is
predicated on the representations set forth in this Section 10; and (iii) that
the Warrant and the Common Stock issuable upon exercise of this must be held by
the Holder indefinitely, and that the Holder must therefore bear the economic
risk of such investment indefinitely, unless a subsequent disposition thereof is
registered under the Securities Act or is exempted from such registration.
(c) Holder represents and warrants that Holder is familiar with the
provisions of Rule 144 promulgated under the Securities Act which, in substance,
permits limited public resale of "restricted securities" acquired, directly or
indirectly, from the issuer thereof (or from an affiliate of such issuer) in a
non-public offering subject to the satisfaction of certain conditions,
including, among other things: (i) the availability of certain public
information about the Company; (ii) the resale occurring not less than one year
after the party has purchased, and made full payment for, within the meaning of
Rule 144, the securities to be sold; and (iii) in the case of an affiliate, or
of a non-affiliate who has held the securities less than two years, the sale
being made through a broker in an unsolicited "broker's transaction" or in
transactions directly with a market maker (as such term as defined under the
Securities Exchange Act of 1934, as amended) and the amount of securities being
sold during any three month period not exceeding the specified limitations
stated therein, if applicable. Holder acknowledges that in the event the
applicable requirements of Rule 144 are not met, registration under the
Securities Act or compliance with another exemption from registration will be
required for any disposition of the Common Stock issuable upon exercise of this
Warrant.
-6-
(d) Holder has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of its
investment, and has the ability to bear the economic risks of its investment.
(e) Holder has received and reviewed this Warrant; it, its attorney
and its accountant have had access to, and an opportunity to review all
documents and other materials requested of the Company; it and they have been
given an opportunity to ask any and all questions of and receive answers from,
the Company concerning the terms and conditions of this Warrant and to evaluate
the suitability of an investment in this Warrant; and, in evaluating the
suitability of an investment in this Warrant; it and they have not relied upon
any representations or other information (whether oral or written) other than as
set forth herein.
(f) Holder hereby agrees that, in connection with a public offering
of the Company's securities, during the period of duration specified by the
Company and an underwriter of Common Stock or other securities of the Company,
following the effective date of a registration statement of the Company filed
under the Securities Act, it shall not, to the extent requested by the Company
and such underwriter, directly or indirectly sell, offer to sell, contract to
sell (including, without limitation, any short sale), grant any option to
purchase or otherwise transfer or dispose of (other than to donees who agree to
be similarly bound) any securities of the Company held by it at any time during
such period except common stock included in such registration; provided,
however, that:
(a) all officers and directors of the Company enter into
similar agreements; and
(b) such market stand-off time period shall not exceed one
hundred eighty (180) days.
Holder agrees to provide to the other underwriters of any public offering
such further agreements as such underwriter may reasonably request in connection
with this market stand-off agreement, provided that the terms of such agreements
are substantially consistent with the provisions of this Section 10(f). In order
to enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the shares underlying this Warrant until the end of
such period.
Notwithstanding the foregoing, the obligations described in this Section
10(f) shall not apply to a registration relating solely to employee benefit
plans on Form S-8 or similar forms which may be promulgated in the future, or a
registration relating solely to an SEC Rule 145 transaction.
-7-
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the Company, the Holder and their respective successors and
permitted assigns.
13. NOTICES. The Company agrees to maintain a ledger of the ownership of
this Warrant (the "Ledger"). Any notice hereunder shall be given by personal
delivery (including by courier, by facsimile on a business day, receipt of which
is confirmed or by registered or certified mail: if to the Company, at its
principal executive office and, if to the Holder, to its address shown in the
Ledger of the Company; provided, however, that the Holder may at any time on
three (3) days written notice to the Company designate or substitute another
address where notice is to be given. Notice shall be deemed given and received
when delivered in person or by courier, when sent by facsimile on a business day
if the sender obtains a confirmation of such transmission or three business days
after a certified or registered letter, properly addressed with postage prepaid,
is deposited in the U.S. mail.
14. SEVERABILITY. Every provision of this Warrant is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the remainder of this
Warrant.
15. GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to the
principles of choice of laws thereof.
16. ATTORNEYS' FEES; REMEDIES. In any action or proceeding brought to
enforce any provision of this Warrant, the prevailing party shall be entitled to
recover reasonable attorneys' fees in addition to its costs and expenses and any
other available remedy.
17. ENTIRE AGREEMENT. This Warrant (including the Exhibits attached
hereto) constitutes the entire understanding between the Company and the Holder
with respect to the subject matter hereof, and supersedes all prior
negotiations, discussions, agreements and understandings relating to such
subject matter.
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-8-
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officer as of the date first set forth above.
NUVIM, INC.
By:
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
ACCEPTED
----------------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
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-9-
EXHIBIT A
SUBSCRIPTION FORM
(To be Executed by the Holder to Exercise the Rights To Purchase Common Stock
Evidenced by the Within Warrant)
The undersigned hereby irrevocably subscribes for _________ shares (the
"Stock") of the Common Stock of NuVim, Inc. (the "Company") pursuant to and in
accordance with the terms and conditions of the attached Warrant (the
"Warrant"), and hereby makes payment of $____________ therefor by tendering
cash, wire transferring or delivering a certified check or bank cashier's check,
payable to the order of the Company. The undersigned requests that a certificate
for the Stock be issued in the name of the undersigned and be delivered to the
undersigned at the address stated below. If the Stock is not all of the shares
purchasable pursuant to the Warrant, the undersigned requests that a new Warrant
of like tenor for the balance of the remaining shares purchasable thereunder be
delivered to the undersigned at the address stated below.
In connection with the issuance of the Stock, I hereby represent to the
Company that I am acquiring the Stock for my own account for investment and not
with a view to, or for resale in connection with, a distribution of the shares
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act").
I understand that if, at the time of exercise, the Stock has not been
registered under the Securities Act, I must hold such Stock indefinitely unless
the Stock is subsequently registered and qualified under the Securities Act or
is exempt from such registration and qualification. I shall make no transfer or
disposition of the Stock unless (a) such transfer or disposition can be made
without registration under the Securities Act by reason of a specific exemption
from such registration and such qualification, or (b) a registration statement
has been filed pursuant to the Securities Act and has been declared effective
with respect to such disposition. I agree that each certificate representing the
Stock delivered to me shall bear substantially the same legend as set forth on
the front page of the Warrant.
I further agree that the Company may place stop orders on the certificates
evidencing the Stock with the transfer agent, if any, to the same effect as the
above legend. The legend and stop transfer notice referred to above shall be
removed only upon my furnishing to the Company of an opinion of counsel
(reasonably satisfactory to the Company) to the effect that such legend may be
removed.
Date: Signed:
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Address:
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Exhibit B
ASSIGNMENT
(To be Executed by the Holder to Effect Transfer of the Attached Warrant)
For Value Received _____________ hereby sells, assigns and transfers to
_____________ the Warrant attached hereto and the rights represented thereby to
purchase ____________ shares of Common Stock in accordance with the terms and
conditions hereof, and does hereby irrevocably constitute and appoint
___________ as attorney to transfer such Warrant on the books of the Company
with full power of substitution.
Dated: Signed:
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Please print or typewrite name and Please insert Social Security or other
address of assignee: Tax Identification Number of Assignee:
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