Warrant To Purchase Stock - Ciphergen Biosystems Inc. and SG Cowen Securities Corp.
THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS WARRANT HAS NOT BEEN
QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA
AND THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF
THE CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS
THE SALE OF SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100, 25102
OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO
THIS WARRANT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING
OBTAINED, UNLESS THE SALE IS SO EXEMPT.
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT
TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES
LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE
AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS
INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES
MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE
WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
WARRANT TO PURCHASE SERIES E CONVERTIBLE PREFERRED STOCK
OF
CIPHERGEN BIOSYSTEMS, INC.
VOID AFTER FEBRUARY 28, 2005
This certifies that, for value received, SG Cowen Securities
Corporation or its permitted registered assigns ("REGISTERED HOLDER"), is
entitled, subject to the terms and conditions of this Warrant, at any time
before 5:00 p.m. Pacific Time on February 28, 2005, unless terminated earlier
under Section 11 hereof (the "EXPIRATION DATE") to purchase from Ciphergen
Biosystems, Inc., a California corporation (the "COMPANY"), up to One Hundred
Forty Six Thousand Six Hundred Thirty Five (146,635) shares of the Company's
Series E Convertible Preferred Stock, no par value per share (the "WARRANT
STOCK"), as constituted on March 8, 2000 (the "ISSUE DATE"), at the price of
Two Dollars Seventy Five cents ($2.75) per share (the "PURCHASE PRICE") upon
surrender of this Warrant at the principal office of the Company, together
with a duly executed subscription in the form attached hereto as EXHIBIT 1
and simultaneous payment of the full Purchase Price therefor in lawful money
of the United States as provided herein. The Purchase Price and the number
and character of shares of Warrant Stock purchasable hereunder are subject to
adjustment as provided herein. Unless the context otherwise requires, the
term "Warrant Stock" shall mean and include the stock and other securities
and property at any time receivable
<PAGE>
or issuable upon exercise of this Warrant. The term "Warrant" as used herein,
shall include this Warrant and any warrants delivered in substitution or
exchange therefor as provided herein.
1. EXERCISE.
1.1 METHOD OF EXERCISE. Subject to the terms and
conditions of this Warrant, the Registered Holder may exercise this Warrant
in whole or in part, at any time or from time to time, on any business day
prior to the Expiration Date by surrendering this Warrant at the principal
executive office of the Company, together with the subscription form attached
hereto duly executed by the Registered Holder and payment in full of the
Purchase Price or adjusted Purchase Price therefor, if applicable (as
determined in accordance with the terms hereof) for the number of shares of
Warrant Stock to be purchased upon such exercise of this Warrant.
1.2 FORM OF PAYMENT. Payment may be made by (i) a
check payable to the Company's order, (ii) wire transfer of funds to the
Company, (iii) cancellation of indebtedness of the Company to the Holder, or
(iv) any combination of the foregoing.
1.3 PARTIAL EXERCISE. Upon a partial exercise of
this Warrant: (i) the Purchase Amount immediately prior to such exercise
shall be reduced by the aggregate amount paid to the Company upon such
exercise of this Warrant, and (ii) this Warrant shall be surrendered by the
Registered Holder and replaced with a new Warrant of like tenor for purchase
of the number of remaining shares of Warrant Stock not previously purchased
shall be issued by the Company to the Registered Holder.
1.4 NO FRACTIONAL SHARES. No fractional shares may
be issued upon any exercise of this Warrant, and any fractions shall be
rounded down to the nearest whole number of shares. If upon any exercise of
this Warrant a fraction of a share results, the Company will pay the cash
value of any such fractional share, calculated on the basis of the Warrant
Price.
1.5 RESTRICTIONS ON EXERCISE. This Warrant may not
be exercised if the issuance of the Warrant Stock upon such exercise would
constitute a violation of any applicable federal or state securities laws or
other laws or regulations. As a condition to the exercise of this Warrant,
the Registered Holder shall execute the subscription form attached hereto.
1.6 NET EXERCISE ELECTION. The Registered Holder may
elect to convert all or a portion of this Warrant, without the payment by the
Registered Holder of any additional consideration, by the surrender of this
Warrant or such portion to the Company, with the net exercise election
selected in the subscription form attached hereto duly executed by the
Holder, into up to the number of shares of Warrant Stock that is obtained
under the following formula:
X = Y (A-B)
-------
A
2
<PAGE>
where X = the number of shares of Warrant Stock to be issued
to the Registered Holder pursuant to this Section 1.6.
Y = the Maximum Purchase Amount divided by the Warrant
Price.
A = the fair market value of one share of Warrant Stock, as
determined in good faith by the Company's Board of
Directors, as at the time the net exercise election is made
pursuant to this Section 1.6.
B = the Warrant Price.
The Company will promptly respond in writing to an inquiry
by the Registered Holder as to the then current fair market value of one
share of Warrant Stock.
2. VALID ISSUANCE. All shares of Warrant Stock issued upon
the exercise of this Warrant shall be validly issued, fully paid and
non-assessable. The Company shall not be required to pay any tax or other
charge imposed in connection with any transfer involved in the issue of any
certificate for shares of Warrant Stock, or any Common Stock or other
securities issuable upon conversion of such Warrant Stock ("CONVERSION
STOCK"), in any name other than that of the Registered Holder of this
Warrant, and in such case the Company shall not be required to issue or
deliver any stock certificate or security until such tax or other charge has
been paid, or it has been established to the Company's satisfaction that no
tax or other charge is due.
3. TRANSFER AND EXCHANGE. This Warrant and the rights
hereunder may not be transferred in whole or in part without the Company's
prior written consent and may not be transferred unless such transfer
complies with all applicable securities laws and the provisions of Section
10. If a transfer of all or part of this Warrant is permitted by the
preceding sentence, then this Warrant and all rights hereunder may be
transferred, in whole or in part, on the books of the Company maintained for
such purpose at the principal office of the Company referred to above, by the
Registered Holder hereof in person, or by duly authorized attorney, upon
surrender of this Warrant properly endorsed and upon payment of any necessary
transfer tax or other governmental charge imposed upon such transfer. Upon
any permitted partial transfer, the Company will issue and deliver to the
Registered Holder a new Warrant or Warrants with respect to the shares of
Warrant Stock not so transferred. Each taker and holder of this Warrant, by
taking or holding the same, consents and agrees that when this Warrant shall
have been so endorsed, the person in possession of this Warrant may be
treated by the Company, and all other persons dealing with this Warrant, as
the absolute owner hereof for any purpose and as the person entitled to
exercise the rights represented hereby, any notice to the contrary
notwithstanding; PROVIDED, HOWEVER that until a transfer of this Warrant is
duly registered on the books of the Company, the Company may treat the
Registered Holder hereof as the owner of this Warrant for all purposes.
4. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. The
number and character of shares of Warrant Stock issuable upon exercise of
this Warrant (or any shares of
3
<PAGE>
stock or other securities or property at the time receivable or issuable upon
exercise of this Warrant) and the Purchase Price therefor, are subject to
adjustment upon occurrence of the following events:
4.1 ADJUSTMENT FOR STOCK SPLITS, STOCK DIVIDENDS,
RECAPITALIZATIONS, ETC. The Purchase Price of this Warrant and the number of
shares of Warrant Stock issuable upon exercise of this Warrant shall each be
proportionally adjusted to reflect any stock dividend, stock split, reverse
stock split, combination of shares, reclassification, recapitalization or
other similar event altering the number of outstanding shares of Warrant
Stock.
4.2 ADJUSTMENT FOR OTHER DIVIDENDS AND
DISTRIBUTIONS. In case the Company shall make or issue, or shall fix a record
date for the determination of eligible holders entitled to receive, a
dividend or other distribution with respect to the Warrant Stock payable in
securities of the Company then, and in each such case, the Registered Holder
of this Warrant, on exercise of this Warrant at any time after the
consummation, effective date or record date of such event, shall receive, in
addition to the shares of Warrant Stock (or such other stock or securities)
issuable on such exercise prior to such date, the securities of the Company
to which such Registered Holder would have been entitled upon such date if
such Registered Holder had exercised this Warrant immediately prior thereto
(all subject to further adjustment as provided in this Warrant).
4.3 ADJUSTMENT FOR CAPITAL REORGANIZATION,
CONSOLIDATION, MERGER.
(a) Subject to Section 5.4, if any capital
reorganization of the capital stock of the Company, or any consolidation or
merger of the Company with or into another corporation, or the sale of all or
substantially all of the Company's assets to another corporation shall be
effected in such a way that holders of Warrant Stock will be entitled to
receive stock, securities or assets with respect to or in exchange for their
Warrant Stock, and in each such case, the Registered Holder of this Warrant,
upon the exercise of this Warrant (as provided in Section 1), at any time
after the consummation of such capital reorganization, consolidation, merger,
or sale, shall be entitled to receive, in lieu of the stock or other
securities and property receivable upon the exercise of this Warrant prior to
such consummation, the stock or other securities or property to which such
Registered Holder would have been entitled upon such consummation if such
Registered Holder had exercised this Warrant immediately prior thereto, all
subject to further adjustment as provided in this Section 6; and in each such
case, the terms of this Warrant shall be applicable to the shares of stock or
other securities or property receivable upon the exercise of this Warrant
after such consummation.
(b) In lieu of receiving the stock, securities
or assets as referred to in Section 4.3(a), the Holder of this Warrant shall
be entitled, at its option, to receive a warrant substantially similar to
this Warrant to be issued by the person acquiring the stock or assets of the
Company.
4.4 CONVERSION OF WARRANT STOCK. If all the
outstanding shares of the Series E Convertible Preferred Stock of the Company
are converted into Common Stock pursuant to the Company's Articles of
Incorporation or otherwise, or such Series E Convertible Preferred Stock
4
<PAGE>
otherwise ceases to exist, then, from and after the date on which such Series
E Convertible Preferred Stock is so converted or ceases to exist (the
"CONVERSION DATE"): (i) this Warrant will be exercisable for Common Stock of
the Company and the term "Warrant Stock" (wherever used in this Warrant) will
thereafter mean the Company's Common Stock; and (ii) the Purchase Price will
be the price obtained by dividing (a) the Purchase Price in effect
immediately prior to the Conversion Date by (b) the number of shares of
Common Stock (including fractional shares) into which each share of Series E
Convertible Preferred Stock was convertible immediately prior to the
Conversion Date (subject to subsequent adjustment as provided herein).
5. NO IMPAIRMENT. Subject to the provisions of Section 4, the
Company will not, by amendment of its Articles of Incorporation or bylaws, or
through reorganization, consolidation, merger, dissolution, issue or sale of
securities, sale of assets or any other voluntary action, willfully avoid or
seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of
all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Registered Holder of this
Warrant against impairment. Without limiting the generality of the foregoing,
subject to the provisions of Section 4, the Company (a) will not increase the
par value of any shares of stock issuable upon the exercise of this Warrant
above the amount payable therefor upon such exercise, and (b) will take all
such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and non-assessable shares of Warrant
Stock upon the exercise of this Warrant.
6. CERTIFICATE AS TO ADJUSTMENTS. In each case of any
adjustment in either the Purchase Price or in the number of shares of Warrant
Stock, or other stock, securities or property receivable on the exercise of
this Warrant, the Chief Financial Officer of the Company shall compute such
adjustment in accordance with the terms of this Warrant and prepare a
certificate setting forth such adjustment and showing in detail the facts
upon which such adjustment is based, including a statement of the adjusted
Purchase Price. The Company will forthwith mail a copy of each such
certificate to the Registered Holder of this Warrant.
7. NOTICES OF RECORD DATE. In case:
(a) the Company shall take a record of the holders of its
Warrant 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
stock dividend; or
(b) of 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 in which holders of the
Company's stock are to receive stock, securities or property of another
corporation; or
(c) of any voluntary dissolution, liquidation or
winding-up of the Company; or
(d) of any redemption or conversion into Common Stock of
all outstanding Warrant Stock;
5
<PAGE>
then, and in each such case, the Company will mail or cause to be mailed to
the Registered Holder of this Warrant a notice specifying, as the case may
be, (i) the date on which a record is to be taken for the purpose of such
dividend, and stating the amount and character of such dividend, or (ii) the
date on which such consolidation, merger, conveyance, dissolution,
liquidation, winding-up, redemption or conversion is to take place, and the
time, if any is to be fixed, as of which the holders of record of Warrant
Stock or Common Stock (or such stock or securities as at the time are
receivable upon the exercise of this Warrant) shall be entitled to exchange
their shares of Warrant Stock or Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
consolidation, merger, conveyance, dissolution, liquidation or winding-up.
Such notice shall be mailed at least ten (10) days prior to the date therein
specified.
8. LOSS OR MUTILATION. Upon receipt by the Company of
evidence reasonably satisfactory to it of the ownership of and the loss,
theft, destruction or mutilation of this Warrant, and of a written indemnity
agreement reasonably satisfactory to the Company, and (in the case of
mutilation) upon surrender and cancellation of this Warrant, the Company will
execute and deliver in lieu thereof a new Warrant of like tenor.
9. RESERVATION OF WARRANT STOCK. Subject to the provisions of
Section 5.4, the Company shall at all times reserve and keep available for
issue upon the exercise of this Warrant such number of its authorized but
unissued shares of Warrant Stock (and Common Stock if the Warrant Stock is
not Common Stock) as will be sufficient to permit the exercise in full of
this Warrant and the conversion of all shares of Warrant Stock issuable
hereunder into Common Stock (if the Warrant Stock is then convertible into
Common Stock).
10. NO RIGHTS OR LIABILITIES AS SHAREHOLDER. This Warrant does
not by itself entitle the Registered Holder to any voting rights or other
rights as a shareholder of the Company. In the absence of affirmative action
by Registered Holder to purchase Warrant Stock by exercise of this Warrant,
no pro- visions of this Warrant, and no enumeration herein of the rights or
privileges of the Registered Holder shall cause such Registered Holder to be
a shareholder of the Company for any purpose.
11. REPRESENTATIONS OF THE REGISTERED HOLDER. Because of the
exemptions from the registration and qualification requirements of the 1933
Act, and the California Corporation Securities Law of 1968, as amended or
such other applicable states' securities laws (the "LAW") relied upon by the
Company in issuing this Warrant and Warrant Stock to the Registered Holder,
the Registered Holder hereby represents and warrants to the Company that it:
11.1 By reason of its business or financial
experience, is able to evaluate the merits and risks of the investment in the
Warrant and Warrant Stock, and that it has the capacity to protect its own
interests with respect to this investment;
11.2 Is aware that the Warrant and Warrant Stock are
highly speculative and that there can be no assurance that it will receive
any return on this investment, and further, that
6
<PAGE>
it has the financial ability to bear the economic risk of the investment and
has no need for liquidity with respect to the investment in the Warrant and
Warrant Stock;
11.3 Is aware of the Company's business affairs and
financial condition and: (a) has acquired sufficient information about the
Company to reach an informed and knowledgeable decision to acquire the
Warrant and Warrant Stock; (b) has been given the opportunity to ask
questions of and receive answers from the Company with respect to its
business and financial condition and with respect to the terms and conditions
of this investment; (c) has had the opportunity to obtain any additional
information necessary to verify any information received from the Company;
11.4 Is purchasing the Warrant and Warrant Stock for
investment for its own account only, not as nominee or agent, and not with a
view to, or for resale in connection with, any "distribution" of all or any
part of such securities within the meaning of the 1933 Act;
11.5 Understands that the Warrant and Warrant Stock
have not been registered under the 1933 Act by reason of a specific exemption
therefrom, which exemption may depend upon, among other things, the truth of
its representations as expressed in this Warrant;
11.6 Understands that: (a) the Warrant and Warrant
Stock are characterized as "restricted securities" under the federal
securities laws since the sale of the Warrant and Warrant Stock has not been
registered under the 1933 Act; (b) the Warrant and Warrant Stock may be
resold without registration under the 1933 Act only in certain limited
circumstances; (c) the Registered Holder may be required to hold the Warrant
and Warrant Stock indefinitely unless such securities are subsequently
registered under the 1933 Act or an exemption from such registration is
available; and (d) the Company is not obligated to register such securities
under the 1933 Act or assist the Registered Holder in qualifying for any
exemption from registration under the 1933 Act;
11.7 Is aware of Rule 144 promulgated under the 1933
Act, which rule provides, in substance, that (a) after one (1) year from the
date the securities have been purchased and fully paid for, a purchaser may
publicly transfer restricted securities provided certain conditions are met,
e.g., certain public information is available about the Company, and specific
limitations on the amount of shares which can be sold within certain periods
and the manner in which such shares must be sold are complied with, and (b)
after two (2) years from the date the securities have been purchased and
fully paid for, purchasers who are not "affiliates" of the Company may sell
restricted securities without satisfying such conditions;
11.8 Further understands that if the requirements of
Rule 144 are not met, registration under the 1933 Act, compliance with
Regulation A, or some other registration exemption will be required for any
disposition of the Warrant or Warrant Stock; and that, although Rule 144 is
not exclusive, the SEC has expressed its opinion that persons proposing to
sell restricted securities other than in a registered offering and other than
pursuant to Rule 144 will have a substantial burden of proof in establishing
that an exemption from registration is
7
<PAGE>
available for such offers or sales and that such persons and the brokers who
participate in the transactions do so at their own risk;
11.9 Agrees that the Company may place the legends
set forth below or similar legends on any stock certificate(s) evidencing the
Warrant Shares, together with any other legends that may be required by state
or federal securities laws, the Company's Articles of Incorporation or
Bylaws, any other agreement between Registered Holder and the Company or any
agreement between the Registered Holder and any third party:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF ANY OTHER JURISDICTIONS. THESE SECURITIES ARE
SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY
REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN
COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A 180 DAY
MARKET STAND-OFF RESTRICTION AS SET FORTH IN A CERTAIN WARRANT
AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE
SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF
THE ISSUER. AS A RESULT OF SUCH AGREEMENT, THESE SHARES MAY NOT BE
TRADED PRIOR TO 180 DAYS AFTER THE EFFECTIVE DATE OF THE INITIAL
PUBLIC OFFERING OF THE COMMON STOCK OF THE ISSUER HEREOF. SUCH
RESTRICTIONS SHALL BE BINDING ON TRANSFEREES OF THESE SHARES.
Registered Holder agrees that, in order to ensure compliance with
the restrictions imposed by this Warrant, the Company may issue appropriate
"stop-transfer" instructions to its transfer agent, if any, and if the
Company transfers its own securities, it may make appropriate notations to
the same effect in its own records.
12. "MARKET STAND-OFF" AGREEMENT. Registered Holder agrees in
connection with any registration of the Company's securities under the 1933
Act that, upon the request of the Company or the underwriters managing any
registered public offering of the Company's securities, Registered Holder
will not sell or otherwise dispose of any shares of the Warrant Stock without
the prior written consent of the Company or such underwriters, as the case
may be, for such period of time (not to exceed one hundred eighty (180) days)
after the effective date of
8
<PAGE>
such registration requested by such managing underwriters and subject to all
restrictions as the Company or the managing underwriters may specify for
employee-shareholders generally. Registered Holder further agrees to enter
into any agreement reasonably required by the underwriters to implement the
foregoing.
13. FINANCIAL INFORMATION. The Company shall provide the
Registered Holder with quarterly financial statements so long as the Company
is profitable.
14. NOTICES. All notices and other communications from the
Company to the Registered Holder shall be mailed by first-class registered or
certified mail, postage prepaid, to the address furnished to the Company in
writing by the last Registered Holder who shall have furnished an address to
the Company in writing.
15. CHANGE; WAIVER. Neither this Warrant nor any term hereof
may be changed, waived, discharged or terminated orally but only by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
16. HEADINGS. The headings in this Warrant are for purposes of
convenience in reference only, and shall not be deemed to constitute a part
hereof.
17. LAW GOVERNING. This Warrant shall be construed and
enforced in accordance with, and governed by, the internal laws of the State
of California, excluding that body of law applicable to conflicts of law.
18. TERMS BINDING. By acceptance of this Warrant, the
Registered Holder of this Warrant (and each subsequent assignee, transferee
or Registered Holder of this Warrant) accepts and agrees to be bound by all
the terms and conditions of this Warrant.
Dated: March 8, 2000
ACKNOWLEDGED AND ACCEPTED BY:
CIPHERGEN BIOSYSTEMS, INC. REGISTERED HOLDER:
By: By:
------------------------------ -------------------------------
Name: Name:
---------------------------- -----------------------------
Title: Title:
---------------------------- -----------------------------
9
<PAGE>
EXHIBIT 1
FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To: Ciphergen Biosystems, Inc.
490 San Antonio Road
Palo Alto, CA 94306
(1) The undersigned Holder hereby elects to purchase ________________
shares of Series E Convertible Preferred Stock of _______________ (the "WARRANT
STOCK"), pursuant to the terms of the attached Warrant, and tenders herewith
payment of the purchase price for such shares in full.
[(1) NET EXERCISE ELECTION. THE UNDERSIGNED HOLDER ELECTS TO CONVERT
THE WARRANT INTO SHARES OF WARRANT STOCK BY NET EXERCISE ELECTION PURSUANT TO
SECTION 1.6 OF THE WARRANT. THIS CONVERSION IS EXERCISED WITH RESPECT TO
__________ SHARES OF SERIES E CONVERTIBLE PREFERRED STOCK OF _______________
(THE "WARRANT STOCK") COVERED BY THE WARRANT.]
[STRIKE PARAGRAPH ABOVE THAT DOES NOT APPLY]
(2) In exercising the Warrant, the undersigned Holder hereby
confirms and acknowledges that the representations and warranties set forth
in Section 12 of the Warrant as they apply to the undersigned Holder continue
to be true and correct as of this date.
(3) Please issue a certificate or certificates representing such
shares of Warrant Stock in the name or names specified below:
-------------------------------- ----------------------------------
(Name) (Name)
-------------------------------- ----------------------------------
(Address) (Address)
-------------------------------- ----------------------------------
(City, State, Zip Code) (City, State, Zip Code)
-------------------------------- ----------------------------------
(Federal Tax Identification Number) (Federal Tax Identification Number)
-------------------------------- ----------------------------------
(Date) (Signature of Holder)
10
<PAGE>
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned Registered Holder of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under the within Warrant, with respect to the
number of shares of Series E Convertible Preferred Stock set forth below:
NAME OF ASSIGNEE ADDRESS NO. OF SHARES
---------------------- ------------- -------------------
and does hereby irrevocably constitute and appoint ________________ Attorney
to make such transfer on the books of ___________________, maintained for the
purpose, with full power of substitution in the premises.
Dated: _____________________ [Registered Holder]
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
11