Warrant for a Percentage of the Internet Business - Martha Stewart Living Omnimedia LLC and KPCB Holdings Inc.
MARTHA STEWART LIVING OMNIMEDIA LLC
WARRANT FOR A PERCENTAGE OF THE INTERNET BUSINESS
OF MARTHA STEWART LIVING OMNIMEDIA LLC
ISSUE DATE: JULY 27, 1999
THIS WARRANT AND THE SHARES OF COMMON STOCK OR OTHER SECURITIES THAT
MAY BE PURCHASABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF
ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED OR DISPOSED OF UNLESS REGISTERED OR QUALIFIED UNDER SAID
ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS SUCH REGISTRATION,
QUALIFICATION OR OTHER SUCH ACTIONS ARE NOT REQUIRED UNDER ANY SUCH
LAWS. EXCEPT AS OTHERWISE PROVIDED HEREIN, THIS WARRANT IS
NON-TRANSFERABLE.
FOR VALUE RECEIVED, MARTHA STEWART LIVING OMNIMEDIA LLC, a Delaware
limited liability company ("MSLO," and, together with any successor entity, the
"Company"), hereby certifies that KPCB Holdings, Inc., a California corporation
(the "Holder"), is entitled, subject to the provisions of this Warrant, to
purchase from the Company, (i) in the case of a Strategic Transaction, the
Warrant Percentage of the fully paid and non-assessable shares of the then
Outstanding Shares of Common Stock immediately prior to consummation of the
Strategic Transaction but taking into account the exercise of this Warrant, or
(ii) in the case of a Sale Transaction, the Warrant Percentage of the Net
Consideration received by the Company in such Sale Transaction, in each case, at
a purchase price equal to the Exercise Price (each such term as hereinafter
defined).
SECTION 1. DEFINITIONS. (a) The following terms, as used herein, have
the following meanings:
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York are authorized by law to close.
"CLOSING PRICE" on any day means (1) if the shares of Common Stock then
are listed and traded on the New York Stock Exchange, Inc. ("NYSE"), the Closing
Price on such day as reported on the NYSE Composite Transactions Tape; (2) if
shares of Common Stock then are not listed and traded on the NYSE, the Closing
Price on such day as reported by the principal
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national securities exchange on which the shares of Common Stock are listed and
traded; (3) if the shares of Common Stock then are not listed and traded on any
such securities exchange, the last reported sale price on such day on The Nasdaq
Stock Market ("NASDAQ"); or (4) if the shares of Common Stock then are not
traded on but are quoted by NASDAQ, the average of the highest reported bid and
the lowest reported ask price on such day as reported by NASDAQ.
"COMMON STOCK" means a common stock (or tracking stock, lettered stock
or similar equity security) of the Company or a Subsidiary of the Company that
primarily reflects or is intended to primarily reflect the economic performance
of the Internet Business as it exists as of the date such stock is first issued.
"COMPANY" shall have the meaning set forth in the first paragraph
hereof.
"EXERCISE PRICE" means $21 million ($21,000,000), as adjusted pursuant
to Sections 2(b)(ii) and 3 hereof.
"EXPIRATION DATE" means the earliest of 5:00 p.m. New York City time on
(i) the 3-year anniversary of the date hereof, (ii) the date on which the Holder
sells, transfers, distributes or otherwise disposes, other than pursuant to an
exchange or a conversion of Membership Interests in a merger or similar
transaction involving the Company, of at least 50% of its Membership Interests
(as defined in that certain Purchase Agreement, dated as of the date hereof), or
such equity into which such Membership Interests may be exchangeable or
convertible pursuant to a Conversion (as defined in the LLC Operating Agreement)
(iii) the tenth day following consummation of a Strategic Transaction, and (iv)
the tenth day following consummation of a Sale Transaction that involves all or
substantially all of the Company's interest in the Internet Business as such
business exists as of the date of such Sale Transaction. In the event that the
Warrant is exercised prior to the Expiration Date, any subsequent delay due to
required regulatory approvals shall not affect the validity of such exercise.
"FAIR MARKET VALUE" as of any date of determination means, as to shares
of the Common Stock, if the Common Stock is publicly traded at such time, the
average of the daily Closing Price of a share of Common Stock for the ten (10)
consecutive trading days ending on the most recent trading day prior to the date
of determination. If the shares of Common Stock are not publicly traded at such
time, the Fair Market Value of the Common Stock shall be determined in good
faith by the Board of Directors of the Company.
"FAIR VALUE" as of any date, shall mean (i) in the case of Common
Stock, the Fair Market Value, (ii) in the case of cash, such amount of cash and
(iii) in the case of other property, the fair value as determined by the Board
of Directors of the Company, acting in good faith and based upon the advice of a
nationally recognized investment banking firm.
"HOLDER" shall have the meaning set forth in the first paragraph
hereof.
"INTERNET BUSINESS" means the Martha By Mail business (both online and
offline), the business of selling advertisements on websites owned by MSLO, and
any businesses of the
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Company created after the date hereof that derive 50% or more of their revenues
for the Company from transactions occurring via websites owned by MSLO, provided
that any such business that contains both online and offline revenues may be
divided into online and offline portions in the discretion of the Board, with
the Internet Business containing the online portions. The Internet Business
shall also include MSLO's interest in websites controlled by MSLO which are
determined by the Board of Directors as properly included therein which
determination shall be made in good faith and without regard to the existence of
this Warrant. For the avoidance of doubt, the Internet Business shall not
include direct mail and online sales of magazines and books authored or produced
by or on behalf of Martha Stewart and/or MSLO. The Internet Business shall also
include cost-sharing, transfer pricing and other intercompany arrangements with
the remainder of the Company as determined to be reasonable and appropriate by
the Board of Directors.
"LLC OPERATING AGREEMENT" shall mean the Fourth Amended and Restated
Limited Liability Company Agreement of the Company, as amended from time to
time.
"NET CONSIDERATION" shall, with respect to a particular Sale
Transaction, equal the Fair Value of the portion of the consideration received
by the Company in a Sale Transaction which relates to the portion of the
Internet Business (as such business exists as of the date of such Sale
Transaction) involved in such Sale Transaction, net of taxes and transaction
expenses; provided, however, that the Company shall use reasonable efforts to
structure such Sale Transaction in a manner that is tax efficient for the
Company and the Holder, and, to the extent that the Company will not incur tax
on the Net Consideration payable to the Holder, such Net Consideration shall not
be reduced in respect of such taxes. In the event that the Internet Business has
debt at the time of a Sale Transaction, the Board of Directors shall equitably
adjust the Net Consideration to the extent that such debt is not repaid prior to
the Sale Transaction.
"OUTSTANDING SHARES" means, with respect to the Common Stock, the sum
of the outstanding shares and the shares held in treasury or otherwise
representing the interest of the Company and its Subsidiaries in such Common
Stock.
"PERSON" means an individual, partnership, corporation, limited
liability company, trust, joint stock company, association, joint venture, or
any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"SALE TRANSACTION" means a sale, disposition or other transaction
(including by way of merger, share exchange, stock sale, asset divestiture or
otherwise) engaged in by the Company or its Subsidiaries, the primary motive of
which, as determined in good faith by the Board of Directors without taking into
account the existence of this Warrant, is to maximize the value of the Internet
Business as a whole or in part, it being agreed that any such sale, disposition
or other transaction in which 65% or more of the consideration received by the
Company in such sale, disposition or other transaction is in respect of the
Company's interest in the Internet Business shall be deemed to be a "Sale
Transaction;" provided, however, that in no event shall a "Sale Transaction" be
deemed to include a sale of all or substantially all of the Company or its
assets or businesses (including by way of merger, reorganization, consolidation,
asset sale,
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share exchange or otherwise). The allocation of consideration between the
Internet Business and other Company businesses shall be as determined by the
Board of Directors, acting in good faith and based upon the advice of a
nationally recognized investment banking firm.
"STRATEGIC TRANSACTION" shall mean the initial issuance of publicly
traded shares of Common Stock.
"SUBSIDIARY" means, with respect to any Person, any corporation or
other entity of which a majority of the capital stock or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time directly
or indirectly owned by such Person.
"WARRANT PERCENTAGE" means 15%, as the same may be adjusted pursuant to
the terms of this Warrant.
"WARRANT SHARES" means the shares of Common Stock deliverable upon
exercise of this Warrant, as adjusted from time to time.
SECTION 2. EXERCISE OF WARRANT.
(a) Strategic Transaction. In the case of a Strategic Transaction, the
Holder is entitled to exercise this Warrant in whole (but not in part) prior to
the Expiration Date or, if such day is not a Business Day, then on the next
succeeding day that shall be a Business Day. To exercise this Warrant, the
Holder shall deliver to the Company this Warrant and a Notice to Exercise form
attached hereto duly executed by the Holder, together with payment of the
Exercise Price. Upon such delivery and payment, the Holder shall be deemed, in
the case of a Strategic Transaction, to be the holder of record of the Warrant
Shares, notwithstanding that the stock transfer books of the Company shall then
be closed or that certificates representing such shares shall not then be
actually delivered to the Holder.
(b) Sale Transaction.
(i) In the case of a Sale Transaction which involves all or
substantially all of the Internet Business (as such business exists at
the time of such Sale Transaction), the Holder is entitled to exercise
this Warrant in whole (but not in part) prior to the Expiration Date
or, if such day is not a Business Day, then on the next succeeding day
that shall be a Business Day. To exercise this Warrant, the Holder
shall deliver to the Company this Warrant and a Notice to Exercise form
attached hereto duly executed by the Holder, together with payment of
the Exercise Price.
(ii) In the case of a Sale Transaction which involves less than all or
substantially all of the Internet Business (as such business exists at
the time of such Sale Transaction), the Holder is entitled to exercise
this Warrant with respect to all (but not less than all) of the Sale
Transaction within ten (10) days of the occurrence of the Sale
Transaction but in no event later than the Expiration Date or, if such
day is not a Business Day, then on the next succeeding day that shall
be a Business Day.
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To exercise this Warrant, the Holder shall deliver to the Company this
Warrant and a Notice to Exercise form attached hereto duly executed by
the Holder, together with payment of the Exercise Price as determined
in accordance with the following sentence. The Exercise Price for the
Warrant in connection with the Sale Transaction described in this
paragraph (b)(ii) shall be determined by multiplying the then-current
Exercise Price by a fraction, the numerator of which is the Fair Value
of the portion of the Internet Business (as such business exists at the
time of such Sale Transaction) included in such Sale Transaction, and
the denominator of which is the Fair Value of the Internet Business
immediately prior to such Sale Transaction and without taking the
prospect of such Sale Transaction into account. In the event that
Holder exercises this Warrant in a Sale Transaction pursuant to this
paragraph (ii), the Warrant shall continue in effect with respect to
the Company's remaining interest in the Internet Business (as such
business exists at the time of such Sale Transaction), and immediately
following such exercise (or the Holder's election not to so exercise),
the Exercise Price with respect to the remaining Warrant shall be
reduced by the Exercise Price paid (or that would have been paid) by
the Holder in respect of such Sale Transaction.
(c) At the option of the Holder, the Exercise Price may be paid in cash
(including by wire transfer of immediately available funds), by certified or
official bank check or bank cashier's check payable to the order of the Company,
or, in the event of an exercise following a Strategic Transaction, in fully-paid
and non-assessable shares (or the surrender by the Holder of the right to
receive such number of shares) of Common Stock valued at the initial public
offering price of such Common Stock or by any combination of the foregoing. The
Company shall pay any and all documentary, or similar issue or transfer taxes
payable in respect of the issue or delivery of the Warrant Shares. The Company
shall not be required to pay any transfer tax which may be payable in respect of
any transfer involved in the issue or delivery of Warrant Shares (or other
securities or assets) in a name other than that in which the Warrant so
exercised was registered, and no such issue or delivery shall be made unless and
until the person requesting such issue has paid to the Company the amount of
such transfer tax or has established, to the satisfaction of the Company, that
such transfer tax has been paid.
(d) Upon surrender of this Warrant in conformity with the foregoing
provisions, the Company shall, subject to the expiration of any applicable
waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, transfer to the Holder of this Warrant appropriate evidence of
ownership of the shares of Common Stock or other securities or property
(including any money) to which the Holder is entitled, registered or otherwise
placed in, or payable to the order of, the name or names of the Holder or such
transferee as may be directed in writing by the Holder, and shall deliver such
evidence of ownership and any other securities or property (including any money)
to the Person or Persons entitled to receive the same, together with an amount
in cash in lieu of any fraction of a share as provided in Section 8, subject to
any required withholding.
SECTION 3. ADJUSTMENT TO WARRANT PERCENTAGE OR EXERCISE PRICE. If at
any time after the date hereof, the Company engages in a transaction pursuant to
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which it acquires an interest in (whether by acquisition, merger, asset purchase
or otherwise) a business or assets that is intended to, and does, become part of
the Internet Business, Holder shall have the option of either adjusting the
Warrant Percentage or the Exercise Price as follows:
(a) Adjustment of Warrant Percentage. The Warrant Percentage shall be
adjusted by multiplying the then-current Warrant Percentage by a fraction, the
numerator of which is the Fair Value of the Internet Business immediately prior
to such transaction, and the denominator of which is the sum of such Fair Value
plus the Fair Value of the consideration paid or issued (and debt assumed which
is not retained by the Internet Business) by the Company in such transaction.
(b) Adjustment of Exercise Price. The Exercise Price shall be adjusted
by adding to the then-current Exercise Price the product of the Warrant
Percentage at such time and the Fair Value of the consideration paid or issued
(and debt assumed which is not retained by the Internet Business) by the Company
in such transaction.
(c) In the event that a transaction described in this Section 3
includes both a business to be included in the Internet Business and businesses
that will be retained by the Company outside of the Internet Business, the Board
shall apportion the consideration in the transaction on a fair and equitable
basis, acting in good faith and based upon the advice of a nationally recognized
investment banking firm.
Promptly following consummation of a transaction giving rise to an adjustment in
the Warrant Percentage or Exercise Price pursuant to this Section 3, the Company
shall provide the Holder with written notice thereof, which notice shall also
include (i) the revised Warrant Percentage as calculated pursuant to paragraph
(a) above, (ii) the revised Exercise Price as calculated pursuant to paragraph
(b) above, (iii) the basis on which such adjustments were calculated and (iv) a
description of the business acquired and copies of information provided to the
Board of Directors in connection with its approval of the transaction. Holder
shall, within 10 days of receipt of such notice, notify the Company in writing
of its election to adjust either the Warrant Percentage or the Exercise Price.
If the Company has not received written notice of Holder's election within such
10-day period, Holder shall be deemed to have elected to adjust the Warrant
Percentage.
SECTION 4. CERTAIN NON-DILUTION OF WARRANT SHARES. The percentage of
Common Stock owned by Holder upon exercise of this Warrant shall not be diluted
by options on the Common Stock granted prior to the initial public offering of
the Common Stock to (or the exercise thereof by) employees representing a
maximum of 10% of the Common Stock immediately prior to such offering, provided,
that options in excess of that amount shall be dilutive on a pro rata basis.
SECTION 5. ASSUMPTION OF WARRANT BY SUBSIDIARY. The Company and Holder
hereby agree that in the event that the Common Stock issued in a Strategic
Transaction is Common Stock of a Subsidiary of the Company, such Subsidiary
shall assume all of the Company's rights and obligations hereunder.
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SECTION 6. REGISTERED SHARES AND RESTRICTIVE LEGEND; REGISTRATION
RIGHTS. (a) Each certificate representing shares of Common Stock issued pursuant
to this Warrant, unless at the time of exercise such shares are registered under
the Securities Act, shall bear a legend substantially in the form of the legend
set forth on the first page of this Warrant. The Company hereby agrees to use
its reasonable best efforts to cause all shares of Common Stock issued pursuant
to this Warrant to be promptly registered under the Securities Act. In the event
that Company is unable to so register such shares of Common Stock, Holder shall
be entitled to customary registration rights with respect to such shares.
(b) In connection with the issuance of shares of Common Stock to the
Holder pursuant to this Warrant, the Company shall provide the Holder with
customary registration rights with respect to such shares, consistent with the
terms of the post-IPO registration rights granted to the Holder in connection
with its investment in MSLO.
SECTION 7. RESERVATION OF SHARES. The Company hereby represents and
agrees that all shares of Common Stock issued pursuant to this Warrant shall be
duly authorized and, when issued upon such exercise, shall be validly issued,
fully paid and non-assessable, free and clear of all liens, security interests,
charges and other encumbrances or restrictions on sale imposed by the Company
and free and clear of all preemptive or similar rights, except to the extent
imposed by or as a result of the status, act or omission of, the Holder.
SECTION 8. FRACTIONAL SHARES. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this Warrant
and in lieu of delivery of any such fractional share upon any exercise hereof,
the Company shall pay to the Holder an amount in cash equal to such fraction
multiplied by the Fair Market Value thereof.
SECTION 9. TRANSFER, EXCHANGE OR ASSIGNMENT OF WARRANT AND SHARES. (a)
The Holder by taking or holding this Warrant, consents and agrees that the
registered holder hereof 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.
(b) This Warrant is not transferable or assignable (by operation of law
or otherwise) by the Holder without the prior written consent of the Company. In
the event Holder receives shares of Common Stock upon exercise of this Warrant,
Holder shall not, on or prior to the one-year anniversary of the date it
receives such shares, sell, transfer, distribute or otherwise dispose of any
such shares of Common Stock, or any rights with respect thereto (a "Transfer"),
provided, however, that, following the six-month anniversary of such date,
Holder may distribute up to 50% of such shares to the limited partners or other
fund participants in the relevant Kleiner Perkins Caufield & Byers fund. The
foregoing limitation shall not apply to any Transfer approved by the MSLO Board
of Directors, including a Transfer pursuant to a corporate transaction relating
to MSLO approved by the MSLO Board of Directors.
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(c) Upon receipt by the Company of evidence satisfactory to it (in the
exercise of its reasonable discretion) of the loss, theft, destruction or
mutilation of this Warrant, and (in the case of loss, theft or destruction) of
indemnification or security reasonably required by the Company, and upon
surrender and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver a new Warrant of like tenor and date.
(d) The Company shall pay all expenses, taxes (other than transfer
taxes) and other charges payable in connection with the preparation, issuance
and delivery of the Warrant hereunder.
(e) This Warrant shall be binding on any successor or parent entity of
the Company, whether by merger, sale, reorganization or similar transaction.
SECTION 10. NO IMPAIRMENT. So long as this Warrant is outstanding, the
Company will not, by amendment of its LLC Operating Agreement 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 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 10 and in the taking of all
such action as may be necessary or appropriate in order to protect the rights of
the Holder against impairment.
SECTION 11. NOTICES. Any notice, demand or delivery authorized by this
Warrant shall be in writing and shall be given to the Holder or to the Company,
as the case may be, at its address (or facsimile number) set forth below, or
such other address (or facsimile number) as shall have been furnished to the
party giving or making such notice, demand or delivery:
If to the Company: Martha Stewart Living Omnimedia LLC
20 West 43rd Street
New York, New York 10036
Attention: General Counsel
Facsimile: (212) 827-8289
with a copy to: Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Andrew J. Nussbaum, Esq.
Facsimile: (212) 403-2000
If to the Holder: Kleiner Perkins Caufield & Byers
2750 Sand Hill Road
Menlo Park, CA 94025
Attention: John Doerr
Facsimile: (650) 233-0300
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with a copy to: Fenwick & West LLP
2 Palo Alto Square
Palo Alto, CA 94306
Attention: Gordon K. Davidson, Esq.
Facsimile: (650) 494-1417
Each such notice, demand or delivery shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified
herein and the intended recipient confirms the receipt of such telecopy, or (ii)
if given by any other means, when received at the address specified herein.
SECTION 12. RIGHTS OF THE HOLDER. Prior to the exercise of this Warrant
for shares of Common Stock, if available, the Holder shall not, by virtue
hereof, be entitled to any rights of a shareholder of the Company, including,
without limitation, the right to vote, to receive dividends or other
distributions, to exercise any preemptive right or to receive any notice of
meetings of shareholders or any notice of any proceedings of the Company except
as may be specifically provided for herein.
SECTION 13. GOVERNING LAW. THIS WARRANT AND ALL RIGHTS ARISING
HEREUNDER SHALL BE CONSTRUED AND DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF DELAWARE, AND THE PERFORMANCE THEREOF SHALL BE GOVERNED AND
ENFORCED IN ACCORDANCE WITH SUCH LAWS.
SECTION 14. AMENDMENTS; WAIVERS. Any provision of this Warrant may be
amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by the Holder and the Company, or in the
case of a waiver, by the party against whom the waiver is to be effective. No
failure or delay by either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
SECTION 15. INTERPRETATION. When a reference is made in this Warrant to
a Section such reference shall be to a Section of this Warrant unless otherwise
indicated. Whenever the words "include", "includes" or "including" are used in
this Warrant, they shall be deemed to be followed by the words "without
limitation". The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Warrant shall refer to this Warrant as a whole and not
to any particular provision of this Warrant. The definitions contained in this
Warrant are applicable to the singular as well as the plural forms of such terms
and to the masculine as well as to the feminine and neuter genders of such term.
References to a person are also to its permitted successors and assigns and, in
the case of an individual, to his heirs and estate, as applicable.
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IN WITNESS WHEREOF, the Company has duly caused this Warrant to be
signed by its duly authorized officer and to be dated as of the date first above
written.
MARTHA STEWART LIVING
OMNIMEDIA LLC
By: /s/ Martha Stewart
_________________________
Name: Martha Stewart
Title: Chairman and Chief
Executive Officer
ATTEST:
By: /s/ Sharon Lee Patrick
__________________________
Name: Sharon Lee Patrick
Title: President
ACKNOWLEDGED AND AGREED:
KPCB HOLDINGS, INC., AS NOMINEE
By: /s/ L. John Doerr
___________________________
Name: L. John Doerr
Title: Senior Vice President
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FORM OF
NOTICE OF EXERCISE
To: MARTHA STEWART LIVING OMNIMEDIA LLC
(1) The undersigned hereby elects to exercise the attached Warrant
pursuant to the terms of the attached Warrant, and has tendered herewith payment
of the purchase price in full.
(2) The undersigned hereby certifies that it has complied with all of
its obligations pursuant to the terms of the attached Warrant.
(3) To the extent shares are being issued in respect of the Warrant,
the undersigned represents that the aforesaid shares are being acquired for the
account of the undersigned for investment and not with a view to, or for resale
in connection with, the distribution thereof and that the undersigned has no
present intention of distributing or reselling such shares, except in compliance
with applicable federal and state securities laws and that the aforesaid shares
are subject, if applicable, to certain provisions of the LLC Operating Agreement
of the Company.
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