CONTEMPLATED
HEREBY, AND (B) THAT NOTICE MAY BE SERVED UPON THE COMPANY AT THE ADDRESS IN
SECTION 20 BELOW AND UPON THE WARRANTHOLDER AT THE ADDRESS FOR THE WARRANTHOLDER
SET FORTH IN THE REGISTRY MAINTAINED BY THE COMPANY PURSUANT TO SECTION 9
HEREOF. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE COMPANY AND THE
WARRANTHOLDER HEREBY UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THE WARRANT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
17.
BINDING EFFECT. THIS WARRANT SHALL BE
BINDING UPON ANY SUCCESSORS OR ASSIGNS OF THE COMPANY.
18.
AMENDMENTS. THIS WARRANT MAY BE AMENDED AND
THE OBSERVANCE OF ANY TERM OF THIS WARRANT MAY BE WAIVED ONLY WITH THE WRITTEN
CONSENT OF THE COMPANY AND THE WARRANTHOLDER.
19.
PROHIBITED ACTIONS. THE COMPANY AGREES THAT
IT WILL NOT TAKE ANY ACTION WHICH WOULD ENTITLE THE WARRANTHOLDER TO AN
ADJUSTMENT OF THE EXERCISE PRICE IF THE TOTAL NUMBER OF SHARES OF COMMON STOCK
ISSUABLE AFTER SUCH ACTION UPON EXERCISE OF THIS WARRANT, TOGETHER WITH
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all shares of Common Stock then outstanding and all shares of Common Stock then
issuable upon the exercise of all outstanding options, warrants, conversion and
other rights, would exceed the total number of shares of Common Stock then
authorized by its Charter.
20.
NOTICES. ANY NOTICE, REQUEST, INSTRUCTION OR
OTHER DOCUMENT TO BE GIVEN HEREUNDER BY ANY PARTY TO THE OTHER WILL BE IN
WRITING AND WILL BE DEEMED TO HAVE BEEN DULY GIVEN (A) ON THE DATE OF DELIVERY
IF DELIVERED PERSONALLY, OR BY FACSIMILE, UPON CONFIRMATION OF RECEIPT, OR
(B) ON THE SECOND BUSINESS DAY FOLLOWING THE DATE OF DISPATCH IF DELIVERED BY A
RECOGNIZED NEXT DAY COURIER SERVICE. ALL NOTICES HEREUNDER SHALL BE DELIVERED AS
SET FORTH IN ITEM 8 OF SCHEDULE A HERETO, OR PURSUANT TO SUCH OTHER INSTRUCTIONS
AS MAY BE DESIGNATED IN WRITING BY THE PARTY TO RECEIVE SUCH NOTICE.
21.
ENTIRE AGREEMENT. THIS WARRANT, THE FORMS
ATTACHED HERETO AND SCHEDULE A HERETO (THE TERMS OF WHICH ARE INCORPORATED BY
REFERENCE HEREIN), AND THE LETTER AGREEMENT (INCLUDING ALL DOCUMENTS
INCORPORATED THEREIN), CONTAIN THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ALL PRIOR AND CONTEMPORANEOUS
ARRANGEMENTS OR UNDERTAKINGS WITH RESPECT THERETO.
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[Form of Notice of Exercise]
Date:
TO:
[Company]
RE:
Election to Purchase Common Stock
The undersigned, pursuant to the provisions set forth in the attached Warrant,
hereby agrees to subscribe for and purchase the number of shares of the Common
Stock set forth below covered by such Warrant. The undersigned, in accordance
with Section 3 of the Warrant, hereby agrees to pay the aggregate Exercise Price
for such shares of Common Stock in the manner set forth below. A new warrant
evidencing the remaining shares of Common Stock covered by such Warrant, but not
yet subscribed for and purchased, if any, should be issued in the name set forth
below.
Number of Shares of Common Stock