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EXHIBIT 10.20
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO OR AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
COMMON STOCK WARRANT
OF
NEWSREAL, INC.
Dated as of November 5, 1999
THIS CERTIFIES that, for value received, Millennium Financial Group, Inc.
(the "Warrantholder"), is entitled, upon the terms and subject to the
conditions set forth herein, to purchase from NewsReal, Inc., a Delaware
corporation (the "Company"), thirty thousand six hundred twelve (30,612) shares
of the common stock, par value $.001 per share (the "Common Stock"), of the
Company (the "Shares") at the purchase price per share of $8.82 (the "Exercise
Price"). The number of shares and Exercise Price are subject to adjustment as
provided below.
This Warrant is being issued to the Warrantholder in consideration for
services rendered by the Warrantholder to the Company in connection with the
Company's recent private placement of Common Stock pursuant to the placement
agent letter agreement between Warrantholder and the Company dated October 13,
1999, as amended (the "Placement Agreement"), and is subject to the terms and
conditions stated herein. By its acceptance of this Warrant, the Warrantholder
acknowledges and agrees that the issuance of this Warrant, together with the
cash placement fee previously paid by the Company to the Warrantholder,
satisfies all obligations of the Company to the Warrantholder under the
Placement Agreement.
1. Exercise of Warrant. This Warrant may be exercised in whole or in
part, at any time, or from time to time, after the date hereof and on or before
the fifth anniversary of the date hereof by the surrender of this Warrant and
the Notice of Exercise annexed hereto (duly completed and executed on behalf of
the Warrantholder) to the Company and by the payment of the Exercise Price for
the Shares to be purchased by the Warrantholder to the Company by cash or check
acceptable to the Company, except as provided in Section 13 hereof. The Company
will prepare a certificate for the Shares purchased and, if this Warrant is
exercised in part, a new Warrant for the unexercised portion of this Warrant.
The Company agrees that, upon exercise of this Warrant in accordance with the
terms hereof, the Shares so purchased will be deemed to be issued to the
Warrantholder as the record owner of such Shares as of the close of business on
the date on which this Warrant was exercised.
The Warrantholder, by acceptance hereof, acknowledges that this Warrant
and Shares to be issued upon exercise hereof, are being acquired solely for the
Warrantholder's own account. The
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Warrantholder will not offer, sell or otherwise dispose of this Warrant or the
Shares to be issued upon exercise hereof except under circumstances that will
not result in a violation of Securities Act of 1933, as amended (the "Act") or
other applicable federal or state securities laws. Upon exercise or transfer of
this Warrant, the Warrantholder shall provide the Company with such information
as may be necessary or reasonably requested by the Company to establish an
exemption from the registration requirements under the Act, including without
limitation, representation regarding the status of the Warrantholder as an
accredited investor and such other matters as may be appropriate to establish
the availability of an exemption from the registration requirements of the Act.
If the Company reasonably determines that registration under the Act is
required or that the Warrantholder has failed to provide the Company with such
information as may be necessary to establish an exemption from the registration
requirements under the Act, the Company may defer the exercise or transfer of
this Warrant until either a registration statement under the Act has been
declared effective or the Warrantholder has provided information satisfactory
to the Company that establishes the availability of an exemption from the
registration requirements under the Act.
Certificates for Shares purchased under this Warrant and, on partial
exercise of this Warrant, a new Warrant for the unexercised portion of this
Warrant will be delivered to the Warrantholder or to such person or persons as
the Warrantholder may direct as promptly as practicable after the date on which
this Warrant was exercised. The Company covenants that all Shares that may be
issued upon the exercise of rights represented by this Warrant will, upon
exercise of the rights represented by this Warrant, payment of the Exercise
Price and issuance by the Company, be duly authorized, validly issued, fully
paid and nonassessable.
With the consent of the Company, which consent will not be unreasonably
withheld, and subject to applicable laws and regulations, the Warrantholder may
direct that the certificates for Shares purchased under this Warrant be issued
in name or names other than the name of the Warrantholder. In this case, this
Warrant when surrendered for exercise must be accompanied by the Assignment
Form attached hereto duly executed by the Warrantholder and the Notice of
Exercise duly completed and executed and stating in whose name or names
certificates are to be issued.
2. Reservation of Shares; No Impairment or Amendment. The Company will at
all times reserve and keep available, solely for issuance, sale and delivery
upon the exercise of this Warrant, a number of shares of Common Stock equal to
the number of shares of Common Stock issuable upon the exercise of this
Warrant. The Company will not by any amendment of its Articles of Incorporation
or through any other means, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant. The Company will take all such
reasonable action as may be necessary to assure that such shares of Common
Stock may be issued as provided herein without violation of any applicable law
or regulation, or of any requirements of any domestic securities exchange or
automated quotation system upon which the shares of Common Stock may be listed.
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3. EXPIRATION. This Warrant, if not exercised by Warrantholder prior
thereto, will expire on the fifth anniversary of the date hereof.
4. Adjustments of Exercise Price and Number of Shares Purchasable. The
Exercise Price and the number of shares purchasable under this Warrant is
subject to adjustment from time to time in accordance with the following
provisions:
(a) Reorganization, Reclassification, Consolidation or Merger. If any
capital reorganization or reclassification of the capital stock of the Company,
or an Exchange Transaction (as defined below), or the sale of all or
substantially all of its assets to another corporation shall be effected in such
a way that holders of Common Stock shall be entitled to receive stock,
securities, cash or other property with respect to or in exchange for Common
Stock, then the holder of this Warrant shall have the right to acquire and
receive upon exercise of this Warrant such shares of stock, securities, cash or
other property issuable or payable (as part of the reorganization,
reclassification, Exchange Transaction or sale) with respect to or in exchange
for such number of outstanding shares of the Company's Common Stock as would
have been received upon exercise of this Warrant at the Exercise Price then in
effect. For purposes hereof, the term "Exchange Transaction" means a merger
(other than a merger of the Company in which the holders of Common Stock
immediately prior to the merger have the same proportionate ownership of Common
Stock in the surviving corporation immediately after the merger), consolidation,
acquisition of property or stock, separation, reorganization (other than a mere
reincorporation or the creation of a holding company), liquidation of the
Company or any other similar transaction or event so designated by the Board, in
its sole discretion, as a result of which the stockholders of the Company
receive cash, stock or other property in exchange for or in connection with
their shares of Common Stock.
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(b) Antidilution Protection for Performance Options and Conversion
of QIP Indebtedness.
(i) For purposes of this Section 4(b), the following terms have
the following meanings:
"Performance Options" means the (i) performance options and warrants
to purchase 3,974,570 shares of the Company's Common Stock that are existing as
of the date of this Warrant and that have been granted to certain founders of
the Company, Infoseek Corporation and the Company's employees, at exercise
prices ranging from $.001 per share to $1.0023 per share, which options become
exercisable if the QIP Investors (as defined below) earn an annual return of at
least 30% on a portion of their investment in the Company and an annual return
of at least 40% on an additional portion of their investment or, alternatively,
earn a 400% return on their cumulative aggregate investment in the Company
following an initial public offering of its securities, and (ii) performance
options to purchase 5,249,410 shares of the Company's Common Stock that are
existing as of the date of this Agreement and that have been granted to certain
founders of the Company and employees of the Company, which options become
exercisable upon conversion of the QIP Indebtedness (as defined below) and upon
the QIP Investors earning the returns specified in clause (i) above.
"QIP" means Quantum Industrial Partners, LDC, a Cayman Islands
exempted limited duration company.
"QIP Indebtedness" means (i) the indebtedness in the principal amount
of $4,000,000 owed by the Company to Bayerische Hypo und Vereinsbank, A.G.
pursuant to a Term Loan Agreement dated December 11, 1997, as amended, of which
indebtedness $1,000,000 has been fully guaranteed by QIP and $3,000,000 has
been repaid by QIP, and (ii) loans to the Company in the aggregate principal
amount of up to $4,000,000 from the QIP Investors.
"QIP Investors" means the investors listed on Schedule II attached
hereto.
(ii) Exercise of Performance Options. At any time a
Performance Option becomes exercisable to its holder and is exercised by its
holder and shares of Common Stock are issued to its holder, the number of
shares of Common Stock purchasable under this Warrant will increase to that
number of shares of Common Stock necessary to maintain the ownership percentage
of the Warrantholder in the Company at the same percentage level as at the date
of this Warrant assuming the Warrant were then fully exercised, after giving
effect to (i) the number of shares issued to the holders who exercised
Performance Options after the date of this Warrant, (ii) the number of
additional shares of Common Stock issued to CNNfn, a division of Cable News
Network LP, LLLP ("CNNfn") pursuant to its anti-dilution protection in Section
5.6 of the Common Stock Purchase Agreement dated April 21, 1999 between CNNfn
and the
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Company, and (iii) the number of additional shares that become subject to
purchase under this Warrant pursuant to this Section 4(b)(ii), but without
giving effect to any issuance by the Company of its capital stock after the
date of this Warrant, whether such issuance is related to or a result of the
sale of such capital stock by the Company, the exercise of stock options or
warrants other than the Performance Options, or the exercise of any right to
acquire capital stock of the Company other than the conversion of the QIP
Indebtedness.
(iii) Conversion of QIP Indebtedness. At any time any
additional shares of Common Stock are issued to the QIP Investors in connection
with the exercise of conversion rights relating to the QIP Indebtedness, the
number of shares of Common Stock purchasable under this Warrant will increase
to that number of shares of Common Stock necessary to maintain the ownership
percentage of the Warrantholder in the Company at the same percentage level as
at the date of this Warrant assuming the Warrant were then fully exercised,
after giving effect to (i) the number of shares so issued to the QIP Investors
in conversion of the QIP Indebtedness, (ii) the number of additional shares of
Common Stock issued to CNNfn pursuant to its anti-dilution protection in
Section 5.7 of the Common Stock Purchase Agreement dated April 21, 1999 between
CNNfn and the Company, and (iii) the number of additional shares that become
subject to purchase under this Warrant pursuant to this Section 4(b)(iii), but
without giving effect to any issuance by the Company of its capital stock after
the date of this Warrant, whether such issuance is related to or a result of
the sale of such capital stock by the Company, the exercise of stock options or
warrants other than the Performance Options, or the exercise of any right to
acquire capital stock of the Company other than the conversion of the QIP
Indebtedness.
(c) Adjustment to Exercise Price. The Exercise Price will be
proportionately adjusted based on any adjustment to the number of Shares
purchasable hereunder following the date of this Warrant.
5. Notice of Adjustment; Notices. Whenever the Exercise Price or number
of shares purchasable hereunder will be adjusted, the Company at its expense
will promptly issue a certificate signed by an executive officer of the Company
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 will cause a copy of such certificate to be sent
to the Warrantholder.
6. No Fractionalized Shares. No fractionalized shares of Common Stock
or other security will be issued upon exercise of this Warrant. The shares of
Common Stock or other security issued to the Warrantholder as a result of any
exercise of this Warrant in accordance with the terms hereof will be rounded
down to the nearest whole share.
7. Transfer of Warrant. Subject to section 1 hereof, this Warrant and
all rights hereunder are transferable, in whole or in part, but only with the
prior written consent of the
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Company, which consent will not be unreasonably withheld. In order to transfer
this Warrant, the Warrantholder must deliver to the Company this Warrant
together with the Assignment Form annexed hereto properly endorsed. Upon receipt
thereof, the Company will affect such transfer as promptly as practicable.
8. No Voting Rights, Etc. Prior to the proper exercise of this Warrant,
the Warrantholder, as such, is not entitled to vote or receive dividends or be
deemed to be a shareholder of the Company for any purposes, nor may anything
contained in this Warrant be construed to confer rights upon Warrantholder.
9. Registry of Warrant. The Company will maintain a registry showing the
name and address of the Warrantholder and the Company will be entitled to rely
in all respects, prior to written notice to the contrary, upon such registry.
The Warrantholder is responsible for notifying the Company of any change of its
address.
10. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in the case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to the Company,
and upon reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender and cancellation of this Warrant, if mutilated, the
Company will replace this Warrant with a new Warrant of like tenor, dated as of
such cancellation, and deliver it to the Warrantholder.
11. Office for Exercise or Exchange. This Warrant may be surrendered for
exchange, transfer or exercise, in accordance with its terms, at the principal
office of the Company, or at such other office or such other office or agency of
the Company as it may designate in writing to the Warrantholder at its address
appearing on the Company's registry or other books.
12. Charges, Taxes and Expenses. Issuance of certificates to the
Warrantholder for Shares upon the exercise of this Warrant will be made without
charge to the Warrantholder for any issue or transfer tax or other incidental
expense in respect of the issuance of such certificates, all of which taxes and
expenses will be paid by the Company. However, if the certificates are to be
issued in a name or names other than the name of the Warrantholder, the Company
may require, as a condition to such issuance, the payment of a sum sufficient to
reimburse it for any transfer tax incidental thereto.
13. Cashless Exercise. In lieu of payment of the aggregate Exercise Price,
the Warrantholder may exercise this Warrant with respect to the Shares that are
then vested and exercisable, in whole or in part, by presentation and surrender
of this Warrant to the Company, together with a Cashless Exercise Form attached
hereto (or a reasonable facsimile thereof) duly executed (a "Cashless
Exercise"). Acceptance by the Company of such presentation and surrender shall
be deemed a waiver of the Warrantholder's obligation to pay all or any portion
of the aggregate Exercise Price. In the event of a Cashless Exercise, the
Warrantholder shall
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exchange this Warrant for that number of shares of Common Stock determined by
multiplying the number of Shares being exercised by a fraction, the numerator
of which shall be the difference between the then current market price per
share of the Common Stock and the Exercise Price, and the denominator of which
shall be the then current market price per share of Common Stock. For purposes
of any computation under this Section 13, the then current market price per
share of Common Stock at any date shall be deemed to be the average for the
five consecutive business days immediately prior to the Cashless Exercise of
the daily closing prices of the Common Stock on the principal national
securities exchange on which the Common Stock is admitted to trading or listed,
or if not listed or admitted to trading on any such exchange, the closing
prices as reported by the Nasdaq National Market, or if not then listed on the
Nasdaq National Market, the average of the highest reported bid and lowest
reported asked prices as reported by the National Association of Securities
Dealers, Inc. Automated Quotations System ("NASDAQ") or if not then publicly
traded, the fair market price of the Common Stock as determined by the Board.
14. Piggyback Registration Rights.
(a) If at any time or from time to time, the Company shall determine
to register any of its securities, for its own account or the account of any of
its shareholders, other than (i) a registration relating to an initial public
offering of the Company's Common Stock and any other securities, (ii) a
registration solely relating to the Company's employee benefit plans or stock
option plans, or (iii) a registration relating solely to an SEC Rule 145
transaction, the Company will:
(i) give to the Warrantholder written notice thereof as soon as
practicable prior to filing the registration statement; and
(ii) include in such registration and in any underwriting
involved therein, all the Shares specified in a written request or requests,
made within fifteen (15) days after receipt of such written notice from the
Company, by the Warrantholder, except as set forth in subsection (b) below.
(b) Subject to the exceptions set forth in Section 14(a) above, if
the registration is for a registered public offering involving an underwriting,
the Company shall so advise the Warrantholder as a part of the written notice
given pursuant to subsection 14(a)(i). In such event, the Warrantholder's right
to registration pursuant to Section 14 shall be conditioned upon its
participation in such underwriting and the inclusion of the Warrantholder's
Shares in the underwriting to the extent provided herein. If the Warrantholder
proposes to distribute its Shares through such underwriting, it shall (together
with the Company and the other holders distributing their securities through
such underwriting) enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting by the Company.
Notwithstanding any other provision of this Section 14, if the managing
underwriter determines that marketing factors require a limitation of the
number of shares to be underwritten, the
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managing underwriter may limit the number of shares of Common Stock to be
included in the registration and underwriting. The number of Shares and the
number of shares of Common Stock being sold by the Company shall be
proportionately reduced or may exclude the Shares entirely from such
registration. The Company shall so advise the Warrantholder of the managing
underwriter's decision and the number of Shares that may be included in such
underwriting.
13. Miscellaneous.
(a) Governing Law. This Warrant constitutes a contract under and
will be construed in accordance with and governed by the internal laws of the
State of Delaware.
(b) Successors and Assigns. This Warrant is binding upon any
successors or assigns of the Company and the Warrantholder and of the Shares
issued or issuable upon the exercise hereof.
(c) Definition of Warrantholder. The term Warrantholder means the
Warrantholder named in the first paragraph of this Warrant and any successor or
permitted assign of such Warrantholder known to the Company and reflected on
the Company's registry as the holder of this Warrant.
(d) Restrictions. THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF ANY EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
(e) 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.
(f) Notice. Any notice required or permitted under this Warrant
will be deemed effectively given upon personal delivery, delivery by recognized
international express courier or upon deposit with the United States Post
Office, by certified mail, postage prepaid and addressed to the party to be
notified at the address indicated below for such party, or at such other
address as such other party may designate by ten-day advance written notice.
(g) Acceptance. Receipt of this Warrant by the Warrantholder
constitutes acceptance of and agreement to the foregoing terms and conditions.
[Signatures on Following Page.]
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This Warrant Agreement has been duly executed on the date first written
above.
NEWSREAL, INC., a Delaware corporation
By: /s/ David C. Hoppmann (SEAL)
---------------------------------
David C. Hoppmann
President & CEO
Agreed to and accepted by:
MILLENNIUM FINANCIAL GROUP, INC.
By: /s/ Shelley Gluck
---------------------------------
Name: Shelley Gluck
Title: CFO
Address for Warrant Registry:
122 W. Carpenter Frwy #465
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Irving TX 75039
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Attention: --------------------------
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NOTICE OF EXERCISE
To: NEWSREAL, INC.
1. The undersigned hereby elects to purchase shares of Common
Stock ("Stock") of NEWSREAL, INC. (the "Company") pursuant to the terms of the
attached Warrant, and tenders herewith payment of the purchase price, together
with an Investment Representation Statement (see attached form) in form and
substance satisfactory to legal counsel to the Company.
2. The shares of Stock to be received by the undersigned upon exercise
of the Warrant are being acquired for its own account, not as a nominee or
agent, and not with a view to resale or distribution of any part thereof, and
the undersigned has no present intention of selling, granting any participation
in, or otherwise distributing the same. The undersigned further represents that
it does not have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participation to such person or to any third
person, with respect to the Stock. The undersigned believes it has received all
the information it considers necessary or appropriate for deciding whether to
purchase the Stock.
3. The undersigned understands that the shares of Stock and the shares
of the Company's Common Stock into which the Stock is convertible are
characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in transactions not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the Securities Act of
1933, as amended (the "Act"), only in certain limited circumstances. In this
connection, the undersigned represents that it is familiar with Rule 144
promulgated under the Act, as presently in effect, and understandings the
resale limitations imposed thereby and by the Act.
4. The undersigned is an "accredited investor" as defined in Rule 502 of
Regulation D under the Act.
5. The undersigned understands the instruments evidencing the Stock may
bear one or all of the following legends:
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED."
(b) Any legend required by applicable state law.
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6. Please issue a certificate or certificates representing said shares of
Stock in the name set forth below.
---------------------------
[Please type or print name]
7. Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name set forth below.
---------------------------
[Please type or print name]
[NAME OF WARRANTHOLDER]
By:
-------------------------------
Name:
Title:
Date:
----------------------------
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NEWSREAL, INC.
CASHLESS EXERCISE FORM
(To be executed upon exercise of Warrant pursuant to Section 13)
The undersigned hereby irrevocably elects to surrender __________________
shares purchasable under this Warrant for such shares of Common Stock issuable
in exchange therefor pursuant to the Cashless Exercise provisions of the within
Warrant, as provided for in Section 13 of such Warrant.
Please issue a certificate or certificates for such Common Stock in the
name of, and pay cash for fractional shares in the name of:
________________________________________________________________________________
(Please print name, address, and
social security number/tax identification number:)
________________________________________________________________________________
and, if said number of shares of Common Stock shall not be all the shares of
Common Stock purchasable thereunder, that a new Warrant for the balance
remaining of the shares of Common Stock purchasable under the within Warrant be
registered in the name of the undersigned Warrantholder or his or her Assignee
as below indicated and delivered to the address stated below.
Dated: ________________
Name of Holder
or Assignee:
________________________________________________________________________________
(Please print)
Address: _______________________________________________________________________
Signature: _____________________________________________________________________
NOTE: The above signature must correspond exactly with the name on the first
page of this Warrant or with the name of the assignee appearing in the
assignment form below.
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ASSIGNMENT FORM
(To assign the foregoing Warrant, execute
this form and supply required information.
Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
------------------------------------
[Please type or print name.]
whose address is
------------------------------------
[Please type or print address.]
------------------------------------
------------------------------------
By:
-------------------------------------
Name:
Title:
Date:
----------------------------
Signature Guaranteed:
------------------------------------------------
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever, and must be guaranteed by a bank or trust company. Officers of
a corporation and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
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INVESTMENT REPRESENTATION STATEMENT
PURCHASER:
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COMPANY: NEWSREAL, INC.
SECURITIES: Warrant to purchase shares of Common Stock
-------------------
DATE:
--------------------------------
In connection with the purchase of the above-listed Securities, the
undersigned, the Purchaser, represents to the Company the following:
(a) The undersigned is sufficiently aware of the Company's
business affairs and financial condition to reach an informed and knowledgeable
decision to acquire the Securities. The undersigned is purchasing these
Securities for its own account for investment purposes only and not with a view
to, or for the resale in connection with, any "distribution" thereof for
purposes of the Securities Act of 1933, as amended (the "Securities Act").
(b) The undersigned understands that the Securities have not been
registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of its investment intent as expressed herein. In this connection, the
undersigned understands that, in the view of the Securities and Exchange
Commission (the "SEC"), the statutory basis for such exemption may be
unavailable if its representation was predicated solely upon a present
intention to hold these Securities for the minimum capital gains period
specified under tax statutes for a deferred sale, for or until an increase or
decrease in the market price of the Securities, or for a period of one year or
any other fixed period in the future.
(c) The undersigned further understands that the Securities must
be held indefinitely unless subsequently registered under the Securities Act or
unless an exemption from registration is otherwise available (such as Rule 144
under the Securities Act). In addition, the undersigned understands that the
certificate evidencing the Securities may be imprinted with a legend which
prohibits the transfer of the Securities unless they are registered or such
registration is not required in the opinion of counsel for the Company.
(d) The undersigned 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: (1) The availability of certain public information about the
Company; (2) the resale occurring not less than two years after the party has
purchased, and made full payment for, within the meaning of Rule 144, the
securities to be
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sold; and, in the case of an affiliate, or of a non-affiliate who has held the
securities less than three years; and (3) the sale being made through a broker
in an unsolicited "broker's transaction" or in transactions directly with a
market maker, as said term is defined under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the amount of securities being sold during
any three month period not exceeding the specified limitation stated therein, if
applicable. There can be no assurances that the requirements of Rule 144 will be
met, or that the Securities will ever be saleable.
(e) The undersigned further understands that at the time the undersigned
wishes to sell the Securities there may be no public market upon which to make
such a sale, and that, even if such a public market then exists, the Company
may not be satisfying the current public information requirements of Rule 144,
and that, in such event, the undersigned would be precluded from selling the
Securities under Rule 144 even if the two-year minimum holding period has been
satisfied.
(f) The undersigned further understands that in the event all of the
applicable requirements of Rule 144 are not satisfied registration under the
Securities Act, compliance with some other registration exemption or the
notification to the Company of the proposed disposition by it and the furnishing
to the Company of (i) detailed information regarding the disposition, and (ii)
opinion of its counsel to the effect that such disposition will not require
registration (the undersigned understands such counsel's opinion must concur
with the opinion by counsel for the Company and the undersigned must have been
informed of such compliance) will be required and that, notwithstanding the fact
that Rule 144 is not exclusive, the Staff of the SEC has expressed its opinion
that person proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rule 144 will have a
substantial burden of proof in establishing that an exemption from registration
is available for such offers or sales, and that such persons and their
respective brokers who participate in such transactions do so at their own risk.
Signature of Purchaser:
By:_________________________________
Name:
Title:
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