EXHIBIT 4.5
COMMON STOCK PURCHASE WARRANT
THIS WARRANT HAS BEEN, AND THE SHARES OF COMMON STOCK WHICH MAY BE PURCHASED
PURSUANT TO THE EXERCISE OF THIS WARRANT (THE "SHARES") WILL BE, ACQUIRED SOLELY
FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY
DISTRIBUTION THEREOF. NEITHER THIS WARRANT NOR THE SHARES (TOGETHER, THE
"SECURITIES") HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH
REGISTRATION OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND
ITS COUNSEL THAT SUCH DISPOSITION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF THE SECURITIES ACT AND OF ANY APPLICABLE STATE
SECURITIES LAWS.
NO. C-5 VOID AFTER AUGUST 10, 2003
▇▇▇▇▇▇▇▇.▇▇▇, INC.
WARRANT TO PURCHASE 67,961 SHARES OF COMMON STOCK
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THIS CERTIFIES THAT, for value received, COAST BUSINESS CREDIT(R), a
division of Southern Pacific Thrift & Loan Association (the "HOLDER") is
entitled to subscribe for and purchase from ▇▇▇▇▇▇▇▇.▇▇▇, Inc., a California
corporation (the "COMPANY"), sixty seven thousand nine hundred sixty one
(67,961) shares (as adjusted pursuant to Section 3 hereof) of the fully paid and
nonassessable Common Stock, no par value (the "SHARES"), of the Company at the
price of $5.15 per share (the "EXERCISE PRICE") (as adjusted pursuant to Section
3 hereof), subject to the provisions and upon the terms and conditions
hereinafter set forth.
1. Method of Exercise; Payment.
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(a) Exercise Period. The purchase rights represented by this Warrant
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may be exercised by the Holder during the term of this Warrant (as set forth in
Section 11 hereof), in whole or in part, at any time after the date of issuance
by the surrender of this Warrant (with the notice of exercise form (the "NOTICE
OF EXERCISE") attached hereto as Exhibit A duly executed) at the principal
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office of the Company.
(b) Cash Exercise. This Warrant may be exercised by the payment to
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the Company of an amount equal to the Exercise Price multiplied by the number of
the Shares being purchased, at the election of the Holder, by wire transfer or
certified check payable to the order of the Company. The person or persons in
whose name(s) any certificate(s) representing Shares shall be issuable upon
exercise of this Warrant shall be deemed to have become the holder(s) of record
of, and shall be treated for all purposes as the record holder(s) of, the Shares
represented thereby (and such
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Shares shall be deemed to have been issued) immediately prior to the close of
business on the date or dates upon which this Warrant is exercised.
(c) Net Issue Exercise.
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i) In lieu of exercising this Warrant pursuant to Section 1(b)
above, the Holder may elect to receive a number of Shares equal to the value (as
determined below) of this Warrant (or the portion thereof being canceled) by
surrender of this Warrant at the principal office of the Company together with
Notice of Exercise in which alternative No. 1 is initialed by the Holder. In
such event, the Company shall issue to the Holder a number of Shares computed
using the following formula:
X = Y (A-B)
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A
Where X = the number of Shares to be issued to the Holder.
Y = the number of Shares subject to this Warrant (or the portion
thereof being canceled).
A = the fair market value of one share of the Company's Common Stock.
B = the Exercise Price (as adjusted to the date of such calculation).
(d) Fair Market Value. For purposes of this Section 1, the fair
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market value of the Company's Common Stock shall mean:
i) The average of the closing bid and asked prices of the
Company's Common Stock quoted in the over-the-counter market summary or the
closing price quoted on any exchange on which the Common Stock is listed,
whichever is applicable, as published in the Western Edition of The Wall Street
Journal for the ten trading days prior to the date of determination of fair
market value; or
ii) If the Company's Common Stock is not traded over-the-counter
or on an exchange, fair market value of the Common Stock per share shall be the
price per share as determined reasonably and in good faith by the Company's
Board of Directors. Receipt and formal acknowledgment by a duly authorized
representative of the Holder of the Shares issued upon exercise of this Warrant
by the Holder shall be conclusively deemed to be an acknowledgment and
acceptance of any such fair market value determination by the Company's Board of
Directors as the final and binding determination of such value for purposes of
this Warrant.
(e) Stock Certificates. In the event of any exercise of the rights
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represented by this Warrant, certificates for the shares of Common Stock so
purchased shall be delivered to the Holder within a reasonable time and, unless
this Warrant has been fully exercised or has expired, a
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new Warrant representing the shares with respect to which this Warrant shall not
have been exercised shall also be issued to the Holder within such time.
2. Stock Fully Paid; Reservation of Shares. All of the Shares issuable
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upon the exercise of the rights represented by this Warrant will, upon issuance
and receipt of the Exercise Price therefor, be fully paid and nonassessable, and
free from all preemptive rights, rights of first refusal or first offer, taxes,
liens and charges with respect to the issuance thereof. During the period within
which the rights represented by this Warrant may be exercised, the Company shall
at all times have authorized and reserved for issuance sufficient shares of its
Common Stock to provide for the exercise of the rights represented by this
Warrant.
3. Adjustment of Exercise Price and Number of Shares. Subject to the
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provisions of Section 11 hereof, the number and kind of Shares purchasable upon
the exercise of this Warrant and the Exercise Price therefor shall be subject to
adjustment from time to time upon the occurrence of certain events, as follows:
(a) Reclassification, Consolidation or Merger. In case of any
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reclassification of the Common Stock (other than a change in par value, or as a
result of a subdivision or combination), or in case of any consolidation or
merger of the Company with or into another corporation (other than a
consolidation or merger with another corporation in which the Company is a
continuing corporation and in which the Company's shareholders immediately
preceding such consolidation or merger own at least 50% of the voting securities
of the Company following such consolidation or merger and which does not result
in any reclassification of the Shares issuable upon exercise of this Warrant),
or in case of any sale of all or substantially all of the assets of the Company,
the Company, or such successor or purchasing corporation as the case may be,
shall execute a new Warrant, providing that the holder of this Warrant shall
have the right to exercise such new Warrant, and procure upon such exercise and
payment of the same aggregate Exercise Price, in lieu of the Shares of Common
Stock theretofore issuable upon exercise of this Warrant, the kind and amount of
shares of stock, other securities, money and property receivable upon such
reclassification, change, consolidation, sale of all or substantially all of the
Company's assets or merger by a holder of an equivalent number of shares of
Common Stock. Such new Warrant shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section 3. The provisions of this subsection (a), subject to Section 11 hereof,
shall similarly apply to successive reclassifications, consolidations, mergers,
and the sale of all or substantially all of the Company's assets.
(b) Stock Splits, Dividends and Combinations. In the event that the
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Company shall at any time subdivide the outstanding shares of Common Stock, or
shall issue a stock dividend on its outstanding shares of Common Stock, the
number of Shares issuable upon exercise of this Warrant immediately prior to
such subdivision or to the issuance of such stock dividend shall be
proportionately increased, and the Exercise Price shall be proportionately
decreased, and in the event that the Company shall at any time combine the
outstanding shares of Common Stock, the number of Shares issuable upon exercise
of this Warrant immediately prior to such combination shall be proportionately
decreased, and the Exercise Price shall be proportionately increased, effective
at the close of business on the date of such subdivision, stock dividend or
combination, as the case may be.
(c) Certain Events. If any change in the outstanding Common Stock of
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the Company or any other event occurs as to which the other provisions of this
Section 3 are not strictly
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applicable or if strictly applicable would not fairly protect the purchase
rights of the Holder of the Warrant in accordance with such provisions, then the
Board of Directors of the Company shall make an adjustment in the number and
class of shares available under the Warrant, the Exercise Price or the
application of such provisions, so as to protect such purchase rights as
aforesaid. The adjustment shall be such as will give the Holder of the Warrant
upon exercise for the same aggregate Exercise Price the total number, class and
kind of shares as he would have owned had the Warrant been exercised prior to
the event and had he continued to hold such shares until after the event
requiring adjustment.
4. Notices.
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(a) Upon any adjustment of the Exercise Price and any increase or
decrease in the number of Shares purchasable upon the exercise of this Warrant
in accordance with Section 3 hereof, then, and in each such case, the Company,
within thirty (30) days thereafter, shall give written notice thereof to the
Holder at the address of such Holder as shown on the books of the Company which
notice shall be signed by the Company's Chief Financial Officer and state the
Exercise Price as adjusted and, if applicable, the increased or decreased number
of Shares purchasable upon the exercise of this Warrant, setting forth in
reasonable detail the method of calculation of each and the factors upon which
such calculations are based.
(b) The Company shall send to the Holder not less than thirty (30)
days before the expiration of this Warrant, a written notice of the date on
which this Warrant will expire.
(c) Any written notice by the Company required or permitted hereunder
shall be given by hand delivery or first class mail, postage prepaid, addressed
to the Holder at the address shown on the books of the Company for the Holder.
5. Other Notices. If at any time:
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(a) the Company shall declare any cash dividend upon its Common
Stock;
(b) the Company shall declare any dividend upon its Common Stock
payable in stock or make any special dividend or other distribution to the
holders of its Common Stock;
(c) the Company shall offer for subscription pro rata to the holders
of its Common Stock any additional shares of stock of any class or other rights;
(d) there shall be any capital reorganization or reclassification of
the capital stock of the Company; or consolidation or merger of the Company
with, or sale of all or substantially all of its assets to, another corporation.
(e) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Company; or
(f) there shall be an initial public offering of the Company's
securities;
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then, in any one or more of said cases, the Company shall give, by first class
mail, postage prepaid, addressed to the Holder of this Warrant at the address of
such Holder as shown on the books of the Company, (a) at least thirty (30) days'
prior written notice of the date on which the books of the Company shall close
or a record shall be taken for determining rights to vote in respect of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding-up, and (b) in the case of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation,
winding-up or public offering, at least thirty (30) days' prior written notice
of the date when the same shall take place; provided, however, that the Holder
shall make a best efforts attempt to respond to such notice as early as possible
after the receipt thereof; and provided further that the Company shall be
required to give prior written notice at least fifteen (15) days in advance of
any action contemplated by Sections 5 (a) - (c) above. Any notice given in
accordance with the foregoing sentence shall also specify, in the case of any
such dividend, distribution or subscription rights, the date on which the
holders of Common Stock shall be entitled thereto. Any notice given in
accordance with the foregoing clause (b) shall also specify the date on which
the holders of Common Stock shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation,
winding-up, conversion or public offering, as the case may be.
6. Transfer of Warrant. This Warrant may only be transferred in
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compliance with federal and state securities laws and, except as provided below,
may not be transferred except with the prior written consent of the Company,
which shall not be unreasonably withheld or delayed, and any purported transfer
without such prior written consent shall be null and void; provided, however,
that the Company may withhold its consent to transfer or assignment of this
Warrant to any person or entity who is deemed to be a competitor or prospective
competitor of the Company, such determination to be made in the reasonable
judgment of the Board of Directors of the Company. Notwithstanding the
foregoing, Holder may freely transfer this Warrant or portion thereof to (i)
affiliates and partners of Holder, (ii) at any time after the 180 day period
following the closing of an initial firm commitment underwritten public offering
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "Initial Public Offering"), or (iii) to an investment bank
or other underwriting institution in connection with an underwritten public
offering.
7. Condition to Exercise of Warrant.
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(a) Unless exercised pursuant to an effective registration statement
under the Securities Act which includes the Shares so exercised, it shall be a
condition to any exercise of this Warrant that the Company shall have received,
at the time of such exercise, a representation in writing from the recipient in
the form attached hereto as Exhibit A-1 that the Shares being issued upon
exercise are being acquired for investment and not with a view to any sale or
distribution thereof.
(b) Each certificate evidencing the Shares issued upon exercise of
this Warrant shall be stamped or imprinted with a legend substantially in the
following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY
DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT") OR ANY STATE SECURITIES
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LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT.
8. Fractional Shares. No fractional shares of Common Stock will be issued
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in connection with any exercise hereunder, but in lieu of such fractional shares
the Company shall make a cash payment therefor upon the basis of the Exercise
Price then in effect.
9. Representations and Warranties of the Company. The Company represents
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and warrants to the Holder as follows:
(a) This Warrant has been duly authorized and executed by the Company
and is a valid and binding obligation of the Company enforceable in accordance
with its terms;
(b) The Shares have been duly authorized and reserved for issuance by
the Company and, when issued in accordance with the terms hereof, will be
validly issued, fully paid and nonassessable;
(c) The rights, preferences, privileges and restrictions granted to
or imposed upon the Shares and the holders thereof are as set forth in the
Company's Articles of Incorporation, a true and complete copy of which has been
delivered to the original Holder of this Warrant; and
(d) The execution and delivery of this Warrant are not, and the
issuance of the Shares upon exercise of this Warrant in accordance with the
terms hereof will not be, inconsistent with the Company's Articles of
Incorporation or Bylaws, as amended.
10. Representations and Warranties by the Holder. The Holder represents
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and warrants to the Company as follows:
(a) This Warrant is being acquired for its own account, for
investment and not with a view to, or for resale in connection with, any
distribution or public offering thereof within the meaning of the Securities
Act. Upon exercise of this Warrant, the Holder shall, if so requested by the
Company, confirm in writing, in a form reasonably satisfactory to the Company,
that the Shares issuable upon exercise of this Warrant are being acquired for
investment and not with a view toward distribution or resale.
(b) The Holder understands that the Warrant and the Shares have not
been registered under the Securities Act by reason of their issuance in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act pursuant to Section 4(2) thereof, and that they must be held
by the Holder indefinitely, and that the Holder must therefore bear the economic
risk of such investment indefinitely, unless a subsequent disposition thereof is
registered under the Securities Act or is exempted from such registration. The
Holder further understands that the Shares have not been qualified under the
California Securities Law of 1968 (the "CALIFORNIA LAW") by reason of their
issuance in a transaction exempt from the qualification requirements of the
California Law pursuant to Section 25102(f) thereof, which exemption depends
upon, among other things, the bona fide nature of the Holder's investment intent
expressed above.
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(c) The Holder has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the
purchase of this Warrant and the Shares purchasable pursuant to the terms of
this Warrant and of protecting its interests in connection therewith.
(d) The Holder is able to bear the economic risk of the purchase of
the Shares pursuant to the terms of this Warrant.
11. Rights of Shareholders. No holder of this Warrant shall be entitled,
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as a Warrant holder, to vote or receive dividends or be deemed the holder of
Common Stock or any other securities of the Company which may at any time be
issuable on the exercise hereof for any purpose, nor shall anything contained
herein be construed to confer upon the holder of this Warrant, as such, any of
the rights of a shareholder of the Company or any right to vote for the election
of directors or upon any matter submitted to shareholders at any meeting
thereof, or to give or withhold consent to any corporate action (whether upon
any recapitalization, issuance of stock, reclassification of stock, change of
par value, consolidation, merger, conveyance, or otherwise) or to receive notice
of meetings, or to receive dividends or subscription rights or otherwise until
the Warrant shall have been exercised and the Shares purchasable upon the
exercise hereof shall have become deliverable, as provided herein.
12. Expiration of Warrant. This Warrant shall expire and shall no longer
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be exercisable as of 5:00 p.m., California local time, on August 10, 2003.
13. Miscellaneous.
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(a) This Warrant is being delivered in the State of California and
shall be construed and enforced in accordance with and governed by the laws of
such State.
(b) The headings in this Warrant are for purposes of reference only,
and shall not limit or otherwise affect any of the terms hereof.
(c) The terms of this Warrant shall be binding upon and shall inure
to the benefit of any successors or assigns of the Company and of the holder or
holders hereof and of the Shares issued or issuable upon the exercise hereof.
(d) This Warrant and the other documents delivered pursuant hereto
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof.
(e) The Company shall not, by amendment of its Articles of
Incorporation, or through any other means, directly or indirectly, avoid or seek
to avoid the observance or performance of any of the terms of this Warrant and
shall 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 holder of this Warrant against impairment.
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(f) Upon receipt of evidence reasonably satisfactory to the Company
of the loss, theft, destruction or mutilation of this Warrant and, in the case
of any such loss, theft or destruction, upon delivery of an indemnity agreement
reasonably satisfactory in form and amount to the Company or, in the case of any
such mutilation, upon surrender and cancellation of such Warrant, the Company at
its expense will execute and deliver to the holder of record, in lieu thereof, a
new Warrant of like date and tenor.
(g) This Warrant and any provision hereof may be amended, waived or
terminated only by an instrument in writing signed by the Company and the
Holder.
(h) Receipt of this Warrant by the holder hereof shall constitute
acceptance of and agreement to the foregoing terms and conditions.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
Issued this 10/th/ day of August, 1998.
▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Chief Executive Officer
ACKNOWLEDGED AND ACCEPTED:
__________________________________
Warrant Holder
Address:
Telephone: _______________________
Fax: _____________________________
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EXHIBIT A
NOTICE OF EXERCISE
TO: ▇▇▇▇▇▇▇▇.▇▇▇, INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
1. In lieu of exercising the attached Warrant for cash or check, the
undersigned hereby elects to effect the net issuance provision of Section 1(b)
of this Warrant and receive ____________ (leave blank if you choose Alternative
No. 2 below) shares of Common Stock pursuant to the terms of this Warrant.
(Initial here if the undersigned elects this alternative). ____________.
2. The undersigned hereby elects to purchase ____________ (leave blank if
you choose alternative No. 1 above) shares of Common Stock of ▇▇▇▇▇▇▇▇.▇▇▇, INC.
pursuant to the terms of this Warrant, and tenders herewith payment of the
purchase price of such shares in full.
3. Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
_________________________________
(Name)
_________________________________
_________________________________
(Address)
4. [APPLICABLE ONLY IF THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
OF THE WARRANT ARE NOT REGISTERED FOR RESALE UNDER THE SECURITIES ACT OF 1933,
AS AMENDED] The undersigned hereby represents and warrants that the aforesaid
shares of Common Stock 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, and that all representations and
warranties of the undersigned set forth in Section 9 of the attached Warrant are
true and correct as of the date hereof. In support thereof, the undersigned
agrees to execute an Investment Representation Statement in a form substantially
similar to the form attached to the Warrant as Exhibit A-1.
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______________________________________
(Signature and Date)
Title: _______________________________
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EXHIBIT A-1
INVESTMENT REPRESENTATION STATEMENT
PURCHASER : _________________________
SELLER : ▇▇▇▇▇▇▇▇.▇▇▇, INC.
COMPANY : ▇▇▇▇▇▇▇▇.▇▇▇, INC.
SECURITY : COMMON STOCK ISSUED UPON EXERCISE OF THE COMMON STOCK
PURCHASE WARRANT ISSUED ON AUGUST 10, 1998
AMOUNT : __________ SHARES
DATE : ______________
In connection with the purchase of the above-listed Securities, I, the
Purchaser, represent to the Seller and to the Company the following:
(a) I am aware of the Company's business affairs and financial condition,
and have acquired sufficient information about the Company to reach an informed
and knowledgeable decision to acquire the Securities. I am purchasing these
Securities for my 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) I understand 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 my investment intent
as expressed herein. In this connection, I understand that, in the view of the
Securities and Exchange Commission (the "SEC"), the statutory basis for such
exemption may be unavailable if my 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) I further understand that the Securities must be held indefinitely
unless subsequently registered under the Securities Act or unless an exemption
from registration is otherwise available. Moreover, I understand that the
Company is under no obligation to register the Securities. In addition, I
understand that the certificate evidencing the Securities will be imprinted with
a legend which prohibits the transfer of the Securities unless they are
registered or such registration is not required in the reasonable opinion of
counsel for the Company.
(d) I am 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
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indirectly, from the issuer thereof, in a non-public offering subject to the
satisfaction of certain conditions.
The Securities may be resold in certain limited circumstances subject to
the provisions of Rule 144, which requires among other things: (1) the
availability of certain public information about the Company, (2) the resale
occurring not less than one year after the party has purchased, and made full
payment for, within the meaning of Rule 144, the securities to be sold; and, in
the case of an affiliate, or of a non-affiliate who has held the securities less
than two years, (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) and the amount of
securities being sold during any three month period not exceeding the specified
limitations stated therein, if applicable.
(e) I agree, in connection with the Company's initial underwritten public
offering of the Company's securities, (1) not to sell, make short sale of, loan,
grant any options for the purchase of, or otherwise dispose of any shares of
Common Stock of the Company held by me (other than those shares included in the
registration) without the prior written consent of the Company or the
underwriters managing such initial underwritten public offering of the Company's
securities for a period not to exceed one hundred eighty (180) days from the
effective date of such registration, and (2) I further agree to execute any
agreement reflecting (1) above as may be requested by the underwriters at the
time of the public offering; provided, however that the officers and directors
of the Company who own the stock of the Company also agree to such restrictions.
(f) I further understand that in the event all of the applicable
requirements of Rule 144 are not satisfied, registration under the Securities
Act, compliance with Regulation A, or some other registration exemption will be
required; and that, notwithstanding the fact that Rule 144 is not exclusive, the
Staff of the SEC has expressed its opinion that persons 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)
By:___________________________________
Title:________________________________
Date:_________________________________
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