AUTOWEB, INC. AND __________________, AS WARRANT AGENT FORM OF COMMON STOCK WARRANT AGREEMENT DATED AS OF _________________ AUTOWEB, INC. FORM OF COMMON STOCK WARRANT AGREEMENT
Exhibit 4.5
AND
__________________,
AS WARRANT AGENT
FORM
OF COMMON STOCK
WARRANT
AGREEMENT
DATED
AS OF _________________
FORM
OF COMMON STOCK WARRANT AGREEMENT
THIS COMMON STOCK WARRANT AGREEMENT
(this "Agreement"), dated
as of [●], between AUTOWEB,
INC., a Delaware corporation (the "Company"), and
[●], a [corporation] [national banking association] organized
and existing under the laws of [●], and having a corporate
trust office in [●], as warrant agent (the "Warrant
Agent").
WHEREAS, the Company proposes to sell
[If Warrants
are sold with other securities ● [title of such other
securities being offered] (the "Other Securities")
with] warrant certificates evidencing one or more warrants (the
"Warrants" or,
individually, a "Warrant")
representing the right to purchase Common Stock of the Company, par
value $0.001 per share (the "Warrant
Securities"), such warrant certificates and other warrant
certificates issued pursuant to this Agreement being herein called
the "Warrant
Certificates"; and
WHEREAS, the Company desires the Warrant
Agent to act on behalf of the Company, and the Warrant Agent is
willing so to act, in connection with the issuance, registration,
transfer, exchange, exercise and replacement of the Warrant
Certificates, and in this Agreement wishes to set forth, among
other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued,
registered, transferred, exchanged, exercised and
replaced.
NOW THEREFORE, in consideration of the
premises and of the mutual agreements herein contained, the parties
hereto agree as follows:
ARTICLE 1
ISSUANCE
OF WARRANTS AND EXECUTION AND
DELIVERY
OF WARRANT CERTIFICATES
1.1 Issuance
Of Warrants. [If Warrants alone
●Upon issuance, each Warrant Certificate shall evidence one
or more Warrants.] [If Other Securities and
Warrants ●Warrant Certificates will be issued in
connection with the issuance of the Other Securities but shall be
separately transferable and each Warrant Certificate shall evidence
one or more Warrants.] Each Warrant evidenced thereby shall
represent the right, subject to the provisions contained herein and
therein, to purchase one Warrant Security. [If Other Securities and
Warrants ●Warrant Certificates will be issued with the
Other Securities and each Warrant Certificate will evidence
[●] Warrants for each [$[●] principal amount]
[[●] shares] of Other Securities issued.]
1.2 Execution
And Delivery Of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, shall be dated the
date of its countersignature by the Warrant Agent and may have such
letters, numbers, or other marks of identification or designation
and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may
approve (execution thereof to be conclusive evidence of such
approval) and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which the Warrants may be
listed, or to conform to usage. The Warrant Certificates shall be
signed on behalf of the Company by any of its present or future
chief executive officers, presidents, senior vice presidents, vice
presidents, chief financial officers, chief legal officers,
treasurers, assistant treasurers, controllers, assistant
controllers, secretaries or assistant secretaries under its
corporate seal reproduced thereon. Such signatures may be manual or
facsimile signatures of such authorized officers and may be
imprinted or otherwise reproduced on the Warrant Certificates. The
seal of the Company may be in the form of a facsimile thereof and
may be impressed, affixed, imprinted or otherwise reproduced on the
Warrant Certificates.
No
Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant
Certificate has been countersigned by the manual signature of the
Warrant Agent. Such signature by the Warrant Agent upon any Warrant
Certificate executed by the Company shall be conclusive evidence
that the Warrant Certificate so countersigned has been duly issued
hereunder.
In case
any officer of the Company who shall have signed any of the Warrant
Certificates either manually or by facsimile signature shall cease
to be such officer before the Warrant Certificates so signed shall
have been countersigned and delivered by the Warrant Agent, such
Warrant Certificates may be countersigned and delivered
notwithstanding that the person who signed such Warrant
Certificates ceased to be such officer of the Company; and any
Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although
at the date of the execution of this Agreement any such person was
not such officer.
The
term "holder" or
"holder of a
Warrant Certificate" as used herein shall mean any person in
whose name at the time any Warrant Certificate shall be registered
upon the books to be maintained by the Warrant Agent for that
purpose.
1.3 Issuance
Of Warrant Certificates. Warrant Certificates evidencing the
right to purchase Warrant Securities may be executed by the Company
and delivered to the Warrant Agent upon the execution of this
Warrant Agreement or from time to time thereafter. The Warrant
Agent shall, upon receipt of Warrant Certificates duly executed on
behalf of the Company, countersign such Warrant Certificates and
shall deliver such Warrant Certificates to or upon the order of the
Company.
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF
WARRANTS
2.1 Warrant
Price. During the period specified in Section 2.2, each
Warrant shall, subject to the terms of this Warrant Agreement and
the applicable Warrant Certificate, entitle the holder thereof to
purchase the number of Warrant Securities specified in the
applicable Warrant Certificate at an exercise price of $[●]
per Warrant Security, subject to adjustment upon the occurrence of
certain events, as hereinafter provided. Such purchase price per
Warrant Security is referred to in this Agreement as the
"Warrant
Price."
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2.2 Duration
Of Warrants. Each Warrant may be exercised in whole or in
part at any time, as specified herein, on or after [the date
thereof] [●] and at or before [●] p.m., [City] time, on
[●] or such later date as the Company may designate by notice
to the Warrant Agent and the holders of Warrant Certificates mailed
to their addresses as set forth in the record books of the Warrant
Agent (the "Expiration Date").
Each Warrant not exercised at or before [●] p.m., [City]
time, on the Expiration Date shall become void, and all rights of
the holder of the Warrant Certificate evidencing such Warrant under
this Agreement shall cease.
2.3 Exercise
Of Warrants.
(a) During
the period specified in Section 2.2, the Warrants may be
exercised to purchase a whole number of Warrant Securities in
registered form by providing certain information as set forth on
the reverse side of the Warrant Certificate and by paying in full,
in lawful money of the United States of America, [in cash or by
certified check or official bank check in New York Clearing House
funds] [by bank wire transfer in immediately available funds] the
Warrant Price for each Warrant Security with respect to which a
Warrant is being exercised to the Warrant Agent at its corporate
trust office, provided that such exercise is subject to receipt
within five business days of such payment by the Warrant Agent of
the Warrant Certificate with the form of election to purchase
Warrant Securities set forth on the reverse side of the Warrant
Certificate properly completed and duly executed. The date on which
payment in full of the Warrant Price is received by the Warrant
Agent shall, subject to receipt of the Warrant Certificate as
aforesaid, be deemed to be the date on which the Warrant is
exercised; provided, however, that if, at the date of receipt of
such Warrant Certificates and payment in full of the Warrant Price,
the transfer books for the Warrant Securities purchasable upon the
exercise of such Warrants shall be closed, no such receipt of such
Warrant Certificates and no such payment of such Warrant Price
shall be effective to constitute the person so designated to be
named as the holder of record of such Warrant Securities on such
date, but shall be effective to constitute such person as the
holder of record of such Warrant Securities for all purposes at the
opening of business on the next succeeding day on which the
transfer books for the Warrant Securities purchasable upon the
exercise of such Warrants shall be opened, and the certificates for
the Warrant Securities in respect of which such Warrants are then
exercised shall be issuable as of the date on such next succeeding
day on which the transfer books shall next be opened, and until
such date the Company shall be under no duty to deliver any
certificate for such Warrant Securities. The Warrant Agent shall
deposit all funds received by it in payment of the Warrant Price in
an account of the Company maintained with it and shall advise the
Company by telephone at the end of each day on which a payment for
the exercise of Warrants is received of the amount so deposited to
its account. The Warrant Agent shall promptly confirm such
telephone advice to the Company in writing.
(b) The
Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company of (i) the number of Warrant Securities
with respect to which Warrants were exercised, (ii) the
instructions of each holder of the Warrant Certificates evidencing
such Warrants with respect to delivery of the Warrant Securities to
which such holder is entitled upon such exercise,
(iii) delivery of Warrant Certificates evidencing the balance,
if any, of the Warrants for the remaining Warrant Securities after
such exercise, and (iv) such other information as the Company
shall reasonably require.
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(c) As
soon as practicable after the exercise of any Warrant, the Company
shall issue to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant the Warrant Securities to which
such holder is entitled, in fully registered form, registered in
such name or names as may be directed by such holder. If fewer than
all of the Warrants evidenced by such Warrant Certificate are
exercised, the Company shall execute, and an authorized officer of
the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing Warrants for the number of Warrant
Securities remaining unexercised.
(d) The
Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities, and
in the event that any such transfer is involved, the Company shall
not be required to issue or deliver any Warrant Security until such
tax or other charge shall have been paid or it has been established
to the Company’s satisfaction that no such tax or other
charge is due.
(e) Prior
to the issuance of any Warrants there shall have been reserved, and
the Company shall at all times through the Expiration Date keep
reserved, out of its authorized but unissued Warrant Securities, a
number of shares sufficient to provide for the exercise of the
Warrants.
ARTICLE 3
OTHER
PROVISIONS RELATING TO RIGHTS OF HOLDERS OF
WARRANT
CERTIFICATES
3.1 No
Rights As Warrant Securityholder Conferred By Warrants Or Warrant
Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a
holder of Warrant Securities, including, without limitation, the
right to receive the payment of dividends or distributions, if any,
on the Warrant Securities or to exercise any voting rights, except
to the extent expressly set forth in this Agreement or the
applicable Warrant Certificate.
3.2 Lost,
Stolen, Mutilated Or Destroyed Warrant Certificates. Upon
receipt by the Warrant Agent of evidence reasonably satisfactory to
it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and/or
indemnity reasonably satisfactory to the Warrant Agent and the
Company and, in the case of mutilation, upon surrender of the
mutilated Warrant Certificate to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a
bona fide purchaser, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and
deliver, in exchange for or in lieu of the lost, stolen, destroyed
or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing Warrants for a like number of Warrant
Securities. Upon the issuance of any new Warrant Certificate under
this Section 3.2, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including
the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and
delivered pursuant to this Section 3.2 in lieu of any lost,
stolen or destroyed Warrant Certificate shall represent an
additional contractual obligation of the Company, whether or not
the lost, stolen or destroyed Warrant Certificate shall be at any
time enforceable by anyone, and shall be entitled to the benefits
of this Agreement equally and proportionately with any and all
other Warrant Certificates duly executed and delivered hereunder.
The provisions of this Section 3.2 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement of mutilated, lost, stolen or destroyed
Warrant Certificates.
3.3 Holder
Of Warrant Certificate May Enforce Rights. Notwithstanding
any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the holder
of any Warrant Securities or the holder of any other Warrant
Certificate, may, in such holder’s own behalf and for such
holder’s own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Company suitable to
enforce, or otherwise in respect of, such holder’s right to
exercise the Warrants evidenced by such holder’s Warrant
Certificate in the manner provided in such holder’s Warrant
Certificate and in this Agreement.
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3.4 Adjustments.
(a) In
case the Company shall at any time subdivide its outstanding shares
of Common Stock into a greater number of shares, the Warrant Price
in effect immediately prior to such subdivision shall be
proportionately reduced and the number of Warrant Securities
purchasable under the Warrants shall be proportionately increased.
Conversely, in case the outstanding shares of Common Stock of the
Company shall be combined into a smaller number of shares, the
Warrant Price in effect immediately prior to such combination shall
be proportionately increased and the number of Warrant Securities
purchasable under the Warrants shall be proportionately
decreased.
(b) If
at any time or from time to time the holders of Common Stock (or
any shares of stock or other securities at the time receivable upon
the exercise of the Warrants) shall have received or become
entitled to receive, without payment therefore,
(i) Common
Stock or any shares of stock or other securities which are at any
time directly or indirectly convertible into or exchangeable for
Common Stock, or any rights or options to subscribe for, purchase
or otherwise acquire any of the foregoing by way of dividend or
other distribution;
(ii) any
cash paid or payable otherwise than as a cash dividend paid or
payable out of the Company’s current or retained
earnings;
(iii) any
evidence of the Company’s indebtedness or rights to subscribe
for or purchase the Company’s indebtedness; or
(iv) Common
Stock or additional stock or other securities or property
(including cash) by way of spinoff, split-up, reclassification,
combination of shares or similar corporate rearrangement (other
than shares of Common Stock issued as a stock split or adjustments
in respect of which shall be covered by the terms of
Section 3.4(a) above), then and in each such case, the
holder of each Warrant shall, upon the exercise of the Warrant, be
entitled to receive, in addition to the number of Warrant
Securities receivable thereupon, and without payment of any
additional consideration therefore, the amount of stock and other
securities and property (including cash and indebtedness or rights
to subscribe for or purchase indebtedness) which such holder would
hold on the date of such exercise had he been the holder of record
of such Warrant Securities as of the date on which holders of
Common Stock received or became entitled to receive such shares or
all other additional stock and other securities and
property.
(c) In
case of (i) any reclassification, capital reorganization, or
change in the Common Stock of the Company (other than as a result
of a subdivision, combination, or stock dividend provided for in
Section 3.4(a) or Section 3.4(b) above),
(ii) share exchange, merger or similar transaction of the
Company with or into another person or entity (other than a share
exchange, merger or similar transaction in which the Company is the
acquiring or surviving corporation and which does not result in any
change in the Common Stock other than the issuance of additional
shares of Common Stock) or (iii) the sale, exchange, lease,
transfer or other disposition of all or substantially all of the
properties and assets of the Company as an entirety (in any such
case, a "Reorganization
Event"), then, as a condition of such Reorganization Event,
lawful provisions shall be made, and duly executed documents
evidencing the same from the Company or its successor shall be
delivered to the holders of the Warrants, so that the holders of
the Warrants shall have the right at any time prior to the
expiration of the Warrants to purchase, at a total price equal to
that payable upon the exercise of the Warrants, the kind and amount
of shares of stock and other securities and property receivable in
connection with such Reorganization Event by a holder of the same
number of Warrant Securities as were purchasable by the holders of
the Warrants immediately prior to such Reorganization Event. In any
such case appropriate provisions shall be made with respect to the
rights and interests of the holders of the Warrants so that the
provisions hereof shall thereafter be applicable with respect to
any shares of stock or other securities and property deliverable
upon exercise the Warrants, and appropriate adjustments shall be
made to the Warrant Price payable hereunder provided the aggregate
purchase price shall remain the same. In the case of any
transaction described in clauses (ii) and (iii) above,
the Company shall thereupon be relieved of any further obligation
hereunder or under the Warrants, and the Company as the predecessor
corporation may thereupon or at any time thereafter be dissolved,
wound up or liquidated. Such successor or assuming entity thereupon
may cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Warrants issuable
hereunder which heretofore shall not have been signed by the
Company, and may execute and deliver securities in its own name, in
fulfillment of its obligations to deliver Warrant Securities upon
exercise of the Warrants. All the Warrants so issued shall in all
respects have the same legal rank and benefit under this Agreement
as the Warrants theretofore or thereafter issued in accordance with
the terms of this Agreement as though all of such Warrants had been
issued at the date of the execution hereof. In any case of any such
Reorganization Event, such changes in phraseology and form (but not
in substance) may be made in the Warrants thereafter to be issued
as may be appropriate. The Warrant Agent may receive a written
opinion of legal counsel as conclusive evidence that any such
Reorganization Event complies with the provisions of this
Section 3.4.
(d) The
Company may, at its option, at any time until the Expiration Date,
reduce the then current Warrant Price to any amount deemed
appropriate by the Board of Directors of the Company for any period
not exceeding twenty consecutive days (as evidenced in a resolution
adopted by such Board of Directors), but only upon giving the
notices required by Section 3.5 at least ten days prior to
taking such action.
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(e) Except
as herein otherwise expressly provided, no adjustment in the
Warrant Price shall be made by reason of the issuance of shares of
Common Stock, or securities convertible into or exchangeable for
shares of Common Stock, or securities carrying the right to
purchase any of the foregoing or for any other reason
whatsoever.
(f) No
fractional Warrant Securities shall be issued upon the exercise of
Warrants. If more than one Warrant shall be exercised at one time
by the same holder, the number of full Warrant Securities which
shall be issuable upon such exercise shall be computed on the basis
of the aggregate number of Warrant Securities purchased pursuant to
the Warrants so exercised. Instead of any fractional Warrant
Security which would otherwise be issuable upon exercise of any
Warrant, the Company shall pay a cash adjustment in respect of such
fraction in an amount equal to the same fraction of the last
reported sale price (or bid price if there were no sales) per
Warrant Security, in either case as reported on the principal
registered national securities exchange on which the Warrant
Securities are listed or admitted to trading on the business day
that next precedes the day of exercise or, if the Warrant
Securities are not then listed or admitted to trading on any
registered national securities exchange, the average of the closing
high bid and low asked prices as reported on the OTC Bulletin Board
Service (the "OTC Bulletin Board")
operated by the Financial Industry Regulatory Authority, Inc.
("FINRA"
) or, if not available on the OTC Bulletin Board, then the average
of the closing high bid and low asked prices as reported on any
other U.S. quotation medium or inter-dealer quotation system on
such date, or if on any such date the Warrant Securities are not
listed or admitted to trading on a registered national securities
exchange, are not included in the OTC Bulletin Board, and are not
quoted on any other U.S. quotation medium or inter-dealer quotation
system, an amount equal to the same fraction of the average of the
closing bid and asked prices as furnished by any FINRA member firm
selected from time to time by the Company for that purpose at the
close of business on the business day that next precedes the day of
exercise.
(g) Whenever
the Warrant Price then in effect is adjusted as herein provided,
the Company shall mail to each holder of the Warrants at such
holder’s address as it shall appear on the books of the
Company a statement setting forth the adjusted Warrant Price then
and thereafter effective under the provisions hereof, together with
the facts, in reasonable detail, upon which such adjustment is
based.
(h) Notwithstanding
anything to the contrary herein, in no event shall the Warrant
Price, as adjusted in accordance with the terms hereof, be less
than the par value per share of Common Stock.
3.5 Notice
To Warrantholders. In case the Company shall (a) effect
any dividend or distribution described in Section 3.4(b),
(b) effect any Reorganization Event, (c) make any
distribution on or in respect of the Common Stock in connection
with the dissolution, liquidation or winding up of the Company, or
(d) reduce the then current Warrant Price pursuant to
Section 3.4(d), then the Company shall mail to each holder of
Warrants at such holder’s address as it shall appear on the
books of the Warrant Agent, at least ten days prior to the
applicable date hereinafter specified, a notice stating (x) the
record date for such dividend or distribution, or, if a record is
not to be taken, the date as of which the holders of record of
Common Stock that will be entitled to such dividend or distribution
are to be determined, (y) the date on which such Reorganization
Event, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable upon
such Reorganization Event, dissolution, liquidation or winding up,
or (z) the first date on which the then current Warrant Price shall
be reduced pursuant to Section 3.4(d). No failure to mail such
notice nor any defect therein or in the mailing thereof shall
affect any such transaction or any adjustment in the Warrant Price
required by Section 3.4.
3.6 [If
The Warrants Are Subject To Acceleration By The Company,
Insert ● Acceleration
Of Warrants By The Company.]
(a) At
any time on or after [●], the Company shall have the right to
accelerate any or all Warrants at any time by causing them to
expire at the close of business on the day next preceding a
specified date (the "Acceleration Date"),
if the Market Price (as hereinafter defined) of the Common Stock
equals or exceeds [●] percent ([●]%) of the then
effective Warrant Price on any twenty Trading Days (as hereinafter
defined) within a period of thirty consecutive Trading Days ending
no more than five Trading Days prior to the date on which the
Company gives notice to the Warrant Agent of its election to
accelerate the Warrants.
(b) "Market
Price" for each Trading Day shall be, if the Common Stock is
listed or admitted to trading on any registered national securities
exchange, the last reported sale price, regular way (or, if no such
price is reported, the average of the reported closing bid and
asked prices, regular way) of Common Stock, in either case as
reported on the principal registered national securities exchange
on which the Common Stock is listed or admitted to trading or, if
not listed or admitted to trading on any registered national
securities exchange, the average of the closing high bid and low
asked prices as reported on the OTC Bulletin Board operated by
FINRA, or if not available on the OTC Bulletin Board, then the
average of the closing high bid and low asked prices as reported on
any other U.S. quotation medium or inter-dealer quotation system,
or if on any such date the shares of Common Stock are not listed or
admitted to trading on a registered national securities exchange,
are not included in the OTC Bulletin Board, and are not quoted on
any other U.S. quotation medium or inter-dealer quotation system,
the average of the closing bid and asked prices as furnished by any
FINRA member firm selected from time to time by the Company for
that purpose. "Trading Day" shall
be each Monday through Friday, other than any day on which
securities are not traded in the system or on the exchange that is
the principal market for the Common Stock, as determined by the
Board of Directors of the Company.
(c) In
the event of an acceleration of less than all of the Warrants, the
Warrant Agent shall select the Warrants to be accelerated by lot,
pro rata or in such other manner as it deems, in its discretion, to
be fair and appropriate.
(d) Notice
of an acceleration specifying the Acceleration Date shall be sent
by mail first class, postage prepaid, to each registered holder of
a Warrant Certificate representing a Warrant accelerated at such
holder’s address appearing on the books of the Warrant Agent
not more than sixty days nor less than thirty days before the
Acceleration Date. Such notice of an acceleration also shall be
given no more than twenty days, and no less than ten days, prior to
the mailing of notice to registered holders of Warrants pursuant to
this Section 3.6, by publication at least once in a newspaper
of general circulation in the City of New York.
(e) Any
Warrant accelerated may be exercised until [●] p.m., [City]
time, on the business day next preceding the Acceleration Date. The
Warrant Price shall be payable as provided in
Section 2.]
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ARTICLE 4
EXCHANGE AND
TRANSFER OF WARRANT CERTIFICATES
4.1 Exchange
And Transfer Of Warrant Certificates. Upon surrender at the
corporate trust office of the Warrant Agent, Warrant Certificates
evidencing Warrants may be exchanged for Warrant Certificates in
other denominations evidencing such Warrants or the transfer
thereof may be registered in whole or in part; provided that such
other Warrant Certificates evidence Warrants for the same aggregate
number of Warrant Securities as the Warrant Certificates so
surrendered. The Warrant Agent shall keep, at its corporate trust
office, books in which, subject to such reasonable regulations as
it may prescribe, it shall register Warrant Certificates and
exchanges and transfers of outstanding Warrant Certificates, upon
surrender of the Warrant Certificates to the Warrant Agent at its
corporate trust office for exchange or registration of transfer,
properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all
in form satisfactory to the Company and the Warrant Agent. No
service charge shall be made for any exchange or registration of
transfer of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any stamp or other tax or
other governmental charge that may be imposed in connection with
any such exchange or registration of transfer. Whenever any Warrant
Certificates are so surrendered for exchange or registration of
transfer, an authorized officer of the Warrant Agent shall manually
countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company, as so requested. The Warrant Agent shall
not be required to effect any exchange or registration of transfer
which will result in the issuance of a Warrant Certificate
evidencing a Warrant for a fraction of a Warrant Security or a
number of Warrants for a whole number of Warrant Securities and a
fraction of a Warrant Security. All Warrant Certificates issued
upon any exchange or registration of transfer of Warrant
Certificates shall be the valid obligations of the Company,
evidencing the same obligations and entitled to the same benefits
under this Agreement as the Warrant Certificate surrendered for
such exchange or registration of transfer.
4.2 Treatment
Of Holders Of Warrant Certificates. The Company, the Warrant
Agent and all other persons may treat the registered holder of a
Warrant Certificate as the absolute owner thereof for any purpose
and as the person entitled to exercise the rights represented by
the Warrants evidenced thereby, any notice to the contrary
notwithstanding.
4.3 Cancellation
Of Warrant Certificates. Any Warrant Certificate surrendered
for exchange, registration of transfer or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly
canceled by the Warrant Agent and shall not be reissued and, except
as expressly permitted by this Agreement, no Warrant Certificate
shall be issued hereunder in exchange therefor or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or
otherwise dispose of canceled Warrant Certificates in a manner
satisfactory to the Company.
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ARTICLE 5
CONCERNING THE
WARRANT AGENT
5.1 Warrant
Agent. The Company hereby appoints [●] as Warrant
Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein
set forth, and [●] hereby accepts such appointment. The
Warrant Agent shall have the powers and authority granted to and
conferred upon it in the Warrant Certificates and hereby and such
further powers and authority to act on behalf of the Company as the
Company may hereafter grant to or confer upon it. All of the terms
and provisions with respect to such powers and authority contained
in the Warrant Certificates are subject to and governed by the
terms and provisions hereof.
5.2 Conditions
Of Warrant Agent’s Obligations. The Warrant Agent
accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the
Company agrees and to all of which the rights hereunder of the
holders from time to time of the Warrant Certificates shall be
subject:
(a) Compensation
And Indemnification. The Company agrees promptly to pay the
Warrant Agent the compensation to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred without negligence, bad faith or
willful misconduct by the Warrant Agent in connection with the
services rendered hereunder by the Warrant Agent. The Company also
agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence, bad faith or willful misconduct on the part of the
Warrant Agent, arising out of or in connection with its acting as
Warrant Agent hereunder, including the reasonable costs and
expenses of defending against any claim of such
liability.
(b) Agent
For The Company. In acting under this Warrant Agreement and
in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any
obligations or relationship of agency or trust for or with any of
the holders of Warrant Certificates or beneficial owners of
Warrants.
(c) Counsel.
The Warrant Agent may consult with counsel satisfactory to it,
which may include counsel for the Company, and the written advice
of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with the advice of
such counsel.
(d) Documents.
The Warrant Agent shall be protected and shall incur no liability
for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented
or signed by the proper parties.
(e) Certain
Transactions. The Warrant Agent, and its officers, directors
and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any
financial or other transaction with the Company and may act on, or
as depositary, trustee or agent for, any committee or body of
holders of Warrant Securities or other obligations of the Company
as freely as if it were not the Warrant Agent hereunder. Nothing in
this Warrant Agreement shall be deemed to prevent the Warrant Agent
from acting as trustee under any indenture to which the Company is
a party.
(f) No
Liability For Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest on
any monies at any time received by it pursuant to any of the
provisions of this Agreement or of the Warrant
Certificates.
(g) No
Liability For Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any
of the Warrant Certificates (except as to the Warrant Agent’s
countersignature thereon).
(h) No
Responsibility For Representations. The Warrant Agent shall
not be responsible for any of the recitals or representations
herein or in the Warrant Certificates (except as to the Warrant
Agent’s countersignature thereon), all of which are made
solely by the Company.
(i) No
Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Warrant
Certificates against the Warrant Agent. The Warrant Agent shall not
be under any obligation to take any action hereunder which may tend
to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured
to it. The Warrant Agent shall not be accountable or under any duty
or responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it
to the Company pursuant to this Agreement or for the application by
the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have no duty or responsibility in case of any
default by the Company in the performance of its covenants or
agreements contained herein or in the Warrant Certificates or in
the case of the receipt of any written demand from a holder of a
Warrant Certificate with respect to such default, including,
without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings
at law or otherwise or, except as provided in Section 6.2
hereof, to make any demand upon the Company.
-7-
5.3 Resignation,
Removal And Appointment Of Successors.
(a) The
Company agrees, for the benefit of the holders from time to time of
the Warrant Certificates, that there shall at all times be a
Warrant Agent hereunder until all the Warrants have been exercised
or are no longer exercisable.
(b) The
Warrant Agent may at any time resign as agent by giving written
notice to the Company of such intention on its part, specifying the
date on which its desired resignation shall become effective;
provided that such date shall not be less than three months after
the date on which such notice is given unless the Company otherwise
agrees. The Warrant Agent hereunder may be removed at any time by
the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the intended
date when it shall become effective. Such resignation or removal
shall take effect upon the appointment by the Company, as
hereinafter provided, of a successor Warrant Agent (which shall be
a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust
powers) and the acceptance of such appointment by such successor
Warrant Agent. The obligation of the Company under
Section 5.2(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant
Agent.
(c) In
case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or shall commence a voluntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or
under any other applicable Federal or state bankruptcy, insolvency
or similar law or shall consent to the appointment of or taking
possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or
its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to
pay its debts generally as they become due, or shall take corporate
action in furtherance of any such action, or a decree or order for
relief by a court having jurisdiction in the premises shall have
been entered in respect of the Warrant Agent in an involuntary case
under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or state bankruptcy, insolvency or
similar law, or a decree or order by a court having jurisdiction in
the premises shall have been entered for the appointment of a
receiver, custodian, liquidator, assignee, trustee, sequestrator
(or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the
Warrant Agent or of its property or affairs for the purpose of
rehabilitation, conservation, winding up or liquidation, a
successor Warrant Agent, qualified as aforesaid, shall be appointed
by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a
successor Warrant Agent and acceptance by the successor Warrant
Agent of such appointment, the Warrant Agent shall cease to be
Warrant Agent hereunder.
(d) Any
successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such
successor Warrant Agent, without any further act, deed or
conveyance, shall become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant
Agent hereunder, and such predecessor, upon payment of its charges
and disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Warrant Agent
shall be entitled to receive, all monies, securities and other
property on deposit with or held by such predecessor, as Warrant
Agent hereunder.
(e) Any
corporation into which the Warrant Agent hereunder may be merged or
converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a
party, or any corporation to which the Warrant Agent shall sell or
otherwise transfer all or substantially all the assets and business
of the Warrant Agent, provided that it shall be qualified as
aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
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-8-
ARTICLE 6
MISCELLANEOUS
6.1 Amendment.
This Agreement may be amended by the parties hereto, without the
consent of the holder of any Warrant Certificate, for the purpose
of curing any ambiguity, or of curing, correcting or supplementing
any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this
Agreement as the Company and the Warrant Agent may deem necessary
or desirable; provided that such action shall not materially
adversely affect the interests of the holders of the Warrant
Certificates.
6.2 Notices
And Demands To The Company And Warrant Agent. If the Warrant
Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions
of the Warrant Certificates, the Warrant Agent shall promptly
forward such notice or demand to the Company.
6.3 Addresses.
Any communication from the Company to the Warrant Agent with
respect to this Agreement shall be addressed to [●],
Attention: [●] and any communication from the Warrant Agent
to the Company with respect to this Agreement shall be addressed to
AutoWeb, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: [●] (or such other address as shall be
specified in writing by the Warrant Agent or by the
Company).
6.4 Governing
Law. This Agreement and each Warrant Certificate issued
hereunder shall be governed by and construed in accordance with the
laws of the State of New York.
6.5 Delivery
Of Prospectus. The Company shall furnish to the Warrant
Agent sufficient copies of a prospectus meeting the requirements of
the Securities Act of 1933, as amended, relating to the Warrant
Securities deliverable upon exercise of the Warrants (the
"Prospectus"), and the Warrant Agent agrees that upon the exercise
of any Warrant, the Warrant Agent will deliver to the holder of the
Warrant Certificate evidencing such Warrant, prior to or
concurrently with the delivery of the Warrant Securities issued
upon such exercise, a Prospectus. The Warrant Agent shall not, by
reason of any such delivery, assume any responsibility for the
accuracy or adequacy of such Prospectus.
6.6 Obtaining
Of Governmental Approvals. The Company will from time to
time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of
governmental agencies and authorities and securities act filings
under United States Federal and state laws (including without
limitation a registration statement in respect of the Warrants and
Warrant Securities under the Securities Act of 1933, as amended),
which may be or become requisite in connection with the issuance,
sale, transfer, and delivery of the Warrant Securities issued upon
exercise of the Warrants, the issuance, sale, transfer and delivery
of the Warrants or upon the expiration of the period during which
the Warrants are exercisable.
6.7 Persons
Having Rights Under Warrant Agreement. Nothing in this
Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any
right, remedy or claim under or by reason of this
Agreement.
6.8 Headings.
The descriptive headings of the several Articles and Sections of
this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the
provisions hereof.
6.9 Counterparts.
This Agreement may be executed in any number of counterparts, each
of which as so executed shall be deemed to be an original, but such
counterparts shall together constitute but one and the same
instrument.
6.10 Inspection
Of Agreement. A copy of this Agreement shall be available at
all reasonable times at the principal corporate trust office of the
Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit
his Warrant Certificate for inspection by it.
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-9-
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed all as of the day and year first above
written.
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By:
___________________________________
Name: _______________________________
Title:
________________________________
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ATTEST:
_______________________________
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_______________________________
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COUNTERSIGNED
[●], as
Warrant Agent
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By:
_______________________________
Name: _______________________________
Title:
________________________________
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ATTEST:
_______________________________
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_______________________________
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[SIGNATURE
PAGE TO AUTOWEB, INC.
FORM OF
COMMON STOCK WARRANT AGREEMENT]
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-10-
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
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[Form
of Legend if Warrants are not immediately
exercisable.]
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[Prior
to [●] Warrants evidenced by this Warrant Certificate cannot
be exercised.]
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EXERCISABLE
ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED
HEREIN
VOID
AFTER [●] P.M., [City] time, ON [●].
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A-1
WARRANT
CERTIFICATE REPRESENTING
WARRANTS
TO PURCHASE
COMMON
STOCK, PAR VALUE $0.001 PER SHARE
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No.
[●]
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[●]
Warrants
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This
certifies that or registered assigns is the registered owner of the
above indicated number of Warrants, each Warrant entitling such
owner to purchase, at any time [after [●] p.m., [City] time,
[on [●] and] on or before [●] p.m., [City] time, on
[●] shares of Common Stock, par value $0.001 per share (the
"Warrant
Securities"), of AutoWeb, Inc. (the "Company") on the
following basis: during the period from [●], through and
including [●], the exercise price per Warrant Security will
be $[●], subject to adjustment as provided in the Warrant
Agreement (as hereinafter defined) (the "Warrant Price"). The
Holder may exercise the Warrants evidenced hereby by providing
certain information set forth on the back hereof and by paying in
full, in lawful money of the United States of America, [in cash or
by certified check or official bank check in New York Clearing
House funds] [by bank wire transfer in immediately available
funds], the Warrant Price for each Warrant Security with respect to
which this Warrant is exercised to the Warrant Agent (as
hereinafter defined) and by surrendering this Warrant Certificate,
with the purchase form on the back hereof duly executed, at the
corporate trust office of [name of Warrant Agent], or its successor
as warrant agent (the "Warrant Agent"),
which is, on the date hereof, at the address specified on the
reverse hereof, and upon compliance with and subject to the
conditions set forth herein and in the Warrant Agreement (as
hereinafter defined).
The
term "Holder" as used
herein shall mean the person in whose name at the time this Warrant
Certificate shall be registered upon the books to be maintained by
the Warrant Agent for that purpose pursuant to Section 4 of
the Warrant Agreement.
The
Warrants evidenced by this Warrant Certificate may be exercised to
purchase a whole number of Warrant Securities in registered form.
Upon any exercise of fewer than all of the Warrants evidenced by
this Warrant Certificate, there shall be issued to the Holder
hereof a new Warrant Certificate evidencing Warrants for the number
of Warrant Securities remaining unexercised.
This
Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of [●] (the "Warrant Agreement"),
between the Company and the Warrant Agent and is subject to the
terms and provisions contained in the Warrant Agreement, to all of
which terms and provisions the Holder of this Warrant Certificate
consents by acceptance hereof. Copies of the Warrant Agreement are
on file at the above-mentioned office of the Warrant
Agent.
Transfer of this
Warrant Certificate may be registered when this Warrant Certificate
is surrendered at the corporate trust office of the Warrant Agent
by the registered owner or such owner’s assigns, in the
manner and subject to the limitations provided in the Warrant
Agreement.
After
countersignature by the Warrant Agent and prior to the expiration
of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent for
Warrant Certificates representing Warrants for the same aggregate
number of Warrant Securities.
This
Warrant Certificate shall not entitle the Holder hereof to any of
the rights of a holder of the Warrant Securities, including,
without limitation, the right to receive payments of dividends or
distributions, if any, on the Warrant Securities (except to the
extent set forth in the Warrant Agreement) or to exercise any
voting rights.
Reference is hereby
made to the further provisions of this Warrant Certificate set
forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this
place.
This
Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
IN WITNESS WHEREOF, the Company has
caused this Warrant to be executed in its name and on its behalf by
the facsimile signatures of its duly authorized
officers.
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_______________________________
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By:
___________________________________
Name: _______________________________
Title:
________________________________
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ATTEST:
_______________________________
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_______________________________
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COUNTERSIGNED
[●], as
Warrant Agent
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By:
_______________________________
Name: _______________________________
Title:
________________________________
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ATTEST:
_______________________________
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_______________________________
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A-2
[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
To
exercise any Warrants evidenced hereby for Warrant Securities (as
hereinafter defined), the Holder must pay, in lawful money of the
United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire
transfer in immediately available funds], the Warrant Price in full
for Warrants exercised, to [●] [address of Warrant Agent],
Attention: [●], which payment must specify the name of the
Holder and the number of Warrants exercised by such Holder. In
addition, the Holder must complete the information required below
and present this Warrant Certificate in person or by mail
(certified or registered mail is recommended) to the Warrant Agent
at the appropriate address set forth above. This Warrant
Certificate, completed and duly executed, must be received by the
Warrant Agent within five business days of the
payment.
(To be
executed upon exercise of Warrants)
The
undersigned hereby irrevocably elects to exercise [●]
Warrants, evidenced by this Warrant Certificate, to purchase
[●] shares of the Common Stock, par value $0.001 per share
(the "Warrant
Securities"), of AutoWeb, Inc. and represents that he has
tendered payment for such Warrant Securities, in lawful money of
the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire
transfer in immediately available funds], to the order of AutoWeb,
Inc., c/o [insert name and address of Warrant Agent], in the amount
of $[●] in accordance with the terms hereof. The undersigned
requests that said Warrant Securities be in fully registered form
in the authorized denominations, registered in such names and
delivered all as specified in accordance with the instructions set
forth below.
If the
number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant
Certificate evidencing the Warrants for the number of Warrant
Securities remaining unexercised be issued and delivered to the
undersigned unless otherwise specified in the instructions
below.
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Dated:
____________________________
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Name:
____________________________
Please
Print
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Address:
______________________________________________
(Insert
Social Security or Other Identifying Number of Holder)
Signature
Guaranteed: ___________________________
Signature
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A-3
(Signature
must conform in all respects to name of holder as specified on the
face of this Warrant Certificate and must bear a signature
guarantee by a FINRA member firm).
This
Warrant may be exercised at the following addresses:
By hand
at:
By mail
at:
[Instructions
as to form and delivery of Warrant Securities and, if applicable,
Warrant Certificates evidencing Warrants for the number of Warrant
Securities remaining unexercised- complete as
appropriate.]
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A-4
ASSIGNMENT
[Form
of assignment to be executed if Warrant Holder desires to transfer
Warrant]
FOR VALUE RECEIVED, [●] hereby
sells, assigns and transfers unto:
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_______________________________
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_______________________________
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(Please print name
and address including zip code)
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(Please print
Social Security or other identifying number)
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the
right represented by the within Warrant to purchase shares of
[Title of Warrant Securities] of AutoWeb, Inc. to which the within
Warrant relates and appoints attorney [●] to transfer such
right on the books of the Warrant Agent with full power of
substitution in the premises.
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Dated:
____________________________
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_________________________________
Signature
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(Signature must
conform in all respects to name of holder as specified on the face
of the Warrant)
Signature
Guaranteed
________________________________
Signature
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A-5