Contract
Exhibit
4.5
THIS
WARRANT AND THE SHARES, AS HEREIN DEFINED, ISSUABLE UPON EXERCISE THEREOF HAVE
NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE " ACT"), OR ANY U.S. STATE SECURITIES LAWS OR SIMILAR APPLICABLE LAWS
IN
OTHER JURISDICTIONS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF
UNLESS REGISTERED UNDER THE ACT AND APPLICABLE U.S. STATE SECURITIES LAWS OR
SPO
MEDICAL INC. (THE “COMPANY” OR “SPO”) SHALL HAVE RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO IT THAT THE REGISTRATION OF SUCH WARRANT AND SUCH
SHARES UNDER THE ACT AND UNDER THE PROVISIONS OF APPLICABLE U.S. STATE
SECURITIES LAWS OR OTHER APPLICABLE SECURITIES LAWS IS NOT
REQUIRED.
WARRANT
FOR THE PURCHASE OF SHARES
No.
Sept.
06
FOR
VALUE
RECEIVED, the Company, a
corporation organized and existing under the laws of the State of Delaware,
c/o
the
Company, Attention:
Xxxxxxx Braunold, Kfar Saba, Israel, hereby
certifies that _________________,
of
____________________________________
(the
“Holder”), or a permitted assignee, is entitled to purchase from the Company, at
any time or from time to time for three (3) years (the “Warrant Exercise
Period”), from the above date $_____ of fully paid and nonassessable shares of
common stock of the Company (the “Shares”), or any other equity securities which
may be issued by it with respect thereto, at a purchase price per Share equal
to
the Purchase Price, as defined herein. As used herein, (i) the Shares
purchasable hereunder, or under any Warrant (as hereinafter defined) issued
to
the Holder are
referred to as the "Warrant Shares"; (ii) based upon the Purchase Price, the
aggregate price payable for the Warrant Shares is referred to herein as the
"Aggregate Warrant Price"; (iii) the Purchase Price payable hereunder for each
Warrant Share is referred to as the "Per Share Warrant Price"; and (iv) this
Warrant, and all warrants hereafter issued in exchange or substitution therefore
or for such other warrants are referred to as the "Warrants". In the event
of
any changes in the Per Share Warrant Price, the number of Warrant Shares shall
be adjusted by dividing the Aggregate Warrant Price by the Per Share Warrant
Price in effect immediately after such changes.
This
Warrant is being issued to replace warrant No. Jan 05-1. previously issued
to
the Holder in January 2005 by a Company subsidiary (the “First Warrant”)
pursuant to the terms of a letter agreement dated as of January 3, 2005, to
which the said subsidiary, the Holder and other person named therein were
parties.
Unless
otherwise defined herein, the following initial capitalized terms shall have
the
following meanings:
New
Securities
means
securities that SPO sells in a New Transaction, including Common and/or SPO
securities convertible to Common, and/or SPO rights convertible to Common
without additional consideration;
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New
Investor
means an
investor, purchaser or lender in a New Transaction;
New
Transaction
means a
transaction consummated by SPO with a New Investor subsequent to the date
hereof, including (i) a sale of New Securities, or (ii) an SPO debt that is
issued with an equity component (i.e. an SPO option or SPO warrant); or (iii)
an
SPO credit line that provides for conversion to Common. New Transaction excludes
the issuance of Common upon (i) the exercise of options issued under an SPO
employee stock option plan; (ii) the exercise of SPO warrants to purchase Common
at fair market value (FMV); (iii) the conversion of SPO convertible securities,
outstanding on the date hereof; and (iv) an SPO non-employee director or
consultants’ stock option plan under which stock options may be granted at the
fair market value of the underlying Common.
Purchase
Price means the lesser of (i) an amount equal to 60% of the price that New
Securities are sold in a New Transaction (currently $0.36) or (ii) $0.705 per
Common Share.
1. Exercise
of the Warrant.
This
Warrant may be exercised by the Holder, or an assign in whole, or in part at
any
time or from time to time during the Warrant Exercise Period by its surrender
(with the subscription form at the foot hereof duly executed) to the Company
at
the address set forth in Subsection 8.1 hereof, together with payment of the
Aggregate Warrant Price, or a proportionate part thereof, if this Warrant is
exercised in part. Payment for any Warrant Shares shall be made by certified
or
official bank check payable to the order of the Company. If this Warrant is
exercised in part, it must be exercised for a number of whole Shares, and the
Holder or an assign shall receive a new Warrant covering the Warrant Shares
that
have not been exercised setting forth the proportionate part of the Aggregate
Warrant Price applicable to such unexercised Warrant Shares. Upon any such
surrender of this Warrant, the Company will (a) issue a certificate or
certificates in the name of the Holder for the largest number of whole Shares
to
which it shall be entitled hereunder and, if this Warrant is exercised in whole,
in lieu of any fractional Shares to which the Holder shall be entitled, the
Company will pay the Holder cash in an amount equal to the fair value of such
fractional Shares (determined in such reasonable manner as the Board of
Directors of the Company shall determine); and (b) deliver the Shares receivable
upon the exercise of this Warrant, or a proportionate part thereof if this
Warrant is exercised in part, pursuant to the provisions hereof.
2. Reservation
of Warrant Shares.
Until
the
termination of the Warrant Exercise Period, the Company will at all times have
authorized and in reserve, and keep available, solely for issuance or delivery
upon the exercise of this Warrant, the Shares that from time to time are
receivable upon its exercise, free and clear of all restrictions on sale or
transfer and free and clear of all pre-emptive rights.
3. Protection
Against Certain Dilutive Events.
| 3.1 |
In
case the Company shall hereafter (i) pay a dividend or make a distribution
of Shares, (ii) subdivide its outstanding Shares into a greater number
of
Shares, (iii) combine its outstanding Shares into a smaller number
of
Shares or (iv) issue by reclassification of its Shares, any other
Shares,
the Per Share Warrant Price shall be adjusted so that upon the exercise
of
this Warrant, the Holder shall receive the number of Shares that
it would
have owned immediately prior to the events described in subparagraphs
(i)
to (iv) above (herein the “Share Adjustments”). Any Share Adjustments
shall become effective immediately after the record date in the case
of a
dividend or distribution and shall become effective immediately after
the
effective date in the case of a subdivision, combination or
reclassification. If, as a result of any Share Adjustments, the Holder
of
a Warrant surrendered for exercise shall become entitled to receive
shares
of more than a single class of Shares or other capital stock of the
Company, the management of the Company (whose determination shall
be
conclusive and shall be described in a written notice to the Holder
promptly after such Share Adjustments) shall determine the allocation
of
the adjusted Per Share Warrant Price between or among Shares or other
capital stock of the Company.
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| 3.2 |
In
case of any capital reorganization or reclassification, or any
consolidation or merger to which the Company is a party, other than
a
merger or consolidation in which the Company is the continuing
corporation, or in case of any sale or conveyance to another entity
of the
property of the Company as an entirety or substantially as an entirety,
or
in the case of any statutory exchange of securities with another
corporation (including any exchange effected in connection with a
merger
of a third corporation (including any exchange effected in connection
with
a merger of a third corporation into the Company), the Holder shall
have
the right thereafter to convert its Warrant into the kind and amount
of
securities, cash or other property which it would have owned or have
been
entitled to receive immediately after such reorganization,
reclassification, consolidation, merger, statutory exchange, sale
or
conveyance had this Warrant been converted to Shares immediately
prior to
the effective date of such reorganization, reclassification,
consolidation, merger, statutory exchange, sale or conveyance. In
any such
case, the appropriate Share Adjustments shall be made in the application
of the provisions set forth in this Section 3 with respect to the
rights
and interests thereafter of the Holder to the end that the provisions
set
forth therein shall thereafter correspondingly be made applicable,
as
nearly as may reasonably be, in relation to any Shares or other securities
or be, in relation to any such Shares or other securities or property
thereafter deliverable on the conversion of this Warrant. The provisions
of this Subsection 3.2 shall similarly apply to successive
reorganizations, reclassifications, consolidations, mergers, statutory
exchanges, sales or conveyances. The issuer of any Shares or other
securities or property thereafter deliverable on the exercise of
this
Warrant shall succeed to and be responsible for all of the agreements
and
obligations of the Company hereunder.
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| 3.3 |
No
adjustment in the Per Share Warrant Price shall be required, unless
it
requires an increase or decrease of at least $0.05 per Share; provided,
however,
that any adjustments which by reason of this Subsection 3.3 are not
required to be made shall be taken into account on a cumulative basis
in
any subsequent adjustment in the Per Share Warrant Price; provided further,
however, that adjustments shall be required and made in accordance
with
the provisions of this Section 3 (other than this Subsection 3.3)
not
later than such time as may be required in order to preserve the
tax-free
nature of any distribution to the Holder or Shares issueable upon
exercise
hereof. All calculations under this Section 3 shall be made to the
nearest
cent or to the nearest 1/100th of a Share, as the case may be. Anything
in
this Section 3 to the contrary notwithstanding, in addition to adjustments
in the Per Share Warrant Price under this Section 3, the Company
shall be
entitled to make such reductions in such Warrant Price as it, in
its
discretion, shall deem advisable in order that any stock dividend,
subdivision of Shares or distribution of rights to purchase stock
or
securities convertible or exchangeable for Shares hereafter made
by the
Company to its shareholders is not
taxable.
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4. Fully
Paid Shares; Taxes.
The
Shares underlying each certificate for Warrant Shares shall, at the time of
the
delivery of such Shares, be validly issued and outstanding, fully paid and
nonassessable, and not subject to pre-emptive rights, and the Company will
take
all such actions as may be necessary to assure that the par value or stated
value, if any, of such Shares, is at all times equal to or less than the then
Per Share Warrant Price.
5. Limited
Transferability.
By
acceptance of this Warrant, the Holder understands and acknowledges that it
has
not been registered under the Act, or similar applicable laws in other
jurisdictions and has been issued to the Holder for investment and not with
a
view to the distribution of the Warrant, or the Warrant Shares. This Warrant
and
any of the Warrant Shares or any other security issued or issuable upon exercise
thereof may not be sold, transferred, pledged or hypothecated in the absence
of
an effective registration statement under the Act, or similar applicable laws
relating to such security, or an opinion of counsel satisfactory to the Company
that such registration is not so required under the Act or similar applicable
laws. Each certificate for the Warrant, the Warrant Shares and any other
security issued or issuable upon its exercise shall contain a legend on its
face, in form and substance satisfactory to counsel to the Company, setting
forth the restrictions on transfer contained in this Section 5.
6.
Loss,
etc., of this Warrant.
Upon
receipt of evidence satisfactory to the Company of any loss, theft, destruction
or mutilation of this Warrant, and the delivery of an indemnity reasonably
satisfactory to the Company or its counsel, if it is lost, stolen or destroyed,
and upon surrender and cancellation of this Warrant, if mutilated, the
Company
shall execute and deliver to the Holder a new Warrant of like date, tenor
and
denomination.
7.
Warrant
Holders Are Not Shareholders.
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Except
as otherwise provided herein, this Warrant does not confer upon the
Holder
any right to vote or to consent to or receive notice as a shareholder
of
the Company, as such, in respect of any matters whatsoever, or any
other
rights or liabilities as a shareholder, prior to the exercise
hereof.
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8. Communication.
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No
notice or other communication under this Warrant shall be effective
unless, but any notice or other communication shall be effective
and shall
be deemed to have been given if, the same is in writing and is mailed
by
first-class mail, postage prepaid, addressed
to:
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8.1
the
Company, at Attention:
Xxxxxxx Braunold,
SPO
Medical, Inc.
Suite
380,
North
Building,
00000,
Xxxxxxx Xxxxxxxxx,
Xxxxxxxx
Xxxxx,
XX
00000-0000
or
such
other address as the Company designates in writing to the Holder.
8.2 the
Holder, at such address as it designates in writing to the Company from time
to
time.
9. Headings.
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The
headings of this Warrant have been inserted as a matter of convenience
and
shall not affect the construction
hereof.
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10. Applicable
Law.
This
Warrant shall be governed by and construed in accordance with the law of the
State of New York applicable to contracts made and to be performed in that
state, without giving effect to the principles of conflicts of law
thereof.
11. Registration
Rights.
If,
at
any time and from time the Company shall authorize the filing of a registration
statement under the Act or similar statue in other jurisdictions in connection
with the proposed offer of its securities by it, or any of its shareholders,
the
Company will take all action necessary to include the Warrant Shares in such
registration statement. The Holder’s rights hereunder shall be subject to its
compliance with the conditions or restrictions, including without limitation,
lock-ups required by the managing underwriter(s) (in the case of an underwritten
public offering of Shares), or by the Company from its
shareholders.
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IN
WITNESS WHEREOF, the Company has caused this Warrant to be signed by a duly
authorized officer this 27 day of September 2006.
By:
Xxxxxxx Braunold, CEO
Upon
receipt of this executed
Warrant
the undersigned
confirms
that the First Warrant
defined
above is null and void.
By:
Print
Name
Print
Office
SUBSCRIPTION
UPON EXERCISE OF THIS WARRANT
The
undersigned, pursuant to the provisions of the foregoing Warrant, hereby
subscribes for and agrees to purchase _______________ shares of the common
stock
of SPO Medical Equipment, Inc. covered by this Warrant, and makes payment
therefore in full at the per Share price described in this Warrant.
Dated:
__________________
Signature:__________________
Warrant
Holder’s Address:
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