Exhibit 2.2
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE TRANSFERRED,
SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, OFFERED OR OTHERWISE DISPOSED OF UNLESS
THEY HAVE BEEN REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
CERTIFICATE FOR _________ WARRANTS
EXERCISABLE COMMENCING ON THE DATE OF ISSUANCE
HEREOF AND ENDING
5:00 P.M., LOS ANGELES, CALIFORNIA TIME, ON THE EXPIRATION DATE
PHOTOMEDEX, INC.
WARRANT CERTIFICATE
THIS CERTIFIES that, as of _______________, 2001, ____________________ or
registered assigns is the registered holder (the "Warrantholder") of the number
of warrants (the "Warrants") set forth above, each of which represents the right
to purchase one fully paid and non-assessable share of common stock, par value
$0.01 per share (the "Common Shares"), of PhotoMedex, Inc., a Delaware
corporation (the "Company"), at the exercise price (the "Exercise Price") of
$____ per share (at 110% of the closing market price on the initial closing date
of the private placement), at any time which is after (i) that date which is 180
days after the date of this Warrant Certificate (the "Initial Exercise Date")
and (ii) prior to the Expiration Date hereinafter referred to, by surrendering
this Warrant Certificate, with the form of Election to Purchase set forth hereon
duly executed, at the Company's office, and by paying in full the Exercise
Price, plus transfer taxes, if any, in United States currency by certified
check, bank cashier's check or money order payable to the order of the Company.
These Warrants have been issued concurrently with certain shares of the
Company's Common Stock pursuant to an effective Securities Purchase Agreement of
even date herewith between the Company and Warrantholder.
Section 1. Duration and Exercise of Warrants.
(a) The Warrants represented by this Warrant Certificate shall be
exercisable on the Initial Exercise Date and shall expire at 5:00 p.m. Los
Angeles, California time, on September 30, 2004 (the "Expiration Date"). Any
Warrant Certificate not surrendered to the Company for exercise or redemption
prior to the close of business on the Expiration Date shall be void.
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(b) Subject to the provisions of this Warrant Certificate, on or after the
Initial Exercise Date and prior to the close of business on the Expiration Date,
the Warrantholder shall have the right to purchase from the Company the number
of Common Shares specified above at the Exercise Price. In order to exercise
such right, the Warrantholder shall surrender the Warrant Certificate(s)
evidencing such Warrants to the Company at the Office with the form of Election
to Purchase set forth hereon duly completed and signed, and shall tender payment
in full to the Company for the Company's account of the Exercise Price, together
with such taxes as are specified in Section 4 hereof, for each Common Share with
respect to which such Warrants are being exercised. Such Exercise Price and
taxes shall be paid in full by certified check, bank cashier's check or money
order, payable in United States currency to the order of the Company. In
addition, if the Common Shares deliverable upon exercise have not been
registered pursuant to the Securities Act, the Warrantholder shall deliver a
duly executed certificate (the "Form of Stockholders Certificate") substantially
in the form of Exhibit A hereto.
(c) The Warrants evidenced by this Warrant Certificate shall be
exercisable only in multiples of one (l) Warrant. If less than all of the
Warrants evidenced by this Warrant Certificate are exercised at any time prior
to the close of business on the Expiration Date, a new Warrant Certificate(s)
shall be issued to the Warrantholder, or his duly authorized assigns, by the
Company for the remaining number of Warrants evidenced by the Warrant
Certificate so surrendered.
(d) The Warrants evidenced by this Warrant Certificate may not be
exercised or redeemed if such exercise or redemption would constitute a
violation of any applicable Federal or state statute or regulation or if any
required approval of a governmental authority having jurisdiction shall not have
been secured. The Company shall be entitled to require as a condition to
exercise or redemption that the Warrantholder make such representations as are
necessary to demonstrate compliance with Federal and applicable state securities
laws.
(e) For purposes of determining the date of exercise (the "Exercise Date")
of the Warrants, the Warrants may be exercised in whole or in part by: (i)
telecopying to the Company an executed Election to Purchase and Form of
Stockholders Certificate (the "Exercise Notices"), in the forms annexed to this
Warrant Certificate, and delivering to the Company the originals of the Exercise
Notices together with the original Warrant Certificate representing at least the
number of Warrants so exercised and tendering payment in full for the Company's
account of the Exercise Price, in accordance with Section 1(b) hereof, which
shall be received by the Company within two (2) business days thereafter, in
which event the Exercise Date shall be the date the Exercise Notices shall be
telecopied to the Company, or (ii) delivering to the Company by express or
overnight courier the original executed Exercise Notices, the original Warrant
Certificate representing at least the number of Warrants so exercised and
tendering payment in full for the Company's account of the Exercise Price, in
accordance with Section 1(b) hereof, which shall be received by the Company
within two (2) business days after the date of deposit (the "Deposit Date") with
the authorized courier, in which event the Exercise Date shall be the Deposit
Date.
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(f) If at any time after the Initial Exercise Date and before the
Expiration Date, the closing price of the Common Shares exceeds $4.00 per share
for a period of fifteen (15) consecutive trading days, the Company shall have
the right to repurchase the Warrants at a price of $0.10 per Warrant. The
Warrant holder shall have thirty days prior notice, during which period the
Warrant holder may elect to exercise the Warrants.
Section 2. Issuance of Share Certificates. Upon surrender of this Warrant
Certificate and payment of the Exercise Price, and, if the Common Shares
deliverable on exercise have not been registered under the Securities Act, upon
delivery of a certificate in the form of Exhibit "A" hereto, the Company shall
issue certificates representing Common Shares ("Share Certificates") for the
number of full Common Shares to which the holder of such Warrants is entitled,
registered in accordance with the instructions set forth in the Election to
Purchase. If such Common Shares have not been registered under the Securities
Act, the Share Certificates shall bear a legend substantially similar to the
legend on this Warrant Certificate.
Section 3. Reorganizations. In case of any reorganization of the Company,
or in case of the consolidation or merger of the Company with or into any other
legal entity (other than a merger or consolidation in which the Company is the
continuing legal entity) or of the sale of the properties and assets of the
Company as, or substantially as, an entirety to any other legal entity
(collectively, "Reorganizations"), each Warrant shall after such Reorganization
be exercisable, upon the terms and conditions specified in this Warrant
Certificate, for the stock or other securities or property (including cash) to
which a holder of the number of Common Shares purchasable (at the time of such
Reorganization) upon exercise of such Warrant would have been entitled upon such
Reorganization if such Warrant had been exercised in full immediately prior to
such Reorganization; and in any such case, if necessary, the provisions set
forth in this Section 3 with respect to the rights and interests thereafter of
the holders of the Warrants shall be appropriately adjusted so as to be
applicable, as nearly as may reasonably be, to any such stock or other
securities or property thereafter deliverable upon exercise of the Warrants. The
Company shall not effect any such Reorganization unless prior to or
simultaneously with the consummation thereof the successor (if other than the
Company) resulting from such Reorganization or the legal entity purchasing such
assets shall assume, by written instrument executed and delivered to the holder
of each Warrant, the obligation to deliver to the holder of each Warrant such
stock, securities or assets as, in accordance with the foregoing provisions,
such holders may be entitled to purchase, and the other obligations under this
Warrant Certificate.
Section 4. Payment of Taxes. The Company will pay all taxes and charges
that may be imposed by the United States of America or any state or territory
thereof ("Taxes") attributable to the initial issuance of Common Shares upon the
exercise of Warrants prior to the close of business on the Expiration Date;
provided, however, that the Company shall not be required to pay any Taxes which
may be payable in respect of any transfer involved in the issuance of any
Warrant Certificates or any Share Certificates in a name other than that of the
Warrantholder of record surrendered upon the exercise of a Warrant, and the
Company shall not be required to issue or deliver such Share Certificates unless
or until the person or persons requesting the issuance thereof shall have paid
to
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the Company the amount of such Taxes or shall have established to the
satisfaction of the Company that such Taxes have been paid.
Section 5. Registration.
(a) This Warrant Certificate shall be registered in the name of the record
holder to whom it is distributed; and the Company shall maintain a list showing
the name, address and number of Warrants held by each of the Warrantholders of
record.
(b) The Company may deem and treat the Warrantholder of record as the
absolute owner of this Warrant Certificate (notwithstanding any notation of
ownership or other writing thereon made by anyone) for the purpose of any
exercise thereof and any distribution to the holder thereof and for all other
purposes, and the Company shall not be affected by any notice to the contrary.
Section 6. Registration of Transfers and Exchanges.
(a) The Company shall register the transfer of this Warrant Certificate
upon the records to be maintained by it for that purpose, upon surrender of this
Warrant Certificate accompanied (if so required by the Company) by (i) a written
instrument or instruments of transfer in form satisfactory to the Company, duly
executed by the registered holder(s) thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, and (ii) an opinion of
counsel, reasonably satisfactory to the Company, that such transfer is exempt
from registration under the Securities Act. Upon any such registration or
transfer, a new Warrant Certificate shall be issued to the transferee, and the
surrendered Warrant Certificate shall be canceled by the Company.
(b) This Warrant Certificate may be exchanged at the option of the holder,
when surrendered to the Company at its principal executive office (the
"Office"), for another Warrant Certificate or other Warrant Certificates of like
tenor and representing in the aggregate a like number of Warrants. Warrant
Certificates surrendered for exchange, transfer or exercise shall be canceled by
the Company.
Section 7. Mutilated or Missing Warrant Certificates. In case this Warrant
Certificate shall be mutilated, lost, stolen or destroyed, the Company shall
issue and deliver, in exchange and substitution for and upon cancellation of the
mutilated Warrant Certificate, or in lieu of and substitution for any Warrant
Certificate lost, stolen or destroyed, a new Warrant Certificate of like tenor
and representing an equivalent number of Warrants, but only upon receipt of
evidence satisfactory to the Company of such loss, theft or destruction of such
Warrant Certificate and an indemnity or bond, if requested, also satisfactory to
the Company. Applicants for such substitute Warrant Certificate shall also
comply with such other reasonable charges as the Company may prescribe.
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Section 8. Notices.
(a) Except as set forth in Section 1(e) hereof, any notice or demand
authorized by this Warrant Certificate to be given or made by the Warrantholder
to or on the Company shall be in writing and shall be sufficiently given or made
if delivered personally against receipt thereof or by overnight courier
addressed (until another address is given in writing by the Company) to the
Office, and shall be deemed to have been given on the date of receipt. Any
notices which may be expressly authorized to be delivered to the Company by
telecopier pursuant to Section 1(e)(i) hereof, shall be telecopied to the
Company at (000) 000-0000.
(b) Any notice or demand pursuant to this Warrant Certificate to be given
by the Company to the Warrantholder shall be in writing and shall be
sufficiently given or made if delivered personally against receipt thereof or by
overnight courier addressed (until another address is filed in writing by the
Warrantholder with the Company) to the address specified in the Warrant register
maintained by the Company. All such notices and demands shall be deemed to have
been given on the date of receipt.
Section 9. Rights of Warrantholders; Voting. Nothing contained in this
Warrant Certificate shall be construed as conferring upon the Warrantholder any
of the rights of a stockholder of the Company, including without limitation the
right to vote, to receive dividends and other distributions, to receive any
notice of, or to attend, meetings of stockholders or any other proceedings of
the Company.
Section 10. Supplements and Amendments. The Company may from time to time
supplement or amend this Warrant Certificate without the consent or concurrence
of the Warrantholder in order to cure any ambiguity, manifest error or other
mistake in this Warrant Certificate, or to make provision in regard to any
matters or questions arising hereunder which the Company may deem necessary or
desirable and which shall not adversely affect, alter or change the interests of
the Warrantholder.
Section 11. Warrant Agent. The Company may, by notice to the
Warrantholder, appoint an agent for the purpose of issuing Common Shares on the
exercise of the Warrants, exchanging Warrants, replacing Warrants or any of the
foregoing, and thereafter any such issuance, exchange or replacement shall be
made at such office by such agent.
Section 12. Successors. All the representations, warranties, covenants and
provisions of this Warrant Certificate by or for the benefit of the Company or
the Warrantholder shall bind and inure to the benefit of their respective
successors and assigns hereunder.
Section 13. Governing Law. This Warrant Certificate shall be deemed to be
a contract made under the laws of the State of Delaware and for all purposes
shall be governed in accordance with the laws of said State, regardless of the
laws that might be applied under applicable principles of conflicts of laws.
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Section 14. Benefits of This Warrant Certificate. Nothing in this Warrant
Certificate shall be construed to give to any person or entity other than the
Company and the Warrantholder any legal or equitable right, remedy or claim
under this Warrant Certificate, and this Warrant Certificate shall be for the
sole and exclusive benefit of the Company and the Warrantholder.
Section 15. Interpretation. The headings contained in this Warrant
Certificate are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Warrant Certificate.
Section 16. Invalidity of Provisions. If any provision of this Warrant
Certificate is or becomes invalid, illegal or unenforceable in any respect, such
provision shall be amended to the extent necessary to cause it to express the
intent of the parties and be valid, legal and enforceable. The amendment of such
provision shall not affect the validity, legality or enforceability of any other
provision hereof.
Section 17. Protection Against Dilution. In the event that the Company
shall at any time hereafter: (i) pay a dividend in Common Shares or convertible
securities; (ii) subdivide or split its outstanding Common Shares; or(iii)
combine or reclassify its outstanding Common Shares into a smaller number of
shares; then the number of Common Shares to be issued immediately after the
occurrence of any such event shall be adjusted so that the Warrantholder
thereafter may receive the number of Common Shares it would have owned
immediately following such action if it had exercised the Warrants immediately
prior to such action and the Exercise Price shall be adjusted to reflect such
proportionate increases or decreases in the number of Common Shares.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed at Radnor, Pennsylvania.
PHOTOMEDEX, INC.
By:
--------------------------------
Xxxxxxx X'Xxxxxxx
Chief Executive Officer
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ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise ___________________
of the Warrants represented by this Warrant Certificate and to purchase the
Common Shares issuable upon the exercise of said Warrants, and requests that
Certificates for such shares be issued and delivered as follows:
ISSUE TO:
________________________________________________________
(Name)
________________________________________________________
(Address, Including Zip Code)
________________________________________________________
(Social Security or Tax Identification Number)
DELIVER TO:
________________________________________________________
(Name)
at __________________________________________________
(Address, Including Zip Code)
If the number of Warrants hereby exercised is less than all the Warrants
represented by this Warrant Certificate, the undersigned requests that a new
Warrant Certificate representing the number of full Warrants not exercised be
issued and delivered as set forth above or otherwise as the undersigned shall
direct in writing. In full payment of the purchase price with respect to the
Warrants exercised and transfer taxes, if any, the undersigned hereby tenders
payment of $_______________ by certified check, bank cashier's check or money
order payable in United States currency to the order of the Company.
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Dated: ____________________, ______
________________________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate)
PLEASE INSERT SOCIAL SECURITY OR TAX
IDENTIFICATION NUMBER OF HOLDER
________________________________________
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto the Assignee named below all of the rights of the undersigned represented
by the within Warrant Certificate, with respect to the number of Warrants set
forth below:
Social Security
Name of No. No. of
Assignee or Tax I.D. Address Warrants
-------- ----------- ------- --------
and does hereby irrevocably constitute and appoint
__________________________________ Attorney, to make such transfer on the books
of PhotoMedex, Inc., a Delaware corporation, maintained for that purpose, with
full power of substitution in the premises.
Dated: ____________________, ______
__________________________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate)
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EXHIBIT A
FORM OF STOCKHOLDERS CERTIFICATE
The undersigned (the "Purchaser") is exercising the warrants (the
"Warrants") tendered with this certificate, and in connection with such
exercise, hereby certifies to PhotoMedex, Inc. a Delaware corporation (the
"Company") that the Purchaser understands and agrees that:
1. The shares of common stock of the Company (the "Common Shares")
deliverable upon exercise of the Warrants are not registered pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), and the offering and
sale of the Common Shares is intended to be exempt from registration under the
Securities Act;
2. The Common Shares to be acquired by the Purchaser pursuant to exercise
of the Warrants are being acquired for its own account and without a view to the
distribution of such Common Shares or any interest therein; provided that (i)
this representation shall not prejudice the Purchaser's right at all times to
sell or otherwise dispose of all or any part of the Common Shares so acquired by
the Purchaser pursuant to a registration under the Securities Act or an
exemption from such registration available under the Securities Act and (ii) the
disposition of the Purchaser's property shall be at all times within its
control;
3. The Purchaser has such knowledge and experience in financial and
business matters so as to be capable of evaluating the merits and risks of its
investment in the Common Shares and the Purchaser is capable of bearing the
economic risks of such investment and is able to bear a complete loss of its
investment in the Common Shares;
4. The Purchaser represents and warrants that the Company has made
available to the Purchaser or its agents all documents and information
relating to an investment in Common Shares requested by or on behalf of the
Purchaser; and
5. The Purchaser is an "Accredited Investor" as such term is defined
in Regulation D under the Securities Act.
6. All Common Shares issued on delivery of this certificate shall bear the
legend set forth on page 1 of the Warrant Certificate.
A-1
In witness whereof, the Purchaser has caused this Certificate to be
duly executed on this ____ day of ____________, ___________.
[Name of Purchaser]
By:________________________________
Name:_________________________
Title:__________________________
A-2
