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NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), AND NEITHER THIS WARRANT NOR SUCH SHARES MAY BE SOLD, ENCUMBERED OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO REGULATION S UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED.
Void after 5:00 p.m. Eastern Standard Time, on February 1 , 1999.
WARRANT TO PURCHASE COMMON STOCK
OF
PALOMAR MEDICAL TECHNOLOGIES, INC.
FOR VALUE RECEIVED, PALOMAR MEDICAL TECHNOLOGIES, INC. (the "Company"), a
Delaware corporation, hereby certifies that , or his permitted assigns, is
entitled to purchase from the Company, at any time or from time to time
commencing February 1 , 1996, and prior to 5:00 P.M., Eastern Standard Time, on
February 1, 1999, a total of fully paid and non assessable shares of the Common
Stock, par value $.01 per share, of the Company for an aggregate purchase price
of five dollars ($5) per share. (Hereinafter, (i) said Common Stock, together
with any other equity securities which may be issued by the Company with respect
thereto or in substitution therefor, is referred to as the "Common Stock", (ii)
the shares of the Common Stock purchasable hereunder are referred to as the
"Warrant Shares", (iii) the aggregate purchase price payable hereunder for the
Warrant Shares is referred to as the "Aggregate Warrant Price", (iv) the price
payable hereunder for each of the Warrant Shares is referred to as the "Per
Share Warrant Price", (v) this Warrant, and all warrants hereafter issued in
exchange or substitution for this Warrant are referred to as the "Warrant" and
(vi) the holder of this Warrant is referred to as the "Holder".)
1. Exercise of Warrant. This Warrant may be exercised, in whole at any time
or in part from time to time, commencing February 1 , 1996, and prior to 5:00
P.M., Eastern Standard Time then current, on February 1 , 1999, by the Holder of
this Warrant by the surrender of this Warrant (with the subscription form at the
end hereof duly executed) at the address set forth in Subsection 9 (a) hereof,
together with proper payment of the Aggregate Warrant Price, or the
proportionate part thereof if this Warrant is exercised in part. Payment for
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, this Warrant must be
exercised for a minimum of 1000 shares of the Common Stock, and the Holder is
entitled to receive a new Warrant covering the number of Warrant Shares in
respect of which this Warrant has not been exercised and setting forth the
proportionate part of the Aggregate Warrant Price applicable to such Warrant
Shares.
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Upon 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 of the Common Stock to which the Holder shall be entitled, and (b)
deliver the proportionate part thereof if this Warrant is exercised in part,
pursuant to the Provisions of the Warrant. Upon exercise of the Warrant, Xxxxx
will certify in writing that it is not a U.S. person and the Warrant is not
being exercised on behalf of a U.S. person.
No warrant granted herein shall be exercisable after 5:00 p.m. Eastern
Standard Time on the third anniversary of the date of issuance.
2. Reservation of Warrant Shares. The Company agrees that, prior to the
expiration of this Warrant, the Company will at all times have authorized and in
reserve, and will keep available, solely for issuance or delivery upon the
exercise of this Warrant, the shares of the Common Stock as from time to time
shall be receivable upon the exercise of this Warrant.
3. Fully Paid Stock; Taxes. The Company agrees that the shares of the
Common Stock represented by each and every certificate for Warrant Shares
delivered on the exercise of this Warrant shall, at the time of such delivery,
be validly issued and outstanding, fully paid and non-assessable, and not
subject to preemptive rights, and the Company will take all such actions as may
be necessary to assure that the par value or stated value, if any, per share of
the Common Stock is at all times equal to or less than the then Per Share
Warrant Price. The company further covenants and agrees that it will pay, when
due and payable, any and all Federal and State stamp, original issue or similar
taxes that may be payable in respect of the issue of any Warrant Share or
certificate therefor.
4. Transfer.
(a) Securities Laws. Neither this Warrant nor the Warrant Shares
issuable upon the exercise hereof have been registered under the Securities
Act of 1933, as amended (the "Securities Act"), or under any state
securities laws and unless so registered may not be transferred, sold,
pledged, hypothecated or otherwise disposed of unless an exemption from
such registration is available. In the event Holder desires to transfer
this Warrant or any of the Warrant Shares issued, the Holder must give the
Company prior written notice of such proposed transfer including the name
and address of the proposed transferee. Such transfer may be made only
either (i) upon publication by the Securities and Exchange Commission (the
"Commission") of a ruling, interpretation, opinion or "no action letter"
based upon facts presented to said Commission, or (ii) upon receipt by the
Company of an opinion of Counsel to the Company in either case to the
effect that the proposed transfer will not violate the provisions of the
Securities Act, The Securities Exchange Act of 1934, as amended, or the
rules and regulations promulgated under either such act.
(b) Lockup Agreements. The Warrant Shares may be sold no earlier than
180 days after the above Warrant date. In the event of a public offering of
the Company's securities, the Holder agrees to enter into an agreement with
the Underwriter or Underwriter's Representative for such offering
restricting the sale, transfer or other disposition of this Warrant or the
Warrant
181
Shares to the extent that such agreement is required to be executed by the
other security holders of the Company generally.
(c) Conditions to Transfer. Prior to any such proposed transfer, and
as condition thereto, the Holder will, if requested by the Company, deliver
to the Company (i) an investment covenant signed by the proposed transferee
(ii) an agreement by such transferee to the impression of the restrictive
investment legend set forth herein on the certificate or certificates
representing the securities acquired by such transferee, (iii) an agreement
by such transferee that the Company may place a "stop transfer order" with
its transfer agent or registrar, and (iv) an agreement by the transferee to
indemnify the Company to the same extent as set forth in the next
succeeding paragraph.
(d) Indemnity. The Holder acknowledges that the Holder understands the
meaning and legal consequences of this Section 5, and the Holder hereby
agrees to indemnify and hold harmless the Company, its representatives and
each officer and director thereof from and against any and all loss, damage
or liability (including all attorneys' fees and costs incurred in enforcing
this indemnity provision) due to or arising out of (a) the inaccuracy of
any representation or the breach of any warranty of the Holder contained
in, or any other breach, (b) any transfer of the Warrant or any of the
Warrant Shares in violation of the Securities Act, the Securities Exchange
Act of 1934, as amended, or the rules and regulations promulgated under
either of such acts, (c) any transfer of the Warrant or any of the Warrant
Shares not in accordance with this Warrant or (d) any untrue statement or
omission to state any material fact in connection with the investment
representations or with respect to the facts and representations supplied
by the Holder to counsel to the Company upon which its opinion as to a
proposed transfer shall have been based.
(e) Transfer. Except as restricted hereby, this Warrant and the
Warrant Shares issued may be transferred by the Holder in whole or in part
at any time or from time to time. Upon surrender of this Warrant to the
Company or at the office of its stock transfer agent, if any, with
assignment documentation duly executed and funds sufficient to pay any
transfer tax, and upon compliance with the foregoing provisions, the
Company shall, without charge, execute and deliver a new Warrant in the
name of the assignee named in such instrument of assignment, and this
Warrant shall promptly be canceled. Any assignment, transfer, pledge,
hypothecation or other disposition of this Warrant attempted contrary to
the provisions of this Warrant, or any levy of execution, attachment or
other process attempted upon the Warrant, shall be null and void and
without effect.
(f) Legend and Stop Transfer Orders. Upon exercise of any part of the
Warrant and the issuance of any of the shares of Warrant Shares, the
Company shall instruct its transfer agent to enter stop transfer orders
with respect to such shares to the effect that such shares may not be sold,
offered for sale, assigned, transferred or otherwise disposed of until 180
days after the above Warrant date unless an opinion of counsel to the
Company is obtained stating that such disposition is permitted. 180 days
after the above Warrant date, the 180 day restricted period will have
expired and the restrictions on transfer and resale imposed upon the Shares
by Regulation S shall lapse and will no longer be necessary. Therefore,
certificates representing the Shares issued on and after that date may be
issued without stop-transfer instructions.
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5. Loss, etc. of Warrant. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and of
indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed,
and upon surrender and cancellation of the Warrant, if mutilated, the Company
shall execute and deliver to the Holder a new Warrant of like date, tenor and
denomination.
6. Warrant Holder Not Shareholder. 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.
7. Communication. No notice or other communication under this Warrant shall
be effective unless the same is in writing and is mailed by first-class mail,
postage prepaid, addressed to:
(a) the Company at 00 Xxxxxx Xxxx Xxxxx, Xxxxxxx Xxxxxxxxxxxxx 00000,
or such other address as the Company has designated in writing to the
Holder, or
(b) the Holder at ________________________, or such other address as
the Holder has designated in writing to the Company.
8. Headings. The headings of this Warrant have been inserted as a matter of
convenience and shall not affect the construction hereof.
9. Applicable Law. This Warrant shall be governed by and construed in
accordance with the law of the State of Delaware without giving effect to the
principles of conflicts of law thereof.
IN WITNESS WHEREOF, PALOMAR MEDICAL TECHNOLOGIES, INC. has caused this
Warrant to be signed by its Chairman and its corporate seal to be hereunto
affixed and attested by its Secretary this 1 day of February , 1996.
ATTEST: PALOMAR MEDICAL TECHNOLOGIES, INC.
By: /s/ By: /s/
------------------------- --------------------------
Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx
Secretary Chairman
[Corporate Seal]
183
SUBSCRIPTION
The undersigned, _______________________________________________, pursuant
to the provisions of the foregoing Warrant, hereby agrees to subscribe for the
purchase of ___________ shares of the Common Stock of PALOMAR MEDICAL
TECHNOLOGIES, INC. covered by said Warrant, and makes payment therefor in full
at the price per share provided by said Warrant.
Dated: Signature:
Address:
Soc Sec # or Fed ID #:
ASSIGNMENT
FOR VALUE RECEIVED ____________________________________ hereby sells,
assigns and transfers unto ____________________________________ the foregoing
Warrant and all rights evidenced thereby, and does irrevocably constitute and
appoint ________________________________________, attorney, to transfer said
Warrant on the books of PALOMAR MEDICAL TECHNOLOGIES, INC.
Signature: Assignee
Dated:
Address: Address:
SS/Fed ID #: SS/Fed ID #:
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED ________________________________________ hereby assigns and
transfers unto ____________________________________________ the right to
purchase ___________ shares of the Common Stock of PALOMAR MEDICAL TECHNOLOGIES,
INC. by the foregoing Warrant, and a proportionate part of said Warrant and the
rights evidenced hereby, and does irrevocably constitute and appoint
__________________________________________, attorney, to transfer that part of
said Warrant on the books of PALOMAR MEDICAL TECHNOLOGIES, INC.
Signature: Assignee
Dated:
Address: Address:
SS/Fed ID #: SS/Fed ID #:
