NEITHER THIS WARRANT NOR ISSUANCE OF THE SECURITIES ISSUABLE UPON THE EXERCISE
HEREOF TO THE HOLDER HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
QUALIFIED OR REGISTERED UNDER STATE SECURITIES OR BLUE SKY LAWS. NEITHER THIS
WARRANT NOR SUCH SECURITIES MAY BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH
THE SECURITIES ACT OF 1933, APPLICABLE STATE SECURITIES OR BLUE SKY LAWS AND
THE APPLICABLE RULES AND REGULATIONS THEREUNDER.
THIS WARRANT MAY NOT BE TRANSFERRED EXCEPT AS PROVIDED IN SECTION 21.
No. SOF-1 Right to Purchase 6,000,000
Shares of Common Stock of
Omni Medical Holdings, Inc.
OMNI MEDICAL HOLDINGS, INC.
Common Stock Purchase Warrant
OMNI MEDICAL HOLDINGS, INC., a Utah corporation, hereby certifies
that, for value received, SIGMA OPPORTUNITY FUND, LLC or registered assigns
(the "Holder"), is entitled, subject to the terms set forth below, to purchase
from the Company at any time or from time to time before 5:00 p.m., New York
City time, on the Expiration Date (such capitalized term and all other
capitalized terms used herein having the respective meanings provided herein),
Six Million (6,000,000) fully paid and nonassessable shares of Common Stock at
a purchase price per share equal to the Purchase Price. The number of such
shares of Common Stock and the Purchase Price are subject to adjustment as
provided in this Warrant.
As used herein the following capitalized terms, unless the context
otherwise requires, have the following respective meanings:
"Aggregate Purchase Price" means at any time an amount equal to
the product obtained by multiplying (x) the Purchase Price times (y) the
number of shares of Common Stock for which this Warrant may be exercised
at such time.
"Board of Directors" means the Board of Directors of the Company.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in The City of New York are
authorized or required by law or executive order to remain closed.
"Common Stock" includes the Company's Common Stock, par value
$.001 per share (and any purchase rights issued with respect to the
Common Stock in the future), as authorized on the date hereof, and any
other securities into which or for which the Common Stock (and any such
rights issued with respect to the Common Stock) may be converted or
exchanged pursuant to a plan of recapitalization, reorganization,
merger, sale of assets or otherwise and any stock (other than Common
Stock) and other securities of the Company or any other Person which the
Holder at any time shall be entitled to receive, or shall have received,
on the exercise of this Warrant, in lieu of or in addition to Common
Stock.
"Company" shall include Omni Medical Holdings, Inc., a Utah
corporation, and any corporation that shall succeed to or assume the
obligations of Omni Medical Holdings, Inc. hereunder in accordance with
the terms hereof.
"Current Fair Market Value" means when used with respect to the
Common Stock as of a specified date with respect to each share of Common
Stock, the average of the closing prices of the Common Stock sold on all
securities exchanges (including the Nasdaq, the Nasdaq SmallCap and the
Over-the-Counter Bulletin Board) on which the Common Stock may at the
time be listed, or, if there have been no sales on any such exchange on
such day, the average of the highest bid and lowest asked prices on all
such exchanges at the end of such day, or, if on such day the Common
Stock is not so listed, the closing price on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization, in each such case
averaged over a period of five Trading Days consisting of the day as of
which the Current Fair Market Value of Common Stock is being determined
(or if such day is not a Trading Day, the Trading Day next preceding
such day) and the four consecutive Trading Days prior to such day. If on
the date for which Current Fair Market Value is to be determined the
Common Stock is not listed on any securities exchange or quoted in the
NASDAQ System or the over-the-counter market, the Current Fair Market
Value of Common Stock shall be the highest price per share which the
Company could then obtain from a willing buyer (not an employee or
director of the Company at the time of determination) in an arms'-length
transaction for shares of Common Stock sold by the Company, from
authorized but unissued shares, as determined in good faith by the Board
of Directors.
"Expiration Date" means October 26, 2012.
"Issuance Date" means the date of original issuance of this
Warrant.
"Nasdaq" means the Nasdaq National Market.
"Nasdaq SmallCap" means the Nasdaq SmallCap Market.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"1933 Act" means the Securities Act of 1933, as amended.
"Note Purchase Agreement" means the Note Purchase Agreement, dated
as of October 26, 2005, by and between the Company and the investors
named therein.
"Note" means the Senior Note issued by the Company pursuant to the
Note Purchase Agreement.
"NYSE" means the New York Stock Exchange, Inc.
"Other Securities" means any stock (other than Common Stock) and
other securities of the Company or any other Person which the Holder at
any time shall be entitled to receive, or shall have received, on the
exercise of this Warrant, in lieu of or in addition to Common Stock, or
which at any time shall be issuable or shall have been issued in
exchange for or in replacement of Common Stock or Other Securities
pursuant to Section 4.
"Person" means an individual, partnership, corporation, limited
liability company, trust, unincorporated organization, business trust,
association, joint stock company, joint venture, pool, syndicate, sole
proprietorship, governmental agency or any other form of entity not
specifically listed herein.
"Purchase Price" means $.001, subject to adjustment as provided in
this Warrant.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registration Statement" shall have the meaning provided in the
Note Purchase Agreement.
"Restricted Securities" means securities that are not eligible for
resale pursuant to Rule 144(k) under the 1933 Act (or any successor
provision).
"Reorganization Event" means the occurrence of any one or more of
the following events:
(i) any consolidation, merger or similar transaction of the
Company or any Subsidiary with or into another entity (other than a
merger or consolidation or similar transaction of a Subsidiary into the
Company or a wholly-owned Subsidiary); or the sale or transfer of all or
substantially all of the assets of the Company and the Subsidiaries in a
single transaction or a series of related transactions; or
(ii) the occurrence of any transaction or event in connection
with which all or substantially all the Common Stock shall be exchanged
for, converted into, acquired for or constitute the right to receive
securities of any other Person (whether by means of a Tender Offer,
liquidation, consolidation, merger, share exchange, combination,
reclassification, recapitalization, or otherwise); or
(iii) the acquisition by a Person or group of Persons acting in
concert as a partnership, limited partnership, syndicate or group, as a
result of a tender or exchange offer, open market purchases, privately
negotiated purchases or otherwise, of beneficial ownership of securities
of the Company representing 50% or more of the combined voting power of
the outstanding voting securities of the Company ordinarily (and apart
from rights accruing in special circumstances) having the right to vote
in the election of directors.
"Rule 144A" means Rule 144A as promulgated under the 1933 Act.
"SEC" means the Securities and Exchange Commission.
"Subsidiary" means any corporation or other entity of which a
majority of the capital stock or other ownership interests having
ordinary voting power to elect a majority of the board of directors or
other Persons performing similar functions are at the time directly or
indirectly owned by the Company.
"Tender Offer" means a tender offer, exchange offer or other offer
by the Company to repurchase outstanding shares of its capital stock.
"Trading Day" means at any time a day on which any of a national
securities exchange, Nasdaq or such other securities market as at such
time constitutes the principal securities market for the Common Stock is
open for general trading of securities.
1. Exercise of Warrant.
(a) Exercise. This Warrant may be exercised by the Holder in
whole at any time or in part from time to time on or before the Expiration
Date by (x) surrendering this Warrant to the Company, (y) giving a
subscription form in the form of Exhibit 1 to this Warrant (duly executed by
the Holder) to the Company, and (z) making payment, in cash or by certified or
official bank check payable to the order of the Company, or by wire transfer
of funds to the account of the Company, in any such case, in the amount
obtained by multiplying (a) the number of shares of Common Stock designated by
the Holder in the subscription form by (b) the Purchase Price then in effect.
On any partial exercise the Company will forthwith issue and deliver to or
upon the order of the Holder a new Warrant or Warrants of like tenor, in the
name of the Holder or as the Holder (upon payment by the Holder of any
applicable transfer taxes) may request, providing in the aggregate on the face
or faces thereof for the purchase of the number of shares of Common Stock for
which such Warrant or Warrants may still be exercised. The subscription form
may be surrendered by telephone line facsimile transmission to such telephone
number for the Company as shall have been specified in writing to the Holder
by the Company; provided, however, that if the subscription form is given to
the Company by telephone line facsimile transmission the Holder shall send an
original of such subscription form to the Company within ten Business Days
after such subscription form is so given to the Company; provided further,
however, that any failure or delay on the part of the Holder in giving such
original of any subscription form shall not affect the validity or the date on
which such subscription form is so given by telephone line facsimile
transmission.
(b) Net Exercise. The Holder may elect to exercise this
Warrant, in whole at any time or in part from time to time, by receiving
shares of Common Stock equal to the net issuance value (as determined below)
of this Warrant, or any part hereof, upon surrender of the subscription form
annexed hereto (duly executed by the Holder) to the Company (followed by
surrender of this Warrant to the Company within three Trading Days after
surrender of such subscription form), in which event the Company shall issue
to the Holder a number of shares of Common Stock computed using the following
formula:
X = Y x (A - B)
A
where,
X = the number of shares of Common Stock to be issued to the
Holder
Y = the number of shares of Common Stock as to which this
Warrant is to be exercised
A = the Current Fair Market Value of one share of Common Stock
calculated as of the last Trading Day immediately preceding
the exercise of this Warrant
B = the Purchase Price
2. Delivery of Stock Certificates, etc., on Exercise. As soon
as practicable after the exercise of this Warrant and in any event within five
Trading Days thereafter, upon the terms and subject to the conditions of this
Warrant, the Company at its expense (including the payment by it of any
applicable issue or stamp taxes) will cause to be issued in the name of and
delivered to the Holder, or as the Holder (upon payment by the Holder of any
applicable transfer taxes) may direct, a certificate or certificates for the
number of fully paid and nonassessable shares of Common Stock (or Other
Securities) to which the Holder shall be entitled on such exercise, in such
denominations as may be requested by the Holder, plus, in lieu of any
fractional share to which the Holder would otherwise be entitled, cash equal
to such fraction multiplied by the then Current Fair Market Value of one full
share, together with any other stock or Other Securities or any property
(including cash, where applicable) to which the Holder is entitled upon such
exercise pursuant to Section 1 or otherwise. The Company shall pay any taxes
and other governmental charges that may be imposed under the laws of the
United States of America or any political subdivision or taxing authority
thereof or therein in respect of the issue or delivery of shares of Common
Stock (or Other Securities) or payment of cash upon exercise of this Warrant
(other than income taxes imposed on the Holder). The Company shall not be
required, however, to pay any tax or other charge imposed in connection with
any transfer involved in the issue of any certificate for shares of Common
Stock (or Other Securities) issuable upon exercise of this Warrant or payment
of cash to any Person other than the Holder, and in case of such transfer or
payment the Company shall not be required to deliver any certificate for
shares of Common Stock (or Other Securities) upon such exercise or pay any
cash until such tax or charge has been paid or it has been established to the
Company's reasonable satisfaction that no such tax or charge is due. Upon
exercise of this Warrant as provided herein, the Company's obligation to issue
and deliver the certificates for Common Stock shall be absolute and
unconditional, irrespective of the absence of any action by the Holder to
enforce the same, any waiver or consent with respect to any provision hereof,
the recovery of any judgment against any Person or any action to enforce the
same, any failure or delay in the enforcement of any other obligation of the
Company to the Holder, or any setoff, counterclaim, recoupment, limitation or
termination, or any breach or alleged breach by the Holder or any other Person
of any obligation to the Company or any violation or alleged violation of law
by the Holder or any other Person, and irrespective of any other circumstance
which might otherwise limit such obligation of the Company to the Holder in
connection with such exercise. If the Company fails to issue and deliver the
certificates for the Common Stock to the Holder pursuant to the first sentence
of this paragraph as and when required to do so, in addition to any other
liabilities the Company may have hereunder and under applicable law, the
Company shall pay or reimburse the Holder on demand for all out-of-pocket
expenses, including, without limitation, fees and expenses of legal counsel,
incurred by the Holder as a result of such failure.
3. Adjustment for Dividends in Other Stock, Property, etc.;
Reclassification, etc. In case at any time or from time to time on or after
the Issuance Date, all the holders of Common Stock (or Other Securities) shall
have received, or (on or after the record date fixed for the determination of
stockholders eligible to receive) shall have become entitled to receive,
without payment therefor,
(a) other or additional stock, rights, warrants or other
securities or property (other than cash) by way of dividend, or
(b) any cash (excluding cash dividends payable solely out of
earnings or earned surplus of the Company), or
(c) other or additional stock, rights, warrants or other
securities or property (including cash) by way of spin-off, split-up,
reclassification, recapitalization, combination of shares or similar
corporate rearrangement,
other than additional shares of Common Stock (or Other Securities) issued as a
stock dividend or in a stock-split (adjustments in respect of which are
provided for in Section 5), then and in each such case the Holder, on the
exercise hereof as provided in Section 1, shall be entitled to receive the
amount of stock, rights, warrants and Other Securities and property (including
cash in the cases referred to in subdivisions (b) and (c) of this Section 3)
which the Holder would hold on the date of such exercise if on the date
thereof the Holder had been the holder of record of the number of shares of
Common Stock called for on the face of this Warrant and had thereafter, during
the period from the date thereof to and including the date of such exercise,
retained such shares and all such other or additional stock, rights, warrants
and Other Securities and property (including cash in the case referred to in
subdivisions (b) and (c) of this Section 3) receivable by the Holder as
aforesaid during such period, giving effect to all adjustments called for
during such period by Section 4.
4. Exercise upon a Reorganization Event. In case of any
Reorganization Event the Company shall, as a condition precedent to the
consummation of the transactions constituting, or announced as, such
Reorganization Event, cause effective provisions to be made so that the Holder
shall have the right thereafter, by exercising this Warrant (in lieu of the
shares of Common Stock of the Company and Other Securities or property
purchasable and receivable upon exercise of the rights represented hereby
immediately prior to such transaction) to purchase the kind and amount of
shares of stock and Other Securities and property (including cash) receivable
upon such Reorganization Event by a holder of the number of shares of Common
Stock that might have been received upon exercise of this Warrant immediately
prior to such Reorganization Event. Any such provision shall include
provisions for adjustments in respect of such shares of stock and Other
Securities and property that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Warrant. The provisions
of this Section 4 shall apply to successive Reorganization Events.
5. Adjustment for Certain Extraordinary Events. In the event
that on or after the Issuance Date the Company shall (i) issue additional
shares of the Common Stock as a dividend or other distribution on outstanding
Common Stock, (ii) subdivide or reclassify its outstanding shares of Common
Stock, or (iii) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock, then, in each such event, the Purchase Price
shall, simultaneously with the happening of such event, be adjusted by
multiplying the Purchase Price in effect immediately prior to such event by a
fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such event and the denominator of which shall
be the number of shares of Common Stock outstanding immediately after such
event, and the product so obtained shall thereafter be the Purchase Price then
in effect. The Purchase Price, as so adjusted, shall be readjusted in the
same manner upon the happening of any successive event or events described
herein in this Section 5. The Holder shall thereafter, on the exercise hereof
as provided in Section 1, be entitled to receive that number of shares of
Common Stock determined by multiplying the number of shares of Common Stock
which would be issuable on such exercise immediately prior to such issuance by
a fraction of which (i) the numerator is the Purchase Price in effect
immediately prior to such issuance and (ii) the denominator is the Purchase
Price in effect on the date of such exercise.
6. Effect of Reclassification, Consolidation, Merger or Sale.
(a) If any of the following events occur, namely (i) any reclassification or
change of the outstanding shares of Common Stock (other than a change in par
value, or from par value to no par value, or from no par value to par value,
or as a result of a subdivision or combination), (ii) any consolidation,
merger or combination of the Company with another corporation as a result of
which holders of Common Stock shall be entitled to receive stock, securities
or other property or assets (including cash) with respect to or in exchange
for such Common Stock, or (iii) any sale or conveyance of the properties and
assets of the Company as, or substantially as, an entirety to any other Person
as a result of which holders of Common Stock shall be entitled to receive
stock, securities or other property or assets (including cash) with respect to
or in exchange for such Common Stock, then the Company or the successor or
purchasing Person, as the case may be, shall execute with the Holder a written
agreement providing that (x) this Warrant shall thereafter entitle the Holder
to purchase the kind and amount of shares of stock and Other Securities or
property or assets (including cash) receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance by the holder
of a number of shares of Common Stock issuable upon exercise of this Warrant
(assuming, for such purposes, a sufficient number of authorized shares of
Common Stock available to exercise this Warrant) immediately prior to such
reclassification, change, consolidation, merger, combination, sale or
conveyance assuming such holder of Common Stock did not exercise such holder's
rights of election, if any, as to the kind or amount of securities, cash or
other property receivable upon such consolidation, merger, statutory exchange,
sale or conveyance (provided that, if the kind or amount of securities, cash
or other property receivable upon such consolidation, merger, statutory
exchange, sale or conveyance is not the same for each share of Common Stock in
respect of which such rights of election shall not have been exercised ("non-
electing share"), then for the purposes of this Section 6 the kind and amount
of securities, cash or other property receivable upon such consolidation,
merger, statutory exchange, sale or conveyance for each non-electing share
shall be deemed to be the kind and amount so receivable per share by a
plurality of the non-electing shares), (y) in the case of any such successor
or purchasing Person, upon such consolidation, merger, combination, sale or
conveyance such successor or purchasing Person shall be jointly and severally
liable with the Company for the performance of all of the Company's
obligations under this Warrant and the Note Purchase Agreement and (z) if
registration or qualification is required under the 1933 Act or applicable
state law for the public resale by the Holder of such shares of stock and
Other Securities so issuable upon exercise of this Warrant, such registration
or qualification shall be completed prior to such reclassification, change,
consolidation, merger, combination or sale. Such written agreement shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Warrant. If, in the case
of any such reclassification, change, consolidation, merger, combination, sale
or conveyance, the stock or other securities and assets receivable thereupon
by a holder of shares of Common Stock includes shares of stock or other
securities and assets of a corporation other than the successor or purchasing
corporation, as the case may be, in such reclassification, change,
consolidation, merger, combination, sale or conveyance, then such written
agreement shall also be executed by such other corporation and shall contain
such additional provisions to protect the interests of the Holder as the Board
of Directors shall reasonably consider necessary by reason of the foregoing.
(b) The above provisions of this Section 6 shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.
(c) If this Section 6 applies to any event or occurrence, Section 4
shall not apply to such event or occurrence.
7. Tax Adjustments. The Company may make such reductions in
the Purchase Price, in addition to those required by Sections 3, 4, and 5, as
the Board of Directors considers to be advisable to avoid or diminish any
income tax to holders of Common Stock or rights to purchase Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.
8. Minimum Adjustment. (a) No adjustment in the Purchase Price
(and no related adjustment in the number of shares of Common Stock which may
thereafter be purchased upon exercise of this Warrant) shall be required
unless such adjustment would require an increase or decrease of at least 1% in
the Purchase Price; provided, however, that any adjustments which by reason of
this Section 8 are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All such calculations under this
Warrant shall be made by the Company and shall be made to the nearest tenth of
a cent or to the nearest one hundredth of a share, as the case may be.
(b) No adjustment need be made for a change in the par value of
the Common Stock or from par value to no par value or from no par value to par
value.
9. Notice of Adjustments. Whenever the Purchase Price is
adjusted as herein provided, the Company shall promptly, but in no event later
than five Trading Days thereafter, give a notice to the Holder setting forth
the Purchase Price and number of shares of Common Stock which may be purchased
upon exercise of this Warrant after such adjustment and setting forth a brief
statement of the facts requiring such adjustment but which such statement
shall not include any information which would be material non-public
information for purposes of the 1934 Act. Failure to deliver such notice shall
not affect the legality or validity of any such adjustment.
10. Further Assurances. The Company will take all action that
may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable shares of stock, free from all
taxes, liens and charges with respect to the issue thereof, on the exercise of
all or any portion of this Warrant from time to time outstanding.
11. Notice to Holder Prior to Certain Actions. In case on or
after the Issuance Date:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock (other than in cash out of retained
earnings); or
(b) the Company shall authorize the granting to the holders of
its Common Stock of rights or warrants to subscribe for or purchase any share
of any class or any other rights or warrants; or
(c) the Board of Directors shall authorize any reclassification
of the Common Stock (other than a subdivision or combination of its
outstanding Common Stock, or a change in par value, or from par value to no
par value, or from no par value to par value), or any consolidation or merger
or other business combination transaction to which the Company is a party and
for which approval of any stockholders of the Company is required, or the sale
or transfer of all or substantially all of the assets of the Company; or
(d) there shall be pending the voluntary or involuntary
dissolution, liquidation or winding-up of the Company;
the Company shall give the Holder, as promptly as possible but in any event at
least ten Trading Days prior to the applicable date hereinafter specified, a
notice stating (x) the date on which a record is to be taken for the purpose
of such dividend, distribution or rights or warrants, or, if a record is not
to be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution or rights are to be determined, or (y)
the date on which such reclassification, consolidation, merger, other business
combination transaction, sale, transfer, dissolution, liquidation or winding-
up is expected to become effective or occur, and the date as of which it is
expected that holders of Common Stock of record who shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reclassification, consolidation, merger, other business combination
transaction, sale, transfer, dissolution, liquidation or winding-up shall be
determined. Such notice shall not include any information which would be
material non-public information for purposes of the 1934 Act. Failure to give
such notice, or any defect therein, shall not affect the legality or validity
of such dividend, distribution, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding-up. In the case of any such
action of which the Company gives such notice to the Holder or is required to
give such notice to the Holder, the Holder shall be entitled to give a
subscription form to exercise this Warrant in whole or in part that is
contingent on the completion of such action.
12. Reservation of Stock, etc., Issuable on Exercise of
Warrants. The Company will at all times reserve and keep available out of its
authorized but unissued shares of capital stock, solely for issuance and
delivery on the exercise of this Warrant, a sufficient number of shares of
Common Stock (or Other Securities) to effect the full exercise of this Warrant
and the exercise, conversion or exchange of any other warrant or security of
the Company exercisable for, convertible into, exchangeable for or otherwise
entitling the holder to acquire shares of Common Stock (or Other Securities),
and if at any time the number of authorized but unissued shares of Common
Stock (or Other Securities) shall not be sufficient to effect such exercise,
conversion or exchange, the Company shall take such action as may be necessary
to increase its authorized but unissued shares of Common Stock (or Other
Securities) to such number as shall be sufficient for such purposes.
13. Transfer of Warrant. This Warrant shall inure to the
benefit of the successors to and assigns of the Holder. This Warrant and all
rights hereunder, in whole or in part, are registrable at the office or agency
of the Company referred to below by the Holder in Person or by his duly
authorized attorney, upon surrender of this Warrant properly endorsed
accompanied by an assignment form in the form attached to this Warrant, or
other customary form, duly executed by the transferring Holder.
14. Register of Warrants. The Company shall maintain, at the
principal office of the Company (or such other office as it may designate by
notice to the Holder), a register in which the Company shall record the name
and address of the Person in whose name this Warrant has been issued, as well
as the name and address of each successor and prior owner of such Warrant.
The Company shall be entitled to treat the Person in whose name this Warrant
is so registered as the sole and absolute owner of this Warrant for all
purposes.
15. Exchange of Warrant. This Warrant is exchangeable, upon the
surrender hereof by the Holder at the office or agency of the Company referred
to in Section 13, for one or more new Warrants of like tenor representing in
the aggregate the right to subscribe for and purchase the number of shares of
Common Stock which may be subscribed for and purchased hereunder, each of such
new Warrants to represent the right to subscribe for and purchase such number
of shares as shall be designated by the Holder at the time of such surrender.
16. Replacement of Warrant. On receipt by the Company of
evidence reasonably satisfactory to it of the ownership of and the loss,
theft, destruction or mutilation of this Warrant and (a) in the case of loss,
theft or destruction, of indemnity from the Holder reasonably satisfactory in
form to the Company (and without the requirement to post any bond or other
security), or (b) in the case of mutilation, upon surrender and cancellation
of this Warrant, the Company will execute and deliver to the Holder a new
Warrant of like tenor without charge to the Holder.
17. Warrant Agent. The Company may, by written notice to the
Holder, appoint the transfer agent and registrar for the Common Stock as the
Company's agent for the purpose of issuing Common Stock (or Other Securities)
on the exercise of this Warrant pursuant to Section 1, and the Company may, by
written notice to the Holder, appoint an agent having an office in the United
States of America for the purpose of exchanging this Warrant pursuant to
Section 15, and replacing this Warrant pursuant to Section 16, or any of the
foregoing, and thereafter any such exchange or replacement, as the case may
be, shall be made at such office by such agent.
18. Remedies. The Company stipulates that the remedies at law
of the Holder in the event of any default or threatened default by the Company
in the performance of or compliance with any of the terms of this Warrant are
not and will not be adequate, and that such terms may be specifically enforced
by a decree for the specific performance of any agreement contained herein or
by an injunction against a violation of any of the terms hereof or otherwise.
19. No Rights or Liabilities as a Stockholder. This Warrant
shall not entitle the Holder to any voting rights or other rights as a
stockholder of the Company. Nothing contained in this Warrant shall be
construed as conferring upon the Holder the right to vote or to consent or to
receive notice as a stockholder of the Company on any matters or with respect
to any rights whatsoever as a stockholder of the Company. No dividends or
interest shall be payable or accrued in respect of this Warrant or the
interest represented hereby or the Common Stock (or Other Securities)
purchasable hereunder until, and only to the extent that, this Warrant shall
have been exercised in accordance with its terms.
20. Notices, etc. All notices and other communications from the
Company to the Holder shall be mailed by first class certified mail, postage
prepaid, at such address as may have been furnished to the Company in writing
by the Holder or at the address shown for the Holder on the register of
Warrants referred to in Section 16.
21. Transfer Restrictions. This Warrant has not been and is not
being registered under the provisions of the 1933 Act or any state securities
laws and this Warrant may not be transferred unless (1) the transferee is an
"accredited investor" (as defined in Regulation D under the 0000 Xxx) or a QIB
in a transfer that meets the requirements of Rule 144A and (2) the Holder
shall have delivered to the Company an opinion of counsel, reasonably
satisfactory in form, scope and substance to the Company, to the effect that
this Warrant may be sold or transferred without registration under the 1933
Act. Prior to any such transfer, such transferee shall have represented in
writing to the Company that such transferee has requested and received from
the Company all information relating to the business, properties, operations,
condition (financial or other), results of operations or prospects of the
Company deemed relevant by such transferee; that such transferee has been
afforded the opportunity to ask questions of the Company concerning the
foregoing and has had the opportunity to obtain and review the Registration
Statement (as defined in the Note Purchase Agreement) and the prospectus
included therein, each as amended or supplemented to the date of transfer to
such transferee, and the reports and other information concerning the Company
which at the time of such transfer have been filed by the Company with the SEC
pursuant to the 1934 Act and which are incorporated by reference in such
prospectus as of the date of such transfer. If such transfer is intended to
assign the rights and obligations under Sections 5, 8, 9 and 10 of the Note
Purchase Agreement, such transfer shall otherwise be made in compliance with
Section 10(j) of the Note Purchase Agreement.
22. Rule 144A Information Requirement. Within the period prior
to the expiration of the holding period applicable to sales hereof under Rule
144(k) under the 1933 Act (or any successor provision), the Company covenants
and agrees that it shall, during any period in which it is not subject to
Section 13 or 15(d) under the 1934 Act, make available to the Holder and the
holder of any shares of Common Stock issued upon exercise of this Warrant
which continue to be Restricted Securities in connection with any sale thereof
and any prospective purchaser of this Warrant from the Holder, the information
required pursuant to Rule 144A(d)(4) under the 1933 Act upon the request of
the Holder and it will take such further action as the Holder may reasonably
request, all to the extent required from time to time to enable the Holder to
sell this Warrant without registration under the 1933 Act within the
limitation of the exemption provided by Rule 144A, as Rule 144A may be amended
from time to time. Upon the request of the Holder, the Company will deliver
to the Holder a written statement as to whether it has complied with such
requirements.
23. Legend. Unless theretofore registered for resale under the
1933 Act, each certificate for shares issued upon exercise of this Warrant
shall bear the following legend:
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "1933 Act"). The
securities have been acquired for investment and may not be resold,
transferred or assigned in the absence of an effective registration
statement for the securities under the 1933 Act, or an opinion of
counsel that registration is not required under the 1933 Act.
24. Amendment; Waiver. This Warrant and any terms hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver,
discharge or termination is sought.
25. Miscellaneous. This Warrant shall be construed and enforced
in accordance with and governed by the internal laws of the State of New York.
The headings, captions and footers in this Warrant are for purposes of
reference only, and shall not limit or otherwise affect any of the terms
hereof. The invalidity or unenforceability of any provision hereof shall in
no way affect the validity or enforceability of any other provision.
26. Attorneys' Fees. In any litigation, arbitration or court
proceeding between the Company and Holder relating hereto, the prevailing
party shall be entitled to attorneys' fees and expenses and all costs of
proceedings incurred in enforcing this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed on its behalf by one of its officers thereunto duly authorized.
Dated: October 26, 2005 OMNI MEDICAL HOLDINGS, INC.
By:
Name:
Title:
ASSIGNMENT
For value hereby sell(s),
assign(s) and transfer(s) unto (Please insert
social security or other Taxpayer Identification Number of assignee:
) the attached original, executed Warrant to
purchase share of Common Stock of Omni Medical
Holdings, Inc., a Utah corporation (the "Company"), and hereby irrevocably
constitutes and appoints attorney to transfer
the Warrant on the books of the Company, with full power of substitution in
the premises.
In connection with any transfer of the Warrant within the period prior
to the expiration of the holding period applicable to sales thereof under Rule
144(k) under the 1933 Act (or any successor provision) (other than any
transfer pursuant to a registration statement that has been declared effective
under the 1933 Act), the undersigned confirms that such Warrant is being
transferred:
[ ] To the Company or a subsidiary thereof; or
[ ] To a QIB pursuant to and in compliance with Rule 144A; or
[ ] To an "accredited investor" (as defined in Regulation D
under the 0000 Xxx) pursuant to and in compliance with the
1933 Act; or
[ ] Pursuant to and in compliance with Rule 144 under the 1933
Act;
and unless the box below is checked, the undersigned confirms that, to the
knowledge of the undersigned, such Warrant is not being transferred to an
"affiliate" (as defined in Rule 144 under the 0000 Xxx) of the Company.
[ ] The transferee is an affiliate of the Company.
Capitalized terms used in this Assignment and not defined in this
Assignment shall have the respective meanings provided in the Warrant.
Dated: NAME:
Signature(s)
Exhibit 1
FORM OF SUBSCRIPTION
OMNI MEDICAL HOLDINGS, INC.
(To be signed only on exercise of Warrant)
TO: Omni Medical Holdings, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile No.: (000) 000-0000
1. The undersigned Holder of the attached original, executed Warrant
hereby elects to exercise its purchase right under such Warrant with respect
to shares (the "Exercise Shares") of Common
Stock, as defined in the Warrant, of Omni Medical Holdings, Inc., a Utah
corporation (the "Company").
2. The undersigned Holder (check one):
[ ] (a) elects to pay the Aggregate Purchase Price for such shares
of Common Stock (i) in lawful money of the United States or by the
enclosed certified or official bank check payable in United States
dollars to the order of the Company in the amount of
$ , or (ii) by wire transfer of United
States funds to the account of the Company in the amount of
$ , which transfer has been made before
or simultaneously with the delivery of this Form of Subscription
pursuant to the instructions of the Company;
or
[ ] (b) elects to receive shares of Common Stock having a value
equal to the value of the Warrant calculated in accordance with
Section 1(b) of the Warrant.
3. Please issue a stock certificate or certificates representing the
appropriate number of shares of Common Stock in the name of the undersigned or
in such other name(s) as is specified below:
Name:
Address:
Social Security or Tax Identification Number (if any):
Dated:
(Signature must conform to name of Holder
as specified on the face of the Warrant)
(Address)
