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EXHIBIT 4(n)
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this "Agreement") is entered into this 5th day of
October, 1996, by and between UNIVERSAL MEDICAL SYSTEMS, INC., a Nevada
corporation, whose address is 00000 Xxxx Xxxxxxxxx Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000 (the "Company"), and XXXXXX X. XXXX, Esq., whose address is 00000
Xxxx Xxxxxxxxx Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, as Warrant Agent (the
"Warrant Agent").
Premises
A. The Company has proposed to issue Redeemable Class C Common Stock
Purchase Warrants as hereinafter described (the "Warrants") to purchase Shares
of the Company's $.001 par value common stock at an exercise price of One and
50/100 Dollars ($1.50) per share.
B. The Company wishes the Warrant Agent to act on behalf of the Company,
and the Warrant Agent is willing to act in connections with the issuance,
division, transfer, exchange, and exercise of Warrants.
Agreement
In consideration of the foregoing and for the purpose of defining the
terms and provisions of the Warrants and the respective rights and obligations
thereunder of the Company and the registered owners of the Warrants (the
"Holders"), the Company and the Warrant Agent hereby agree as follows:
Section 1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions hereinafter in this Agreement set forth, and the Warrant Agent
hereby accepts such appointment.
Section 2. Transferability and Form of Warrant.
2.1 Registration. The Warrant shall be numbered and shall be
registered in a Warrant register as they are issued. The Company and the Warrant
Agent shall be entitled to treat the Holder of any Warrant as the owner in fact
thereof for all purposes and shall not be bound to recognize any equitable or
other claim to or interest in such Warrant on the part of any other person, and
shall not be liable for any registration or transfer of Warrants which are
registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with the actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration or transfer, or
with knowledge of such facts that its participation therein amounts to bad
faith.
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2.2 Transfer. The Warrants are fully transferable. Warrants
shall be transferable only on the books of the Company maintained at the office
of the Warrant Agent in the City of Clearwater, State of Florida, on delivery
thereof duly endorsed by Holder or by his duly authorized attorney or
representative, or accompanied by proper evidence of succession, assignment, or
authority to transfer. In all cases of transfer by an attorney, the original
letter of attorney, duly approved, or an official copy thereof, duly certified,
shall be deposited and remain with the Warrant Agent. In case of transfer by
executors, administrators, guardians, or other legal representatives, duly
authenticated evidence of their authority shall be produced, and may be required
to be deposited and remain with the Warrant Agent in its discretion. On any
registration of transfer, the Warrant Agent shall countersign and deliver a new
Warrant or Warrants to the person entitled thereto.
2.3 Form of Warrants. The text of the Warrant and of the form of
election to purchase Shares shall be substantially as set forth in Exhibit "A"
attached hereto. The price per Share and the number of Shares issuable on
exercise of Warrants are as indicated on the face of each Warrant. The Warrants
shall be executed on behalf of the Company by the manual or facsimile signature
of the present or any future secretary or assistant secretary of the Company.
Warrants shall be dated as of the date of countersignature thereof by the
Warrant Agent either on initial issuance or on division, exchange, substitution,
or transfer.
Section 3. Countersignature of Warrants. The Warrants shall be
countersigned by the Warrant Agent (or any successor to the Warrant Agent then
acting as Warrant Agent under this Agreement) and shall not be valid for any
purpose unless so countersigned. Warrants may be countersigned, however, by the
Warrant Agent (or by its successor as Warrant Agent) and may be delivered by the
Warrant Agent, notwithstanding that the persons whose manual or facsimile
signatures appearing thereon as proper officers of the Company shall have ceased
to be such officers at the time of such countersignature, issuance, or delivery.
The Warrant Agent shall, on written instructions of the president or the
secretary of the Company, countersign, issue, and deliver Warrants entitling the
Holders thereof to purchase the Shares provided for in the instructions and
shall countersign and deliver Warrants as otherwise provided in this Agreement.
Section 4. Exchange of Warrants. The Warrants may be exchanged for
another Warrant or Warrants entitling the Holder thereof to purchase a like
aggregate number of Shares as the Warrant or Warrants surrendered then entitle
him to purchase. Any Holder of a Warrant desiring to exchange Warrants shall
make such request in writing delivered to the Warrant Agent, and shall
surrender, properly endorsed, the Warrant or Warrants to be so exchanged.
Thereupon, the Warrant Agent shall countersign and deliver to the person
entitled thereto a Warrant or Warrants, as the case may be, as so requested.
Section 5. Term of Warrants; Exercise of Warrants. Each Holder shall
have the right, which may be exercised beginning at 12:00 a.m. on October 5,
1996, and expiring at 11:59 p.m., Florida time on September 30, 2001, to
purchase from the Company the number of fully paid and non-assessable Shares to
which the Holder may at the time be entitled to purchase pursuant to such
Warrants, subject to the conditions set forth in this paragraph, on surrender to
the Company at the principal office in the City of Clearwater, State of Florida
of
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the Warrant Agent with the form of election to purchase on the reverse thereof
duly completed and signed, and on payment to the Warrant Agent for the account
of the Company of the Warrant Price as defined and determined in accordance with
the provisions of Sections 9 and 10 hereof, for the number of Shares in respect
of which such Warrants are then exercised. Payment of the Warrant Price shall be
made in cash or by cashier's check. Subject to subsections 5.1 and 5.2 of this
section, on such surrender of Warrants, and payment of the Warrant Price as
aforesaid, the Company shall issue and cause to be delivered with all reasonable
dispatch to or on the written order of the Holder and in such name or names as
the Holder may designate, a certificate or certificates for the number of full
Shares so purchased on the exercise of such Warrants. No fractional Shares shall
be issuable on such surrender. Such certificate or certificates shall be deemed
to have been issued and any person so designated to be named therein shall be
deemed to have become a Holder of Record of such Shares as of the date of the
surrender of such Warrants and payment of the Warrant Price, as aforesaid;
provided, however, that if, at the date of surrender of such Warrants and
payment of such Warrant Price, the transfer books for the Shares or other class
of stock purchasable on the exercise of such Warrants shall be closed, the
certificates for the Shares in respect of which such Warrants are then exercised
shall be issuable as of the date on which such books shall next be opened
(whether before or after expiration of the exercise period) and until such date
the Company shall be under no duty to deliver any certificate for such Shares;
provided further, however, the transfer books of record, unless otherwise
required by law, shall not be closed at any one time for a period longer than 60
days. The right of purchase represented by the Warrants shall be exercisable, at
the election of the Holders thereof, either in full or from time-to-time in part
and, in the event that any Warrant is exercised in respect of less than all of
the Shares specified therein at any time prior to the date of expiration of the
Warrants, a new Warrant or Warrants will be issued for the remaining number of
Shares, and the Warrant Agent is hereby irrevocably authorized to countersign
and to deliver the required new Warrants pursuant to the provisions of this
section and of Section 3 hereof and the Company, whether required by the Warrant
Agent, will supply the Warrant Agent with Warrants duly executed on behalf of
the Company for such purpose.
5.1 The Warrants may not be exercised by the Holders in the
absence of an effective registration statement under the Securities Act of 1933,
as amended (the "Securities Act"), and registration or qualification under
applicable state blue sky laws pertaining to the Shares issuable on exercise of
the Warrants or there is an available exemption from such federal or state
registration requirements.
5.2 If the Company is required to file a registration statement
in accordance with the provisions of subsection 5.1, the Company shall take all
steps reasonably necessary to permit the exercise of the Warrants and the
issuance of the Shares under the applicable state securities laws of those
states in which the Warrants were originally issued by the Company. The Company
will take such reasonable steps which it determines, in its sole discretion, are
necessary to permit the exercise of Warrants and the issuance of the Shares
under the laws of any other state in which a Holder then resides on the written
request to do so by such Holder, but in no event shall the Company be required
to consent to the general service of process in any state other than those
states in which the Warrants
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were originally issued. Holders who reside in any state where the Company
cannot, with the exercise of reasonable diligence and without consenting to
general service of process, obtain qualification for the exercise of the
Warrants and the issuance of the Shares may not, as a result thereof, be able to
exercise their Warrants, and the Company is under no obligation to make such
exercise possible in such circumstances. In the event that the Company
determines to proceed with the qualification of the exercise of the Warrants and
the issuance of the Shares under the securities laws of a particular state, then
the exercise of such Warrants shall not be effective and the Shares shall not be
issued until such qualification becomes effective. The costs of obtaining such
state qualification shall be borne by the Company.
5.3 The Company shall promptly notify the Warrant Agent of the
effective date of any registration statement which the Company is required to
file under subsection 5.1 and the date on which the Shares become qualified or
registered under the state securities laws of any state in which the Company
obtains qualification or registration with respect to such Shares. The Warrant
Agent shall not issue any Shares with respect to any Warrant surrendered for
exercise unless such Warrants are surrendered and received by the Warrant Agent
during a period that the registration statement is effective. Furthermore, the
Warrant Agent shall not issue any Shares on the exercise of any Warrants
received from a Holder who is a resident of a state with respect to which the
Shares issuable on exercise of the Warrants are not qualified or registered.
Section 6. Payment of Taxes. The Company will pay all documentary stamp
taxes, if any, attributable to the initial issuance of Shares issuable on the
exercise of Warrants; provided, however, that the Company shall not be required
to pay any tax or taxes which may be payable in respect of any transfer involved
in the issuance or delivery of any Warrants or certificates for Shares.
Section 7. Mutilated or Missing Warrants. In case any of the Warrants
shall be mutilated, lost, stolen, or destroyed, the company may at its
discretion issue and the Warrant Agent shall countersign and deliver in exchange
and substitution for and on cancellation of the mutilated Warrant, or in lieu of
and as substitution for the Warrant lost, stolen, or destroyed, a new Warrant of
like tenor and representing an equivalent right or interest; but only upon
receipt of evidence satisfactory to the Company and the Warrant Agent of such
loss, theft, or destruction of such Warrant and indemnity, if requested, also
satisfactory to them. Applicants for such substitute Warrants shall also comply
with such other reasonable regulations and pay such other reasonable charges as
the Company or the Warrant Agent may prescribe.
Section 8. Reservation of Shares; Redemption of Warrants.
8.1 Reservation of Shares. There shall, at all times, be
reserved, out of the authorized and unissued Shares a number of Shares
sufficient to provide for the exercise of the rights of purchase represented by
the outstanding Warrants. The transfer agent for the Shares and every subsequent
transfer agent for any Shares of the Company's stock issuable on the exercise of
any of the rights of purchase aforesaid will be irrevocably authorized and
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directed at all times to reserve such number of authorized and issued shares as
shall be requisite for such purpose. The Company will keep a copy of this
Agreement on file with the transfer agent for the Shares and with every
subsequent transfer agent for any Shares of the Company's capital stock issuable
on the exercise of the rights of purchase represented by the Warrants. The
Warrant Agent is hereby irrevocably authorized to requisition from time-to-time
from such transfer agent, stock certificates required to honor outstanding
Warrants on exercise thereof in accordance with the terms of this Agreement. The
Company will supply such transfer agent with duly executed stock certificates
for such purpose and will provide or otherwise make available any cash which may
be payable as provided in Section 11 hereof. All Warrants surrendered in the
exercise of the rights thereby evidenced shall be canceled by the Warrant Agent
and shall thereafter be delivered to the Company. Promptly after the date of
expiration of the Warrants, the Warrant Agent shall certify to the Company the
total aggregate amount of Warrants then outstanding, and thereafter no Shares
shall be subject to reservation in respect of such Warrants.
8.2 Redemption of Warrants. Any time after June 30, 1997, the
Company may redeem the Warrants at a price of $.01 per Warrant at any time upon
20 days prior written notice if the average closing bid quotation of the Common
Stock has been at least 120% of the exercise price of the Warrants during the 20
consecutive days ending on the third day prior to the day on which notice of
redemption is given to the Warrant Holders.
Section 9. Warrant Price. The price at which Shares shall be
purchasable on exercise of the Warrants shall be One and 50/100 dollars ($1.50)
per Share.
Section 10. No adjustment of Warrant Price and Number of Shares. The
number and kind of securities purchasable on the exercise of each Warrant and
the Warrant Price shall not be subject to anti-dilutive adjustment for any
reason, whatsoever, including but not limited to, forward or reverse splits of
the Company's common stock, stock or cash dividend, or recapitalization. Except,
in the event securities of the Company are issued for consideration less than
that paid by the Holder of the Warrant in connection with the subscription made
by the Holder for Units of securities including Series "C" Preferred Stock and
Warrants, similar securities as those issued by the Company shall be made
available to the Holder upon the same terms and conditions as issued to any
third party in order that the Holder's percentage interest in the issued and
outstanding shares of the Company shall not be negatively diluted. This
provision shall not apply to securities issued to employees of the Company.
10.1 Preservation of Purchase Rights on Reclassification,
Consolidation, Etc. In case of any consolidation of the company with or merger
of the Company into another corporation or in case of any sale or conveyance to
another corporation of the property of the Company as an entirety or
substantially as an entirety, the Company or such successor or purchasing
corporation, as the case may be, shall execute with the Warrant Agent an
agreement that each Holder of a Warrant shall have the right thereafter on
payment of the Warrant Price in effect immediately prior to such action to
purchase on exercise of each Warrant the kind and amount of Shares and other
securities and property which he would have owned or have been entitled to
receive after the happening of such consolidation, merger, sale, or conveyance
had such Warrant been exercised immediately prior to such
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action. The Company shall mail by first class mail, postage prepaid, to the
Holder of each Warrant notice of the execution of any such agreement. The
provisions of this subsection 10.1 shall similarly apply to successive
consolidations, mergers, sales, or conveyances. The Warrant Agent shall be under
no duty or responsibility to determine the correctness of any provisions
contained in any such agreement relating either to the kind or amount of shares
of stock or other securities or property receivable on exercise of Warrants or
with respect to the method employed and provided therein for any adjustments.
Section 11. Fractional Interests. The Company shall not be required to
issue fractional Shares on the exercise of Warrants. If more than one Warrant
shall be presented for exercise in full at the same time by the same Holder, the
number of full Shares which shall be issuable on the exercise thereof shall be
computed on the basis of the aggregate number of Shares represented by the
Warrants so presented. If any fraction of a Share would, except for the
provisions of this Section 11, be issuable on the exercise of any Warrant (or
specified portion thereof), the Company shall pay an amount in cash equal to the
current value of such fraction computed on the basis of (i) the closing bid
price of the Company's common stock as reported by the National Quotation
Bureau, Inc., on its "pink sheets" or "electronic bulletin board" or, if the
common stock is reported by NASDAQ, the closing bid price reported by NASDAQ, on
the last business day prior to the date of exercise, if the Shares are traded in
the over-the-counter market, or (ii) the last reported sales price of the Shares
on the national stock exchange on which the shares are listed on the last
business day prior to the date of exercise on which such a sale shall have been
effected, if the Shares are listed on such an exchange.
Section 12. No Right as Shareholders; Notice to Warrant Holders. Nothing
contained in this Agreement or in any of the Warrants shall be construed as
conferring on the Holders or their transferees the right to vote or to receive
dividends or to consent or to receive notice as shareholders in respect of the
meeting of shareholders for the election of directors of the Company or any
other matter, or any rights whatsoever as Shareholders of the Company.
Section 13. Disposition of Proceeds on Exercise of Warrants; Inspection
of Warrant Agreement. The Warrant Agent shall account promptly to the Company
with respect to Warrants exercised and concurrently pay to the Company all
moneys received by the Warrant Agent for the purchase of the Company's Shares
through the exercise of such Warrants. The Warrant Agent shall keep copies of
this Agreement and any notices given or received hereunder available for
inspection by Holders of Warrants during normal business hours at its principal
office in the City of Clearwater, State of Florida. The Company shall supply the
Warrant Agent, from time-to-time, with such numbers of copies of this Agreement
as the Warrant Agent may request.
Section 14. Merger or Consolidation or Change of Name of Warrant Agent.
Any corporation into which the Warrant Agent may be merged or with which it may
be consolidated, or any corporation resulting from any merger or consolidation
to which the Warrant Agent shall be a party, or any corporation succeeding to
the corporate trust business of the Warrant Agent, shall be the successor to the
Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties
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hereto; provided, that such corporation would be eligible for appointment as a
successor Warrant Agent under the provisions of Section 16 hereof. In case at
the time such successor to the Warrant Agent shall succeed to the agency created
by this Agreement, any of the Warrants shall have been countersigned but not
delivered, any successor to the Warrant Agent may adopt the countersignature of
the original Warrant Agent and deliver such Warrants so countersigned; and in
case at that time any of the Warrants shall not have been countersigned, any
successor to the Warrant Agent may countersign such Warrants either in the name
of the predecessor Warrant Agent or in the name of the successor Warrant Agent,
and in all such cases, Warrants shall have the full force provided in the
Warrants and in this Agreement. In case at any time the name of the Warrant
Agent shall be changed and at such time any of the Warrants shall have been
countersigned but not delivered, the Warrant Agent may adopt the
countersignature under its prior name and deliver Warrants so countersigned; and
in case at that time any of the Warrants shall not have been countersigned, the
Warrant Agent may countersign such Warrants either in its prior name or in its
changed name; and in all such cases such Warrants shall have the full force
provided in the Warrants and in this Agreement.
Section 15. Concerning the Warrant Agent. The Warrant Agent undertakes
the duties and obligations imposed by this Agreement on the following terms and
conditions, by all of which the Company and the Holders of Warrants, by their
acceptance thereof shall be bound:
15.1 The statements contained herein and in the Warrants shall be
taken as statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or action taken by it. The Warrant Agent assumes no
responsibility with respect to the distribution of the Warrants except as herein
otherwise provided.
15.2 The Warrant Agent shall not be responsible for any failure
of the Company to comply with any of the covenants contained in this Agreement
or in the Warrants to be compiled with by the Company.
15.3 The Warrant Agent may execute and exercise any of the rights
or powers hereby vested in it or perform any duty hereunder either itself or by
or through its attorney, agents or employees, and the Warrant Agent shall not be
answerable or accountable for any act, default, neglect, or misconduct of any
such attorney, agents, or employees or for any loss to the Company resulting
from such neglect or misconduct; provided, reasonable care shall have been
exercised in the selection and continued employment thereof.
15.4 The Warrant Agent may consult at any time with legal counsel
satisfactory to it (who may be counsel for the Company) and the Warrant Agent
shall incur no liability or responsibility to the Company or to any Holder of
any Warrant in respect of any action taken, suffered, or omitted by it hereunder
in good faith and in accordance with the opinion or the advise of such counsel.
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15.5 Whenever in the performance of its duties under this
Agreement the Warrant Agent shall deem it necessary or desirable that any fact
or matter be proved of established by the Company prior to taking or suffering
any action hereunder; such fact of matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by the president or a vice
president, or the treasurer, or the secretary of the Company and delivered to
the Warrant Agent; and such certificate shall be full authorization to the
Warrant Agent for an, action taken or suffered in good faith by it under the
provisions of this Agreement in reliance on such certificate.
15.6 The Company agrees to pay the Warrant Agent reasonable
compensation for all services rendered by Warrant Agent in the execution of this
Agreement to reimburse the Warrant Agent for all expenses, taxes, and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the execution of thin Agreement, and to indemnify the Warrant
Agent and save it harmless against any and all liabilities, including judgments,
costs, and counsel fees, for anything done or omitted by the Warrant Agent in
the execution of this Agreement, except as a result of the Warrant Agent's
negligence or bad faith.
15.7 The Warrant Agent shall be under no obligation to institute
any action, suit, or legal proceeding or to take any other action likely to
involve expense unless the Company or one or more Holders of Warrants shall
furnish the Warrant Agent with reasonable security and indemnity for any costs
and expenses which may be incurred, but this provision shall not affect the
power of the Warrant Agent to take such action as the Warrant Agent may consider
proper, whether with or without any such security or indemnity. All rights of
action under this Agreement or under any of the Warrants may be enforced by the
Warrant Agent without the possession of any of the Warrants or the production
thereto at any trial or other proceeding relative thereto, and any such action,
suit, or proceeding instituted by the Warrant Agent, and any recovery of
judgment shall be for the ratable benefit of the Holders of Warrants, as their
respective rights or interest may appear.
15.8 The Warrant Agent and any stockholder, director, officer, or
employee of the Warrant Agent may buy, sell, or deal in any of the Warrants or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to or otherwise act as fully and freely as though it were not Warrant
Agent under this Agreement. Nothing herein shall preclude the Warrant Agent from
acting in any other capacity for the Company or for any other legal entity.
15.9 The Warrant Agent shall act hereunder solely as agent, and
its duties shall be determined solely by the provisions hereof. The Warrant
shall not be liable to anything which it may do or refrain from doing in
connection with this Agreement, except for its own negligence or bad faith.
15.10 The Warrant Agent will not incur any liability or
responsibility to the Company or to any Holder of any Warrant for any action
taken in reliance on any notice, resolution, waiver, consent, order,
certificate, or other paper, document, or instrument reasonably believed by it
to be genuine and to have been signed, sent, or presented by the proper party or
parties.
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15.11 The Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Warrant Agent) or in respect of the
validity or execution of any Warrant (except its countersignature thereof); nor
shall the Warrant Agent by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any Shares
(or other stock) to be issued pursuant to this Agreement or any Warrant or as to
whether any Shares (or other stock) will when issued be validly issued, fully
paid, and non-assessable or as to the Warrant Price, or the number or kind or
amount of Shares or other securities or other property issuable on exercise of
any Warrant.
15.12 The Warrant Agent is hereby authorized and directed to
accept the instructions with respect to the performance of its duties hereunder
from the chairman of the board or the president or a vice president or the
secretary or the treasurer of the Company, and to apply to such officers advice
or instructions in connection with its duties, and shall not be liable for any
action taken by it in good faith in accordance with instructions of any such
officer.
Section 16. Change of Warrant Agent. The Warrant Agent may resign and be
discharged from its duties under this Agreement by giving to the Company 30 days
notice in writing. The Warrant Agent may be removed by like notice to the
Warrant Agent from the Company. If the Warrant Agent shall resign or be removed
or shall otherwise become incapable of acting, the Company shall appoint a
successor to the Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Warrant Agent or by the Holder or a Warrant (who shall with such
notice submit his Warrant for inspection by the Company), then the Holder of any
Warrant may apply to any court of competent jurisdiction for the appointment of
a successor to the Warrant Agent. Any successor Warrant Agent, whether appointed
by the Company or such a court, shall be a bank, trust company, or securities
transfer agency, in good standing, incorporated under the laws of the states of
California, Delaware, Florida, New Jersey, New York, Nevada or Utah or of the
United States of America. After appointment the successor Warrant Agent shall be
vested with the same powers, rights, duties, and responsibilities as if it had
been originally named as Warrant Agent without further act or deed; but the
former Warrant Agent shall deliver and transfer to the successor Warrant Agent
any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act, or deed necessary for the purpose. Failure
to file any notice provided for in this section 16; however, or any defect
therein, shall not affect the legality or validity of the resignation or removal
of the Warrant Agent or the appointment of the successor Warrant Agent, as the
case may be. In the event of such resignation or removal, the successor Warrant
Agent shall mail, first class, to each Holder, written notice of such removal or
resignation and the name and address of such successor Warrant Agent.
Section 17. Identity of Transfer Agent. Forthwith on the appointment of
any subsequent Transfer Agent for the Company's Shares, or any other Shares of
the Company's capital stock issuable on the exercise of the rights of purchase
represented by the Warrants, the company will file with the Warrant Agent a
statement setting forth the name and address of such Transfer Agent.
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Section 18. Notices. Any notice pursuant to this Agreement by the
Company or by the Holder of any Warrant to the Warrant Agent, or by the Warrant
Agent or by the Holder of any Warrant to the Company, shall be in writing and
shall be deemed to have been duly given if delivered or mailed certified mail,
return receipt requested (a) if to the Company to Universal Medical Systems,
Inc., 00000 Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 and (b) if to
the Warrant Agent, to his main office: Xxxxxx X. Xxxx, Esq., 00000 Xxxx
Xxxxxxxxx Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000. Each party hereto may from
time-to-time change the address to which notices to it are to be delivered or
mailed hereunder by notice in writing to the other party.
Section 19. Supplements and Amendments. The Company and the Warrant
Agent may from time-to-time supplement or amend this Agreement, without the
approval of any Holders of Warrants, in order to cure any ambiguity or to
correct or supplement any provision contained herein or to make any other
provisions in regard to matters or questions arising hereunder which the Company
and the Warrant Agent may deem necessary or desirable and which shall not be
inconsistent with the provisions of the Warrants and which shall not adversely
affect the interest of the Holders of the Warrants. In this regard, but not by
way of limitation, establishing an earlier date of exercise without a change in
the expiration date of the Warrants set forth in Section 5 or extending the
period for exercise without a change in the date on which the Warrants are first
exercisable set forth in Section 5 shall not be deemed to adversely affect the
interests of the Holders.
Section 20. Successors. All the covenants and provisions of this
Agreement by or for the benefit of each party shall be binding upon and shall
inure to the benefit of the parties hereto and to their respective successors
and assigns hereunder.
Section 21. Merger or Consolidation of the Company. The Company will not
merge or consolidate with or into any other corporation unless the corporation
resulting from such merger or consolidation (if not the Company) shall expressly
assume, by supplemental agreement satisfactory in form to the Warrant agent and
executed and delivered to the Warrant Agent, the due and punctual performance
and observance of each and every covenant and condition of this Agreement to be
performed and observed by the Company.
Section 22. Applicable Law. This Agreement and each Warrant issued
hereunder shall be deemed to be a contract made under the laws of the State of
Nevada and for all purposes shall be construed in accordance with the laws of
said State.
Section 23. Benefits of this Agreement. Nothing in this Agreement shall
be construed to give any person or corporation other than the Company, the
Warrant Agent, and the Holders of the Warrants any legal or equitable right,
remedy, or claim under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Company, the Warrant Agent, and the Holders of the
Warrants.
Section 24. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
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Section 25. Captions. The captions of the sections and subsections of
this Agreement have been inserted for convenience only and shall have no
substantive effect.
IN WITNESS WHEREOF: the parties hereto have caused this Agreement to be
duly executed all as of the date first above written.
UNIVERSAL MEDICAL SYSTEMS, INC.
By:/s/Xxxxx X. Xxxxx
---------------------------
Xxxxx X. Xxxxx
Chairman & CEO
XXXXXX X. XXXX, ESQ.
By:/s/Xxxxxx X. Xxxx
---------------------------
Xxxxxx X. Xxxx
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EXERCISABLE AFTER 12:00 A.M. ON OCTOBER 5, 1996
VOID AFTER 11:59 P.M. SEPTEMBER 30,2001
REDEEMABLE CLASS C COMMON STOCK PURCHASE WARRANT
REDEEMABLE CLASS C WARRANT NUMBER NUMBER OF WARRANTS
UNIVERSAL MEDICAL SYSTEMS, INC.
This Certifies That, FOR VALUE RECEIVED,
or registered assigns, (the "Holder") is the owner of the number of Redeemable
Class C Common Stock Purchase Warrants ("Class C Warrants") specified above.
Each Class C Warrant initially entitles the Holder to purchase, subject to the
terms and conditions set forth in this Warrant Certificate and the Warrant
Agreement (Class C Warrants), as hereinafter defined, one fully-paid and
nonassessable share of Common Stock $0.001 par value, of Universal Medical
Systems, Inc. a Nevada corporation, (the "Company") at any time between October
5, 1996, and the Expiration Date (as hereinafter defined), upon the presentation
and surrender of this Warrant Certificate with the Form of Exercise on the
reverse side hereof duly executed at the principal office of Xxxxxx X. Xxxx,
Esq., as Warrant Agent, or his substitute (the 'Warrant Agent") accompanied by
payment in lawful money of the United States of America in cash or by official
bank or certified check payable to the Company of $1.50 per share.
This Warrant Certificate and each Class C Warrant represented hereby are
issued pursuant to and are subject in all respects to the terms and conditions
set forth in the Warrant Agreement (the "Warrant Agreement") between the Company
and the Warrant Agent. A copy of the Warrant Agreement is on file at the
principal office of the Warrant Agent, currently located at 00000 Xxxx Xxxxxxxxx
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000.
Each Class C Warrant represented hereby is exercisable at the option of
the registered holder, but no fractional shares of Common Stock will be issued.
In the case of the exercise of less than all the Class C Warrants represented
hereby, the Company shall cancel this Warrant Certificate upon the surrender
hereof and shall execute and deliver a new Warrant Certificate(s) of like tenor,
which the Warrant Agent shall issue for the balance of such Class C Warrant.
The Term "Expiration Date: shall mean 11:59 P.M. (Florida time) on
September 30, 2001, or such earlier date as the Class C Warrants shall be
redeemed. If such date shall in the State of Florida be a holiday or a day on
which banks are authorized to close, the Expiration Date shall Mean 11:59 P.M.
(Florida time) the next following date which in the State of Florida is not a
holiday or a day in which banks are authorized to close.
This Class C Warrant may not be exercised unless a registered statement
under the Securities Act of 1933, as amended, and under the applicable state
securities law with respect to such securities, is effective or there is an
available an exemption from such Federal and State registration requirements and
the Company may have an obligation to file a registration statement to permit
exercise of this Class C Warrant. This Class C Warrant shall not be exercisable
by a Registered Holder in any state where such exercise would be unlawful.
ADDITIONAL PROVISIONS OF THIS CLASS C WARRANT ARE CONTAINED ON THE REVERSE
HEREOF.
Dated: October 5, 1996 By:/s/
---------------------------------
President
Attest:/s/
---------------------------------
Secretary
EXHIBIT "A"
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1. EXERCISE OF THE WARRANT. This Warrant may be exercised by the holder, in
whole at any time or in part from time to time prior the Expiration Date, by the
surrender of this Warrant Certificate (with the Form of Exercise below duly
executed) at the principal office of Warrant Agent, together with proper payment
of the Exercise Price of the proportionate part thereof if this Class C Warrant
is exercised in part. Payment for shares of Common Stock issuable upon exercise
of the Class C Warrants ("Warrant Shares") shall be made by check payable to the
order of the Company. If this warrant Certificate is exercised in part, this
Class C Warrant must be exercised for the number of whole Warrant Shares, and
the Holder is entitled to receive a new Warrant Certificate covering the number
of whole Warrant Shares in respect of which this Class C Warrant has not been
exercised. Upon such surrender of this Class C Warrant, the Company will (a)
issue a certificate(s) in the name of the Holder for the largest number of whole
Warrant Shares to which the Holder shall be entitled and, if this Class C
Warrant is exercised in whole in lieu of any fractional Warrant Share to which
the Holder shall be entitled, cash equal to the fair value of such fractional
share (determined in accordance with the Warrant Agreement), and (b) deliver the
other securities and properties receivable upon the exercise of the Class C
Warrant, or the proportionate part thereof if this Class C Warrant is exercised
in part, pursuant to the provisions of the Warrant Agreement.
2. RESERVATION OF WARRANT SHARES. The Company agrees that prior to the
Expiration Date, it will at all times have authorized and in reserve, and will
keep available, solely for issuance or delivery upon the exercise of this Class
C Warrant, the Warrant Shares and other securities and properties as from time
to time shall be receivable on the exercise of this Class C Warrant, free and
clear of all restriction on sale or transfer and free and clear of all
preemptive rights.
3. PROTECTION AGAINST DILUTION. Refer to paragraph 8 of Summary of Private
Placement dated October 5, 1996.
4. FULLY-PAID SHARES. The Company agrees that the Warrant Shares delivered on
the exercise of this Class C Warrant, shall at the time of such delivery, be
validly issued, outstanding and fully-paid.
5. LOSS, ETC OF WARRANT. Upon receipt of evidence satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant, and indemnity
reasonably satisfactory to the Company, if lost, stolen or destroyed, and upon
surrender and cancellation of this Warrant Certificate if mutilated, and upon
reimbursement of the Company's reasonable incidental expenses, the Company shall
execute and deliver the Holder a new Class C Warrant of like date, tenor and
denomination.
6. COMBINATION, SPLIT UP OR EXCHANGE AND TRANSFER. Subject to the provisions of
the Warrant Agreement this Warrant Certificate may be (a) exchanged for another
Warrant Certificate(s) in any denominations (whole shares only) entitling the
Holder to purchase a like number of Warrant Shares or (b) presented for transfer
at the office of the Warrant Agent, by the Holder or his assigns, in person or
by attorney duly authorized in writing, in the manner provided in the Warrant
Agreement. Upon any such transfer, a new Warrant Certificate(s) of different
denominations evidencing in a aggregate the right to purchase a like number of
Warrant Shares shall be issued to the transferee upon Surrender of this Warrant
Certificate in accordance with instructions set forth in the Assignment set
forth below or furnished to the agent.
7. WARRANT HOLDER NOT STOCKHOLDER. Except as otherwise provided herein and in
the Warrant Agreement, this Class C Warrant does not confer upon the Holder any
right to vote or to consent or to receive notice as a stockholder, of the
Company, as stockholder prior to the exercise hereof.
8. HEADINGS. The headings of this Warrant Certificate have been inserted as
matter of convenience and shall not affect the construction hereof.
9. APPLICABLE LAW. This Class C Warrant shall be governed by and construed in
accordance with the laws of the State of Nevada.
FORM OF EXERCISE
TO WARRANT AGENT:
The undersigned Holder of the within Class C Warrants, Hereby (1) exercises his
rights to purchase shares of Common Stock, par value $0.001 per share of
Universal Medical Systems, Inc., which the undersigned is entitled to purchase
under the terms of the within Class C Warrant, and (2) makes payment in full for
the number of shares of Common Stock so purchased by payment of $_______.
Please issue the Certificate for Shares of Common Stock in the name of, and pay
any cash for any fractional share to:
_______________________________________________________________________________
Print or Type Name
_______________________________________________________________________________
Social Security or other Identifying Number
_______________________________________________________________________________
Street Address
_______________________________________________________________________________
City State Zip Code
_______________________________________________________________________________
and, if said number of shares shall not be all the shares purchasable hereunder,
please issue a new Warrant Certificate(s) for the unexercised portion of the
within Class C Warrant to:
_______________________________________________________________________________
Print or Type Name
_______________________________________________________________________________
Social Security or other Identifying Number
_______________________________________________________________________________
Street Address
_______________________________________________________________________________
City State Zip Code
_______________________________________________________________________________
Dated:____________ ______________________________________________________
Signature
(Signature must conform in all respect to the name of
Holder as specified on the face of the Warrants.)
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