EXHIBIT 4.11
FORM OF WARRANT
THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THEY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO SUCH SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
MIRACOR DIAGNOSTICS, INC.
WARRANT TO PURCHASE COMMON STOCK
NO. W-___ JULY 14, 2004
VOID AFTER JULY 14, 2009
THIS CERTIFIES THAT, for value received, , with its principal office at , its
successors or assigns (the "HOLDER"), is entitled to subscribe for and purchase
at the Exercise Price (defined below) per share from MIRACOR DIAGNOSTICS, INC.,
a Utah corporation, with its principal office at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx
000, Xxx Xxxxx, XX 00000 (the "COMPANY") up to ( ) shares of the Common Stock of
the Company (the "COMMON Stock").
This warrant shall be immediately exercisable for that number of shares of
Common Stock specified above (subject to adjustment as provided in Section 4
hereof).
1. DEFINITIONS. As used herein, the following terms shall have the following
respective meanings:
(a) "EXERCISE PERIOD" shall mean the period commencing with the date
hereof and ending at 5:00 p.m. Eastern Standard Time five (5) years
from the date hereof, unless sooner terminated as provided below.
(b) "EXERCISE PRICE" shall be Fifty-Five Cents ($0.55), subject to
adjustment pursuant to Section 4 below. All references to the Exercise
Price herein shall mean the Exercise Price as so adjusted.
(c) "TRADING DAY" shall mean (i) if the applicable security is listed
or admitted for trading on the New York Stock Exchange or another
national security exchange, a day on which the New York Stock Exchange
or another national security exchange is open for business or (ii) if
the applicable security is quoted on the Nasdaq National Market, a day
on which trades may be quoted thereon or (iii) if the applicable
security is not so listed, admitted for trading or quoted, any day
other than a Saturday or Sunday or a day on which banking institutions
in the State of New York are authorized or obligated by law or
executive order to close.
(d) "CURRENT MARKET PRICE" shall be deemed to be the average of the
last reported sale prices for the ten (10) consecutive Trading Days
preceding the date in question.
(e) "EXERCISE SHARES" shall mean the shares of Common Stock issuable
upon exercise of this Warrant.
2. EXERCISE OF WARRANT.
2.1 EXERCISE PROCEDURES. The rights represented by this Warrant may be exercised
in whole or in part at any time during the Exercise Period, by delivery of the
following to the Company at its address set forth above (or at such other
address as it may designate by notice in writing to the Holder):
(a) An executed Notice of Exercise in the form attached hereto;
(b) Payment of the Exercise Price either (i) in cash or by check, or
(ii) by cancellation of indebtedness; and
(c) This Warrant.
The date of delivery to the Company of the foregoing items shall be the
effective date of the exercise of this Warrant (the "EFFECTIVE DATE").
Upon the exercise of the rights represented by this Warrant, a certificate or
certificates for the Exercise Shares so purchased, registered in the name of the
Holder or persons identified by the Holder, if the Holder so designates, shall
be issued and delivered to the Holder promptly after the rights represented by
this Warrant shall have been so exercised, together with an amount of cash in
lieu of any fraction of a share as provided in paragraph 6 below. If the Holder
exercises this Warrant in part, this Warrant shall be surrendered by the Holder
to the Company and a new Warrant of the same tenor and for the unexercised
number of Exercise Shares shall be executed by the Company. The Company shall
register the new Warrant in the name of the Holder or in such name or names of
its transferee pursuant to paragraph 8 hereof as may be directed in writing by
the Holder and deliver the new Warrant to the person or persons entitled to
receive the same.
The person in whose name any certificate or certificates for Exercise Shares are
to be issued upon exercise of this Warrant shall be deemed to have become the
holder of record of such shares on the date on which this Warrant was
surrendered and payment of the Exercise Price was made, irrespective of the date
of delivery of such certificate or certificates, except that, if the date of
such surrender and payment is a date when the stock transfer books of the
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Company are closed, such person shall be deemed to have become the holder of
such shares at the open of business on the next succeeding date on which the
stock transfer books are open.
2.2 NET EXERCISE. Notwithstanding any provisions herein to the contrary, if the
fair market value of one share of Common Stock is greater than the Exercise
Price (at the date of calculation as set forth below), in lieu of exercising
this Warrant by payment of cash, the Holder may elect to receive shares equal to
the value (as determined below) of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of the Company
together with the properly endorsed Notice of Exercise in which event the
Company shall issue to the Holder a number of shares of Common Stock computed
using the following formula:
X = Y(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 purchasable under the
Warrant or, if only a portion of the Warrant is being
exercised, the portion of the Warrant being canceled (at the
date of such calculation)
A = the fair market value of one share of the Common Stock (at the
date immediately preceding the date on which the Holder
satisfied the delivery obligations set forth in Section 2.1)
B = Exercise Price (as adjusted to the date of such calculation)
For purposes of the above calculation, the fair market value of one share of
Common Stock shall be:
(a) the average daily Market Price (as defined below) for one share of
Common Stock during the period of the most recent ten (10) Trading
Days, ending on the last business day before the Effective Date; or
(b) if no class of Common Stock is then listed or admitted to trading
on any national securities exchange or quoted in the over-counter
market, the fair market value shall be the Market Price on the last
business day before the effective date of exercise of the Warrant.
If the Common Stock is traded on a national securities exchange or admitted to
unlisted trading privileges on such an exchange, or is listed on the National
Market System (the "NATIONAL MARKET SYSTEM") or the Small Cap System (the "SMALL
CAP") of the Nasdaq, the Market Price as of a specified day shall be the last
reported sale price of Common Stock on such exchange or on the National Market
System or the Small Cap on such date or if no such sale is made on such day, the
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mean of the closing bid and asked prices for such day on such exchange or on the
National Market System. If the Common Stock is not so listed or admitted to
unlisted trading privileges, the Market Price as of a specified day shall be the
mean of the last bid and asked prices reported on such date (x) by the Nasdaq or
(y) if reports are unavailable under clause (x) above by the National Quotation
Bureau Incorporated. If the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and ask prices are not reported, the Market
Price as of a specified day shall be determined in good faith by the Board of
Directors of the Company. If the Holder shall object to any determination by the
Board of Directors of the Market Price, the Market Price shall be the fair
market value per share of the Common Stock as determined by an independent
appraiser retained by the Holder at its expense and reasonably acceptable to the
Company; provided, however, that if the Market Price as determined by such
appraiser shall differ from the Market Price determined by the Board of
Directors by more than ten percent (10%), the Company shall bear the expense of
such appraiser.
3. COVENANTS OF THE COMPANY.
3.1 COVENANTS AS TO EXERCISE SHARES. The Company covenants and agrees that all
Exercise Shares that may be issued upon the exercise of the rights represented
by this Warrant will, upon issuance, be validly issued and outstanding, fully
paid and nonassessable, and free and clear from all taxes, liens, security
interests, charges and other encumbrances and restrictions on sale other than as
is provided in Section 5.5(a) of the Purchase Agreement (as defined below). The
Company further covenants and agrees that the Company will at all times during
the Exercise Period, have authorized and reserved, free from preemptive rights,
a sufficient number of shares of its Common Stock to provide for the full
exercise of the rights represented by this Warrant. If at any time during the
Exercise Period the number of authorized but unissued shares of Common Stock
shall not be sufficient to permit the full exercise of this Warrant, the Company
will take such corporate action as is, in the opinion of its counsel, necessary
to increase its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purposes.
3.2 NO IMPAIRMENT. Except and to the extent as waived or consented to by the
Holder, the Company will not, by amendment of its Amended and Restated Articles
of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such action as may be necessary or appropriate
in order to protect the exercise rights of the Holder against impairment.
3.3 NOTICES OF RECORD DATE. In the event of any taking by the Company of a
record of the holders of any class of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend (other than a cash
dividend which is the same as cash dividends paid in previous quarters) or other
distribution, the Company shall mail to the Holder, at least ten (10) days prior
to the date specified herein, a notice specifying the date on which any such
record is to be taken for the purpose of such dividend or distribution.
4. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF EXERCISE SHARES.
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4.1 CERTAIN ADJUSTMENT EVENTS.
(a) In the event of changes in the outstanding Common Stock after April
26, 2004 (the "ESCROW DATE") by reason of stock dividends,
distributions payable in Common Stock, split-ups, recapitalizations,
reclassifications, combinations or exchanges of shares, separations,
reorganizations, liquidations, or the like, the number and class of
shares available under the Warrant in the aggregate and the Exercise
Price shall be correspondingly adjusted to give the Holder of the
Warrant, on exercise for the same aggregate Exercise Price, the total
number, class, and kind of shares as the Holder would have owned had
the Warrant been exercised prior to the event and had the Holder
continued to hold such shares until after the event requiring
adjustment. The form of this Warrant need not be changed because of any
adjustment in the number of Exercise Shares subject to this Warrant.
(b) In the event the number of shares of Common Stock issuable upon
conversion of the Company's Series A Preferred Stock (the "CONVERSION
SHARES") is increased due to an adjustment pursuant to the terms of the
Company's Certificate of Designation for the Series A Preferred Stock,
then the number of shares of Common Stock available under this Warrant
in the aggregate shall be correspondingly adjusted to give the Holder
of the Warrant, on exercise for the same aggregate Exercise Price, the
number of additional shares equivalent to Thirty Percent (30%) of a
share of Common Stock for each additional Conversion Share such Holder
is deemed to hold.
4.2 ADDITIONAL SHARES ISSUED BELOW THE EXERCISE PRICE.
(a) If at any time or from time to time after the Escrow Date, the
Company issues or sells, or is deemed to have issued or sold,
Additional Shares of Common Stock (as defined below), other than as a
dividend or other distribution as provided in Section 4.1 above, and
other than a subdivision or combination of shares of Common Stock as
provided in Section 4.1 above, for a price less than the then effective
Exercise Price, then in each such case, the Exercise Price shall be
adjusted, as of the opening of business on the date of such issue or
sale, to a price equal to the Effective Price of such Additional Shares
of Common Stock. References to Common Stock in this Section 4.2 shall
mean all shares of Common Stock issued by the Company or deemed to be
issued pursuant to this Section 4.2. The "EFFECTIVE PRICE" of such
Additional Shares of Common Stock shall mean the quotient determined by
dividing the total number of Additional Shares of Common Stock issued
or sold, or deemed to have been issued or sold, by the Company under
this Section 4.2, into the Aggregate Consideration (as hereinafter
defined) received, or deemed to have been received, by the Company for
such issuance or sale under this Section 4.2 for such shares of
Additional Stock.
(b) No adjustment shall be made to the Exercise Price in an amount less
than one cent per share. Any adjustment otherwise required by this
Section 4, that is not required to be made due to the preceding
sentence shall be included in any subsequent adjustment to the Exercise
Price.
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(c) For purpose of making any adjustment required under this
Section 4, the Aggregate Consideration received by the Company for any
issue or sale of securities shall: (i) to the extent it consists of
cash, be computed at the net amount of cash received by the Company
after deduction of any underwriting or similar commissions,
compensation or concessions paid or allowed by the Company in
connection with such issue or sale but without deduction of any
expenses payable by the Company, (ii) to the extent it consists of
property other than cash, be computed at the fair value of that
property as determined in good faith by the Board of Directors, and
(iii) if Additional Shares of Common Stock, Convertible Securities (as
defined below) or rights or options to purchase either Additional
Shares of Common Stock or Convertible Securities are issued or sold
together with other stock or securities or other assets of the Company
for a consideration which covers both, be computed as the portion of
the consideration so received that may be reasonably determined in good
faith by the Board of Directors to be allocable to such Additional
Shares of Common Stock, Convertible Securities or rights or options
(the "AGGREGATE CONSIDERATION").
(d) For the purpose of the adjustment required under this Section 4.2,
if the Company issues or sells (i) stock or other securities
convertible into Additional Shares of Common Stock (such convertible
stock or securities being herein referred to as "CONVERTIBLE
SECURITIES") or (ii) rights or options for the purchase of Additional
Shares of Common Stock or Convertible Securities, in each case the
Company shall be deemed to have issued at the time of the issuance of
such rights or options or Convertible Securities the maximum number of
Additional Shares of Common Stock issuable upon exercise or conversion
thereof and to have received as consideration for the issuance of such
shares an amount equal to the total amount of the consideration, if
any, received by the Company for the issuance of such rights or options
or Convertible Securities plus, in the case of such rights or options,
the minimum amounts of consideration, if any, payable to the Company
upon the exercise of such rights or options; and in the case of
Convertible Securities, the minimum amounts of consideration, if any,
payable to the Company upon the conversion thereof (other than by
cancellation of liabilities or obligations evidenced by such
Convertible Securities); PROVIDED that if the minimum amounts of such
consideration cannot be ascertained, but are a function of antidilution
or similar protective clauses, the Company shall be deemed to have
received the minimum amounts of consideration without reference to such
clauses.
(i) If the minimum amount of consideration payable to the
Company upon the exercise or conversion of rights, options or
Convertible Securities is reduced over time or on the
occurrence or non-occurrence of specified events other than by
reason of antidilution adjustments for which a corresponding
adjustment is made hereunder, the Effective Price shall be
recalculated using the figure to which such minimum amount of
consideration is reduced; PROVIDED FURTHER, that if the
minimum amount of consideration payable to the Company upon
the exercise or conversion of such rights, options or
Convertible Securities is subsequently increased, the
Effective Price shall be again recalculated using the
increased minimum amount of consideration payable to the
Company upon the exercise or conversion of such rights,
options or Convertible Securities.
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(ii) No further adjustment of the Exercise Price, as adjusted
upon the issuance of such rights, options or Convertible
Securities, shall be made as a result of the actual issuance
of Additional Shares of Common Stock or the exercise of any
such rights or options or the conversion of any such
Convertible Securities. If any such rights or options or the
conversion privilege represented by any such Convertible
Securities shall expire without having been exercised, the
Exercise Price as adjusted upon the issuance of such rights,
options or Convertible Securities shall be readjusted to the
Exercise Price which would have been in effect had an
adjustment been made on the basis that the only Additional
Shares of Common Stock so issued were the Additional Shares of
Common Stock, if any, actually issued or sold on the exercise
of such rights or options or rights of conversion of such
Convertible Securities, and such Additional Shares of Common
Stock, if any, were issued or sold for the consideration
actually received by the Company upon such exercise, plus the
consideration, if any, actually received by the Company for
the granting of all such rights or options, whether or not
exercised, plus the consideration received for issuing or
selling the Convertible Securities actually converted, plus
the consideration, if any, actually received by the Company
(other than by cancellation of liabilities or obligations
evidenced by such Convertible Securities) on the conversion of
such Convertible Securities, PROVIDED that such readjustment
shall not apply to prior exercises of the Warrant or portions
thereof.
(e) "ADDITIONAL SHARES OF COMMON STOCK" DEFINED. For the purpose of
making any adjustment to the Exercise Price required under this Section
4.2, "ADDITIONAL SHARES OF COMMON STOCK" shall mean all shares of
Common Stock issued by the Company or deemed to be issued pursuant to
this Section 4.2, whether or not subsequently reacquired or retired by
the Company in connection with any new investments in the Company
subsequent to the Closing, including without limitation subsequent
rounds of private financing, other than: (i) shares of Common Stock
issued upon conversion of the Series A Preferred Stock; (ii) issuance
of securities pursuant to the Company's stock-based employee
compensation plans, so long as the aggregate amount of shares issued or
reserved for issuance in respect of stock-based employee compensation
plans never exceeds 18% of the Company's fully-diluted shares; (iii)
securities issued in connection with any joint venture, strategic
alliance, license agreement, marketing or other distribution agreement
with respect to the Company's business or products or to any person
with whom the Company has a similar relationship; (iv) securities
issued pursuant to, or to finance, the acquisition of any business,
product, technology, know-how whether by asset purchase, merger or
otherwise.
4.3 EXTRAORDINARY DIVIDEND. In case the Company shall fix a record date for the
making of a distribution to holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness, assets or
other property (other than dividends payable in Common Stock or rights, options
or warrants referred to in, and for which an adjustment is made pursuant to,
Section 4.1 hereof), the Exercise Price to be in effect after such record date
shall be determined by multiplying the Exercise Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
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Current Market Price per share of Common Stock on such record date, less the
fair market value of the portion of the assets, other property or evidence of
indebtedness so to be distributed which is applicable to one share of Common
Stock, and the denominator of which shall be such Current Market Price per share
of Common Stock. Such fair market value shall be determined by the Board of
Directors of the Company; PROVIDED that if the Holder shall object to any such
determination, the Holder shall retain an independent appraiser reasonably
satisfactory to the Company to determine such fair market value; provided,
however, that if the Current Market Price as determined by such appraiser shall
differ from the Current Market Price determined by the Board of Directors by
more than ten percent (10%), the Company shall bear the expense of such
appraiser. Such adjustments shall be made successively whenever such a record
date is fixed; and in the event that such distribution is not so made, the
Exercise Price shall again be adjusted to be the Exercise Price which would then
be in effect if such record date had not been fixed.
4.4 THIRD PARTY TENDER OFFER. If at any time or from time to time after the
Escrow Date, a tender or exchange offer is made by a person other than the
Company or one of its affiliates for an amount that increases the offeror's
ownership of Common Stock to more than twenty-five percent (25%) of the Common
Stock outstanding and shall involve the payment by such person of consideration
per share of Common Stock having a fair market value (as determined by the Board
of Directors and described in a resolution of the Board of Directors) that as of
the last time (the "OFFER EXPIRATION TIME") tenders or exchanges may be made
pursuant to such tender or exchange offer (as it shall have been amended) that
exceeds the Current Market Price of the Common Stock on the Trading Day next
succeeding the Offer Expiration Time, and in which, as of the Offer Expiration
Time the Board of Directors is not recommending rejection of the offer, the
Exercise Price shall be reduced so that the same shall equal the price
determined by multiplying the Exercise Price in effect immediately prior to the
Offer Expiration Time by a fraction the numerator of which shall be the number
of shares of Common Stock outstanding (including any tendered or exchanges
shares) at the Offer Expiration Time multiplied by the Current Market Price of
the Common Stock on the Trading Day next succeeding the Offer Expiration Time
and the denominator of which shall be the sum of (a) the fair market value of
the aggregate consideration payable to shareholders based on the acceptance (up
to an maximum specified in the terms of the tender or exchange offer) of all
shares validly tendered or exchanged and not withdrawn as of the Offer
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "ACCEPTED PURCHASED SHARES") and (b) the product of the
number of shares of Common Stock outstanding (less any Accepted Purchased
Shares) at the Offer Expiration Time and the Current Market Price of the Common
Stock on the Trading Day next succeeding the Offer Expiration Time, such
reduction to become effective immediately prior to the opening of business on
the Trading Day following the Offer Expiration Time. In the event that the
offeror is obligated to purchase shares pursuant to any such tender or exchange
offer, but such person is permanently prevented by applicable law from effecting
any such purchase or all such purchases are rescinded, the Exercise Price shall
again be adjusted to be the Exercise Price that would be then in effect if such
tender or exchange offer had not been made.
4.5 ORGANIC CHANGES. If any recapitalization, reclassification or reorganization
of the capital stock of the Company, or any consolidation or merger of the
Company with another corporation, or the sale of all or substantially all of its
assets or other transaction shall be effected in such a way that holders of the
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Company's Common Stock shall be entitled to receive stock, securities, or other
assets or property (an "ORGANIC CHANGE"), then, as a condition of such Organic
Change, lawful and adequate provisions shall be made by the Company whereby the
Holder hereof shall thereafter have the right to purchase and receive (in lieu
of the shares of the Common Stock of the Company immediately theretofore
purchasable and receivable upon the exercise of the rights represented hereby)
such shares of stock, securities or other assets or property as may be issued or
payable with respect to or in exchange for a number of outstanding shares of
such Common Stock equal to the number of shares of such stock immediately
theretofore purchasable and receivable upon the exercise of the rights
represented hereby assuming (a) such holder of Common Stock is not a person with
which the Company consolidated or into which the Company merged or which merged
into the Company or to which such sale or transfer was made, as the case may be
(the "CONSTITUENT PERSON"), or an affiliate of a Constituent Person and (b) in
the case of a consolidation, merger, sale or transfer which includes an election
as to the consideration to be received by the holders, such holders of Common
Stock failed to exercise its rights of election, as to the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or other transfer (PROVIDED that if the kind or amount of securities, cash
and other property receivable upon such consolidation, merger, sale or transfer
is not the same for each share of Common Stock held immediately prior to such
consolidation, merger, sale or transfer by other than the Constituent Person or
an affiliate thereof and in respect of which such rights of election shall not
have been exercised (the "NON-ELECTING SHARE"), then for purposes of this
paragraph the kind and amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer 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. In the event of any Organic Change, appropriate
provision shall be made by the Company with respect to the rights and interests
of the Holder of this Warrant to the end that the provisions hereof (including,
without limitation, provisions for adjustments of the Exercise Price and of the
number of shares purchasable and receivable upon the exercise of this Warrant)
shall thereafter be applicable, in relation to any shares of stock, securities
or assets thereafter deliverable upon the exercise hereof.
4.6 CERTIFICATE AS TO ADJUSTMENT--NOTICE BY THE COMPANY. In each case of an
adjustment or readjustment of the Exercise Price, the Company, at its expense,
shall compute such adjustment or readjustment in accordance with the provisions
hereof and prepare a certificate showing such adjustment or readjustment, and
shall mail such certificate, by first class mail, postage prepaid, to the Holder
at the Holder's address as shown in the Company's books. The certificate shall
set forth such adjustment or readjustment, showing in detail the facts upon
which such adjustment or readjustment is based, including a statement of (a) the
consideration received or deemed to be received by the Company for any
Additional Shares of Common Stock issued or sold or deemed to have been issued
or sold, if applicable, (b) the number of Additional Shares of Common Stock, if
applicable, and (c) the type and amount, if any, of other property which at the
time would be received upon exercise of the Warrant.
5. REPRESENTATIONS OF HOLDER.
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5.1 ACQUISITION OF WARRANT FOR PERSONAL ACCOUNT. The Holder represents and
warrants that it is acquiring the Warrant solely for its account for investment
and not with a view to or for sale or distribution of said Warrant or any part
thereof. The Holder also represents that the entire legal and beneficial
interests of the Warrant and Exercise Shares the Holder is acquiring are being
acquired for, and will be held for, its account only. 5.2 SECURITIES ARE NOT
REGISTERED.
(a) The Holder understands that the Warrant and the Exercise Shares
have not been registered under the Securities Act of 1933, as amended
(the "Act") on the basis that no distribution or public offering of the
stock of the Company is to be effected. The Holder realizes that the
basis for the exemption may not be present if, notwithstanding its
representations, the Holder has a present intention of acquiring the
securities for a fixed or determinable period in the future, selling
(in connection with a distribution or otherwise), granting any
participation in, or otherwise distributing the securities. The Holder
has no such present intention.
(b) The Holder recognizes that the Warrant and the Exercise Shares must
be held indefinitely unless they are subsequently registered under the
Act or an exemption from such registration is available. The Holder
recognizes that the Company has no obligation to register the Warrant
or to comply with any exemption from such registration.
(c) The Holder is aware that neither the Warrant nor the Exercise
Shares may be sold pursuant to Rule 144 adopted under the Act unless
certain conditions are met, including, among other things, the
existence of a public market for the shares, the availability of
certain current public information about the Company, the resale
following the required holding period under Rule 144 and the number of
shares being sold during any three month period not exceeding specified
limitations.
5.3 DISPOSITION OF WARRANT AND EXERCISE SHARES.
(a) The Holder further agrees not to make any disposition of all or any
part of the Warrant or Exercise Shares in any event unless and until
Section 5.5 of the Unit Purchase Agreement by and between the Company
and the Holder dated April 26, 2004 ("PURCHASE AGREEMENT") has been
complied with in all respects and unless and until:
(i) The Company shall have received a letter secured by the
Holder from the Securities and Exchange Commission (the
"COMMISSION") stating that no action will be recommended to
the Commission with respect to the proposed disposition; or
(ii) There is then in effect a registration statement under
the Act covering such proposed disposition and such
disposition is made in accordance with said registration
statement; or
(iii) The Holder shall have notified the Company of the
proposed disposition and shall have furnished the Company with
a detailed statement of the circumstances surrounding the
proposed disposition or with a Form 144 if the sale is being
made pursuant to Rule 144 of the Securities Act, and if
reasonably requested by the Company and the sale is not being
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made pursuant to Rule 144 of the Securities Act, the Holder
shall have furnished the Company with an opinion of counsel,
reasonably satisfactory to the Company, for the Holder to the
effect that such disposition will not require registration of
such Warrant or Exercise Shares under the Act or any
applicable state securities laws.
(b) The Holder understands and agrees that all certificates evidencing
the shares to be issued to the Holder may bear the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
6. FRACTIONAL SHARES. No fractional shares shall be issued upon the exercise of
this Warrant as a consequence of any adjustment pursuant hereto. All Exercise
Shares (including fractions) issuable upon exercise of this Warrant may be
aggregated for purposes of determining whether the exercise would result in the
issuance of any fractional share. If, after aggregation, the exercise would
result in the issuance of a fractional share, the Company shall, in lieu of
issuance of any fractional share, pay the Holder otherwise entitled to such
fraction a sum in cash equal to the product resulting from multiplying the then
current fair market value (as determined in Section 2.2) of an Exercise Share by
such fraction.
7. NO SHAREHOLDER RIGHTS. This Warrant in and of itself shall not entitle the
Holder to any voting rights or other rights as a shareholder of the Company.
8. TRANSFER OF WARRANT. Subject to applicable laws and the restrictions on
transfer set forth in the Purchase Agreement pursuant to which this Warrant was
issued, this Warrant and all rights hereunder are transferable at any time in
whole or from time to time in part, including as fractions of a warrant, by the
Holder in person or by duly authorized attorney, upon delivery of this Warrant
and the form of assignment attached hereto to any transferee designated by
Holder. The transferee shall sign an investment letter in form and substance
satisfactory to the Company (in the exercise of its reasonable discretion). Upon
surrender of this Warrant to the Company, together with the attached Assignment
Form duly executed, the Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee or assignees named in such instrument of
assignment and, if the Holder's entire interest is not being assigned, in the
name of the Holder and this Warrant shall promptly be canceled.
9. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost,
stolen, mutilated or destroyed, the Company shall, on such terms as to indemnity
or otherwise as it may reasonably impose (which shall, in the case of a
mutilated Warrant, include the surrender thereof), issue a new Warrant of like
denomination and tenor as the Warrant so lost, stolen, mutilated or destroyed.
Any such new Warrant shall constitute an original contractual obligation of the
Company, whether or not the allegedly lost, stolen, mutilated or destroyed
Warrant shall be at any time enforceable by anyone.
11
10. NOTICES, ETC. All notices, requests, consents and other communications
hereunder shall be in writing, shall be sent by facsimile or mailed by first
class registered or certified airmail, or nationally recognized overnight
express courier postage prepaid, and shall be deemed given when so sent by
facsimile or mailed and shall be delivered as follows:
(a) if to the Company, to:
Miracor Diagnostics, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Chief Executive Officer
Or to such other person at such other place as the Company shall designate to
the Holder in writing.
(b) if to the Holder, at the Holder's address as specified in the
Purchase Agreement, or at such other address or addresses as may have
been furnished to the Company in writing.
11. ACCEPTANCE. Receipt of this Warrant by the Holder shall constitute
acceptance of and agreement to all of the terms and conditions contained herein.
12. AMENDMENTS; WAIVERS. Any provision of this Warrant may be amended or waived
if, and only if, such amendment or waiver is in writing and signed, in the case
of an amendment, by the Holder and the Company, or in the case of a waiver, by
the party against whom xxxxxx is to be effective. No failure or delay by either
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
13. FRACTIONAL WARRANTS. The Company may sell or issue, and Holders may hold,
own or transfer, fractions of warrants. Nothing in this Warrant shall prevent or
restrict the application of the provisions of this Warrant to fractions of a
warrant. Notwithstanding the foregoing, the Company will not issue fractional
shares upon the exercise of this Warrant, as provided in Section 6 hereof.
14. GOVERNING LAW. This Warrant and all rights, obligations and liabilities
hereunder shall be governed by the laws of the State of Florida.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
duly authorized officer as of July 14, 2004. Miracor Diagnostics, Inc.
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
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NOTICE OF EXERCISE
TO: MIRACOR DIAGNOSTICS, INC.
(1) / / The undersigned hereby elects to purchase shares of the Common Stock
of MIRACOR DIAGNOSTICS, INC. on the terms and conditions of the attached
Warrant, and tenders herewith payment of the exercise price in full, together
with all applicable transfer taxes, if any.
/ / The undersigned hereby elects to purchase shares of the Common Stock of
MIRACOR DIAGNOSTICS, INC. on the terms and conditions of, and pursuant to the
net exercise provisions set forth in Section 2.2 of, the attached Warrant, and
shall tender payment of all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
---------------------------------
(Name)
---------------------------------
---------------------------------
(Address)
--------------------------------- ---------------------------------
(Date) (Signature)
---------------------------------
(Print name)
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ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required
information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are
hereby assigned to
Name: ________________________________________________________________________
(Please Print)
Address: ______________________________________________________________________
(Please Print)
Dated: ___________, 20__
Holder's
Signature: _____________________________________________
Holder's
Address: ________________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign
the foregoing Warrant.
