EXHIBIT 4.2
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"); AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS.
WARRANT
TO PURCHASE SHARES OF COMMON STOCK OF
CHROMAVISION MEDICAL SYSTEMS, INC.
THIS CERTIFIES that, for value received, Safeguard Delaware, Inc. and its
successors and assigns (the "HOLDER") is entitled, upon the terms and subject to
the conditions hereinafter set forth, at such times as provided in Section 4
hereof, to subscribe for and purchase from CHROMAVISION MEDICAL SYSTEMS, INC., a
Delaware corporation (the "COMPANY"), 975,000 shares (the "WARRANT SHARES") of
common stock, $0.01 par value per share ("COMMON STOCK"), of the Company. The
purchase price of one share of Common Stock under this Warrant shall be the
Exercise Price (as defined below). This Warrant is being issued in connection
with the Securities Purchase Agreement dated on or about the date hereof (the
"PURCHASE AGREEMENT") entered into between the Company and the Holder.
1. DEFINITIONS. Capitalized terms used herein and not otherwise defined
shall have the meaning ascribed thereto in the Purchase Agreement. As
used in this Warrant, the following terms shall have the following
respective meanings:
"AFFILIATE" shall mean, at any time, and with respect to any Person, (a)
any other Person that at such time directly or indirectly through one or
more intermediaries Controls, or is Controlled by, or is under common
Control with, such first Person, and (b) any Person beneficially owning
or holding, directly or indirectly, 10% or more of any class of voting
or equity interests of the Company or any Subsidiary or any corporation
of which the Company and its Subsidiaries beneficially own or hold, in
the aggregate, directly or indirectly, 10% or more of any class of
voting or equity interests. As used in this definition, "CONTROL" means
the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
"COMMENCEMENT DATE" shall mean June [10], 2002.
"CONVERTIBLE SECURITIES" shall mean (i) any security convertible, with
or without consideration, into any Common Stock (including any option to
purchase such a convertible security and options granted to employees of
the Company under a stock option plan or similar arrangement), (ii) any
security carrying any warrant or right to
subscribe to or purchase any Common Stock or (iii) any such warrant or
right, all as outstanding on the Commencement Date, other than any of
the foregoing held by the Holder or any of its Affiliates on or after
the date hereof.
"CONVERTIBLE SECURITIES EVENT" shall mean the conversion or exercise by
a Person of Convertible Securities.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"EXERCISE PRICE" shall mean in connection with any Exercise of this
Warrant the per share exercise or conversion price of any Convertible
Security to which such Exercise relates.
"HOLDER" shall mean the Holder or any subsequent permitted transferee of
this Warrant.
"PERSON" or "PERSON" shall mean an individual, partnership, corporation,
limited liability company, association, trust, unincorporated
organization, or a government or agency or political subdivision
thereof.
"PRICING PERIOD" shall mean the period of twenty (20) consecutive
Trading Days immediately preceding any Exercise Date.
"PRINCIPAL MARKET" shall mean the Principal Market or such Approved
Market on which the Common Stock is then principally traded.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"TRADING DAY" shall mean (x) if the Common Stock is listed on the New
York Stock Exchange or the American Stock Exchange, a day on which there
is trading on such stock exchange, or (y) if the Common Stock is not
listed on either of such stock exchanges but sale prices of the Common
Stock are reported on an automated quotation system, a day on which
trading is reported on the principal automated quotation system on which
sales of the Common Stock are reported, or (z) if the foregoing
provisions are inapplicable, a day on which quotations are reported by
National Quotation Bureau Incorporated.
2. TITLE OF WARRANT. The Company shall register this Warrant, upon records
to be maintained by the Company for that purpose, in the name of the
record holder hereof from time to time. The Company may deem and treat
the registered holder of this Warrant as the absolute owner hereof for
the purpose of any exercise hereof or any distribution to the holder,
and for all other purposes, and the Company shall not be affected by
notice to the contrary except as provided herein.
With the written consent of the Company, such written consent
not to be unreasonably withheld, subject to compliance with applicable
laws, this Warrant and all rights hereunder are transferable in a single
transfer, at the office or agency of the Company by the holder hereof in
person or by duly authorized attorney, upon surrender of this Warrant
together with (a) an Assignment Form in the form attached hereto as
Exhibit A, and (b) any other documentation reasonably necessary to
satisfy the Company
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that such transfer is in compliance with all applicable securities laws;
provided, that no such transfer may be made to a person that is not an
"accredited investor" as defined in Rule 501 of Regulation D of the
Securities Act; and provided, further, that no consent of the Company is
required for any transfer or assignment in whole or in part from time to
time to an Affiliate of the Holder or the then holder of this Warrant
that is an "accredited investor." If this Warrant is duly assigned in
accordance with the terms hereof, then the Company agrees, upon the
request of the assignee, to amend or supplement promptly any effective
registration statement covering the Warrant Shares so that such assignee
is entitled to be a selling stockholder thereunder.
3. AUTHORIZATION OF SHARES. The Company hereby covenants that all shares of
Common Stock which may be issued upon the exercise of rights represented
by this Warrant will, upon exercise of the rights represented by this
Warrant and payment of the Exercise Price as set forth herein, be duly
authorized, validly issued, fully paid and nonassessable and free from
all taxes, liens, encumbrances and charges in respect of the issue
thereof (other than taxes in respect of any transfer occurring
contemporaneously with such issue or otherwise specified herein).
4. EXERCISE OF WARRANT.
(a) Exercise (each an "EXERCISE") of the purchase rights represented by
this Warrant may be made as contemplated by Section 4(b) below. In each
Exercise, to the extent that Warrant Shares remain available for
purchase by the Holder hereunder, this Warrant shall be exercisable into
a number of Warrant Shares equal to the aggregate number of shares of
Common Stock that have been issued or are issuable in respect of
Convertible Securities Events described in the Conversion Notice (as
defined in Section 4(b) below).
(b) The Company shall promptly notify the Holder in writing following
the close of each fiscal quarter regarding, among other things,
conversions or exercises of Convertible Securities during such quarterly
period. Such notice to the Holder (a "CONVERSION NOTICE") shall contain
(i) the number of shares of Common Stock any such Person received or to
be received from converting or exercising each such Convertible
Securities, (ii) the effective time of such conversion or exercise,
(iii) the per share exercise or conversion price of each such
Convertible Security, and (iv) a calculation as of the end of such
quarterly period of the number of Warrant Shares issuable hereunder. To
the extent that Warrant Shares remain available for purchase by the
Holder hereunder, the Holder may exercise this Warrant in connection
with any Convertible Securities Event identified in a Conversion Notice
by delivering a notice of exercise duly executed (which delivery may be
by facsimile) to the Company at the principal office of the Company (or
such other office or agency of the Company as it may designate by notice
in writing to the registered holder hereof at the address of such holder
appearing on the books of the Company) within nine (9) months of
receiving such Conversion Notice (such nine-month period being referred
to herein as the "EXERCISE PERIOD"). At any time during any applicable
Exercise Period, following payment to the Company (the date of such
payment being referred to herein as the "EXERCISE DATE") of an amount
equal to the product of the Exercise Price multiplied by the number of
the Warrant Shares the Holder is entitled to and desires to purchase,
the Holder of this Warrant shall be entitled to
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receive a certificate for the number of shares of Common Stock so
purchased. Following each applicable Exercise Period, the 975,000
maximum (as adjusted as contemplated by Section 12 below) number of
Warrant Shares that the Holder was entitled to purchase on the date of
this Warrant will be reduced by the number of shares the Holder was
entitled to purchase during such Exercise Period, whether or not so
purchased. Payment of the Exercise Price of the shares shall be by
certified check or cashier's check or by wire transfer to an account
designated by the Company in an aggregate amount equal to the Exercise
Price multiplied by the number of Warrant Shares to be received. The
Holder shall not be required to physically surrender this Warrant to the
Company in connection with an Exercise and the rights of the Holder
hereunder shall remain outstanding until the earlier of (i) the date on
which no Warrant Shares remain available for purchase by the Holder
hereunder and (ii) the date on which there are no Convertible Securities
outstanding.
(c) The Company shall deliver certificates for shares of Common Stock
purchased hereunder within three (3) Trading Days after the Exercise
Date. In lieu of delivering physical certificates representing the
Warrant Shares issuable upon conversion of this Warrant, provided the
Company's transfer agent is a participant in the Depository Trust
Company ("DTC") Fast Automated Securities Transfer ("FAST") program,
upon request of the holder, the Company shall use its best efforts to
cause its transfer agent to electronically transmit the Warrant Shares
issuable upon exercise to the holder, by crediting the account of the
holder's prime broker with DTC through its Deposit Withdrawal Agent
Commission ("DWAC") system. The time periods for delivery described
above shall apply to the electronic transmittals through the DWAC
system. The Company agrees to use its best commercially reasonable
efforts to coordinate with DTC to accomplish this objective.
5. NO FRACTIONAL SHARES OR SCRIP. No fractional Warrants Shares or scrip
representing fractional Warrant Shares shall be issued upon the exercise
of this Warrant. Any fractional share or scrip shall be rounded up to
the nearest whole number.
6. CHARGES, TAXES AND EXPENSES. Issuance of certificates for Warrant Shares
shall be made without charge to the holder hereof for any issue or
transfer tax or other incidental expense in respect of the issuance of
such certificate, all of which taxes and expenses shall be paid by the
Company, and such certificates shall be issued in the name of the Holder
or in such name or names as may be directed by the Holder.
7. NO RIGHTS AS SHAREHOLDER UNTIL EXERCISE. Subject the provisions of any
other written agreement between the Company and the Holder, prior to an
exercise of this Warrant as provided herein, the Holder shall not be
entitled to vote or receive dividends or be deemed the holder of any
Warrant Shares or any other securities of the Company that may at any
time be issuable on the exercise hereof for any purpose, nor shall
anything contained herein be construed to confer upon the Holder, as
such, any of the rights of a stockholder of the Company or any right to
vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to
any corporate action (whether upon any recapitalization, issuance of
stock, reclassification of stock, change of par value, or change of
stock to no par value,
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consolidation, merger, conveyance or otherwise) or to receive notice of
meetings, or to receive dividends or subscription rights. However, at
the time of the exercise of this Warrant pursuant to Section 4 hereof,
the Warrant Shares so purchased hereunder shall be deemed to be issued
to such Holder as the record owner of such shares as of the close of
business on the applicable Exercise Date.
8. REMEDIES. If the Company shall fail to deliver to the Holder the Warrant
Shares to be issued to the Holder hereunder by the third (3rd) Trading
Day following the Exercise Date, whether by physical delivery of
certificates or by book-entry transfer through DTC for such Warrant
Shares, the Holder shall be entitled to any remedies available to it
under this Warrant or the Transaction Documents or at law or in equity.
9. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT; DENOMINATION. In the
event that the Holder notifies the Company that its Warrant has been
lost, stolen or destroyed, then a replacement Warrant identical in all
respects to the original Warrant shall be delivered to the Holder by the
Company within three (3) Trading Days, provided that such Holder
executes and delivers to the Company an agreement reasonably
satisfactory to the Company to indemnify the Company from any loss
incurred by it in connection with such Warrant. No service charge will
be made for such registration, replacement, transfer or exchange.
10. SATURDAYS, SUNDAYS, HOLIDAYS, ETC. If the last or appointed day for the
taking of any action or the expiration of any right required or granted
herein shall be a Saturday, Sunday or a legal holiday, then such action
may be taken or such right may be exercised on the next succeeding day
not a legal holiday.
11. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may at its option, at
any time during the term of this Warrant, reduce but not increase the
then current Exercise Price to any amount and for any period of time
deemed appropriate by the Board of Directors of the Company.
12. EFFECT OF CERTAIN EVENTS; ADJUSTMENT OF EXERCISE PRICE AND NUMBER OR
WARRANT SHARES. To the extent that the occurrence of any transaction
entitles the holder of any Convertible Security to any cash, stock,
other securities, assets or any other property or consideration with or
without the exercise or conversion of such Convertible Security, which
such holder would have owned or been entitled to receive upon or after
the happening of such transaction had such holder exercised such
Convertible Security immediately prior thereto, the Holder shall
similarly be entitled to receive such consideration with or without the
Exercise of this Warrant. To the extent that the exercise or conversion
price of any Convertible Security or the number of shares of Common
Stock that are issuable upon exercise or conversion of any such
Convertible Security are adjusted as a result of any declaration or
payment of any dividend, any distribution or distributions on any equity
security of the Company, subdivision or combination of shares of Common
Stock into larger or smaller numbers of shares or any reclassification
or like event, the applicable Exercise Price of this Warrant and the
number of Warrant Shares that the Holder is entitled to purchase
hereunder shall be similarly adjusted.
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13. MISCELLANEOUS.
(a) Issue Date; Choice of Law; Venue; Jurisdiction; No Jury Trial. THE
PROVISIONS OF THIS WARRANT SHALL BE CONSTRUED AND SHALL BE GIVEN EFFECT
IN ALL RESPECTS AS IF IT HAD BEEN ISSUED AND DELIVERED BY THE COMPANY ON
THE DATE HEREOF. THIS WARRANT SHALL BE BINDING UPON ANY SUCCESSORS OR
PERMITTED ASSIGNS OF THE COMPANY. THIS WARRANT WILL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE COMMONWEALTH
OF PENNSYLVANIA, EXCEPT FOR MATTERS ARISING UNDER THE SECURITIES ACT,
WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES
CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS
SITTING IN THE COUNTY OF PHILADELPHIA IN THE COMMONWEALTH OF
PENNSYLVANIA IN CONNECTION WITH ANY DISPUTE ARISING UNDER THIS WARRANT
AND HEREBY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY
OBJECTION, INCLUDING ANY OBJECTION BASED ON FORUM NON CONVENIENS, TO THE
BRINGING OF ANY SUCH PROCEEDING IN SUCH JURISDICTION. EACH PARTY XXXXXX
AGREES THAT IF THE OTHER PARTY TO THIS WARRANT OBTAINS A JUDGMENT
AGAINST IT IN SUCH A PROCEEDING, THE PARTY WHICH OBTAINED SUCH JUDGMENT
MAY ENFORCE SAME BY SUMMARY JUDGMENT IN THE COURTS OF ANY COUNTRY HAVING
JURISDICTION OVER THE PARTY AGAINST WHOM SUCH JUDGMENT WAS OBTAINED, AND
EACH PARTY HEREBY WAIVES ANY DEFENSES AVAILABLE TO IT UNDER LOCAL LAW
AND AGREES TO THE ENFORCEMENT OF SUCH A JUDGMENT. EACH PARTY TO THIS
WARRANT IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS IN ANY SUCH
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS IN ACCORDANCE WITH
SECTION 12(C). NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY TO
SERVE PROCESS N ANY OTHER MANNER PERMITTED BY LAW. EACH PARTY WAIVES ITS
RIGHT TO A TRIAL BY JURY;
(b) Modification and Waiver. This Warrant and any provisions hereof may
be changed, waived, discharged or terminated only with the written
approval of the Holder. Any amendment effected in accordance with this
paragraph shall be binding upon the Holder, each future holder of this
Warrant and the Company. No waivers of, or exceptions to, any term,
condition or provision of this Warrant, in any one or more instances,
shall be deemed to be, or construed as, a further or continuing waiver
of any such, term, condition or provision at any other time.
(c) Notices. Any notice, request or other document required or
permitted to be given or delivered to the Holder or future holders
hereof or the Company shall be personally delivered or facsimiled or
shall be sent by reputable overnight courier or certified or registered
mail, postage prepaid, to the Holder at its address as shown on the
books of the Company or to the Company at the address set forth in the
Purchase Agreement. All
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notices under this Warrant shall be deemed to have been given (i) in the
case of personal or facsimile delivery, on the date of such delivery,
(ii) in the case of mailing, when received and (iii) in the case of
overnight courier, upon receipt. A party may from time to time change
the address to which notices to it are to be delivered or mailed
hereunder by notice delivered in accordance with the provisions of this
Section 12(c).
(d) Severability. Whenever possible, each provision of this Warrant
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant is held to be
invalid, illegal or unenforceable in any respect under any applicable
law or rule in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect the validity, legality or
enforceability of any other provision of this Warrant in such
jurisdiction or affect the validity, legality or enforceability of any
provision in any other jurisdiction, but this Warrant shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal
or unenforceable provision had never been contained herein.
(e) No Impairment. The Company shall not, by amendment of its Charter
or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issuance or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but shall at all times in good
faith assist in the carrying out of all such terms and in the taking of
all such action as may be necessary or appropriate in order to protect
the rights of the Holder granted hereunder against impairment. Without
limiting the generality of the foregoing, the Company (a) shall not
increase the par value of shares of Common Stock above the amount
payable therefor on such exercise, and (b) shall take all such action as
may be reasonably necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable Warrant Shares on
the exercise of this Warrant. Notwithstanding the foregoing, nothing in
this paragraph (e) or elsewhere in this Warrant shall limit or otherwise
affect the power or right of the Company to engage in a reorganization,
transfer of assets, consolidation, merger, dissolution, issuance or sale
of securities or any other voluntary action so long as provision is made
for the Holder of this Warrant to receive hereunder when this Warrant is
Exercised the same consideration received as a result of any such event
by the holder of each Convertible Security when a Convertible Security
Event occurs with respect such Convertible Security.
(f) Specific Performance. The Company acknowledges and agrees that
irreparable damage would occur in the event that the Company fails to
perform any of the provisions of this Warrant in accordance with its
specific terms. It is accordingly agreed that the Holder shall be
entitled to seek an injunction or injunctions to prevent or cure
breaches of the provisions of this Warrant and to enforce specifically
the terms and provisions hereof, this being in addition to any other
remedy to which the Holder may be entitled at law or in equity.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its officers thereunto duly authorized.
Dated:________ __, 2002
CHROMAVISION MEDICAL SYSTEMS, INC.
By: _______________________________________
Name: Xxxxx X. X'Xxxxx
Title: Executive Vice President Operations and
Chief Financial Officer
ATTEST:
Sign:__________________________
Print Name:
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EXHIBIT A
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply the
required information. Do not use this form to exercise the Warrant.)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
____________________ the right represented by the attached Warrant to purchase
shares of Common Stock of CHROMAVISION MEDICAL SYSTEMS, INC. to which the
attached Warrant relates and appoints _______________ attorney to transfer said
right on the books of CHROMAVISION MEDICAL SYSTEMS, INC. with full power of
substitution in the premises.
Dated:
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(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
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Address of Transferee
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In the presence of:
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