Exhibit 4.17
THIS WARRANT AND THE SECURITIES ISSUABLE UPON ITS EXERCISE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
NOR HAVE THEY BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES LAWS OF ANY
STATE, AND THEY MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR
TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES
ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES,
OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT.
WARRANT TO PURCHASE
COMMON STOCK OF
INTRAOP MEDICAL CORPORATION
WARRANT
FOR VALUE RECEIVED, subject to the terms and conditions herein set forth,
Emerging Markets Consulting, LLC, a Florida limited liability company ("Holder")
is entitled to purchase from Intraop Medical Corporation, a Nevada corporation
(the "Company"), at any time prior to the Expiration Date (as defined below), at
a price per share as set forth in Section 1 hereof (the "Warrant Price"), the
number of fully paid and non-assessable shares of common stock of the Company,
$0.001 par value, ("Common Stock") as set forth in Section 2 hereof (the
"Shares").
1. Warrant Price. The Warrant Price for each of the Shares purchasable
hereunder shall be Forty Cents ($0.40) (the "Warrant Price"), subject to
adjustment as provided in Section 10.
2. Number of Shares. The number of Shares issuable upon exercise of this
Warrant shall be One Hundred Thousand (100,000), subject to adjustment as
provided in Section 10.
3. Expiration of Warrant. Subject to earlier termination in accordance with
Section 8 below, this Warrant shall expire and shall no longer be exercisable
after April 9, 2012 (the "Expiration Date"). Prior to the Expiration Date, the
Company may not call or otherwise redeem this Warrant without the prior written
consent of Holder.
4. No Fractional Shares. This Warrant may not be exercised as to fractional
Shares.
5. No Stockholder Rights. This Warrant shall not entitle Holder to any of
the rights of a stockholder of the Company until such time as Holder exercises
this Warrant.
6. Reservation of Shares. The Company covenants that during the period this
Warrant is exercisable it will reserve from its authorized and unissued shares
of Common Stock a sufficient number of shares to provide for the issuance of the
maximum number of shares of Common Stock issuable upon the exercise of this
Warrant. The Company agrees that its issuance of this Warrant shall constitute
full authority to its officers to instruct the Company's transfer agent to issue
the necessary certificates for shares of Common Stock upon the exercise of this
Warrant.
1
7. Exercise of Warrant.
(a) This Warrant may be exercised by Holder, in whole or in part, by
the surrender of this Warrant at the principal office of the Company, together
with the Subscription Form attached hereto duly completed and executed,
accompanied by payment in full of the aggregate Warrant Price for the Shares
being purchased upon such exercise. In the event of exercise of this Warrant in
compliance with the provisions hereof, certificates for the Shares so purchased
shall be delivered to Holder promptly and, unless this Warrant has been fully
exercised or expired, a new Warrant representing that portion of the Shares, if
any, with respect to which this Warrant will not then have been exercised, shall
be issued to Holder. The Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for
exercise as provided above, and Holder shall be treated for all purposes as the
holder of record of such shares as of the close of business on such date.
In lieu of exercising this Warrant pursuant to the first paragraph of
Section 7 (a), Holder may elect to receive Shares equal to the value of this
Warrant (or any portion thereof remaining unexercised) by surrender of this
Warrant at the principal office of the Company together with the Subscription
Form, in which event the Company shall issue to Holder a number of Shares
computed using the following formula:
X = Y (A-B)
-------
A
Where X = the number of Shares to be issued to Holder.
Y = the number of Shares for which this Warrant is then being exercised
(at the date of such exercise).
A = the fair market value of one Share (at the date of such exercise).
B = the Warrant Price (as adjusted to the date of such exercise).
For purposes of this subsection fair market value of one Share shall mean:
(i) The average of the closing bid and asked prices of the Common Stock
quoted in the NASDAQ National Market System or the Over-the-Counter market
or the closing price quoted on any exchange on which the Common Stock is
listed, whichever is applicable, as published in the Western Edition of The
Wall Street Journal for the five (5) trading days prior to the date of
determination of the fair market value; or
(ii) If the Common Stock is not publicly traded, the per share fair market
value of the Common Stock shall be determined in good faith by the
Company's Board of Directors. If Holder disagrees with the determination by
the Board of Directors of the fair market value of the Common Stock then
such fair market value shall be determined by an independent appraiser
selected jointly by the Company and Holder. The cost of such appraisal
shall be paid equally by the Company and Holder.
2
(b) As promptly as practicable on or after such date, the Company
shall cause to be issued and delivered to Holder a certificate or certificates
for the number of full Shares issuable upon such exercise. Notwithstanding the
foregoing or any other provision of this Warrant, this Warrant can be exercised
in whole or in part, provided that each partial exercise shall not be for less
than one thousand (1,000) Shares at any time unless at such time less than one
thousand (1,000) such Shares are subject to such exercise.
(c) Issuance of certificates for the Shares upon the exercise of this
Warrant shall be made without charge to the registered holder hereof for any
issue or transfer tax or other incidental expense with respect to the issuance
of such certificates, all of which taxes and expenses shall be paid by the
Company, and such certificates shall be issued in the name of the registered
holder of this Warrant or in such name or names as may be directed by the
registered holder of this Warrant; provided, however, that in the event
certificates for the Shares are to be issued in a name other than the name of
the registered holder of this Warrant, this Warrant, when surrendered for
exercise, shall be accompanied by the Assignment Form attached hereto duly
executed by Holder hereof, and provided further, that any such transfer shall
comply with Section 9 hereof.
8. Automatic Termination. In the event of the sale of all or substantially
all the capital stock, or substantially all the assets, of the Company in a
merger, business combination, or other form of business transaction in which the
Company's stockholders do not own at least a majority of the outstanding voting
securities of the surviving corporation or business entity after such
transaction (based solely on such Company stockholders' holdings of the Company
prior to the transaction) then the Company shall give Holder at least twenty
(20) days written notice of the proposed effective date and terms of such
offering, transaction or agreements, and if this Warrant has not been exercised
before the effective date set forth in such notice, then this Warrant and the
rights hereunder shall automatically terminate in its entirety.
9. Transfer or Assignment of Warrant.
(a) This Warrant, and any rights hereunder, may not be assigned or
transferred, except as provided herein and in accordance with and subject to the
provisions of (i) applicable state securities laws, and (ii) the Securities Act
of 1933, as amended, and the rules and regulations promulgated thereunder (such
Act and such rules and regulations being hereinafter collectively referred to as
the "Act"). Any purported transfer or assignment made other than in accordance
with this Section 10 shall be null and void and of no force and effect.
(b) This Warrant, and any rights hereunder, may be transferred or
assigned only upon receipt by the Company of (i) notice of the proposed transfer
or assignment and a detailed statement of the circumstances surrounding the
proposed transfer or assignment and (ii) if reasonably requested by the Company,
an opinion of counsel reasonably satisfactory to the Company that (i) the
transferee is a person to whom this Warrant may be legally transferred without
registration under the Act, and (ii) such transfer will not violate any
applicable law or governmental rule or regulation, including, without
limitation, any applicable federal or state securities law.
3
(c) Any assignment permitted hereunder shall be made by surrender of
this Warrant to the Company at its principal office with the Assignment Form
annexed hereto duly executed and funds sufficient to pay any transfer tax, if
any. In such event, the Company shall, without charge, execute and deliver a new
warrant in the name of the assignee named in such instrument of assignment in
the amount so assigned and this Warrant shall be promptly canceled, provided,
however, that in the event that Holder hereof shall assign or transfer less than
the full amount of this Warrant, a new warrant evidencing the remaining portion
of this Warrant not so assigned or transferred shall be issued in the name of
Holder.
10. Adjustments to Warrant Price and Shares.
(a) If outstanding shares of the Company's Common Stock shall be
subdivided into a greater number of shares or a dividend in Common Stock shall
be paid in respect of Common Stock, the Warrant Price in effect immediately
prior to such subdivision or at the record date of such dividend shall
simultaneously with the effectiveness of such subdivision or immediately after
the record date of such dividend be proportionately reduced. If outstanding
shares of Common Stock shall be combined into a smaller number of shares, the
Warrant Price in effect immediately prior to such combination shall,
simultaneously with the effectiveness of such combination, be proportionately
increased. When any adjustment is required to be made in the Warrant Price, the
number of shares of Common Stock purchasable upon the exercise of this Warrant
shall be changed to the number determined by dividing (i) an amount equal to the
number of shares issuable upon the exercise of this Warrant immediately prior to
such adjustment, multiplied by the Warrant Price in effect immediately prior to
such adjustment, by (ii) the Warrant Price in effect immediately after such
adjustment.
(b) When any adjustment is required to be made in the number of shares
of Common Stock purchasable hereunder or the Warrant Price pursuant to this
Section 10, the Company shall promptly mail to Holder a certificate setting
forth (i) a brief statement of the facts requiring such adjustment, (ii) the
Warrant Price after such adjustment and (iii) the kind and amount of stock or
other securities or property into which this Warrant shall be exercisable after
such adjustment.
(c) The Company shall not, by amendment of its Certificate of
Incorporation, as amended from time to time, or through a 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 its terms to be observed or performed under this
Warrant by the Company, but shall at all times in good faith assist in carrying
out of all the provisions of this Section 10 and in taking all such action as
may be necessary or appropriate to protect Holder's rights under this Section 10
against impairment.
11. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto, and
upon surrender and cancellation of this Warrant, if mutilated, the Company will
make and deliver a new warrant identical in tenor and date in lieu of this
Warrant.
4
12. General. This Warrant shall be governed by and interpreted in
accordance with the laws of the State of California, except for its principles
of conflicts of laws. The headings in this Warrant are for purposes of
convenience and reference only and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally but rather only by an instrument in writing
signed by the Company and Holder. This Warrant shall be binding on and inure to
the benefit of the parties hereto and their respective successors and assigns.
In case any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute in
this Warrant. All notices and other communications from the Company to Holder
shall be mailed by prepaid courier or first-class registered or certified mail,
postage pre-paid, to the address furnished to the Company in writing by the last
holder who shall have furnished an address to the Company in writing.
[remainder of this page intentionally left blank]
5
Issued this 9th day of April, 2007.
INTRAOP MEDICAL CORPORATION
By:
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer
6
SUBSCRIPTION FORM
The undersigned registered owner of the Warrant which accompanies this
Subscription Form hereby irrevocably (a) exercises such warrant for, and
purchases ______ shares of Common Stock (the "Shares") of Intraop Medical
Corporation, a Nevada corporation (the "Company"), purchasable upon the exercise
of such Warrant, and herewith makes payment therefor, or (b) exercises such
Warrant for ______ shares of Intraop Medical Corporation Common Stock
purchasable under the Warrant pursuant to the net exercise provisions of the
second paragraph of Section 7(a) of such Warrant all at the price and on the
terms and conditions specified in such Warrant.
1.01 Authorization. This exercise constitutes a valid and legally binding
obligation of the undersigned, enforceable in accordance with its terms.
1.02 Investment Representation. The undersigned acknowledges, represents,
and warrants that it (a) has a preexisting personal or business relationship
with the Company, and/or by reason of its business or financial experience has
the capacity to protect its own interests in connection with the transaction,
and (b) is an "accredited investor" under Regulation D of the Securities Act of
1933, as amended (the "Act"). The undersigned further acknowledges that it is
aware that the Shares have not been registered under the Act, or qualified under
any state's securities laws. The Shares are being acquired for investment
purposes only and not for sale or with a view to distribution of all or any part
thereof.
1.03 Access to Information. The undersigned represents that it has or will
have had upon exercise of the Warrant an opportunity to ask questions of and
receive answers from the Company regarding the terms and conditions of its
purchase of the Shares concerning the business, financial affairs and other
aspects of the Company, and it has further had the opportunity to obtain any
information (to the extent the Company possesses or can acquire such information
without unreasonable effort or expense) which it deems necessary to evaluate its
investment or to verify the accuracy of information otherwise provided to it.
The undersigned acknowledges that it is not relying upon any person, firm or
corporation (other than the Company and its officers and directors) in making
its investment or decision to invest in the Company, and the undersigned
represents that it has been solely responsible for its own "due diligence"
investigation of the Company and its management and business, for its own
analysis of the merits and risks of this investment.
1.04 Investment Experience. The undersigned represents and warrants that by
reason of its financial and business experience, it has the capacity to protect
its interests in connection with these transactions.
1.05 Restricted Securities. The undersigned understands that the Shares
will be characterized as "restricted securities" under the federal securities
laws inasmuch as they are being acquired from the Company in a transaction not
involving a public offering, and that under such laws and applicable regulations
such securities may be resold without registration under the Act only in certain
limited circumstances and that otherwise such securities must be held
indefinitely. In this connection, the undersigned represents that it is familiar
with SEC Rule 144, as presently in effect, and the conditions which must be met
in order for that Rule to be available for resale of "restricted securities,"
and understands the resale limitations imposed by the Act.
1
1.06 Further Limitations on Disposition. Without in any way limiting the
representations set forth above, the undersigned further agrees not to make any
disposition of all or any portion of the Shares unless and until:
(a) There is then in effect a "Registration Statement" under the
Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement and any applicable requirements of
state securities laws; or
(b) (i) the undersigned 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, and (ii) if
reasonably requested by the Company, shall have furnished the Company with an
opinion of counsel (except for dispositions pursuant to Rule 144 of the Rules
and Regulations under the Act which dispositions shall not so require an opinion
of counsel) reasonably satisfactory to the Company, that such disposition will
not require registration of the Shares under the Act or the consent of or permit
from appropriate authorities under any applicable state securities law.
(c) Notwithstanding the provisions of paragraphs (a) and (b)
above, no such Registration Statement or opinion of counsel shall be necessary
for a transfer by the undersigned to a constituent stockholder or constituent
partner (including any constituent of a constituent) of the undersigned, if the
transferee or transferees agree in writing to be subject to the terms hereof to
the same extent as if they were the undersigned hereunder.
2. RESTRICTIONS ON THE TRANSFER OF SECURITIES.
2.01 Corporate Securities Law. The Shares shall be transferred only in
compliance with the conditions specified in Section 1.06, which conditions are
intended to ensure compliance with the provisions of the Act and state
securities laws with respect to the transfer of any such securities. Each
certificate representing the Shares shall bear at least a legend substantially
in the following form until such time as the conditions of such legend have been
met:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED ("ACT"), NOR HAVE THEY BEEN REGISTERED OR QUALIFIED
UNDER THE SECURITIES LAWS OF ANY STATE. NO TRANSFER OF SUCH SECURITIES WILL BE
PERMITTED UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH
TRANSFER, THE TRANSFER IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT OR AS
OTHERWISE PERMITTED BY THE COMPANY, OR IN THE OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY, REGISTRATION UNDER THE ACT IS UNNECESSARY IN ORDER FOR SUCH
TRANSFER TO COMPLY WITH THE ACT AND WITH APPLICABLE STATE SECURITIES LAWS.
2
The Company shall, within ten (10) days of the request of any holder of a
certificate bearing the foregoing legend and the surrender of such certificate,
issue a new stock certificate in the name of the transferee provided that there
has been compliance with the provisions of subsection 1.06 above.
2.02 Additional Legends. The Company may also impose any additional legend
required under applicable federal or state securities laws or permitted under
its bylaws and shall be entitled to issue stop transfer notices on its books
with respect to any securities purchased hereunder until the conditions set
forth in the applicable legends have been met.
Dated:
----------
---------------------------------------------------
(Signature of Registered Owner)
---------------------------------------------------
(Name)
---------------------------------------------------
(Street Address)
---------------------------------------------------
(City, State, Zip Code)
---------------------------------------------------
Social Security or Tax Identification Number
If the number of Shares issuable upon this exercise shall not be all of the
Shares which the undersigned is entitled to purchase in accordance with the
enclosed Warrant, the undersigned requests that a new warrant evidencing the
right to purchase the Shares not issuable pursuant to the exercise evidenced
hereby be issued in the name of and delivered to:
--------------------------------------------------------------------------------
(Please print name and address)
================================================================================
Date: Name of Holder:
------------------- (Print)
--------------------------------------------
(By)
-----------------------------------------------
(Name:)
(Title:)
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant)
3
FORM OF ASSIGNMENT
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
----------------------------------
----------------------------------
----------------------------------
(Name and address of assignee must be printed or typewritten)
___________ shares of Intraop Medical Corporation Common Stock purchasable under
the within Warrant, hereby irrevocably constituting and appointing
______________________ Attorney to transfer said Warrant on the books of the
Company, with full power of substitution in the premises.
Dated:
----------
-------------------------------
(Signature of Registered Owner)
