EXHIBIT 4(f)
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT FILED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT.
________, 2001
WARRANT
TO SUBSCRIBE FOR AND PURCHASE COMMON STOCK OF
LIFEPOINT, INC.
VOID AFTER 5:00 P.M., CALIFORNIA TIME, ON ________, 2006,
OR IF NOT A BUSINESS DAY, AS DEFINED HEREIN, AT 5:00 P.M.,
CALIFORNIA TIME, ON THE IMMEDIATELY PRECEDING BUSINESS DAY
No. Placement Agent 1
THIS CERTIFIES that, for good and valuable consideration, XXXXX FARGO
XXX XXXXXX ("WFVK"), or registered assigns (the "Warrantholder"), is entitled to
subscribe for and purchase from, LIFEPOINT, INC., a Delaware corporation (the
"Company"), at a price of $___________[INSERT AN AMOUNT EQUAL TO THE MARKET
PRICE AS OF THE CLOSING DATE] per share (such price, as from time to time to be
adjusted as hereinafter provided, being hereinafter called the "Warrant Price"),
at any time and from time to time prior to the Expiration Date (as defined
below), up to ___________ [INSERT AN AMOUNT EQUAL TO 7% OR 3.5%, AS APPLICABLE,
OF THE NUMBER OF SHARES SOLD AS OF THE CLOSING DATE] fully paid, nonassessable
shares of Common Stock, $0.001 par value, of the Company ("Common Stock"),
subject, however, to the provisions and upon the terms and conditions
hereinafter set forth, including without limitation the provisions of Section 2
hereof. "Expiration Date" shall mean 5:00 P.M., California time, on ________,
2006, or if not a Business Day, as defined herein, at 5:00 P.M., California
time, on the immediately preceding business day. "Business Day" shall mean a day
other than a Saturday, Sunday or other day on which banks in the State of
California are authorized by law to remain closed.
SECTION 1. EXERCISE OF WARRANT
(a) CASH EXERCISE
This Warrant may be exercised, at any time and from time to time prior
to the Expiration Date, by the Warrantholder, in whole or in part (but not as to
a fractional share of Common Stock and in no event for less than 500 shares
(unless less than an aggregate of 500 shares are then purchasable under all
outstanding Warrants held by a Warrantholder)), by the completion of the
subscription form attached hereto and by the surrender of this Warrant (properly
endorsed) at the Company's offices at 0000 Xxxxx Xxxxxx, Xxxxxxx, XX 00000 (or
at such other location in the United States as the Company may designate by
notice in writing to the Warrantholder at the address of the Warrantholder
appearing on the books of the Company), and by payment to the Company of the
Warrant Price, in cash or by certified or official bank check, for each share
being purchased.
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(b) NET EXERCISE
Notwithstanding anything to the contrary contained in Section 1(a) and
subject to the last sentence of this Section 1(b), the Warrantholder may elect
to exercise this Warrant and receive shares on a "net exercise" basis in an
amount equal to the value of this Warrant by delivery of the subscription form
attached hereto and surrender of this Warrant at the principal office of the
Company, in which event the Company shall issue to Holder a number of shares
computed using the following formula:
X = (P)(Y)(A-B)
-----------
A
Where: X = the number of shares of Common Stock to be
issued to Holder.
P = the portion of the Warrant being exercised.
Y = the number of shares of Common Stock
issuable upon exercise of this Warrant if
the Warrant were exercised for cash.
A = the Current Market Price (as determined
pursuant to Section 1(d)) of one share of
Common Stock.
B = Warrant Price.
Notwithstanding anything in this Warrant to the contrary, the provisions of this
Section 1(b) shall not be applicable if, at the time of exercise of this
Warrant, a registration statement under the Securities Act of 1933 covering the
resale of the shares issued upon such exercise is in effect.
(c) PROCEDURE FOR EXERCISE
In the event of any exercise of the rights represented by this Warrant,
a certificate or certificates for the total number of whole shares of Common
Stock so purchased, registered in the name of the Warrantholder, shall be
delivered to the Warrantholder within a reasonable time, not exceeding five
Business Days, after the rights represented by this Warrant shall have been so
exercised; and, unless this Warrant has expired, a new Warrant representing the
number of shares (except a remaining fractional share), if any, with respect to
which this Warrant shall not then have been exercised shall also be issued to
the Warrantholder within such time. With respect to any such exercise, the
Warrantholder shall for all purposes be deemed to have become the holder of
record of the number of shares of Common Stock evidenced by such certificate or
certificates from the date on which this Warrant was surrendered and if exercise
is pursuant to Section 1(a), payment of the Warrant Price was made, irrespective
of the date of delivery of such certificate, except that, if the date of such
surrender and payment is a date on which the stock transfer books of the Company
are closed, such person shall be deemed to have become the holder of such shares
at the close of business on the next succeeding date on which the stock transfer
books are open. No fractional shares shall be issued upon exercise of this
Warrant and no payment or adjustment shall be made upon any exercise on account
of any cash dividends on the Common Stock issued upon such exercise. If any
fractional interest in a share of Common Stock would, except for the provisions
of this Section 1, be delivered upon any such exercise, the Company, in lieu of
delivering the fractional share thereof, shall pay to the Warrantholder an
amount in cash equal to the Market Price on the date of exercise, as determined
below.
(d) CURRENT MARKET PRICE
For any computation hereunder, the "Current Market Price" per share of
Common Stock on any date shall be deemed to be the average of the daily Market
Price per share for the 30 consecutive Trading Days commencing 45 Trading Days
before the date in question. "Market Price" is defined as the closing sale price
of such security on the principal United States securities exchange or trading
market on which such security is listed or traded as reported by the exchange or
the Research Service of Nasdaq Trading and Market Services (or a comparable
reporting service of national reputation), or if the foregoing does not apply,
the last reported sale price of such
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security in the over-the-counter market on the electronic bulletin board for
such security as reported by Nasdaq, or, if no sale price is reported for such
security by Nasdaq, the average of the bid and asked prices of any market makers
for such security as reported in the "pink sheets" by the Pink Sheet LLC
(formerly the National Quotation Bureau, Inc.) If Market Price cannot be
established as described above, Market Price shall be the fair market value of
the Common Stock as determined in good faith by the Board of Directors. The term
"Trading Day" shall mean a day on which Nasdaq or the principal national
securities exchange on which the Common Stock is listed or admitted to trading
is open for the transaction of business.
SECTION 2. ADJUSTMENTS
The Warrant Price and the number and kind of shares issuable hereunder
shall be subject to adjustment from time to time upon the happening of certain
events as provided in this Section 2.
(a) ADJUSTMENTS
(1) If at any time prior to the exercise of this Warrant in
full, the Company shall (A) declare a dividend or make a distribution on the
Common Stock payable in shares of its capital stock (whether shares of Common
Stock or of capital stock of any other class); (B) subdivide, reclassify or
recapitalize its outstanding Common Stock into a greater number of shares; (C)
combine, reclassify or recapitalize its outstanding Common Stock into a smaller
number of shares; or (D) issue any shares of its capital stock by
reclassification of its Common Stock (excluding any such reclassification in
connection with a consolidation or a merger), the Warrant Price in effect at the
time of the record date of such dividend, distribution, subdivision,
combination, reclassification or recapitalization shall be adjusted so that the
Warrant Price shall be equal to the price determined by multiplying the Warrant
Price in effect immediately prior to such event by a fraction, the numerator of
which shall be (x) the total number of outstanding shares of Common Stock of the
Company immediately prior to such event; and the denominator of which shall be
(y) the total number of outstanding shares of Common Stock of the Company
immediately after such event and, as so adjusted or readjusted, the Warrant
Price shall remain in effect until a further adjustment or readjustment is
required by this Section 2. Whenever the Warrant Price is adjusted pursuant to
this Section 2(a)(1), the shares issuable hereunder shall simultaneously be
adjusted by multiplying the number of shares issuable upon exercise of the
Warrant immediately prior to such event by the Warrant Price in effect on the
date thereof and dividing the product so obtained by the Warrant Price resulting
from such adjustment. Any adjustment required by this Section 2(a)(1) shall be
made successively immediately after the record date, in the case of a dividend
or distribution, or the effective date, in the case of a subdivision,
combination, reclassification or recapitalization, to allow the purchase of such
aggregate number and kind of shares.
(2) If at any time prior to the exercise of this Warrant in
full, the Company shall make a distribution to all holders of the Common Stock
of stock of a subsidiary or other corporation or securities convertible into or
exercisable for such stock, then in lieu of an adjustment in the Warrant Price
or the number of shares of Common Stock purchasable upon the exercise of this
Warrant, the Warrantholder, upon the exercise hereof at any time after such
distribution, shall be entitled to receive from the Company the stock or other
securities to which the Warrantholder would have been entitled if the
Warrantholder had exercised this Warrant immediately prior thereto, all subject
to further adjustment as provided in this Section 2, and the Company shall
reserve, for the life of the Warrant, such securities of such subsidiary or
other corporation; provided, however, that no adjustment in respect of dividends
or interest on such stock or other securities shall be made during the term of
this Warrant or upon its exercise.
(3) If at any time prior to the expiration of this Warrant in
full, the Company shall issue rights or warrants to all holders of Common Stock
as such entitling them to subscribe for or purchase Common Stock at a price per
share less than the Current Market Price per share on such record date, then, in
each such case the number of shares subject to this Warrant thereafter
purchasable upon the exercise of this Warrant shall be determined by multiplying
the number of shares of Common Stock theretofore purchasable upon exercise of
this Warrant by a fraction, the numerator of which shall be (x) the number of
shares of Common Stock outstanding on the date of issuance of such rights or
warrants, plus the number of additional shares of Common Stock offered for
subscription or purchase, and the denominator of which shall be (y) the number
of shares of Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of shares that the aggregate offering
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price of the total number of shares of Common Stock so offered would purchase at
the Current Market Price on such record date. For purposes of this Section
2(a)(3), the issuance of rights or warrants to subscribe for or purchase
securities convertible into Common Stock shall be deemed to be the issuance of
rights or warrants to purchase the Common Stock into which such securities are
convertible at an aggregate offering price equal to the aggregate offering price
of such securities plus the minimum aggregate amount (if any) payable upon
conversion of such securities into Common Stock. In addition to the adjustment
in the number of shares in this Section 2(a)(3), the Warrant Price per share
shall be appropriately adjusted so that the aggregate Warrant Price shall remain
constant.
(4) If at any time prior to the exercise of this Warrant in
full, the Company shall distribute to all holders of its Common Stock evidence
of indebtedness of the Company or assets of the Company (excluding cash
dividends or distributions out of earned surplus) or rights or warrants to
subscribe for securities of the Company (excluding those referred to in Section
2(a)(3) above), then in each case the Warrant Price shall be adjusted to a price
determined by multiplying the Warrant Price in effect immediately prior to such
distribution by a fraction, the numerator of which shall be (x) the then Current
Market Price per share of Common Stock on the record date for determination of
stockholders entitled to receive such distribution, less the then fair value (as
reasonably determined by the Board of Directors of the Company, whose
determination shall be conclusive) of the portion of the assets or evidences of
indebtedness so distributed or of such subscription rights or warrants which are
applicable to one share of Common stock, and the denominator of which shall be
(y) the Current Market Price per share of Common Stock; provided, however, that
if the then Current Market Price per share of Common Stock on the record date
for determination of stockholders entitled to receive such distribution is less
than the then fair value of the portion of the assets or evidence of
indebtedness so distributed or of such subscription rights or warrants which are
applicable to one share of Common Stock, the foregoing adjustment of the Warrant
Price shall not be made and in lieu thereof the number of shares purchasable
upon exercise of each Warrant immediately prior to such distribution shall be
adjusted so that the holder of such Warrant shall be entitled to receive upon
exercise of such Warrant the kind and number of assets, evidence of
indebtedness, subscription rights and warrants (or, in the event of the
redemption of such evidence of indebtedness, subscription rights or warrants,
any cash paid in respect of such redemption) that such Warrantholder would have
owned or have been entitled to receive in such distribution had such Warrant
been exercised immediately prior to the record date of such distribution.
(5) For purposes of any computation under this Section 2(a),
the Current Market Price per share of Common Stock on any date shall be deemed
calculated as provided in Section 1(d).
(6) No adjustment in the Warrant Price shall be required
unless such adjustment would require an increase or decrease of at least five
cents ($.05) in such price; provided, however, that any adjustments which by
reason of this Section 2(a)(6) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Section 2(a) shall be made to the nearest cent or to the nearest one
hundredth of a share, as the case may be. Notwithstanding anything in this
Section 2(a) to the contrary, the Warrant Price shall not be reduced to less
than the then existing par value of the Common Stock as a result of any
adjustment made hereunder.
(7) In the event that at any time, as the result of any
adjustment made pursuant to this Section 2(a), the Warrantholder thereafter
shall become entitled to receive any securities other than Common Stock,
thereafter the number of such other securities so receivable upon exercise of
this Warrant shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
Common Stock contained in Section 2(a).
(b) NO ADJUSTMENT FOR DIVIDENDS
Except as provided in Section 2(a) of this Agreement, no adjustment in
respect of any cash dividends shall be made during the term of this Warrant or
upon the exercise of this Warrant.
(c) PRESERVATION OF PURCHASE RIGHTS IN CERTAIN TRANSACTIONS
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 an agreement with
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the Warrantholder whereby the Warrantholder shall have the right thereafter upon
payment of the Warrant Price in effect immediately prior to such action to
purchase upon exercise of the Warrant the kind and amount of shares and other
securities and property which the Warrantholder would have owned or have been
entitled to receive after the happening of such consolidation, merger, sale or
conveyance had the Warrant been exercised immediately prior to such action. The
Company shall mail by first class mail, postage prepaid, to the Warrantholder,
notice of the execution of any such agreement. Such agreement shall provide for
adjustments, which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 2. The provisions of this Section 2
shall similarly apply to successive consolidations, mergers, sales or
conveyances. The Warrantholder 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 upon exercise of warrants or with respect to the method
employed and provided therein for any adjustments.
(d) FORM OF WARRANT AFTER ADJUSTMENTS
The form of this Warrant need not be changed because of any adjustments
in the Warrant Price or the number or kind of the shares purchasable pursuant to
this Warrant, and Warrants theretofore or thereafter issued may continue to
express the same price and number and kind of shares as are stated in this
Warrant, as initially issued; provided, however, that the Company may, at any
time in its sole discretion (which shall be conclusive), make any change in the
form of Warrant certificate that it may deem appropriate and that does not
affect the substance thereof. Any Warrant certificate thereafter issued, whether
upon registration of transfer of, or in exchange or substitution for, an
outstanding Warrant certificate may be in the form so changed.
(e) TREATMENT OF WARRANTHOLDER
Prior to due presentment for registration of transfer of this Warrant,
the Company may deem and treat the Warrantholder as the absolute owner of this
Warrant (notwithstanding any notation of ownership or other writing hereon) for
all purposes and shall not be affected by any notice to the contrary.
(f) NOTICE OF ADJUSTMENT
Upon any adjustment under this Section 2, then and in each such case
the Company shall give written notice thereof, by first-class mail, postage
prepaid, addressed to the Warrantholder at the address of such holder as shown
on the books of the Company, which notice shall state the Warrant Price and the
number or kind of the shares purchasable pursuant to this Warrant resulting from
such adjustment, setting forth in reasonable detail the method of calculation
and the facts upon which such calculation is based.
(g) STOCK TO BE RESERVED
The Company will at all times reserve and keep available out of its
authorized Common Stock, solely for the purpose of issuance upon the exercise of
this Warrant as herein provided, such number of shares of Common Stock as shall
then be issuable upon the exercise of this Warrant. The Company covenants that
all shares of Common Stock which shall be so issued, upon full payment of the
Warrant Price therefore or as otherwise set forth herein, shall be duly and
validly issued and fully paid and nonassessable and free from all taxes, liens
and charges with respect to the issue thereof, and, without limiting the
generality of the foregoing, the Company covenants that it will from time to
time take all such action as may be required to ensure that the par value per
share, if any, of the Common Stock is at all times equal to or less than the
effective Warrant Price. The Company will take all such action as may be
necessary to ensure that all such shares of Common Stock may be so issued
without violation of any applicable law or regulation, or of any requirement of
any national securities exchange or automated quotation system upon which the
Common Stock of the Company may be listed. The Company will not take any action
that results in any adjustment under this Section 2, if the total number of
shares of Common Stock issued and issuable after such action upon exercise of
this Warrant would exceed the total number of shares of Common Stock then
authorized by the Company's Certificate of Incorporation. The Company has not
granted and will not grant any right of first refusal with respect to shares
issuable upon exercise of this Warrant, and there are no preemptive rights
associated with such shares.
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(h) ISSUE TAX
The issuance of certificates for shares of Common Stock upon exercise
of any Warrant shall be made without a charge to the Warrantholder for any
issuance tax in respect thereof, provided that the Company shall not be required
to pay any tax which may be payable in respect of any transfer involved in the
issuance and delivery of any certificate in a name other than that of the
Warrantholder.
(i) CLOSING OF BOOKS
The Company will at no time close its transfer books against the
transfer of the shares of Common Stock issued or issuable upon the exercise of
this Warrant in any manner that interferes with the timely exercise of this
Warrant.
(j) DEFINITION OF COMMON STOCK
As used herein the term "Common Stock" shall mean and include the
Common Stock, par value $0.01, of the Company as authorized on the date hereof,
or shares of any class or classes resulting from any recapitalization or
reclassification thereof which are not limited to any fixed sum or percentage
and are not subject to redemption by the Company and in case at any time there
shall be more than one such resulting class, the shares of each class then so
issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassification bears to the total
number of shares of all such classes resulting from all such reclassification.
SECTION 3. REGISTRATION RIGHTS
The Company and the Warrantholder hereby adopt, incorporate and make a
part of this Agreement each of the provisions, rights, duties, obligations,
representations, conditions and responsibilities of the respective parties to
that certain Registration Rights Agreement dated as of ________, 2001 (the
"Registration Rights Agreement") by and between the Company and the Initial
Investors (as defined in the Registration Rights Agreement) as though
Warrantholder was party to the Registration Rights Agreement as an Initial
Investor and as though such Registration Rights Agreement were fully set forth
herein with the following exceptions:
(a) As used in the Registration Rights Agreement
(i) "Investors" shall mean Warrantholder;
(ii) "Registrable Securities" shall mean the shares
of Common Stock issuable upon exercise of this Warrant and any shares of capital
stock issued or issuable, from time to time (with any adjustments), as a
distribution on or in exchange for or otherwise with respect to thereto; and
(b) The provisions of Section 2(c) of the Registration Rights
Agreement entitled "Payments by the Company" shall be inapplicable except as to
filing requirements set forth in the first paragraph thereof.
SECTION 4. NOTICES OF RECORD DATES
In the event of:
(a) 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 or other distribution (other
than cash dividends out of earned surplus), or any
right to subscribe for, purchase or otherwise acquire
any shares of stock of any class or any other
securities or property, or to receive any right to
sell shares of stock of any class or any other right,
or
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or any
transfer of
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all or substantially all the assets of the Company to or consolidation or merger
of the Company with or into any other corporation or entity, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company, then and in each such event the Company will give
notice to the Warrantholder specifying (1) the date on which any such record is
to be taken for the purpose of such dividend, distribution or right and stating
the amount and character of such dividend, distribution or right, and (2) the
date on which any such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up is to
take place, and the time, if any is to be fixed, as of which the holders of
record of Common Stock will be entitled to exchange their shares of Common Stock
for securities or other property deliverable upon such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
dissolution, liquidation or winding-up. Such notice shall be given at least 15
days and not more than 60 days prior to the date therein specified, and such
notice shall state that the action in question or the record date is subject to
the effectiveness of a registration statement under the Securities Act or to a
favorable vote of stockholders, if either is required. Failure to mail or
receive such notice or any defect therein shall not affect the validity of any
action with respect thereto.
SECTION 5. NO STOCKHOLDERS RIGHTS OR LIABILITIES
This Warrant shall not entitle the Warrantholder to any voting rights
or other rights as a stockholder of the Company. No provision hereof, in the
absence of affirmative action by the Warrantholder to purchase shares of Common
Stock, and no mere enumeration herein of the rights or privileges of the
Warrantholder shall give rise to any liability of such Warrantholder for the
Warrant Price or as a stockholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company.
SECTION 6. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT
In case the certificate or certificates evidencing the Warrants shall
be mutilated, lost, stolen or destroyed, the Company shall, at the request of
the Warrantholder, issue and deliver in exchange and substitution for and upon
cancellation of the mutilated certificate or certificates, or in lieu of and
substitution for the certificate or certificates lost, stolen or destroyed, a
new Warrant certificate or certificates of like tenor and representing an
equivalent right or interest, but only upon receipt of evidence satisfactory to
the Company of such loss, theft or destruction of such Warrant and an agreement
of indemnity, if requested.
SECTION 7. NOTICES
All notices, requests and other communications required or permitted to
be given or delivered hereunder shall be in writing, and shall be delivered, or
shall be sent by certified or registered mail or overnight courier, postage
prepaid, or by facsimile,
(a) If to a Warrantholder or a holder of shares issued upon
exercise of this Warrant, addressed to
Xxxxx Fargo Xxx Xxxxxx
000 Xxxxxxxxxx Xx., Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxxx
Managing Director, Corporate Finance
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(b) If to the Company addressed to it If to the Company:
LifePoint, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx
Chairman, President and Chief
Executive Officer
With a copy to:
Xxxxxxx & Masyr, LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Each party may from time to time change the address to which notices to
it are to be delivered or mailed hereunder by notice in accordance herewith to
the other party.
SECTION 8. Representations and Warranties of Warrantholder.
(a) Acquisition for Own Account. Warrantholder is acquiring
the Warrant and the shares of Common Stock upon exercise thereof ("Securities")
for Warrantholder's own account and not with a present view towards the
distribution thereof. Warrantholder understands that Warrantholder must bear the
economic risk of this investment indefinitely, unless the Securities are
registered pursuant to the Securities Act and any applicable state securities or
blue sky laws or an exemption from such registration is available, and that the
Company has no present intention of registering any of the Securities other than
as contemplated by the Registration Rights Agreement. Notwithstanding anything
in this Section 8(a) to the contrary, by making the foregoing representation,
Warrantholder does not agree to hold the Securities for any minimum or other
specific term and reserves the right to dispose of the Securities at any time in
accordance with or pursuant to a registration statement or an exemption from
registration under the Securities Act and any applicable state securities laws.
(b) Governmental Review. Warrantholder understands that no
United States federal or state agency or any other government or governmental
agency has passed upon or made any recommendation or endorsement of the
Securities.
(c) Authorization; Enforcement. Warrantholder has the
requisite power and authority to enter into and perform its obligations under
this Warrant and to purchase the shares in accordance with the terms hereof.
This Warrant has been duly and validly authorized, executed and delivered on
behalf of Warrantholder and is a valid and binding agreement of Warrantholder
enforceable against Warrantholder in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other laws affecting creditors' rights and remedies generally and
to general principles of equity (regardless of whether enforcement is sought in
a proceeding at law or in equity).
(d) Transfer or Resale. Warrantholder understands that (i)
except as provided in the Registration Rights Agreement, the Securities have not
been and are not being registered under the Securities Act or any state
securities laws, and may not be transferred unless (A) subsequently registered
thereunder, or (B) Warrantholder shall have delivered to the Company an opinion
of counsel reasonably acceptable to the Company (which opinion shall be in form,
substance and scope customary for opinions of counsel in comparable
transactions) to the effect that the Securities to be sold or transferred may be
sold or transferred under an exemption from such registration, or (C) sold under
Rule 144 promulgated under the Securities Act (or a successor rule), or (D) sold
or transferred to an employee or other affiliate of Warrantholder pursuant to an
exemption under the Securities Act; and (ii) neither the Company nor any other
person is under any obligation to register such Securities under the Securities
Act or any state
8
securities laws or to comply with the terms and conditions of any exemption
thereunder, in each case, other than pursuant to the Registration Rights
Agreement.
(e) Legend. Warrantholder understands that this Warrant and
the shares of Common Stock issuable upon exercise of this Warrant and, until
such time as the shares of Common Stock issuable upon exercise of this Warrant
have been registered under the Securities Act as contemplated by the
Registration Rights Agreement or otherwise may be sold by Warrantholder under
Rule 144(k), the certificates for the shares may bear a restrictive legend in
substantially the following form:
These securities have not been registered under the Securities Act of
1933, as amended, or the securities laws of any state of the United
States. The securities represented hereby may not be offered or sold in
the absence of an effective registration statement for the securities
under applicable securities laws unless there is an opinion from
counsel to the Company that the securities may be offered, sold or
transferred under an available exemption from the registration
requirements of those laws.
The legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of any Security upon which it is
stamped, if (a) the sale of such Security is registered under the Securities Act
(subject to the imposition of any legend with respect to the requirement to
deliver a prospectus) or (b) in connection with the resale of such Security,
such holder provides the Company with an opinion of counsel to the Company, in
form, substance and scope customary for opinions of counsel in comparable
transactions, to the effect that a public sale or transfer of such Security may
be made without registration under the Securities Act or (c) such holder
provides the Company with reasonable assurances that such Security can be sold
under Rule 144(k). Warrantholder agrees to sell all Securities, including those
represented by a certificate(s) from which the legend has been removed, pursuant
to an effective registration statement or under an exemption from the
registration requirements of the Securities Act.
(g). Accredited Investor Status. Warrantholder is an
"accredited investor" as that term is defined in Rule 501(a) of Regulation D.
SECTION 9. AMENDMENTS AND WAIVERS
This Warrant and any term hereof may be changed, waived, discharged or
terminated only by an instrument in writing signed by the party against which
enforcement of such change, waiver, discharge or termination is sought.
SECTION 10. SEVERABILITY
If one or more provisions of this Warrant are held to be unenforceable
under applicable law, such provisions shall be excluded from this Warrant, and
the balance of this Warrant shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
SECTION 11. GOVERNING LAW
This Warrant shall be governed by, and construed in accordance with,
the laws of the State of Delaware applicable to contracts made and to be
performed in the State of Delaware without giving effect to any principles of
conflicts of law. Each of the Company and the Warrantholder irrevocably consents
to the exclusive jurisdiction of the United States federal courts and state
courts located in the County of Los Angeles, State of California in any suit or
proceeding based on or arising under this Warrant and irrevocably agrees that
all claims in respect of such suit or proceeding may be determined in such
courts. Each of the Company and the Warrantholder irrevocably waives any
objection to the laying of venue and the defense of an inconvenient forum to the
maintenance of such suit or proceeding; provided, however, that either party may
seek to remove the suit or proceeding from the state court to the federal court
or vice versa. Each of the Company and the Warrantholder further agrees that
service of process upon the Company or the Warrantholder mailed by certified or
registered mail to the address set forth in Section 7 shall be deemed in every
respect effective service of process upon the Company or the Warrantholder in
any such
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suit or proceeding. Nothing herein shall affect the Warrantholder's or the
Company's right to serve process in any other manner permitted by law. Each of
the Company and the Warrantholder agrees that a final non-appealable judgment in
any such suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on such judgment or in any other lawful manner.
SECTION 12. HEADINGS
The headings in this Warrant are for purposes of reference only and
shall not limit or otherwise affect any of the terms hereof.
SECTION 13. COUNTERPARTS
This Warrant may be executed in any number of counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company and WFVK have executed this Warrant on
and as of the day and year first above written.
LIFEPOINT, INC.,
a Delaware corporation
By:
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Its:
-------------------------------------
Attest:
-----------------------
XXXXX FARGO XXX XXXXXX
By:
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Its:
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SUBSCRIPTION FORM
(To be executed upon exercise of this Warrant)
LifePoint, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile No.:
Attention: Xxxxx Xxxxxxxxx
Chairman and Chief Executive Officer
The undersigned hereby irrevocably elects to exercise the right of
purchaser represented by the within Warrant for, and to purchase thereunder,
shares of Common Stock, as provided for therein, and either
--------------
tenders herewith payment of the purchase price in full in the form of cash or a
certified or official bank check in the amount of $ or, if the
-------------
undersigned elects pursuant to Section 1(b) of the within Warrant to convert
such Warrant into Common Stock a net issuance basis, the undersigned exercises
the within Warrant by exchange under the terms of Section 1(b).
Please issue a certificate or certificates for such Common Stock in the
name of, and pay any cash for any fractional share to:
Name:
------------------------------------
Address:
---------------------------------
Social Security No:
----------------------
If said number of shares shall not be all the shares purchasable under
the within Warrant, a new Warrant is to be issued in the name of said
undersigned for the balance remaining of the shares purchasable thereunder
rounded up to the next higher number of shares.
Name
-------------------------------------
Signature
--------------------------------
Note: The above signature must
correspond exactly with the name
on the first page of this
Warrant or with the name of the
assignee appearing in the
assignment form below.
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ASSIGNMENT
(To be executed only upon assignment of Warrant)
For value received, hereby sells,
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assigns and transfers unto the within Warrant
-----------------------
Certificate, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint attorney, to
--------------------
transfer said Warrant on the books of the within-named Company with respect to
the number of Warrants set forth below, with full power of substitution in the
premises:
Name(s) of
Assignee(s)/Address No. of Warrants
And if said number of Warrants shall not be all the Warrants represented by the
Warrant, a new Warrant is to be issued in the name of said undersigned for the
balance remaining of the Warrants registered by said Warrant.
Name
-------------------------
Dated: Signature
--------------------- --------------------
Note: The above signature must
correspond exactly with the
name on the face of this Warrant
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