FORM OF STOCK PURCHASE OPTION
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION ("BLUE SKY LAWS"), AND CANNOT BE RESOLD UNLESS THEY ARE
REGISTERED UNDER THE ACT AND ANY APPLICABLE BLUE SKY LAWS, UNLESS AN
EXEMPTION IS AVAILABLE. THE SECURITIES REPRESENTED BY THIS WARRANT HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE
SALE OR DISTRIBUTION THEREOF.
TOPFORM, INC.
STOCK PURCHASE WARRANT
WARRANT TO PURCHASE ______________ SHARES OF COMMON STOCK AS DESCRIBED HEREIN
Dated: As of March 15, 1998
This certifies that, for value received, including services to be performed
pursuant to various employment agreements by and between Topform, Inc. and
TrueVision Laser Centers, Inc. is entitled to purchase from Topform, Inc., a
Delaware corporation (the "Company"), having its principal office located at
000 "X" Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, xxxxxxxx million, six
hundred sixty six thousand and six hundred sixty seven (18,666,67) fully paid
and nonassessable shares of Common Stock, no par value, of the Company (the
"Common Stock"), subject to the terms set forth herein, at an exercise price
of Nine Cents ($0.09), per share, subject to adjustment as provided elsewhere
herein (the "Warrant Price"). The holder of this Warrant shall be referred to
herein as the "Warrantholder" or the "Holder."
1. "COMMON STOCK." If at any time, as a result of an adjustment made
pursuant to Section, the Securities or other property obtainable upon exercise
of this Warrant shall include shares or other securities of the Company other
than common stock or securities of another corporation or other property,
thereafter the number of such other shares or other securities or property so
obtainable 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, and all other provisions of this
Warrant with respect to the Common Stock shall apply on like terms to any such
other shares or other securities or property. Subject to the foregoing, and
unless the context requires otherwise, all references herein to "Common
Stock" shall, in the event of an adjustment pursuant to Section, be deemed to
refer as well to any other securities or property then obtainable as a result
of such adjustments.
2. EXERCISE OF WARRANT. The purchase rights represented by this Warrant
may be exercised by the Warrantholder or its duly authorized attorney or
representative, in whole or in part (but not as to a fractional share of
Common Stock), at any time and from time to time during the period commencing
on the date of this Warrant (the "Commencement Date") and expiring at 5:00 p.m.,
Pacific Standard Time, April 15, 1999 (the "Expiration Date") (or such
earlier date as may be provided pursuant to Section 9 herein), or if such
date is a day on which federal or state chartered banking institutions are
authorized by law to close, then on the next succeeding day which shall not
be such a day, upon presentation of this Warrant at the principal office of
the Company, or at the office of its stock transfer agent, if any, with the
purchase form attached hereto duly completed and signed, and upon payment to
the Company in cash or by certified check or bank draft of an amount equal to
the number of shares being so purchased multiplied by the Warrant Price,
together with all taxes applicable upon such exercise. The Company
agrees that the Warrantholder will be deemed the record owner of such shares
as of the close of business on the date on which the Warrant shall have been
presented and payment shall have been made for such shares as aforesaid.
Certificates for the shares of Common Stock so purchased shall be delivered
to the Warrantholder within a reasonable time, not exceeding 20 days, after
the exercise in full of the rights represented by this Warrant. If the
Warrant is exercised in part only, the Company shall, upon surrender of this
Warrant for cancellation, deliver a new Warrant evidencing the rights of the
Warrantholder to purchase the balance of the shares of Common Stock which the
Warrantholder is entitled to purchase hereunder.
3. VESTING. Subject to Section 9 herein, the purchase rights represented
by this Warrant shall become exercisable immediately upon issuance, which
shall occur on or before March 31, 1998.
4. CERTAIN ADJUSTMENTS TO WARRANT. (a) In case the Company shall (i) pay a
dividend in shares of Common Stock or make a distribution in shares of Common
Stock, (ii) subdivide its outstanding shares of Common Stock, (iii) combine
its outstanding shares of Common Stock into a smaller number of shares of
Common Stock or (iv) issue by reclassification of its shares of Common Stock
other securities of the Company, the number of shares of Common Stock
purchasable upon exercise of this Warrant immediately prior thereto shall be
adjusted so that the Warrantholder shall be entitled to receive the kind and
number of shares of Common Stock or other securities of the Company which he
would have owned or have been entitled to receive at the happening of any of
the events described above, had such Warrant been exercised immediately prior
to the happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event. (b) Whenever the number of shares of Common
Stock purchasable upon the exercise of this Warrant is adjusted, as herein
provided, the Warrant Price shall be adjusted by multiplying such Warrant
Price immediately prior to such adjustment by a fraction, of which the
numerator shall be the number of shares of Common Stock purchasable upon the
exercise of this Warrant immediately prior to such adjustment, and of which
the denominator shall be the number of shares of Common Stock so purchasable
immediately thereafter. (c) In the event of any adjustment pursuant to this
Section, no fractional shares of Common Stock shall be issued in connection
with the exercise of any Warrants, but the Company shall, in lieu of such
fractional shares, make such cash payment therefor on the basis of the
current market price on the day immediately prior to exercise. (d)
Irrespective of any adjustments pursuant to this Section to the Warrant Price
or to the number of shares or other securities obtainable upon exercise of
this Warrant, this Warrant may continue to state the Warrant Price and the
number of shares obtainable upon exercise, as the same price and number of
shares stated herein.
5. MERGER. In the event of a merger, consolidation or reorganization with
another corporation in which the Company is not the surviving
corporation, the Company (subject to the approval of the Board) or the
board of directors of any corporation assuming the obligations of the
Company hereunder shall take action pursuant to either clause (a) or (b)
below:
(a) Appropriate provision may be made for the protection of this
Warrant by the substitution on an equitable basis of
appropriate shares of the surviving corporation, provided that
the excess of the aggregate fair market value (as determined by
the Company) of the shares subject to this Warrant immediately
before such substitution over the exercise price hereof is not
more than the excess of the aggregate fair market value of the
substituted shares made subject to purchase immediately after
such substitution over the exercise price thereof; or
(b) Appropriate provision may be made for the cancellation of this
Warrant. In such event, the Company, or the corporation
assuming the obligations of the Company hereunder, shall pay
the Holder an amount of cash (less normal withholding taxes)
equal to the excess of the
highest fair market value per share of the Common Stock during
the 60-day period immediately preceding the merger,
consolidation or reorganization over the exercise price,
multiplied by the number of shares subject to this Warrant
(whether or not then exercisable).
6. COVENANTS OF THE COMPANY. The Company covenants and agrees that:
(a) During the period within which the rights represented by the Warrant
may be exercised, the Company will at all times reserve and keep available,
free from preemptive rights out of the aggregate of its authorized but
unissued Common Stock, for the purpose of enabling it to satisfy any
obligation to issue shares of Common Stock upon the exercise of this
Warrant, the number of shares of Common Stock deliverable upon the
exercise of this Warrant. If at any time the number of shares of
authorized Common Stock shall not be sufficient to effect the exercise
of this Warrant, the Company will take such corporate action as may be
necessary to increase its authorized but unissued Common Stock to such
number of shares as shall be sufficient for such purpose. The Company
shall have analogous obligations with respect to any other securities or
properties issuable upon exercise of this Warrant. The Company's issuance
of this Warrant shall constitute full authority to its officers who are
charged with the duty of executing stock certificates to execute and
issue the necessary certificates for shares of Common Stock upon the
exercise of this Warrant;
(b) All Common Stock that may be issued upon exercise of the rights
represented by this Warrant will, upon issuance, be validly issued, fully
paid, non-assessable, and free from all taxes, liens, and charges with
respect to the issue thereof; and
(c) All original issue taxes payable with respect to the issuance of
shares upon the exercise of the rights represented by this Warrant will
be borne by the Company but in no event will the Company be responsible
or liable for income taxes or transfer taxes upon the transfer of any
Warrant.
7. NO STOCKHOLDER RIGHTS. Until exercised, this Warrant shall not entitle
the Warrantholder to any voting rights or other rights as a stockholder
of the Company. The rights of the Holder are limited to those expressed
in this Warrant and are not enforceable against the Company except to
the extent set forth herein.
8. TRANSFER RESTRICTIONS.
(a) This Warrant is not transferable except by will or the laws of
descent and distribution and, during Xxxxxx's lifetime, it may only
be exercised by Xxxxxx.
(b) Neither this Warrant nor the shares of stock issuable upon the
exercise hereof have been registered under the Securities Act of
1933, as amended (the "Securities Act") or under any state
securities laws and unless so registered may not be transferred,
sold, pledged, hypothecated or otherwise disposed of unless an
exemption from such registration is available. In the event Holder
desires to transfer any of the shares of stock issued hereunder,
the Holder must give the Company prior written notice of such
proposed transfer including the name and address of the proposed
transferee. Such transfer may be made only either (i) upon
publication by the Securities and Exchange Commission (the
"Commission") of a ruling, interpretation, opinion or "no action
letter" based upon facts presented to said Commission, or (ii) upon
receipt by the Company of an opinion of counsel to the Company in
either case to the effect that the proposed transfer will not
violate the provisions of the Securities Act, the Securities
Exchange Act of 1934, as amended, or the rules and regulations
promulgated under either such act, or in the case of clause (ii)
above, to the effect that the shares of stock to be sold or
transferred have been
registered under the Securities Act and that there is in effect
a current prospectus meeting the requirements of Subsection 10(a) of
the Securities Act, which is being or will be delivered to the
purchaser or transferee at or prior to the time of delivery of the
certificates evidencing the shares of stock to be sold or
transferred.
(c) Prior to any such proposed transfer, and as a condition thereto, if
such transfer is not made pursuant to an effective registration
statement under the Securities Act, the Holder will, if requested
by the Company, deliver to the Company (i) an investment covenant
signed by the proposed transferee, (ii) an agreement by such
transferee to the impression of the restrictive investment legend
set forth herein on the certificate or certificates representing
the securities acquired by such transferee, (iii) an agreement by
such transferee that the Company may place a "stop transfer order"
with its transfer agent or registrar, and (iv) an agreement of the
transferee to indemnify the Company to the same extent as set forth
in paragraph 8(d) below.
(d) Xxxxxx acknowledges that Xxxxxx understands the meaning and legal
consequences of this Section 8, and the Holder hereby agrees to
indemnify and hold harmless the Company, its representatives and
each officer and director thereof from and against any and all
loss, damage or liability (including all attorney's fees and costs
incurred in enforcing this indemnity provision) due to or arising
out of (i) the inaccuracy of any representation or the breach of
any Warrant of Holder contained in, or any other breach of, this
Warrant Agreement, (ii) any transfer of any of this Warrant or the
shares of stock issuable hereunder in violation of the Securities
Act, the Securities Exchange Act of 1934, as amended, or the rules
and regulations promulgated under either of such acts, (iii) any
transfer of this Warrant or any of said shares of stock not in
accordance with this Warrant Agreement or (iv) any untrue
statement or omission to state any material fact in connection
with the investment representations or with respect to the facts
and representations supplied by the Holder to counsel to the
Company upon which its opinion as to a proposed transfer shall have
been based.
(e) Any assignment, transfer, pledge, hypothecation or other
disposition of this Warrant attempted contrary to the provisions of
this Warrant Agreement, or any levy of execution, attachment or
other process attempted upon the Warrant, shall be null and void
and without effect.
(f) Unless the shares of stock issuable hereunder have been registered
under the Securities Act, upon exercise of this Warrant (in whole
or in part) and the issuance of any of said shares, the Company
shall instruct its transfer agent to enter stop transfer orders
with respect to such shares, and all certificates representing
said shares shall bear on the face thereof substantially the
following legend, insofar as is consistent with all Federal and
State securities law:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
OFFERED FOR SALE, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED PURSUANT TO THE PROVISIONS OF THAT ACT OR AN OPINION OF COUNSEL TO
THE COMPANY IS OBTAINED STATING THAT SUCH DISPOSITION IS IN COMPLIANCE WITH
AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION."
9. TERMINATION OF THE WARRANT. Notwithstanding anything herein to be the
contrary, this Warrant will expire and be of no further force and effect on
April 15, 1999.
10. LOST CERTIFICATE. If this Warrant is lost, stolen, mutilated or
destroyed, the Company shall, on such terms as the Company may reasonably
impose, including a requirement that the Warrantholder obtain a bond,
issue a new Warrant of like denomination tenor and date.
PURCHASE FORM
TO BE EXECUTED UPON EXERCISE OF WARRANT The undersigned hereby exercises the
right to purchase ______ shares of Common Stock, evidenced by the within
Warrant, according to the terms and conditions thereof, and herewith makes
payment of the purchase price in full. The undersigned requests that
certificate(s) for such shares shall be issued in the name set forth below.
Dated: [NAME OF XXXXXX]
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By:
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(Signature)
Name:
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(Please Print)
Address:
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Employer Identification No., Social Security No. or other identifying member:
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If the number of shares specified above shall not be all the shares
purchasable under the within Warrant, the Warrantholder hereby requests that a
new Warrant for the unexercised portion shall be registered in Warrantholder's
name and delivered to the address set forth in the Warrant.
