EXHIBIT 4.2
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE SECURITIES LAW AND NEITHER MAY BE SOLD OR OTHERWISE TRANSFERRED
UNTIL (I) A REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT AND SUCH APPLICABLE
STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (II)
THE COMPANY SHALL HAVE RECEIVED A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY TO THE EFFECT THAT REGISTRATION UNDER SUCH SECURITIES ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH
PROPOSED TRANSFER.
IN VERITAS MEDICAL DIAGNOSTICS, INC.
COMMON STOCK PURCHASE WARRANT
Warrant No. A-1 ___ shares
Original Issue Date: April ___, 2005
THIS CERTIFIES THAT, FOR VALUE RECEIVED, [ ] or its registered assigns
("Holder") is entitled to purchase, on the terms and conditions hereinafter set
forth, at any time or from time to time from the date hereof until 5:00 p.m.,
Eastern Time, on the third anniversary of the Original Issue Date set forth
above, or if such date is not a day on which the Company (as hereinafter
defined) is open for business, then the next succeeding day on which the Company
is open for business (such date is the "Expiration Date"), but not thereafter,
to purchase up to ________________ (_________) shares of the Common Stock, $.001
par value (the "Common Stock"), of In Veritas Medical Diagnostics, Inc., a
Colorado corporation (the "Company"), at $1.50 per share (the "Exercise Price"),
such number of shares and Exercise Price being subject to adjustment upon the
occurrence of the contingencies set forth in this Warrant. Each share of Common
Stock as to which this Warrant is exercisable is a "Warrant Share" and all such
shares are collectively referred to as the "Warrant Shares."
Section 1. Exercise of Warrant; Conversion of Warrant.
(a) This Warrant may, at the option of Holder, be exercised in whole
or in part from time to time by delivery to the Company at its principal
office, Attention: President, on or before 5:00 p.m., Eastern Time, on the
Expiration Date, (i) a written notice of such Holder's election to exercise
this Warrant (the "Exercise Notice"), which notice may be in the form of
the Notice of Exercise attached hereto, properly executed and completed by
Holder or an authorized officer thereof, (ii) a check payable to the order
of the Company, in an amount equal to the product of the Exercise Price
multiplied by the number of Warrant Shares specified in the Exercise
Notice, and (iii) this Warrant (the items specified in (i), (ii), and (iii)
are collectively the "Exercise Materials").
(b) As promptly as practicable, and in any event within five (5)
business days after its receipt of the Exercise Materials, the Company
shall execute or cause to be executed and delivered to Holder a certificate
or certificates representing the number of Warrant Shares specified in the
Exercise Notice, together with cash in lieu of any fraction of a share, and
if this Warrant is partially exercised, a new warrant on the same terms for
the unexercised balance of the Warrant Shares. The stock certificate or
certificates shall be registered in the name of Holder or such other name
or names as shall be designated in the Exercise Notice. The date on which
the Warrant shall be deemed to have been exercised (the "Effective Date"),
and the date the person in whose name any certificate evidencing the Common
Stock issued upon the exercise hereof is issued shall be deemed to have
become the holder of record of such shares, shall be the date the Company
receives the Exercise Materials, irrespective of the date of delivery of a
certificate or certificates evidencing the Common Stock issued upon the
exercise or conversion hereof, provided, however, that if the Exercise
Materials are received by the Company on a date on which the stock transfer
books of the Company are closed, the Effective Date shall be the next
succeeding date on which the stock transfer books are open. All shares of
Common Stock issued upon the exercise or conversion of this Warrant will,
upon issuance, be fully paid and nonassessable and free from all taxes,
liens, and charges with respect thereto.
Section 2. Adjustments to Warrant Shares. The number of Warrant Shares
issuable upon the exercise hereof shall be subject to adjustment as follows:
(a) In the event the Company is a party to a consolidation, share
exchange, or merger, or the sale of all or substantially all of the assets
of the Company to, any person, or in the case of any consolidation or
merger of another corporation into the Company in which the Company is the
surviving corporation, and in which there is a reclassification or change
of the shares of Common Stock of the Company, this Warrant shall after such
consolidation, share exchange, merger, or sale be exercisable for the kind
and number of securities or amount and kind of property of the Company or
the corporation or other entity resulting from such share exchange, merger,
or consolidation, or to which such sale shall be made, as the case may be
(the "Successor Company"), to which a holder of the number of shares of
Common Stock deliverable upon the exercise (immediately prior to the time
of such consolidation, share exchange, merger, or sale) of this Warrant
would have been entitled upon such consolidation, share exchange, merger,
or sale; and in any such case appropriate adjustments shall be made in the
application of the provisions set forth herein with respect to the rights
and interests of Holder, such that the provisions set forth herein shall
thereafter correspondingly be made applicable, as nearly as may reasonably
be, in relation to the number and kind of securities or the type and amount
of property thereafter deliverable upon the exercise of this Warrant. The
above provisions shall similarly apply to successive consolidations, share
exchanges, mergers, and sales. Any adjustment required by this Section 2
(a) because of a consolidation, share exchange, merger, or sale shall be
set forth in an undertaking delivered to Holder and executed by the
Successor Company which provides that Holder shall have the right to
exercise this Warrant for the kind and number of securities or amount and
kind of property of the Successor Company or to which the holder of a
number of shares of Common Stock deliverable upon exercise (immediately
prior to the time of such consolidation, share exchange, merger, or sale)
of this Warrant would have been entitled upon such consolidation, share
exchange, merger, or sale. Such undertaking shall also provide for future
adjustments to the number of Warrant Shares and the Exercise Price in
accordance with the provisions set forth in Section 2 hereof.
(b) In the event the Company should at any time, or from time to time
after the Original Issue Date, fix a record date for the effectuation of a
stock split or subdivision of the outstanding shares of Common Stock or the
determination of holders of Common Stock entitled to receive a dividend or
other distribution payable in additional shares of Common Stock, or
securities or rights convertible into, or entitling the holder thereof to
receive directly or indirectly, additional shares of Common Stock
(hereinafter referred to as "Common Stock Equivalents") without payment of
any consideration by such holder for the additional shares of Common Stock
or the Common Stock Equivalents (including the additional shares of Common
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Stock issuable upon exercise or exercise thereof), then, as of such record
date (or the date of such dividend, distribution, split, or subdivision if
no record date is fixed), the number of Warrant Shares issuable upon the
exercise hereof shall be proportionately increased and the Exercise Price
shall be appropriately decreased by the same proportion as the increase in
the number of outstanding Common Stock Equivalents of the Company resulting
from the dividend, distribution, split, or subdivision. Notwithstanding the
preceding sentence, no adjustment shall be made to decrease the Exercise
Price below $.001 per Share.
(c) In the event the Company should at any time or from time to time
after the Original Issue Date, fix a record date for the effectuation of a
reverse stock split, or a transaction having a similar effect on the number
of outstanding shares of Common Stock of the Company, then, as of such
record date (or the date of such reverse stock split or similar transaction
if no record date is fixed), the number of Warrant Shares issuable upon the
exercise hereof shall be proportionately decreased and the Exercise Price
shall be appropriately increased by the same proportion as the decrease of
the number of outstanding Common Stock Equivalents resulting from the
reverse stock split or similar transaction.
(d) In the event the Company should at any time or from time to time
after the Original Issue Date, fix a record date for a reclassification of
its Common Stock, then, as of such record date (or the date of the
reclassification if no record date is set), this Warrant shall thereafter
be convertible into such number and kind of securities as would have been
issuable as the result of such reclassification to a holder of a number of
shares of Common Stock equal to the number of Warrant Shares issuable upon
exercise of this Warrant immediately prior to such reclassification, and
the Exercise Price shall be unchanged.
(e) Until the Expiration Date, if the Company shall issue any Common
Stock (except for (i) any issuances pursuant to the 2005 Stock Incentive
Plan and (ii) any issuances of capital stock by the Company valued at less
than $100,000, for a consideration less than the Stated Value) prior to the
complete exercise of this Warrant for a consideration less than the
Exercise Price that would be in effect at the time of such issue, then, and
thereafter successively upon each such issue, the Exercise Price shall
automatically and with no action required by the Company or Holder, be
reduced to such other lower issue price. For purposes of this adjustment,
the issuance of any security or debt instrument of the Company carrying the
right to convert such security or debt instrument into Common Stock or of
any warrant, right or option to purchase Common Stock shall result in an
adjustment to the Exercise Price upon the issuance of the above-described
security, debt instrument, warrant, right, or option and again at any time
upon any subsequent issuances of shares of Common Stock upon exercise of
such conversion or purchase rights if such issuance is at a price lower
than the Exercise Price in effect upon such issuance.
(f) The Company will not, by amendment of its Certificate of
Incorporation or through reorganization, consolidation, merger,
dissolution, issue, or sale of securities, sale of assets or any other
voluntary action, void or seek to avoid the observance or performance of
any of the terms of the Warrant, but will at all times in good faith assist
in the carrying out of all such terms and in the taking of all such actions
as may be necessary or appropriate in order to protect the rights of Holder
against dilution or other impairment. Without limiting the generality of
the foregoing, the Company (x) will not create a par value of any share of
stock receivable upon the exercise of the Warrant above the amount payable
therefor upon such exercise, and (y) will take all such action as may be
necessary or appropriate in order that the Company may validly and legally
issue fully paid and non-assessable shares upon the exercise of the
Warrant.
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(g) When any adjustment is required to be made in the number or kind
of shares purchasable upon exercise of the Warrant, or in the Exercise
Price, the Company shall promptly notify Holder of such event and of the
number of shares of Common Stock or other securities or property thereafter
purchasable upon exercise of the Warrants and of the Exercise Price,
together with the computation resulting in such adjustment.
(h) The Company covenants and agrees that all Warrant Shares which may
be issued will, upon issuance, be validly issued, fully paid, and
non-assessable. The Company further covenants and agrees that the Company
will at all times have authorized and reserved, free from preemptive
rights, a sufficient number of shares of its Common Stock to provide for
the exercise of the Warrant in full.
Section 3. No Stockholder Rights. This Warrant shall not entitle Holder
hereof to any voting rights or other rights as a stockholder of the Company.
Section 4. Transfer of Securities.
(a) This Warrant and the Warrant Shares and any shares of capital
stock received in respect thereof, whether by reason of a stock split or
share reclassification thereof, a stock dividend thereon, or otherwise,
shall not be transferable except upon compliance with the provisions of the
Securities Act of 1933, as amended (the "Securities Act") and applicable
state securities laws with respect to the transfer of such securities. The
Holder, by acceptance of this Warrant, agrees to be bound by the provisions
of Section 4 hereof and to indemnify and hold harmless the Company against
any loss or liability arising from the disposition of this Warrant or the
Warrant Shares issuable upon exercise hereof or any interest in either
thereof in violation of the provisions of this Warrant.
(b) Each certificate for the Warrant Shares and any shares of capital
stock received in respect thereof, whether by reason of a stock split or
share reclassification thereof, a stock dividend thereon or otherwise, and
each certificate for any such securities issued to subsequent transferees
of any such certificate shall (unless otherwise permitted by the provisions
hereof) be stamped or otherwise imprinted with a legend in substantially
the following form:
"NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW AND NEITHER MAY BE
SOLD OR OTHERWISE TRANSFERRED UNTIL (I) A REGISTRATION STATEMENT UNDER
SUCH SECURITIES ACT AND SUCH APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (II) THE COMPANY SHALL
HAVE RECEIVED A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY
TO THE EFFECT THAT REGISTRATION UNDER SUCH SECURITIES ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED TRANSFER."
Section 5. Registration.
All Warrant Shares are subject to the rights and privileges granted to the
participants in the private placement offering pursuant to which this Warrant
was issued.
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Section 6. Miscellaneous.
(a) The terms of this Warrant shall be binding upon and shall inure to
the benefit of any successors or permitted assigns of the Company and
Holder.
(b) Except as otherwise provided herein, this Warrant and all rights
hereunder are transferable by the registered holder hereof in person or by
duly authorized attorney on the books of the Company upon surrender of this
Warrant, properly endorsed, to the Company. The Company may deem and treat
the registered holder of this Warrant at any time as the absolute owner
hereof for all purposes and shall not be affected by any notice to the
contrary.
(c) Notwithstanding any provision herein to the contrary, Holder may
not exercise, sell, transfer, or otherwise assign this Warrant unless the
Company is provided with an opinion of counsel satisfactory in form and
substance to the Company, to the effect that such exercise, sale, transfer,
or assignment would not violate the Securities Act or applicable state
securities laws.
(d) This Warrant may be divided into separate warrants covering one
share of Common Stock or any whole multiple thereof, for the total number
of shares of Common Stock then subject to this Warrant at any time, or from
time to time, upon the request of the registered holder of this Warrant and
the surrender of the same to the Company for such purpose. Such subdivided
Warrants shall be issued promptly by the Company following any such request
and shall be of the same form and tenor as this Warrant, except for any
requested change in the name of the registered holder stated herein.
(e) Any notices, consents, waivers, or other communications required
or permitted to be given under the terms of this Warrant must be in writing
and will be deemed to have been delivered (a) upon receipt, when delivered
personally, (b) upon receipt, when sent by facsimile, provided a copy is
mailed by U.S. certified mail, return receipt requested, (c) three (3) days
after being sent by U.S. certified mail, return receipt requested, or (d)
one (1) day after deposit with a nationally recognized overnight delivery
service, in each case properly addressed to the party to receive the same.
If to Holder, to the registered address of Holder appearing on the books of
the Company. Each party shall provide five (5) days prior written notice to the
other party of any change in address, which change shall not be effective until
actual receipt thereof
(f) The corporate laws of the State of New York shall govern all
issues concerning the relative rights of the Company and its stockholders.
All other questions concerning the construction, validity, enforcement and
interpretation of this Warrant shall be governed by the internal laws of
the State of New York, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of New York or any
other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of New York. Each party hereby
irrevocably submits to the non-exclusive jurisdiction of the state and
federal courts sitting the City of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any
claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is brought in an inconvenient
forum or that the venue of such suit, action or proceeding is improper.
Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it
under this Warrant and agrees that such service shall constitute good and
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sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any
manner permitted by law. If any provision of this Warrant shall be invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remainder of this
Warrant in that jurisdiction or the validity or enforceability of any
provision of this Warrant in any other jurisdiction.
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SIGNATURE PAGE
TO
IN VERITAS MEDICAL DIAGNOSTICS, INC.
COMMON STOCK PURCHASE WARRANT
IN WITNESS WHEREOF, the Company, has caused this Warrant to be executed
in its name by its duly authorized officers under seal, and to be dated as of
the date first above written.
IN VERITAS MEDICAL DIAGNOSTICS, INC.
By:
---------------------------------------------
Name: Xxxx Xxxxxx
Title: President and Chief Executive Officer
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ASSIGNMENT
(To be Executed by the Registered Holder to
effect a Transfer of the foregoing Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, and assigns and transfers unto
___________________________________________________________________________ the
foregoing Warrant and the rights represented thereto to purchase shares of
Common Stock of IN VERITAS MEDICAL DIAGNOSTICS, INC.
in accordance with terms and conditions thereof, and does hereby
irrevocably constitute and appoint ________________ Attorney to transfer the
said Warrant on the books of the Company, with full power of substitution.
Holder: ________________________
________________________________
________________________________
Address: _______________________
Dated: __________________, 20__
In the presence of:
________________________________
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EXERCISE OR CONVERSION NOTICE
[To be signed only upon exercise of Warrant]
To: IN VERITAS MEDICAL DIAGNOSTICS, INC.
The undersigned Holder of the attached Warrant hereby irrevocably
elects to exercise the Warrant for, and to purchase thereunder, _____ shares of
Common Stock of IN VERITAS MEDICAL DIAGNOSTICS, INC., issuable upon exercise of
said Warrant and hereby surrenders said Warrant.
The undersigned herewith requests that the certificates for such shares
be issued in the name of, and delivered to the undersigned, whose address is
________________________________.
If electronic book entry transfer, complete the following:
Account Number:
-----------------------------------
Transaction Code Number:
------------------
Dated: ___________________
Holder:
------------------------------------
------------------------------------
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
NOTICE
The signature above must correspond to the name as written upon the face of
the within Warrant in every particular, without alteration or enlargement or any
change whatsoever.
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