EXHIBIT 4.02
___________________________
ISONICS CORPORATION
AND
PRYOR, MCCLENDON, COUNTS & CO., INC.
REPRESENTATIVES'
WARRANT AGREEMENT
DATED AS OF ______ ___, 1996
___________________________
REPRESENTATIVES' WARRANT AGREEMENT dated as of November, ____ 1996,
among ISONICS CORPORATION, a California corporation (the "Company"), PRYOR,
MCCLENDON, COUNTS & CO., INC. ("Xxxxx XxXxxxxxx") and NATIONAL SECURITIES
CORPORATION ("National") and its assignees or designees (each hereinafter
collectively referred to variously as "Holders" or "Representatives").
W I T N E S S E T H :
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WHEREAS, the Representatives have agreed pursuant to the underwriting
agreement (the "Underwriting Agreement") dated as of the date hereof and entered
into between the Company and the Representatives, to act as the representatives
of the several underwriters listed therein (the "Underwriters") in connection
with the Company's proposed public offering of _______ shares of Common Stock
(as hereinafter defined) at a public offering price of $________ per share and
________ redeemable warrants (the "Redeemable Warrants") to purchase one (1)
share of Common Stock at an exercise price of $____, per share 150% of the
initial public offering price per share of Common Stock (the "Public Offering").
WHEREAS, pursuant to the Underwriting Agreement, the Company proposes
to issue warrants (the "Representatives' Warrants") to the Representatives to
purchase up to an aggregate of __________ shares of Common Stock of the Company
and/or ________ Redeemable Warrants.
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WHEREAS, the Representatives' Warrants to be issued pursuant to this
Agreement will be issued on the Closing Date (as such term is defined in the
Underwriting Agreement) by the Company to the Representatives in consideration
for, and as part of the Underwriters' compensation in connection with, the
Representatives acting as the representatives pursuant to the Underwriting
Agreement.
NOW, THEREFORE, in consideration of the premises, the payment by the
Representatives to the Company of an aggregate of ___ dollars ($____), the
agreements herein set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Grant. The Representatives are hereby collectively granted the
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right to purchase, at any time after the Effective Date of the Registration
Statement until 5:30 p.m., New York time, on ___________ __, 2001 (5 years from
the Effective Date of the Registration Statement), at which time the
Representatives' Warrants expire, up to an aggregate of _____ shares of Common
Stock, no par value (the "Common Stock"), and/or _______ Redeemable Warrants at
an initial exercise price (subject to adjustment as provided in Section 11
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hereof) of $____ per share of Common Stock 120% of the initial public offering
price per share and $____ per Redeemable Warrant 120% of the initial public
offering price per Redeemable Warrant, (collectively, the "Exercise Price").
One Redeemable Warrant is exercisable to purchase one additional share of Common
Stock at an initial exercise of $____ 150% of the initial public offering price
per share from the Effective Date of the Registration Statement until 5:30 p.m.
New York time on ___________
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__, 2001 [5 years from the Effective Date of the Registration Statement], at
which time the Redeemable Warrants shall expire. Except as set forth herein, the
shares of Common Stock and the Redeemable Warrants issuable upon exercise of the
Representatives' Warrants are in all respects identical to the shares of Common
Stock and the Redeemable Warrants being purchased by the Underwriters for resale
to the public pursuant to the terms and provisions of the Underwriting
Agreement. The shares of Common Stock and the Redeemable Warrants issuable upon
exercise of the Representatives' Warrants are sometimes hereinafter referred to
collectively as the "Securities."
2. Representatives' Warrant Certificates. The Representatives'
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Warrant Certificates (the "Warrant Certificates") delivered and to be delivered
pursuant to this Agreement shall be in the form set forth in Exhibit A, attached
hereto and made a part hereof, with such appropriate insertions, omissions,
substitutions, and other variations as required or permitted by this Agreement.
3. Registration of Warrant. The Representatives' Warrants shall be
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numbered and shall be registered on the books of the Company when issued.
4. Exercise of Representatives' Warrants.
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The Representatives' Warrants initially are exercisable at an
aggregate Exercise Price (subject to adjustment as provided in Section 11
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hereof) per share of Common Stock and Redeemable Warrant as set forth in Section
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8 hereof payable by certified or official bank check in New York Clearing House
funds. Upon surrender of a Representatives' Warrant
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Certificate with the annexed Form of Election to Purchase duly executed,
together with payment of the Exercise Price for the Units purchased at the
Company's principal offices in California presently located at 0000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000 the registered holder of a
Representatives' Warrant Certificate ("Holder" or "Holders") shall be entitled
to receive a certificate or certificates for the shares of Common Stock and/or
Redeemable Warrants so purchased. The purchase rights represented by each
Representatives' Warrant Certificate are exercisable at the option of the Holder
thereof, in whole or in part (but not as to fractional shares of Common Stock
and/or Redeemable Warrants underlying the Representatives' Warrants).
Representatives' Warrants may be exercised to purchase all or part of the shares
of Common Stock together with an equal or unequal number of the Redeemable
Warrants represented thereby. In the case of the purchase of less than all of
the shares of Common Stock and/or Redeemable Warrants purchasable under any
Representatives' Warrant Certificate, the Company shall cancel said
Representatives' Warrant Certificate upon the surrender thereof and shall
execute and deliver a new Representatives' Warrant Certificate of like tenor for
the balance of the shares of Common Stock and/or Redeemable Warrants purchasable
thereunder.
5. Issuance of Certificates. Upon the exercise of the
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Representatives' Warrant, the issuance of certificates for shares of Common
Stock and/or Redeemable Warrants or other securities, properties or rights
underlying such Representatives' Warrant shall be made forthwith (and in any
event within five (5) business days thereafter) without charge to the Holder
thereof including, without limitation, any tax which may be payable in respect
of the issuance thereof, and such certificates shall (subject to the provisions
of Sections 7 and 9 hereof) be issued in the
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name of, or in such names as may be directed by, the Holder thereof; provided,
however, 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
such certificates in a name other than that of the Holder and the Company shall
not be required to issue or deliver such certificates unless or until the person
or persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
The Representatives' Warrant Certificates and the certificates
representing the shares of Common Stock and/or Redeemable Warrants or other
securities, property or rights issued upon exercise of the Representatives'
Warrant shall be executed on behalf of the Company by the manual or facsimile
signature of the then present President or any Vice President of the Company
under its corporate seal reproduced thereon, attested to by the manual or
facsimile signature of the then present Secretary or any Assistant Secretary of
the Company. Representatives' Warrant Certificates shall be dated the date of
execution by the Company upon initial issuance, division, exchange, substitution
or transfer.
6. Transfer of Representatives' Warrant. The Representatives'
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Warrant shall be transferable only on the books of the Company maintained at its
principal office, where its principal office may then be located, upon delivery
thereof duly endorsed by the Holder or by its duly authorized attorney or
representative accompanied by proper evidence of succession,
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assignment or authority to transfer. Upon any registration transfer, the Company
shall execute and deliver the new Representatives' Warrant to the person
entitled thereto.
7. Restriction On Transfer of Representatives' Warrant. The Holder
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of a Representatives' Warrant Certificate, by its acceptance thereof, covenants
and agrees that the Representatives' Warrant is being acquired as an investment
and not with a view to the distribution thereof, and that the Representatives'
Warrant may not be sold, transferred, assigned, hypothecated or otherwise
disposed of, in whole or in part, for the term of the Representatives' Warrant,
except to officers or partners of the Underwriters, or by operation of law.
8. Exercise Price.
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1.8.1 Initial and Adjusted Exercise Price. Except as otherwise
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provided in Section 11 hereof, the initial exercise price of each
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Representatives' Warrant shall be $____ per share of Common Stock [120% of the
initial public offering price per share of Common Stock] and $____ per
Redeemable Warrant [120% of the initial public offering price per Redeemable
Warrant]. The adjusted exercise price shall be the price which shall result
from time to time from any and all adjustments of the initial exercise price in
accordance with the provisions of Section 11 hereof. Any transfer of a
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Representatives' Warrant shall constitute an automatic transfer and assignment
of the registration rights set forth in Section 9 hereof with respect to the
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Securities or other securities, properties or rights underlying the
Representatives' Warrants.
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1.8.2 Exercise Price. The term "Exercise Price" herein shall mean
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the initial exercise price or the adjusted exercise price, depending upon the
context or unless otherwise specified.
9. Registration Rights.
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1.9.1 Registration Under the Securities Act of 1933. Each
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Representatives' Warrant Certificate and each certificate representing shares of
Common Stock and/or Redeemable Warrants and any of the other securities issuable
upon exercise of the Representatives' Warrant (collectively, the "Warrant
Shares") shall bear the following legend unless (i) such Representatives'
Warrant or Warrant Shares are distributed to the public or sold to the
underwriters for distribution to the public pursuant to Section 9 hereof or
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otherwise pursuant to a registration statement filed under the Securities Act of
1933, as amended (the "Act"), or (ii) the Company has received an opinion of
counsel, in form and substance reasonably satisfactory to counsel for the
Company, that such legend is unnecessary for any such certificate:
THE REPRESENTATIVES' WARRANT REPRESENTED BY THIS
CERTIFICATE AND THE OTHER SECURITIES ISSUABLE UPON
EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO (I) AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, (II) TO THE EXTENT
APPLI CABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR
RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF
SECURITIES), OR (III) AN OPINION OF COUNSEL, IF SUCH
OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR
THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER
SUCH ACT IS AVAILABLE.
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THE TRANSFER OR EXCHANGE OF THE REPRESENTATIVES'
WARRANT REPRESENTED BY THE CERTIFICATE IS RESTRICTED IN
ACCORDANCE WITH THE REPRESENTATIVES' WARRANT AGREEMENT
REFERRED TO HEREIN.
1.1.1 Piggyback Registration. If, at any time commencing after
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the effective date of the Registration Statement and expiring five (5) years
thereafter, the Company proposes to register any of its securities under the Act
(other than in connection with a merger or pursuant to Form S-4 or Form S-8) it
will give written notice by registered mail, at least twenty (20) days prior to
the filing of each such registration statement, to the Holders of the
Representatives' Warrants and/or the Warrant Shares of its intention to do so.
If any of the Holders of the Representatives' Warrants and/or Warrant Shares
notify the Company within ten (10) days after mailing of any such notice of its
or their desire to include any such securities in such proposed registration
statement, the Company shall afford such Holders of the Representatives'
Warrants and/or Warrant Shares the opportunity to have any such Representatives'
Warrants and/or Warrant Shares registered under such registration statement. In
the event that the managing underwriter for said offering advises the Company in
writing that in its opinion the number of securities requested to be included in
such registration exceeds the number which can be sold in such offering without
causing a diminution in the offering price or otherwise adversely affecting the
offering, the Company will include in such registration (a) first, the
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securities the Company proposes to sell, (b) second, the securities held by the
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entities, if any, that made the demand for registration, (c) third, the
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Representatives' Warrants and/or Warrant Shares requested to be
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included in such registration which in the opinion of such underwriter can be
sold, pro rata among all proposed selling shareholders.
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Notwithstanding the provisions of this Section 9.2, the Company shall
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have the right at any time after it shall have given written notice pursuant to
this Section 9.2 (irrespective of whether a written request for inclusion of any
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such securities shall have been made) to elect not to file any such proposed
registration statement or to withdraw the same after the filing but prior to the
effective date thereof.
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1.1.2 Demand Registration.
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(a) At any time commencing one (1) year after the effective
date of the Registration Statement and expiring five (5) years from the
effective date of the Registration Statement, the Holders of the
Representatives' Warrants and/or Warrant Shares representing a "Majority" (as
hereinafter defined) of the Representatives' Warrants and/or Warrant Shares
shall have the right (which right is in addition to the registration rights
under Section 9.2 hereof), exercisable by written notice to the Company, to have
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the Company prepare and file with the Securities and Exchange Commission (the
"Commission"), on one occasion, a registration statement and such other
documents, including a prospectus, as may be necessary in the opinion of both
counsel for the Company and counsel for the Holders, in order to comply with the
provisions of the Act, so as to permit a public offering and sale by such
Holders and any other Holders of the Representatives' Warrant and/or Warrant
Shares who notify the Company within fifteen (15) days after the Company mails
notice of such request pursuant to Section 9.3(b) hereof (collectively, the
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"Requesting Holders") of their respective Warrant Shares for the earlier of (i)
nine (9) consecutive months or (ii) until the sale of all of the Warrant Shares
requested to be registered by the Requesting Holders.
(b) The Company covenants and agrees to give written notice
of any registration request under this Section 9.3 by any Holder or Holders
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representing a Majority of the Representatives' Warrants and/or Warrant Shares
to all other registered Holders of the
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Representatives' Warrants and the Warrant Shares within ten (10) days from the
date of the receipt of any such registration request.
(c) Intentionally omitted.
(d) Notwithstanding anything to the contrary contained
herein, if the Company shall not have filed a registration statement for the
Warrant Shares within the time period specified in Section 9.4(a) hereof
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pursuant to the written notice specified in Section 9.3(a) of the Holders of a
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Majority of the Representatives' Warrants and/or Warrant Shares, the Company, at
its option, may repurchase (i) any and all Warrant Shares at the higher of the
Market Price (as defined in Section 9.3(e)) per share of Common Stock on (x) the
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date of the notice sent pursuant to Section 9.3(a) or (y) the expiration of the
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period specified in Section 9.4(a) and (ii) any and all Representatives' Warrant
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at such Market Price less the exercise price of such Representatives' Warrant.
Such repurchase shall be in immediately available funds and shall close within
two (2) days after the later of (i) the expiration of the period specified in
Section 9.4(a) or (ii) the delivery of the written notice of election specified
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in this Section 9.3(d).
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(e) Definition of Market Price. As used herein, the phrase
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"Market Price" at any date shall be deemed to be the last reported sale price,
or, in case no such reported sale takes place on such day, the average of the
last reported sale prices for the last three (3) trading days, in either case as
officially reported by the principal securities exchange on which
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the shares of Common Stock and/or Redeemable Warrants or Common Stock is listed
or admitted to trading, or, if the shares of Common Stock and/or Redeemable
Warrants or Common Stock is not listed or admitted to trading on any national
securities exchange, the average closing sale price as furnished by the NASD
through The Nasdaq Stock Market, Inc. ("Nasdaq") or similar organization if
Nasdaq is no longer reporting such information, or if the shares of Common Stock
and/or Redeemable Warrants or Common Stock is not quoted on Nasdaq, as
determined in good faith by resolution of the Board of Directors of the Company,
based on the best information available to it.
1.1.2 Covenants of the Company With Respect to Registration. In
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connection with any registration under Sections 9.2 or 9.3 hereof, the Company
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covenants and agrees as follows:
(a) The Company shall use its best efforts to file a
registration statement within ninety (90) days of receipt of any demand
therefor, and to have any registration statements declared effective at the
earliest possible time, and shall furnish each Holder desiring to sell Warrant
Shares such number of prospectuses as shall reasonably be requested.
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(b) The Company shall pay all costs (excluding fees and
expenses of a single counsel for all Holders up to a maximum of $25,000 of legal
fees and costs and any underwriting or selling commissions), fees and expenses
in connection with all registration statements filed pursuant to Sections 9.2
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and 9.3(a) hereof including, without limitation, the Company's legal and
accounting fees, printing expenses, blue sky fees and expenses. The Holder(s)
will pay all costs, fees and expenses (including those of the Company) in
connection with the registration statement filed pursuant to Section 9.3(c).
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(c) The Company will use its commercially reasonable
efforts to take all necessary action which may be required in qualifying or
registering the Warrant Shares included in a registration statement for offering
and sale under the securities or blue sky laws of such states as reasonably are
requested by the Holder(s), provided that the Company shall not be obligated to
execute or file any general consent to service of process or to qualify as a
foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Holder(s) of the
Warrant Shares to be sold pursuant to any registration statement and each
person, if any, who controls such Holders within the meaning of Section 15 of
the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended
("Exchange Act"), against all loss, claim, damage, expense or liability
(including all expenses reasonably incurred in investigating, preparing or
defending against any claim whatsoever) to which any of them may become subject
under the Act, the Exchange Act or otherwise, arising from such registration
statement but only to the same extent and with the same
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effect as the provisions pursuant to which the Company has agreed to indemnify
each of the Underwriters contained in Section 7 of the Underwriting Agreement.
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(e) The Holder(s) of the Warrant Shares to be sold pursuant
to a registration statement, and their successors and assigns, shall severally,
and not jointly, indemnify the Company, its officers and directors and each
person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or
expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which
they may become subject under the Act, the Exchange Act or otherwise, arising
from information furnished by or on behalf of such Holders, or their successors
or assigns, for specific inclusion in such registration statement to the same
extent and with the same effect as the provisions contained in Section 7 of the
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Underwriting Agreement pursuant to which the Underwriters have agreed to
indemnify the Company.
(f) Nothing contained in this Agreement shall be construed
as requiring the Holder(s) to exercise their Representatives' Warrant prior to
the initial filing of any registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any
securities other than the Warrant Shares to be included in any registration
statement filed pursuant to Section 9.3 hereof, or permit any other registration
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statement (other than a registration statement on Form S-4 or S-8) to be or
remain effective during a ninety (90) day period following the effectiveness of
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a registration statement filed pursuant to Section 9.3 hereof, without the prior
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written consent of National Securities Corporation or as otherwise required by
the terms of any existing registration rights granted prior to the date of this
Agreement by the Company to the holders of any of the Company's securities.
(h) The Company shall furnish to each Holder participating
in the offering and to each underwriter, if any, a signed counterpart, addressed
to such Holder or underwriter, of (i) an opinion of counsel to the Company,
dated the effective date of such registration statement (and, if such
registration includes an underwritten public offering, an opinion dated the date
of the closing under the underwriting agreement), and (ii) a "cold comfort"
letter dated the effective date of such registration statement (and, if such
registration includes an underwritten public offering, a letter dated the date
of the closing under the underwriting agreement) signed by the independent
public accountants who have issued a report on the Company's financial
statements included in such registration statement, in each case covering
substantially the same matters with respect to such registration statement (and
the prospectus included therein) and, in the case of such accountants' letter,
with respect to events subsequent to the date of such financial statements, as
are customarily covered in opinions of issuer's counsel and in accountants'
letters delivered to underwriters in underwritten public offerings of
securities.
(i) The Company shall as soon as practicable after the
effective date of the registration statement, and in any event within 15 months
thereafter, make "generally available to its security holders" (within the
meaning of Rule 158 under the Act) an earnings
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statement (which need not be audited) complying with Section 11(a) of the Act
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and covering a period of at least 12 consecutive months beginning after the
effective date of the registration statement.
(j) The Company shall enter into an underwriting agreement
with the managing underwriters selected for such underwriting by Holders holding
a Majority of the Warrant Shares requested to be included in such underwriting,
which may be the Representative. Such agreement shall be satisfactory in form
and substance to the Company, each Holder and such managing underwriters, and
shall contain such representations, warranties and covenants by the Company and
such other terms as are customarily contained in agreements of that type used by
the managing underwriter. The Holders shall be parties to any underwriting
agreement relating to an underwritten sale of their Warrant Shares and may, at
their option, require that any or all the representations, warranties and
covenants of the Company to or for the benefit of such underwriters shall also
be made to and for the benefit of such Holders. Such Holders shall not be
required to make any representations or warranties to or agreements with the
Company or the underwriters except as they may relate to such Holders and their
intended methods of distribution.
(k) For purposes of this Agreement, the term "Majority" in
reference to the Representatives' Warrants or Warrant Shares, shall mean in
excess of fifty percent (50%) of the then outstanding Representatives' Warrants
or Warrant Shares that (i) are not held by the Company, an affiliate, officer,
creditor, employee or agent thereof or any of their respective
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affiliates, members of their family, persons acting as nominees or in
conjunction therewith or (ii) have not been resold to the public pursuant to a
registration statement filed with the Commission under the Act.
2. Obligations of Holders. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to Section 9 hereof that
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each of the selling Holders shall:
(a) Furnish to the Company such information regarding
themselves, the Warrant Shares held by them, the intended method of sale or
other disposition of such securities, the identity of and compensation to be
paid to any underwriters proposed to be employed in connection with such sale or
other disposition, and such other information as may reasonably be required to
effect the registration of their Warrant Shares.
(b) Notify the Company, at any time when a prospectus
relating to the Warrant Shares covered by a registration statement is required
to be delivered under the Act, of the happening of any event with respect to
such selling Holder as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing.
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3. Adjustments to Exercise Price and Number of Securities. The
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Exercise Price in effect at any time and the number and kind of securities
purchased upon the exercise of the Representatives' Warrant shall be subject to
adjustment from time to time only upon the happening of the following events:
1.3.1 Stock Dividend, Subdivision and Combination. In case the
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Company shall (i) declare a dividend or make a distribution on its outstanding
shares of Common Stock in shares of Common Stock, (ii) subdivide or reclassify
its outstanding shares of Common Stock into a greater number of shares, or (iii)
combine or reclassify its outstanding shares of Common Stock into a smaller
number of shares, the Exercise Price in effect at the time of the record date
for such dividend or distribution or of the effective date of such subdivision,
combination or reclassification shall be adjusted so that it shall equal the
price determined by multiplying the Exercise Price by a fraction, the
denominator of which shall be the number of shares of Common Stock outstanding
after giving effect to such action, and the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to such action.
Such adjustment shall be made successively whenever any event listed above shall
occur.
1.3.2 Adjustment in Number of Securities. Upon each adjustment of
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the Exercise Price pursuant to the provisions of this Section 11, the number of
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Warrant Shares issuable upon the exercise at the adjusted Exercise Price of each
Representatives' Warrant shall be adjusted to the nearest number of whole shares
of Common Stock by multiplying a number
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equal to the Exercise Price in effect immediately prior to such adjustment by
the number of Warrant Shares issuable upon exercise of the Representatives'
Warrant immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.
1.3.3 Definition of Common Stock. For the purpose of this
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Agreement, the term "Common Stock" shall mean (i) the class of stock designated
as Common Stock in the Articles of Incorporation of the Company as amended as of
the date hereof, or (ii) any other class of stock resulting from successive
changes or reclassifications of such Common Stock consisting solely of changes
in par value, or from par value to no par value, or from no par value to par
value.
1.3.4 Merger or Consolidation. In case of any consolidation of the
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Company with, or merger of the Company into, another corporation (other than a
consolidation or merger which does not result in any reclassification or change
of the outstanding Common Stock), the corporation formed by such consolidation
or merger shall execute and deliver to the Holder a supplemental warrant
agreement providing that the Holder of each Representatives' Warrant then
outstanding or to be outstanding shall have the right thereafter (until the
expiration of such Representatives' Warrant) to receive, upon exercise of such
Representatives' Warrant, the kind and amount of shares of stock and other
securities and property receivable upon such consolidation or merger by a holder
of the number of shares of Common Stock for which such Representatives' Warrant
might have been exercised immediately prior to such consolidation, merger, sale
or transfer. Such supplemental warrant agreement shall provide for adjustments
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which shall be identical to the adjustments provided in Section 11. The above
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provision of this subsection shall similarly apply to successive consolidations
or mergers.
1.3.5 No Adjustment of Exercise Price in Certain Cases. No
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adjustment of the Exercise Price shall be made:
(a) Upon the issuance or sale of the Representatives'
Warrant or the Warrant Shares;
(b) Upon the issuance or sale of Common Stock (or any other
security convertible, exercisable, or exchangeable into shares of Common Stock)
upon the direct or indirect conversion, exercise, or exchange of any options,
rights, warrants, or other securities or indebtedness of the Company outstanding
as of the date of this Agreement or granted pursuant to any stock option plan of
the Company in existence as of the date of this Agreement, pursuant to the terms
thereof; or
(c) If the amount of said adjustment shall be less than two
cents ($.02) per share, provided, however, that in such case any adjustment that
would otherwise be required then to be made shall be carried forward and shall
be made at the time of and together with the next subsequent adjustment which,
together with any adjustment so carried forward, shall amount to at least two
cents ($.02) per Representatives' Warrant.
4. Exchange and Replacement of Representatives' Warrant Certificates.
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Each Representatives' Warrant Certificate is exchangeable, without expense, upon
the surrender
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thereof by the registered Holder at the principal executive office of the
Company for a new Representatives' Warrant Certificate of like tenor and date
representing in the aggregate the right to purchase the same number of Warrant
Shares in such denominations as shall be designated by the Holder thereof at the
time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of any Representatives' Warrant
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it and reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
the Representatives' Warrant, if mutilated, the Company will make and deliver a
new Warrant Certificate of like tenor, in lieu thereof.
5. Elimination of Fractional Interests. The Company shall not be
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required to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Representatives' Warrant, nor shall it be required to
issue scrip or pay cash in lieu of fractional interests, it being the intent of
the parties that all fractional interests shall be eliminated by rounding any
fraction up to the nearest whole number of shares of Common Stock or other
securities, properties or rights.
6. Reservation and Listing of Securities. The Company shall at all
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times reserve and keep available out of its authorized shares of Common Stock,
solely for the purpose of issuance upon the exercise of the Representatives'
Warrant and the Redeemable Warrant, such number of shares of Common Stock or
other securities, properties or rights as shall be issuable
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upon the exercise thereof. Every transfer agent ("Transfer Agent") for the
Common Stock and other securities of the Company issuable upon the exercise of
the Representatives' Warrant will be irrevocably authorized and directed at all
times to reserve such number of authorized shares of Common Stock and other
securities as shall be requisite for such purpose. The Company will keep a copy
of this Agreement on file with every Transfer Agent for the Common Stock and
other securities of the Company issuable upon the exercise of the
Representatives' Warrant. The Company will supply every such Transfer Agent with
duly executed stock and other certificates, as appropriate, for such purpose.
The Company covenants and agrees that, upon exercise of the Representatives'
Warrant and payment of the Exercise Price therefor, all shares of Common Stock
and other securities issuable upon such exercise shall be duly and validly
issued, fully paid, non-assessable and not subject to the preemptive rights of
any stockholder. As long as the Representatives' Warrant shall be outstanding,
the Company shall use its best efforts to cause all shares of Common Stock
issuable upon the exercise of the Representatives' Warrant to be listed (subject
to official notice of issuance) on all securities exchanges on which the Common
Stock issued to the public in connection herewith may then be listed and/or
quoted on Nasdaq SmallCap Market.
7. Notices to Representatives' Warrant Holders. Nothing contained in
-------------------------------------------
this Agreement shall be construed as conferring upon the Holders the right to
vote or to consent or to receive notice as a stockholder in respect of any
meetings of stockholders for the election of directors or any other matter, or
as having any rights whatsoever as a stockholder of the
-22-
Company. If, however, at any time prior to the expiration of the
Representatives' Warrants and their exercise, any of the following events shall
occur:
(a) the Company shall take a record of the holders of its shares
of Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the holders of its Common Stock
any additional shares of capital stock of the Company or securities convertible
into or exchangeable for shares of capital stock of the Company, or any option,
right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall be
proposed; then in any one or more of said events, the Company shall give written
notice of such event at least fifteen (15) days prior to the date fixed as a
record date or the date of closing the transfer books for the determination of
the stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or
-23-
subscription rights, or entitled to vote on such proposed dissolution,
liquidation, winding up or sale. Such notice shall specify such record date or
the date of closing the transfer books, as the case may be. Failure to give such
notice or any defect therein shall not affect the validity of any action taken
in connection with the declaration or payment of any such dividend, or the
issuance of any convertible or exchangeable securities, or subscription rights,
options or warrants, or any proposed dissolution, liquidation, winding up or
sale.
Redeemable Warrants.
-------------------
-24-
The form of the certificate representing the Redeemable Warrants (and
the form of election to purchase shares of Common Stock upon the exercise of the
Redeemable Warrants and the form of assignment printed on the reverse thereof)
shall be substantially as set forth in Exhibit "A" to the Warrant Agreement
dated as of the date hereof by and among the Company, the Representative and
Continental Stock Transfer & Trust Company, as warrant agent (the "Redeemable
Warrant Agreement"). Each Redeemable Warrant issuable upon exercise of the
Representatives' Warrants shall evidence the right to initially purchase a fully
paid and non-assessable share of Common Stock at an initial purchase price of
$____ [150% of the initial public offering price per share of Common Stock] from
the Effective Date of the Registration Statement until 5:30 p.m. New York time
on ______ 2001 [5 years from the Effective Date of the Registration Statement]
at which time the Redeemable Warrants, unless the exercise period has been
extended, shall expire. The exercise price of the Redeemable Warrants and the
number of shares of Common Stock issuable upon the exercise of the Redeemable
Warrants are subject to adjustment, whether or not the Representatives' Warrants
have been exercised and the Redeemable Warrants have been issued, in the manner
and upon the occurrence of the events set forth in Section 8 of the Redeemable
Warrant Agreement, which is hereby incorporated by reference and made a part
hereof as if set forth in its entirety herein. Subject to the provisions of
this Agreement and upon issuance of the Redeemable Warrants underlying the
Representatives' Warrants, each registered holder of such Redeemable Warrant
shall have the right to purchase from the Company (and the Company shall issue
to such registered holders) up to the number of fully paid and non-assessable
shares of Common Stock (subject to adjustment as provided herein
-25-
and in the Redeemable Warrant Agreement), free and clear of all preemptive
rights of stockholders, provided that such registered holder complies with the
terms governing exercise of the Redeemable Warrant set forth in the Redeemable
Warrant Agreement, and pays the applicable exercise price, determined in
accordance with the terms of the Redeemable Warrant Agreement. Upon exercise of
the Redeemable Warrants, the Company shall forthwith issue to the registered
holder of any such Redeemable Warrant in his name or in such name as may be
directed by him, certificates for the number of shares of Common Stock so
purchased. Except as otherwise provided in this Agreement, the Redeemable
Warrants underlying the Representatives' Warrants shall be governed in all
respects by the terms of the Redeemable Warrant Agreement. The Redeemable
Warrants shall be transferable in the manner provided in the Redeemable Warrant
Agreement, and upon any such transfer, a new Redeemable Warrant Certificate
shall be issued promptly to the transferee. The Company covenants to, and agrees
with, the Holder(s) that without the prior written consent of the Holder(s),
which will not be unreasonably withheld, the Redeemable Warrant Agreement will
not be modified, amended, canceled, altered or superseded, and that the Company
will send to each Holder, irrespective of whether or not the Representatives'
Warrants have been exercised, any and all notices required by the Redeemable
Warrant Agreement to be sent to holders of the Redeemable Warrants.
8. Notices. All notices, requests, consents and other communications
-------
hereunder shall be in writing and shall be deemed to have been duly made and
sent when delivered, or mailed by registered or certified mail, return receipt
requested:
-26-
(a) if to the registered Holder of the Representatives' Warrant,
to the address of such Holder as shown on the books of the Company; or
(b) if to the Company, to the address set forth in Section 4
-------
hereof or to such other address as the Company may designate by notice to the
Holders.
9. Supplements; Amendments; Entire Agreement. This Agreement
-----------------------------------------
(including the Underwriting Agreement to the extent portions thereof are
referred to herein) contains the entire understanding between the parties hereto
with respect to the subject matter hereof and may not be modified or amended
except by a writing duly signed by the party against whom enforcement of the
modification or amendment is sought. The Company and the Representative may
from time to time supplement or amend this Agreement without the approval of any
holders of Representatives' Warrant Certificates (other than the Representative)
in order to cure any ambiguity, to correct or supplement any provision contained
herein which may be defective or inconsistent with any provisions herein, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company and the Representative may deem necessary or
-27-
desirable and which the Company and the Representative deem shall not adversely
affect the interests of the Holders of Representatives' Warrant Certificates.
10. Successors. All of the covenants and provisions of this Agreement
----------
shall be binding upon and inure to the benefit of the Company, the Holders and
their respective successors and assigns hereunder.
11. Survival of Representations and Warranties. All statements in any
------------------------------------------
schedule, exhibit or certificate or other instrument delivered by or on behalf
of the parties hereto, or in connection with the transactions contemplated by
this Agreement, shall be deemed to be representations and warranties hereunder.
Notwithstanding any investigations made by or on behalf of the parties to this
Agreement, all representations, warranties and agreements made by the parties to
this Agreement or pursuant hereto shall survive.
12. Governing Law. This Agreement and each Representatives' Warrant
-------------
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of California and for all purposes shall be construed in
accordance with the laws of said State without giving effect to the rules of
said State governing the conflicts of laws.
13. Severability. If any provision of this Agreement shall be held to
------------
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
-28-
14. Captions. The caption headings of the Sections of this Agreement
--------
are for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
15. Benefits of this Agreement. Nothing in this Agreement shall be
--------------------------
construed to give to any person or corporation other than the Company and the
Representative and any other registered Holder(s) of the Representatives'
Warrant Certificates or Warrant Shares any legal or equitable right, remedy or
claim under this Agreement; and this Agreement shall be for the sole and
exclusive benefit of the Company and the Underwriters and any other Holder(s) of
the Representatives' Warrant Certificates or Warrant Shares.
16. Counterparts. This Agreement may be executed in any number of
------------
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
-29-
IN WITNESS OF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
ATTEST: ISONICS CORPORATION
_________________
Secretary Name: __________________
Title: __________________
PRYOR, MCCLENDON, COUNTS & CO., INC.
By:_______________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Chairman
NATIONAL SECURITIES CORPORATION
By:_______________________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Chairman
-30-
EXHIBIT A
[FORM OF REPRESENTATIVES' WARRANT CERTIFICATE]
THE REPRESENTATIVES' WARRANT REPRESENTED BY THIS CERTIFICATE AND THE OTHER
SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR
RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN
OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL
FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE REPRESENTATIVES' WARRANT REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO
HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, _____________ ___, 2001
Representatives' Warrant No. _____
____ Shares of Common Stock and/or ____ Redeemable Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that ________, or registered
assigns, is the registered holder of Warrants to purchase initially, at any
time from _________ ___, 1996 until 5:30 p.m., New York time on ___________ ___,
2001 ("Expiration Date"), up to ____ shares of Common Stock and/or ____
Redeemable Warrants (the "____ shares of Common Stock and/or ____ Redeemable
Warrants"), each Unit consisting of one (1) share of fully-paid and non-
assessable common stock, no par value ("Common Stock") of Isonics Corporation, a
California corporation (the "Company") and one (1) warrant to purchase one (1)
share of Common Stock at an exercise price of $____ of the Company, at the
initial exercise price, subject to adjustment in certain events, of $____ per
Unit [120% of initial offering price per Unit] (the "Exercise Price") upon
surrender of this Representatives' Warrant Certificate and payment of the
Exercise Price at an office or agency of the Company, but subject to the
conditions set forth herein and in the Representatives' Warrant Agreement dated
as of _________ ___, 1996 among the Company, Pryor, McClendon, Counts & Co.,
Inc. and National Securities Corporation (the "Warrant Agreement"). Payment of
the Exercise Price shall be made by certified or official bank check in New York
Clearing House funds payable to the order of the Company.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Representatives' Warrant evidenced hereby,
unless exercised prior thereto, shall thereafter be void.
The Representatives' Warrant evidenced by this Warrant Certificate are
part of a duly authorized issue of Representatives' Warrant issued pursuant to
the Warrant Agreement, which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Company and the holders (the words "holders" or
"holder" meaning the registered holders or registered holder) of the
Representatives' Warrant.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Representatives'
Warrant; provided, however, that the failure of the Company to issue such new
Warrant Certificates shall not in any way change, alter, or otherwise impair,
the rights of the holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Representatives' Warrant shall be issued to the transferee(s) in exchange for
this Warrant Certificate, subject to the limitations provided herein and in the
Warrant Agreement, without any charge except for any tax or other governmental
charge imposed in connection with such transfer.
Upon the exercise of less than all of the Representatives' Warrant
evidenced by this Certificate, the Company shall forthwith issue to the holder
hereof a new Warrant Certificate representing such numbered unexercised
Representatives' Warrant.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
EXH. A-2
This Warrant Certificate does not entitle any holder thereof to any of
the rights of a shareholder of the Company.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of November___, 1996.
ATTEST: ISONICS CORPORATION
_________________
Secretary Name: _____________
Title: _____________
EXH. A-3
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3.11]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ____ shares of Common Stock
and/or ____ Redeemable Warrants and herewith tenders in payment for such
securities a certified or official bank check payable in New York Clearing House
Funds to the order of Isonics Corporation (the "Company") in the amount of
$_____, all in accordance with the terms of Section 3.1 of the Representatives'
Warrant Agreement dated as of ________ __, 1996 among the Company, Pryor,
McClendon, Counts & Co., Inc. and National Securities Corporation. The
undersigned requests that a certificate for such securities be registered in the
name of ___________________________________, whose address is
________________________________ and that such certificate be delivered to
_________________, whose address is __________________________
______________________, and if said number of shares shall not be all the shares
purchasable hereunder, that a new Warrant Certificate for the balance of the
shares purchasable under the within Warrant Certificate be registered in the
name of the undesigned warrant holder or his assignee as below indicated and
delivered to the address stated below.
Dated: ________________
(Signature must conform in all
respects to name of holder as specified on the
face of the Warrant Certificate.)
Address:______________________________________
______________________________________
__________________________________________________
(Insert Social Security or Other Identifying
Number of Holder)
Signature Guaranteed:___________________________________________________________
(Signature must be guaranteed by a bank savings and loan association,
stockbroker, or credit union with membership in an approved signature guaranty
Medallion Program pursuant to Securities Exchange Act Rule 17Ad-15.)
EXH. A-4
[FORM OF ASSIGNMENT]
(TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH HOLDER
DESIRES TO TRANSFER THE WARRANT CERTIFICATE.)
FOR VALUE RECEIVED __________________ here sells, assigns and transfers unto
[NAME OF TRANSFEREE] this Warrant Certificate, together with all right, title
and interest therein, and does hereby irrevocably constitute and appoint
__________________________ Attorney, to transfer the within Warrant Certificate
on the books of the within-named Company, with full power of substitution.
Dated: _________________
Signature:________________________________________
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Certificate.)
Address:__________________________________________
__________________________________________
__________________________________________________
(Insert Social Security or Other Identifying
Number of Holder)
Signature Guaranteed:___________________________________________________________
(Signature must be guaranteed by a bank savings and loan association,
stockbroker, or credit union with membership in an approved signature guaranty
Medallion Program pursuant to Securities Exchange Act Rule 17Ad-15.)
XXX. X-0
