NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND NEITHER
THIS WARRANT NOR SUCH SHARES MAY BE SOLD, ENCUMBERED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR AN
EXEMPTION FROM SUCH REGISTRATION REQUIREMENT, AND, IF AN EXEMPTION SHALL BE
APPLICABLE, THE HOLDER SHALL HAVE DELIVERED AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
Void after 5:00 p.m. Eastern Standard Time, on __________________.
WARRANT TO PURCHASE COMMON STOCK
OF
PALOMAR MEDICAL TECHNOLOGIES, INC.
FOR VALUE RECEIVED, PALOMAR MEDICAL TECHNOLOGIES, INC. (the "Company"),
a Delaware corporation, hereby certifies that
______________________________________________, or its permitted assigns, is
entitled to purchase from the Company, at any time or from time to time
commencing ________________, and prior to 5:00 P.M., Eastern Standard Time, on
________________, a total of
___________________________________________________________(___________) fully
paid and non assessable shares of the Common Stock, par value $.01 per share, of
the Company for an aggregate purchase price of $_______________ (computed on the
basis of $_____ per share). (Hereinafter, (i) said Common Stock, together with
any other equity securities which may be issued by the Company with respect
thereto or in substitution therefor, is referred to as the "Common Stock", (ii)
the shares of the Common Stock purchasable hereunder are referred to as the
"Warrant Shares", (iii) the aggregate purchase price payable hereunder for the
Warrant Shares is referred to as the "Aggregate Warrant Price", (iv) the price
payable hereunder for each of the Warrant Shares is referred to as the "Per
Share Warrant Price", (v) this Warrant, and all warrants hereafter issued in
exchange or substitution for this Warrant are referred to as the "Warrant" and
(vi) the holder of this Warrant is referred to as the "Holder".).
1. Exercise of Warrant. This Warrant may be exercised, in whole at any
time or in part from time to time, commencing ________________, and prior to
5:00 P.M., Eastern Standard Time then current, on ________________, by the
Holder of this Warrant by the surrender of this Warrant (with the subscription
form at the end hereof duly executed) at the address set forth in Subsection 8
(a) hereof, together with proper payment of the Aggregate Warrant Price, or the
proportionate part thereof if this Warrant is exercised in part. Payment for
Warrant Shares shall be made by certified or official bank check payable to the
order of the Company. If this Warrant is exercised in part, this Warrant must be
exercised for a minimum of 1,000 shares of the Common Stock, and the Holder is
entitled to receive a new Warrant covering the number of Warrant Shares in
respect of which this Warrant has not been exercised and setting forth the
13
proportionate part of the Aggregate Warrant Price applicable to such Warrant
Shares. Upon such surrender of this Warrant, the Company will (a) issue a
certificate or certificates in the name of the Holder for the largest number of
whole shares of the Common Stock to which the Holder shall be entitled, and (b)
deliver the proportionate part thereof if this Warrant is exercised in part,
pursuant to the Provisions of the Warrant.
2. Reservation of Warrant Shares. The Company agrees that, prior to the
expiration of this Warrant, the Company will at all times have authorized and in
reserve, and will keep available, solely for issuance or delivery upon the
exercise of this Warrant, the shares of the Common Stock as from time to time
shall be receivable upon the exercise of this Warrant.
3. Fully Paid Stock; Taxes. The Company agrees that the shares of the
Common Stock represented by each and every certificate for Warrant Shares
delivered on the exercise of this Warrant shall, at the time of such delivery,
be validly issued and outstanding, fully paid and non-assessable, and not
subject to preemptive rights, and the Company will take all such actions as may
be necessary to assure that the par value or stated value, if any, per share of
the Common Stock is at all times equal to or less than the then Per Share
Warrant Price. The Company further covenants and agrees that it will pay, when
due and payable, any and all Federal and State stamp, original issue or similar
taxes that may be payable in respect of the issue of any Warrant Share or
certificate therefor.
4. Transfer.
(a) Securities Laws. Neither this Warrant nor the Warrant Shares
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 this Warrant or any of the Warrant
Shares issued, 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 Warrant or Warrant Shares to be sold or
transferred has been registered under the Securities Act of 1933, as amended,
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 Warrant or Warrant Stock to be sold or transferred.
(b) Conditions to Transfer. Prior to any such proposed transfer,
and as 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
14
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 by the transferee to
indemnify the Company to the same extent as set forth in the next succeeding
paragraph.
(c) Indemnity. The Holder acknowledges that the Holder
understands the meaning and legal consequences of this Section 4, 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 attorneys' fees and costs incurred in enforcing this
indemnity provision) due to or arising out of (a) the inaccuracy of any
representation or the breach of any warranty of the Holder contained in, or any
other breach, (b) any transfer of the Warrant or any of the Warrant Shares 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, (c)
any transfer of the Warrant or any of the Warrant Shares not in accordance with
this Warrant or (d) 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.
(d) Transfer. Except as restricted hereby, this Warrant and the
Warrant Shares issued may be transferred by the Holder in whole or in part at
any time or from time to time. Upon surrender of this Warrant to the Company or
at the office of its stock transfer agent, if any, with assignment documentation
duly executed and funds sufficient to pay any transfer tax, and upon compliance
with the foregoing provisions, the Company shall, without charge, execute and
deliver a new Warrant in the name of the assignee named in such instrument of
assignment, and this Warrant shall promptly be canceled. Any assignment,
transfer, pledge, hypothecation or other disposition of this Warrant attempted
contrary to the provisions of this Warrant, or any levy of execution, attachment
or other process attempted upon the Warrant, shall be null and void and without
effect.
(e) Legend and Stop Transfer Orders. Unless the Warrant Shares
have been registered under the Securities Act, upon exercise of any part of the
Warrant and the issuance of any of the shares of Warrant Shares, the Company
shall instruct its transfer agent to enter stop transfer orders with respect to
such shares, and all certificates representing Warrant Shares shall bear on the
face thereof substantially the following legend, insofar as is consistent with
Delaware 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."
(f) Lockup Agreements with Underwriters. In the event of a public
offering of the Company's securities, the Holder agrees to enter into an
agreement with the Underwriter or Underwriter's Representative for such offering
restricting the sale, transfer or other disposition of this Warrant or the
Warrant Shares for a period of six months following the public offering.
15
5. "Piggy-Back" Registrations. The Company represents that it will
register the shares underlying the Warrants upon demand six months after
issuance or at any time earlier if the Company files a Form S-3 under the
Securities Act. If at any time the Company shall determine to register any of
its securities under the Securities Act, other than on Form S-8 or Form S-4 or
their then equivalents, it shall send to each Holder of the Common Stock or
Warrant Shares (the "Registrable Shares"), including each Holder who has the
right to acquire Registrable Shares, written notice of such determination and,
if within 10 days after receipt of such notice, such Holder shall so request in
writing, the Company shall use its best efforts to include in such registration
statement all or any part of the Registrable Shares such Holder requests to be
registered therein, except that if, in connection with any offering involving an
underwriting of Common Stock to be issued by the Company, the managing
underwriter shall impose a limitation on the number of shares of such Common
Stock which may be included in any such registration statement because, in its
judgment, such limitation is necessary to effect an orderly public distribution,
and such limitation is imposed pro rata with respect to all securities whose
holders have a contractual, incidental ("piggy-back") right to include such
securities in the registration statement and as to which inclusion has been
requested pursuant to such right, then the Company shall be obligated to include
in such registration statement only such limited portion (which may be none) of
the Registrable Shares with respect to which such Holder has requested inclusion
hereunder.
6. Loss, etc. of Warrant. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and of
indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed,
and upon surrender and cancellation of the Warrant, if mutilated, the Company
shall execute and deliver to the Holder a new Warrant of like date, tenor and
denomination.
7. Warrant Holder Not Shareholder. Except as otherwise provided herein,
this Warrant does not confer upon the Holder any right to vote or to consent to
or receive notice as a shareholder of the Company, as such, in respect of any
matters whatsoever, or any other rights or liabilities as a shareholder, prior
to the exercise hereof.
8. Communication. No notice or other communication under this Warrant
shall be effective unless the same is in writing and is mailed by first-class
mail, postage prepaid, addressed to:
(a) the Company at Attn.: Finance Dept., 00 Xxxxxx Xxxx Xxxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000, or such other address as the Company has
designated in writing to the Holder, or
(b) the Holder at _____________________________ or such other
address as the Holder has designated in writing to the Company.
9. Headings. The headings of this Warrant have been inserted as a matter
of convenience and shall not affect the construction hereof.
16
10. Applicable Law. This Warrant shall be governed by and construed in
accordance with the law of the State of Delaware without giving effect to the
principles of conflicts of law thereof.
IN WITNESS WHEREOF, PALOMAR MEDICAL TECHNOLOGIES, INC. has caused this
Warrant to be signed by its President and CEO and its corporate seal to be
hereunto affixed this ____ day of _____________, 1997.
PALOMAR MEDICAL TECHNOLOGIES, INC.
By: ______________________________
Xxxxx X. Xxxxxxx
President and CEO
[Corporate Seal]
17
SUBSCRIPTION
The undersigned, _______________________________________________,
pursuant to the provisions of the foregoing Warrant, hereby agrees to subscribe
for the purchase of ___________ shares of the Common Stock of PALOMAR MEDICAL
TECHNOLOGIES, INC. covered by said Warrant, and makes payment therefor in full
at the price per share provided by said Warrant.
Dated: Signature:
Address:
Soc. Sec. # or Fed ID #:
ASSIGNMENT
FOR VALUE RECEIVED ____________________________________ hereby sells,
assigns and transfers unto ____________________________________ the foregoing
Warrant and all rights evidenced thereby, and does irrevocably constitute and
appoint ________________________________________, attorney, to transfer said
Warrant on the books of PALOMAR MEDICAL TECHNOLOGIES, INC.
Signature: Assignee
Dated:
Address: Address:
SS/Fed ID #: SS/Fed ID #:
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED ________________________________________ hereby assigns and
transfers unto ____________________________________________ the right to
purchase ___________ shares of the Common Stock of PALOMAR MEDICAL TECHNOLOGIES,
INC. by the foregoing Warrant, and a proportionate part of said Warrant and the
rights evidenced hereby, and does irrevocably constitute and appoint
__________________________________________, attorney, to transfer that part of
said Warrant on the books of PALOMAR MEDICAL TECHNOLOGIES, INC.
Signature: Assignee
Dated:
Address: Address:
SS/Fed ID #: SS/Fed ID #:
