Exhibit 10.33
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE
SECURITIES LAW, AND NO INTEREST IN IT MAY BE OFFERED,
SOLD, DISTRIBUTED, ASSIGNED, PLEDGED OR
OTHERWISE TRANSFERRED ABSENT SUCH REGISTRATION
(OR THE AVAILABILITY OF AN EXEMPTION THEREFROM) AND
COMPLIANCE WITH THE OTHER CONDITIONS OF THIS WARRANT
--------------------------------
PURCHASE WARRANT CERTIFICATE
Issued to:
XXXXX XXXXXXXX & XXXXXXX
Exercisable to Purchase
90,000 Shares of Common Stock
of
ATHENA MEDICAL CORPORATION
Void after May 1, 1999
This Warrant Certificate certifies that, for value received and subject to the
terms and conditions set forth below, the Warrantholder is entitled to purchase,
and the Company agrees to sell and issue to the Warrantholder, at any time on or
before May 1, 1999, up to 90,000 Shares at the Exercise Price.
This Warrant supersedes the Warrant Certificate of Xxxx Xxxxxx dated as of March
18, 1994, as amended by letter agreement dated March 16, 1995.
This Warrant is issued subject to all the following terms and conditions:
1. DEFINITIONS OF CERTAIN TERMS: Except as may be otherwise clearly required
by the context:
(a) COMMON STOCK means the $0.01 par value common stock of the Company.
(b) COMPANY means ATHENA Medical Corporation, a Nevada corporation.
(c) EXERCISE PRICE means the price at which the Warrantholder may purchase
one Share (or Securities obtainable in lieu of one Share) upon
exercise of this Warrant as determined from time to time pursuant to
the provisions hereof. The Exercise Price is $1.00 per Share,
including Contingent Shares as provided in Section 2 below.
(d) SECURITIES means the Shares obtained or obtainable upon exercise of
this Warrant or securities obtained or obtainable upon exercise,
exchange or conversion of such Shares.
(e) SHARE shall mean one share of Common Stock for which this Warrant is
initially exercisable.
(f) WARRANT CERTIFICATE means this certificate evidencing the Warrant.
(g) WARRANTHOLDER means the record holder of the Warrant or Securities.
The Warrantholder is XXXXX XXXXXXXX & XXXXXXX.
(h) WARRANT means the warrant evidenced by this certificate or any
certificate obtained upon permitted transfer or partial exercise of
the Warrant evidenced by any such certificate.
2. CONTINGENT SHARES. The Shares the subject of this Warrant shall be
increased by 10,000 (to a total of 100,000 Shares) if and only if the
closing bid price of the Company's Common Stock in the New York over-the-
counter market (as reported by the National Association of Securities
Dealers, Inc.), or the closing selling price if the Company's Common Stock
becomes traded on the NASDAQ Small Cap Market or other exchange, is not
$8.00 or more per share for five consecutive trading days at any time
during the 12-month period beginning August 15, 1995. If the Warrantholder
becomes so entitled to exercise this Warrant as to the additional 10,000
Shares (the "Contingent Shares"), the Company shall deliver a written
acknowledgment to the Warrantholder, which acknowledgement shall be
attached to this Warrant Certificate. Upon the effective date of such
acknowledgment (August 15, 1996), all terms, conditions, representations
and restrictions applicable to the original Shares shall apply to the
Contingent Shares. Creation of rights to acquire the Contingent Shares
shall not extend the term of this Warrant.
3. EXERCISE OF WARRANT. Subject to compliance with the other conditions set
forth herein, all or any part of this Warrant may be exercised at any time
on or before 5 p.m. Pacific Time on May 1, 1999, either as provided in
Section 5 below, or by surrendering this Warrant Certificate, together with
appropriate instructions, duly executed by the Warrantholder or by the
Warrantholder's duly authorized attorney, at the office of the Company,
00000 XX Xxxxxx, Xxxxx X-0, Xxxxxxxx, Xxxxxx 00000, or at such other office
or agency as the Company may designate. Upon receipt of notice of
exercise, the Company shall as promptly as practicable instruct its
transfer agent to prepare certificates for the Securities to be received by
the Warrantholder upon completion of the
Page 2 - Warrant Certificate
exercise. When such certificates are prepared, the Company shall notify
the Warrantholder and deliver such certificates to the Warrantholder or as
per the Warrantholder's instructions immediately upon payment in full by
the Warrantholder, in lawful money of the United States, of the Exercise
Price payable with respect to the Securities being purchased.
The Securities to be obtained on exercise of this Warrant will be deemed to
have been issued, and the Warrantholder will be deemed to have become a
holder of record of those Securities, as of the date of full payment of the
Exercise Price.
If fewer than all the Securities purchasable under this Warrant are
purchased, the Company will, upon such partial exercise, execute and
deliver to the Warrantholder a new Warrant Certificate (dated the date
hereof), in form and tenor similar to this Warrant Certificate, evidencing
that portion of this Warrant not exercised.
4. REGISTRATION RIGHTS.
(a) Subject to Section 4(b) below, the Company shall file a registration
statement with the Securities and Exchange Commission within 90 days
of the date of this Warrant covering the sale of Shares that may be
purchased by the Warrantholder under this Warrant. Thereafter, the
Company shall take all appropriate and reasonable action to cause such
registration statement to become effective. The registration
statement may include Common Stock or rights thereto held by other
persons. The registration statement will not constitute an
underwritten public offering.
(b) The Company's obligation under Section 4(a) above shall be subject to
the following conditions: (i) the completion by the Company's
securities counsel of its due diligence investigation of the Company;
(ii) the resolution by the Company of any outstanding issues with the
Securities and Exchange Commission relating to the recent withdrawal
of the Company's S-2 Registration Statement or to the Company's
compliance with all aspects of the Securities Act of 1933, as amended
(the "1933 Act"), or the Securities Exchange Act of 1934, as amended
(the "1934 Act"); and (iii) the Warrantholder shall have entered into
a Registration Rights Agreement with terms reasonably satisfactory to
the Warrantholder and the Company that contains the following
provisions:
(1) The Warrantholder shall agree that the Company shall be required
to keep the registration statement effective for at least an 18-month
period following its effective date, and that the 18-month period will
be increased to the extent that the Warrantholder has been unable to
sell Shares during the effective period through no fault of the
Warrantholder, so that the Warrantholder has an aggregate effective
selling period of at least 220 trading days during which the Shares
are registered;
(2) The Warrantholder shall agree that, during the period that the
registration statement is effective, the Warrantholder shall sell
Shares only during a 60-day period beginning two days after the filing
by the Company of each Form 10-Q (or 10-QSB) or Form 10-K (or 10-KSB),
as applicable, and in addition that the Warrantholder shall not sell
in any single trading day more than: (i) 1% of the average daily
reported volume of trading of the Company's shares for the four
preceding calendar weeks; or (ii) 1,000 Shares, whichever is greater;
Page 3 - Warrant Certificate
(3) If the Company's prospectus is not in compliance with the 1933
Act at any time while the registration statement is effective, the
Company shall have an obligation to take reasonably prompt action to
update such prospectus to comply with such Act and the Warrantholder
shall not conduct any trading until such prospectus is updated;
(4) The Registration Rights Agreement shall contain standard
indemnification language for both the Company and the Warrantholder;
and
(5) The Warrantholder and the Company shall agree to such other
reasonable covenants, conditions and representations as will ensure
compliance with the 1933 Act and the 1934 Act.
The Registration Rights Agreement will be prepared by the Company's counsel
as soon as practicable after execution of this Warrant.
5. SPECIAL ESCROW ARRANGEMENT. In the event the Warrantholder desires to
exercise all or a part of this Warrant during the time that the Shares are
the subject of an effective registration statement as set forth in Section
4 above, the Warrantholder may establish an escrow arrangement with
PaineWebber (or other registered broker/dealer mutually satisfactory to the
Warrantholder and the Company). The terms of the escrow shall provide
that:
(a) Upon receipt of a notice of intent to exercise in accordance with
Section 3 above, the Company shall within five business days deliver
into such escrow one or more certificates issued in the name of
PaineWebber and representing the number of Shares the subject of the
notice of intent to exercise. Delivery of such Shares and the
denominations of such certificates shall be handled in a fashion to
accommodate, so far as is reasonably practicable, the selling
limitations and restrictions set forth in Section 4 above.
(b) Within five trading days after receipt of the certificate(s) from the
Company, PaineWebber shall begin selling the Shares represented by the
certificate(s), but only if the selling price for the Shares equals or
exceeds the aggregate Exercise Price for the Shares plus PaineWebber's
brokerage and other fees.
(c) PaineWebber shall immediately after the sale by it of any Shares
deliver to the Company, by PaineWebber's check payable to the Company,
the aggregate Exercise Price of the Shares purchased. The remainder
of the sales proceeds, less PaineWebber's brokerage and any other
fees, may be remitted to the Warrantholder.
(d) PaineWebber shall immediately refrain from making any further sales of
the Shares if PaineWebber receives a facsimile notice from either the
Company or its attorneys that the Company is concerned that such sale
would not be made in compliance with federal or state securities laws.
The Company shall have no liability to the Warrantholder for any
trading losses the Warrantholder may incur while the stop transfer
order is in effect if the Company made such order in good faith and
regardless of whether such sale would have been made in compliance
with such laws.
(e) The foregoing terms and conditions may be supplemented by the parties
to accommodate any reasonable restriction or additional terms that may
be required by PaineWebber or the Company's transfer agent.
Page 4 - Warrant Certificate
(f) All other terms and conditions of this Warrant, including the
requirements of Section 3 not inconsistent with this Section 5, shall
remain in full force and effect.
6. MERGER OR SALE. If the Company proposes to merge with or into another
company (other than for the sole purpose of reincorporating the Company in
another jurisdiction), to otherwise reorganize, consolidate, reclassify or
make any other change in the Company's capital structure, to partially or
completely liquidate, or to sell all or substantially all the Company's
assets, the Company will give at least 30 days' prior written notice
thereof to the Warrantholder.
7. ADJUSTMENTS IN CERTAIN EVENTS. The number, class and price of Securities
for which this Warrant may be exercised are subject to adjustment from time
to time upon the occurrence of certain events as follows:
(a) If the outstanding shares of the Company's Common Stock are divided
into a greater number of shares, the number of shares of Common Stock
for which this Warrant is then exercisable will be proportionately
increased and the Exercise Price will be proportionately reduced.
Conversely, if the outstanding shares of the Company's Common Stock
are combined into a smaller number of shares, the number of shares of
Common Stock for which this Warrant is then exercisable will be
proportionately reduced and the Exercise Price will be proportionately
increased.
(b) If holders of the Company's outstanding shares of Common Stock
receive, or (on or after the record date fixed for determination of
eligible shareholders) become entitled to receive, without payment or
other consideration therefor, other or additional stock of the Company
by way of dividend, then the Warrantholder will, upon exercise of this
Warrant, be entitled to receive, without payment of additional
consideration therefor, the amount of such other or additional Common
Stock of the Company which the Warrantholder would hold on the date of
such exercise had the Warrantholder been the record holder of such
exercised Common Stock on the date of receipt or entitlement to
receipt of the stock dividend, giving effect to any adjustments prior
to exercise as required by Section 7(a).
(c) When any adjustment is required to be made in the number of shares of
Common Stock purchasable upon exercise of this Warrant, the Company
will promptly determine the new number of such shares purchasable upon
exercise of this Warrant, and: (i) prepare and retain on file a
statement describing in reasonable detail the method used in arriving
at the new number of such shares; and (ii) cause a copy of such
statement to be mailed to the Warrantholder within 30 days after the
date of the event giving rise to the adjustment.
(d) No fractional shares of Common Stock or other Securities will be
issued in connection with exercise of this Warrant or in connection
with any adjustment pursuant to this Section 7. The number of full
shares issuable shall be determined by the Board of Directors of the
Company or by the terms of any assumption or substitution documents,
and any such determination shall be binding and conclusive.
8. RESERVATION OF SHARES. The Company agrees that the number of shares of
Common Stock or other Securities sufficient to provide for exercise of this
Warrant upon the basis set forth above will at all times during the term of
this Warrant be reserved for exercise.
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9. NO RIGHTS AS A SHAREHOLDER. Except as otherwise provided herein, the
Warrantholder will not, by virtue of ownership of this Warrant, be entitled
to any rights of a shareholder of the Company.
10. TRANSFER OF WARRANT. This is not a bearer warrant, and it may not be sold,
assigned, encumbered or otherwise transferred (except by will or the laws
of intestacy) without the prior written consent of the Company and
compliance with applicable securities laws in accordance with Section 11.
11. COMPLIANCE WITH SECURITIES LAWS. The Warrantholder represents,
acknowledges and agrees that:
(a) This Warrant, and the Securities if the Warrant is exercised, are
purchased only for investment, for the Warrantholder's own account,
and without any present intention to sell or distribute this Warrant
or the Securities. The Warrantholder further acknowledges that the
Securities will not be issued pursuant to any exercise of this Warrant
unless the exercise and the issuance and delivery of such Securities
shall comply with all relevant provisions of law, including without
limitation the 1933 Act, and other federal and state securities laws
and regulations, and the requirements of any stock exchange upon which
the Securities may then be listed.
(b) This Warrant and the Securities have not been registered under the
1933 Act and accordingly will not be transferrable except as permitted
under an exemption contained in the 1933 Act, or upon satisfaction of
the registration and prospectus delivery requirements of the 1933 Act.
Therefore, the Securities (and this Warrant, unless earlier
terminated) must be held indefinitely unless subsequently registered
under the 1933 Act or an exemption from such registration is
available. The Warrantholder understands that the certificate(s)
evidencing the Securities will be imprinted with a legend which will
prohibit the transfer thereof unless they are registered or unless the
Company receives an opinion of counsel reasonably satisfactory to the
Company that such registration is not required. Notwithstanding the
foregoing, the Shares covered by this Warrant will be registered
within 90 days of the date of this Warrant as provided in Section 4
above.
12. MISCELLANEOUS. No amendment, waiver, termination or other change to this
Warrant or any term of it will be effective unless set forth in a writing
signed by the party sought to be bound. The captions heading the Sections
of this Warrant are inserted for convenience of reference only, and are not
to be used to define, limit, construe or describe the scope or intent of
any term, provision or Section of this Warrant. Any notices required or
permitted under this Warrant must be in writing and will be deemed to have
been given when personally delivered to a party or 48 hours after deposit
in the United States Mail, first class postage prepaid by both first class
and certified mail, return receipt requested, or 48 hours after delivery to
a recognized national overnight carrier, with overnight shipping charges
paid, and addressed to such party as follows:
If to the Company: ATHENA Medical Corporation
00000 XX Xxxxxx Xxx., Xxxxx X-0
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, President
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If to the Warrantholder: Xxxxx Xxxxxxxx & Xxxxxxx
0000 XX Xxxxx Xxx., Xxx. 0000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
or such other address as a party may specify by a notice in writing, given
in the same manner.
13. APPLICABLE LAW. This Warrant will be governed by and construed in
accordance with the laws of the state of Oregon, without reference to
conflict of laws principles thereunder. All disputes relating to this
Warrant shall be tried before federal or state courts located in Multnomah
County, Oregon, to the exclusion of all other courts that might have
jurisdiction.
DATED September 29, 1995.
ATHENA MEDICAL CORPORATION
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxx, President
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