THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED OR
SOLD IN CONTRAVENTION OF THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE LAWS OR THE RESTRICTIONS CONTAINED IN THIS WARRANT.
WARRANT TO SUBSCRIBE FOR AND PURCHASE
2,500 SHARES OF COMMON STOCK
MEDICAL ACQUISITION CORP.
THIS WARRANT CERTIFIES THAT, for value received, _________________, or
its registered assigns, is entitled to subscribe for and purchase from Medical
Acquisition Corp., a Florida corporation (the "Company"), during the period
commencing one (1) year from the effective date of the registration statement to
be filed by the Company in connection with an initial public offering of the
Company's securities ("Effective Date") and expiring on the six-year anniversary
of the Effective Date (the "Expiration Date"), two thousand five hundred (2,500)
fully paid and non-assessable shares of the Common Stock, par value $.01 per
share (the "Common Stock"), of the Company.
. METHOD OF EXERCISE; PAYMENT; PRICE; ISSUANCE OF NEW WARRANT; TRANSFER
AND EXCHANGE. This Warrant (the "Warrant") may be exercised by the holder
hereof, during the period set forth above, in whole or in part (but not as to a
fractional shares of Common Stock), by the surrender of this Warrant, together
with the exercise form attached hereto as EXHIBIT A (the "Exercise Form") duly
completed and signed, at the principal office of the Company, and by payment to
the Company by certified or cashier's check of the Warrant Price. For the
purposes of this Warrant, the term "Warrant Price" shall mean $6.00 per share of
Common Stock, or such other price as shall result from the adjustments specified
in Section 2 hereof. In lieu of exercising this Warrant by delivery of certified
or cashier's check, the holder hereof may make a valid Warrant exercise by
electing to receive shares of Common Stock equal to the value of this Warrant
(or the portion thereof being canceled) by surrendering this Warrant at the
principal office of the Company together with the Exercise Form (a "Net
Exercise"), in which event the Company shall transfer to the holder hereof a
number of shares of Common Stock computed using the following formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Common Stock to be
issued to the holder hereof. A Net Exercise
can only be achieved where X is a positive
number.
Y = the number of shares of Common Stock
purchasable by the holder hereof under this
Warrant the rights to which are surrendered
pursuant to the Net Exercise.
A = the fair market value of one share of
Common Stock (as determined by the average
bid and ask price, or closing price, as
appropriate, per share of Common Stock as
quoted on Nasdaq, any other national
exchange upon which the Company's Common
Stock is quoted, the Automated Quotation
System of the National Quotations Bureau,
Incorporated or an equivalent, generally
accepted, reporting service, or if the
shares of Common Stock are not publicly
traded, a price determined in good faith by
the Board of Directors of the Company).
B = the Warrant Price (as adjusted to the date
of such calculation).
The Company agrees that the shares so purchased shall be deemed to be issued to
the holder hereof as the record owner of such shares as of the close of business
on the date on which this Warrant shall have
been surrendered and payment for such shares as aforesaid shall have been made
or a Net Exercise shall have occurred. In the event of any exercise of this
Warrant, certificates for the shares of Common Stock so purchased shall be
delivered to the holder hereof within a reasonable time after this Warrant shall
have been so exercised. Unless this Warrant has expired, a new warrant
representing the right to purchase the number of shares of Common Stock, if any,
with respect to which this Warrant shall not then have been exercised, shall
also be issued to the holder hereof at such time.
The Warrant shall be transferable only on the books of the Company
maintained at its principal office upon delivery thereof by the holder or by its
duly authorized attorney or representative, or accompanied by proper evidence of
succession, assignment or authority to transfer, together with the form of the
assignment, attached hereto as EXHIBIT B (the "Assignment Form") duly completed
and signed.
1. STOCK FULLY PAID; RESERVATION OF SHARES. The Company covenants and
agrees that all shares of Common Stock shall, upon issuance pursuant to the
exercise of this Warrant and payment, as the case may be, of the Warrant Price
be fully paid and non-assessable and free from all liens and encumbrances with
respect to the issuance thereof. The Company further covenants and agrees that
during the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, for the purpose of the issuance upon
exercise of this Warrant, at least the maximum number of shares of Common Stock
as are issuable upon the exercise of this Warrant.
2. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES OF COMMON STOCK.
The number and kind of securities purchasable upon the exercise of this Warrant
and the Warrant Price shall be subject to adjustment from time to time as
follows:
(a) If the Company shall (i) subdivide its outstanding shares
of Common Stock, (ii) combine its outstanding shares of Common Stock into a
smaller number of shares, (iii) issue a stock dividend, or (iv) issue by
reclassification of its shares of Common Stock any shares or other securities of
the Company, then, in each such event, the number of shares of Common Stock
purchasable upon exercise of this Warrant immediately prior thereto, shall be
adjusted so that the holder of this Warrant shall be entitled to receive the
kind and number of shares of Common Stock or other securities of the Company
which it would have owned or have been entitled to receive after the occurrence
of any of the events described above, had such Warrant been exercised
immediately prior to the occurrence of such event (or any record date with
respect thereto). Such adjustment shall be made whenever any of the events
listed above shall occur. An adjustment made pursuant to this paragraph (a)
shall become effective immediately after the effective date of the event
retroactive to the record date, if any, for such event.
(b) If the Company sells its shares of Common Stock for less
than $6.00 per share in an initial public offering or if the effective exercise,
exchange or conversion price in derivative securities offered in such offering
is less than $6.00 per share, whether paid for in cash or in kind, the Warrant
Price shall be appropriately decreased to an amount equal to the price at which
the shares of Common Stock were issued in such initial public offering. An
adjustment made pursuant to this paragraph (b) shall become effective
immediately after the effective date of the Company's initial public offering.
(c) No adjustment in the number of shares of Common Stock
purchasable under this Warrant shall be required unless the adjustment would
require an increase or decrease of at least one percent in the number of shares
of Common Stock purchasable upon the exercise of this Warrant. Any adjustments
which by reason of this paragraph (c) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 2 shall be made to the nearest one hundredth of
a share or to the nearest cent, as the case may be.
(d) Unless otherwise provided, whenever the number of shares
of Common Stock purchasable upon the exercise of this Warrant is adjusted, the
Warrant Price per share of Common Stock payable upon exercise of each Warrant
shall be adjusted by multiplying such Warrant Price immediately
2
prior to such adjustment by a fraction, the numerator of which shall be the
number of shares of Common Stock purchasable upon the exercise of each Warrant
immediately prior to such adjustment, and the denominator of which shall be the
number of shares of Common Stock purchasable immediately after such adjustment.
(e) Whenever the number of shares of Common Stock purchasable
upon the exercise of this Warrant or the Warrant Price of such shares of Common
Stock is adjusted, the Company shall promptly mail by first class mail, postage
prepaid, to the holder of this Warrant notice of such adjustment or adjustments,
together with a certificate setting forth the number of shares of Common Stock
purchasable upon the exercise of this Warrant and the Warrant Price of the
shares of Common Stock after the adjustment, a brief statement of the facts
requiring such an adjustment, and the computation by which such adjustment was
made.
(f) For the purpose of this Section 2, the term "shares of
Common Stock" means the Common Stock of the Company of the class authorized at
the date of this Warrant and stock of any other class into which such presently
authorized shares of Common Stock may be changed and any other shares of stock
of the Company which do not have priority in the payment of dividends or upon
liquidation over any other class of stock. In the event that at any time, as a
result of an adjustment made pursuant to this Section 2, the holders of this
Warrant become entitled to purchase any shares of Common Stock or other
securities of the Company other than shares of Common Stock, thereafter the
number of such other shares or other securities so purchasable upon exercise of
this Warrant and the Warrant Price of such shares or other securities shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the shares contained
in this Section 2 and the provisions of this Section 2 and all other applicable
sections of this Warrant shall apply on like terms to any such other shares or
securities.
(g) Except as provided in paragraphs (a) through (f), no
adjustment for any dividends, or any distribution or sale of securities, shall
be made during the term of this Warrant or upon the exercise of this Warrant.
(h) In case of any capital reorganization, or any
reclassification of the shares of Common Stock (other than a reclassification
outlined by paragraph (a)(iii) above) of the Company, or in case of the
consolidation or merger of the Company with or into any other corporation or the
sale, lease, conveyance or other disposition of all or substantially all of the
properties and assets of the Company to any other corporation, the Company or
such successor or purchasing corporation, as the case may be, shall execute with
the holder of this Warrant an agreement to the effect that this Warrant shall,
after such capital reorganization, reclassification, consolidation, merger or
sale, lease, conveyance or other disposition, be exercisable into the kind and
amount of shares of stock or other securities or property (including cash) to
which the holder of the number of shares of Common Stock deliverable
(immediately prior to the happening of such capital reorganization,
reclassification, consolidation, merger, sale, lease, conveyance or other
disposition) upon exercise of a Warrant would have been entitled upon the
happening of such event. The Company shall mail by first class mail, postage
prepaid, to the holder of this Warrant a notice of any event requiring such
agreement at least 30 days prior to the effective date of such event. Such
agreement shall provide for all appropriate adjustments, which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section 2. The provisions of this paragraph (h) shall also apply to successive
reorganizations, reclassifications, consolidations, mergers, sales, leases,
conveyances and other dispositions.
(i) Irrespective of any adjustments in the Warrant Price or
the number or kind of shares or other securities purchasable upon the exercise
of this Warrant, the Warrant theretofore or thereafter issued may continue to
express the same price and number and kind of shares of Common Stock as are
stated in this Warrant.
3
(j) The Company shall not be required to issue fractional
shares of Common Stock on the exercise of Warrants. If any fraction of a share
would, except for the provisions of this Section 2, be issuable on the exercise
of this Warrant (or specified portion thereof), the Company shall pay an amount
in cash equal to the current market price per share of Common Stock, multiplied
by such fraction. For the purpose of this Section 2, the current or closing
market price per share of Common Stock at any date shall be deemed to be the
average of the daily closing prices for the 45 consecutive trading days,
commencing 60 days before the date of computation. The closing price for each
day shall be (i) if the shares of Common Stock are listed or admitted to trading
on a principal national securities exchange or the National Market System of
NASDAQ, the last reported sales price on the principal national securities
exchange on which the shares of Common stock are listed or admitted to trading
or on the National Market System of NASDAQ, (ii) if the shares of Common Stock
are not listed or admitted to trading on any such exchange, the average of the
highest bid and lowest asked prices, as reported on the Automated Quotation
System of the National Quotations Bureau, Incorporated or an equivalent,
generally accepted reporting service, or (iii) if the shares of Common Stock are
not publicly traded, a price determined in good faith by the Board of Directors
of the Company.
3. REGISTRATION RIGHTS. The shares of Common Stock underlying this
Warrant shall be entitled to certain registration rights upon the terms, and
subject to the conditions, of the Registration Rights Agreement of even date
herewith between the Holder of this Warrant and the Company.
4. NO SHAREHOLDER RIGHTS. This Warrant shall not entitle the holder
hereof to any voting rights or other rights as a shareholder of the Company.
5. GENDER AND NUMBER. As used herein, the use of any of the masculine,
feminine, or neuter gender and the use of singular or plural numbers shall
include any of all of the other, wherever and whenever appropriate in the
context.
6. NOTICES. Except as otherwise provided herein, any notice pursuant to
this Warrant by the Company or any Holder of the Warrant shall be in writing and
shall be deemed to have been duly given when personally delivered or five days
after such notice is mailed by certified mail, return receipt requested, postage
prepaid (a) if to the Company, to Medical Acquisition Corp., 000 X. Xxxxxxxx
Xxxx., Xxxxx, Xxxxxxx 00000, Suite 3000, Attention: Xxx X. Xxxx, and (b) if to
the Holder of this Warrant, to such person at his address listed on the
Company's books and records, or to such other address as it may be changed from
time to time on the books of the Company by written notice. Each party hereto
may from time to time change the address to which notices to it are to be
delivered or mailed hereunder by notice in writing to the other party.
7. BENEFITS. Nothing in the Warrant shall be construed to give to any
person or corporation other than the Company and the holder of this Warrant any
legal or equitable right, remedy, or claim hereunder; but this Warrant shall be
for the sole and exclusive benefit of the Company and the holder of this
Warrant.
8. INVESTMENT. The Holder hereof covenants and agrees that this Warrant
has been taken for investment and for its own account and not with a view
towards resale or distribution within the meaning of the Securities Act of 1933,
as amended (the "Securities Act"). Furthermore, such Holder acknowledges that
the certificate(s) representing the shares of Common Stock issuable upon
exercise of this Warrant will bear an appropriate legend to this effect and that
such shares will be "restricted securities", as defined under Rule 144
promulgated under the Securities Act. The Holder of this Warrant, by acceptance
hereof, agrees to give written notice to the Company before exercising or
transferring this Warrant or any part hereof or transferring any Common Stock
issuable or issued upon the exercise hereof, of such Holder's intention to do
so, describing briefly the manner of any proposed transfer of this Warrant or
such Holder's intention as to the disposition to be made of shares of Common
Stock issued upon the exercise hereof. Promptly upon receiving such written
notice, the Company shall present copies thereof to its counsel. If in the
opinion of such counsel the proposed transfer, or exercise and disposition
4
of this Warrant or any part hereof, or disposition of shares of Common Stock may
be effected without registration or qualification (under any Federal or State
law) of this Warrant or the shares of Common Stock issuable or issued on the
exercise hereof, the Company, as promptly as practicable, shall notify such
Holder of such opinion, whereupon such Holder shall be entitled to transfer this
Warrant or any part hereof, or to exercise this Warrant or any part hereof in
accordance with its terms and/or dispose of the shares received upon such
exercise or to dispose of shares of Common Stock received upon the previous
exercise of this Warrant, all in accordance with the terms of the notice
delivered by such Holder to the Company, provided that an appropriate legend may
be endorsed on this Warrant or the certificates for such shares respecting
restrictions upon transfer thereof necessary or advisable in the opinion of
counsel to the Company to prevent further transfers which would be in violation
of Section 5 of the Securities Act.
9. EXCHANGE. This Warrant is exchangeable, upon the surrender hereof by
the Holder hereof at the principal office of the Company, for new Warrants of
like tenor representing in the aggregate the right to subscribe for and purchase
the number of shares which may be subscribed for and purchased hereunder, each
of such new Warrants to represent the right to subscribe for and purchase such
number of shares as shall be designated by said Holder hereof at the time of
such surrender.
10. GOVERNING LAW. Except as otherwise expressly provided herein, this
Warrant shall be governed as to validity, interpretation, construction, effect
and in all other respects by the internal laws of the State of Florida. The
Company (i) agrees that any legal suit, action or proceeding arising out of or
relating to this Warrant Agreement shall be instituted exclusively in the
federal or state courts located in the County of Dade of the State of Florida,
(ii) waives any objection to the venue of any such suit, action or proceeding
and the right to assert that such forum is not a convenient forum, and (iii)
irrevocably consents to the jurisdiction of the federal or state courts located
in the Coutny of Dade of the State of Florida in any such suit, action or
proceeding.
DATED as of__________, 1997
MEDICAL ACQUISITION CORP.
By: __________________________
Name:
Title:
5
EXHIBIT A
EXERCISE FORM
(To be Executed by the Registered Holder
to Exercise the Rights to Purchase
Common Shares Evidenced by the Warrant)
MEDICAL ACQUISITION CORP.
000 X. Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxx X. Xxxx
The undersigned hereby irrevocably subscribes for _________ shares of
your Common Stock pursuant to and in accordance with the terms and conditions of
that certain Warrant dated _________ ____, 1997, and herewith makes payment of
$__________ therefor (by certified or cashier's check or through a Net Exercise
as defined in the Warrant), and requests that a certificate for such shares be
issued in the name of the undersigned and be delivered to the undersigned at the
address stated below. The undersigned further requests that if the number of
shares subscribed for herein shall not be all of the shares purchasable
hereunder, that a new Warrant of like tenor for the balance of the shares
purchasable hereunder be delivered to the undersigned.
Name: ____________________________________
Signed: __________________________________
Address: _________________________________
Dated: _____________________________
EXHIBIT B
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ___________________________________
hereby sells, assigns and transfers unto ______________________________________,
_______________ of the ____________ Warrants represented by the within Warrant,
together with all rights, title and interest therein, and does hereby
irrevocably constitute and appoint the Company, attorney, to transfer said
Warrant on the books of such Company with full power of substitution in the
premises.
Dated: _________________________________
Name of Existing Warrant Holder: _______________________________________________
Social Security or Federal ID Number: __________________________________________
Address: _______________________________________________________________________
Signature: _____________________________________________________________________
Name of New Warrant Holder: ____________________________________________________
Social Security or Federal ID Number: __________________________________________
Address: _______________________________________________________________________
Signature: _____________________________________________________________________
