EXHIBIT 4.3
------------
Void after 5:00 p.m. New York, New York Time,
on January 31, 2000
Warrant to Purchase 243,902 shares of Common Stock
(Consisting of 121,951 Class A Warrants and
121,951 Class B Warrants)
THIS WARRANT AND THE SHARES OF COMMON STOCK UNDERLYING THIS
WARRANT (collectively, the "Securities") HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (the
"Securities Act") AND MAY NOT BE SOLD OR TRANSFERRED, UNLESS THE
SECURITIES ARE REGISTERED UNDER THE SECURITIES ACT OR AN
EXEMPTION FROM SUCH REGISTRATION UNDER THE SECURITIES ACT IS
APPLICABLE.
_________________________________
FORM OF
WARRANT TO PURCHASE COMMON STOCK
OF
ADVANCED MAMMOGRAPHY SYSTEMS, INC.
a Delaware corporation
This is to certify that, FOR VALUE RECEIVED, InterFirst
Capital Corporation, or assigns (the "Holder"), is entitled to
purchase, subject to the provisions of this Warrant, from
Advanced Mammography Systems, Inc., a Delaware corporation (the
"Company"), Two Hundred Forty Three Thousand Nine Hundred and Two
(243,902) fully paid, validly issued and non-assessable shares of
common stock, $0.01 par value, of the Company ("Common Stock"),
subject to prior vesting of the Class B Warrants, at any time
through and including January 31, 2000 ("Expiration Date"). The
Warrant exercise price shall be $1.68 for each share of Common
Stock of the Company. The number of shares of Common Stock to be
received upon the exercise of this Warrant and the price to be
paid for each share of Common Stock may be adjusted from time to
time as hereinafter set forth. The shares of Common Stock
deliverable upon such exercise, and as adjusted from time to
time, are hereinafter sometimes referred to as "Warrant Shares"
and the exercise price of a share of Common Stock in effect at
any time and as adjusted from time to time, is hereinafter
sometimes referred to as the "Exercise Price."
(a) Exercise of Warrant.
--------------------
(1) The Warrants are being issued as additional
compensation to InterFirst Capital Corporation ("InterFirst") in
connection with the sale by the Company of its securities,
including Subscription Warrants for an initial aggregate of
1,016,260 shares of Common Stock issued as of the date hereof
pursuant to Offshore Securities Subscription Agreements and
Placement Warrants for an initial aggregate of 203,252 shares of
Common Stock issued to Xxxxxxx X. Xxxxxxx in her sole capacity
and as guardian pursuant to Private Placement Agreements. The
exercise period (the "Exercise Period") of the Warrants shall be
as follows: the Class A Warrants shall commence on the date
hereof and terminate on the Expiration Date, and the Class B
Warrants shall commence for each Warrant thereof upon the
exercise of every ten (10) Subscription Warrants and/or Placement
Warrants (as initially constituted) and terminate on the
Expiration Date. For every ten (10) Subscription Warrants and/or
Placement Warrants which expire or terminate unexercised, one
Class B Warrant shall terminate simultaneously with the foregoing
expiration or termination. Other than the different Exercise
Periods, the terms of the Class A Warrants and the Class B
Warrants shall be identical.
(2) This Warrant may be exercised in whole or in
part at any time during the respective Exercise Periods. During
the applicable Exercise Period the Holder shall have the right to
exercise this Warrant into shares of Common Stock (and other
securities and property (including cash) receivable by a holder
of the number of shares of Common Stock into which this Warrant
might have been exercisable immediately prior thereto pursuant to
Section (f) hereof). This Warrant, subject to the provisions
hereof, may be exercised by presentation and surrender hereof to
the Company at its principal office, or at the office of its
stock transfer agent, if any, with the Purchase Form annexed
hereto duly executed and accompanied by payment (by wire
transfer) of the Exercise Price for the number of Warrant Shares
specified in such form. As soon as practicable after each such
exercise of the Warrant, but not later than five (5) business
days from the date of such exercise, the Company shall issue and
deliver to the Holder (or the person designated in the Purchase
Form) a certificate or certificates for the Warrant Shares
issuable upon such exercise, registered in the name of the Holder
or its designee. The Common Stock and any Warrants issued in
exchange for this Warrant shall be issued with such restrictive
legends as are required by the Securities Act or the Regulations
there under. If this Warrant should be exercised in part only,
the Company shall, upon surrender of this Warrant for
cancellation, execute and deliver a new Warrant evidencing the
rights of the Holder thereof to purchase the balance of the
Warrant Shares purchasable thereunder.
(b) Reservation of Shares.
--------------------- The Company shall at all
times reserve for issuance and/or delivery upon exercise of this
Warrant such number of shares of its Common Stock as shall be
required for issuance and delivery upon exercise of the Warrant.
(c) Fractional Shares.
------------------ No fractional shares or
script representing fractional shares shall be issued upon the
exercise of this Warrant. With respect to any fraction of a
share called for upon any exercise hereof, the Company shall pay
to the Holder an amount in cash equal to such fraction multiplied
by the current market value of a share, determined as follows:
(1) If the Common Stock is listed on a National
Securities Exchange or admitted to unlisted trading privileges on
such Exchange or listed for trading on the NASDAQ System, the
current market value shall be the last reported sale price of the
Common Stock on such Exchange or System on the last business day
prior to the date of exercise of this Warrant or if no such sale
is made on such day, the average closing bid and asked prices for
such day on such Exchange or System; or
(2) If the Common Stock is not so listed or
admitted to unlisted trading privileges, the current market value
shall be the mean of the last reported bid and asked prices
reported by the National Quotation Bureau, Inc. on the last
business day prior to the date of the exercise of this Warrant;
or
(3) If the Common Stock is not so listed or
admitted to unlisted trading privileges and bid and asked prices
are not so reported, the current market value shall be an amount
not less than book value thereof as at the end of the most recent
fiscal year of the Company ending prior to the date of the
exercise of the Warrant, determined in such reasonable manner as
may be prescribed by the Board of Directors of the Company.
(d) Exchange, Transfer, Assignment or Loss of Warrant.
-------------------------------------------------
This Warrant is exchangeable, without expense, at the option of
the Holder, upon presentation and surrender hereof to the Company
or at the office of its stock transfer agent, if any, for other
warrants of different denominations entitling the holder thereof
to purchase in the aggregate the same number of shares of Common
Stock purchasable hereunder. Upon surrender of this Warrant to
the Company at its principal office or at the office of its stock
transfer agent, if any, with the Assignment Form annexed hereto
duly executed and funds sufficient to pay any transfer tax and
any representations or agreements required under the Securities
Act, 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. The term
"Warrant" as used herein includes any Warrants into which this
Warrant may be divided or exchanged. Upon receipt by the Company
of evidence satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant, and (in the case of loss, theft or
destruction) of reasonably satisfactory indemnification, and upon
surrender and cancellation of this Warrant, if mutilated, the
Company will execute and deliver a new Warrant of like tenor and
date. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of
the Company, whether or not this Warrant so lost, stolen,
destroyed, or mutilated shall be at any time enforceable by
anyone.
(e) Rights of the Holder.
--------------------- The Holder shall not, by
virtue hereof, be entitled to any rights of a stockholder in the
Company, either at law or equity except with respect to
certificates representing shares of Common Stock issued upon
exercise of this Warrant. The rights of the Holder are limited
to those expressed in this Warrant and are not enforceable
against the Company except to the extent set forth herein. Prior
to due presentment for registration or transfer of this Warrant,
the Company may deem and treat the Holder as the absolute owner
of this Warrant for purposes of any exercise hereof and for all
other purposes of the Company shall not be affected by any notice
to the contrary.
(f) Anti-Dilution Provisions.
------------------------- The Exercise Price
in effect at any time and the number and kind of securities
purchasable upon the exercise of the Warrants shall be subject to
adjustment from time to time upon the happening of certain events
as follows:
(1) In case the Company shall (i) declare a stock
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
share 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.
(2) Whenever the Exercise Price payable upon
exercise of each Warrant is adjusted pursuant to Subsection (1)
above, the number of shares purchasable upon exercise of this
Warrant shall simultaneously be adjusted by multiplying the
number of shares initially issuable upon exercise of this Warrant
by the Exercise Price in effect on the date hereof and dividing
the product so obtained by the Exercise Price, as adjusted.
(3) Whenever the Exercise Price is adjusted, as
herein provided, the Company shall promptly cause a notice
setting forth the adjusted Exercise Price and adjusted number of
shares issuable upon exercise of each Warrant to be mailed to the
Holders, at their last addresses appearing in the Warrant
Register, and shall cause a certified copy thereof to be mailed
to its transfer agent, if any. The Company may retain a firm of
independent certified public accountants selected by the Board of
Directors (who may be the regular accountants employed by the
Company) to make any computation required by this Section (f),
and a certificate signed by such firm shall be conclusive
evidence of the correctness of such adjustment.
(4) In the event that at any time, as a result of
an adjustment made pursuant to Subsection (1) above, the Holder
of this Warrant thereafter shall become entitled to receive any
shares of the Company, other than Common Stock, thereafter the
number of such other shares so receivable upon exercise of this
Warrant 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 Common Stock contained in
Subsection (1) above.
(5) Irrespective of any adjustments in the
Exercise Price or the number or kind of shares purchasable upon
exercise of this Warrant, Warrants theretofore or thereafter
issued may continue to express the same price and number and kind
of shares as are stated in the similar Warrants initially
issuable pursuant to this Agreement.
(g) Officer's Certificate.
---------------------- Whenever the Exercise
Price shall be adjusted as required by the provisions of Section
(f) hereof, the Company shall forthwith file in the custody of
its Secretary or an Assistant Secretary at its principal office
and with its stock transfer agent, if any, an officer's
certificate showing the adjusted Exercise Price determined as
herein provided, setting forth in reasonable detail the facts
requiring such adjustment, including a statement of the number of
additional shares of Common Stock, if any, and such other facts
as shall be necessary to show the reason for and the manner
computing such adjustment. Each such officer's certificate shall
be made available at all reasonable times for inspection by the
Holder or any holder of a Warrant executed and delivered pursuant
to Section (h) hereof and the Company shall forthwith after each
such adjustment, mail a copy by certified mail of such
certificate to the Holder or any such holder.
(h) Notices to Warrant Holders.
--------------------------- So long as this
Warrant shall be outstanding, (i) if the Company shall pay any
dividend or make any distribution upon the Common Stock or (ii)
if the Company shall offer to all the holders of Common Stock for
subscription or purchase by them of any share of any class or any
other rights or (iii) if the capital reorganization of the
Company, reclassification of the capital stock of the Company,
consolidation or merger of the Company with or into another
corporation, sale of all or substantially all of the property and
assets of the Company to another corporation or voluntary or
involuntary dissolution, liquidation or winding up of the Company
shall be effected, then in any such case, the Company shall cause
to be mailed to the Holder, at least ten days prior to the date
specified in (x) or (y) below, as the case may be, a notice
containing a brief description of the proposed action and stating
the date on which (x) a record is to be taken for the purpose of
such dividend, distribution or rights, or (y) such
reclassification, reorganization, consolidation, merger, sale,
dissolution, liquidation or winding up is to take place and date,
if any is to be fixed, as of which the holders of the Common
Stock or other securities shall receive cash or other property
deliverable upon such reclassification, reorganization,
consolidation, merger, conveyance, dissolution, liquidation or
winding up. Notwithstanding the above, the failure to give such
notice shall not affect the validity of any transaction for which
the notice was required to be given.
(i) Reclassification, Reorganization or Merger.
------------------------------------------- In
case of any reclassification, capital reorganization or other
change of outstanding shares of Common Stock of the Company, or
in case of any consolidation or merger of the Company with or
into another corporation, other than a merger with a subsidiary,
in which merger the Company is the continuing corporation and
which does not result in any reclassification, capital
reorganization or other change of outstanding shares of Common
Stock of the class issuable upon exercise of this Warrant or in
case of any sale to another corporation of the property of the
Company as an entirety, the Company shall, as a condition
precedent to such transaction, cause effective provisions to be
made so that the Holder shall have the right thereafter by
exercising this Warrant at any time prior to the expiration of
the Warrant, to purchase the kind and amount of shares of stock
and other securities and property receivable upon such
reclassification, capital reorganization and other change,
consolidation, merger or sale by a holder of the number of shares
of Common Stock which might have been purchased upon exercise of
this Warrant immediately prior to such reclassification, change,
consolidation, merger or sale; provided that, the resulting
entity is a publicly traded corporation, otherwise this Warrant
shall terminate upon the closing of such transaction to the
extent then unexercised. Any such provision shall include
provision for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this
Warrant. The foregoing provisions of this Section (i) shall
similarly apply to successive reclassification, capital
reorganizations and changes of shares of Common Stock and to
successive consolidations, mergers or sales. In the event that
in connection with any such capital reorganization and any shares
of Common Stock shall be issued in exchange, conversion,
substitution or payment, in whole or in part, for a security of
the Company other than Common Stock, any such issue shall be
treated as an issue of Common Stock covered by the provisions of
Subsection (1) of Section (f) hereof.
(j) Non-Callable Warrant.
--------------------- This Warrant may not be
called by the Company at any time.
(k) Registration.
------------- The Company shall use its best
efforts to register the Warrant Shares underlying this Warrant,
by filing a registration statement with the Securities and
Exchange Commission ("SEC") on Form S-3 or other appropriate form
(the "Form") within sixty (60) days after issuance of this
Warrant and to file any amendments thereto within thirty (30)
days after receipt of an SEC comment letter (subject to
availability of audited financial statements) and the Company
agrees to keep the Form current and effective so long as the
Warrants (including the Warrant Shares that are issued upon the
exercise of this Warrant) are owned by person who had exercised
the Warrants therefore, but not to exceed three (3) years from
the initial issuance of this Warrant. If the Form is not
declared effective by the SEC within one hundred twenty (120)
days after the issuance hereof and maintained effective, then the
Company shall be required to issue to InterFirst within thirty
(30) days, an additional amount of Warrants equal to 12.5% of the
number of Warrants originally issued to InterFirst. As a
condition to the obligation in this Section (k), InterFirst shall
enter into a customary agreement with the Company regarding the
sale of the underlying Warrant Shares and mutual indemnification.
In the event the Holder exercises this Warrant at a time when
there is no effective Form as to the Warrant Shares being
acquired upon such exercise, the Holder or its designee shall
provide such representations with respect to its purchase, and
the Company may place such legends on certificates for the
Warrant Shares as is required to ensure compliance with the
private placement exemption under the Securities Act.
(l) Miscellaneous.
-------------
(1) Binding Effect.
--------------- The terms and conditions of
this Warrant shall be binding upon and shall inure to the benefit
of the Company and the Holder.
(2) Successors and Assigns.
----------------------- All the covenants and
provisions of this Warrant by or for the benefit of the Company
and the Holder shall bind and inure to the benefit of their
respective successors and permitted assigns hereunder.
(3) Entire Agreement.
----------------- This Warrant is intended by
the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or
referred to herein with respect to the registration rights under
the Securities Act granted by the Company with respect to this
Warrant or the Warrant Shares. This Warrant is issued pursuant
to a Funding Agreement, dated as of January 31, 1997, among the
Company, InterFirst and Emerald Capital Corporation. This
Warrant supersedes all prior agreements and understandings
between the parties with respect to the subject matter herein.
(4) Amendments and Waivers.
----------------------- This Warrant may not be
amended, modified or terminated except by a writing signed by all
parties.
(5) Governing Law.
-------------- This Warrant shall be governed by
and construed in accordance with the laws of the State of
Delaware.
(6) Notices.
-------- All written notices, demands or requests
of any kind, which either party may be required or may desire to
serve on the other in connection with this Warrant, must be
served by registered or certified mail, with postage prepaid and
return receipt requested, to the following address:
If to the Holder, to:
InterFirst Capital Corporation
00000 Xxxxxxxx Xxxx.
Fourth Floor
Los Angeles, California 90024
Attention: Xxxx Xxxxxxx
Managing Director, Corporate Finance
If to the Company, to:
Advanced Mammography Systems, Inc.
Two Executive Drive
Fort Xxx, New Jersey 07024
Attn: Xxxx Xxxxxx, Chairman
or to such other address as either party hereto may duly give to
the other. In lieu of mailing, either party may cause delivery
of such notices, demands and requests to be made by personal
service, provided that acknowledgement of receipt is made.
Notice shall be deemed given upon personal delivery or three(3)
days after depositing in the U.S. Mail, postage prepaid.
(7) Headings.
--------- The Article and Section headings herein
are for convenience only and are not part of this Warrant and
shall not effect the interpretation thereof.
[SIGNATURE PAGE APPEARS ON NEXT PAGE]
IN WITNESS WHEREOF, the Company has caused this Warrant
to be signed and attested by the Undersigned, each being duly
authorized, as of the date below.
Advanced Mammography Systems,
Inc., Delaware Corporation
By: _________________________
Name: Xxxx Xxxxxx
Title: Chairman
February 6, 1997
PURCHASE FORM
---------------
Dated: ___________, 199__
The undersigned hereby irrevocably elects to exercise
the within Warrant to the extent of purchasing __________________
shares of Common Stock and hereby makes payment of ____________
in payment of the actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
--------------------------------------
Name
______________________________________________________________
(Please typewrite or print in block letters)
Address
______________________________________________________________
Signature ____________________________________________________
Tax Identification Number ____________________________________
_____________________
ASSIGNMENT FORM
FOR VALUE RECEIVED,
_____________________________________
hereby sells, assigns and transfers unto
Name
______________________________________________________________
(Please typewrite or print in block letters)
Address
___________________________________________________________
the right to purchase Common Stock represented by this (Class A/
Class B) Warrant to the extent of ______________ shares as to
which such right is exercisable and does hereby irrevocably
constitute and appoint _______________________ Attorney, to
transfer the same on the books of the Company with full power of
substitution in the premises.
Date ____________________________, 199__
Signature ______________________________
