Exhibit 10.1(b)
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAWS OF ANY STATE (THE "ACTS") AND MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN
EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACTS OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
No. W-44
WARRANT TO PURCHASE COMMON STOCK
OF
NOMOS CORPORATION
This certifies that, for value received, Sunrise Securities Corp., or
its registered assignee ("HOLDER") is entitled, subject to the terms set forth
below, to purchase from NOMOS Corporation (the "COMPANY"), a Delaware
corporation, shares of the Common Stock of the Company ("COMMON STOCK"), as
constituted on the date hereof (the "WARRANT ISSUE DATE"),with the Notice of
Exercise attached hereto duly executed, and simultaneous payment therefor in
lawful money of the United States, at the Exercise Price as set forth in Section
2 below. The number, character and Exercise Price of such shares of Common Stock
are subject to adjustment as provided below.
1. Term of Warrant. This Warrant shall be exercisable, in whole or in
part commencing on the Warrant Issue Date and ending on September 15, 2002.
2. Exercise Price and Number of Shares.
2.1 Exercise Price. The Exercise Price at which this
Warrant may be exercised shall be $10.00 per share of Common Stock, as adjusted
from time to time pursuant to Section 10 hereof.
2.2 Number of Shares. The number of shares of Common Stock
which may be purchased pursuant to this Warrant shall be 93,020 shares, as
adjusted from time to time pursuant to Section 10 hereof.
3. Exercise of Warrant.
(a) The purchase rights represented by this Warrant are exercisable by
the Holder in whole or in part, at any time during the term of this Warrant, or
from time to time, by the surrender of this Warrant and , the Notice of Exercise
annexed hereto duly completed and executed on behalf of the Holder, at the
office of the Company (or such other office or agency of the Company as it may
designate, by notice in writing to the Holder at the address of the Holder
appearing on the books of the Company), upon
payment in cash or by check acceptable to the Company, or by delivery to the
Company of a Notice of Exercise along with an irrevocable direction to a
broker-dealer registered under the Securities Exchange Act of 1934 to sell such
number of shares of Common Stock sufficient to satisfy the Exercise Price. and
to deliver the sales proceeds of such sale directly, to the Company to pay the
Exercise Price.
(b) This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person entitled to receive the shares of Common Stock
issuable upon such exercise shall be treated for all purposes as the holder of
record of such shares as of the close of business on such date. As promptly as
practicable on or after such date, the Company at its expense shall issue and
deliver to the person or persons entitled to receive the same a certificate or
certificates for the number of shares issuable upon such exercise. In the event
that this Warrant is exercised in part, the Company at its expense will execute
and deliver a new Warrant of like tenor exercisable for the number of shares for
which this Warrant may then be exercised.
(c) If this Warrant is exercised in part, this Warrant must be
exercised for a number of whole shares of the Common Stock.
4. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and substance to the Company
or, in the case of mutilation, on surrender and cancellation of this Warrant,
the Company at its expense shall execute and deliver, in lieu of this Warrant, a
new warrant of like tenor and amount.
5. Rights of Stockholders. The Holder shall not be entitled to vote or
receive dividends or be deemed the holder of Common Stock, nor shall anything
contained herein be construed to confer upon the Holder, as. such, any of the
rights of a stockholder of the Company or any right to, vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par
value, or change of stock to par value, consolidation, merger, conveyance or
otherwise) or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise until the Warrant shall have been exercised as
provided herein.
6. Transfer of Warrant.
6.1 Exchange of Warrant Upon a Transfer. Upon delivery by the
transferee of a written agreement to be bound by the terms of this Warrant and
surrender of this Warrant for exchange, properly endorsed and transferred in
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accordance with this Section 6, the Company at its expense shall issue to or on
the order of the Holder a new warrant or warrants of like tenor, in the name of
the Holder or as the Holder (on payment by the Holder of any applicable transfer
taxes) may direct, of the number of shares issuable upon exercise hereof.
6.2 Restrictions on Transfer; Compliance with Securities
Laws.
(a) The Holder of this Warrant, by acceptance hereof,
acknowledges that this Warrant and the shares of Common Stock to be issued upon
exercise hereof are being acquired solely for the Holder's own account and not
as a nominee for any other party, and for investment, and agrees to comply with
the transfer restrictions contained in this Section 6.2. The Holder will not
offer, sell or otherwise dispose of this Warrant or any shares of Common Stock
to be issued upon exercise hereof ("SHARES") except under circumstances that
will not result in a violation of applicable federal and state securities laws.
Prior to offering, selling or otherwise disposing of the Warrants or Shares, the
holder hereof or thereof will give the Company a written notice describing, the
manner and circumstances of the transfer accompanied by, if requested by the
Company, a written opinion of legal counsel satisfactory to the Company, to the
effect that the proposed transfer may be effected without registration under the
Securities Act of 1933 or any state blue sky law. Any Warrant or Shares
transferred in violation of applicable federal and state securities laws shall
be void and not recognized by the Company. Any transferee of this Warrant or
Shares shall execute an agreement agreeing to be bound by the terms of this
Section 6.
(b) All shares of Common Stock issued upon, exercise hereof
shall be stamped or imprinted with a legend in substantially the following form
(in addition to any legend required by state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR THE STATE SECURITIES LAWS OF ANY
STATE (THE "ACTS") AND MAY NOT BE TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED UNDER THE ACTS OR
AN EXEMPTION FROM REGISTRATION IS AVAILABLE. TRANSFER OF SUCH
SHARES IS ALSO RESTRICTED BY THE PROVISIONS OF AN AGREEMENT
DATED NOVEMBER ___1997.
7. REGISTRATION RIGHTS.
7.1 CERTAIN DEFINITIONS.
As used ill this Section 7, the following terms shall have the
following meanings:
"COMMISSION" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"FORM S-1" shall mean Form S-1 issued by the Commission or any substantially
similar form then in effect.
"FORM S-2" shall mean Form S-2 issued by the Commission or any substantially
similar form then in effect.
"FORM S-3" shall mean Form S-3 issued by the Commission or any substantially
similar form then in effect.
"HOLDER" shall mean the record owner of Registrable Securities.
INITIAL PUBLIC OFFERING shall mean the first underwritten public offering of the
Company's securities.
"LOCK-UP PERIOD" shall mean the period beginning on the effective date of the
Initial Public Offering and ending six months later.
"MATERIAL ADVERSE EVENT" shall mean an occurrence having a consequence that
either (a) is materially adverse as to the business, properties, prospects or
financial condition of the Company taken as a whole or (b) is reasonably
foreseeable likelihood of occurring and, if it were to occur, would materially
adversely affect the business, properties, prospects or financial condition of
the Company taken as a whole.
The terms "REGISTER" "REGISTERED" and "REGISTRATION" refer to a registration
effected by preparing and filling a registration statement in compliance with
the Securities Act ("REGISTRATION STATEMENT"), and tile declaration or ordering
of the effectiveness of such Registration Statement.
"REGISTRABLE SECURITIES" shall mean all Common Stock not previously sold to the
public and issued to Sunrise pursuant to the exercise of this Warrant, or Common
Stock issued with respect to such shares pursuant to stock splits, stock
dividends and similar distributions With respect to such shares, provided,
however, that shares of Common Stock which are Registrable Securities shall
cease to be Registrable Securities at such time, and for so long as, such shares
are eligible for sale pursuant to Rule 144(k) under the Securities Act.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the Company in
complying with Section 7(b) of this Agreement, including, without limitation,
all
4
federal and state registration, qualification and filing fees, printing
expenses, fees and disbursements of counsel for the Company, blue sky fees
and expenses, fees and disbursements of counsel blue sky fees and expenses,
and the expense of any special audits Incident to or required by any
registration, but shall not include Selling Expenses.
"SECURITIES ACT" shall mean the Securities Act of 1933), as amended, or ally
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities pursuant to this
Agreement and all expenses of any special counsel for the Purchaser.
7.2 PIGGYBACK REGISTRATION.
7.2.1 NOTICE OF PIGGYBACK REGISTRATION AND INCLUSION OF REGISTRABLE
SECURITIES. Subject to the terms of this Agreement, in the event the
Company decides to Register any of its Common Stock for cash (either
for its own account or the account of a security holder), other than
pursuant to (i) the Company's initial public offering; (ii) a
Registration Statement which exclusively relates to the Registration of
securities under an employee stock option, purchase, bonus or other
benefit plan, or (iii) a Registration relating solely to a transaction
under Rule 145 promulgated by the Commission, then for a period of five
years. following the Company's initial public offering the Company
will: (1 ) promptly give the Holder written notice thereof (which shall
include a list of the jurisdictions in which the Company intends to
attempt to qualify such Securities under the applicable Blue Sky or
other state. securities laws) and (2) include in such Registration (and
any related qualification under Blue Sky laws or other compliance), and
in any underwriting involved therein, all the Registrable Securities
specified in a written request delivered to the Company by the Holder
within 10 days after delivery of such written notice from the Company.
7.2.2 UNDERWRITING IN PIGGYBACK REGISTRATION. If the Registration of which
the Company gives notice is a Registered public offering involving an
underwriting, the .Company shall so advise the Holder as a part of tile
written notice given pursuant to Subsection 7.2.1. In such event the
right, of the Holder to Registration shall be conditioned upon such
underwriting agreement with the Underwriter's Representative for such
offering. The Holder shall have no right to participate in the
selection of the underwriters for an offering pursuant to this Section.
5
7.2.3 MARKETING LIMITATION IN PIGGYBACK REGISTRATION. In the event the
Underwriter's Representative advises the Company and the Holder engaged
in a Registration under Subsection 7.2.1 in writing that market factors
(including, without limitation. the agreeable number of shares of
Common Stock requested to be Registered, the general condition of the
market and the status of the persons proposing to sell securities
pursuant to the Registration) require a limitation of the number of
shares to be underwritten, the Underwriter's Representative (subject to
the allocation priority set forth in clause (iii) below) may exclude
some or all of the Registrable Securities from such Registration and
underwriting.
7.2.4 ALLOCATION OF SHARES IN PIGGYBACK REGISTRATION. In the event that the
Underwriter's Representative limits the number of shares to be included
in a Registration pursuant to Subsection 7.2.), the Holder shall be
entitled to include a portion of the Registrable Securities requested
to be included in such Registration pro rata (based on the number of
shares requested to be included) with all other persons currently
holding similar written piggyback registration rights requesting
Registration. unless all Registrable Securities and such other
piggybacking shares requested to be included in such Registration are
so included, no other securities may be included in the Registration
Statement in addition to those securities being sold on behalf of the
Company.
7.2.5 WITHDRAWAL IN PIGGYBACK REGISTRATION. If the Holder disapproves of the
terms of any such underwriting, it may elect to withdraw therefrom by
written notice to the Company and the Underwriter delivered at least
seven days prior to the effective date of the Registration Statement.
Any Registrable Securities or other securities excluded or withdrawn
from such underwriting shall be withdrawn from such Registration.
7.3 DEMAND RESTRATION.
Subject to Section 7.5.3 below, if, at any time after the end of the
Lock-Up Period, the Company shall receive a written request (specifying
that it is being made pursuant to this Section 7(c) from persons
holding more than fifty percent (50%) of the Registrable Securities
that the Company file a registration statement or similar document
under the Securities Act, then the Company shall promptly notify in
writing all other Holders holding Registrable Securities of such
request and shall use its best efforts to cause all Registrable
Securities that Holders have. requested be so registered within 20 days
after written notice from the Company of the proposed registration to
be registered under the Securities Act. Notwithstanding the foregoing,
if the Company shall furnish to such Holders a certificate signed by
the President of the Company stating that in good faith judgment of the
Company's Board of Directors it would be seriously detrimental to the
Company or its shareholders for a registration statement to be filed in
the near future, then the Company's obligation to use its best efforts
to file a
6
registration statement shall be deferred for a .period not to exceed
four (4) months; provided, however, that the Company shall not obtain
such a deferral more than once in any 12-month period.
The Company shall be obliged to effect only one registration pursuant,
to this Section 7.3. Any request for registration under this Section
7.3. Any request for registration under this Section 7.3 during the six
month period immediately following the Lock-Up Period must be for an
underwritten public offering to be managed by an underwriter or
underwriters of recognized national standing selected by the Company.
7.4 FORM S-3 REGISTRATION RIGHTS.
In the event the Company is eligible to register securities oil Form
S-3 and receives from Holders holding more than 50 percent (50%) of the
Registrable Securities a written request that the Company effect a
registration statement on Form S-3 for an offering of Registrable
Securities covering the registration of not less than 50 Percent (50%)
of the Registrable Securities held by all holders of Registrable
Securities, the expected aggregate price to the public of which exceeds
$1,000,000, net of any underwriting discounts and commissions, then the
Company will promptly give written notice of the proposed Form S-3
registration to all Holders and will, as soon as practicable, use its
best efforts to effect registration of the Registrable Securities on
Form S-3, together with all or such portion of the Registrable
Securities of any holder joining in such request as are specified in a
written request delivered to the Company within 20 days after written
notice from the Company of the proposed registration.
These rights are in addition to, and not in lieu of, the rights granted
under Sections 7.2 and 7.3 hereof.
7.5 OBLIGATIONS OF THE COMPANY AND HOLDERS.
7.5.1 OBLIGATIONS OF THE COMPANY. Whenever required under Section 7.3 or
Section 7.4 to use its best efforts to the effect the registration of
any Registrable Securities, the Company shall, as expeditiously as
reasonably possible.
7.5.1.1 Prepare and file with the Securities and Exchange Commission ("SEC") a
registration statement with respect to such Registrable Securities and
use its best efforts to cause such registration statement to become and
remain effective; provided, however, that ill connection with any
proposed registration intended to permit an offering of any securities
from time to time (i.e., a so-called "SHELF registration"), the Company
shall in no event be obligated to cause any such registration to remain
effective for more than 180 days.
7
7.5.1.2 Prepare and file with the SEC, in a timely manner, such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement.
7.5.1.3 Furnish to the Holders and deliver as directed such numbers of copies
of a prospectus, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents as
they may reasonably request in, order to facilitate the disposition of
Registrable Securities owned by them.
7.5.1.4 Use its best efforts to register and qualify the Securities covered by
such. registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably appropriate for the
distribution of the securities covered by the registration statement,
provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a
general consent to service of process in any, such states or
jurisdictions, and further provided that (anything in this Agreement to
the contrary notwithstanding with respect to the bearing of expenses)
if any, jurisdiction in which the securities shall be qualified shall
require, that expenses incurred in connection with the qualification of
the securities in that jurisdiction be borne by selling shareholders,
then such expenses shall be payable by selling shareholder pro rata, to
the extent required by such jurisdiction.
7.5.2 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 7.3
or Section 7.4 that the Holders shall furnish to the Company such
information regarding them, the Registrable Securities held by them,
and the intended method of disposition of such securities as the
Company shall reasonably request and as shall be required in connection
with action to be taken by the Company.
7.5.3 UNDERWRITING REQUIREMENTS. In connection with any offering involving an
underwriting of shares pursuant to Sections 7.2, 7.3 or 7.4 hereof the
Company shall not be required to include any of the Holders'
Registrable Securities in such underwriting unless they, accept the
terms of the underwriting as agreed upon between the Company and the
underwriters selected by it. If the managing underwriter or
underwriters of such public offering advise tile Company that, in their
opinion, the amount of the Registrable Securities to be included in any
such offering pursuant to the request of the Holders would adversely
affect the success of such offering, the Company will include in such
offering on behalf of such Holders, the amount of Registrable
securities, equal to the total amount
8
which, in the opinion of such managing underwriter or underwriters,
call be sold without such adverse effect, and such Registrable
Securities shall be allocated oil a pro rata basis among the Holders of
the Registrable Securities requested to be included in such offering.
7.5.4 DELAY OF REGISTRATION. No Holder shall have any right to take any
action to restrain, enjoin, otherwise delay any registration as the
result of any controversy that might arise with respect to the
interpretation or implementation of Section 7.3 or Section 7.4,
7.5.5 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with all Registrations pursuant to Sections 7.2, 7.3 and
7.4 shall be borne by the Company. Selling Expenses to be borne by the
holders of the Registrable Securities Registered shall be borne pro
rata on the basis of the number of Registrable Securities being
Registered.
7.5.6 REGISTRATION PROCEDURES. The Company will keep the Holders advised as
to the initiation and completion of such Registration. At its expense
the Company will use its best efforts to keep such Registration
effective for a period of 180 days or until the registering Purchaser
has completed the distribution described in the Registration Statement
relating thereto, whichever first occurs.
7.6 INDEMNIFICATION.
7.6.1 COMPANY'S INDEMNIFICATION OF SUNRISE. To the extent permitted by law,
the Company will indemnify Sunrise, and each of its directors,
officers, stockholders, partners or other beneficial owners, and each
person controlling Sunrise, with respect to which Registration,
qualification or compliance of Registrable Securities has been effected
pursuant to this Agreement, and each underwriter, if any, and each
person who controls any underwriter against all claims, losses, damages
or liabilities, including legal fees and expenses (or actions in
respect thereof to the extent such claims, losses, damages or
liabilities arise out of or are based upon any untrue statement (or
alleged untrue statement) of a material fact contained in any
prospectus or other document (including any related Registration
Statement) incident to any such Registration, qualification or
compliance, or are based oil any omission (or alleged omission) to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any
violation by the Company of any rule regulation promulgated under the
Securities Act applicable to the Company and relating to action or
inaction required of the Company in connection with any such
Registration, qualification or compliance; and the Company will
reimburse Sunrise, each of its directors, officers, stockholders,
partners or other beneficial owners, each such underwriter and each
person who controls Sunrise or
9
underwriter for any legal and any other expenses reasonably incurred in
connection with investigating or defending any such claim., loss,
damage, liability or action; provided, however that the indemnity
contained in this Subsection 7.6 shall not apply, to amounts paid in
settlement of any such claim, loss, damage, liability or action if
settlement is effected without the consent of the Company (which
consent shall not unreasonably be withheld) and provided, further, that
the Company will not be liable in any such case to the extent that any
such claim, loss, damage, liability or expense arises out of or is
based upon any statement or omission based upon written information
furnished to the Company by Sunrise, underwriter or controlling person
and stated to be for use in connection with the offering of securities
of the Company.
7.6.2 SUNRISE'S INDEMNIFICATION OF COMPANY. To the extent permitted by law,
Sunrise will, if Registrable Securities held by Sunrise are included in
the securities as to which such, Registration, qualification or
compliance is being effected pursuant to this Agreement, indemnify the
Company, each of its directors and officers, each legal counsel and
independent accountant of the Company, each underwriter, if any, of the
Company's securities covered by such a Registration Statement, and each
person who controls the Company or such underwriter within the meaning
of the Securities Act against all claims, losses, damages and
liabilities, including legal fees and expenses (or actions in respect
thereof), arising out of or based upon any untrue statement (or alleged
untrue statement) of a material fact contained in any, such
Registration Statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation by Sunrise of any
rule or regulation promulgated under the Securities Act applicable to
Sunrise and relating to action or inaction required of Sunrise in
connection with any such Registration, qualification or compliance;
and,will reimburse the Company directors, officers, partners, persons,
law and accounting firms, Underwriters or control persons for any legal
and any other expenses reasonably incurred in connection with
investigating or defending any, such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such
untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such Registration Statement, prospectus, offering
circular or other document In reliance upon and in conformity with
written information furnished to the Company by Sunrise and stated to
be specifically for use in connection with the offering of securities
of the Company; provided, however, that the Holders' liability under
this Section 7(f)(2) shall not exceed Sunrise's proceeds from the
offering of securities made in connection with such Registration.
7.6.3 INDEMNIFICATION PROCEDURE. Promptly after receipt by an indemnified
party under this Section 7.6 of notice of the commencement any action,
such
10
indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party under this Section 7.6, notify the
indemnifying party in writing of the commencement thereof and generally
summarize such action. The indemnifying party shall have the right to
participate in and to assume the defense of such claim; provided,
however, that the indemnifying party shall be entitled to select
counsel for the defense of such claim with the approval of any parties
entitled to indemnification, which approval shall not be unreasonably
withheld; provided further, however, that if either party reasonably
determines that there may be a conflict between the position of the
Company and the Holders in conducting the defense of such action, suit
or proceeding by reason of recognized claims for indemnity under this
Section 7.6, then counsel for such party shall be entitled to conduct
the defense to the extent reasonably determined by such counsel to be
necessary to protect the interest of such party. The failure to notify
an indemnifying party promptly of the commencement of any such action,
if prejudicial to the ability of the indemnifying party, to defend such
action, shall relieve such indemnifying party, to the extent so
prejudiced, of any liability to the indemnified party under Section 7.6
but the omission so to notify the indemnifying party will not relieve
such party of any liability that such party may have to any indemnified
party otherwise other than under this Section 7.6.
7.6.4 SUBSEQUENT TRANSFEREES. The provisions of this Section 7.6 applicable
to Sunrise shall apply with equal force and effect to each subsequent
transferee to ,whom any of the Registrable Securities are transferred
with the consent of the Company.
7.7 MARKET STAND-OFF.
Sunrise shall agree not to transfer, sell, make short sales of, loan
grant any option for the purchase of, or otherwise dispose of any
Registrable Securities, except for private sales to persons approved
by the Company (which approval will not be Unreasonably withheld) and
who agree to be bound by the provisions of this Agreement including
this Section 7.7) during the Lock-Up Period.
7.8 CURRENT PUBLIC INFORMATION.
At all times after the Company has filed a Registration Statement
pursuant to the Securities Act, the Company will file all reports
required under the Securities Act or the Securities Exchange Act of
1934 and the rules and regulations thereunder, and will take such
further action as may be reasonably required to enable any holder of
"RESTRICTED SECURITIES" (as defined in Rule 144 adopted by the
Commission under the Securities Act) to sell such Securities pursuant
to
11
Rule 144, as amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission.
8. Reservation of Stock. The Company covenants that during the term
that this Warrant is exercisable, the Company reserve from its authorized
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this Warrant and, from time to time, will
take all steps necessary to amend its Certificate of Incorporation (the
"CERTIFICATE") to provide sufficient reserves of shares of Common Stock
issuable-upon the exercise of the Warrant. The Company further covenants that
all shares that may be issued upon the exercise of rights represented by this
Warrant, upon exercise of the rights represented by this Warrant and payment of
the Exercise Price, all as set forth herein, will be free from all taxes, liens
and charges in respect of the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously or otherwise specified herein), and will be
validly issued, fully paid and nonassessable..
9. Notices. Whenever the Exercise Price or number of shares purchasable
hereunder shall be adjusted to Section 11 hereof, the Company shall issue a
certificate signed by its Chief Financial Officer setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the
method by, which such adjustment was calculated, and the Exercise Price and
number of shares purchasable hereunder after giving effect to such adjustment,
and shall cause a copy of such certificate to be mailed (by first-class mail,
postage prepaid) to the Holder of this Warrant.
10. Amendments.
(a) Any term of this Warrant may be amended with the written consent of
the Company and the Holder. Any amendment effected in accordance with the
Section 10 shall be binding upon the Holder, each future Holder and the Company.
(b) No waivers of, or exceptions to, any term, condition or provision
of this Warrant, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term, condition or
provision.
11. Adjustments. The number of shares purchasable hereunder is subject
to adjustment from time to time as follows:
11.1 Reorganization, Merger or Sale of Assets. If at any,
time while this Warrant, or any portion thereof, is outstanding and unexpired
there shall be (i) a reorganization (other than a combination, reclassification,
exchange or subdivision of shares otherwise provided for herein), (ii) a merger
or consolidation of the Company with or into another corporation in which the
Company is not the surviving entity, or a
12
reverse triangular merger in which the Company is the surviving entity but the
shares of the Company's capital stock outstanding immediately prior to the
merger are converted by virtue of the merger into other property, whether in the
form of securities, cash or otherwise, or (ii) a sale or transfer of the
Company's properties and assets as, or substantially as, an entirety to any
other person, then, as a part of such reorganization, merger, consolidation,
sale or transfer, lawful provision shall be made so that the holder of this
Warrant shall thereafter be entitled to receive upon payment of the Exercise
Price then in effect, the number of shares of stock or other securities or
property of the successor corporation resulting from such reorganization,
merger, consolidation, sale or transfer that a holder of the shares deliverable
upon exercise of this Warrant would have been entitled to receive in such
reorganization, consolidation, merger, sale or transfer if this Warrant had been
exercised immediately before such reorganization, merger, consolidation, sale or
transfer, all subject to further adjustment as provided in this Section 11. The
foregoing provisions of this Section 11.1 shall similarly apply to successive
reorganizations, consolidations, mergers, sales and transfers and to the stock
or securities of any other corporation that are at the time receivable upon the
exercise of this Warrant. If the per share consideration payable to the Holder
hereof for shares in connection with any such transaction is in a form other
than cash or marketable securities, then the value of such consideration shall
be determined in good faith by the Company's Board of Directors. In all events,
appropriate adjustment (as determined in good faith by the Company's Board of
Directors) shall be made in the application of the provisions of this Warrant
with respect to the rights and interests of the Holder after the transaction, to
the end that the provisions of this Warrant shall be applicable after that
event, as near as reasonably may be, in relation to any shares or other property
deliverable after that event upon exercise of this Warrant.
11.2 Reclassification. If the Company, at any time while this
Warrant, or any portion thereof, remains outstanding and unexpired, by
reclassification of securities or otherwise, shall change any of the securities
as to which purchase rights under this Warrant exist into the same or a
different number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities that were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change and the Exercise
Price therefor shall be appropriately adjusted, and subject to further
adjustment as provided in this Section 11.
11.3 Split, Subdivision or Combination of Shares. If the
Company at any time while this Warrant, or any portion thereof, remains
outstanding and unexpired shall split, subdivide or combine the securities as to
which purchase rights under this Warrant exist, into a different number of
securities of the same class, the Exercise Price for such securities shall be
proportionately decreased in the case of a split or subdivision or
proportionately increased in the case of a combination.
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11.4 Issuance of Shares Below Exercise Price.
11.4. If at any time or from time to time after the Warrant
Issue Date, the Company shall issue or sell Additional Shares of Common Stock
(as hereinafter defined) other than as a dividend or other distribution on any
class of stock and other than upon a subdivision or combination of shares of
Common Stock for a consideration for shares less than the Exercise Price, then
forthwith upon the determination that the consideration for shares be less than
the Exercise Price, the Exercise Price shall be reduced to a price equal to the
consideration per share received by the Company upon such issue or sale.
11.4.2 For the purpose of this Section 11.4, the consideration
received by the Company, for any issue or sale of securities shall, (i) to the
extent it consists of cash, be computed at the net amount of cash received by
the Company, after deduction of any underwriting or similar commissions,
concessions or compensation paid or allowed by the Company in connection with
such issue or sale, and (ii) to the extent it consists of a service or property
other than cash, be computed at the fair value of that service or property as
determined in good faith by the Board.
The term "ADDITIONAL SHARES OF COMMON STOCK" as used herein shall mean all
shares of Common Stock issued or deemed issued by the Company, after the Warrant
Issue Date whether or not subsequently required or retired by the Company,
excluding shares issuable, upon the exercise of options granted to employees
that are issued and outstanding as of the date hereof.
11.5 No Impairment. The Company will not, by any, voluntary
action, avoid or seek to avoid the observance or performance of any of the
terms to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Section 1.1 and in the taking of all such action as may, be necessary or
appropriate in order to protect the rights of the Holders of this Warrant
against impairment.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officers thereunto duly authorized.
Dated:
------------------------------
NOMOS CORPORATION
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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NOTICE OF EXERCISE
TO: NOMOS CORPORATION
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: President
(1) The undersigned hereby elects to purchase _________ shares of
Common Stock of NOMOS Corporation pursuant to the terms of the attached Warrant,
and tenders herewith payment of the purchase price for such shares in full.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of Common Stock are being acquired solely for the
account of the undersigned and not as a nominee for any other party, and for
investment, and that the undersigned will not offer, sell or otherwise dispose
of any such shares of Common Stock except under circumstances that will not
result In a violation of the Securities Act of 1933, as amended, or any state
securities laws.
(3) Please issue a certificate or certificates representing said shares
of Common Stock in the name of the undersigned or In such other name as is
specified below:
--------------------------------------------
(Name)
--------------------------------------------
(Signature)
(4) Please issue a new Warrant for the unexercised portion of the
attached Warrant in the name of the undersigned or such other name as is
specified below.
--------------------------------------------
(Name)
--------------------------------------------
(Date) (Signature)
15
