Contract
Exhibit
4.8
THIS
WARRANT AND THE ORDINARY SHARES OF STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT
BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR SIMILAR APPLICABLE LAWS
IN
OTHER JURISDICTIONS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF
UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES
LAWS OR SPO MEDICAL EQUIPMENT LTD SHALL HAVE RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION OF SUCH SECURITIES
UNDER
THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES
LAWS
OR OTHER APPLICABLE SECURITIES LAWS IS NOT REQUIRED.
WARRANT
FOR THE PURCHASE OF COMMON SHARES OF STOCK
No.
February 2005
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60,000
Shares
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FOR
VALUE
RECEIVED, SPO Medical Inc. (the "Company"), hereby certifies that Innopex
limited, or a permitted assignee thereof (hereinafter, the “Holder”), is
entitled, to purchase from the Company, at any time or from time to time
commencing February 1, 2006, and prior to 5:00 P.M., New York time, on January
31, 2009, Sixty Thousand (60,000) fully paid and nonassessable shares of the
common stock of the Company for a per share purchase price of US $0.85.
(Hereinafter, (i) said ordinary shares of the stock of the Company, together
with any other equity securities which may be issued by the Company with respect
thereto or in substitution therefore, is referred to as "Shares," (ii) the
shares of the stock of the Company purchasable hereunder or under any other
Warrant (as hereinafter defined) are referred to as the "Warrant Shares," (iii)
the aggregate purchase price payable hereunder for the Warrant Shares is
referred to as the "Aggregate Warrant Price," (iv) the price payable hereunder
for each of the Warrant Shares is referred to as the "Per Share Warrant Price,"
(v) this Warrant, and all warrants hereafter issued in exchange or substitution
for this Warrant or such other warrants are referred to as the "Warrants".
The
Per Share Warrant Price is subject to adjustment as hereinafter provided; in
the
event of any such adjustment, the number of Warrant Shares shall be adjusted
by
dividing the Aggregate Warrant Price by the Per Share Warrant Price in effect
immediately after such adjustment.
This
Warrant is being issued pursuant to the terms of that certain letter agreement
as of this date (the “Agreement”), to which the Company and Holder (or Holder’s
predecessor in interest) are parties and all capitalized terms used herein
shall
have the meaning ascribed to them is the said promissory note unless the context
requires otherwise.
1. Exercise
of Warrant.
This
Warrant may be exercised, in whole at any time or in part from time to time,
commencing February 1, 2006, and prior to 5:00 P.M., New York time, on January
31, 2009, by the Holder by the surrender of this Warrant (with the subscription
form at the end hereof duly executed) at the address set forth in Subsection
8.1
hereof, together with proper payment of the Aggregate Warrant Price, or the
proportionate part thereof if this Warrant is exercised in part. Payment for
Warrant Shares shall be made by certified or official bank check payable to
the
order of the Company. If this Warrant is exercised in part, this Warrant must
be
exercised for a number of whole shares of Common Stock, and the Holder is
entitled to receive a new Warrant Covering the Warrant Shares which have not
been exercised and setting forth the proportionate part of the Aggregate Warrant
Price applicable to such Warrant Shares. Upon such surrender of this Warrant,
the Company will (a) issue a certificate or certificates in the name of the
Holder for the largest number of whole Shares to which the Holder shall be
entitled and, if this Warrant is exercised in whole, in lieu of any fractional
Shares to which the Holder shall be entitled, pay to the Holder cash in an
amount equal to the fair value of such fractional share (determined in such
reasonable manner as the Board of Directors of the Company shall determine),
and
(b) deliver the other securities and properties receivable upon the exercise
of
this Warrant, or the proportionate part thereof if this Warrant is exercised
in
part, pursuant to the provisions of this Warrant.
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2. Reservation
of Warrant Shares.
The
Company agrees that, prior to the expiration of this Warrant, the Company will
at all times have authorized and in reserve, and will keep available, solely
for
issuance or delivery upon the exercise of this Warrant, the Shares stock and
other securities and properties as from time to time shall be receivable upon
the exercise of this Warrant, free and clear of all restrictions on sale or
transfer and free and clear of all pre-emptive rights.
3. Protection
Against Certain Dilutive Events.
3.1 In
case
the Company shall hereafter (i) pay a dividend or make a distribution on its
capital stock in Shares, (ii) subdivide its outstanding Shares into a greater
number of shares, (iii) combine its outstanding Shares into a smaller number
of
shares or (iv) issue by reclassification of its Shares, any shares of capital
stock of the Company, the Per Share Warrant Price shall be adjusted so that
the
Holder of any Warrant upon the exercise hereof shall be entitled to receive
the
number of Shares or other capital stock of the Company which he would have
owned
immediately prior thereto. An adjustment made pursuant to this Subsection 3.1
shall become effective immediately after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or reclassification.
If, as a result of an adjustment made pursuant to this Subsection 3.1, the
Holder of any Warrant thereafter surrendered for exercise shall become entitled
to receive shares of two or more classes of capital stock or Shares and other
capital stock of the Company, the management (whose determination shall be
conclusive and shall be described in a written notice to the Holder of any
Warrant promptly after such adjustment) shall determine the allocation of the
adjusted Per Share Warrant Price between or among shares of such classes or
capital stock or Shares and other capital stock.
3.2 In
case
of any capital reorganization or reclassification, or any consolidation or
merger to which the Company is a party other than a merger or consolidation
in
which the Company is the continuing corporation, or in case of any sale or
conveyance to another entity of the property of the Company as an entirety
or
substantially as an entirety, or in the case of any statutory exchange of
securities with another corporation (including any exchange effected in
connection with a merger of a third corporation (including any exchange effected
in connection with a merger of a third corporation into the Company), the Holder
of this Warrant shall have the right thereafter to convert such Warrant into
the
kind and amount of securities, cash or other property which he would have owned
or have been entitled to receive immediately after such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance
had this Warrant been converted immediately prior to the effective date of
such
reorganization, reclassification, consolidation, merger, statutory exchange,
sale or conveyance and in any such case, if necessary, appropriate adjustment
shall be made in the application of the provisions set forth in this Section
3
with respect to the rights and interests thereafter of the Holder of this
Warrant to the end that the provisions set forth in this Section 3 shall
thereafter correspondingly be made applicable, as nearly as may reasonably
be,
in relation to any shares of stock or other securities or be, in relation to
any
shares of stock or other securities or property thereafter deliverable on the
conversion of this Warrant. The above provisions of this Subsection 3.2 shall
similarly apply to successive reorganizations, reclassifications,
consolidations, mergers, statutory exchanges, sales or conveyances. The issuer
of any shares of stock or other securities or property thereafter deliverable
on
the conversion of this Warrant shall be responsible for all of the agreements
and obligations of the Company hereunder.
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3.3 No
adjustment in the Per Share Warrant Price shall be required unless such
adjustment would require an increase or decrease of at least $0.05 per Share;
provided,
however,
that
any adjustments which by reason of this Subsection 3.3 are not required to
be
made shall be carried forward and taken into account in any subsequent
adjustment; provided further,
however, that adjustments shall be required and made in accordance with the
provisions of this Section 3 (other than this Subsection 3.3) not later than
such time as may be required in order to preserve the tax-free nature of a
distribution to the Holder of this Warrant or Shares issueable upon exercise
hereof. All calculations under this Section 3 shall be made to the nearest
cent
or to the nearest 1/100th of a share, as the case may be. Anything in this
Section 3 to the contrary notwithstanding, the Company shall be entitled to
make
such reductions in the Per Share Warrant Price, in addition to those required
by
this Section 3, as it in its discretion shall deem to be advisable in order
that
any stock dividend, subdivision of shares or distribution of rights to purchase
stock or securities convertible or exchangeable for stock hereafter made by
the
Company to its shareholders shall not be taxable.
4. Fully
Paid Stock; Taxes.
The
Company agrees that the Shares represented by each and every certificate for
Warrant Shares delivered on the exercise of this Warrant shall, at the time
of
such delivery, be validly issued and outstanding, fully paid and nonassessable,
and not subject to pre-emptive rights, and the Company will take all such
actions as may be necessary to assure that the par value or stated value, if
any, per Ordinary Share, is at all times equal to or less than the then Per
Share Warrant Price.
5. Limited
Transferability.
The
Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant
this Warrant has not been registered under the United States Securities Act
of
1933, as amended, (the "Act") or similar applicable laws in other jurisdictions
and has been issued to the Holder for investment and not with a view to the
distribution of either the Warrant or the Warrant Shares. Neither this Warrant
nor any of the Warrant Shares or any other security issued or issuable upon
exercise of this Warrant may be sold, transferred, pledged or hypothecated
in
the absence of an effective registration statement under the Act or similar
applicable laws relating to such security or an opinion of counsel satisfactory
to the Company that registration is not so required under the Act or similar
applicable laws. Each certificate for the Warrant, the Warrant Shares and any
other security issued or issuable upon exercise of this Warrant shall contain
a
legend on the face thereof, in form and substance satisfactory to counsel for
the Company, setting forth the restrictions on transfer contained in this
Section.
6. Loss,
etc., of Warrant.
Upon
receipt of evidence satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant, and of indemnity reasonably
satisfactory to the Company, if lost, stolen or destroyed, and upon
surrender and cancellation of this Warrant, if mutilated, the Company
shall execute and deliver to the Holder a new Warrant of like date,
tenor
and denomination.
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7. Warrant
Holder Not Shareholders.
Except
as otherwise provided herein, this Warrant does not confer upon the
Holder
any right to vote or to consent to or receive notice as a shareholder
of
the Company, as such, in respect of any matters whatsoever, or any
other
rights or liabilities as a shareholder, prior to the exercise
hereof.
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8. Communication.
No
notice or other communication under this Warrant shall be effective
unless, but any notice or other communication shall be effective
and shall
be deemed to have been given if, the same is in writing and is mailed
by
first-class mail, postage prepaid, addressed
to:
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8.1 the
Company at Attention:
Xxxxxxx Braunold, 00000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxx, Xxxxxxxxxx
00000,
or
such
other address as the Company has designated in writing to the
Holder.
8.2 the
Holder at such address as the Holder has designated in writing to the
Company.
9. Headings.
The
headings of this Warrant have been inserted as a matter of convenience
and
shall not affect the construction
hereof.
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10. Applicable
Law.
This
Warrant shall be governed by and construed in accordance with the law of the
State of New York without giving effect to the principles of conflicts of law
thereof.
11.
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Registration
Rights.
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If,
at
any time and from time the Company shall authorize the filing of a registration
statement under the Act or similar statue in other jurisdictions in connection
with the proposed offer of any of its securities by it or any of its
shareholders, the Company will take all action necessary to include the Warrant
Shares in such registration statement. The Holder’s rights hereunder shall be
subject to its compliance with the conditions or restrictions, including without
limitation, lock-ups, required by a-n underwriter (in the case of an
underwritten offering of Shares), or by the Company from its
shareholders.
IN
WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly
authorized officer this 1sth day of February 2006.
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/s/
Xxxxxxx Braunold
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Xxxxxxx
Braunold, CEO
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SUBSCRIPTION
The
undersigned, _________________, pursuant to the provisions of the foregoing
Warrant, hereby agrees to subscribe for and purchase _______________ common
Shares of the stock of SPO Medical Inc. covered by said Warrant, and makes
payment therefor in full at the price per share provided by said
Warrant.
Dated: | Signature: | |
Address:
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