Exhibit 10.25
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE
SECURITIES LAW, AND NO INTEREST IN IT MAY BE SOLD,
DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR
OTHERWISE TRANSFERRED ABSENT SUCH REGISTRATION
(OR THE AVAILABILITY OF AN EXEMPTION THEREFROM) AND
COMPLIANCE WITH THE OTHER CONDITIONS OF THIS WARRANT
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REPLACEMENT
PURCHASE WARRANT CERTIFICATE
Issued to:
XXXX XXXXXXXXX & XXXXXX, INC.
Exercisable to Purchase
308,750 Shares of Common Stock
of
ATHENA MEDICAL CORPORATION
Void after November 18, 1999
This Warrant Certificate certifies that, for value received and subject to the
terms and conditions set forth below, the Warrantholder (hereafter defined) is
entitled to purchase, and the Company promises and agrees to sell and issue to
the Warrantholder, at any time on or before November 18, 1999, up to 308,750
Shares (hereafter defined) at the Exercise Price (hereafter defined).
This Warrant supersedes and replaces in its entirety the warrant issued by the
Company to the Warrantholder dated November 18, 1994, following renegotiation of
certain of such warrant's terms on the date hereof.
This Warrant is issued subject to all the following terms and conditions:
1. DEFINITIONS OF CERTAIN TERMS: Except as may be otherwise clearly required
by the context:
(a) COMMON STOCK means the $0.01 par value common stock of the Company.
(b) COMPANY means ATHENA Medical Corporation, a Nevada corporation.
(c) EXERCISE PRICE means the price at which the Warrantholder may purchase
one Share (or Securities obtainable in lieu of one Share) upon
exercise of the Warrant as determined from time to time pursuant to
the provisions hereof. The Exercise Price is $1.50 per Share.
(d) SECURITIES means the Shares obtained or obtainable upon exercise of
the Warrant or securities obtained or obtainable upon exercise,
exchange or conversion of such Shares.
(e) SHARE shall mean one share of Common Stock for which the Warrant is
initially exercisable.
(f) WARRANT CERTIFICATE means this certificate evidencing the Warrant.
(g) WARRANTHOLDER means the record holder of the Warrant or Securities.
The Warrantholder is XXXX XXXXXXXXX & XXXXXX, INC.
(h) WARRANT means the warrant evidenced by this certificate or any
certificate obtained upon permitted transfer or partial exercise of
the Warrant evidenced by any such certificate.
(i) REQUIRED CONDITION means this Warrant is valid as follows:
none. The Required Condition has been satisfied as of December 28,
1994 by the consummation of a Stock Sale Agreement between the
Warrantholder and the Company dated November 18, 1994.
2. EXERCISE OF WARRANTS. Subject to the Required Condition, all or any part
of the Warrant may be exercised at any time on or before 5 p.m. Pacific
Time on November 18, 1999 by surrendering this Warrant Certificate,
together with appropriate instructions, duly executed by the Warrantholder
or by its duly authorized attorney, at the office of the Company, 00000 XX
Xxxxxx, Xxxxx X-0, Xxxxxxxx, Xxxxxx 00000, or at such other office or
agency as the Company may designate. Upon receipt of notice of exercise,
the Company shall immediately instruct its transfer agent to prepare
certificates for the Securities to be received by the Warrantholder upon
completion of the Warrant exercise. When such certificates are prepared,
the Company shall notify the Warrantholder and deliver such certificates to
the Warrantholder or as per the Warrantholder's instructions immediately
upon payment in full by the Warrantholder, in lawful money of the United
States, of the Exercise Price payable with respect to the Securities being
purchased. Such Securities shall be registered with the Securities and
Exchange Commission on or before the next registration effected by the
Company, and thereafter certificates representing
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them shall not bear a legend with respect to the Securities Act of 1933,
upon compliance with such registration and Section 8(b) of this Warrant.
Prior thereto, both the Securities and this Warrant shall be restricted,
and bear a legend to comply with federal and state law.
The Securities to be obtained on exercise of the Warrant will be deemed to
have been issued, and the Warrantholder will be deemed to have become a
holder of record of those Securities, as of the date of full payment of the
Exercise Price.
If fewer than all the Securities purchasable under the Warrant are
purchased, the Company will, upon such partial exercise, execute and
deliver to the Warrantholder a new Warrant Certificate (dated the date
hereof), in form and tenor similar to this Warrant Certificate, evidencing
that portion of the Warrant not exercised.
3. ADJUSTMENTS IN CERTAIN EVENTS. The number, class and price of Securities
for which this Warrant Certificate may be exercised are subject to
adjustment from time to time upon the occurrence of certain events as
follows:
(a) If the outstanding shares of the Company's Common Stock are divided
into a greater number of shares, the number of shares of Common Stock
for which the Warrant is then exercisable will be proportionately
increased and the Exercise Price will be proportionately reduced.
Conversely, if the outstanding shares of the Company's Common Stock
are combined into a smaller number of shares, the number of shares of
Common Stock for which the Warrant is then exercisable will be
proportionately reduced and the Exercise Price will be proportionately
increased.
(b) In case of any change in the Common Stock through merger,
consolidation, reclassification, reorganization, partial or complete
liquidation, purchase of substantially all the assets of the Company
or other change in the capital structure of the Company, then the
Warrantholder will have 30 days to exercise the purchase right
hereunder, or lose all such rights.
(c) When any adjustment is required to be made in the number of shares of
Common Stock purchasable upon exercise of the Warrant, the Company
will promptly determine the new number of such shares purchasable upon
exercise of the Warrant, and (i) prepare and retain on file a
statement describing in reasonable detail the method used in arriving
at the new number of such shares, and (ii) cause a copy of such
statement to be mailed to the Warrantholder within 30 days after the
date of the event giving rise to the adjustment.
(d) No fractional shares of Common Stock or other securities will be
issued in connection with exercise of the Warrant.
(e) Notwithstanding anything herein to the contrary, there will be no
adjustment made under the Warrant on account of the sale of the Common
Stock or other Securities purchasable upon exercise of the Warrant.
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4. RESERVATION OF SHARES. The Company agrees that the number of shares of
Common Stock or other Securities sufficient to provide for exercise of the
Warrant upon the basis set forth above will at all times during the term of
the Warrant be reserved for exercise.
5. VALIDITY OF SECURITIES. All Securities delivered upon the exercise of the
Warrant will be duly and validly issued in accordance with their terms, and
the Company will pay all documentary and transfer taxes, if any, in respect
of the original issuance thereof upon exercise of the Warrant.
6. NO RIGHTS AS A SHAREHOLDER. Except as otherwise provided herein, the
Warrantholder will not, by virtue of ownership of the Warrant, be entitled
to any rights of a shareholder of the Company.
7. TRANSFER OF WARRANT. This is not a bearer warrant. This Warrant may be
sold, assigned, encumbered or otherwise transferred if: (a) the Company
receives an opinion of counsel to the Warrantholder, reasonably
satisfactory to the Company, that the proposed transfer is exempt from
registration under federal and applicable state securities laws or the
transaction is otherwise in compliance with the registration requirements
thereof; and (b) if a partial transfer is proposed, not fewer than 5,000
Securities per transferee are the subject thereof. Any warrant issued to
any such transferee may not be sold, assigned, encumbered or otherwise
transferred (except by will or the laws of intestacy), in whole or in part,
without the prior written consent of the Company and compliance with
applicable securities laws.
8. COMPLIANCE WITH SECURITIES LAWS; LIMITATION ON SALES. By accepting this
Warrant, the Warrantholder represents, acknowledges and agrees that:
(a) This Warrant, and the Securities if the Warrant is exercised, are
acquired only for investment, for the Warrantholder's own account, and
without any present intention to sell or distribute this Warrant or
the Securities. The Warrantholder further acknowledges that the
Securities will not be issued pursuant to any exercise of this Warrant
unless the exercise and the issuance and delivery of such Securities
shall comply with all relevant provisions of law, including without
limitation the Securities Act of 1933, as amended (the "1933 Act"),
and other federal and state securities laws and regulations, and the
requirements of any stock exchange upon which the Securities may then
be listed.
(b) Notwithstanding anything in Section 8(a) above to the contrary, and as
provided in Section 2 above, the Company has agreed to register the
Securities. During the period that the Company's registration
statement is effective, the Warrantholder may not sell any of the
Securities acquired by exercise of this Warrant which, together with
all sales of restricted and other securities of the same class of the
Company for the account of the Warrantholder, exceed within any three-
month period the greater of (i) 1.0% of the Company's issued Common
Stock as shown on the most recent report or statement published by the
Company, or (ii) the average weekly reported volume of trading in such
Common Stock on all national securities exchanges and/or reported
through the automated quotation system of a registered securities
association during the four calendar weeks preceding receipt of the
order to execute the transaction by the Warrantholder's broker or the
date of execution of the transaction directly with a market maker. If
the Company's prospectus included in the registration statement
(including any amendments)
Page 4 - Warrant Certificate
is not in compliance with the 1933 Act at any time while the
registration statement is effective, the Company will take reasonably
prompt action to update the prospectus to comply with the 1933 Act and
the Warrantholder may not conduct any trading until the prospectus is
updated.
9. MISCELLANEOUS. No amendment, waiver, termination or other change to this
Warrant or any term of it will be effective unless set forth in a writing
signed by the party sought to be bound. Any notices required or permitted
under this Warrant must be in writing and will be deemed to have been given
when personally delivered to a party or 48 hours after deposit in the
United States Mail, first class postage prepaid by both first class and
certified mail, return receipt requested, or 48 hours after delivery to a
recognized national overnight carrier, with overnight shipping charges
paid, and addressed to such party as follows:
If to the Company: ATHENA Medical Corporation
00000 XX Xxxxxx Xxx., Xxxxx X-0
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, President
If to the Warrantholder: Xxxx XxxXxxxxx & Xxxxxx, Inc.
0000 XX Xxxxxxx Xxxx,
Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, President
or such other address as a party may specify by a notice in writing, given
in the same manner.
10. APPLICABLE LAW. This Warrant Certificate will be governed by and construed
in accordance with the laws of the state of Oregon, without reference to
conflict of laws principles thereunder. All disputes relating to this
Warrant Certificate shall be tried before the courts of Oregon located in
Multnomah County, Oregon, to the exclusion of all other courts that might
have jurisdiction.
DATED March ___, 1996, in replacement of the warrant dated November 18, 1994.
ATHENA MEDICAL CORPORATION
By
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Xxxxxxx X. Xxxxxxx, President
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