EXHIBIT 10.3
VOID AFTER 5:00 P.M., EASTERN TIME,
ON MARCH 27, 2005
THIS WARRANT AND THE SHARES OF COMMON STOCK UNDERLYING THIS WARRANT
(COLLECTIVELY, THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, ASSIGNED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION UNDER SUCH ACT OR IN A
TRANSACTION THAT, IN THE OPINION OF COUNSEL TO CAPRIUS, INC., QUALIFIES AS AN
EXEMPT TRANSACTION UNDER SUCH ACT AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER.
CAPRIUS, INC.
SERIES B COMMON STOCK PURCHASE WARRANT
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No. WB- Shares
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CAPRIUS, INC., a Delaware corporation (the "Company"), hereby certifies
that (the "Initial Holder"), is entitled, subject to
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the terms set forth below, to purchase from the Company,
shares (the "Shares") of fully paid and
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non-assessable Common Stock of the Company, par value $.01 per share, at a
purchase price of Seventy Five Cents ($0.75) per Share, subject to adjustment
from time to time pursuant to Section 3 hereof (the "Exercise Price"). The term
"Common Stock" means, unless the context otherwise requires, the Company's
Common Stock, par value $.01 per share, or other securities or property at the
time deliverable upon the exercise of this Warrant.
This Warrant is part of the Series B of Common Stock Purchase Warrants
initially issued for the purchase of an aggregate of up to 666,667 units (the
"Units") as part of a private placement by the Company pursuant to the terms of
a Stock Purchase Agreement, dated as of March 27, 2000 among the Company and the
Initial Holders. Each Unit consisted of (i) three (3) shares of Common Stock,
(ii) four (4) redeemable Series A Warrants and (iii) two (2) redeemable Series B
Warrant to purchase shares of Common Stock.
1. Exercise.
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1.1 Timing of Exercise. This Warrant shall be exercisable in whole or
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in part from time to time commencing as of March 27, 2000 and expiring at 5:00
P.M., New York time, on March 27, 2005 (the "Expiration Date"), subject to
earlier termination as provided herein, and may not be exercised thereafter.
1.2 Manner of Exercise. The purchase rights evidenced by this Warrant
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shall be exercised by the Initial Holder or any person permitted by Section 6.1
herein (collectively, "the Holder"), by surrendering this Warrant, with the
Notice of Exercise in the form of Exhibit A hereto duly executed by the Holder,
to the Company at its principal office (or such other office as may be
designated by the Company to the Holder), accompanied by payment (in cash, by
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wire transfer or by certified or official bank check or checks) of the Exercise
Price.
1.3 Partial Exercise. This Warrant may be exercised for less than the
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full number of shares of Common Stock at the time called for hereby, in which
case the number of shares receivable upon the exercise of this Warrant as a
whole, and the sum payable upon the exercise of this Warrant as a whole, shall
be proportionately reduced. Upon any such partial exercise, the Company at its
expense will forthwith issue to the Holder a new Warrant or Warrants of like
tenor calling for the number of shares of Common Stock as to which rights have
not been exercised, such Warrant or Warrants to be issued in the name of the
Holder.
2. Delivery of Stock Certificates Upon Exercise. As soon as practicable
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after the exercise of this Warrant, and in any event within five (5) business
days thereafter, the Company, at its expense, will cause to be issued in the
name of and delivered to the Holder a certificate or certificates for the number
of fully paid and non-assessable shares of Common Stock to which the Holder
shall be entitled upon such exercise. Any shares of Common Stock as to which
this Warrant is exercised shall be deemed issued on and as of the date of such
exercise, and the Holder shall thereupon be deemed to be the owner of record of
such shares.
3. Anti-Dilution Adjustments.
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3.1 Change in Capitalization. In case of any stock split, stock
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dividend or similar transaction which increases or decreases the number of
outstanding shares of Common Stock, appropriate adjustment shall be made by the
Chief Financial Officer of the Company to the number of Shares, and the Exercise
Price per Share, of Common Stock which may be purchased under this Warrant.
3.2 Consolidation, Merger and Sale of Assets.
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(a) In case of any consolidation of the Company with or a
merger of the Company into another corporation or in case of any sale or
conveyance to another corporation of the property of the Company as an entirety
or substantially as an entirety, upon any such consolidation, merger, sale or
conveyance and the surviving entity is a publicly traded company, the Company
agrees that a condition of such transaction will be that the Company or such
successor or purchasing corporation, as the case may be, shall assume the
obligations of the Company hereunder in writing. In the case of any such
consolidation, merger or sale or conveyance, the Holder shall have the right
until the Expiration Date upon payment of the Exercise Price in effect
immediately prior to such action, to receive the kind and amount of shares and
other securities and/or property which it would have owned or have been entitled
to receive after the happening of such consolidation, merger, sale or conveyance
had this Warrant been exercised immediately prior to such action, subject to
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 3. The provisions of this Section
3.2(a) shall similarly apply to successive consolidations, mergers, sales or
conveyances.
(b) In case of any consolidation of the Company with or a
merger of the Company into another corporation or in case of any sale or
conveyance to another corporation of the property of the Company as an entirety
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or substantially as an entirety, upon any such consolidation, merger, sale or
conveyance and the surviving entity is a non-publicly traded company, the
Company agrees that a condition of such transaction will be that the Company
shall mail to the Holder at the earliest applicable time (and, in any event not
less than 20 days before any record date for determining the persons entitled to
receive the consideration payable in such transaction) written notice of such
record date. Such notice shall also set forth facts as shall indicate the effect
of such action (to the extent such effect may be known at the date of such
notice) on the Exercise Price of and the kind and amount of the shares of stock
and other securities and property deliverable upon exercise of this Warrant.
Upon the closing of the transaction referenced in the foregoing notice, this
Warrant to the extent then unexercised shall terminate.
3.3 Exchanges and Distributions With Respect to Common Stock. If the
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Company shall exchange for its Common Stock or distribute with respect to its
Common Stock other securities issued by it, the Company shall give notice
thereof to the Holder, and the Holder shall have the right thereafter (until the
expiration of this Warrant) to exercise this Warrant for the kind and amount of
shares of stock and other securities retained or received by a holder of the
number of shares of Common Stock of the Company into which this Warrant might
have been converted immediately prior to such exchange or distribution, subject
to adjustment as provided hereinabove.
3.4 Officer's Certificate. Whenever the Exercise Price per share or the
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number of shares of Common Stock subject to this Warrant is adjusted, the
Company shall promptly mail to the Holder of this Warrant a notice of
adjustment, which notice shall include a brief statement of the facts requiring
the adjustment and the manner of computing it and shall be certified by the
chief financial officer of the Company. The determination of the adjustment
shall be made by the Company in its sole discretion and shall be final and
binding upon the Holder absent manifest error.
4. Shares to Be Fully Paid; Reservation of Capital Stock Issuable Upon
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Exercise of Warrants. The Company covenants and agrees that any Shares issued
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hereunder will, upon issuance, be fully paid and non-assessable and free from
all taxes, liens and charges with respect to the issuance thereof. The Company
shall at all times reserve and keep available out of its authorized but unissued
capital stock, solely for the issuance and delivery upon the exercise of this
Warrant, such number of its duly authorized shares of Common Stock and other
securities as from time to time shall be issuable upon the exercise of this
Warrant.
5. Fractional Shares. The Company shall not issue fractions of shares
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of Common Stock upon exercise of this Warrant or scrip in lieu thereof. If any
fraction of a share of Common Stock would, except for the provisions of this
Section 5, be issuable upon exercise of this Warrant, then the number of shares
of Common Stock to be issued shall be rounded up or down to the nearest whole
share.
6. Transfer Restrictions
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6.1 Transfer. A Holder, including the Initial Holder or any subsequent
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Holder, may transfer this Warrant only to (i) any other Holder, (ii) any entity
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controlled by, controlling or under common control of the Holder, or for which
the Holder is acting as the representative, or to one or more of its
shareholders, directors, officers, members, employees or limited or general
partners, or to entities that manage or co-manage the Holder or any of its
limited or general partners, or (iii) any member of the immediate family (which
shall be deemed to include a spouse, parent, or child) of an individual Holder
or trust for the benefit of any such individual. Prior to any such transfer, the
Holder must deliver the Assignment Form in the form of Exhibit B hereto and
provide information to the Company, in writing, regarding the proposed
transferee sufficient for the Company to determine the eligibility of such
transferee under this Section 6.
6.2 Securities Laws. The Holder of this Warrant, by accepting delivery of
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the same, hereby:
(a) acknowledges that any shares of Common Stock issued
pursuant to the exercise of this Warrant may not be registered under the
Securities Act of 1933, as amended (the "Securities Act"), at the time issued;
(b) agrees that, upon the exercise of this Warrant, he shall
make the customary representations and warranties as may be requested by counsel
to the Company in order for the Company to properly rely upon Section 4(2) of
the Securities Act regarding exemption from registration thereunder, and, in
connection with such exemption, that any certificates representing shares of
Common Stock issued pursuant to this Warrant would reflect an appropriate legend
regarding restrictions upon transferability; and
(c) agree to indemnify the Company, and hold it harmless from
and against, any and all losses, expenses (including attorneys' fee), costs and
damages arising form or relating to any violation of applicable state securities
or "blue sky" laws in connection with the issuance, sale, delivery or exercise
of this Warrant and the issuance, sale and delivery of shares of Common Stock
upon any exercise of this Warrant.
7. Redemption of Warrants. The Warrants are redeemable by the Company
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at any time, in whole or in part, on not less than thirty (30) days prior
written notice at a redemption price of $.01 per Warrant, provided the closing
bid quotation of the Common Stock as reported on the OTC Bulletin Board, if
traded thereon, or if not traded thereon, the closing sale price if listed on a
national securities exchange or the Nasdaq market (or other reporting system
that provides last sale prices), has been at least 667% of the then current
Exercise Price of the Warrants, for a period of 15 consecutive trading days
ending within five days prior to the date on which the Company gives notice of
redemption. Any redemption in part shall be made pro rata to all Holders. The
redemption notice shall be mailed to the Holders pursuant to Section 12 hereof.
Any such notice mailed in the manner provided herein shall be conclusively
presumed to have been duly given in accordance with this Agreement whether or
not the registered holder receives such notice. No failure to mail such notice
nor any defect therein or in the mailing thereof shall affect the validity of
the proceedings for such redemption except as to a registered holder of a
Warrant (i) to whom notice was not mailed or (ii) whose notice was defective. An
affidavit of the Secretary or Assistant Secretary of the Company that notice of
redemption has been mailed shall, in the absence of fraud, be prima facie
evidence of the facts stated therein. Holders of the Warrants will have exercise
rights until the close of business on the day immediately preceding the date
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fixed for redemption. On and after the date fixed for redemption, the holder
shall have no right with respect to the Warrant except to receive $.01 per
Warrant upon surrender of the Warrant. If any Shares have not been registered
pursuant Section 6 of the Stock Purchase Agreement, the Company agrees not to
redeem any of the Warrants under this Section 7 until 30 days after a
registration statement under the Securities Act (a "Registration Statement") has
been declared effective with respect to such Shares. The Company shall notify
the Holders of its intention to file such a Registration Statement pursuant to
Section 12, hereof.
8. Registration Under the Securities Act of 1933. Any obligation the
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Company has to file any registration statement under the Securities Act to
effect the resale of all of the shares of Common Stock receivable upon exercise
of the Warrants is set forth in Section 6 of the Stock Purchase Agreement.
9. Replacement of Warrant. Upon receipt of evidence reasonably
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satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of an
indemnity agreement, and if requested by the Board of Directors, a bond in an
amount reasonably satisfactory to it, or (in the case mutilation) upon surrender
and cancellation hereof, the Company will issue in lieu thereof a new Warrant of
like tenor.
10. Rights as a Warrant Holder. The Holder shall not, by virtue hereof,
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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 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 and
such right of the Company shall not be affected by any notice to the contrary.
11. Subdivision of Rights. This Warrant (as well as any new warrant
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issued pursuant to the provisions of this Section) is exchangeable upon the
surrender hereof by the Holder at the principal office of the Company for any
number of new warrants of like tenor and date representing in the aggregate the
right to subscribe for and purchase the number of shares of Common Stock of the
Company that may be subscribed for and purchased hereunder.
12. Sending of Notices. All notices and other communications with
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respect to this Warrant shall be in writing and sent by express mail or courier
service or by personal delivery, if to the Holder, to the address set forth on
the records of the Company, and if to the Company, to One Xxxxxx Plaza, Fort
Xxx, New Jersey 07024, Attn: President, or to such other address as either party
hereto may duly give to the other.
13. Headings. The headings in this Warrant are for purposes of
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reference only and shall not limit or otherwise affect the meaning of the terms
hereof.
14. Change, Waiver, Discharge or Termination. This Warrant sets forth
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the entire agreement between the Company and the Holder with respect to the
matters herein. Neither this Warrant nor any term hereof may be changed, waived,
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discharged or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of the change, waiver, discharge or
termination is sought. The Company shall not amend any other Warrant issued as
part of this Series to make terms thereunder more favorable to the Holder
thereof without offering the same amended terms to the Holder hereof.
15. Governing Law. This Warrant shall be governed by, and construed in
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accordance with, the laws of the State of Delaware.
CAPRIUS, INC.
By:
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Dated: , 2000
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EXHIBIT A
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NOTICE OF EXERCISE
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(To be executed by a Holder desiring to exercise the right to purchase Shares
pursuant to a Warrant.)
The undersigned Holder of a Warrant hereby:
(a) Irrevocably elects to exercise the Warrant to the extent of purchasing
Shares;
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(b) Makes payment in full of the aggregate Exercise Price for those Shares by
wire transfer or the delivery of certified funds or a bank cashier's check in
the amount of $ ;
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(c) Requests that a certificate for such Shares be issued in the name of the
undersigned, or, if the name and address of some other person is specified
below, in the name of such other person:
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(Name, address and tax identification number of person other than the
undersigned in whose name Shares are to be registered.)
(d) Requests, if the number of Shares purchased are not all the Shares
purchasable pursuant to the unexercised portion of the Warrant, that a new
Warrant of like tenor for the remaining Shares purchasable pursuant to the
Warrant be issued and delivered to the undersigned at the address stated below.
Dated:
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Signature
(This signature must conform in all respects to the name of the Holder as
specified on the face of the Warrant.)
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Tax Identification Number Printed Name
Address:
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Stock Warrant No.: ##
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EXHIBIT B
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ASSIGNMENT FORM
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FOR VALUE RECEIVED, the undersigned,
, hereby sells, assigns and transfers unto:
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Name:
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(Please type or print in block letters.)
Address:
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the right to purchase shares (the "Shares") of Caprius, Inc. (the
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"Company") pursuant to the terms and conditions of the Warrant held by the
undersigned. The undersigned hereby authorizes and directs the Company (i) to
issue and deliver to the above-named assignee at the above address a new Warrant
pursuant to which the rights to purchase being assigned may be exercised, and
(ii) if there are rights to purchase Shares remaining pursuant to the
undersigned's Warrant after the assignment contemplated herein, to issue and
deliver to the undersigned at the address stated below a new Warrant evidencing
the right to purchase the number of Shares remaining after issuance and delivery
of the Warrant to the above-named assignee. Except for the number of Shares
purchasable, the new Warrant to be issued and delivered by the Company is to
contain the same terms and conditions as the undersigned's Warrant. This
Assignment is subject to receipt by the Company of such investment
representations by the assignee, as may be reasonably required under the
Securities Act of 1933, as amended. To complete the assignment contemplated by
this Assignment Form, the undersigned hereby irrevocably constitutes and
appoints as the undersigned's attorney-in-fact to
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transfer the Warrant and the rights thereunder on the books of the Company with
full power of substitution for these purposes.
Dated:
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Signature
(This signature must conform in all respects to the name of the Holder as
specified on the face of the Warrant.)
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Social Security Number Printed Name
or Employer ID Number
Address:
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Stock Warrant No.: ##
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