EXHIBIT 4.32
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, NOR UNDER ANY STATE SECURITIES LAWS AND NEITHER THE
SECURITIES NOR ANY INTEREST THEREIN MAY BE TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SAID ACT OR SUCH LAWS AND THE RULES AND REGULATIONS THEREUNDER.
WARRANT TO PURCHASE SHARES OF COMMON
STOCK OF AMPERSAND MEDICAL CORPORATION
WARRANT NO. 1-___. DATED: _____
This certifies that _____________ (the "HOLDER") for value received, is
entitled, subject to the terms set forth below to purchase from AMPERSAND
MEDICAL CORPORATION, a Delaware corporation (the "COMPANY"), _________________
(_______) fully paid and nonassessable shares (the "WARRANT SHARES") of the
Company's Common Stock, par value $0.001 per share (the "STOCK") at a price of
________ ($______) per share (the "STOCK PURCHASE PRICE") at any time but not
earlier than the Commencement Date (as defined below) or later than 5:00 pm (New
York Time) on the Expiration Date (as defined below), upon surrender to the
Company at its principal office at 000 X. Xxxxxxx Xx., Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000, Attention: President (or at such other location as the Company
may advise Holder in writing) of this Warrant properly endorsed with the form of
Exercise Notice attached hereto duly completed and signed upon payment in cash
or cashier's check of the aggregate Stock Purchase Price for the number of
shares for which this Warrant is being exercised determined in accordance with
the provisions hereof. The Stock Purchase Price and the number of Warrant Shares
purchasable hereunder are subject to adjustment as provided in Section 3 of this
Warrant. This Warrant and all rights hereunder to the extent not exercised in
the manner set forth herein shall terminate and become null and void on the
Expiration Date (as defined below). "COMMENCEMENT DATE" shall mean the date of
this Warrant. Expiration date shall mean the fifth anniversary of the
Commencement Date.
This Warrant is subject to the following terms and conditions:
1. EXERCISE; ISSUANCE OF CERTIFICATES PAYMENT FOR WARRANT SHARES
(a) This Warrant is exercisable by payment of the Stock Purchase Price
by cash payment, certified check or wire transfer, in the manner set forth above
at the option of Holder at any time but not earlier than the Commencement Date
or later than 5:00 p.m. (New York Time) on the Expiration Date for all or a
portion of the shares of Stock subject to this Warrant. The Company agrees that
the Warrant Shares purchased under this Warrant shall be and are deemed to be
issued to Holder as the record owner of such shares as of the close of business
on the date on which this Warrant shall have been surrendered and payment made
for such shares (unless the Conversion Right is exercised). Subject to the
provisions of Section 2, certificates for the Warrant Shares so purchased shall
be delivered to holder by the Company's transfer agent at the Company's expense
within a reasonable time after the rights represented by this Warrant have been
exercised. The stock certificate(s) so delivered shall be in such
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denominations of Stock requested by Xxxxxx and shall be registered in the name
of the Holder or such other name as shall be designated by the Holder, subject
to the limitations contained in Section 2. If, upon exercise of this Warrant,
fewer than all of the shares of Stock evidenced by this Warrant are purchased
prior to the Expiration Date of this Warrant, one or more new warrants
substantially in the form of, and on the terms of, this Warrant will be issued
for the remaining number of shares of Stock not purchased upon exercise of this
Warrant.
(b) In lieu of the payment of the Stock Purchase Price, the Holder may
require the Company to convert this Warrant into shares of Stock (the
"Conversion Right") as provided for in this SECTION 1(b). Upon exercise of the
Conversion Right, the Company shall deliver to the Holder (without payment by
the Holder of any of the Stock Purchase Price) that number of shares of Stock
equal to the quotient obtained by dividing (x) the value of the Warrant at the
time the Conversion Right is exercised (determined by subtracting the aggregate
Stock Purchase Price in effect immediately prior to the exercise of the
Conversion Right from the aggregate Market Value (as defined in SECTION 1(d)
below), for the Warrant Shares immediately prior to the exercise of the
Conversion Right) by (y) the Market Value.
(c) The Conversion Right may be exercised by the Holder by delivering
the Warrant Certificate with a duly executed Exercise Notice in the form
attached hereto with the conversion section completed to the Company.
(d) For the sole purpose of determining the number of Warrant Shares
which shall be delivered to the Holder by the Company pursuant to the Conversion
Right as set forth in SECTION 1(b) above, "Market Value") shall mean the average
daily closing price of a share of the Stock as listed on the exchange or
quotation system of which the Stock may then be listed for the ten (10)
consecutive days of trading ending on the third business day immediately
preceding the date of exercise of such Conversion Right, or in the event the
Stock is not then publicly traded, the Market Value shall be determined in good
faith by the Company and the Holder.
2. SHARES TO BE FULLY PAID; RESERVATION OF SHARES. The Company covenants
and agrees that the Warrant Shares will, upon issuance, be duly authorized,
validly issued, fully paid and nonassessable and free from all preemptive rights
of any stockholder and free of all taxes (other than income taxes, which may be
applicable to Holder, liens and charges with respect to the issue thereof. The
Company covenants that it will reserve and keep available a sufficient number of
shares of its authorized but unissued Stock for such exercise. The Company will
take all such reasonable action as may be necessary to assure that such shares
of Stock may be issued as provided herein without violation of any applicable
law or regulation, or of any requirements of any domestic securities exchange or
automated quotation system upon which the Stock may be listed.
3. ADJUSTMENT OF STOCK PURCHASE PRICE PAID NUMBER OF SHARES. The Stock
Purchase Price and the number of shares purchasable upon the exercise of this
Warrant shall be subject to adjustment from time to time upon the occurrence of
certain events described in this SECTION 3.
3.1 SUBDIVISION OR CONTINUATION OF STOCK AND STOCK DIVIDEND. In case the
Company shall at any time subdivide its outstanding shares of Stock into a
greater number of
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shares or declare a dividend upon its Stock payable solely in shares of Stock,
the Stock Purchase Price in effect immediately prior to such subdivision or
declaration shall be proportionately reduced, and the number of shares issuable
upon exercise of the Warrant shall be proportionately increased. Conversely, in
case the outstanding shares of Stock of the Company shall be combined into a
small number of shares the Stock Purchase Price in effect immediately prior to
such combination shall be proportionately increased and the number of shares
issuable upon exercise of the Warrant shall be proportionately reduced.
3.2 NOTICE OF ADJUSTMENT. Promptly after adjustment of the Stock Purchase
Price or any increase or decrease in the number of shares purchasable upon the
exercise of this Warrant, the Company shall give written notice thereof, by
first class mail, postage prepaid, addressed to the Holder at the address of the
Holder as shown on the books of the Company (the notice shall be signed by an
authorized officer of the Company and shall state the effective date of the
adjustment and the Stock Purchase Price resulting from such adjustment and the
increase or decrease, if any, in the number of shares purchasable at such price
upon the exercise of this Warrant, setting forth in reasonable detail the method
of calculation and the facts upon which such calculation is based.
3.3 CHANGES IN STOCK. In case at any time prior to the Expiration Date, the
Company shall be a party to any transaction (including, without limitation, a
merger, consolidation, sale of all or substantially all of the Company's assets
recapitalization of the Stock) in which the previously outstanding Stock shall
be changed into or exchanged for different securities of the Company or common
stock or other securities of another corporation or interests in noncorporate
entity or other property (including cash) or the Company shall make a
distribution on its shares, other than regular cash dividends on its outstanding
stock, or any combination of any of the foregoing (each such transaction being
herein called the "TRANSACTION" and the date of consummation of the Transaction
being herein called the "CONSUMMATION DATE"), then, as a condition of the
consummation of the Transaction, lawful and adequate provisions shall be made so
that each Holder, upon the exercise hereof at any time on or after the
Consummation Date, shall be entitled to receive, and this Warrant shall
thereafter represent the right to receive, in lieu of the Stock issuable upon
such exercise prior to the Consummation Date, the highest amount of securities
or other property to which the Holder would actually have been entitled as a
stockholder upon the consummation of the Transaction if the Holder and exercised
such Warrant immediately prior thereto. The provisions of this SECTION 3.3 shall
similarly apply to successive Transactions.
4. INVESTMENT REPRESENTATIONS.
By receipt of this Warrant, and by its execution the Holder represents
to the Company the following:
(a) the Holder understands that this Warrant and any Stock purchased
upon the exercise as securities, the issuance of which requires compliance with
Federal and state securities laws; and
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(b) the Holder is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the Company to
reach an informed and knowledgeable decision to acquire this Warrant; and
(c) the Holder is acquiring this Warrant for investment for the
Holder's own account only and not with a view to, or for resale in connection
with, any "distribution" thereof within the meaning of the Securities Act of
1933, as amended (the "ACT"); and
(d) the Holder acknowledges and understands that the securities
constitute "restricted securities" under the Act and must be held indefinitely
unless they are subsequently registered under the Act or an exemption from such
registration is available.
5. ISSUE TAX. The issuance of certificates for shares of Stock upon the
exercise of the Warrant shall be made without charge to the holder of the
Warrant for any issue tax in respect thereof; provided, however, that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any certificate in a name
other than that of the then holder of the Warrant being exercised.
6. NO VOTING OR DIVIDEND RIGHTS; LIMITATION OF LIABILITY. Nothing contained
in this Warrant shall be construed as conferring upon the Holder hereof the
right to vote or to consent or to receive notice as a stockholder in respect of
meetings of stockholders for the election of directors of the Company or any
other matters or any rights whatsoever as a stockholder of the Company in
addition if the Holder of the Warrant does not exercise this Warrant or convert
this Warrant pursuant to SECTION 1(b) above prior to the occurrence of an event
described above, except as provided in SECTION 3.1 and 3.5, the Holder shall not
be entitled to receive the benefits accruing to existing holders of the Stock
pursuant to such event. No dividends or interest shall be payable or accrued in
respect of this Warrant or the interest represented hereby or the shares
purchasable hereunder until, and only to the extent that, this Warrant shall
have been exercised. No provisions hereof in the absence of affirmative action
by the Holder to purchase shares of Stock, and no mere enumeration herein of the
rights or privileges of the Holder hereof shall give rise to any liability of
the Holder for the Stock Purchase Price or as a stockholder of the Company
whether such liability is asserted by the Company or by its creditors.
7. RESTRICTIONS ON TRANSFERABILITY OF SECURITIES; COMPLIANCE WITH
SECURITIES ACT; REGISTRATION RIGHTS.
7.1 RESTRICTIONS ON TRANSFERABILITY. This Warrant and the Warrant shares
shall not be transferable in the absence of the effectiveness of a registration
statement with respect to such securities under the Act, or an exemption
therefrom. This Warrant and the Warrant Shares may be transferred in any manner
in compliance with applicable law.
7.2 RESTRICTIVE LEGEND. In the absence of the effectiveness of registration
under the Act or an exemption therefrom as contemplated by SECTION 7.1, each
certificate representing the Warrant Shares or any other securities issued in
respect to the Warrant Shares upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall be stamped or
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otherwise imprinted with a legend substantially in the following form (in
addition to any legend required under applicable state securities laws);
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("ACT"), NOR UNDER ANY STATE SECURITIES
LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT OR SUCH LAWS AND THE
RULES AND REGULATIONS THEREUNDER.
7.3 REGISTRATION RIGHTS.
(a) If at any time during the five-year period commencing on the issue
date, the Company shall file a registration statement (other than on Form S4,
Form S8, or any successor form) with the Securities and Exchange Commission, the
Company shall give the holder/s of this warrant at least 15 days prior written
notice of the filing of such registration statement. If requested by the holder
in writing within 20 days after receipt of such notice, the Company shall, at
the Company's sole expense, register the common stock underlying the warrant in
full or in part according to the holders request under such registration
statement and will use its best efforts to cause such registration statement to
become effective as promptly as practicable.
(b) Should a Holder exercise his rights, in whole or in part, to
purchase Warrant Shares, and provided that more than one year has elapsed from
the date of issuance of this Warrant then the Company shall honor a request to
register such Warrant Shares pursuant to a filing under the Act, to the extent
requisite to permit the sale by such Holder of such Warrant Shares. The Company
shall make such filing in timely fashion, but in no case more than 30 days from
the time of such request. Any expenses relating to such filing shall be paid by
the Company. Should the Company fail to make such filing within a 30 day period
from the time of such request, the Company shall be obligated to purchase such
Warrant Shares for a cash payment per Warrant Share equal to the difference
between the Exercise Price and average closing price of the Common Stock during
the 30 calendar days immediately following Xxxxxx's request to register the
Warrant Shares.
8. MODIFICATION AND WAIVER. Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
9. NOTICES. Any notice, request or other document required or permitted to
be given or delivered to the holder hereof or the Company shall be delivered or
shall be sent by certified or registered mail postage prepaid, to each the
Holder at its address as shown on the books of the Company or to the Company at
the address indicated therefore in the first paragraph of this Warrant.
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10. DESCRIPTIVE HEADINGS AND GOVERNING LAW. The descriptive headings of the
several sections and paragraphs of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant. This Warrant shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by the laws of the State of Illinois without reference to the
principles of conflict of laws.
11. LOST WARRANTS OF STOCK CERTIFICATES. The Company represents and
warrants to the Holder that upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of any Warrant or
stock certificate representing the Warrant Shares and in the case of any such
loss, theft, destruction or mutilation, upon receipt of an indemnity and, if
requested, bond reasonably satisfactory to the Company, or in the case of any
such mutilation, upon surrender and cancellation of such Warrant or stock
certificate, the Company at its expense will make and deliver a new Warrant or
stock certificate, of like tenor, in lieu of the lost, stolen, destroyed or
mutilated Warrant or stock certificate.
12. FRACTIONAL SHARES. No fractional shares shall be issued upon exercise
of this Warrant. The Company shall, in lieu of issuing any fractional share pay
the holder entitled to such fraction a sum in cash equal to the fair market
value of any such fractional interest as it shall appear on the public market,
or if there is no public market for such shares, then as shall be reasonably
determined by the Company.
* * * * * * * *
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its officer, thereunto duly authorized as of the date first written above.
AMPERSAND MEDICAL CORPORATION
By:_________________________________
Name:
Title:
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