EXHIBIT 4.5
-----------
AMPERSAND MEDICAL CORPORATION
STOCK PURCHASE WARRANT
THE WARRANT EVIDENCED HEREBY AND THE SHARES ISSUABLE UPON EXERCISE THEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE OFFERED OR SOLD WITHOUT REGISTRATION UNLESS AN
EXEMPTION FROM REGISTRATION IS AVAILABLE UNDER SUCH ACT OR THE RULES OR
REGULATIONS PROMULGATED THEREUNDER.
WARRANT TO PURCHASE SHARES OF COMMON STOCK AS DESCRIBED HEREIN
Date: December 10, 1999 Warrant Number AC-I
This certifies that, for value received, Azimuth Corporation, having its
principal office at 0000 Xxx Xxxxx Xxx., Xxxxxxx, Xxxxxxx 00000, or its
registered assigns are entitled to purchase during the period described in
Section 4 below, expiring at the date and time described in Section 3, from
Ampersand Medical Corporation (the "Company"), having its principal office
at 000 X. Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, that number of fully
paid and nonassessable common stock of the Company (the "Stock") as are
described in Section 1, at the exercise price described in Section 2 and 8
(the "Exercise Price"), subject to the terms set forth herein. The
holder(s) of the Warrant and/or a registered assign or assigns, shall be
referred herein as the "Warrantholder." This warrant is issued as
additional consideration for a Senior Convertible Promissory Note dated
December 10, 1999 (the "Note"), a copy of which is attached hereto.
1. Stock Purchasable. The number of shares of Stock purchasable upon
exercise of this Warrant is fifty thousand (50,000).
2. Exercise Price. The price at which this warrant is exercisable,
unless such price is adjusted as described in Section 7, is the lesser of
thirty-three cents ($0.33) per share or 85% of the closing price of
Ampersand Medical Corporation common stock as quoted on the OTC Bulletin
Board on December 10, 1999.
3. Expiration of Warrant. This Warrant shall expire and be no longer
exercisable after 5:00 P.M. Central Standard Time on December 10, 2004 (the
"Expiration Date").
4. Exercise of Warrants. This Warrant shall vest immediately upon
receipt by Ampersand of funds under the Note and may be exercised as to one
hundred percent (100%) of the total number of shares covered by this
Warrant at anytime after the issuance date of this Warrant
The purchase rights represented by this Warrant may be exercised in
whole or in part (but not as to a fractional share of Stock), by the
Warrantholder or its duly authorized attorney or representative at any time
and from time to time while this Warrant is exercisable, upon presentation
of this Warrant at the principal office of the Company, with the purchase
form attached hereto duly completed and signed, and upon payment to the
Company in cash or by certified check or bank draft of an amount equal to
the number of shares being so purchased multiplied by the Exercise Price;
or, at the option of the Warrantholder, this Warrant may be surrendered to
the Company and the Company shall issue to the Warrantholder for no
additional cash consideration a number of shares of common stock determined
by dividing the product of the maximum number of shares of common stock the
Warrantholder is entitled to purchase hereunder times the difference
between the closing price per share on the date of surrender for exercise
and the Exercise Price, by the closing price per share on the date of
surrender for exercise date of surrender for exercise, as follows:
Number of shares to be issued = ((maximum # of shares
purchasable under terms of the Warrants) X ((closing price per share on the
date of surrender for exercise) - (Exercise Price))) / (closing price per
share on the date of surrender for exercise)
Should Warrantholder elect to so surrender this Warrant, this Warrant
shall be terminated thereafter, and the Warrantholder shall have no other
rights hereunder.
5. Registration Rights. Should a Warrantholder exercise his rights, in
whole or in part, to purchase common shares (the "Warrant Shares"), and
provided that more than three years have elapsed from the date of issuance
of this Warrant, then the Company shall honor a request to register such
Warrant Shares pursuant to an S-3 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 Company's common stock during the 30 calendar days
immediately following Warrantholder's request to register the Warrant
Shares.
6. Procedures. The Company agrees that the Warrantholder shall be deemed
the record owner of the Stock as of the close of business on the date on
which the Warrant shall have been presented and payment shall have been
made for the Stock as aforesaid. Certificates for the shares of Stock so
purchased shall be delivered to the Warrantholder within a reasonable time,
not exceeding 15 days, after the exercise in full of the rights represented
by this Warrant.
If the Warrant is exercised in part only, the Company, upon surrender
of this Warrant for cancellation, shall deliver a new Warrant evidencing
the rights of the Warrantholder to purchase the balance of the shares of
Stock which the Warrantholder is entitled to purchase hereunder.
7. Exchange of Warrants. Subject to the provisions of Section 11, (i)
this Warrant is exchangeable at the option of the Warrantholder at the
principal office of the Company for other Warrants of different
denominations entitling the Warrantholder to purchase the same aggregate
number of shares of Stock as are purchasable hereunder; and (ii) this
Warrant may be divided or combined with other warrants that carry the same
rights. In either case, any alterations shall be made upon presentation, at
the principal office of the Company, of the Warrant(s), together with a
written notice signed by the Warrantholder specifying the names and
denominations in which any new Warrants are to be issued and the payment of
any transfer tax due in connection therewith.
8. Anti-Dilution Provisions. The Exercise Price in effect at any time
and the number and kind of securities purchasable upon the exercise of this
Warrant shall be subject to adjustment from time to time upon the happening
of certain events as follows:
(a) In case the Company shall (i) declare a dividend or make a
distribution on its outstanding shares of Stock in shares of Stock, (ii)
subdivide or reclassify its outstanding shares of Stock into a greater
number of shares, or (iii) combine or reclassify its outstanding shares of
Stock into a smaller number of shares, the Exercise Price in effect at the
time of the record date for such dividend or distribution or of the
effective date of such subdivision, combination or reclassification shall
be proportionately adjusted so that the holder of this Warrant, exercised
after such date, shall be entitled to receive the aggregate number and kind
of
shares which, if this Warrant had been exercised by such holder
immediately prior to such date, he would have owned upon such exercise and
been entitled to receive upon such dividend, subdivision, combination or
reclassification. For example, if the Company declares a 2-for-i stock
distribution in which one share of Stock is distributed for each share
outstanding and the Exercise Price immediately prior to such event was
$2.00 per share, the adjusted Exercise Price immediately after such event
would be $1.00 per share. Such adjustment shall be made successively
whenever any event listed above shall occur.
(b) If any consolidation or merger of the Company with or into
another entity, or the sale of all or substantially all of its assets to
another entity shall be effected, or in case of any capital reorganization
or reclassification of the capital stock of the Company, then lawful and
adequate provision shall be made whereby each holder of Warrants shall
thereafter have the right to receive upon the basis and upon the terms and
conditions specified herein and in lieu of the shares of Stock of the
Company immediately theretofore receivable upon the conversion of such
Warrants, such shares of Stock, securities, interests or assets as may be
issued or payable with respect to or in exchange for a number of
outstanding shares of Stock equal to the number of shares of Stock
immediately theretofore so receivable by such holder had such
consolidation, merger, sale, reorganization or reclassification not taken
place, and, in any such case, appropriate provision shall be made with
respect to the rights and interests of the holder to the end that the
provisions hereof (including without limitation provisions for adjustment
of the applicable Exercise Price) shall thereafter be applicable, as nearly
as may be in relation to any shares of Stock, securities or assets
thereafter deliverable upon the exercise of such conversion rights.
(c) Whenever the Exercise Price payable upon exercise of each
Warrant is adjusted pursuant to Subsections (a) or (b) above, the number of
shares of Stock purchasable upon exercise of this Warrant shall
simultaneously be adjusted by multiplying the number of shares initially
issuable upon exercise of this Warrant by the Exercise Price in effect on
the date hereof and dividing the product so obtained by the Exercise Price,
as adjusted.
(d) Whenever the Exercise Price is adjusted, as herein provided,
the Company shall promptly cause a notice setting forth the adjusted
Exercise Price and adjusted number of shares of Stock issuable upon
exercise of each Warrant to be mailed to the holders, at their last
addresses appearing in the warrant register, and shall cause a certified
copy thereof to be mailed to its transfer agent. The Company may retain a
firm of independent certified public accountants selected by the Board of
Directors (who may be the regular accountants employed by the Company) to
make any computation required by this Section 8, and a certificate signed
by such firm shall be conclusive evidence of the correctness of such
adjustment.
9. Covenants. The Company covenants and agrees as follows:
(a) Reservation of Stock. During the period within which the
rights represented by the Warrant may be exercised, the Company shall, at
all times, reserve and keep available, free from preemptive rights out of
the aggregate of its authorized but unissued Stock, for the purpose of
enabling it to satisfy any obligation to issue shares of Stock upon the
exercise of this Warrant, the number of shares of Stock deliverable upon
the exercise of this Warrant. If at any time the number of shares of
authorized Stock shall not be sufficient to effect the exercise of this
Warrant, the Company shall take such corporate action as may be necessary
to increase its authorized but unissued Stock to such number of shares as
shall be sufficient for such purpose. The Company shall have analogous
obligations with respect to any other securities or properties issuable
upon exercise of this Warrant.
(b) No Liens, etc. All Stock that may be issued upon exercise of
the rights represented by this Warrant shall, upon issuance, be validly
issued, fully paid, nonassessable and free from all taxes, liens and
charges with respect to the issue thereof.
(c) Taxes. All original issue taxes payable with respect to the
issuance of shares upon the exercise of the rights represented by this
Warrant shall be borne by the Company, but in no event shall the Company be
responsible or liable for income taxes or transfer taxes upon the transfer
of any Warrant.
(d) Notice of Events. The Company shall give prior written
notice to the Warrantholder of (i) any tender offer that is being made for
any of the Company's Stock; (ii) any offers to holders of Stock for
subscription or purchase by them of any shares of stock of any class; (iii)
any capital reorganization of the Company, reclassification of the capital
stock of the Company, consolidation or merger of the Company with or into
another corporation, the sale, lease or transfer of all or substantially
all of the property or assets of the Company to another corporation or the
voluntary or involuntary dissolution, liquidation or winding up of the
Company and (iv) any event of the type described in Section 8 hereof (any
such event in clauses (i)-(iv) above is referred to as an "Event"). Upon
becoming aware of any pending or proposed Event, the Company shall deliver
notice at least five business days before the day of the occurrence of any
Event and shall describe the Event, the date it is to take place and when
the holders of the Company's Stock will be entitled to exchange their
shares for securities or other properties deliverable upon such Event.
10. Voting Rights. Until exercised, this Warrant shall not entitle the
Warrantholder to any voting rights or other rights as a Stockholder of the
Company.
11. Transfer Restrictions. A Warrantholder may transfer its beneficial
interest or any portion thereof in the Warrant only to the Warrantholder's
spouse, lineal descendants or ancestors (and their spouses) or the trustee
of a trust for the principal benefit of such persons. Any transfer of
ownership or control of a corporation or other entity which is a
Warrantholder shall be deemed a transfer of this Warrant which must comply
with the terms of this Section 11. In addition, neither this Warrant nor
the Stock issuable upon the exercise hereof may be sold, transferred,
pledged or hypothecated unless the Company shall have been supplied with
evidence reasonably satisfactory to it that such transfer is not in
violation of the Act, and any applicable state laws. The Company may place
a legend to that effect on this Warrant or any replacement Warrant and on
each certificate representing shares issuable upon exercise of this
Warrant. Subject to the satisfaction of the aforesaid conditions, this
Warrant shall be transferable by the Warrantholder.
If this Warrant is transferred, in whole or in part, upon surrender
of this Warrant to the Company, the Company shall deliver to each
transferee a Warrant evidencing the rights of such transferee to purchase
the number of shares of Stock that such transferee is entitled to purchase
pursuant to such transfer.
12. Lost, Stolen Warrants. If this Warrant is lost, stolen, mutilated or
destroyed, the Company shall, on such terms as the Company may reasonably
impose, including a requirement that the Warrantholder obtain a bond, issue
a new Warrant of like denomination, tenor and date. Any such new Warrant
shall constitute an original contractual obligation of the Company, whether
or not the allegedly lost, stolen, mutilated or destroyed Warrant shall be
at any time enforceable by anyone.
13. Provisions of New Warrants. Any Warrant issued pursuant to the
provisions of Section 14, or upon transfer, exchange, division or partial
exercise of this Warrant or combination thereof with another Warrant or
Warrants, shall set forth each provision set forth in Sections 1 through
24, inclusive, of this Warrant as each such provision is set forth herein,
and shall be executed on behalf of the Company by a duly authorized
officer.
14. Cancellation of Warrant. Upon surrender of this Warrant for transfer
or exchange or upon the exercise hereof, this Warrant shall be canceled by
the Company, shall not be reissued by the Company, and, except as provided
in Section 11 in case of a transfer, no Warrant shall be issued in lieu
hereof. Any new Warrant certificate shall be issued promptly but no later
than seven days after receipt of the old Warrant certificate; provided,
however, that the obligation of the Company to transfer the Warrant or
issue the shares of Stock upon the exercise of this Warrant shall be
subject to compliance with Section 11.
15. Complete Agreement; Modifications. This Warrant and any documents
referred to herein or executed contemporaneously herewith constitute the
parties' entire agreement with respect to the subject matter hereof and
supersede all agreements, representations, warranties, statements, promises
and understandings, whether oral or written, with respect to the subject
matter hereof. This Warrant may not be amended, altered or modified except
by a writing signed by the parties.
16. Notices. All notices under this Warrant shall be in writing and shall
be delivered by certified mail, postage prepaid, to such address as may be
designated from time to time by the relevant party. Any notice sent by
certified mail will be deemed to have been given three (3) days after the
date on which it is mailed. Notices will be addressed as set forth on the
last page hereof or to such other addresses as the party to whom the same
is directed will have specified.
17. Successor and Assigns. Except as provided herein to the contrary,
this Warrant shall be binding upon and inure to the benefit of the parties,
their respective successors and permitted assigns.
18. Governing Law; Jurisdiction. This Warrant has been negotiated and
entered into in the State of Florida, and all questions with respect to the
Warrant and the rights and liabilities of the parties shall be governed by
the laws of that state, regardless of the choice of law provisions of
Florida or any other jurisdiction. Any and all disputes between the parties
which may arise pursuant to this Warrant shall be heard and determined
before the appropriate federal or state court located in Florida. The
parties hereto acknowledge that such court has jurisdiction to interpret
and enforce the provisions of this Warrant, and the parties waive any and
all objections that they may have as to venue in any of the above courts.
19. Construction. No term or provision of this Warrant shall be construed
so as to require the commission of any act contrary to law, and wherever
there is any conflict between any provision of this Warrant and any present
or future statute, law, ordinance, or regulation contrary to which the
parties have no legal right to contract, the latter shall prevail, but in
such event the provision of this Warrant so affected shall be curtailed and
limited only to the extent necessary to bring it within the requirements of
the law.
20. Waivers Strictly Construed. With regard to any power, remedy or right
provided herein or otherwise available to any party hereunder (i) no waiver
or extension of time shall be effective unless expressly contained in a
writing signed by the waiving party; and (ii) no alteration, modification
or impairment shall be implied by reason of any previous waiver, extension
of time, delay or omission in exercise, or other indulgence.
21. Severability. If one or more of the provisions of this Warrant shall
be held to be invalid, illegal or unenforceable in any respect, the
validity, legality or enforceability of the remainder of this Warrant shall
not be affected.
21. Headings. The headings in this Warrant are inserted only as a matter
of convenience, and in no way define, limit, or extend or interpret the
scope of this Warrant or of any particular provision.
23. Counterparts. This Warrant may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one or the same instrument.
WITNESS the signature of a duly authorized officer.
AMPERSAND MEDICAL CORPORATION
By: _______________________________
(name)
_______________________________
(title)
Date:_______________________________
PURCHASE FORM
To Be Executed Upon Exercise of Warrant
The undersigned hereby exercises the right to purchase __________________
shares of Stock, evidenced by the within Warrant, according to the terms
and conditions thereof, and herewith (makes payment of the purchase price
in full) (or requests that the Company exchange the Warrant as provided for
under terms of the Warrant). The undersigned requests that certificate(s)
for such shares shall be issued in the name set forth below:
Dated:___________________________ AZIMUTH CORPORATION
By: ______________________
(Signature)
Name:______________________
(Please print)
Address:
----------------------
----------------------
______________________
Employer Identification Number, Social
Security Number or other identifying
number:
_______________________
If said number of shares shall not be all the shares purchasable under the
within Warrant, the Warrantholder hereby requests that a new Warrant for
the unexercised portion shall be registered in the name set forth below and
delivered to the address set forth below.
Name:_______________________
(Please print)
Address:______________________
_______________________
_______________________
Employer Identification Number, Social
Security Number or other identifying
number:
_______________________
