NEITHER THIS WARRANT NOR THE COMMON STOCK WHICH MAY BE ACQUIRED UPON THE
EXERCISE HEREOF ("WARRANT SHARES"), AS OF THE DATE OF ISSUANCE HEREOF, HAS BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER
THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED, ASSIGNED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND IN COMPLIANCE WITH ANY
APPLICABLE STATE SECURITIES LAW, OR IN A TRANSACTION WHICH IS EXEMPT FROM
REGISTRATION UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
For the Purchase of 80,000
shares of Common Stock
WARRANT FOR THE PURCHASE OF
SHARES OF COMMON STOCK
OF MILESTONE SCIENTIFIC INC.
(A Delaware corporation)
Milestone Scientific Inc., a Delaware corporation (the "Company"), hereby
certifies that for value received:
MARINA CO.
c/o Morse, Zelnick, Rose & Lander
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
or registered assigns ("Registered Holder"), is entitled, subject to the terms
set forth below, to purchase from the Company, at any time or from time to time
during the period commencing on April 16, 2004, and ending on April 16, 2009
(the "Expiration Date"), 80,000 shares of Common Stock (subject to adjustment as
provided herein), $.001 par value, of the Company ("Common Stock"), at a per
share purchase price of $4.89. The number of shares of Common Stock purchasable
upon exercise of this Warrant, and the purchase price per share, each as
adjusted from time to time pursuant to the provisions of this Warrant, are
hereinafter referred to as the "Warrant Shares" and the "Purchase Price",
respectively.
1. Exercise of Warrants. The Registered Holder of any Warrant Certificate
may exercise the Warrants, in whole or in part at any time or from time to time
at or prior to the close of business, on the Expiration Date, at which time the
Warrant Certificates shall be and become wholly void and of no value. Warrants
may be exercised by their holders as follows:
(a) This Warrant may be exercised by Registered Holder, in whole or in
part, by the surrender of this Warrant (with the Notice of Exercise Form
attached hereto as Exhibit I duly executed by Registered Holder) at the
principal office of the Company, or at such other office or agency as the
Company may designate, accompanied by payment in full of an amount equal to the
then applicable Purchase Price multiplied by the number of Warrant Shares then
being purchased upon such exercise.
(b) Payment may be made either in lawful money of the United States or
by surrender of a note made by the Company and payable to the Registered Holder
with a balance of principal plus accrued and unpaid interest to the date of
surrender equal to the payment required. Each exercise of this Warrant shall be
deemed to have been effected immediately prior to the close of business on the
day on which this Warrant shall have been surrendered to the Company as provided
in subsection l(a) above. At such time, the person or persons in whose name or
names any certificates for Warrant Shares shall be issuable upon such exercise
as provided in subsection l(c) below shall be deemed to have become the holder
or holders of record of the Warrant Shares represented by such certificates.
(c) As soon as practicable after the exercise of the purchase right
represented by this Warrant, the Company, at its expense, will use its best
efforts to cause to be issued in the name of, and delivered to, Registered
Holder, or, subject to the terms and conditions hereof, to such other individual
or entity as Registered Holder (upon payment by Registered Holder of any
applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of full shares
of Warrant Shares to which Registered Holder shall be entitled upon such
exercise plus, in lieu of any fractional share to which Registered Holder would
otherwise be entitled, cash in an amount determined pursuant to Section 3
hereof; and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, stating on the face or faces
thereof the number of shares currently stated on the face of this Warrant
(subject to adjustment as provided herein) minus the number of such shares
purchased by Registered Holder upon such exercise as provided in subsection l(a)
above.
(d) In case the registered holder of any Warrant certificate shall
exercise fewer than all of the Warrants evidenced by such certificate, the
Company shall promptly countersign and deliver to the registered holder of such
certificate, or to his duly authorized assigns, a new certificate evidencing the
number of Warrants that were not so exercised.
(e) Each person in whose name any certificate for securities is issued
upon the exercise of Warrants shall for all purposes be deemed to have become
the holder of record of the securities represented thereby as of, and such
certificate shall be dated,
2
the date upon which the Warrant certificate was duly surrendered in proper form
and payment of the Purchase Price (and of any applicable taxes or other
governmental charges) was made; provided, however, that if the date of such
surrender and payment is a date on which the stock transfer books of the Company
are closed, such person shall be deemed to have become the record holder of such
shares as of, and the certificate for such shares shall be dated, the next
succeeding business day on which the stock transfer books of the Company are
open (whether before, on or after the Expiration Date) and the Company shall be
under no duty to deliver the certificate for such shares until such date. The
Company covenants and agrees that it shall not cause its stock transfer books to
be closed for a period of more than 10 consecutive business days except upon
consolidation, merger, sale of all or substantially all of its assets,
dissolution or liquidation or as otherwise provided by law. The Company shall
pay all documentary, stamp or other transactional taxes attributable to the
issuance or delivery of shares upon exercise of the Warrants.
2. Adjustments.
(a) Split, Subdivision or Combination of Shares. If the outstanding
shares of the Company's Common Stock at any time while this Warrant remains
outstanding and unexpired shall be subdivided or split into a greater number of
shares, or a dividend in Common Stock shall be paid in respect of Common Stock,
the Purchase Price in effect immediately prior to such subdivision or at the
record date of such dividend, simultaneously with the effectiveness of such
subdivision or split or immediately after the record date of such dividend (as
the case may be), shall be proportionately decreased. If the outstanding shares
of Common Stock shall be combined or reverse-split into a smaller number of
shares, the Purchase Price in effect immediately prior to such combination or
reverse split, simultaneously with the effectiveness of such combination or
reverse split, shall be proportionately increased. When any adjustment is
required to be made in the Purchase Price, the number of shares of Warrant
Shares purchasable upon the exercise of this Warrant shall be changed to the
number determined by dividing (i) an amount equal to the number of shares
issuable upon the exercise of this Warrant immediately prior to such adjustment,
multiplied by the Purchase Price in effect immediately prior to such adjustment,
by (ii) the Purchase Price in effect immediately after such adjustment.
(b) Reclassification, Reorganization, Consolidation or Merger. In the
case of any reclassification of the Common Stock (other than a change in par
value or a subdivision or combination as provided for in subsection 2(a) above),
or any reorganization, consolidation or merger of the Company with or into
another corporation (other than a merger or reorganization with respect to which
the Company is the continuing corporation and which does not result in any
reclassification of the Common Stock), or a transfer of all or substantially all
of the assets of the Company, or the payment of a liquidating distribution then,
as part of any such reorganization, reclassification, consolidation, merger,
sale or liquidating distribution, lawful provision shall be made so that
Registered Holder shall have the right thereafter to receive upon the
3
exercise hereof, the kind and amount of shares of stock or other securities or
property which Registered Holder would have been entitled to receive if,
immediately prior to any such reorganization, reclassification, consolidation,
merger, sale or liquidating distribution, as the case may be, Registered Holder
had held the number of shares of Common Stock which were then purchasable upon
the exercise of this Warrant. In any such case, appropriate adjustment (as
reasonably determined by the Board of Directors of the Company) shall be made in
the application of the provisions set forth herein with respect to the rights
and interests thereafter of Registered Holder such that the provisions set forth
in this Section 2 (including provisions with respect to the Purchase Price)
shall thereafter be applicable, as nearly as is reasonably practicable, in
relation to any shares of stock or other securities or property thereafter
deliverable upon the exercise of this Warrant.
(c) Price Adjustment. No adjustment in the per share exercise price
shall be required unless such adjustment would require an increase or decrease
in the Purchase Price of at least $0.01, provided, however, that any adjustments
which by reason of this paragraph are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Section 2 shall be made to the nearest cent or to the nearest 1/100th
of a share, as the case may be.
(d) Price Reduction. Notwithstanding any other provision set forth in
this Warrant, at any time and from time to time during the period that this
Warrant is exercisable, the Company in its sole discretion may reduce the
Purchase Price or extend the period during which this Warrant is exercisable.
(e) No Impairment. The Company will not, by amendment of its Articles
of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company but will at all
times in good faith assist in the carrying out of all the provisions of this
Section 2 and in the taking of all such actions as may be necessary or
appropriate in order to protect against impairment of the rights of Registered
Holder to adjustments in the Purchase Price.
(f) Notice of Adjustment. Upon any adjustment of the Purchase Price,
number of shares the Warrants are exercisable for, or extension of the Warrant
exercise period, the Company shall forthwith give written notice thereto to
Registered Holder describing the event requiring the adjustment, stating the
adjusted Purchase Price and the adjusted number of shares purchasable upon the
exercise hereof resulting from such event, and setting forth in reasonable
detail the method of calculation and the facts upon which such calculation is
based.
3. Fractional Shares. The Company shall not be required upon the exercise
of this Warrant to issue any fractional shares, but shall make an adjustment
thereof in
4
cash on the basis of the last sale price of the Warrant Shares on the
over-the-counter market as reported by Nasdaq or on a national securities
exchange on the trading day immediately prior to the date of exercise, whichever
is applicable, or if neither is applicable, then on the basis of the then fair
market value of the Warrant Shares as shall be reasonably determined by the
Board of Directors of the Company.
4. Limitation on Sales. (a) Each holder of this Warrant acknowledges that
this Warrant and the Warrant Shares, as of the date of original issuance of this
Warrant, have not been registered under the Securities Act of 1933, as amended
("Act"), and agrees not to sell, pledge, distribute, offer for sale, transfer or
otherwise dispose of this Warrant or any Warrant Shares issued upon its exercise
in the absence of (i) an effective registration statement under the Act as to
this Warrant or such Warrant Shares or (ii) an opinion of counsel, satisfactory
to the Company, that such registration and qualification are not required. The
Warrant Shares issued upon exercise thereof shall be imprinted with a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED, ASSIGNED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND IN COMPLIANCE WITH ANY APPLICABLE STATE
SECURITIES LAWS OR IN A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER THE
ACT AND ANY APPLICABLE STATE SECURITIES LAWS."
(b) The Registered Holder represents that he is an "accredited
investor" as such term is defined in the Act and the rules adopted thereunder
and is familiar with the types of risks inherent in the acquisition of
securities such as the Company's shares or warrants.
5. Certain Dividends. If the Company pays a dividend or makes a
distribution on the Common Stock ("Dividend"), other than a cash dividend or a
stock dividend payable in shares of Common Stock, then the Company will pay or
distribute to Registered Holder, upon the exercise hereof, in addition to the
Warrant Shares purchased upon such exercise, the Dividend which would have been
paid to such Registered Holder if it had been the owner of record of such
Warrant Shares immediately prior to the date on which a record is taken for such
Dividend or, if no record is taken, the date as of which the record holders of
Common Stock entitled to such Dividend are determined.
6. Notices of Record Date. In case:
(a) the Company shall take a record of the holders of its Common Stock
(or other stock or securities at the time deliverable upon the exercise of this
5
Warrant) for the purpose of entitling or enabling them to receive any dividend
or other distribution, or to receive any right to subscribe for or purchase any
shares of any class or any other securities, or to receive any other right, or
(b) of any capital reorganization of the Company, any reclassification
of the capital stock of the Company, any consolidation or merger of the Company
with or into another corporation (other than a consolidation or merger in which
the Company is the surviving entity), or any transfer of all or substantially
all of the assets of the Company, or
(c) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company, then, and in each such case, the Company will mail or
cause to be mailed to Registered Holder a notice specifying, as the case may be,
(i) the date on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the effective date on which such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock (or such other stock or securities at the
time deliverable upon the exercise of this Warrant) shall be entitled to
exchange their shares of Common Stock (or such other stock or securities) for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up. Such notice shall be mailed at least twenty (20) days prior to the
record date or effective date for the event specified in such notice, provided
that the failure to mail such notice shall not affect the legality or validity
of any such action.
7. Reservation of Stock. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such shares of Common Stock and other stock, securities and property, as from
time to time shall be issuable upon the exercise of this Warrant. The Company
shall apply for listing, and obtain such listing, for the Warrant Shares on the
American Stock Exchange, at the earliest time that such listing may be obtained
in accordance with the rules and regulations of the American Stock Exchange and
maintain such listing until the seventh anniversary of the date of original
issuance of this Warrant. All shares that may be issued upon exercise of this
Warrant shall, at the time of issuance, be duly authorized, fully paid and
non-assessable.
8. Replacement of Warrants. Upon receipt of evidence reasonably
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 (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor. This Warrant is exchangeable for new Warrants (containing
the same terms as this Warrant) each representing the right to purchase such
number of shares as shall be designated by the
6
Registered Holder at the time of surrender (but not exceeding in the aggregate
the remaining number of shares of Common Stock which may be purchased hereunder.
9. Transfers, etc.
(a) The Company will maintain a register containing the names and
addresses of Registered Holders. Registered Holder may change its address as
shown on the warrant register by written notice to the Company requesting such
change.
(b) Until any transfer of this Warrant is made in the warrant
register, the Company may treat Registered Holder as the absolute owner hereof
for all purposes, provided, however, that if and when this Warrant is properly
assigned in blank, the Company may (but shall not be obligated to) treat the
bearer hereof as the absolute owner hereof for all purposes, notwithstanding any
notice to the contrary.
10. No Rights as Stockholder. Until the exercise of this Warrant,
Registered Holder shall not have or exercise any rights by virtue hereof as a
stockholder of the Company.
11. Successors. The rights and obligations of the parties to this Warrant
will inure to the benefit of and be binding upon the parties hereto and their
respective heirs, successors, assigns, pledgees, transferees and purchasers.
Without limiting the foregoing, the registration rights set forth in this
Warrant shall inure to the benefit of Registered Holder and Registered Holder's
successors, heirs, pledgees, assignees, transferees and purchasers of this
Warrant and the Warrant Shares.
12. Change or Waiver. Any term of this Warrant may be changed or waived
only by an instrument in writing signed by the party against which enforcement
of the change or waiver is sought.
13. Headings. The headings in this Warrant are for purposes of reference
only and shall not limit or otherwise affect the meaning of any provision of
this Warrant.
14. Governing Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York as such laws are applied to
contracts made and to be fully performed entirely within that state between
residents of that state.
15. Jurisdiction and Venue. The Company and Registered Holder (i) agree
that any legal suit, action or proceeding arising out of or relating to this
Warrant shall be instituted exclusively in New York State Supreme Court, County
of New York or in the United States District Court for the Southern District of
New York, (ii) waives any objection to the venue of any such suit, action or
proceeding and the right to assert that such forum is not a convenient forum for
such suit, action or proceeding, and (iii) irrevocably consent to the
jurisdiction of the New York State Supreme Court, County of
7
New York, and the United States District Court for the Southern District of New
York in any such suit, action or proceeding, and the Company and Registered
Holder further agree to accept and acknowledge service or any and all process
which may be served in any such suit, action or proceeding in New York State
Supreme Court, County of New York or in the United States District Court for the
Southern District of New York and agrees that service of process upon it mailed
by certified mail to its address shall be deemed in every respect effective
service of process upon it in any suit, action or proceeding.
16. Mailing of Notices, etc. All notices and other communications under
this Warrant (except payment) shall be in writing and shall be sufficiently
given if delivered to the addressees in person, by Federal Express or similar
receipt delivery, by facsimile delivery or, if mailed, postage prepaid, by
certified mail, return receipt requested, as follows:
to Registered Holder: Marina Co.
c/o Morse, Zelnick, Xxxx Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
to the Company: Milestone Scientific Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxx, President
Fax: (000) 000-0000
with a copy to: Morse, Zelnick, Rose & Lander LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
8
or to such other address as any of them, by notice to the other may designate
from time to time. Time shall be counted to, or from, as the case may be, the
delivery in person or by mailing.
Dated: April 16, 2004.
MILESTONE SCIENTIFIC INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------
Xxxxxx X. Xxxxxxx
Chief Financial Officer
Registered Xxxxxx
Xxxxxx Co.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------
Xxxxxxx Xxxxxxx, Esq.
9
EXHIBIT I
NOTICE OF EXERCISE
TO: Milestone Scientific Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
1. The undersigned hereby elects to purchase________shares of the Common
Stock of Milestone Scientific, Inc., pursuant to terms of the attached Warrant,
and tenders herewith payment of the purchase price of such shares in full,
together with all applicable transfer taxes, if any.
2. Please issue a certificate or certificates representing said shares of
the Common Stock in the name of the undersigned or in such other name as is
specified below. If the attached Warrant is exercisable for a greater number of
shares than the number set forth in paragraph 1, then please issue another
Warrant in the name of the undersigned or in such other name as is specified
below exercisable for the remaining number of shares.
3. The undersigned represents that it will sell the shares of Common Stock
pursuant to an effective Registration Statement under the Securities Act of
1933, as amended, or an exemption from registration thereunder.
(Name)
(Address)
(Taxpayer Identification Number)
[print name of Registered Holder]
By:
Title:
Date:
10
