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THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE THEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT
BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, OR OTHERWISE DISPOSED OF UNLESS
REGISTERED PURSUANT TO THE ACT OR AN OPINION OF LEGAL COUNSEL, REASONABLY
SATISFACTORY TO THE COMPANY, IS OBTAINED STATING THAT AN EXEMPTION FROM
REGISTRATION UNDER THE ACT IS AVAILABLE.
DATED: May 13, 1998 NO. I
FORM OF WARRANT
LIFESERV TECHNOLOGIES, INC.
Warrant to Purchase 200,000 Shares, Subject to Adjustment,
of Common Stock, par value $.01 per share
VOID AFTER 5:00 P.M., EASTERN STANDARD TIME
ON MAY 13, 2008 OR SUCH LATER DATE AS
DESCRIBED IN THE FIRST PARAGRAPH BELOW
This certifies that, for value received, Xxxx Xxxxx ("Kedan") or registered
assigns (collectively with Kedan, the "Holder"), is entitled to purchase from
LifeServ Technologies, Inc., a Florida corporation (the "Company"), 200,000
shares (which become exercisable on the date hereof) plus an additional number
of fully paid and nonassessable shares (collectively, the "Shares") of the
Company's Common Stock, par value $.01 per share (the "Common Stock"), equal to
two percent of the outstanding shares of Common Stock immediately before the
issuance of up to 35,000 shares of the Company's Series A Preferred Stock
through Jesup & XxXxxx Securities Corporation pursuant to a private placement
memorandum (the "Private Placement") less 200,000 Shares (this warrant will
become exercisable with respect to such additional Shares, if any, immediately
before the issuance of shares in the Private Placement), at a price of $1.00 per
Share (the "Exercise Price") for ten years after the warrant becomes exercisable
with respect to such shares (the "Exercise Period"), subject to the terms,
conditions, and adjustments set forth in this warrant (the "Warrant"). If two
percent of the outstanding shares of the Company's Common Stock immediately
before the issuance of shares in the Private Placement is less than or equal to
200,000 shares, then the total number of Shares issuable pursuant to this
Warrant will be 200,000, subject to the adjustments set forth below.
1. Exercise of Warrants. This Warrant may be exercised in whole or in part
by the Holder during the applicable Exercise Period upon presentation and
surrender hereof, with the Purchase Form attached hereto as Exhibit A duly
executed, at the office of the Company located at 00000 Xxxxxxxxxx Xxxxxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000, accompanied by full payment of the Exercise Price
multiplied by the number of Shares of the Company being purchased (the "Purchase
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Price"), whereupon the Company shall cause the appropriate number of Shares to
be issued and shall deliver to the Holder, within 10 days of surrender of the
Warrant, a certificate representing the Shares being purchased. Upon each
partial exercise hereof, a new Warrant evidencing the remainder of the Shares
will be issued to the Holder, at the Company's expense, as soon as reasonably
practicable, at the same Exercise Price, for the same Exercise Period(s), and
otherwise on the same terms and conditions as the Warrant partially exercised.
The Purchase Price shall be payable by delivery of a certified or bank cashier's
check payable to the Company, or by wire transfer of immediately available funds
to an account designated in writing by the Company, in the amount of the
Purchase Price, or, if the Company's Common Stock is listed on a securities
exchange or market, in the manner set forth in the following paragraph if
requested by the Holder in the Purchase Form. The Holder shall be deemed for all
purposes to have become the holder of record of Shares so purchased upon
exercise of this Warrant as of the close of business on the date as of which
this Warrant, together with a duly executed Purchase Form, was delivered to the
Company and payment of the Purchase Price was made, regardless of the date of
delivery of any certificate representing the Shares so purchased, except that if
the Company were subject to any legal requirements prohibiting it from issuing
shares of Common Stock on such date, the Holder shall be deemed to have become
the record holder of such Shares on the next succeeding date as of which the
Company ceased to be so prohibited.
If the Company's Common Stock is listed on a securities exchange or market,
in addition to the method of payment set forth above and in lieu of any cash
payment required, the Holder shall have the right to exercise this Warrant in
full or in part by surrendering this Warrant in the manner specified above in
exchange for the number of Shares equal to the product of (x) the number of
Shares as to which this Warrant is being exercised multiplied by (y) a fraction,
the numerator of which is the Market Price (as defined below) less the Purchase
Price, and the denominator of which is the Market Price. For purpose of this
Warrant, "Market Price" shall mean the average closing sale price quoted on a
share of Common Stock on the Nasdaq National Market or the principal stock
exchange on which the Common Stock is then traded for the three trading days
immediately prior to the date of the delivery to the Company of a purchase form
(or if the Company's Common Stock is not traded or listed on the Nasdaq National
Market or any other principal securities market, the average of the closing bid
prices on the Nasdaq SmallCap Market, the OTC Electronic Bulletin Board, or
otherwise in the over-the-counter market on such days as reported by Nasdaq, the
National Quotation Bureau Incorporated or any comparable system, or if not so
reported, as reported by any New York Stock Exchange member firm selected in
good faith by the Company for such purpose).
2. Exchange; Restrictions on Transfer or Assignment. This Warrant is
exchangeable, without expense, at the option of the Holder, upon surrender
hereof to the Company for other Warrants of different denominations entitling
the Holder to purchase in the aggregate the same number of Shares purchasable
hereunder. Subject to compliance with the Act, applicable state securities laws,
and the requirements pertaining to transfer described in Section 5, this Warrant
and the Holder's rights hereunder are transferrable. To effect a transfer of
this Warrant, the Holder shall surrender the Warrant to the Company at its
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principal office with the Assignment Form attached hereto as Exhibit B duly
completed and executed (with signature guaranteed), whereupon the Company, if
the proposed assignment is permitted pursuant to the provisions hereof, shall
register the assignment of this Warrant in accordance with the information
contained in the assignment instrument and shall, without charge, execute and
deliver a new Warrant or Warrants in the name(s) of the assignee or assignees
named in such assignment instrument (and, if applicable, a new Warrant in the
name of the Holder evidencing any remaining portion of the Warrant not
theretofore exercised, transferred, or assigned) and this Warrant shall promptly
be cancelled. The term "Warrant" as used herein includes any Warrants into which
this Warrant may be divided or exchanged.
3. Rights and Obligations of Warrant Holders. This Warrant does not confer
upon the Holder any rights as a shareholder of the Company, either at law or in
equity. The rights of the Holder are limited to those expressed herein and the
Holder, by acceptance hereof, consents to and agrees to be bound by and to
comply with all the provisions of this Warrant. Each Holder, by acceptance of
this Warrant, agrees that the Company and its transfer agent, if any, may, prior
to any presentation of this Warrant for registration of transfer, deem and treat
the person in whose name this Warrant is registered as the absolute, true, and
lawful owner of this Warrant for all purposes whatsoever and neither the Company
nor any transfer agent shall be affected by any notice to the contrary.
4. Covenants and Warranties of the Company. The Company covenants and
agrees that (i) any and all Shares that are issued and delivered upon exercise
of this Warrant and payment of the Purchase Price will, upon delivery, be duly
authorized, validly issued, fully-paid, and nonassessable shares of Common Stock
and (ii) the Company shall at all times during the Exercise Period reserve and
keep available a number of authorized but unissued shares of Common Stock
sufficient to permit the exercise in full of this Warrant. The Company will take
all such actions as may be necessary to assure that all shares of Common Stock
may be so issued without violation by the Company of any applicable law or
government regulation or any requirement of any securities exchange upon which
shares of Common Stock may be listed (except for official notice of issuance,
which the Company will transmit promptly upon issuance of such shares).
The Company represents and warrants that (i) the Company is a corporation
duly organized, validly existing, and of active status under the laws of the
State of Florida, (ii) the Company has all requisite corporate power and
authority to issue this Warrant and to consummate the transactions contemplated
hereby, and such issuance and consummation will not conflict with, result in a
material breach of, constitute a material default under, or material violation
of any provision of the Company's Articles of Incorporation or Bylaws, or any
law or regulation of any governmental authority or any provision of any
agreement, judgment, or decree affecting the Company and (iii) all corporate
action required to be taken by the Company in connection with the execution and
delivery of this Warrant and the performance of the Company's obligations
hereunder has been taken.
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5. Disposition of Warrants or Shares. The Holder acknowledges that this
Warrant and the Shares issuable upon exercise thereof have not been registered
under the Act or applicable state law. The Holder agrees, by acceptance of this
Warrant, (i) that no sale, transfer, or distribution of this Warrant or the
Shares shall be made except in compliance with the Act and the rules and
regulations promulgated thereunder, including any applicable prospectus delivery
requirements and the restrictions on transfer set forth herein, and (ii) that if
any distribution or any other transfer of this Warrant or any Shares is proposed
to be made by it otherwise than pursuant to an effective registration statement
under the Act, such action shall be taken only after submission to the Company
of an opinion of counsel, reasonably satisfactory in form and substance to the
Company and its counsel, to the effect that the proposed distribution will not
be in violation of the Act or of applicable state law.
6. Adjustment. The number of Shares purchasable upon the exercise of this
Warrant and the Exercise Price per Share are subject to adjustment from time to
time as provided in this Section 6.
(a) Subdivision or Combination of Shares. If the Company shall at any time
subdivide its outstanding shares of Common Stock into a greater number of shares
(including a stock split effected as a stock dividend) or combine its
outstanding shares of Common Stock into a lesser number of shares, the number of
Shares issuable upon exercise of this Warrant shall be adjusted to such number
as is obtained by multiplying the number of shares issuable upon exercise of
this Warrant immediately prior to such subdivision or combination by a fraction,
the numerator of which is the aggregate number of shares of Common Stock
outstanding immediately after giving effect to such subdivision or combination
and the denominator of which is the aggregate number of shares of Common Stock
outstanding immediately prior to such subdivision or combination, and the
Exercise Price per Share shall be correspondingly adjusted to such amount as
shall, when multiplied by the number of Shares issuable upon full exercise of
this Warrant (as increased or decreased to reflect such subdivision or
combination of outstanding shares of Common Stock, as the case may be), equal
the product of the Exercise Price per Share in effect immediately prior to such
subdivision or combination multiplied by the number of Shares issuable upon
exercise of this Warrant immediately prior to such subdivision or combination.
(b) Effect of Sale, Merger, or Consolidation. If any capital reorganization
or reclassification of the capital stock of the Company, or consolidation or
merger of the Company with another corporation, or sale of all or substantially
all of the Company's assets to another corporation shall be effected after the
date hereof in such a way that holders of Common Stock shall be entitled to
receive stock, securities, or assets with respect to or in exchange for Common
Stock, then, as a condition of such reorganization, reclassification,
consolidation, merger, or sale, lawful and adequate provision shall be made
whereby the Holder shall thereafter have the right to purchase and receive, upon
the basis and the terms and conditions specified in this Warrant and in lieu of
the Shares immediately theretofore purchasable and receivable upon the exercise
of this Warrant, such shares of stock, securities, or assets as may be issued or
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payable with respect to or in exchange for a number of outstanding shares of
Common Stock equal to the number of shares of Common Stock immediately
theretofore purchasable and receivable upon the exercise of this Warrant, 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 of this Warrant
(including, without limitation, provisions for adjustments of the Exercise Price
and of the number of Shares issuable upon the exercise of this Warrant) shall
thereafter be applicable, as nearly as may be possible, in relation to any
shares of stock, securities or assets thereafter deliverable upon the exercise
of this Warrant. The Company shall not effect any such consolidation, merger, or
sale unless prior to or simultaneously with the consummation thereof the
successor corporation (if other than the Company) resulting from such
consolidation or merger or the corporation purchasing such assets shall assume,
by written instrument executed and delivered to the Holder at its last address
appearing on the books of the Company, the obligation to deliver to the Holder
such shares of stock, securities or assets as, in accordance with the foregoing
sentence, the Holder may be entitled to purchase.
(c) Issuance of Common Stock Below Exercise Price. If the Company shall
issue or sell shares of Common Stock or rights, options, warrants, or
convertible or exchangeable securities containing the right to subscribe for or
purchase shares of Common Stock ("Common Stock Equivalents") (other than upon
conversion of up to 35,000 shares of Series A Preferred Stock having an interest
rate of up to 15% issued pursuant to the Private Placement or pursuant to the
exercise of any Common Stock Equivalents outstanding on the date of the Note
under any of the Company's employee benefit plans), at a price per share of
Common Stock (determined, in the case of Common Stock Equivalents, by dividing
(A) the total amount receivable by the Company in consideration of the issuance
and sale of such Common Stock Equivalent, plus the total consideration payable
to the Company upon exercise, conversion, or exchange thereof, by (B) the total
number of shares of Common Stock covered by such Common Stock Equivalent), that
is lower (calculated the date of such sale or issuance) than the Exercise Price,
or for no consideration, then:
(i) in each case the number of shares of Common Stock thereafter
issuable upon the exercise of this Warrant (whether or not presently
exercisable) shall be increased in a manner determined by multiplying the
number of shares of Common Stock issuable upon the exercise of the Warrant
by a fraction, of which the numerator shall be the number of shares of
Common Stock outstanding immediately prior to the sale or issuance plus the
number of additional shares of Common Stock offered for subscription or
purchase or to be issued upon exercise, conversion, or exchange of such
Common Stock Equivalent, and of which the denominator shall be the number
of shares of Common Stock outstanding immediately prior to the sale or
issuance plus the number of shares of Common Stock that the "aggregate
consideration to be received by the Company" (as defined below) in
connection with such sale or issuance would purchase at the Exercise Price.
For the purpose of such adjustments the "aggregate consideration to be
received by the Company" shall be the consideration received by the Company
for such Common Stock or Common Stock Equivalents, plus any consideration
or premiums stated in the Common Stock Equivalents to be paid for the
shares of Common Stock covered thereby; and
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(ii) in each case the Exercise Price will be reduced to the price
calculated by dividing (A) an amount equal to the sum of (1) the number of
shares of Common Stock outstanding immediately before such issuance or sale
multiplied by the then existing Exercise Price plus (2) the aggregate
consideration, if any, received by the Company upon such issuance or sale,
by (B) the total number of shares of Common Stock outstanding immediately
after such issuance or sale plus the number of shares of Common Stock
issuable upon the exercise, conversion, or exchange of any Common Stock
Equivalents issued or sold in the transaction for which the Company is
making this adjustment.
If the Company shall issue or sell shares of Common Stock or Common Stock
Equivalents for a consideration consisting, in whole or in part, of property
other than cash or its equivalent, then in determining the "price per share of
Common Stock" and the "consideration" receivable by or payable to the Company
for purposes of this Section 6(c), the Board of Directors of the Company shall
determine, in good faith, the fair value of such property. If the Company shall
issue and sell Common Stock Equivalents, together with one or more other
securities as part of a unit at a price per unit, then in determining the "price
per share of Common Stock" and the "consideration" receivable by or payable to
the Company for purposes of this Section 6(c), the Board of Directors of the
Company shall determine, in good faith, the fair value of the Common Stock
Equivalents then being sold as part of such unit.
(d) If any event occurs as to which the preceding Sections 6(a) through (c)
are not strictly applicable, but as to which the failure to make any adjustment
would not fairly protect the purchase rights represented by this Warrant in
accordance with the essential intent and principles of this Warrant, as
determined by the Company or as requested by the Holder in accordance with the
notice provisions of Section 12, then, in each such case, the Company shall
select an independent investment bank or firm of independent public accountants,
such investment bank or firm of independent public accountants to be selected
from a group of three nationally recognized investment banks or firms of public
accountants chosen by the Holder, which will give its opinion as to the
adjustment,if any, on a basis consistent with the essential intent and
principles established in this Warrant. Upon receipt of such opinion, the
Company will promptly deliver a copy of such opinion to the Holder and will make
the adjustments described in such opinion. The fees and expenses of such
investment bank or independent public accountants will be borne by the Company.
If the adjustment is requested by the Holder, however, and the investment bank
or firm of independent public accountants selected by the Company pursuant to
this paragraph determines that no adjustment is necessary, then the fees and
expenses described in the preceding sentence shall be borne by the Holder.
(e) Notice to Holder of Adjustment. Whenever the number of Shares
purchasable upon exercise of this Warrant or the Exercise Price per Share is
adjusted as herein provided, the Company shall cause to be mailed to the Holder
within 5 days of such adjustment, in accordance with the provisions of Section
12, notice setting forth the adjusted number of Shares purchasable upon the
exercise of the Warrant and the adjusted Exercise Price and showing in
reasonable detail the computation of the adjustment and the facts upon which
such adjustment is based.
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(f) Notices to Holder of Certain Events. If at any time after the date
hereof:
(i) the Company shall declare any dividend or other distribution upon
or with respect to the Common Stock, including any dividend payable in
cash, shares of Common Stock or other securities of the Company; or
(ii) the Company shall offer for subscription to the holders of its
Common Stock any additional shares of stock of any class or any other
securities convertible into Common Stock or any rights to subscribe
thereto; or
(iii) there shall be any capital reorganization or reclassification of
the capital stock of the Company (other than a change in par value, or from
par value to no par value, or from no par value to par value or as result
of the subdivision or combination of shares), or any conversion of the
Shares into securities of another corporation, or a sale of all or
substantially all of the assets of the Company, or a consolidation or
merger of the Company with another corporation (other than a merger with a
subsidiary in which the Company is the continuing corporation and which
does not result in any reclassification or change of the Shares issuable
upon exercise of the Warrants); or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation, or winding up of the Company;
then, in any one or more of said cases, the Company shall cause to be mailed to
the Holder, not less than 15 days before any record date or other date set for
the definitive action, written notice of the date upon which the books of the
Company shall close or a record shall be taken for purposes of such dividend,
distribution or subscription rights or upon which such reorganization,
reclassification, conversion, sale, consolidation, merger, dissolution,
liquidation or winding up shall take place, as the case may be. 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 number of
Shares and the kind and amount of the shares of stock and other securities and
property deliverable upon exercise of the Warrants. Such notice shall also
specify the date as of which the holder of record of the shares of Common Stock
shall participate in such dividend, distribution, or subscription rights or
shall be entitled to exchange their shares of Common Stock for securities or
other property deliverable upon such reorganization, reclassification,
conversion, sale, consolidation, merger, dissolution, liquidation, or winding
up, as the case may be (on which date in the event of voluntary or involuntary
dissolution, liquidation, or winding up of the Company, the right to exercise
the Warrants shall terminate).
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7. Piggy-Back Registration.
(a) If the Company shall, at any time prior to the expiration of this
Warrant, authorize a registration of its Common Stock with the Securities
and Exchange Commission (the "SEC"), the Company shall furnish the Holder
with at least 30 days prior written notice thereof and the Holder shall
have the option to include the Shares to be issued to the Holder upon the
exercise of this Warrant in such registration statement. The Holder shall
exercise the "piggy-back registration rights" granted pursuant to this
Section 7 by giving written notice to the Company within 20 days of the
receipt of the written notice from the Company described above.
(b) Notwithstanding any other provision of this Warrant, the Company's
obligations under this Section 7 shall be subject to the following terms
and conditions:
(i) The obligations of the Company set forth under this Section 7
shall not arise upon the filing of a registration statement that
covers any of the following: (A) securities proposed to be issued in
exchange for assets or securities of another corporation; (B) debt
securities not convertible into, or exchangeable for, shares of Common
Stock; (C) securities to be issued pursuant to a transaction
registered on Form S-4 (or any registration form promulgated by the
SEC in substitution of that form); or (D) a stock option, stock bonus,
stock purchase, or other employee benefit or compensation plan or
securities issued or issuable pursuant to any such plan.
(ii) If the Company files a registration statement in connection
with an underwritten public offering of Common Stock, the Company
shall use its best efforts to cause the managing underwriter of the
proposed offering to grant any request by the Holder that Shares
purchased by the Holder upon the exercise of this Warrant be included
in the proposed public offering on terms and conditions that are
customary under industry practice. Notwithstanding any other provision
of this Agreement, if the managing underwriter of the public offering
of the Common Stock gives written notice to the Company that, in the
reasonable opinion of such managing underwriter, marketing factors
require a limitation of the total number of shares of Common Stock to
be underwritten, then the number of Shares purchased by the Holder
upon the exercise of this Warrant that the Company shall be obligated
to include in the registration statement shall be reduced in
accordance with the limitations imposed by the managing underwriter.
(iii) The Holder must provide to the Company all information, and
take all action, the Parent reasonably requests with reasonable
advance notice, to enable it to comply with any applicable law or
regulation or to prepare the registration statement that will cover
the Shares that will be included in the registration.
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(c) The Company will pay all Registration Expenses (as defined below)
in connection with the registration of the Shares pursuant to this Section
7. For purposes of this Warrant, the term "Registration Expenses" shall
mean all expenses incurred by the Company in complying with this Section 7,
including, without limitation, all registration and filing fees, exchange
listing fees, printing expenses, fees and disbursements of counsel for the
Company, state Blue Sky fees and expenses, transfer agent fees, cost of
engraving of stock certificates, costs for mailing and tombstone
advertising, cost of preparing the registration statement, related
exhibits, amendments and supplements thereto, underwriting documents,
selected dealer agreements, preliminary and final prospectuses, and the
expense of any special audits incident to or required by any such
registration, but excluding underwriting discounts and selling commissions
attributable to the Shares and the fees and expenses of the Holder's own
counsel and accountants, which shall be borne by the Holder.
8. Indemnification and Notification.
(a) The Company will indemnify and hold harmless the Holder from and
against any and all losses, claims, damages, expenses, and liabilities
caused by any untrue statement of a material fact contained in any
registration statement or contained in a prospectus furnished thereunder or
caused by any omission to state a material fact necessary to make any
statement therein not misleading. The foregoing indemnification and
agreement to hold harmless shall not apply, however, insofar as such
losses, claims, damages, expenses, and liabilities are caused by an untrue
statement or omissions based upon information furnished in writing to the
Company by the Holder expressly for use in any registration statement or
prospectus.
(b) The Holder will indemnify the Company, and each person who
controls the Company within the meaning of Section 15 of the Act, from and
against any and all losses, claims, damages, expenses, and liabilities
caused by an untrue statement of a material fact contained in any
registration statement or contained in a prospectus furnished thereunder or
caused by an omission to state a material fact necessary to make any
statement therein not misleading insofar as such losses, claims, damages,
expenses, and liabilities are caused by an untrue statement or omission
based upon information furnished in writing to the Company by the Holder
expressly for use in any registration statement or prospectus.
(c) Each indemnified party promptly shall notify each indemnifying
party of any claim asserted or action commenced against it that is subject
to the indemnification provisions of this Section, but failure to so notify
an indemnifying party will not relieve the indemnifying party from any
liability pursuant to these indemnity provisions or otherwise, unless and
only to the extent that the failure materially prejudices the rights or
obligations of the indemnifying party. Without limiting what might be
materially prejudicial to an indemnifying party, the failure of an
indemnified party to notify an indemnifying party of a lawsuit within ten
days after the date when the indemnified party is served with a copy of the
complaint, petition, or other pleading asserting the indemnifiable claim
will be considered materially prejudicial to the rights and obligations of
any indemnifying party who was not also served with a copy of the
complaint, petition, or other pleading asserting the indemnifiable claim.
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The indemnifying party may participate at its own expense in the
defense, or, if the indemnifying party so elects within a reasonable time,
the indemnifying party may assume the defense, of any action commenced
against the indemnified party that is the subject of indemnification under
this Section. If the indemnifying party elects to assume the defense of an
indemnified action, however, the indemnifying party shall engage to defend
the action legal counsel reasonably satisfactory to the indemnified party.
If the indemnifying party elects to assume the defense of any indemnified
action, the indemnified party, and each controlling person who is a
defendant in the action, will be entitled to employ separate counsel
participate in the defense of the action at its own expense.
An indemnified party shall not settle an indemnified claim or action
without the prior written consent of the indemnifying party and the
indemnifying party will not be liable for any settlement made without its
consent. The indemnifying party shall notify the indemnified party whether
or not it will consent to a proposed settlement within ten days after it
receives from the indemnified party notice of the proposed settlement,
summarizing all the terms and conditions of settlement. The indemnifying
party's failure to notify the indemnified party within that ten-day period
whether or not it consents to the proposed settlement will constitute its
consent to the proposed settlement.
This indemnity does not apply to any untrue statement or omission, or
any alleged untrue statement or omission that was made in a preliminary
prospectus but remedied or eliminated in the final prospectus (including
any amendment or supplement to it), if a copy of the definitive prospectus
(including any amendment or supplement to it) was delivered to the person
asserting the claim at or before the time required by the Securities Act
and the delivery of the definitive prospectus (including any amendment or
supplement to it) constitutes a defense to the claim asserted by the
person.
9. No Impairment. The Company will not by any action including, without
limitation, amending or permitting the amendment of the charter documents,
bylaws, or similar instruments of the Company or through any reorganization,
reclassification, transfer of assets, consolidation, merger, share exchange,
dissolution, issue or sale of securities, or any other similar voluntary action,
avoid or seek to avoid the observance or performance of any of the express terms
of this Warrant, but will at all times in good faith assist in the carrying out
of all such terms and in the taking of all such actions as may be necessary to
protect the rights of the Holder against impairment or dilution. Without
limiting the generality of the foregoing, the Company will (i) take all such
action as may be reasonably necessary in order that the Company may validly and
legally issue fully paid and nonassessable shares of Common Stock upon exercise
of the Warrant, free and clear of all liens, encumbrances, equities, and claims
and (ii) use all reasonable efforts to obtain all such authorizations,
exemptions, or consents from any public regulatory body having jurisdiction over
the Company as may be necessary to enable the Company to perform its obligations
under this Warrant.
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10. Dilution Fee. If, during the Exercise Period, the Company pays any cash
dividends or makes any cash distribution to any holder of any class of its
Common Stock with respect to such Common Stock and the Exercise Price exceeds
the Market Price, then the Holder of this Warrant will be entitled to receive in
respect of this Warrant a dilution fee in cash (the "Dilution Fee") on the date
of payment of such dividend or distribution, which Dilution Fee will be equal to
the amount per share paid to the holders of Common Stock times the number of
Shares currently exercisable under this Warrant.
11. Survival. The various rights and obligations of the Holder and of the
Company as set forth in Sections 4 and 5 hereof shall survive the exercise of
this Warrant and the surrender of this instrument upon such exercise.
12. Notice. All notices required by this Warrant to be given or made by the
Company shall be given or made by first class mail, postage prepaid, addressed
to the registered Holder hereof at the address of such Holder as shown on the
books of the Company.
13. Loss or Destruction. Upon receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of any loss, theft or destruction, upon delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company
and its counsel, or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant, the Company, at its expense, will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
14. Miscellaneous.
(a) Neither this Warrant nor any term hereof may be changed, waived,
discharged, or terminated except by a written instrument executed by the
Company and the Holder.
(b) This Warrant shall be governed by, and construed and enforced in
accordance with, the internal laws of the State of Florida, without regard
to principles of conflicts of laws thereof.
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(c) Each provision of this Warrant shall be interpreted in such a
manner as to be effective, valid, and enforceable under applicable law, but
if any provision of this Warrant is held to be invalid, illegal, or
unenforceable under any applicable law or rule in any jurisdiction, such
provision will be ineffective only to the extent of such invalidity,
illegality, or unenforceability in such jurisdiction, without invalidating
the remainder of this Warrant in such jurisdiction or any provision hereof
in any other jurisdiction.
(d) No course of dealing or delay or failure to exercise any right
hereunder on the part of the Holder shall operate as a waiver of such right
or otherwise prejudice the Holder's rights, power, or remedies.
(e) The Company shall pay all expenses incurred by it in connection
with, and all documentary stamp and other taxes (other than stock transfer
taxes) and other governmental charges that may be imposed in respect of,
the issue, sale and delivery of this Warrant and the Shares issuable upon
the exercise hereof.
(f) This Warrant and the rights evidenced hereby shall inure to the
benefit of and be binding upon the successors and assigns of the Company
and the successors and permitted assigns of the Holder.
15. Further Assurances. The Company agrees that it will execute and record
such documents as the Holder shall reasonably request to secure for the Holder
any of the rights represented by this Warrant.
IN WITNESS WHEREOF the Company has caused this Warrant to be executed by
its duly authorized officer as of the 13th day of May, 1998.
LIFESERV TECHNOLOGIES, INC.
By:
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Name:
----------------------------------
Title:
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13
EXHIBIT "A"
PURCHASE FORM
To be executed upon exercise of the Warrant. Capitalized terms have the
same meanings ascribed to them in the Warrant.
TO: LifeServ Technologies, Inc.
The undersigned hereby exercises the right to purchase _____________
Shares of Common Stock evidenced by the Warrant, according to the terms and
conditions thereof, and hereby makes payment of the Purchase Price. If the
Company's Common Stock is listed on a securities exchange or market, the
undersigned [does] [does not] choose to pay the Purchase Price pursuant to a
cashless exercise of the Warrant. The undersigned requests that certificates for
the Shares shall be issued in the name set forth below:
Dated: Name:
-----------------------------
(Address)
-----------------------------
Social Security No.
-----------------------
or other identifying number
14
EXHIBIT "B"
ASSIGNMENT
To be executed by the registered holder to effect a permitted transfer of
the Warrant. Capitalized terms have the same meanings ascribed to them in the
Warrant.
FOR VALUE RECEIVED ("Assignor")
------------------------------------------------
hereby sells, assigns and transfers unto
("Assignee")
-----------------------------
(Name)
-----------------------------
(Address)
the right to purchase __________ shares of Common Stock of LifeServ
Technologies, Inc. evidenced by the Warrant, together with all right, title, and
interest therein, and does irrevocably constitute and appoint
_____________________________ attorney to transfer the said right on the books
of said corporation with full power of substitution in the premises.
Date: Assignor:
----------------------------- -----------------------------
By:
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Its:
-----------------------------
Signature:
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