Exhibit 10.43
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE
SECURITIES LAW, AND NO INTEREST IN IT MAY BE OFFERED,
SOLD, DISTRIBUTED, ASSIGNED, PLEDGED OR
OTHERWISE TRANSFERRED ABSENT SUCH REGISTRATION
(OR THE AVAILABILITY OF AN EXEMPTION THEREFROM) AND
COMPLIANCE WITH THE OTHER CONDITIONS OF THIS WARRANT
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PURCHASE WARRANT CERTIFICATE
Issued to:
XXXXXXX X. XXXXXXX
Exercisable to Purchase
35,000 Shares of Common Stock
of
ATHENA MEDICAL CORPORATION
Void after December 31, 1999
This Warrant Certificate certifies that, for value received and subject to the
terms and conditions set forth below, the Warrantholder is entitled to purchase,
and the Company agrees to sell and issue to the Warrantholder, at any time on or
before December 31, 1999, up to 35,000 Shares at the Exercise Price.
This Warrant is issued pursuant to partial transfer on this date by Xxxx
XxxXxxxxx Securities, Inc. to the Warrantholder of a warrant issued to such
transferor as of October 12, 1994.
This Warrant is issued subject to all the following terms and conditions:
1. DEFINITIONS OF CERTAIN TERMS: Except as may be otherwise clearly required
by the context:
(a) COMMON STOCK means the $0.01 par value common stock of the Company.
(b) COMPANY means ATHENA Medical Corporation, a Nevada corporation.
(c) EXERCISE PRICE means the price at which the Warrantholder may purchase
one Share (or Securities obtainable in lieu of one Share) upon
exercise of this Warrant as determined from time to time pursuant to
the provisions hereof. The Exercise Price is $1.50 per Share.
(d) SECURITIES means the Shares obtained or obtainable upon exercise of
this Warrant or securities obtained or obtainable upon exercise,
exchange or conversion of such Shares.
(e) SHARE shall mean one share of Common Stock for which this Warrant is
initially exercisable.
(f) WARRANT CERTIFICATE means this certificate evidencing the Warrant.
(g) WARRANTHOLDER means the record holder of the Warrant or Securities.
The Warrantholder is XXXXXXX X. XXXXXXX.
(h) WARRANT means the warrant evidenced by this certificate or any
certificate obtained upon permitted transfer or partial exercise of
the Warrant evidenced by any such certificate.
(i) REQUIRED CONDITION means this Warrant is valid as follows: none. The
Required Condition has been satisfied.
2. EXERCISE OF WARRANT. Subject to the Required Condition, all or any part of
this Warrant may be exercised at any time on or before 5 p.m. Pacific Time
on December 31, 1999, by surrendering this Warrant Certificate, together
with appropriate instructions, duly executed by the Warrantholder or by the
Warrantholder's duly authorized attorney, at the office of the Company,
00000 XX Xxxxxx, Xxxxx X-0, Xxxxxxxx, Xxxxxx 00000, or at such other office
or agency as the Company may designate. Upon receipt of notice of
exercise, the Company shall as promptly as practicable instruct its
transfer agent to prepare certificates for the Securities to be received by
the Warrantholder upon completion of the exercise. When such certificates
are prepared, the Company shall notify the Warrantholder and deliver such
certificates to the Warrantholder or as per the Warrantholder's
instructions immediately upon payment in full by the Warrantholder, in
lawful money of the United States, of the Exercise Price payable with
respect to the Securities being purchased. A registration statement
listing the Securities shall be filed as a "shelf registration" with the
Securities and Exchange Commission (the "SEC") not later than March 29,
1996. Thereafter, the Company shall promptly and diligently take all
appropriate and reasonable action to cause such registration statement to
become effective. The registration statement will include Common Stock and
other warrants or options therefor held by other persons. If the Company's
prospectus (including any amendments) included in the registration
statement is not in compliance with the Securities Act of 1933 (the "1933
Act") at any time while the registration
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statement is effective, the Company will take reasonably prompt action to
update the prospectus to comply with the 1933 Act and the Warrantholder may
not conduct any trading until the prospectus is updated.
The Securities to be obtained on exercise of this Warrant will be deemed to
have been issued, and the Warrantholder will be deemed to have become a
holder of record of those Securities, as of the date of full payment of the
Exercise Price.
If fewer than all the Securities purchasable under this Warrant are
purchased, the Company will, upon such partial exercise, execute and
deliver to the Warrantholder a new Warrant Certificate (dated the date
hereof), in form and tenor similar to this Warrant Certificate, evidencing
that portion of this Warrant not exercised.
3. ADJUSTMENTS IN CERTAIN EVENTS. The number, class and price of Securities
for which this Warrant may be exercised are subject to adjustment from time
to time upon the occurrence of certain events as follows:
(a) If the outstanding shares of the Company's Common Stock are divided
into a greater number of shares or a dividend in stock is paid on the
Common Stock, the number of shares of Common Stock for which this
Warrant is then exercisable will be proportionately increased and the
Exercise Price will be proportionately reduced. Conversely, if the
outstanding shares of the Company's Common Stock are combined into a
smaller number of shares, the number of shares of Common Stock for
which this Warrant is then exercisable will be proportionately reduced
and the Exercise Price will be proportionately increased. The
increases and reductions provided for in this Subsection 3(a) will be
made with the intent and, as nearly as practicable, the effect that
neither the percentage of the total equity of the Company obtainable
on exercise of the Warrant nor the price payable for such percentage
upon such exercise will be affected by any event described in this
Subsection 3(a).
(b) In case of any change in the Common Stock through merger,
consolidation, reclassification, reorganization, partial or complete
liquidation, purchase of substantially all the assets of the Company,
or other change in the capital structure of the Company, then, as a
condition of such change, lawful and adequate provision will be made
so that the Warrantholder will have the right thereafter to receive
upon the exercise of this Warrant the kind and amount of shares of
stock or other securities or property to which the Warrantholder would
have been entitled if, immediately prior to such event, the
Warrantholder had held the number of shares of Common Stock obtainable
upon the exercise of the Warrant. In any such case, appropriate
adjustment will be made in the application of the provisions set forth
herein with respect to the rights and interest thereafter of the
Warrantholder, to the end that the provisions set forth herein will
thereafter be applicable, as nearly as reasonably may be, in relation
to any shares of stock or other property thereafter deliverable upon
the exercise of this Warrant. The Company will not permit any change
in its capital structure to occur unless the issuer of the shares of
stock or other securities to be received by the holder of this
Warrant, if not the Company, agrees to be bound by and comply with the
provisions of this Warrant Certificate.
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(c) When any adjustment is required to be made in the number of shares of
Common Stock, other securities or other property purchasable upon
exercise of this Warrant, the Company will promptly determine the new
number of such shares purchasable upon exercise of this Warrant, and
(i) prepare and retain on file a statement describing in reasonable
detail the method used in arriving at the new number of such shares or
other securities or property purchasable upon exercise of this
Warrant, and (ii) cause a copy of such statement to be mailed to the
Warrantholder within 30 days after the date of the event giving rise
to the adjustment.
(d) No fractional shares of Common Stock or other Securities will be
issued in connection with exercise of this Warrant or in connection
with any adjustment pursuant to this Section 3. The number of full
shares issuable shall be determined by the Board of Directors of the
Company or by the terms of any assumption or substitution documents,
and any such determination shall be binding and conclusive.
4. RESERVATION OF SHARES. The Company agrees that the number of shares of
Common Stock or other Securities sufficient to provide for exercise of this
Warrant upon the basis set forth above will at all times during this term
of this Warrant be reserved for exercise.
5. VALIDITY OF SECURITIES. All Securities delivered upon the exercise of this
Warrant will be duly and validly issued in accordance with their terms, and
the Company will pay all documentary and transfer taxes, if any, in respect
of the original issuance thereof upon exercise of this Warrant.
6. NO RIGHTS AS A SHAREHOLDER. Except as otherwise provided herein, the
Warrantholder will not, by virtue of ownership of this Warrant, be entitled
to any rights of a shareholder of the Company.
7. TRANSFER OF WARRANT. This is not a bearer warrant. This Warrant may be
sold, assigned, encumbered or otherwise transferred if: (a) the Company
receives an opinion of counsel to the Warrantholder, reasonably
satisfactory to the Company, that the proposed transfer is exempt from
registration under federal and applicable state securities laws or the
transaction is otherwise in compliance with the registration requirements
thereof; and (b) if a partial transfer is proposed, not fewer than 5,000
Securities per transferee are the subject thereof. Any warrant issued to
any such transferee may not be sold, assigned, encumbered or otherwise
transferred (except by will or the laws of intestacy), in whole or in part,
without the prior written consent of the Company and compliance with
applicable securities laws.
8. COMPLIANCE WITH SECURITIES LAWS. By accepting this Warrant, the
Warrantholder represents, acknowledges and agrees that:
(a) This Warrant, and the Securities if the Warrant is exercised, are
acquired only for investment, for the Warrantholder's own account, and
without any present intention to sell or distribute this Warrant or
the Securities. The Warrantholder further acknowledges that the
Securities will not be issued pursuant to any exercise of this Warrant
unless the exercise and the issuance and delivery of such Securities
shall comply with all relevant provisions of law, including without
limitation the 1933 Act and other federal and state securities laws
and regulations, and the requirements of any stock exchange upon which
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the Securities may then be listed.
(b) Notwithstanding anything in Section 8 (a) above to the contrary, the
Company has agreed to register the Securities in accordance with
Section 2 above.
9. MISCELLANEOUS. No amendment, waiver, termination or other change to this
Warrant or any term of it will be effective unless set forth in a writing
signed by the party sought to be bound. Any notices required or permitted
to be given hereunder will be in writing and may be served personally or by
mail; and if served will be addressed as follows:
If to the Company: ATHENA Medical Corporation
00000 XX Xxxxxx Xxx., Xxxxx X-0
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, President
If to the Warrantholder: Xxxxxxx X. Xxxxxxx
0000 XX Xxxxxxx Xxxx,
Xxxxx 000
Xxxx Xxxxxx, XX 00000
Any notice so given by mail will be deemed effectively given 48 hours after
mailing when deposited in the United States mail, registered or certified
mail, return receipt requested, postage prepaid and addressed as specified
above. Any party may by written notice to the other specify a different
address for notice purposes.
10. APPLICABLE LAW. This Warrant will be governed by and construed in
accordance with the laws of the state of Oregon, without reference to
conflict of laws principles thereunder. All disputes relating to this
Warrant shall be tried before federal or state courts located in Multnomah
County, Oregon, to the exclusion of all other courts that might have
jurisdiction.
DATED March ___, 1996.
ATHENA MEDICAL CORPORATION
By
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Xxxxxxx X. Xxxxxxx, President
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