DYNATRONICS CORPORATION FORM OF DEBT SECURITIES WARRANT AGREEMENT
Exhibit 4.12
DYNATRONICS CORPORATION
This
DEBT SECURITIES WARRANT
AGREEMENT (this “Agreement”),
dated as of between DYNATRONICS
CORPORATION, a Utah corporation (the “Company”), and
[●], a [corporation] [national banking association] organized
and existing under the laws of and having a corporate trust office
in [●], as warrant
agent (the “Warrant
Agent”).
[WHEREAS, the Company has entered into an
indenture dated as of [●] (the “Indenture”),
with [●], as trustee (such trustee, and any successors to
such trustee, herein called the “Trustee”),
providing for the issuance from time to time of its
[unsubordinated][subordinated] debt securities, to be issued in one
or more series as provided in the Indenture (the
“Debt
Securities”);]
WHEREAS, the Company proposes to sell
[If Warrants are sold with other securities — title of such
other securities being offered (the “Other
Securities”) with] warrant certificates evidencing one
or more warrants (the “Warrants” or,
individually, a “Warrant”)
representing the right to purchase [title of Debt Securities
purchasable through exercise of Warrants] (the “Warrant Debt
Securities”), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein
called the “Warrant
Certificates”; and
WHEREAS, the Company desires the Warrant
Agent to act on behalf of the Company, and the Warrant Agent is
willing so to act, in connection with the issuance, registration,
transfer, exchange, exercise and replacement of the Warrant
Certificates, and in this Agreement wishes to set forth, among
other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued,
registered, transferred, exchanged, exercised and
replaced.
NOW, THEREFORE, in consideration of the
premises and of the mutual agreements herein contained, the parties
hereto agree as follows:
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
1.1 Issuance
of Warrants. [If Warrants alone — Upon issuance, each
Warrant Certificate shall evidence one or more Warrants.] [If Other
Securities and Warrants — Warrant Certificates shall be
[initially] issued in connection with the issuance of the Other
Securities [but shall be separately transferable on and after (the
“Detachable
Date”)] [and shall not be separately transferable] and
each Warrant Certificate shall evidence one or more Warrants.] Each
Warrant evidenced thereby shall represent the right, subject to the
provisions contained herein and therein, to purchase one Warrant
Debt Security. [If Other Securities and Warrants — Warrant
Certificates shall be initially issued in units with the Other
Securities and each Warrant Certificate included in such a unit
shall evidence Warrants for each [$[●] principal amount] [
shares] of Other Securities included in such unit].
1.2 Execution
and Delivery of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, shall be dated the
date of its countersignature by the Warrant Agent and may have such
letters, numbers, or other marks of identification or designation
and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may
approve (execution thereof to be conclusive evidence of such
approval) and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which the Warrants may be
listed, or to conform to usage. The Warrant Certificates shall be
signed on behalf of the Company by any of its present or future
chief executive officers, presidents, senior vice presidents, vice
presidents, chief financial officers, chief legal officers,
treasurers, assistant treasurers, controllers, assistant
controllers, secretaries or assistant secretaries under its
corporate seal reproduced thereon. Such signatures may be manual or
facsimile signatures of such authorized officers and may be
imprinted or otherwise reproduced on the Warrant Certificates. The
seal of the Company may be in the form of a facsimile thereof and
may be impressed, affixed, imprinted or otherwise reproduced on the
Warrant Certificates.
(a) No
Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant
Certificate has been countersigned by the manual signature of the
Warrant Agent. Such signature by the Warrant Agent upon any Warrant
Certificate executed by the Company shall be conclusive evidence
that the Warrant Certificate so countersigned has been duly issued
hereunder.
(b) In
case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature
shall cease to be such officer before the Warrant Certificates so
signed shall have been countersigned and delivered by the Warrant
Agent, such Warrant Certificates may be countersigned and delivered
notwithstanding that the person who signed Warrant Certificates
ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons
as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although
at the date of the execution of this Agreement any such person was
not such officer.
(c) The
term “holder” or “holder of a Warrant
Certificate” as used herein shall mean any person in whose
name at the time any Warrant Certificate shall be registered upon
the books to be maintained by the Warrant Agent for that purpose
[If Other Securities and Warrants are not immediately detachable
— or upon the registration of the Other Securities prior to
the Detachable Date. Prior to the Detachable Date, the Company
will, or will cause the registrar of the Other Securities to, make
available at all times to the Warrant Agent such information as to
holders of the Other Securities as may be necessary to keep the
Warrant Agent’s records up to date].
1.3 Issuance
of Warrant Certificates. Warrant Certificates evidencing the
right to purchase Warrant Debt Securities may be executed by the
Company and delivered to the Warrant Agent upon the execution of
this Warrant Agreement or from time to time thereafter. The Warrant
Agent shall, upon receipt of Warrant Certificates duly executed on
behalf of the Company, countersign such Warrant Certificates and
shall deliver such Warrant Certificates to or upon the order of the
Company.
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ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
2.1 Warrant
Price. During the period specified in Section 2.2, each Warrant
shall, subject to the terms of this Warrant Agreement and the
applicable Warrant Certificate, entitle the holder thereof, to
purchase the principal amount of Warrant Debt Securities specified
in the applicable Warrant Certificate at an exercise price of
[●]% of the principal amount thereof [plus accrued
amortization, if any, of the original issue discount of the Warrant
Debt Securities] [plus accrued interest, if any, from the most
recent date from which interest shall have been paid on the Warrant
Debt Securities or, if no interest shall have been paid on the
Warrant Debt Securities, from the date of their initial issuance.]
[The original issue discount ($[●] for each $1,000 principal
amount of Warrant Debt Securities) will be amortized at a
[●]% annual rate, computed on a[n] [semi-] annual basis
[using a 360-day year consisting of twelve 30-day months].] Such
purchase price for the Warrant Debt Securities is referred to in
this Agreement as the “Warrant
Price.”
2.2 Duration
of Warrants. Each Warrant may be exercised in whole or in
part at any time, as specified herein, on or after [the date
thereof] [ ] and at or before [ ] p.m., [City] time, on or such
later date as the Company may designate by notice to the Warrant
Agent and the holders of Warrant Certificates mailed to their
addresses as set forth in the record books of the Warrant Agent
(the “Expiration
Date”). Each Warrant not exercised at or before [ ]
p.m., [[●] City] time, on the Expiration Date shall become
void, and all rights of the holder of the Warrant Certificate
evidencing such Warrant under this Agreement shall
cease.
2.3 Exercise
Of Warrants.
(a) During
the period specified in Section 2.2, the Warrants may
be exercised to purchase a whole number of Warrant Debt Securities
in registered form by providing certain information as set forth on
the reverse side of the Warrant Certificate and by paying in full,
in lawful money of the United States of America, [in cash or by
certified check or official bank check in New York Clearing House
funds] [by bank wire transfer in immediately available funds] the
Warrant Price for each Warrant Debt Security with respect to which
a Warrant is being exercised to the Warrant Agent at its corporate
trust office, provided that such exercise is subject to receipt
within five business days of such payment by the Warrant Agent of
the Warrant Certificate with the form of election to purchase
Warrant Debt Securities set forth on the reverse side of the
Warrant Certificate properly completed and duly executed. The date
on which payment in full of the Warrant Price is received by the
Warrant Agent shall, subject to receipt of the Warrant Certificate
as aforesaid, be deemed to be the date on which the Warrant is
exercised; provided, however, that if, at the date of receipt of
such Warrant Certificates and payment in full of the Warrant Price,
the transfer books for the Warrant Debt Securities purchasable upon
the exercise of such Warrants shall be closed, no such receipt of
such Warrant Certificates and no such payment of such Warrant Price
shall be effective to constitute the person so designated to be
named as the holder of record of such Warrant Debt Securities on
such date, but shall be effective to constitute such person as the
holder of record of such Warrant Debt Securities for all purposes
at the opening of business on the next succeeding day on which the
transfer books for the Warrant Debt Securities purchasable upon the
exercise of such Warrants shall be opened, and the certificates for
the Warrant Debt Securities in respect of which such Warrants are
then exercised shall be issuable as of the date on such next
succeeding day on which the transfer books shall next be opened,
and until such date the Company shall be under no duty to deliver
any certificate for such Warrant Debt Securities. The Warrant Agent
shall deposit all funds received by it in payment of the Warrant
Price in an account of the Company maintained with it and shall
advise the Company by telephone at the end of each day on which a
payment for the exercise of Warrants is received of the amount so
deposited to its account. The Warrant Agent shall promptly confirm
such telephone advice to the Company in writing.
(b) The
Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company of (i) the number of Warrant Debt Securities
with respect to which Warrants were exercised, (ii) the
instructions of each holder of the Warrant Certificates evidencing
such Warrants with respect to delivery of the Warrant Debt
Securities to which such holder is entitled upon such exercise,
(iii) delivery of Warrant Certificates evidencing the balance, if
any, of the Warrants for the remaining Warrant Debt Securities
after such exercise, and (iv) such other information as the Company
or the Trustee shall reasonably require.
(c) As
soon as practicable after the exercise of any Warrant, the Company
shall issue, pursuant to the Indenture, in authorized
denominations, to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant, the Warrant Debt Securities to
which such holder is entitled, in fully registered form, registered
in such name or names as may be directed by such holder. If fewer
than all of the Warrants evidenced by such Warrant Certificate are
exercised, the Company shall execute, and an authorized officer of
the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing Warrants for the number of Warrant
Debt Securities remaining unexercised.
(d) The
Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Debt Securities,
and in the event that any such transfer is involved, the Company
shall not be required to issue or deliver any Warrant Debt
Securities until such tax or other charge shall have been paid or
it has been established to the Company’s satisfaction that no
such tax or other charge is due.
(e) Prior
to the issuance of any Warrants there shall have been reserved, and
the Company shall at all times through the Expiration Date keep
reserved, out of its authorized but unissued Warrant Debt
Securities, a number of shares sufficient to provide for the
exercise of the Warrants.
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ARTICLE 3
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
3.1 No
Rights As Holders of Warrant Debt Securities Conferred By Warrants
or Warrant Certificates. No Warrant Certificate or Warrant
evidenced thereby shall entitle the holder thereof to any of the
rights of a holder of Warrant Debt Securities, including, without
limitation, the right to receive the payment of principal of (or
premium, if any) or interest, if any, on the Warrant Debt
Securities or to enforce any of the covenants in the
Indenture.
3.2 Lost,
Stolen, Mutilated or Destroyed Warrant Certificates. Upon
receipt by the Warrant Agent of evidence reasonably satisfactory to
it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and/or
indemnity reasonably satisfactory to the Warrant Agent and the
Company and, in the case of mutilation, upon surrender of the
mutilated Warrant Certificate to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a
bona fide purchaser, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and
deliver, in exchange for or in lieu of the lost, stolen, destroyed
or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing Warrants for a like principal amount of
Warrant Debt Securities. Upon the issuance of any new Warrant
Certificate under this Section 3.2, the Company may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Warrant
Agent) in connection therewith. Every substitute Warrant
Certificate executed and delivered pursuant to this Section 3.2 in lieu of any
lost, stolen or destroyed Warrant Certificate shall represent an
additional contractual obligation of the Company, whether or not
the lost, stolen or destroyed Warrant Certificate shall be at any
time enforceable by anyone, and shall be entitled to the benefits
of this Agreement equally and proportionately with any and all
other Warrant Certificates duly executed and delivered hereunder.
The provisions of this Section 3.2 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies
with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates.
3.3 Holder
Of Warrant Certificate May Enforce Rights. Notwithstanding
any of the provisions of this Agreement, any holder of any Warrant
Certificate, without the consent of the Warrant Agent, the Trustee,
the holder of any Warrant Debt Securities or the holder of any
other Warrant Certificate, may, in such holder’s own behalf
and for such holder’s own benefit, enforce, and may institute
and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, such
holder’s right to exercise the Warrants evidenced by such
holder’s Warrant Certificate in the manner provided in such
holder’s Warrant Certificates and in this
Agreement.
3.4 Merger,
Sale, Conveyance or Lease. In case of (a) any share
exchange, merger or similar transaction of the Company with or into
another person or entity (other than a share exchange, merger or
similar transaction in which the Company is the acquiring or
surviving corporation) or (b) the sale, exchange, lease, transfer
or other disposition of all or substantially all of the properties
and assets of the Company as an entirety (in any such case, a
“Reorganization
Event”), then, as a condition of such Reorganization
Event, lawful provisions shall be made, and duly executed documents
evidencing the same from the Company’s successor shall be
delivered to the holders of the Warrants, so that such successor
shall succeed to and be substituted for the Company, and assume all
the Company’s obligations under, this Agreement and the
Warrants. The Company shall thereupon be relieved of any further
obligation hereunder or under the Warrants, and the Company as the
predecessor corporation may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor or assuming
entity thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the
Warrants issuable hereunder which heretofore shall not have been
signed by the Company, and may execute and deliver securities in
its own name, in fulfillment of its obligations to deliver Warrant
Debt Securities upon exercise of the Warrants. All the Warrants so
issued shall in all respects have the same legal rank and benefit
under this Agreement as the Warrants theretofore or thereafter
issued in accordance with the terms of this Agreement as though all
of such Warrants had been issued at the date of the execution
hereof. In any case of any such Reorganization Event, such changes
in phraseology and form (but not in substance) may be made in the
Warrants thereafter to be issued as may be appropriate. The Warrant
Agent may receive a written opinion of legal counsel as conclusive
evidence that any such Reorganization Event complies with the
provisions of this Section
3.4.
3.5 Notice
to Warrantholders. In case the Company shall (a) effect any
Reorganization Event or (b) make any distribution on or in respect
of the [title of Warrant Debt Securities] in connection with the
dissolution, liquidation or winding up of the Company, then the
Company shall mail to each holder of Warrants at such
holder’s address as it shall appear on the books of the
Warrant Agent, at least ten days prior to the applicable date
hereinafter specified, a notice stating the date on which such
Reorganization Event, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is
expected that holders of [title of Warrant Debt Securities] of
record shall be entitled to exchange their shares of [title of
Warrant Debt Securities] for securities or other property
deliverable upon such Reorganization Event, dissolution,
liquidation or winding up. No failure to mail such notice nor any
defect therein or in the mailing thereof shall affect any such
transaction.
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ARTICLE 4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
4.1 Exchange
and Transfer of Warrant Certificates. [If Other Securities
with Warrants which are immediately detachable — Upon] [If
Other Securities with Warrants which are not immediately detachable
— Prior to the Detachable Date, a Warrant Certificate may be
exchanged or transferred only together with the Other Security to
which the Warrant Certificate was initially attached, and only for
the purpose of effecting or in conjunction with an exchange or
transfer of such Other Security. Prior to any Detachable Date, each
transfer of the Other Security shall operate also to transfer the
related Warrant Certificates. After the Detachable Date, upon]
surrender at the corporate trust office of the Warrant Agent,
Warrant Certificates evidencing Warrants may be exchanged for
Warrant Certificates in other denominations evidencing such
Warrants or the transfer thereof may be registered in whole or in
part; provided that such other Warrant Certificates evidence
Warrants for the same aggregate principal amount of Warrant Debt
Securities as the Warrant Certificates so surrendered. The Warrant
Agent shall keep, at its corporate trust office, books in which,
subject to such reasonable regulations as it may prescribe, it
shall register Warrant Certificates and exchanges and transfers of
outstanding Warrant Certificates, upon surrender of the Warrant
Certificates to the Warrant Agent at its corporate trust office for
exchange or registration of transfer, properly endorsed or
accompanied by appropriate instruments of registration of transfer
and written instructions for transfer, all in form satisfactory to
the Company and the Warrant Agent. No service charge shall be made
for any exchange or registration of transfer of Warrant
Certificates, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or other governmental
charge that may be imposed in connection with any such exchange or
registration of transfer. Whenever any Warrant Certificates are so
surrendered for exchange or registration of transfer, an authorized
officer of the Warrant Agent shall manually countersign and deliver
to the person or persons entitled thereto a Warrant Certificate or
Warrant Certificates duly authorized and executed by the Company,
as so requested. The Warrant Agent shall not be required to effect
any exchange or registration of transfer which will result in the
issuance of a Warrant Certificate evidencing a Warrant for a
fraction of a Warrant Debt Security or a number of Warrants for a
whole number of Warrant Debt Securities and a fraction of a Warrant
Debt Security. All Warrant Certificates issued upon any exchange or
registration of transfer of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations and
entitled to the same benefits under this Agreement as the Warrant
Certificate surrendered for such exchange or registration of
transfer.
4.2 Treatment
of Holders of Warrant Certificates. [If Other Securities and
Warrants are not immediately detachable — Prior to the
Detachable Date, the Company, the Warrant Agent and all other
persons may treat the owner of the Other Security as the owner of
the Warrant Certificates initially attached thereto for any purpose
and as the person entitled to exercise the rights represented by
the Warrants evidenced by such Warrant Certificates, any notice to
the contrary notwithstanding. After the Detachable Date and prior
to due presentment of a Warrant Certificate for registration of
transfer, the] [The] Company, the Warrant Agent and all other
persons may treat the registered holder of a Warrant Certificate as
the absolute owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary
notwithstanding.
4.3 Cancellation
of Warrant Certificates. Any Warrant Certificate surrendered
for exchange, registration of transfer or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly
canceled by the Warrant Agent and shall not be reissued and, except
as expressly permitted by this Agreement, no Warrant Certificate
shall be issued hereunder in exchange therefor or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or
otherwise dispose of canceled Warrant Certificates in a manner
satisfactory to the Company.
ARTICLE 5
CONCERNING THE WARRANT AGENT
5.1 Warrant
Agent. The Company hereby appoints as Warrant Agent of the
Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein set forth, and
hereby accepts such appointment. The Warrant Agent shall have the
powers and authority granted to and conferred upon it in the
Warrant Certificates and hereby and such further powers and
authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and
provisions with respect to such powers and authority contained in
the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
5.2 Conditions
of Warrant Agent’s Obligations. The Warrant Agent
accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the
Company agrees and to all of which the rights hereunder of the
holders from time to time of the Warrant Certificates shall be
subject:
(a) Compensation
and Indemnification. The Company agrees promptly to pay the
Warrant Agent the compensation to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred without negligence, bad faith or
willful misconduct by the Warrant Agent in connection with the
services rendered hereunder by the Warrant Agent. The Company also
agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence, bad faith or willful misconduct on the part of the
Warrant Agent, arising out of or in connection with its acting as
Warrant Agent hereunder, including the reasonable costs and
expenses of defending against any claim of such
liability.
(b) Agent
for the Company. In acting under this Warrant Agreement and
in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any
obligations or relationship of agency or trust for or with any of
the holders of Warrant Certificates or beneficial owners of
Warrants.
(c) Counsel.
The Warrant Agent may consult with counsel satisfactory to it,
which may include counsel for the Company, and the written advice
of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with the advice of
such counsel.
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(d) Documents.
The Warrant Agent shall be protected and shall incur no liability
for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented
or signed by the proper parties.
(e) Certain
Transactions. The Warrant Agent, and its officers, directors
and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any
financial or other transaction with the Company and may act on, or
as depositary, trustee or agent for, any committee or body of
holders of Warrant Debt Securities or other obligations of the
Company as freely as if it were not the Warrant Agent hereunder.
Nothing in this Warrant Agreement shall be deemed to prevent the
Warrant Agent from acting as Trustee under the
Indenture.
(f) No
Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest on
any monies at any time received by it pursuant to any of the
provisions of this Agreement or of the Warrant
Certificates.
(g) No
Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any
of the Warrant Certificates (except as to the Warrant Agent’s
countersignature thereon).
(h) No
Responsibility for Representations. The Warrant Agent shall
not be responsible for any of the recitals or representations
herein or in the Warrant Certificates (except as to the Warrant
Agent’s countersignature thereon), all of which are made
solely by the Company.
(i) No
Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Warrant
Certificates against the Warrant Agent. The Warrant Agent shall not
be under any obligation to take any action hereunder which may tend
to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured
to it. The Warrant Agent shall not be accountable or under any duty
or responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it
to the Company pursuant to this Agreement or for the application by
the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have no duty or responsibility in case of any
default by the Company in the performance of its covenants or
agreements contained herein or in the Warrant Certificates or in
the case of the receipt of any written demand from a holder of a
Warrant Certificate with respect to such default, including,
without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings
at law or otherwise or, except as provided in Section 6.2 hereof, to make any
demand upon the Company.
5.3 Resignation,
Removal and Appointment of Successors.
(a) The
Company agrees, for the benefit of the holders from time to time of
the Warrant Certificates, that there shall at all times be a
Warrant Agent hereunder until all the Warrants have been exercised
or are no longer exercisable.
(b) The
Warrant Agent may at any time resign as agent by giving written
notice to the Company of such intention on its part, specifying the
date on which its desired resignation shall become effective;
provided that such date shall not be less than three months after
the date on which such notice is given unless the Company otherwise
agrees. The Warrant Agent hereunder may be removed at any time by
the filing with it an instrument in writing signed by or on behalf
of the Company and specifying such removal and the intended date
when it shall become effective. Such resignation or removal shall
take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a bank or
trust company authorized under the laws of the jurisdiction of its
organization to exercise corporate trust powers) and the acceptance
of such appointment by such successor Warrant Agent. The obligation
of the Company under Section 5.2(a) shall continue
to the extent set forth therein notwithstanding the resignation or
removal of the Warrant Agent.
(c) In
case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or shall commence a voluntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or
under any other applicable Federal or state bankruptcy, insolvency
or similar law or shall consent to the appointment of or taking
possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or
its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to
pay its debts generally as they become due, or shall take corporate
action in furtherance of any such action, or a decree or order for
relief by a court having jurisdiction in the premises shall have
been entered in respect of the Warrant Agent in an involuntary case
under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or state bankruptcy, insolvency or
similar law, or a decree or order by a court having jurisdiction in
the premises shall have been entered for the appointment of a
receiver, custodian, liquidator, assignee, trustee, sequestrator
(or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the
Warrant Agent or of its property or affairs for the purpose of
rehabilitation, conservation, winding up or liquidation, a
successor Warrant Agent, qualified as aforesaid, shall be appointed
by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a
successor Warrant Agent and acceptance by the successor Warrant
Agent of such appointment, the Warrant Agent shall cease to be
Warrant Agent hereunder.
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(d) Any
successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such
successor Warrant Agent, without any further act, deed or
conveyance, shall become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant
Agent hereunder, and such predecessor, upon payment of its charges
and disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Warrant Agent
shall be entitled to receive, all monies, securities and other
property on deposit with or held by such predecessor, as Warrant
Agent hereunder.
(e) Any
corporation into which the Warrant Agent hereunder may be merged or
converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a
party, or any corporation to which the Warrant Agent shall sell or
otherwise transfer all or substantially all the assets and business
of the Warrant Agent, provided that it shall be qualified as
aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
ARTICLE 6
MISCELLANEOUS
6.1 Amendment.
This Agreement may be amended by the parties hereto, without the
consent of the holder of any Warrant Certificate, for the purpose
of curing any ambiguity, or of curing, correcting or supplementing
any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this
Agreement as the Company and the Warrant Agent may deem necessary
or desirable; provided that such action shall not materially
adversely affect the interests of the holders of the Warrant
Certificates.
6.2 Notices
and Demands to the Company and Warrant Agent. If the Warrant
Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions
of the Warrant Certificates, the Warrant Agent shall promptly
forward such notice or demand to the Company.
6.3 Addresses.
Any communication from the Company to the Warrant Agent with
respect to this Agreement shall be addressed to [●],
Attention: [●], and any communication from the Warrant Agent
to the Company with respect to this Agreement shall be addressed to
Dynatronics Corporation, at its principal executive offices,
Attention: [●] (or such other address as shall be specified
in writing by the Warrant Agent or by the Company).
6.4 Governing
Law. This Agreement and each Warrant Certificate issued
hereunder, and any claim, controversy or dispute arising under or
related to this Agreement or any Warrant Certificate, shall be
governed by and construed in accordance with the laws of the State
of [●].
6.5 Delivery
of Prospectus. The Company shall furnish to the Warrant
Agent sufficient copies of a prospectus meeting the requirements of
the Securities Act of 1933, as amended, relating to the Warrant
Debt Securities deliverable upon exercise of the Warrants (the
“Prospectus”),
and the Warrant Agent agrees that upon the exercise of any Warrant,
the Warrant Agent will deliver to the holder of the Warrant
Certificate evidencing such Warrant, prior to or concurrently with
the delivery of the Warrant Debt Securities issued upon such
exercise, the Prospectus. The Warrant Agent shall not, by reason of
any such delivery, assume any responsibility for the accuracy or
adequacy of such Prospectus.
6.6 Obtaining
of Governmental Approvals. The Company will from time to
time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of
governmental agencies and authorities and securities act filings
under United States Federal and state laws (including without
limitation a registration statement in respect of the Warrants and
Warrant Debt Securities under the Securities Act of 1933, as
amended), which may be or become requisite in connection with the
issuance, sale, transfer, and delivery of the Warrant Debt
Securities issued upon exercise of the Warrants, the issuance,
sale, transfer and delivery of the Warrants or upon the expiration
of the period during which the Warrants are
exercisable.
6.7 Persons
Having Rights Under Warrant Agreement. Nothing in this
Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any
right, remedy or claim under or by reason of this
Agreement.
6.8 Headings.
The descriptive headings of the several Articles and Sections of
this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the
provisions hereof.
6.9 Counterparts.
This Agreement may be executed in any number of counterparts, each
of which as so executed shall be deemed to be an original, but such
counterparts shall together constitute one and the same
instrument.
6.10
Inspection of Agreement. A
copy of this Agreement shall be available at all reasonable times
at the principal corporate trust office of the Warrant Agent for
inspection by the holder of any Warrant Certificate. The Warrant
Agent may require such holder to submit his Warrant Certificate for
inspection by it.
6
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed, all as of the day
and year first above written.
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DYNATRONICS CORPORATION
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By:
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__________________________________
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Name:
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__________________________________
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Title:
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__________________________________
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[WARRANT AGENT], as Warrant Agent
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By:
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__________________________________
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Name:
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__________________________________
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Title:
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__________________________________
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[SIGNATURE
PAGE TO DEBT SECURITIES WARRANT AGREEMENT]
7
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
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[[Form
if Warrants are attached to Other Securities and are not
immediately detachable.]
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[Prior
to [●], this Warrant Certificate cannot be transferred or
exchanged unless attached to a [Title of Other
Securities].]
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[Form
of Legend if Warrants are not immediately
exercisable.]
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[Prior
to [●], Warrants evidenced by this Warrant Certificate cannot
be exercised.]
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EXERCISABLE
ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED
HEREIN
VOID
AFTER [ ]
P.M., [ ]
TIME, ON [●].
8
DYNATRONICS CORPORATION
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
[TITLE OF WARRANT DEBT SECURITIES]
No.
Warrants [●]
This
certifies that or registered assigns is the registered owner of the
above indicated number of Warrants, each Warrant entitling such
owner [If Warrants are attached to Other Securities and are not
immediately detachable —, subject to the registered owner
qualifying as a “Holder” of this Warrant Certificate,
as hereinafter defined)] to purchase, at any time [after [ ] p.m.,
[[●] City] time, on and] on or before [ ] p.m., [[●]
City] time, on [●], $[●] principal amount of [Title of
Warrant Debt Securities] (the “Warrant Debt
Securities”), of Dynatronics Corporation (the
“Company”),
issued or to be issued under the Indenture (as hereinafter
defined), on the following basis: during the period from [●],
through and including [●], each Warrant shall entitle the
Holder thereof, subject to the provisions of this Agreement, to
purchase the principal amount of Warrant Debt Securities stated in
the Warrant Certificate at the warrant price (the
“Warrant
Price”) of [●]% of the principal amount thereof
[plus accrued amortization, if any, of the original issue discount
of the Warrant Debt Securities] [plus accrued interest, if any,
from the most recent date from which interest shall have been paid
on the Warrant Debt Securities or, if no interest shall have been
paid on the Warrant Debt Securities, from the date of their
original issuance]. [The original issue discount ($[●] for
each $1,000 principal amount of Warrant Debt Securities) will be
amortized at a [●]% annual rate, computed on a[n]
[semi-]annual basis [using a 360-day year consisting of twelve
30-day months]. The Holder may exercise the Warrants evidenced
hereby by providing certain information set forth on the back
hereof and by paying in full, in lawful money of the United States
of America, [in cash or by certified check or official bank check
in New York Clearing House funds] [by bank wire transfer in
immediately available funds], the Warrant Price for each Warrant
Debt Security with respect to which this Warrant is exercised to
the Warrant Agent (as hereinafter defined) and by surrendering this
Warrant Certificate, with the purchase form on the back hereof duly
executed, at the corporate trust office of [name of Warrant Agent],
or its successor as warrant agent (the “Warrant
Agent”), which is, on the date hereof, at the address
specified on the reverse hereof, and upon compliance with and
subject to the conditions set forth herein and in the Warrant
Agreement (as hereinafter defined).
The
term “Holder” as used herein shall mean [If Warrants
are attached to Other Securities and are not immediately detachable
—, prior to [●], (the “Detachable
Date”), the registered owner of the Company’s
[title of Other Securities] to which this Warrant Certificate was
initially attached, and after such Detachable Date,] the person in
whose name at the time this Warrant Certificate shall be registered
upon the books to be maintained by the Warrant Agent for that
purpose pursuant to Section 4 of the Warrant
Agreement.
The
Warrants evidenced by this Warrant Certificate may be exercised to
purchase Warrant Debt Securities in the principal amount of $1,000
or any integral multiple thereof in registered form. Upon any
exercise of fewer than all of the Warrants evidenced by this
Warrant Certificate, there shall be issued to the Holder hereof a
new Warrant Certificate evidencing Warrants for the aggregate
principal amount of Warrant Debt Securities remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of [●], (the “Warrant
Agreement”), between the Company and the Warrant Agent
and is subject to the terms and provisions contained in the Warrant
Agreement, to all of which terms and provisions the Holder of this
Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent.
The
Warrant Debt Securities to be issued and delivered upon the
exercise of Warrants evidenced by this Warrant Certificate will be
issued under and in accordance with an Indenture, dated as of
[●], (the “Indenture”),
between the Company and [●], as trustee (such trustee, and
any successors to such trustee, the “Trustee”)] and
will be subject to the terms and provisions contained in the
Warrant Debt Securities and in the Indenture. Copies of the
Indenture, including the form of the Warrant Debt Securities, are
on file at the corporate trust office of the Trustee.
[If
Warrants are attached to Other Securities and are not immediately
detachable — Prior to the Detachable Date, this Warrant
Certificate may be exchanged or transferred only together with the
[Title of Other Securities] (the “Other
Securities”) to which this Warrant Certificate was
initially attached, and only for the purpose of effecting or in
conjunction with, an exchange or transfer of such Other Security.
Additionally, on or prior to the Detachable Date, each transfer of
such Other Security on the register of the Other Securities shall
operate also to transfer this Warrant Certificate. After such date,
transfer of this] [If Warrants are attached to Other Securities and
are immediately detachable-Transfer of this] Warrant Certificate
may be registered when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent by the registered
owner or such owner’s assigns, in the manner and subject to
the limitations provided in the Warrant Agreement.
[If
Other Securities with Warrants which are not immediately detachable
— Except as provided in the immediately preceding paragraph,
after] [If Other Securities with Warrants which are immediately
detachable or Warrants alone — After] countersignature by the
Warrant Agent and prior to the expiration of this Warrant
Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent for Warrant
Certificates representing Warrants for the same aggregate principal
amount of Warrant Debt Securities.
This
Warrant Certificate shall not entitle the Holder hereof to any of
the rights of a holder of the Warrant Debt Securities, including,
without limitation, the right to receive payments of principal of
(and premium, if any) or interest, if any, on the Warrant Debt
Securities or to enforce any of the covenants of the
Indenture.
9
Reference
is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
This
Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant to
be executed in its name and on its behalf by the facsimile
signatures of its duly authorized officers.
Dated:
_______________________________
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DYNATRONICS CORPORATION
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By:_____________________________________
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Name:__________________________________
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Title:___________________________________
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[WARRANT AGENT], as Warrant Agent
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By:______________________________________
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Name:____________________________________
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Title:_____________________________________
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[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
To
exercise any Warrants evidenced hereby for Warrant Debt Securities
(as hereinafter defined), the Holder must pay, in lawful money of
the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire
transfer in immediately available funds], the Warrant Price in full
for Warrants exercised, to [Warrant Agent] [address of Warrant
Agent], Attn: [●], which payment must specify the name of the
Holder and the number of Warrants exercised by such Holder. In
addition, the Holder must complete the information required below
and present this Warrant Certificate in person or by mail
(certified or registered mail is recommended) to the Warrant Agent
at the appropriate address set forth above. This Warrant
Certificate, completed and duly executed, must be received by the
Warrant Agent within five business days of the
payment.
(To be
executed upon exercise of Warrants)
The
undersigned hereby irrevocably elects to exercise Warrants,
represented by this Warrant Certificate, to purchase $[●]
principal amount of the [Title of Warrant Debt Securities] (the
“Warrant
Debt Securities”) of Dynatronics Corporation and
represents that he has tendered payment for such Warrant Debt
Securities, in lawful money of the United States of America, [in
cash or by certified check or official bank check in New York
Clearing House funds] [by bank wire transfer in immediately
available funds], to the order of Dynatronics Corporation, c/o
[insert name and address of Warrant Agent], in the amount of
$[●] in accordance with the terms hereof. The undersigned
requests that said principal amount of Warrant Debt Securities be
in fully registered form in the authorized denominations,
registered in such names and delivered all as specified in
accordance with the instructions set forth below.
If the
number of Warrants exercised is less than all the Warrants
evidenced hereby, the undersigned requests that a new Warrant
Certificate evidencing the Warrants for the aggregate principal
amount of Warrant Debt Securities remaining unexercised be issued
and delivered to the undersigned unless otherwise specified in the
instructions below.
Dated
________________________________________
Name
________________________________________
Please
Print: ___________________________________
Address:
______________________________________
(Insert
Social Security or Other Identifying Number of Holder)
___________________________________
Signature
Guaranteed
____________________________________________________________________
Signature
______________________________________________________________________________
(Signature
must conform in all respects to name of holder as specified on the
face of this Warrant Certificate and must bear a signature
guarantee by a FINRA member firm).
This
Warrant may be exercised at the following addresses:
By hand
at
__________________________________________________________________________
By mail
at
___________________________________________________________________________
[Instructions
as to form and delivery of Warrant Debt Securities and, if
applicable, Warrant Certificates evidencing Warrants for the number
of Warrant Debt Securities remaining unexercised — complete
as appropriate.]
11
ASSIGNMENT
[Form
of assignment to be executed if Warrant Holder desires to transfer
Warrant]
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FOR
VALUE RECEIVED, hereby sells, assigns and transfers
unto:
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(Please
print name and address including zip code)
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Please
print Social Security or other identifying number
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the
right represented by the within Warrant to purchase $[●]
aggregate principal amount of [Title of Warrant Debt Securities] of
Dynatronics Corporation to which the within Warrant relates and
appoints attorney to transfer such right on the books of the
Warrant Agent with full power of substitution in the
premises.
Dated
_____________________________________________
Signature
__________________________________________
(Signature
must conform in all respects to name of holder as specified on the
face of the Warrant)
Signature
Guaranteed
____________________________________________________________
12
