Exhibit 4.1
OMNICORDER TECHNOLOGIES, INC.
NO._____ _____ SHARES
WARRANT TO PURCHASE COMMON STOCK
VOID AFTER 5:30 P.M., EASTERN STANDARD
TIME, ON THE EXPIRATION DATE
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND
MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED WITHOUT
COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE
FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM.
FOR VALUE RECEIVED, OMNICORDER TECHNOLOGIES, INC., a Colorado
corporation initially operating under the corporate name
_____________________________ (the "Company"), hereby agrees to sell upon the
terms and on the conditions hereinafter set forth, but no later than 5:30 p.m.,
Eastern Standard Time, on the Expiration Date (as hereinafter defined) to
______________________, or registered assigns (the "Holder"), under the terms as
hereinafter set forth, _____________________ (__________) fully paid and
non-assessable shares of the Company's Common Stock, par value $.001 per share
(the "Warrant Stock"), at a purchase price per share of One and 50/100 Dollars
($1.50) (the "Warrant Price"), pursuant to this warrant (this "Warrant"). The
number of shares of Warrant Stock to be so issued and the Warrant Price are
subject to adjustment in certain events as hereinafter set forth. The term
"Common Stock" shall mean, when used herein, unless the context otherwise
requires, the stock and other securities and property at the time receivable
upon the exercise of this Warrant.
This Warrant is one of a series of the Company's lead investor
warrants to purchase common stock (collectively, the "Warrants"), issued
pursuant to that certain Confidential Private Placement Memorandum, dated
October 2003, as supplemented (the "Memorandum"). Capitalized terms used and not
otherwise defined herein shall have the respective meanings attributed thereto
in Section 10.
1. Exercise of Warrant.
(a) The Holder may exercise this Warrant according to
its terms by surrendering this Warrant to the Company at the address set forth
in Section 11, the subscription form attached hereto having then been duly
executed by the Holder, accompanied by cash, certified check or bank draft in
payment of the purchase price, in lawful money of the United States of America,
for the number of shares of the Warrant Stock specified in the subscription
form, or as otherwise provided in this Warrant prior to 5:30 p.m., Eastern
Standard Time, on December 19, 2006 (the "Expiration Date").
(b) This Warrant may be exercised in whole or in part
so long as any exercise in part hereof would not involve the issuance of
fractional shares of Warrant Stock. If
exercised in part, the Company shall deliver to the Holder a new Warrant,
identical in form, in the name of the Holder, evidencing the right to purchase
the number of shares of Warrant Stock as to which this Warrant has not been
exercised, which new Warrant shall be signed by the Chairman and Chief Executive
Officer or the President and the Secretary or the Assistant Secretary of the
Company. The term Warrant as used herein shall include any subsequent Warrant
issued as provided herein.
(c) No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. The Company
shall pay cash in lieu of fractions with respect to the Warrants based upon the
fair market value of such fractional shares of Common Stock (which shall be the
closing price of such shares on the exchange or market on which the Common Stock
is then traded) at the time of exercise of this Warrant.
(d) In the event of any exercise of the rights
represented by this Warrant, a certificate or certificates for the Warrant Stock
so purchased, registered in the name of the Holder, shall be delivered to the
Holder within a reasonable time after such rights shall have been so exercised.
The person or entity in whose name any certificate for the Warrant Stock is
issued upon exercise of the rights represented by this Warrant shall for all
purposes be deemed to have become the holder of record of such shares
immediately prior to the close of business on the date on which the Warrant was
surrendered and payment of the Warrant Price and any applicable taxes was made,
irrespective of the date of delivery of such certificate, except that, if the
date of such surrender and payment is a date when the stock transfer books of
the Company are closed, such person shall be deemed to have become the holder of
such shares at the opening of business on the next succeeding date on which the
stock transfer books are open. Except as provided in Section 4 hereof, the
Company shall pay any and all documentary stamp or similar issue or transfer
taxes payable in respect of the issue or delivery of shares of Common Stock on
exercise of this Warrant.
2. Disposition of Warrant Stock and Warrant.
(a) The Holder hereby acknowledges that this Warrant
and any Warrant Stock purchased pursuant hereto are not being registered (i)
under the Act on the ground that the issuance of this Warrant is exempt from
registration under Section 4(2) of the Act as not involving any public offering
or (ii) under any applicable state securities law because the issuance of this
Warrant does not involve any public offering; and that the Company's reliance on
the Section 4(2) exemption of the Act and under applicable state securities laws
is predicated in part on the representations hereby made to the Company by the
Holder that it is acquiring this Warrant and will acquire the Warrant Stock for
investment for its own account, with no present intention of dividing its
participation with others or reselling or otherwise distributing the same,
subject, nevertheless, to any requirement of law that the disposition of its
property shall at all times be within its control.
The Holder hereby agrees that, until such time as the Warrant
Stock is covered by an effective registration statement or may be sold pursuant
to Rule 144(k) under the Act, it will not sell or transfer all or any part of
this Warrant and/or Warrant Stock unless and until it shall first have given
notice to the Company describing such sale or transfer and furnished to the
Company either (i) an opinion, reasonably satisfactory to counsel for the
Company, of counsel
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(skilled in securities matters, selected by the Holder and reasonably
satisfactory to the Company) to the effect that the proposed sale or transfer
may be made without registration under the Act and without registration or
qualification under any state law or (ii) an interpretative letter from the
Securities and Exchange Commission to the effect that no enforcement action will
be recommended if the proposed sale or transfer is made without registration
under the Act.
(b) If, at the time of issuance of the shares
issuable upon exercise of this Warrant, no registration statement is in effect
with respect to such shares under applicable provisions of the Act, the Company
may at its election require that the Holder provide the Company with written
reconfirmation of the Holder's investment intent and that any stock certificate
delivered to the Holder of a surrendered Warrant shall bear legends reading
substantially as follows:
"TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN THE WARRANT
PURSUANT TO WHICH THESE SHARES WERE PURCHASED FROM THE
COMPANY. COPIES OF THOSE RESTRICTIONS ARE ON FILE AT THE
PRINCIPAL OFFICES OF THE COMPANY, AND NO TRANSFER OF SUCH
SHARES OR OF THIS CERTIFICATE, OR OF ANY SHARES OR OTHER
SECURITIES (OR CERTIFICATES THEREFOR) ISSUED IN EXCHANGE FOR
OR IN RESPECT OF SUCH SHARES, SHALL BE EFFECTIVE UNLESS AND
UNTIL THE TERMS AND CONDITIONS THEREIN SET FORTH SHALL HAVE
BEEN COMPLIED WITH."
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND MAY NOT BE
SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933 OR AN OPINION OF COUNSEL SATISFACTORY
TO THE ISSUER OF THIS CERTIFICATE THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT."
In addition, so long as the foregoing legend may remain on any stock certificate
delivered to the Holder, the Company may maintain appropriate "stop transfer"
orders with respect to such certificates and the shares represented thereby on
its books and records and with those to whom it may delegate registrar and
transfer functions.
3. Reservation of Shares. The Company hereby agrees that at
all times there shall be reserved for issuance upon the exercise of this Warrant
such number of shares of its Common Stock as shall be required for issuance upon
exercise of this Warrant. The Company further agrees that all shares which may
be issued upon the exercise of the rights represented by this Warrant will be
duly authorized and will, upon issuance and against payment of the exercise
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price, be validly issued, fully paid and non-assessable, free from all taxes,
liens, charges and preemptive rights with respect to the issuance thereof, other
than taxes, if any, in respect of any transfer occurring contemporaneously with
such issuance and other than transfer restrictions imposed by federal and state
securities laws.
4. Exchange, Transfer, Assignment or Loss of Warrant. This
Warrant is exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof to the Company or at the office of its stock
transfer agent, if any, for other Warrants of different denominations, entitling
the Holder or Holders thereof to purchase in the aggregate the same number of
shares of Common Stock purchasable hereunder. Upon surrender of this Warrant to
the Company or at the office of its stock transfer agent, if any, with the
Assignment Form annexed hereto duly executed and funds sufficient to pay any
transfer tax, the Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee named in such instrument of assignment and
this Warrant shall promptly be canceled. This Warrant may be divided or combined
with other Warrants that carry the same rights upon presentation hereof at the
office of the Company or at the office of its stock transfer agent, if any,
together with a written notice specifying the names and denominations in which
new Warrants are to be issued and signed by the Holder hereof.
5. Capital Adjustments. This Warrant is subject to the
following further provisions:
(a) Recapitalization, Reclassification and
Succession. If any recapitalization of the Company or reclassification of its
Common Stock or any merger or consolidation of the Company into or with a
corporation or other business entity, or the sale or transfer of all or
substantially all of the Company's assets or of any successor corporation's
assets to any other corporation or business entity (any such corporation or
other business entity being included within the meaning of the term "successor
corporation") shall be effected, at any time while this Warrant remains
outstanding and unexpired, then, as a condition of such recapitalization,
reclassification, merger, consolidation, sale or transfer, lawful and adequate
provision shall be made whereby the Holder of this Warrant thereafter shall have
the right to receive upon the exercise hereof as provided in Section 1 and in
lieu of the shares of Common Stock immediately theretofore issuable upon the
exercise of this Warrant, such shares of capital stock, securities or other
property as may be issued or 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 issuable upon the exercise of this Warrant had
such recapitalization, reclassification, merger, consolidation, sale or transfer
not taken place, and in each such case, the terms of this Warrant shall be
applicable to the shares of stock or other securities or property receivable
upon the exercise of this Warrant after such consummation.
(b) Subdivision or Combination of Shares. If the
Company at any time while this Warrant remains outstanding and unexpired shall
subdivide or combine its Common Stock, the number of shares of Warrant Stock
purchasable upon exercise of this Warrant and the Warrant Price shall be
proportionately adjusted.
(c) Stock Dividends and Distributions. If the Company
at any time while this Warrant is outstanding and unexpired shall issue or pay
the holders of its Common
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Stock, or take a record of the holders of its Common Stock for the purpose of
entitling them to receive, a dividend payable in, or other distribution of,
Common Stock, then (i) the Warrant Price shall be adjusted in accordance with
Section 5(e) and (ii) the number of shares of Warrant Stock purchasable upon
exercise of this Warrant shall be adjusted to the number of shares of Common
Stock that Holder would have owned immediately following such action had this
Warrant been exercised immediately prior thereto.
(d) Stock and Rights Offering to Shareholders. If at
any time after the date of issuance of this Warrant, the Company shall issue or
sell, or fix a record date for the purposes of entitling holders of its Common
Stock to receive, (i) Common Stock or (ii) rights, options or warrants entitling
the holders thereof to subscribe for or purchase Common Stock (or securities
convertible or exchangeable into or exercisable for Common Stock), in any such
case, at a price per share (or having a conversion, exchange or exercise price
per share) that is less than the closing price per share of the Company's Common
Stock on the principal national securities exchange on which the Common Stock is
listed or admitted to trading or, if not listed or traded on any such exchange,
on the National Market or SmallCap Market of the National Association of
Securities Dealers Automated Quotations System ("Nasdaq"), or if not listed or
traded on any such exchange or system, the average of the bid and asked price
per share on Nasdaq or, if such quotations are not available, the fair market
value per share of the Company's Common Stock as reasonably determined by the
Board of Directors of the Company (the "Closing Price") on the date of such
issuance or sale or on such record date then, immediately after the date of such
issuance or sale or on such record date, (x) the Warrant Price shall be adjusted
in accordance with Section 5(e), and (y) the number of shares of Warrant Stock
purchasable upon exercise of this Warrant shall be adjusted to that number
determined by multiplying the number of shares of Warrant Stock purchasable upon
exercise of this Warrant immediately before the date of such issuance or sale or
such record date by a fraction, the denominator of which will be the number of
shares of Common Stock outstanding on such date plus the number of shares of
Common Stock that the aggregate offering price of the total number of shares so
offered for subscription or purchase (or the aggregate initial conversion price,
exchange price or exercise price of the convertible securities or exchangeable
securities or rights, options or warrants, as the case may be, so offered) would
purchase at such Closing Price, and the numerator of which will be the number of
shares of Common Stock outstanding on such date plus the number of additional
shares of Common Stock offered for subscription or purchase (or into which the
convertible or exchangeable securities or rights, options or warrants so offered
are initially convertible or exchangeable or exercisable, as the case may be).
If the Company shall at any time after the date of
issuance of this Warrant distribute to all holders of its Common Stock any
shares of capital stock of the Company (other than Common Stock) or evidences of
its indebtedness or assets (excluding cash dividends or distributions paid from
retained earnings or current year's or prior year's earnings of the Company) or
rights or warrants to subscribe for or purchase any of its securities (excluding
those referred to in the immediately preceding paragraph) (any of the foregoing
being hereinafter in this paragraph called the "Securities"), then in each such
case, the Company shall reserve shares or other units of such securities for
distribution to the Holder upon exercise of this Warrant so that, in addition to
the shares of the Common Stock to which such Holder is entitled, such Holder
will receive upon such exercise the amount and kind of such Securities which
such
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Xxxxxx would have received if the Holder had, immediately prior to the
record date for the distribution of the Securities, exercised this Warrant.
(e) Warrant Price Adjustment. Whenever the number of
shares of Warrant Stock purchasable upon exercise of this Warrant is adjusted,
as herein provided, the Warrant Price payable upon the exercise of this Warrant
shall be adjusted to that price determined by multiplying the Warrant Price
immediately prior to such adjustment by a fraction (i) the numerator of which
shall be the number of shares of Warrant Stock purchasable upon exercise of this
Warrant immediately prior to such adjustment, and (ii) the denominator of which
shall be the number of shares of Warrant Stock purchasable upon exercise of this
Warrant immediately thereafter.
(f) Certain Shares Excluded. The number of shares of
Common Stock outstanding at any given time for purposes of the adjustments set
forth in this Section 5 shall exclude any shares then directly or indirectly
held in the treasury of the Company.
(g) Deferral and Cumulation of De Minimis
Adjustments. The Company shall not be required to make any adjustment pursuant
to this Section 5 if the amount of such adjustment would be less than one
percent (1%) of the Warrant Price in effect immediately before the event that
would otherwise have given rise to such adjustment. In such case, however, any
adjustment that would otherwise have been required to be made shall be made at
the time of and together with the next subsequent adjustment which, together
with any adjustment or adjustments so carried forward, shall amount to not less
than one percent (1%) of the Warrant Price in effect immediately before the
event giving rise to such next subsequent adjustment.
(h) Duration of Adjustment. Following each
computation or readjustment as provided in this Section 5, the new adjusted
Warrant Price and number of shares of Warrant Stock purchasable upon exercise of
this Warrant shall remain in effect until a further computation or readjustment
thereof is required.
6. Notice to Holders.
(a) Notice of Record Date. In case:
(i) the Company shall take a record of the
holders of its Common Stock (or other stock or securities at
the time receivable upon the exercise of this Warrant) for the
purpose of entitling them to receive any dividend (other than
a cash dividend payable out of earned surplus of the Company)
or other distribution, or any right to subscribe for or
purchase any shares of stock of any class or any other
securities, or to receive any other right;
(ii) of any capital reorganization of the
Company, any reclassification of the capital stock of the
Company, any consolidation with or merger of the Company into
another corporation, or any conveyance of all or substantially
all of the assets of the Company to another corporation; or
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(iii) of any voluntary dissolution,
liquidation or winding-up of the Company;
then, and in each such case, the Company will mail or cause to be mailed to the
Holder hereof at the time outstanding a notice specifying, as the case may be,
(i) the date on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up is to take place, and the time, if any, is to be fixed, as of which
the holders of record of Common Stock (or such stock or securities at the time
receivable upon the exercise of this Warrant) shall be entitled to exchange
their shares of Common Stock (or such other stock or securities) for securities
or other property deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, dissolution or winding-up. Such notice shall
be mailed at least thirty (30) days prior to the record date therein specified,
or if no record date shall have been specified therein, at least thirty (30)
days prior to such specified date.
(b) Certificate of Adjustment. Whenever any
adjustment shall be made pursuant to Section 5 hereof, the Company shall
promptly make a certificate signed by its Chairman and Chief Executive Officer,
its President or a Vice President and by its Treasurer or Assistant Treasurer or
its Secretary or Assistant Secretary, setting forth in reasonable detail the
event requiring the adjustment, the amount of the adjustment, the method by
which such adjustment was calculated and the Warrant Price and number of shares
of Warrant Stock purchasable upon exercise of this Warrant after giving effect
to such adjustment, and shall promptly cause copies of such certificates to be
mailed (by first class mail, postage prepaid) to the Holder of this Warrant.
7. Loss, Theft, Destruction or Mutilation. Upon receipt by the
Company of evidence satisfactory to it, in the exercise of its reasonable
discretion, of the ownership and the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to the Company and, in the case of mutilation, upon
surrender and cancellation thereof, the Company will execute and deliver in lieu
thereof, without expense to the Holder, a new Warrant of like tenor dated the
date hereof.
8. Warrant Holder Not a Stockholder. The Holder of this
Warrant, as such, shall not be entitled by reason of this Warrant to any rights
whatsoever as a stockholder of the Company.
9. Registration Rights. The shares of Common Stock issuable
upon exercise of this Warrant will be accorded the registration rights under the
Act set forth in that certain Subscription Agreement between the Company and the
Holders.
10. Definitions. As used herein, unless the context otherwise
requires, the following terms have the respective meanings:
(a) "Affiliate": with respect to any Person, the
following: (i) any other Person that at such time directly or indirectly through
one or more intermediaries controls, or is controlled by or is under common
control with such first Person or (ii) any Person
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beneficially owning or holding, directly or indirectly, 10% or more of any class
of voting or equity interests of the Company or any Subsidiary or any
corporation of which the Company and its Subsidiaries beneficially own or hold,
in the aggregate, directly or indirectly, 10% of more of any class of voting or
equity interests. As used in such definition, "controls," "controlled by" and
"under common control," as used with respect to an Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
(b) "Person": any natural person, corporation,
division of a corporation, partnership, limited liability company, trust, joint
venture, association, company, estate, unincorporated organization or government
or any agency or political subdivision thereof.
(c) "Subsidiaries": with respect to any Person, any
corporation, association or other business entity (whether now existing or
hereafter organized) of which at least a majority of the securities or other
ownership interests having ordinary voting power for the election of directors
is, at the time as of which any determination is being made, owned or controlled
by such Person or one or more subsidiaries of such Person.
11. Notices. Any notice required or contemplated by this
Warrant shall be deemed to have been duly given if transmitted by registered or
certified mail, return receipt requested, to the Company at 00-0 Xxxxxxxxxx
Xxxxx, Xxxx Xxxxxxxx, Xxx Xxxx 00000-0000, Attention: President, or to the
Holder at the name and address set forth in the Warrant Register maintained by
the Company.
12. Choice of Law. THIS WARRANT IS ISSUED UNDER AND SHALL FOR
ALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW RULES.
IN WITNESS WHEREOF, the Company has duly caused this Warrant
to be signed on its behalf, in its corporate name and by its duly authorized
officers, as of this 19th day of December 2003.
OMNICORDER TECHNOLOGIES, INC.
(Operating initially under the name Promos, Inc.)
By:
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Name: Xxxx X. Xxxxx
Title: President and Chief Executive Officer
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SUBSCRIPTION FORM
The undersigned, the Holder of the attached Warrant, hereby
irrevocably elects to exercise purchase rights represented by such Warrant for,
and to purchase thereunder, the following number of shares of Common Stock of
OMNICORDER TECHNOLOGIES, INC.
Number of Shares Purchase Price Per Share
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The undersigned herewith makes payment of $_________ therefor,
and requests that certificates for such shares (and any warrants or other
property issuable upon such exercise) be issued in the name of and delivered to
__________________________ whose address is _______________________________
(social security or taxpayer identification number ___________) and, if such
shares shall not include all of the shares issuable under such warrant, that a
new warrant of like tenor and date for the balance of the shares issuable
thereunder be delivered to the undersigned.
HOLDER:
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Signature
-----------------------------
Signature, if jointly held
-----------------------------
Date
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ASSIGNMENT FORM
FOR VALUE RECEIVED, _______________________________________________________
hereby sells, assigns and transfers unto
Name ________________________________________________________________________
(Please typewrite or print in block letters)
Social Security or Taxpayer Identification Number
the right to purchase Common Stock of OMNICORDER TECHNOLOGIES, INC., a Colorado
corporation, represented by this Warrant to the extent of shares as to which
such right is exercisable and does hereby irrevocably constitute and appoint
_________________, Attorney, to transfer the same on the books of the Company
with full power of substitution in the premises.
DATED:__________________
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Signature
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Signature, if jointly held
Witness:
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