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
________________________________
PURCHASE WARRANT CERTIFICATE
Issued to:
XXXXX X. XXXXXXX
Exercisable to Purchase
100,000 Shares of Common Stock
of
ATHENA MEDICAL CORPORATION
Void after June 30, 2000
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 June 30, 2000, up to 100,000 Shares at the Exercise Price.
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 $2.88 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 XXXXX 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:
- the first 33,333 Shares are exercisable immediately;
- the next 33,333 Shares are exercisable on or after June 30,
1996;
- the last 33,334 Shares are exercisable on or after June 30,
1997; but
- if the Consulting Agreement of June 1, 1995 between the
Company and the Warrantholder is terminated for any reason
or no reason prior to June 30, 1997, the right to purchase
those Shares which are not exercisable as of the date of
such termination shall automatically terminate. Termination
of the Consulting Agreement will not terminate the right to
purchase Shares which are then exercisable.
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 June 30, 2000 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
Page 2 - Warrant Certificate
lawful money of the United States, of the Exercise Price payable with
respect to the Securities being purchased.
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. TERMINATION UPON MERGER OR SALE. If the Company proposes to merge with or
into another company (other than for the sole purpose of reincorporating
the Company in another jurisdiction), to otherwise reorganize, consolidate,
reclassify or make any other change in the Company's capital structure, to
partially or completely liquidate, or to sell all or substantially all the
Company's assets, the Company will give at least 30 days' prior written
notice thereof to the Warrantholder. To the extent the Warrantholder does
not fully exercise this Warrant within such 30 day period, then this
Warrant shall automatically terminate upon consummation of such merger,
change, liquidation or sale, and the Warrantholder will have no further
rights under this Warrant.
4. 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, 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.
(b) If holders of the Company's outstanding shares of Common Stock
receive, or (on or after the record date fixed for determination of
eligible shareholders) become entitled to receive, without payment or
other consideration therefor, other or additional stock of the Company
by way of dividend, then the Warrantholder will, upon exercise of this
Warrant, be entitled to receive, without payment of additional
consideration therefor, the amount of such other or additional Common
Stock of the Company which the Warrantholder would hold on the date of
such exercise had the Warrantholder been the record holder of such
exercised Common Stock on the date of receipt or entitlement to
receipt of the stock dividend, giving effect to any adjustments prior
to exercise as required by Section 4(a).
Page 3 - Warrant Certificate
(c) When any adjustment is required to be made in the number of shares of
Common Stock 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, 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 4. 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.
5. 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.
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, and it may not be sold,
assigned, encumbered or otherwise transferred (except by will or the laws
of intestacy) without the prior written consent of the Company and
compliance with applicable securities laws in accordance with Section 8.
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 Securities Act of 1933, as amended (the "1933 Act"),
and other federal and state securities laws and regulations, and the
requirements of any stock exchange upon which the Securities may then
be listed.
(b) This Warrant and the Securities have not been registered under the
1933 Act or any state securities law and accordingly will not be
transferrable except as permitted under an exemption contained in the
1933 Act and applicable state law, or upon satisfaction of the
registration and prospectus delivery requirements of the 1933 Act.
Therefore, the Securities (and this Warrant, unless earlier
terminated) must be held indefinitely unless subsequently registered
under the 1933 Act and applicable state law or an exemption from such
registration is available. The Warrantholder understands that the
certificate(s) evidencing the Securities will be imprinted with a
legend which will prohibit the transfer
Page 4 - Warrant Certificate
thereof unless they are registered or unless the Company receives an
opinion of counsel reasonably satisfactory to the Company that such
registration is not required.
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. The captions heading the Sections
of this Warrant are inserted for convenience of reference only, and are not
to be used to define, limit, construe or describe the scope or intent of
any term, provision or section of this Warrant. Any notices required or
permitted under this Warrant must be in writing and will be deemed to have
been given when personally delivered to a party or 48 hours after deposit
in the United States Mail, first class postage prepaid by both first class
and certified mail, return receipt requested, or 48 hours after delivery to
a recognized national overnight carrier, with overnight shipping charges
paid, and addressed to such party 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: Xxxxx X. Xxxxxxx
000 XX Xxxxxxxx Xxx.
Vancouver, WA 98661
or such other address as a party may specify by a notice in writing, given
in the same manner.
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 as of December 29, 1995.
ATHENA MEDICAL CORPORATION
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx, President
Page 5 - Warrant Certificate
