RemoteMDx, Inc. COMMON STOCK PURCHASE WARRANT
THIS
WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT MAY NOT BE
TRANSFERRED IN THE ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS
AMENDED, OR ANY COMPARABLE STATE LAW, OR AN EXEMPTION THEREFROM UNDER SUCH
ACT. THIS WARRANT AND SUCH SHARES MAY BE TRANSFERRED ONLY IN
COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THIS
WARRANT
RemoteMDx,
Inc.
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Warrant
Holder:
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________________
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Date
of Grant:
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_____________,
20__
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Number
of Covered Shares:
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Exercise
Price Per Share:
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$
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Term:
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Five
year term
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Effective
as of ______________ RemoteMDx, Inc., a Utah corporation (the
“Company”), for value received, hereby certifies that
___________ (“Holder”), is entitled to purchase from the
Company, at such times and in such amounts as are permitted herein, ____________
duly authorized shares of the Common Stock, par value $0.0001 per share, of
the
Company (the “Warrant Stock”) at a purchase price per share of
$________ per share, all subject to the terms and conditions set forth
below.
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1.
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Exercise
of
Warrant.
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1.1. Manner
of Exercise. Holder may exercise
this
Warrant, in whole or in part, during normal business hours on any business
day
by surrendering this Warrant to the Company at the Company's principal office,
accompanied by an executed subscription agreement in substantially the form
annexed hereto as Exhibit "A",
as such form may be modified in the
discretion of the Company to comply with any applicable federal or state
securities laws, and by payment, in cash or by certified or official bank check
payable to the order of the Company, or by any combination of such methods,
in
the amount obtained by multiplying (a) the number of shares of Warrant Stock
designated in such subscription by (b) $___, whereupon Holder shall be entitled
to receive the number of duly authorized, validly issued, fully paid and
nonassessable shares of Warrant Stock as is indicated on the
subscription.
1.2. When
Exercise
Effective. Each exercise of
this
Warrant shall be deemed to have been effected immediately prior to the close
of
business on the business day on which this Warrant shall have been surrendered
to the Company as provided in Section 1.1, and at such time the person or
persons in whose name or names any certificate or certificates for shares of
Warrant Stock shall be issued upon such exercise shall be deemed for all
corporate purposes to have become the holder of record
thereof.
1.3. Delivery
of Stock
Certificates. As soon as
practicable after each exercise of this Warrant, and in any event within five
business days thereafter, the Company at its expense (including the payment
by
it of any applicable issue taxes) will cause to be issued in the name of and
delivered to Holder, a certificate or certificates for the number of duly
authorized, validly issued, fully paid and nonassessable shares of Warrant
Stock
to which Holder shall be entitled upon such exercise.
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1.4.
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Partial
Exercise.
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(a) Fractional
Shares. In the event of
any partial exercise
of this Warrant, the Company will not issue certificates for any fractional
shares of the Warrant Stock to which Holder otherwise may be entitled, and
the
Company shall not be obligated to refund an amount of cash comprising the market
value of any fractional share of Warrant Stock for which the Company will not
issue a certificate.
(b) Replacement
Warrant. In the event of any
partial
exercise of this Warrant, at the request of Holder and upon tender of this
Warrant to the Company, the Company shall issue a new Warrant containing the
same terms and conditions as this Warrant but calling on the face thereof for
the number of shares of Warrant Stock equal to the number of shares called
for
on the face of this Warrant minus the number of shares of Warrant Stock issued
upon the partial exercise of this Warrant.
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2.
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Certain
Adjustments.
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2.1. Mergers,
Consolidations or
Sale
of Assets. If at any time there
shall
be a capital reorganization (other than a combination or subdivision of Warrant
Stock otherwise provided for herein), or a merger or consolidation of the
Company with or into another corporation, or the sale of the Company's
properties and assets as, or substantially as, an entirety to any other person,
then, as a part of such reorganization, merger, consolidation or sale, lawful
provision shall be made so that the holder shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified in this
Warrant and upon payment of the purchase price, the number of shares of stock
or
other securities or property of the Company or the successor corporation
resulting from such reorganization, merger, consolidation or sale, to which
a
holder of the Common Stock deliverable upon exercise of this Warrant would
have
been entitled under the provisions of the agreement in such reorganization,
merger, consolidation or sale if this Warrant had been exercised immediately
before that reorganization, merger, consolidation or sale. In
any such case, appropriate adjustment (as determined in good faith by the
Company's Board of Directors) shall be made in the application of the provisions
of this Warrant with respect to the rights and interests of the holder after
the
reorganization, merger, consolidation or sale to the end that the provisions
of
this Warrant (including adjustment of the purchase price then in effect and
the
number of shares of Warrant Stock) shall be applicable after that event, as
near
as reasonably may be, in relation to any shares or other property deliverable
after that event upon exercise of this Warrant.
2
2.2. Splits
and
Subdivisions. If the Company at
any time
or from time to time after the date of this Warrant but before expiration
effects a split or subdivision of the outstanding shares of its then outstanding
Common Stock into a greater number of shares of Common Stock, or if the Company
effects a reverse split of the outstanding shares of its Common Stock into
a
lesser number of shares of Common Stock, (by reclassification or otherwise
than
by payment of a dividend in Common Stock), then, and in each such case, the
number of shares called for on the face of this Warrant (or the face of any
replacement Warrant issued upon partial exercise) shall be adjusted
proportionally, and the exercise price with respect to such adjusted number
of
shares also shall be adjusted proportionally.
2.3. Certificate
as to
Adjustments. In the case of each
adjustment or readjustment of the purchase price pursuant to this Section 2,
the
Company will promptly compute such adjustment or readjustment in accordance
with
the terms hereof and cause a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based to be delivered to the holder of this
Warrant. The Company will, upon the written request at any time of
the holder of this Warrant, furnish or cause to be furnished to such holder
a
certificate setting forth:
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(a)
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Such
adjustments and
readjustments;
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(b)
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The
purchase price at the time in
effect; and
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(c)
The number of shares of Warrant
Stock and the amount, if any, of other property at the time receivable upon
the
exercise of the Warrant.
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3.
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Restrictions
on
Transfer.
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3.1. Restrictive
Legends. Unless the shares
issued
upon exercise of this Warrant are registered under the Securities Act of 1933
and under applicable laws of any state, each certificate for Common Stock issued
upon the exercise of any Warrant, and each certificate issued upon the transfer
of any such Common Stock, shall be stamped or otherwise imprinted with a legend
in substantially the following form:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY
STATE. THESE SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF REGISTRATION, OR THE AVAILABILITY
OF
AN EXEMPTION FROM REGISTRATION, UNDER THE SECURITIES ACT OF 1933 AND APPROPRIATE
STATE SECURITIES LAWS. FURTHERMORE, NO OFFER, SALE, TRANSFER, PLEDGE
OR HYPOTHECATION IS TO TAKE PLACE UNLESS THE COMPANY RECEIVES AN OPINION OF
COUNSEL AT SHAREHOLDER'S EXPENSE, AND SATISFACTORY TO IT, THAT AN EXEMPTION
FROM
REGISTRATION IS AVAILABLE.
3
3.2. Notice
of Proposed
Transfer; Opinions of Counsel. Prior to the transfer
of
any shares of Common Stock issued upon the exercise of this Warrant and during
any period during which such shares of Common Stock are not registered by the
Company under an effective registration statement filed pursuant to the
Securities Act of 1933, the holder thereof shall give written notice to the
Company, which notice shall (a) state such holder's intention to transfer such
restricted shares and to comply in all other respects with the transfer
requirements of this Warrant; (b) describe the circumstances of the proposed
transfer in sufficient detail to enable counsel to render the opinions referred
to below, and (c) designate counsel for the holder giving such
notice. The holder giving such notice shall submit a copy thereof to
the counsel designated in such notice and the Company will promptly submit
a
copy thereof to its counsel. The following provisions shall then
apply:
(a) If
(a) in the opinion of counsel for the
holder designated in the notice the proposed transfer may be effected without
registration of such shares of Common Stock under the Securities Act of 1933
and
any applicable state securities laws, and (b) counsel for the Company shall
not
have rendered an opinion within 15 days after receipt by the Company of such
written notice that such registration is required, such holder shall thereupon
be entitled to transfer such shares of Common Stock in accordance with the
terms
of the notice delivered by such holder to the Company. Each Warrant
or certificate, if any, issued upon or in connection with such transfer shall
bear the appropriate restrictive legend set forth in Section 3.1, unless in
the
opinion of each such counsel such legend is no longer required to insure
compliance with the Securities Act. If for any reason counsel for the
Company (after having been furnished with the information required to be
furnished by clause (a) of this Section 3.2) shall fail to deliver an opinion
to
the Company as aforesaid, then for all purposes of this Warrant the opinion
of
counsel for the Company shall be deemed to be the same as the opinion of counsel
for such holder.
(b) If
in the opinion of either or both of
such counsel the proposed transfer may not legally be effected without
registration of such shares of Common Stock under the Securities Act of 1933
or
applicable state securities laws (such opinion or opinions to state the basis
of
the legal conclusions reached therein), the Company will promptly so notify
the
holder thereof and thereafter such holder shall not be entitled to transfer
such
shares of Common Stock until receipt of a further notice from the holder under
Section 3.2 above or until registration of such shares of Common
Stock under the Securities Act or applicable state law has become
effective.
4. Reservation
of
Shares. The Company
will at
all times reserve and keep available, solely for issuance and delivery upon
the
exercise of the Warrants, the number of shares of Warrant Stock that would
be
issuable upon the exercise of all Warrants at the time
outstanding. All such shares shall be duly authorized and, when
issued upon such exercise, shall be validly issued, fully paid and nonassessable
with no liability on the part of the holders thereof.
4
5. Replacement
of
Warrants. Upon receipt
of
evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of any Warrant and, in the case of any such loss, theft of
destruction of any Warrant, upon delivery of indemnity reasonably satisfactory
to the Company in form and amount or, in the case of any such mutilation, upon
surrender of such the Company at its expense will execute and deliver, in lieu
thereof, a new Warrant of like tenor.
6. No
Rights or Liabilities as
Stockholder. Nothing
herein shall
give or shall be construed to give the holder of this Warrant any of the rights
of a shareholder of the Company including, without limitation, the right to
vote
on matters requiring the vote of shareholders, the right to receive any dividend
declared and payable to the holders of Common Stock, and the right to a pro-rata
distribution upon the Company's dissolution.
7. Notices. All
notices and other
communications provided for herein shall be delivered or mailed by first class
mail, postage prepaid, addressed (a) if to the holders of any Warrant, at the
registered address of such holder as set forth in the register kept at the
principal office of the Company, or (b) if to the Company, at its principal
office to the attention of the Company’s Chief Financial Officer, RemoteMDx,
Inc., 000 Xxxx Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxx 00000, or at the
address of such other principal office of the Company as the Company shall
have
furnished to each holder of any Warrants in writing, provided
that the exercise of any Warrants shall
be effective only in the manner provided in Section 1.
8. Assignment. No
Warrant granted herein
or any of the rights and privileges thereby conferred shall be transferred,
assigned, pledged, or hypothecated in any way (whether by operation of law
or
otherwise), and no such Warrant, right, or privilege shall be subject to
execution, attachment, or similar process. Upon any attempt so to
transfer, assign, pledge, hypothecate, or otherwise dispose of the Warrant,
or
of any right or privilege conferred thereby, contrary to the provisions hereof,
or upon the levy of any attachment or similar process upon which Warrant, right,
or privilege, the Warrant and such rights and privileges shall immediately
become null and void.
9. Investment
Representations. In connection
with its
acquisition of this Warrant, Holder represents and warrants, and (unless the
shares underlying this Warrant are registered pursuant to the Securities Act
of
1933) in connection with any exercise of this Warrant Holder will represent
and
warrant, as follows:
9.1. Holder
is acquiring the Warrant and the
Warrant Stock (together, the “Securities”)
for his its own account; no other
person has any direct or indirect beneficial ownership in the
Securities.
9.2. Holder
is acquiring the Securities for
investment, with no present intention of distributing or selling any of the
Securities or any interest therein.
9.3. Holder
has the capacity to protect its
own interests in connection with the acquisition of the
Securities. It has such knowledge and experience in financial and
business matters generally, and about the Company in particular, that it is
capable of evaluating the merits and risks of its acquisition of the
Securities.
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9.4. Holder
acknowledges that as of the date
hereof, and as of the date of any exercise of the Warrants, it has read and
analyzed, and retained copies of this Agreement and the following
documents:
(a) The
most recent Annual Report on Form
10-KSB of the Company;
(b) Any
and all Quarterly Reports on Form
10-Q of the Company filed since the latest Form 10-KSB; and
(c) Any
and all Current Reports on Form 8-K
of the Company filed since the latest Form 10-KSB.
9.5. Holder
has been informed and understands
that there are risks associated with purchasing the Securities, including those
risks of ownership of Common Stock of the Company identified in the Company’s
Annual Reports on Form 10-KSB. Holder is capable of bearing the
economic risk of ownership of the Securities including, but not limited to,
the
possibility of the complete loss of the value of the Securities and the
restrictions on transferability of the Securities.
10. Miscellaneous. This
Warrant and any term
hereof may be changed, waived, discharged or terminated only by an instrument
in
writing signed by the party against which enforcement of such change, waiver,
discharge or termination is sought. This Warrant shall be governed by
the laws of the State of Utah. The
headings of this
Warrant are inserted for convenience only and shall not be deemed to constitute
a part hereof.
11. Expiration. The
Warrants granted herein
shall in no event be exercisable after ______________.
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IN
WITNESS WHEREOF, this Warrant has
been signed effective _______________.
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REMOTEMDX,
INC.
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By:
_____________________________
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Title:
____________________________
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EXHIBIT
A
SUBSCRIPTION
(To
be
executed by the holder of the Warrant to exercise the right to purchase Common
Stock evidenced by the Warrant)
To: Chief
Financial Officer
RemoteMDx,
Inc.
0000
Xxxx
0000 Xxxxx
Xxxx
Xxxx
Xxxx, Xxxx 00000
The
undersigned hereby irrevocably subscribes for ___________________ shares of
the
Common Stock, par value $______ per share, of RemoteMdx, Inc., a Utah
corporation, pursuant to and in accordance with the terms and conditions of
a
Warrant dated effective _________________ (the "Warrant"), and
tenders with the Warrant and this Subscription Agreement payment of
$_____________________ as payment for the shares, and requests that a
certificate for such shares be issued in the name of the undersigned and be
delivered to the undersigned at the address stated below.
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NAME:
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__________________________________________________
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ADDRESS:
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__________________________________________________
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__________________________________________________
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SOCIAL
SECURITY NUMBER:___________________________________
______________________________________________________________
Signed
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DATED:
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__________________________________________________
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