EXHIBIT 10.53
AMENDMENT TO WARRANT AGREEMENT
THIS AMENDMENT TO WARRANT AGREEMENT ("Amendment") is made as of
December 6, 2001, between SOMANETICS CORPORATION, a Michigan Corporation (the
"Company"), and XXXXX XXXXXX & CO., INC. (the "Representative").
RECITALS
A. The Company and the Representative entered into a Warrant Agreement,
dated as of April 9, 2001 (the "Agreement"), pursuant to which the Company
issued a Warrant (the "Warrant") to purchase 25,000 of its Common Shares, par
value $0.01 per share ("Common Shares"), at $2.10 a share to the Representative.
B. The Company and the Representative desire to amend the Agreement, to
restate the provisions that protect against certain dilutive events.
THEREFORE, the Company and the Representative agree as follows:
1. INTRODUCTORY PARAGRAPH. The last two sentences of the introductory
paragraph of the Agreement are amended and restated to read as follows: "The
Aggregate Warrant Price is not subject to adjustment, except as otherwise
provided in subsection III(j). The Per Share Warrant Price and the number of
Warrant Shares are subject to adjustment as hereinafter provided."
2. AMENDMENT TO DILUTIVE EVENTS PROVISION. Section III of the Agreement
is amended and restated to read as follows:
"III. Adjustments of Exercise Price and Number of Shares. The Per
Share Warrant Price and the number and kind of securities
issuable upon exercise of this Warrant shall be subject to
adjustment from time to time upon the happening of certain
events, as follows:"
"A. If the Company (i) declares a dividend on its Common
Stock in Common Stock or makes a distribution to all
holders of its Common Stock in Common Stock without
charge to such holders, (ii) subdivides its
outstanding Common Stock, (iii) combines its
outstanding Common Stock into a smaller number of
shares of Common Stock or (iv) issues by
reclassification of its Common Stock other securities
of the Company (including any such reclassification
in connection with a consolidation or merger in which
the Company is the surviving entity, but excluding
those referred to in paragraph (b) below), the number
and kind of shares of Common Stock purchasable upon
exercise of this Warrant immediately prior thereto
shall be adjusted so that the Holder of this Warrant
shall be entitled to receive the kind and number of
shares of Common Stock or other securities of the
Company which such Holder would have owned or have
been entitled to receive
after the happening of any of the events described above, had
such Warrant been exercised immediately prior to the happening
of such event or any record date with respect thereto. Such
adjustment shall be made whenever any of the events listed
above shall occur. An adjustment made pursuant to this
paragraph (a) shall become effective immediately after the
effective date of such event retroactive to immediately after
the record date, if any, for such event."
"B. If the Company issues rights, options or warrants to all
holders of its Common Stock, without any charge to such
holders, entitling them to subscribe for or to purchase Common
Stock at a price per share lower than the then current Market
Price per share of Common Stock at the record date mentioned
below (as defined in paragraph (d) below), the Holders of
unexercised Warrants as of such record date, upon exercise of
such Warrants, shall receive the same rights, options or
warrants which such Holder would have received or have been
entitled to receive after such issuance, had such Warrants
been exercised immediately prior to such issuance or any
record date with respect thereto. Such adjustment shall be
made whenever such rights, options or warrants are issued as
described above, and shall become effective retroactively to
immediately after the record date for the determination of
shareholders entitled to receive such rights, options or
warrants."
"C. If the Company distributes to all holders of its Common Stock,
without any charge to such holders, shares of its stock other
than Common Stock or evidences of its indebtedness or assets
(excluding cash dividends and dividends or distributions
referred to in paragraph (a) or (b) above) or rights, options
or warrants or convertible or exchangeable securities
containing the right to subscribe for or purchase Common Stock
(excluding those referred to in paragraph (a) or (b) above),
then in each case the Holders of unexercised Warrants as of
the record date mentioned below, upon exercise of such
warrants, shall receive the same distribution which such
Holder would have received or have been entitled to receive
after such distribution, had such Warrants been exercised
immediately prior to such distribution or any record date with
respect thereto. Such adjustment shall be made whenever any
such distribution is made as described above, and shall become
effective on the date of distribution retroactive to
immediately after the record date for the determination of
shareholders entitled to receive such distribution."
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"D. For the purpose of any computation under paragraph (b) of this
Section III, the current "Market Price" per share of Common
Stock at any date shall be the average of the daily closing
prices for fifteen (15) consecutive trading days commencing
twenty (20) trading days before the date of such computation.
The closing price for each day shall be the last reported sale
price regular way or, in case no such reported sale takes
place on such day, the average of the closing bid and asked
prices regular way for such day, in either case on the
principal national securities exchange on which the shares are
listed or admitted to trading, or if they are not listed or
admitted to trading on any national securities exchange, but
are traded in the over-the-counter market, the closing sale
price of the Common Stock or, in case no sale is publicly
reported, the average of the representative closing bid and
asked quotations for the Common Stock on The Nasdaq National
or SmallCap Market or any comparable system, or if the Common
Stock is not listed on The Nasdaq Stock Market or a comparable
system, the closing sale price of the Common Stock or, in case
no sale is publicly reported, the average of the closing bid
and asked prices as furnished by two members of the NASD
selected from time to time by the Company for that purpose."
"E. No adjustment in the number of Warrant Shares purchasable
hereunder shall be required unless such adjustment would
require an increase or decrease of at least one percent (1%)
in the number of Warrant Shares purchasable upon the exercise
of this Warrant; provided, however, that any adjustments which
by reason of this paragraph (e) are not required to be made
shall be carried forward and taken into account in any
subsequent adjustment but not later than three (3) years after
the happening of the specified event or events. All
calculations shall be made to the nearest one thousandth of a
share."
"F. Whenever the number of Warrant Shares purchasable upon
exercise of this Warrant is adjusted, as herein provided, the
Per Share Warrant Price shall be adjusted by multiplying the
Per Share Warrant Price in effect immediately prior to such
adjustment by a fraction, of which the numerator shall be the
number of Warrant Shares purchasable upon the exercise of this
Warrant immediately prior to such adjustment, and of which the
denominator shall be the number of shares so purchasable
immediately thereafter."
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"G. For the purpose of this Section III, the term "Common Stock"
shall mean (i) the class of stock designated as the common
shares of the Company at the date of this Agreement or (ii)
any other class of stock resulting from successive changes or
reclassifications of such shares consisting solely of changes
in par value, or from no par value to par value, or from par
value to no par value. If at any time, as a result of an
adjustment made pursuant to paragraph (a) above, the Holders
become entitled to purchase any shares of capital stock of the
Company other than Common Stock, thereafter the number of such
other shares so purchasable upon exercise of this Warrant and
the Per Share Warrant Price of such shares shall be subject to
adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with
respect to the Warrant Shares contained in paragraphs (a)
through (f), inclusive, and paragraphs (h) through (m),
inclusive, of this Section III, and the provisions of Sections
I, II, IV, and V hereof, with respect to the Warrant Shares,
shall apply on like terms to any such other shares."
"H. Upon the expiration of any rights, options, warrants or
conversion rights or exchange privileges that caused
adjustments under this Section III, such adjustments with
respect to any Warrants that have not been exercised shall,
upon such expiration, be readjusted and shall thereafter be
such as they would have been had such rights, options,
warrants or conversion rights or exchange privileges never
existed."
"I. The Company may, at its option at any time during the term of
the Warrants, reduce the then current Per Share Warrant Price
to any amount deemed appropriate by the Board of Directors of
the Company."
"J. Whenever the number of Warrant Shares issuable upon the
exercise of this Warrant or the Per Share Warrant Price of
such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail by first class-mail, postage
prepaid, to each Holder notice of such adjustment or
adjustments. No failure to mail such notice nor any defect
therein or in the mailing thereof shall affect the validity
thereof except as to the Holder to whom the Company failed to
mail such notice or whose notice was defective. A certificate
of an officer of the Company, on behalf of the Company, that
such notice has been mailed shall be prima facie evidence of
the facts stated therein. After any such adjustment, the
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Company shall prepare a certificate setting forth the number
of Warrant Shares issuable upon the exercise of this Warrant
and the Per Share Warrant Price of such Warrant after such
adjustment, setting forth a brief statement of the facts
requiring such adjustment. Such certificate shall, except as
provided below, be conclusive as to the correctness of such
adjustment and each Holder shall have the right to inspect
such certificate during reasonable business hours. Any
determination as to whether an adjustment is required pursuant
to this Section III, or as to the amount of any such
adjustment, shall be initially made in good faith by the Board
of Directors of the Company. If the Holders of a majority of
the then outstanding Warrants shall, in the exercise of their
discretion, object to such determination, the amount of such
adjustment shall be made by an independent accounting or
investment banking firm selected by the Holders of a majority
of the then outstanding Warrants and reasonably acceptable to
the Company."
"K. Except as provided in this Section III, no adjustment in
respect of any dividends shall be made during the term of a
Warrant or upon the exercise of a Warrant."
"L. If the Company consolidates with or merges into another
corporation or if the Company sells or conveys all or
substantially all its property to another corporation, or if
the Company enters into a statutory share exchange with
another Company pursuant to which its Common Stock is
exchanged for, or changed into, securities or property of
another Company, the Company or such successor or purchasing
corporation (or an affiliate of such successor or purchasing
corporation), as the case may be, agrees that each Holder
shall have the right thereafter upon payment of the Aggregate
Warrant Price in effect immediately prior to such action to
purchase upon exercise of this Warrant the kind and amount of
shares and other securities and property (including cash)
which such Holder would have owned or been entitled to receive
after the happening of the consolidation, merger, sale,
conveyance or share exchange had such Warrant been exercised
immediately prior to such action. The provisions of this
paragraph (1) shall apply to successive consolidations,
mergers, sales, conveyances or share exchanges."
"M. Notwithstanding any adjustment in the Per Share Warrant Price
or the number or kind of shares purchasable upon the exercise
inches wide, 8 inches high, and 8 inches deep and weighs
of the
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Warrants, certificates for Warrants issued prior or
subsequent to such adjustment may continue to express the same
price and number and kind of shares as are initially
issuable."
3. AGREEMENT, AS AMENDED, CONTINUES. Except as modified by this
Amendment, the Agreement shall continue in full force according to its terms and
is hereby ratified.
IN WITNESS WHEREOF, the Company and the Representative have executed
this Amendment as of the date set forth in the introductory paragraph of this
Amendment.
SOMANETICS CORPORATION
By: /s/
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Its:
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XXXXX XXXXXX & CO., INC.
By: /s/
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Its:
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