EXHIBIT 10.38
COMPANY WARRANT REPRICING AGREEMENT
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THIS COMPANY WARRANT REPRICING AGREEMENT ("Agreement") is made as of
the 17th day of August, 2007 by and among INTRAOP MEDICAL CORPORATION, a Nevada
corporation (the "Company"), and the other persons set forth on Exhibit A
attached hereto (each an "Holder" and collectively the "Holders").
Recitals
A. The Holders hold warrants to purchase an aggregate of
1,578,410 shares of the Company's Common Stock, as set forth on Exhibit A
attached hereto.
B. The Company and the Holders have agreed that, in connection
with the transactions contemplated by the Purchase Agreement, the Holders will
agree to certain amendments to the warrants held by them and will waive certain
provisions in such warrants, in consideration of which the exercise price of the
warrants listed on Exhibit A shall be reduced to $0.08 per share, effective as
of the First Closing (as defined below).
C. This Agreement shall be binding upon the Company and the
Holders only upon delivery of the signatures pages hereto by the Company and the
Holders.
Agreement
In consideration of the mutual promises made herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. In addition to those terms defined above and elsewhere
in this Agreement, for the purposes of this Agreement, the following terms shall
have the meanings set forth below:
"First Closing" shall have the meaning set forth in the
Purchase Agreement.
"Company Warrants" means the warrants to purchase the
Company's Common Stock listed on Exhibit A attached hereto.
"Purchase Agreement" means the Common Stock and Warrant
Purchase Agreement dated as of August 17, 2007 by and among the Company and the
other persons set forth on the schedule of purchasers attached thereto.
"Second Closing" shall have the meaning set forth in the
Purchase Agreement.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
2. Repricing the Company Warrants and other Amendments.
2.1 Exercise Price of the Company Warrants. Upon the terms and
subject to the conditions set forth in this Agreement, at the First Closing, the
Company Warrants, without any further action by the Company or the Holders,
shall be amended such that the Warrant Price or the Exercise Price (as defined
in the applicable Company Warrant) of the Company Warrants shall be eight cents
($0.08) per share. The Company shall record such change in the exercise price of
the Company Warrants in the ownership ledger for such warrants.
2.2 Certain Adjustments. Upon the terms and subject to the
conditions set forth in this Agreement, effective as of the First Closing, the
Company Warrants dated January 10, 2007, without any further action by the
Company or the Holders thereof, shall be amended to delete Sections 3.b)
(Subsequent Equity Sales), 3.c) (Subsequent Rights Offerings) and 3.d) (Pro Rata
Distributions) in their entirety. For the avoidance of doubt, the Holders also
hereby waive in all respects the application of such Sections to the
transactions contemplated by the Purchase Agreement.
2.3 Automatic Termination. The Company, E.U. Capital Venture,
Inc., M. Xxxx Xxxxxxx, Xxxxxxx Family Trust dated August 30, 2005, Xxxxxx
Xxxxxxx Revocable Trust, Admedico Aps. and Xxxxx Xxxxxx hereby waive the notice
and automatic termination provisions set forth in Section 8 of the Company
Warrants held by such holders only with respect to the transactions contemplated
by the Purchase Agreement. This waiver shall not be deemed to be a continuing
waiver in the future or a waiver of any other provision, condition or
requirement of the Company Warrants.
2.4 Effect of Amendments. Except as set forth in Sections 2.1,
2.2 and 2.3 above, all other terms and conditions of the Company Warrants shall
remain unchanged. The Company Warrants, as amended, shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed.
2.5 Agreement Not to Exercise. Notwithstanding any provision
to the contrary contained in any Company Warrant, each Holder hereby (i) agrees
that it will not exercise any Company Warrant prior to the Second Closing and
(ii) acknowledges that the Company will not recognize any such attempted
exercise of a Company Warrant prior to the Second Closing or accept the payment
of the Warrant Price or Exercise Price, as applicable, in connection therewith.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Holders that:
3.1 Organization and Good Standing. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada and has all requisite corporate power and authority to
carry on its business as now conducted and to own its properties.
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3.2 Authorization. The Company has full corporate power and
authority and has taken all requisite action on the part of the Company, its
officers, directors and stockholders necessary for (i) the authorization,
execution and delivery of this Agreement and (ii) the authorization of the
performance of all obligations of the Company hereunder. This Agreement
constitutes the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights generally.
4. Representations and Warranties of the Holders. Each of the Holders
hereby, severally and not jointly, represents and warrants to the Company that:
4.1 Organization and Existence. Such Holder is an individual,
trust, validly existing corporation, limited partnership or limited liability
company and has, to the extent applicable, all requisite trust, corporate,
partnership or limited liability company power and authority to invest in the
Securities pursuant to this Agreement.
4.2 Company Warrant. Such Holder is the beneficial owner and
has valid and legal title to the Company Warrant listed next to such Holder's
name on Exhibit A attached hereto.
4.3 Authorization. The execution, delivery and performance by
such Holder of this Agreement have been duly authorized, and this Agreement
constitutes the valid and legally binding obligation of such Holder, enforceable
against such Holder in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability, relating to or affecting creditors' rights generally.
5. Miscellaneous.
5.1 Successors and Assigns. This Agreement may not be assigned
by a party hereto without the prior written consent of the Company or the
Holders holding a majority of the Company Warrants, as applicable. The
provisions of this Agreement shall inure to the benefit of and be binding upon
the respective permitted successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
5.2 Counterparts; Faxes. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement may
also be executed via facsimile or PDF, which shall be deemed an original.
5.3 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
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5.4 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given as hereinafter described (i) if given by personal delivery,
then such notice shall be deemed given upon such delivery, (ii) if given by
facsimile or electronic mail, then such notice shall be deemed given upon
receipt of confirmation of complete transmittal, (iii) if given by mail, then
such notice shall be deemed given upon the earlier of (A) receipt of such notice
by the recipient or (B) three (3) days after such notice is deposited in first
class mail, postage prepaid, and (iv) if given by an internationally recognized
overnight air courier, then such notice shall be deemed given one (1) Business
Day after delivery to such carrier. All notices shall be addressed to the party
to be notified at the address as follows, or at such other address as such party
may designate by ten (10) days' advance written notice to the other party:
If to the Company:
Intraop Medical Corporation
000 Xxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx, Xxxxxxxx, Xxxxxx, Xxxxxx & Xxxx, LLC
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Facsimile: (000) 000-0000
If to the Holders, to the addresses on file with the
Company.
5.5 Expenses. The parties hereto shall pay their own costs and
expenses in connection herewith.
5.6 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only with the written consent of the Company and the Holders of a majority of
the Company Warrants.
5.7 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be interpreted as if it
were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereby
waive any provision of law which renders any provision hereof prohibited or
unenforceable in any respect.
5.8 Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereof with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter hereof and
thereof.
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5.9 Further Assurances. The parties shall execute and deliver
all such further instruments and documents and take all such other actions as
may reasonably be required to carry out the transactions contemplated hereby and
to evidence the fulfillment of the agreements herein contained.
5.10 Governing Law; Consent to Jurisdiction; Waiver of Jury
Trial. This Agreement shall be governed by, and construed in accordance with,
the internal laws of the State of Delaware without regard to the choice of law
principles thereof. Each of the parties hereto irrevocably submits to the
exclusive jurisdiction of the courts of the State of California located in Santa
Xxxxx County and the United States District Court for the Northern District of
California for the purpose of any suit, action, proceeding or judgment relating
to or arising out of this Agreement and the transactions contemplated hereby.
Service of process in connection with any such suit, action or proceeding may be
served on each party hereto anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement. Each of the parties
hereto irrevocably consents to the jurisdiction of any such court in any such
suit, action or proceeding and to the laying of venue in such court. Each party
hereto irrevocably waives any objection to the laying of venue of any such suit,
action or proceeding brought in such courts and irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO
REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND
REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
(Signature page follows)
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IN WITNESS WHEREOF, the parties have executed this Company
Warrant Repricing Agreement as of the date first above written.
The Company: INTRAOP MEDICAL CORPORATION
By: /s/ Xxxxxx X. Goer
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Name: Xxxxxx X. Goer
Title: President and CEO
IN WITNESS WHEREOF, the parties have executed this Company Warrant
Repricing Agreement as of the date first above written.
The Holders: Name of Holder: M. Xxxx Xxxxxxx
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Signature of Authorized Signer: /s/ M. Xxxx Xxxxxxx
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Print Name of Authorized Signer:
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Print Title of Authorized Signer
(if applicable):
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Name of Holder: Mestman Family Trust Dated
August 30, 2005
Signature of Authorized Signer: /s/ Xxxxx X. Xxxxxxx
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Print Name of Authorized Signer: Xxxxx X. Xxxxxxx
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Print Title of Authorized Signer
(if applicable): Trustee, Mestman Family Trust
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Name of Holder: Xxxxxx Xxxxxxx Revocable Trust
Signature of Authorized Signer: /s/ Xxxxxx Xxxxxxx
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Print Name of Authorized Signer: Xxxxxx Xxxxxxx
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Print Title of Authorized Signer
(if applicable): Trustee
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Name of Holder: Admedico Aps.
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Signature of Authorized Signer: /s/ Hans Chr. Koaergaard-Xxxxxx
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Print Name of Authorized Signer: Hans Chr. Koaergaard-Xxxxxx
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Print Title of Authorized Signer
(if applicable): CEO
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Name of Holder: E.U. Capital Venture, Inc.
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Signature of Authorized Signer: /s/ Xxxx Xxxxxxx
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Print Name of Authorized Signer: Xxxx Xxxxxxx
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Print Title of Authorized Signer
(if applicable): Managing Director
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Name of Holder: Xxxxxx X. Goer & Henci L. Goer
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1989 Family Trust
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Signature of Authorized Signer: /s/ Xxxxxx X. Goer
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Print Name of Authorized Signer: Xxxxxx X. Goer
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Print Title of Authorized Signer
(if applicable): Trustee
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Name of Holder: Xxxxxx X. Goer
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Signature of Authorized Signer: /s/ Xxxxxx X. Goer
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Print Name of Authorized Signer:
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Print Title of Authorized Signer
(if applicable):
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Name of Holder: Tomovation GMBH
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Signature of Authorized Signer: /s/ Xxxxxxx Xxxxxx
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Print Name of Authorized Signer: Xxxxxxx Xxxxxx
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Print Title of Authorized Signer
(if applicable): CEO
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EXHIBIT A
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Holders of Company Warrants
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Name Date of Warrant Number of Warrant
---- --------------- -----------------
Shares
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April and May 2007
Promissory Notes
M. Xxxx Xxxxxxx 04/10/07 25,000
Mestman Family Trust dated August 30, 2005 04/16/07 62,500
Mestman Family Trust dated August 30, 2005 04/23/07 62,500
M. Xxxx Xxxxxxx 05/02/07 12,500
Xxxxxx Xxxxxxx Revocable Trust 05/11/07 12,500
Admedico Aps. 05/08/07 25,000
Xxxxx Xxxxxx 05/04/07 50,000
January 2007 Debentures
E.U. Capital Venture, Inc. 01/10/07 214,285
Xxxxxx X. Goer and Henci L. Goer
1989 Family Trust 01/10/07 42,857
Xxxxxx X. Goer 01/10/07 153,825
Tomovation Gmbh 01/10/07 21,428
Mestman Family Trust dated
August 30, 2005 01/10/07 26,785
E.U. Capital Venture, Inc. 08/16/05 576,923
E.U. Capital Venture, Inc. 06/01/06 192,307
E.U. Capital Venture, Inc. 04/10/07 100,000
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TOTAL: 1,578,410
