EXHIBIT 4.1
-----------
Void after 5:00 p.m. New York, New York Time,
on January 31, 2000
This Warrant to Purchase 169,377 shares of Common Stock
THIS WARRANT AND THE SHARES OF COMMON STOCK UNDERLYING THIS WARRANT
(collectively, the "Securities") HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (the "Securities Act") AND MAY
NOT BE SOLD OR TRANSFERRED, UNLESS THE SECURITIES ARE REGISTERED UNDER THE
SECURITIES ACT OR AN EXEMPTION FROM SUCH REGISTRATION UNDER THE SECURITIES
ACT IS APPLICABLE.
---------------------------------
FORM OF
WARRANT TO PURCHASE COMMON STOCK
OF
ADVANCED MAMMOGRAPHY SYSTEMS, INC.
a Delaware corporation
This is to certify that, FOR VALUE RECEIVED,
or assigns ("the Holder"), is
------------------------------
entitled to purchase, subject to the provisions of this Warrant, from
Advanced Mammography Systems Inc., a Delaware corporation (the "Company"),
One Hundred Sixty Nine Thousand Three Hundred and Seventy Seven (169,377)
fully paid, validly issued and non-assessable shares of common stock, $0.01
par value, of the Company ("Common Stock"), at any time from the date
hereof through and including January 31, 2000, subject to earlier
termination in accordance with Section (j) hereof ("Exercise Period"). The
Warrant exercise price shall be $1.93 for each share of Common Stock of the
Company. The number of shares of Common Stock to be received upon the
exercise of this Warrant and the price to be paid for each share of Common
Stock may be adjusted from time to time as hereinafter set forth. The
shares of Common Stock deliverable upon such exercise, and as adjusted from
time to time, are hereinafter sometimes referred to as "Warrant Shares" and
the exercise price of a share of Common Stock in effect at any time, and as
adjusted from time to time, is hereinafter sometimes referred to as the
"Exercise Price."
(a) Exercise of Warrant. This Warrant may be
-------------------
exercised in whole or in part at any time during the Exercise Period.
During the Exercise Period the Holder shall have the right to exercise this
Warrant into the kind and amount of shares of Common Stock (and other
securities and property (including cash) receivable by a holder of the
number of shares of Common Stock into which this Warrant might have been
exercisable immediately prior thereto pursuant to Section (f) hereof).
This Warrant, subject to the provisions hereof, may be exercised by
presentation and surrender hereof to the Company at its principal office,
or at the office of its stock transfer agent, if any, with the Purchase
Form annexed hereto duly executed and accompanied by payment (by wire
transfer) of the Exercise Price for the number of Warrant Shares specified
in such form. As soon as practicable after each such exercise of the
Warrant, but not later than five (5) business days from the date of such
exercise, the Company shall issue and deliver to the Holder (or the person
designated in the Purchase Form) a certificate or certificates for the
Warrant Shares issuable upon such exercise, registered in the name of the
Holder or its designee. The Common Stock shall be issued without any
restrictive legends (except that the certificate may have attached to it on
a separate sheet which shall be stapled to the certificate a legend which
reads as follows: "The Securities covered by the attached certificate have
been issued under Regulation S and may not be offered or sold within the
United States or to or for the account or benefit of U.S. persons until
March 19, 1997 and after this date shall be freely transferable on the
books and records of the Company and it's Transfer Agent"). If this Warrant
should be exercised in part only, the Company shall, upon surrender of this
Warrant for cancellation, execute and deliver a new Warrant evidencing the
rights of the Holder thereof to purchase the balance of the Warrant Shares
purchasable thereunder.
(b) Reservation of Shares. The Company shall at all
---------------------
times reserve for issuance and/or delivery upon exercise of this Warrant
such number of shares of its Common Stock as shall be required for issuance
and delivery upon exercise of the Warrant.
(c) Fractional Shares. No fractional shares or script
-----------------
representing fractional shares shall be issued upon the exercise of this
Warrant. With respect to any fraction of a share called for upon any
exercise hereof, the Company shall pay to the Holder an amount in cash
equal to such fraction multiplied by the current market value of a share
(the "Trading Price"), determined as follows:
(1) If the Common Stock is listed on a National Securities
Exchange or admitted to unlisted trading privileges on such Exchange or
listed for trading on the NASDAQ System, the current market value shall be
the last reported sale price of the Common Stock on such Exchange or System
on the last business day prior to the date of exercise of this Warrant or
if no such sale is made on such day, the average closing bid and asked
prices for such day on such Exchange or System; or
(2) If the Common Stock is not so listed or admitted to
unlisted trading privileges, the current market value shall be the mean of
the last reported bid and asked prices reported by the National Quotation
Bureau, Inc. on the last business day prior to the date of the exercise of
this Warrant; or
(3) If the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and asked prices are not so reported,
the current market value shall be an amount not less than book value
thereof as at the end of the most recent fiscal year of the Company ending
prior to the date of the exercise of the Warrant, determined in such
reasonable manner as may be prescribed by the Board of Directors of the
Company.
(d) 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 thereof to purchase in the aggregate the
same number of shares of Common Stock purchasable hereunder. Upon
surrender of this Warrant to the Company at its principal office 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. The term "Warrant" as used herein
includes any Warrants into which this Warrant may be divided or exchanged.
this Warrant, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will execute and deliver a new Warrant
of like tenor and date. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not this Warrant so lost, stolen, destroyed, or mutilated shall
be at any time enforceable by anyone.
(e) Rights of the Holder. The Holder shall not, by
--------------------
virtue hereof, be entitled to any rights of a stockholder in the Company,
either at law or equity except with respect to certificates representing
share of Common Stock issued upon exercise of this Warrant. The rights of
the Holder are limited to those expressed in this Warrant and are not
enforceable against the Company except to the extent set forth herein.
Prior to due presentment for registration or transfer of this Warrant, the
Company may deem and treat the Holder as the absolute owner of this Warrant
for purposes of any exercise hereof and for all other purposes of the
Company shall not be affected by any notice to the contrary.
(f) Anti-Dilution Provisions. The Exercise Price in
------------------------
effect at any time and the number and kind of securities purchasable upon
the exercise of the Warrants shall be subject to adjustment from time to
time upon the happening of certain events as follows:
(1) In case the Company shall (i) declare a stock dividend
or make a distribution on its outstanding shares of Common Stock in shares
of Common Stock, (ii) subdivide or reclassify its outstanding shares of
Common Stock into a greater number of shares, or (iii) combine or
reclassify its outstanding share of Common Stock into a smaller number of
shares, the Exercise Price in effect at the time of the record date for
such dividend or distribution or of the effective date of such subdivision,
combination or reclassification shall be adjusted so that it shall equal
the price determined by multiplying the Exercise Price by a fraction, the
denominator of which shall be the number of shares of Common Stock
outstanding after giving effect to such action, and the numerator of which
shall be the number of shares of Common Stock outstanding immediately prior
to such action. Such adjustment shall be made successively whenever any
event listed above shall occur.
(2) Whenever the Exercise Price payable upon exercise of
each Warrant is adjusted pursuant to Subsection (1) above, the number of
shares purchasable upon exercise of this Warrant shall simultaneously be
adjusted by multiplying the number of shares initially issuable upon
exercise of this Warrant by the Exercise Price in effect on the date hereof
and dividing the product so obtained by the Exercise Price, as adjusted.
(3) Whenever the Exercise Price is adjusted, as herein
provided, the Company shall promptly cause a notice setting forth the
adjusted Exercise Price and adjusted number of shares issuable upon
exercise of each Warrant to be mailed to the Holders, at their last
addresses appearing in the Warrant register, and shall cause a certified
copy thereof to be mailed to its transfer agent, if any. The Company may
retain a firm of independent certified public accountants selected by the
Board of Directors (who may be the regular accountants employed by the
Company) to make any computation required by this Section (f), and a
certificate signed by such firm shall be conclusive evidence of the
correctness of such adjustment.
(4) In the event that at any time, as a result of an
adjustment made pursuant to Subsection (1) above, the Holder of this
Warrant thereafter shall become entitled to receive any shares of the
Company, other than Common Stock, thereafter the number of such other
shares so receivable upon exercise of this Warrant 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 Common Stock contained
in Subsection (1) above.
(5) Irrespective of any adjustments in the Exercise Price
or the number or kind of shares purchasable upon exercise of this Warrant,
Warrants theretofore or thereafter issued may continue to express the same
price and number and kind of shares as are stated in the similar Warrants
initially issuable pursuant to this Agreement.
(g) Officer's Certificate. Whenever the Exercise
---------------------
Price shall be adjusted as required by the provisions of Section (f)
hereof, the Company shall forthwith file in the custody of its Secretary or
an Assistant Secretary at its principal office and with its stock transfer
agent, if any, an officer's certificate showing the adjusted Exercise Price
determined as herein provided, setting forth in reasonable detail the facts
requiring such adjustment, including a statement of the number of
additional shares of Common Stock, if any, and such other facts as shall be
necessary to show the reason for and the manner computing such adjustment.
Each such officer's certificate shall be made available at all reasonable
times for inspection by the Holder or any holder of a Warrant executed and
delivered pursuant to Section (h) hereof and the Company shall forthwith
after each such adjustment, mail a copy by certified mail of such
certificate to the Holder or any such holder.
(h) Notices to Warrant Holders. So long as this
--------------------------
Warrant shall be outstanding, (i) if the Company shall pay any dividend or
make any distribution upon the Common Stock or (ii) if the Company shall
offer to all the holders of Common Stock for subscription or purchase by
them of any share of any class or any other rights or (iii) if the capital
reorganization of the Company, reclassification of the capital stock of the
Company, consolidation or merger of the Company with or into another
corporation, sale of all or substantially all of the property and assets of
the Company to another corporation or voluntary or involuntary dissolution,
liquidation or winding up of the Company shall be effected, then in any
such case, the Company shall cause to be mailed to the Holder, at least ten
days prior to the date specified in (x) or (y) below, as the case may be, a
notice containing a brief description of the proposed action and stating
the date on which (x) a record is to be taken for the purpose of such
dividend, distribution or rights, or (y) such reclassification,
reorganization, consolidation, merger, sale, dissolution, liquidation or
winding up is to take place and date, if any is to be fixed, as of which
the holders of the Common Stock or other securities shall receive cash or
other property deliverable upon such reclassification, reorganization,
consolidation, merger, conveyance, dissolution, liquidation or winding up.
Notwithstanding the above, the failure to give such notice shall not affect
the validity of any transaction for which the notice was required to be
given.
(i) Reclassification, Reorganization or Merger. In
------------------------------------------
case of any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the Company, or in case of any
consolidation or merger of the Company with or into another corporation,
other than a merger with a subsidiary, in which merger the Company is the
continuing corporation and which does not result in any reclassification,
capital reorganization or other change of outstanding shares of Common
Stock of the class issuable upon exercise of this Warrant, or in case of
any sale to another corporation of the property of the Company as an
entirety, the Company shall, as a condition precedent to such transaction,
cause effective provisions to be made so that the Holder shall have the
right thereafter by exercising this Warrant at any time prior to the
expiration of the Warrant, to purchase the kind and amount of shares of
stock and other securities and property receivable upon such
reclassification, capital reorganization and other change, consolidation,
merger or sale by a holder of the number of shares of Common Stock which
might have been purchased upon exercise of this Warrant immediately prior
to such reclassification, change consolidation, merger or sale; provided
that, the resulting entity is a publicly traded corporation, otherwise this
Warrant shall terminate upon the closing of such transaction to the extent
then unexercised. Any such provision shall include provision for
adjustments which shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Warrant. The foregoing provisions of
this Section (i) shall similarly apply to successive reclassification,
capital reorganizations and changes of shares of Common Stock and to
successive consolidations, mergers or sales. In the event that in
connection with any such capital reorganization any shares of Common Stock
shall be issued in exchange, conversion, substitution or payment, in whole
or in part, for a security of the Company other than Common Stock, any such
issue shall be treated as an issue of Common Stock covered by the
provisions of Subsection (1) of Section (f) hereof.
(j) Callable Warrant. This Warrant may be called by
----------------
the Company, at its discretion, if the average Trading Price (as defined in
Section (c) hereof) for any period of twenty (20) consecutive trading days
equals or exceeds 180% of the then Exercise Price. The call price shall be
$0.05 per share of Common Stock exercisable under this Warrant. In case
the Company decides to call this Warrant, it shall give written notice to
the Holder at least ten (10) days prior to the proposed call date (the
"Call Date") describing the call. Any right to exercise this Warrant shall
terminate at 5:00 P.M., New York time, on the Call Date.
(k) Restrictive Period.
------------------
(1) The Holder of this Warrant agrees that during the
Restrictive Period (as defined in Regulation S under the Securities Act as
may be changed from time to time), upon any offer, sale or transfer of this
Warrant or the Warrant Shares (the "Securities") (or any interest therein),
that the Holder, or any successor, or any Professional (as defined in
Section (k) (3) hereof) (except for sales of any Securities registered
under the Securities Act or otherwise exempt from such registration), (A)
will not sell to a U.S. Person or on account of or for the benefit of a
U.S. Person or any one believed to be a U.S. Person, (B) will not engage in
any efforts to sell the Securities in the United States, (C) will, at the
time the buy order or transfer is originated, believe, after reasonable
investigation, that the buyer or transferee is outside the United States,
and (D) will send to a "Professional" acting as agent or principal, a
confirmation or other notice stating that the Professional is subject to
the same restrictions on transfer to U.S. Persons or for the account of
U.S. Persons during the Restrictive Period as provided for herein. At the
request of the Company, the Holder will provide a certificate as to the
foregoing compliance by the Holder with Regulation S. The Company will not
honor or register, and will not be obligated to honor or register, any
transfer or exercise in violation of any of the provisions herein.
(2) For purposes hereof, a "U.S. Person" shall have the
meaning set forth in Rule 902(o) of Regulation S under the Securities Act,
which includes, without limitation, generally any natural person, resident
of the United States, any partnership or corporation organized or
incorporated under the laws of the United States; any estate of which any
executor or administrator is a U.S. Person; any trust of which any trustee
is a U.S. Person; any agency or branch of a foreign entity located in the
United States; any nondiscretionary account or similar account, (other than
estate or trust) held by a dealer or other fiduciary for the benefit or
account of the U.S. Person; any discretionary account or similar account
(other than an estate or trust) held by a dealer or other fiduciary
organized, incorporated or, (if an individual) resident of the United
States; and any partnership or corporation if organized or incorporated
under the laws of any foreign jurisdiction and formed by a U.S. Person
principally for the purpose of investing in securities not registered under
the Securities Act, unless it is organized and incorporated and owned by
"accredited investors," as defined under Rule 501(a) under the Securities
Act, who are not natural persons, estates or trust.
(3) A "Professional" is a "distributor" as defined in Rule
902(c) of Regulation S under the Securities Act (generally any underwriter,
or other person, who participates, pursuant to a contractual arrangement,
in the distribution of securities); a dealer as defined in Section 2(12) of
the Securities Act (encompassing those who engage in the business of
trading or dealing in securities as agent, broker or principal); or a
person receiving a selling concession, fee or other enumeration in respect
of the securities sold.
(l) Miscellaneous.
-------------
(1) Binding Effect. The terms and conditions of
--------------
this Warrant shall be binding upon and shall inure to the benefit of the
Company and the Holder.
(2) Successors and Assigns. All the covenants
----------------------
and provisions of this Warrant by or for the benefit of the Company and the
Holder shall bind and inure to the benefit of their respective successors
and permitted assigns hereunder.
(3) Entire Agreement. This Warrant is intended
----------------
by the parties as a final expression of their agreement and intended to be
a complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein with respect to the registration
under the Securities Act by the Company with respect to this Warrant or the
Warrant Shares. This Warrant is being issued pursuant to an Offshore
Securities Subscription Agreement, dated as of February 6, 1997. This
Warrant supersedes all prior agreements and understandings between the
parties with respect to the subject matter herein.
(4) Amendments and Waivers. This Warrant may not
----------------------
be amended, modified or terminated except by a writing signed by all
parties.
(5) Governing Law. This Warrant shall be governed
-------------
by and construed in accordance with the laws of the State of Delaware.
(6) Notices. All written notices, demands or
-------
requests of any kind, which either party may be required or may desire to
serve on the other in connection with this Warrant, must be served by
registered or certified mail, with postage prepaid and return receipt
requested, to the following address:
If to the Holder, to:
If to the Company, to:
Advanced Mammography Systems, Inc.
Two Executive Drive
Fort Xxx, New Jersey 07024
Attn: Xxxx Xxxxxx, Chairman
or to such other address as either party hereto may duly give to the other.
In lieu of mailing, either party may cause delivery of such notices,
demands and requests to be made by personal service, provided that
acknowledgement of receipt is made. Notice shall be deemed given upon
personal delivery or three(3) days after depositing in the U.S. Mail,
postage prepaid.
(7) Headings. The Article and Section headings
--------
herein are for convenience only and are not part of this Warrant and shall
not effect the interpretation thereof.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed and attested by the Undersigned, each being duly authorized, as of
the date below.
Advanced Mammography Systems, Inc., a
Delaware Corporation
By:
--------------------------
Name: Xxxx Xxxxxx
Title: Chairman
Dated: February 6, 1997
PURCHASE FORM
-------------
Dated: , 199
----------- --
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing
------------------
shares of Common Stock and hereby makes payment of
------------
in payment of the actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
--------------------------------------
Name
--------------------------------------------------------------
(Please typewrite or print in block letters)
Address
--------------------------------------------------------------
Signature
--------------------------------------------------------------
Tax Identification Number
-------------------------------------
---------------------
ASSIGNMENT FORM
---------------
FOR VALUE RECEIVED,
-------------------------------------
hereby sells, assigns and transfers unto
Name
--------------------------------------------------------------
(Please typewrite or print in block letters)
Address
--------------------------------------------------------------
the right to purchase Common Stock 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.
Date , 199
---------------------------- --
Signature
------------------------------
