Exhibit 4.1
THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR WITH ANY
STATE SECURITIES COMMISSION, AND MAY NOT BE TRANSFERRED OR DISPOSED OF BY THE
HOLDER IN THE ABSENCE OF A REGISTRATION STATEMENT WHICH IS EFFECTIVE UNDER THE
SECURITIES ACT AND APPLICABLE STATE LAWS AND RULES, OR, UNLESS, IMMEDIATELY
PRIOR TO THE TIME SET FOR TRANSFER, SUCH TRANSFER MAY BE EFFECTED WITHOUT
VIOLATION OF THE SECURITIES ACT AND OTHER APPLICABLE STATE LAWS AND RULES.
DOBI MEDICAL INTERNATIONAL, INC.
WARRANT
Warrant No. 2005-___ Dated: March 30, 2005
DOBI Medical International, Inc., a Delaware corporation (the
"COMPANY"), hereby certifies that, for value received, ____________________, or
its registered assigns (including permitted transferees, the "HOLDER"), is
entitled to purchase from the Company up to a total of _____ shares (as adjusted
from time to time as provided in Section 9) of Common Stock (as defined below)
(each such share, a "WARRANT SHARE" and all such shares, the "WARRANT SHARES")
at an exercise price equal to $.75 per share for the first _____ [the amount to
reflect 25% warrant coverage for the investment] shares of Common Stock
purchased hereunder and $1.25 for the next _____ [the amuont to reflect 25%
warrant coverage for the investment] shares of Common Stock purchased hereunder
(as adjusted from time to time as provided in Section 9, the "EXERCISE PRICE"),
at any time and from time to time from and after March 30, 2005 (the "INITIAL
EXERCISE DATE") through and including March 30, 2010 (the "EXPIRATION DATE"),
and subject to the following terms and conditions. This Warrant is one of a
series of similar warrants (the "WARRANTS") issued pursuant to that certain
Securities Purchase Agreement, dated as of the Original Issue Date, by and among
the Company, the Holder and certain other investors (the "PURCHASE AGREEMENT"),
providing for the issuance and sale of Common Stock and Warrants by the Company
to the Holder and such other investors.
1. Definitions. The capitalized terms used herein and not otherwise
defined shall have the meanings set forth below:
"AFFILIATE" of any specified Person means any other person or
entity directly or indirectly controlling, controlled by or under
direct or indirect common control with such specified Person. For
purposes of this definition, "CONTROL" means the power to direct
the management and policies of such Person or firm, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise.
"COMMON STOCK" means the common stock of the Company, par value
$.0001 per share, as constituted on the Original Issue Date.
"COMPANY OFFER" means any tender offer (including exchange offer),
as amended from time to time, made by the Company or any of its
subsidiaries for the purchase (including the acquisition pursuant
to an exchange offer) of all or any portion of the outstanding
shares of Common Stock, except as permitted pursuant to Rule
10b-18 promulgated under the Securities Exchange Act of 1934, as
amended.
"ELIGIBLE MARKET" means any of the New York Stock Exchange, the
American Stock Exchange or Nasdaq.
"MARKET PRICE" shall mean (i) if the principal trading market for
such securities is an exchange, the average of the last reported
sale prices per share for the last five previous Trading Days in
which a sale was reported, as officially reported on any
consolidated tape, (ii) if clause (i) is not applicable, the
average of the closing bid price per share for the last five
previous Trading Days as set forth by Nasdaq or (iii) if clauses
(i) and (ii) are not applicable, the average of the closing bid
price per share for the last five previous Trading Days as set
forth in the National Quotation Bureau sheet listing for such
securities. Notwithstanding the foregoing, if there is no reported
sales price or closing bid price, as the case may be, on any of
the ten Trading Days preceding the event requiring a determination
of Market Price hereunder, then the Market Price shall be
determined in good faith by resolution of the Board of Directors
of the Company, based on the best information available to it.
"NASDAQ" means the Nasdaq SmallCap Market or Nasdaq National
Market.
"ORIGINAL ISSUE DATE" means March 30, 2005.
"OTHER SECURITIES" refers to any capital stock (other than Common
Stock) and other securities of the Company or any other Person
which the Holder of this Warrant at any time shall be entitled to
receive, or shall have received, upon the exercise of this
Warrant, in lieu of or in addition to Common Stock, or which at
any time shall be issuable or shall have been issued in exchange
for or in replacement of Common Stock or Other Securities pursuant
to Section 9 hereof or otherwise.
"PERSON" means any court or other federal, state, local or other
governmental authority or other individual or corporation,
partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity
of any kind.
"REGISTRATION STATEMENT" shall have the meaning set forth in the
Purchase Agreement.
"TRADING DAY" means (a) any day on which the Common Stock is
listed or quoted and traded on any Eligible Market or (b) if the
Common Stock is not then quoted and traded on any Eligible Market,
then a day on which trading occurs on the Nasdaq National Market
(or any successor thereto).
"TRANSFER AGENT" shall mean The Nevada Agency and Trust Company
Limited or such other Person as the Company may appoint from time
to time.
"WARRANT SHARES" shall initially mean shares of Common Stock and
in addition may include Other Securities and Distributed Property
(as defined in Section 9(e)) issued or issuable from time to time
upon exercise of this Warrant.
2. Registration of Warrant. The Company shall register this Warrant,
upon records to be maintained by the Company for that purpose (the "WARRANT
REGISTER"), in the name of the record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the contrary.
3. Registration of Transfers. The Company shall register the
transfer of any portion of this Warrant in the Warrant Register, upon surrender
of this Warrant, with the Form of Assignment attached hereto as Appendix A duly
completed and signed, to the Company at its address specified herein. Upon any
such registration and transfer, a new warrant in substantially the form of a
Warrant (any such new warrant, a "NEW WARRANT"), evidencing the portion of this
Warrant so transferred shall be issued to the transferee and a New Warrant
evidencing the remaining portion of this Warrant not so transferred, if any,
shall be issued to the transferring Holder. The acceptance of the New Warrant by
the transferee thereof shall be deemed the acceptance by such transferee of all
of the rights and obligations of a holder of a Warrant.
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4. Exercise and Duration of Warrant.
(a) This Warrant shall be exercisable by the registered Holder
at any time and from time to time on and after March 30, 2005 to and including
the Expiration Date. At 5:00 p.m., New York City time on the Expiration Date,
the portion of this Warrant not exercised prior thereto shall be and become void
and of no value.
(b) A Holder may exercise this Warrant by delivering to the
Company (i) an exercise notice, in the form attached hereto as Appendix B (the
"EXERCISE NOTICE"), appropriately completed and duly signed, and (ii) payment of
the Exercise Price for the number of Warrant Shares as to which this Warrant is
being exercised (as set forth in Section 4(c) below), and the date such items
are received by the Company is an "EXERCISE DATE." Execution and delivery of the
Exercise Notice shall have the same effect as cancellation of the original
Warrant and issuance of a New Warrant evidencing the right to purchase the
remaining number of Warrant Shares.
(c) The Holder shall pay the Exercise Price (i) in cash, by
certified bank check payable to the order of the Company or by wire transfer of
immediately available funds in accordance with the Company's instructions or
(ii) if at any time on or after the Initial Exercise Date (x) there is no
effective Registration Statement registering the resale of the Warrant Shares by
the Holder and (y) the Market Price exceeds the Exercise Price, by means of a
"cashless exercise," by presenting and surrendering to the Company this Warrant,
in which event the Company shall issue to the Holder the number of Warrant
Shares determined as follows:
X = Y [(A-B)/A]
where:
X = the number of Warrant Shares to be issued to the
Holder upon such cashless exercise;
Y = the number of Warrant Shares with
respect to which this Warrant is being
exercised;
A = the Market Price on the Exercise Date; and
B = the Exercise Price.
(d) If an exercise of this Warrant is to be made in connection
with a registered public offering or sale of the Company, such exercise may, at
the election of the Holder, be conditioned on the consummation of the public
offering or sale of the Company, in which case such exercise shall not be deemed
effective until the consummation of such transaction.
5. Delivery of Warrant Shares.
(a) Upon exercise of this Warrant, the Company shall promptly
issue or cause to be issued and deliver or cause to be delivered to the Holder,
in such name or names as the Holder may designate, a certificate for the Warrant
Shares issuable upon such exercise bearing (only if such legend is required by
applicable law) the restrictive legend set forth in Section 4(j)(ii) of the
Purchase Agreement. The Holder, or any Person so designated by the Holder to
receive the Warrant Shares, shall be deemed to have become holder of record of
such Warrant Shares as of the Exercise Date.
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(b) This Warrant is exercisable, either in its entirety or,
from time to time, for a portion of the number of Warrant Shares. Upon surrender
of this Warrant following one or more partial exercises, the Company shall issue
or cause to be issued, at its expense, a New Warrant evidencing the right to
purchase the remaining number of Warrant Shares.
6. Charges, Taxes and Expenses. Issuance and delivery of certifi-
xxxxx for shares of Common Stock upon exercise of this Warrant shall be made
without charge to the Holder for any issue or transfer tax, withholding tax,
transfer agent fee or other incidental tax or expense in respect of the issuance
of such certificates, all of which taxes and expenses shall be paid by the
Company; provided, however, that the Company shall not be required to pay any
tax which may be payable in respect of any transfer involved in the registration
of any certificates for Warrant Shares or Warrant in a name other than that of
the Holder. The Holder shall be responsible for all other tax liability that may
arise as a result of holding or transferring this Warrant or receiving Warrant
Shares upon exercise hereof.
7. Replacement of Warrant. If this Warrant is mutilated, lost,
stolen or destroyed, the Company shall issue or cause to be issued in exchange
and substitution for and upon cancellation hereof, or in lieu of and in
substitution for this Warrant, a New Warrant, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or destruction and
customary and reasonable indemnity, if requested.
8. Reservation of Warrant Shares. The Company covenants that it will
at all times reserve and keep available out of the aggregate of its authorized
but unissued and otherwise unreserved Common Stock, solely for the purpose of
enabling it to issue Warrant Shares upon exercise of this Warrant as herein
provided, the number of Warrant Shares which are then issuable and deliverable
upon the exercise of this entire Warrant, free from all taxes, liens, claims,
encumbrances with respect to the issuance of such Warrant Shares and will not be
subject to any pre-emptive rights or similar rights (taking into account the
adjustments and restrictions of Section 9 hereof). The Company covenants that
all Warrant Shares so issuable and deliverable shall, upon issuance and the
payment of the applicable Exercise Price in accordance with the terms hereof, be
duly and validly authorized, issued, fully paid and non-assessable. The Company
will take all such action as may be necessary to assure that such shares of
Common Stock may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of any securities exchange
or automated quotation system upon which the Common Stock may be listed or
quoted, as the case may be.
9. Certain Adjustments. The Exercise Price and number of Warrant
Shares issuable upon exercise of this Warrant are subject to adjustment from
time to time as set forth in this Section 9.
(a) Stock Dividends. If the Company, at any time while this
Warrant is outstanding, pays a dividend on its Common Stock payable in
additional shares of Common Stock or otherwise makes a distribution on any class
of capital stock that is payable in shares of Common Stock (other than regularly
scheduled dividends in accordance with the terms of the Company's outstanding
shares of Series A Convertible Preferred Stock), then in each such case the
Exercise Price shall be multiplied by a fraction, (A) the numerator of which
shall be the number of shares of Common Stock outstanding immediately prior to
the opening of business on the day after the record date for the determination
of stockholders entitle to receive such dividend or distribution and (B) the
denominator of which shall be the number of shares of Common Stock outstanding
immediately after such event. Any adjustment made pursuant to this Section 9(a)
shall become effective immediately after the record date for the determination
of stockholders entitled to receive such dividend or distribution.
(b) Stock Splits. If the Company, at any time while this
Warrant is outstanding, (i) subdivides outstanding shares of Common Stock into a
larger number of shares, or (ii) combines
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outstanding shares of Common Stock into a smaller number of shares, then in each
such case the Exercise Price shall be multiplied by a fraction, (A) the
numerator of which shall be the number of shares of Common Stock outstanding
immediately before such event and (B) the denominator of which shall be the
number of shares of Common Stock outstanding immediately after such event. Any
adjustment pursuant to this Section 9(b) shall become effective immediately
after the effective date of such subdivision or combination.
(c) Reclassifications. A reclassification of the Common Stock
(other than any such reclassification in connection with a merger or
consolidation to which Section 9(f) applies) into shares of any other class of
stock shall be deemed:
(i) a distribution by the Company to the holders of its
Common Stock of such shares of such other class of stock for the purposes and
within the meaning of this Section 9; and
(ii) if the outstanding shares of Common Stock shall be
changed into a larger or smaller number of shares of Common Stock as part of
such reclassification, such change shall be deemed a subdivision or combination,
as the case may be, of the outstanding shares of Common Stock for the purposes
and within the meaning of Section 9(b).
(d) Self-Tender Offers. In the event, at any time or from time
to time after the Original Issue Date while the Warrants remain outstanding and
unexpired, in whole or in part, a Company Offer shall be made and expire, then
and in each such event the Exercise Price in effect immediately prior to close
of business on the date of the last time (the "EXPIRATION TIME") tenders could
have been made pursuant to such Company Offer shall be decreased by multiplying
such Exercise Price by a fraction (not to be greater than 1):
(i) the numerator of which shall be equal to (A) the
product of (1) the Market Price per share of the Common Stock on the date of the
Expiration Time and (2) the number of shares of Common Stock outstanding
(including any tendered shares) at the Expiration Time less (B) the fair market
value (as determined in good faith by the Board of Directors of the Company) of
the aggregate consideration payable to stockholders based on the acceptance (up
to any maximum specified in the terms of the Company Offer) of all shares
validly tendered and not withdrawn as of the Expiration Time (the shares deemed
so accepted, up to any maximum amount provided for in connection with such
Company Offer, being referred to as the "PURCHASED SHARES"); and
(ii) the denominator of which shall be equal to the
product of (A) the Market Price per share of the Common Stock on the date of the
Expiration Time and (B) the number of shares of Common Stock outstanding
(including any tendered shares) on the Expiration Time less the number of
Purchased Shares.
Any adjustment under this Section 9(d) shall become effective
immediately prior to the opening of business on the day after the
Expiration Time.
(e) Other Distributions. If the Company, at any time while
this Warrant is outstanding, distributes to holders of Common Stock (i)
evidences of its indebtedness, (ii) any security (other than a distribution of
Common Stock covered by Section 9(a)), (iii) rights or warrants to subscribe for
or purchase any security or (iv) any other asset (other than regularly scheduled
distributions in accordance with the terms of the Company's outstanding shares
of Series A Convertible Preferred Stock) (in each case, "DISTRIBUTED PROPERTY"),
then in each such case the Exercise Price in effect immediately prior to the
record date fixed for determination of stockholders entitled to receive such
distribution (and the Exercise Price thereafter applicable) shall be adjusted
(effective on and after such record date) to
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equal the product of such Exercise Price multiplied by a fraction, (A) the
numerator of which shall be Market Price on such record date less the then fair
market value per share of the Distributed Property distributed in respect of one
outstanding share of Common Stock, which, if the Distributed Property is other
than cash or marketable securities, shall be as determined in good faith by the
Board of Directors of the Company, and (B) the denominator of which shall be the
Market Price on such record date.
(f) Fundamental Transactions. If, at any time while this
Warrant is outstanding, (i) the Company effects any merger or consolidation of
the Company with or into another Person, (ii) the Company effects any sale of
all or substantially all of its assets in one or a series of related
transactions or (iii) there shall occur any merger of another Person into the
Company whereby the Common Stock is cancelled, converted or reclassified into or
exchanged for other securities, cash or property (in any such case, a
"FUNDAMENTAL TRANSACTION"), then, as a condition to the consummation of such
Fundamental Transaction, the Company shall (or, in the case of any Fundamental
Transaction in which the Company is not the surviving entity, the Company shall
take all reasonable steps to cause such other Person to) execute and deliver to
each Holder of Warrants a written instrument providing that:
(x) so long as any Warrant remains outstanding on such terms
and subject to such conditions as shall be nearly equivalent as may be
practicable to the provisions set forth in this Warrant, each Warrant, upon the
exercise thereof at any time on or after the consummation of such Fundamental
Transaction, shall be exercisable into, in lieu of Common Stock issuable upon
such exercise prior to such consummation, the securities or other property (the
"SUBSTITUTED PROPERTY") that would have been received in connection with such
Fundamental Transaction by a holder of the number of shares of Common Stock into
which such Warrant was exercisable immediately prior to such Fundamental
Transaction, assuming such holder of Common Stock:
(A) is not a Person with which the Company consolidated
or into which the Company merged or which merged into the Company or to which
such sale or transfer was made, as the case may be (a "CONSTITUENT PERSON"), or
an Affiliate of a Constituent Person; and
(B) failed to exercise such Holder's rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable in connection with such Fundamental Transaction (provided,
however, that if the kind or amount of securities, cash or other property
receivable in connection with such Fundamental Transaction is not the same for
each share of Common Stock held immediately prior to such Fundamental
Transaction by a Person other than a Constituent Person or an Affiliate thereof
and in respect of which such rights of election shall not have been exercised (a
"NON-ELECTING Share"), then, for the purposes of this Section 9(f), the kind and
amount of securities, cash and other property receivable in connection with such
Fundamental Transaction by each Non-Electing Share shall be deemed to be the
kind and amount so receivable per share by a plurality of the Non-Electing
Shares); and
(y) the rights and obligations of the Company (or, in the
event of a transaction in which the Company is not the surviving Person, such
other Person) and the Holders in respect of Substituted Property shall be as
nearly equivalent as may be practicable to the rights and obligations of the
Company and Holders in respect of Common Stock hereunder.
Such written instrument shall provide for adjustments which, for
events subsequent to the effective date of such written
instrument, shall be as nearly equivalent as may be practicable to
the adjustments provided for in Section 9. The above provisions of
this Section 9(f) shall similarly apply to successive Fundamental
Transactions.
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(g) Adjustment of Exercise Price. Simultaneously with any
adjustment to the Exercise Price pursuant to paragraphs (a) through (e) of this
Section 9, the number of Warrant Shares that may be purchased upon exercise of
this Warrant shall be increased or decreased proportionately, so that after such
adjustment the aggregate Exercise Price payable hereunder for the increased or
decreased number of Warrant Shares shall be the same as the aggregate Exercise
Price payable for the Warrant Shares immediately prior to such adjustment.
(h) Calculations. All calculations under this Section 9 shall
be made to the nearest cent or the nearest 1/100th of a share, as applicable.
The number of shares of Common Stock outstanding at any given time shall not
include shares owned or held by or for the account of the Company, and the
disposition of any such shares shall be considered an issue or sale of Common
Stock.
(i) Adjustments. Notwithstanding any provision of this Section
9, no adjustment of the Exercise Price shall be required if such adjustment is
less than $0.01; provided, however, that any adjustments which by reason of this
Section 9(i) are not required to be made shall be carried forward and taken into
account for purposes of any subsequent adjustment.
(j) Notice of Adjustments. Upon the occurrence of each
adjustment pursuant to this Section 9, the Company will promptly deliver to the
Holder a certificate executed by the Company's Chief Financial Officer setting
forth, in reasonable detail, the event requiring such adjustment and the method
by which such adjustment was calculated, the adjusted Exercise Price and the
adjusted number or type of Warrant Shares or other securities issuable upon
exercise of this Warrant (as applicable). The Company will retain at its office
copies of all such certificates and cause the same to be available for
inspection at said office during normal business hours by the Holder or any
prospective purchaser of the Warrant designated by the Holder.
(k) Notice of Corporate Events. If the Company (i) declares a
dividend or any other distribution of cash, securities or other property in
respect of its Common Stock, including, without limitation, any granting of
rights or warrants to subscribe for or purchase any capital stock of the Company
or any subsidiary of the Company, (ii) authorizes, approves, enters into any
agreement contemplating, or solicits stockholder approval for, any Fundamental
Transaction or (iii) authorizes the voluntary dissolution, liquidation or
winding up of the affairs of the Company, then the Company shall deliver to the
Holder a notice describing the material terms and conditions of such transaction
at least 15 calendar days prior to the applicable record or effective date on
which a Person would need to hold Common Stock in order to participate in or
vote with respect to such transaction, and the Company will take all steps
reasonably necessary in order to ensure that the Holder is given the practical
opportunity to exercise this Warrant prior to such time so as to participate in
or vote with respect to such transaction; provided, however, that the failure to
deliver such notice or any defect therein shall not affect the validity of the
corporate action required to be described in such notice.
10. Fractional Shares. The Company shall not be required to issue or
cause to be issued fractional Warrant Shares on the exercise of this Warrant. If
any fraction of a Warrant Share would, except for the provisions of this
Section, be issuable upon exercise of this Warrant, the Company shall make a
cash payment to the Holder equal to (a) such fraction multiplied by (b) the
Market Price on the Exercise Date of one full Warrant Share.
11. Restricted Securities. The Holder represents and warrants that it
(i) understands that the Warrant and the Warrant Shares have not been registered
under the Securities Act and (ii) understands the restrictions set forth on the
legend printed on the face of this Warrant. Notwithstanding the above, the
Company represents that the Warrant Shares are subject to the Registration
Rights Agreement.
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12. Listing on Securities Exchanges. In furtherance and not in
limitation of any other provision of this Warrant, if the Company at any time
shall list any Common Stock on any Eligible Market, the Company will, at its
expense, simultaneously list the Warrant Shares (and maintain such listing) on
such Eligible Market, upon official notice of issuance following the exercise of
this Warrant; and the Company will so list, register and maintain such listing
on any Eligible Market any Other Securities, if and at the time that any
securities of like class or similar type shall be listed on such Eligible Market
by the Company.
13. Remedies. The Company stipulates that the remedies at law of the
Holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
14. Notices. Any and all notices or other communications or
deliveries hereunder (including without limitation any Exercise Notice) shall be
in writing and shall be mailed by certified mail, return receipt requested, or
by a nationally recognized courier service or delivered (in person or by
facsimile), against receipt to the party to whom such notice or other
communication is to be given. The address for such notices or communications
shall be as set forth in the Purchase Agreement entered into by the Holder and
the Company. Any notice or other communication given by means permitted by this
Section 13 shall be deemed given at the time of receipt thereof.
15. Warrant Agent. The Company shall serve as warrant agent under
this Warrant. Upon 30 days' notice to the Holder, the Company may appoint a new
warrant agent. Any Person into which any new warrant agent may be merged, any
Person resulting from any consolidation to which any new warrant agent shall be
a party or any Person to which any new warrant agent transfers substantially all
of its corporate trust or shareholders services business shall be a successor
warrant agent under this Warrant without any further act. Any such successor
warrant agent shall promptly cause notice of its succession as warrant agent to
be mailed (by first class mail, postage prepaid) to the Holder at the Holder's
last address as shown on the Warrant Register.
16. Miscellaneous.
(a) This Warrant may be assigned by the Holder. This Warrant may
not be assigned by the Company, except to a successor in the event of a
Fundamental Transaction. This Warrant shall be binding on and inure to the
benefit of the parties hereto and their respective successors and assigns.
Subject to the preceding sentence, nothing in this Warrant shall be construed to
give to any Person other than the Company and the Holder any legal or equitable
right, remedy or cause of action under this Warrant. This Warrant may be amended
only in writing signed by the Company and the Holder and their successors and
assigns.
(b) The Company will not, by amendment of its governing
documents or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder against impairment.
Without limiting the generality of the foregoing, the Company (i) will not
increase the par value of any Warrant Shares above the amount payable therefor
upon exercise thereof, (ii) will take all such action as may be reasonably
necessary or appropriate in order that the Company may validly and legally issue
fully paid and nonassessable Warrant Shares on the exercise of this Warrant,
free from all
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taxes, liens, claims and encumbrances and (iii) will not close its shareholder
books or records in any manner which interferes with the timely exercise of this
Warrant.
(c) This Warrant shall be governed by and construed and
enforced in accordance with the laws of the State of New York without regard to
conflicts of laws principles thereof. Each party hereby irrevocably submits to
the exclusive jurisdiction of the state and Federal courts sitting in the City
of New York, Borough of Manhattan, for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or
discussed herein (including with respect to the enforcement of the Securities
Purchase Agreement), and hereby irrevocably waives, and agrees not to assert any
suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for notices
to it under this Warrant and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law. THE PARTIES HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
(d) Neither party shall be deemed in default of any provision
of this Warrant, to the extent that performance of its obligations or attempts
to cure a breach hereof are delayed or prevented by any event reasonably beyond
the control of such party, including, without limitation, war, hostilities, acts
of terrorism, revolution, riot, civil commotion, national emergency, strike,
lockout, unavailability of supplies, epidemic, fire, flood, earthquake, force of
nature, explosion, embargo, or any other Act of God, or any law, proclamation,
regulation, ordinance, or other act or order of any court, government or
governmental agency, provided that such party gives the other party written
notice thereof promptly upon discovery thereof and uses reasonable efforts to
cure or mitigate the delay or failure to perform.
(e) The headings herein are for convenience only, do not
constitute a part of this Warrant and shall not be deemed to limit or affect any
of the provisions hereof.
(f) In case any one or more of the provisions of this Warrant
shall be deemed invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Warrant shall not
in any way be affected or impaired thereby and the parties will attempt in good
faith to agree upon a valid and enforceable provision which shall be a
commercially reasonable substitute therefor, and upon so agreeing, shall
incorporate such substitute provision in this Warrant.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its authorized officer as of the date first indicated above.
DOBI MEDICAL INTERNATIONAL, INC.
By:_____________________________
Xxxxxxx X. Xxxxxx
Chief Executive Officer
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APPENDIX A
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FORM OF ASSIGNMENT
(to be completed and signed only upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________________________ the right represented by the
within Warrant to purchase _____________ shares of Common Stock of DOBI Medical
International, Inc. to which the within warrant relates and appoints
__________________________ attorney to transfer said right on the books of DOBI
Medical International, Inc. with full power of substitution in the premises.
Dated:____________ _________________________________________
(Signature must conform in all respects
to name of Holder as specified on face of
the Warrant)
Address of Transferee:
_________________________________________
_________________________________________
_________________________________________
In the presence of:
______________________
APPENDIX B
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FORM OF EXERCISE NOTICE
(To be executed by the Holder to exercise the right to purchase shares of Common
Stock under the foregoing Warrant)
To: DOBI Medical International, Inc.
The undersigned is the Holder of Warrant No. 2005-___A (the "Warrant") issued by
DOBI Medical International, Inc., a Delaware corporation (the "Company").
Capitalized terms used herein and not otherwise defined have the respective
meanings set forth in the Warrant.
1. The Warrant is currently exercisable to purchase a total of _________
Warrant Shares.
2. The undersigned Holder hereby exercises its right to purchase Warrant
Shares pursuant to the Warrant.
3. The Holder intends that payment of the Exercise Price, in accordance
with the terms of Section 4(c) of the Warrant, shall be made as (check
one):
Cash Exercise_______
Cashless Exercise_______
4. If the Holder has elected a Cash Exercise, the Holder shall pay the sum
of $________ to the Company in accordance with the terms of the
Warrant.
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5. If the Holder has elected a Cashless Exercise, a certificate shall be
issued to the Holder for the number of shares equal to the whole number
portion of the product of the calculation set forth below, which is
____________. The Company shall pay a cash adjustment in respect of the
fractional portion of the product of the calculation set forth below in
an amount equal to the product of the fractional portion of such
product and the Market Price on the Exercise Day, which product is
____________.
X = Y[(A-B)/A]
X = the number of Warrant Shares to be issued to the Holder.
Number of Warrant Shares being exercised:_______________("Y").
Market Price on the Exercise Day:_______________________("A").
Exercise Price:________("B")
6. Pursuant to this exercise, the Company shall deliver to the Holder
Warrant Shares in accordance with the terms of the Warrant.
7. Following this exercise, the Warrant shall be exercisable to purchase
a total of __________ Warrant Shares.
Dated: _________ Name of Holder:
(Print)_______________________
By:__________________________
Name:________________________
Title:_________________________
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
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