EXHIBIT 10.9
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE
SECURITIES LAWS AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT OR LAWS, THE
RULES AND REGULATIONS THEREUNDER AND THE PROVISIONS OF THIS WARRANT.
WARRANT TO PURCHASE (((AMOUNT))) SHARES
OF COMMON STOCK OF
LIFEPOINT, INC.
ISSUED TO
GENERAL CONFERENCE CORPORATION OF SEVENTH-DAY ADVENTISTS
(((DATE)))
----------
WARRANT NO. #_____
LIFEPOINT, INC.
(Incorporated under the laws of the State of Delaware)
This certifies that the GENERAL CONFERENCE CORPORATION OF SEVENTH-DAY ADVENTISTS
(the "Warrant Holder") is the owner of a Warrant, subject to adjustment as
provided in Section 3 hereof, which entitles the owner thereof to purchase, in
whole or in part, and from time to time, as provided in Section 1 hereof,
(((AMOUNT))) fully paid and nonassessable shares of the no-par-value Common
Stock (the "Common Stock") of LifePoint, Inc., a Delaware corporation (the
"Company"), at the purchase price per share of (((PRICE))) per share (the
"Purchase Price"), subject to adjustment as provided in Section 3 hereof,
payable in lawful money of the United States of America upon surrender of this
Warrant at the principal office of the Company (currently 0000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx 91761) or at such other place as the Company may designate
by written notice to the Warrant Holder.
1. Exercise
The Warrant evidenced hereby shall become exercisable as to (((AMOUNT))) shares
of the Common Stock on (((DATE))) and shall terminate at 5:00 p.m., California
time, on (((DATE))) (the "Expiration Date"), provided, however, that in no event
may any fractional share of the Common Stock be issued. In the event that a
fractional share would otherwise be issued as a result of any adjustment made
pursuant to Section 3 hereof or otherwise, payment of such fractional share
shall be made on the basis of the Market Price on the date of exercise. For the
purpose of this Section 1, the term "Market Price" shall mean (a) if the Common
Stock is traded on a national securities exchange or on The Nasdaq Stock Market,
Inc., the closing sales price (or, if no sales on that day, the high bid price)
or (b) if the Common Stock is not traded as provided in subsection (a), the
closing bid price as reported in the OTC Bulletin Board of the National
Association of Securities Dealers, Inc. or in the pink sheets as reported by an
organization performing the services previously furnished by the National
Quotation Bureau, Inc.
Upon any exercise of the Warrant evidenced hereby, the form of election to
purchase set forth as Exhibit A hereto shall be properly completed, executed,
and delivered to the Company, together with (a) a certified check, bank draft,
or wire transfer in full payment to the Company of the Purchase Price for the
shares as to which the Warrant is exercised or (b) authorization from the
Warrant Holder to the Company to retain from the total number of shares of the
Common Stock as to which the Warrant is exercised that number of shares having
an average Market Price over the two-week period ending on the date of exercise
equal to the product of the Purchase Price and the total number of shares as to
which the Warrant is exercised (any balance to be paid as set forth in (a)
above). In the event that there is only a partial exercise of the Warrant
evidenced hereby, there shall be issued to the Warrant Holder a new Warrant
Certificate, in all respects similar to this Warrant Certificate, evidencing the
number of shares of the Common Stock still available for exercise.
1
Upon receipt of full payment and properly completed documentation, the Company
shall then cause the Transfer Agent for the Common Stock to issue fully paid and
nonassessable shares of the Common Stock as are represented by the exercise.
If this Warrant shall be surrendered upon exercise within any period during
which the transfer books for the Common Stock are closed for any purpose, the
Company shall not be required to make delivery of certificates for shares of the
Common Stock until the date of the reopening of said transfer books.
2. Expiration Date
The Warrant evidenced hereby may not be exercised after the Expiration Date with
respect to the shares of the Common Stock as to which the Warrant may be
exercised and, to the extent the Warrant has not exercised as to any such shares
by the Expiration Date, the Warrant evidenced hereby shall become void.
3. Adjustments
Subject to the provisions of this Section 3, the Purchase Price and the shares
of the Common Stock as to which the Warrant may be exercised shall be subject to
adjustments from time to time as hereinafter set forth:
(a) If at any time, or from time to time, the Company shall, by subdivision,
consolidation, or reclassification of shares or otherwise, change as a whole the
outstanding shares of the Common Stock into a different number or class of
shares, the number and class of shares so changed shall replace the shares
outstanding immediately prior to such change and the Purchase Price and the
number of shares purchasable under the Warrant immediately prior to the date on
which such change shall become effective shall be proportionately adjusted.
(b) Irrespective of any adjustments or change in the Purchase Price or the
number of securities actually purchasable under the Warrant, the Warrant
theretofore and thereafter issued may continue to express the exercise price and
the number of securities purchasable thereunder as the Purchase Price and the
number of securities purchasable as expressed in the Warrant when initially
issued.
(c) If at any time while the Warrant is outstanding, the Company shall
consolidate with, or merge into, another corporation, firm, or entity, or
otherwise enter into a form of business combination, the Warrant Holder shall
thereafter be entitled upon exercise thereof to purchase, with respect to each
security purchasable thereunder immediately prior to the date on which such
consolidation or merger or other form of business combination shall become
effective, the securities or property to which a holder of one such security
would have been entitled upon such consolidation or merger or other form of
business combination, without any change in, or payment in addition to, the
Purchase Price in effect immediately prior to such consolidation or merger or
other form of business combination, and the Company shall take such steps in
connection with such consolidation or merger or other form of business
combination as may be necessary to assure that all the provisions of the Warrant
shall thereafter be applicable, as nearly as reasonably may be, in relation to
any securities or property thereafter deliverable upon the exercise of the
Warrant.
(d) The Board of Directors of the Company, in its discretion, may, at any time
during the exercise period of the Warrant, extend the exercise period or reduce
the Purchase Price for the Warrant.
(e) Upon the happening of any event requiring the adjustment of the exercise
price hereunder, the Company shall forthwith give written notice thereof to the
registered holder of the Warrant stating the adjusted Purchase Price and the
adjusted number of securities purchasable upon the exercise thereof resulting
from such event and setting forth in reasonable detail the method of calculation
and the facts upon which such calculation is based. The certificate of the
Company's independent public accountants shall be conclusive evidence of the
correctness of any computation made hereunder.
4. Notice to Warrant Holder
Nothing contained herein shall be construed as conferring upon the Warrant
Holder the right to vote or to consent or to receive notice as a stockholder in
respect of the meetings of stockholders for the election of directors of the
Company or any other matter, or any other rights whatsoever as a stockholder of
the Company; provided, however, that in the event that:
2
(a) the Company shall take action to make any distribution (other than cash
dividends payable out of earnings or earned surplus) on the Common Stock;
(b) the Company shall take action to offer for subscription PRO RATA to the
holders of the Common Stock any additional shares of stock of any class or other
rights or securities convertible into the Common Stock;
(c) the Company shall take action to accomplish any capital reorganization, or
reclassification of the capital stock of the Company (other than a change in par
value, or a change from par value to no par value, or a change from no par value
to par value, or a subdivision or combination of the Common Stock), or a
consolidation or merger of the Company into, or a sale of all or substantially
all of its assets to, another corporation; or
(d) the Company shall take action looking to a voluntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall, (x) at least 10 days
prior to the date on which the books of the Company shall close or a record date
shall be taken for such distribution or subscription rights or for determining
rights to vote in respect of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, cause
notice thereof to be sent to the Warrant Holder at the address appearing on the
Warrant register of the Company and, (y) in the case of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, cause at least 10 days' prior written notice of the date when the
same shall take place to be given to the Warrant Holder in the same manner. Such
notice in accordance with the foregoing clause (x) shall also specify, in the
case of any such distribution or subscription rights, the date on which the
holders of the Common Stock shall be entitled thereto, and such notice in
accordance with the foregoing clause (y) shall also specify the date on which
the holders of the Common Stock shall be entitled to exchange their shares of
the Common Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, as the case may be. Failure to give such notice or
any defect therein shall not affect the legality or validity of any of the
matters set forth in this Section 4 inclusive.
5. Investment Representation
The Warrant Holder, by his, her, or its acceptance of this Warrant, acknowledges
that neither the Warrant nor the shares of the Common Stock issuable upon
exercise thereof have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, represents and warrants to the
Company that he, she, or it is acquiring the Warrant for investment and not with
a view to, or in connection with, any distribution thereof. The Warrant Holder
further represents and warrants that, if a registration statement under the
Securities Act is not effective with respect to the underlying shares of the
Common Stock at the time of exercise, the Warrant Holder will acquire the shares
of the Common Stock for investment and not with a view to, or in connection
with, any distribution thereof.
6. Transfers and Exchanges
The Company shall transfer, from time to time, any outstanding Warrant upon the
books to be maintained by the Company for that purpose, upon surrender thereof
for transfer properly endorsed or accompanied by appropriate instructions for
transfer. Upon any such transfer, a new Warrant shall be issued to the
transferee and the surrendered Warrant shall be canceled by the Company. The
Warrant so canceled shall be delivered to the Company from time to time upon
request. Warrants may be exchanged at the option of the holder thereof, when
surrendered at the office of the Company, for another Warrant, or other Warrants
of different denominations, of like tenor and representing in the aggregate the
rights to purchase a like number of shares. Anything in this section 6 to the
contrary notwithstanding, no transfer shall be made if such transfer would
violate Section 5 of the Securities Act.
7. Payment of Taxes
The Company will pay any documentary stamp taxes attributable to the initial
issuance of the Common Stock issuable upon the exercise of the Warrant;
provided, however, that the Company shall not be required to pay any tax or
taxes which may be payable in respect of any transfer involved in the issue or
delivery of any certificates for the Common Stock in a name other than that of
the registered holder of the Warrant in respect of which shares are issued, and
in such case the Company shall not be required to issue or deliver any
certificates for the Common Stock or any Warrant for remaining shares until the
person requesting the same has paid to the Company the amount of such tax or has
established to the Company's satisfaction that such tax has been paid.
3
8. Mutilated or Missing Warrant
In case the Warrant shall be mutilated, lost, stolen, or destroyed, the Company
may in its discretion issue and deliver in exchange and substitution for, and
upon cancellation of, the mutilated Warrant, or in lieu of, and in substitution
for, the Warrant lost, stolen, or destroyed, a new Warrant of like tenor and
representing an equivalent right or interest, but only upon receipt of evidence
satisfactory to the Company of such loss, theft, or destruction of such Warrant.
Applicants for such substitute Warrant shall also comply with such other
reasonable regulations and pay such reasonable charges as the Company may
prescribe.
9. Reserve
The Company covenants and agrees that, from time to time, there will be
authorized and available for delivery a sufficient number of its shares of the
Common Stock or other securities into which the Warrant is then exercisable to
permit the exercise of the Warrant at the time outstanding as and when the
certificates shall, from time to time, be deliverable in accordance with Section
1 hereof. In the event that there are insufficient shares or other securities
for such purpose, the Company shall use its best efforts to seek stockholder
approval for an Amendment to the Company's Certificate of Incorporation and/or
to take such other action as is necessary or appropriate to cause such shares or
other securities to be authorized.
10. Governing Law
The Warrant evidenced hereby shall be construed and enforced in accordance with
the laws of the State of Delaware applicable to contracts made and to be
performed in that State, without giving effect to any principles of conflicts of
laws.
IN WITNESS WHEREOF, LifePoint, Inc. has caused this Warrant to be signed
manually by a duly authorized officer.
Dated: LIFEPOINT, INC.
--------------------
By:
-----------------------------
Xxxxx X. Xxxxxxxxx, President
4
EXHIBIT A
ELECTION TO PURCHASE
To: LifePoint, Inc.
c/o: _________________________________
_________________________________
_________________________________
The undersigned hereby irrevocably elects to exercise the Warrant represented by
the within Warrant Certificate to purchase ____________ shares of the Common
Stock issuable upon the exercise of the Warrant and requests that certificates
for such shares shall be issued in the name of:
(Name) _____________________________ (Taxpayer Number) ______________________
(Address) ______________________________________________________________________
and be delivered to (Name)______________________________________________________
at (Address)____________________________________________________________________
and delivered to the undersigned at the address below stated.
Date ______________________, 200_
Name of holder of Warrant Certificate:
(Name)_________________________________________
(Address)_______________________________________________________________________
(Signature)____________________________________
Note: The above signature must correspond
with the name as written upon the face of
this Warrant Certificate in every
particular, without alteration or
enlargement or any change whatever.
5
