Exhibit 4.13
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR APPLICABLE STATE SECURITIES LAWS. NEITHER THIS WARRANT NOR ANY OF SUCH
SHARES MAY BE SOLD, ASSIGNED, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE
SECURITIES OR BLUE SKY LAWS OR EXEMPTIONS FROM SUCH REGISTRATION. THIS WARRANT
MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, OR OTHERWISE DISPOSED OF EXCEPT UPON THE
CONDITIONS SPECIFIED IN THIS WARRANT, AND NO SALE, ASSIGNMENT, TRANSFER, OR
OTHER DISPOSITION OF THIS WARRANT SHALL BE VALID OR EFFECTIVE UNLESS AND UNTIL
THERE SHALL HAVE BEEN COMPLIANCE WITH SUCH CONDITIONS.
Dated: January 15, 1999
WARRANT
To purchase up to 35,000 shares of Common Stock
PARADIGM MEDICAL INDUSTRIES, INC.
Expiring January 15, 2004
THIS IS TO CERTIFY THAT, for value received, WIN CAPITAL
CORP., a New York corporation, (the "Holder"), is entitled, subject to certain
conditions set forth in Sections 1.01 and 1.02 hereof, to purchase from PARADIGM
MEDICAL INDUSTRIES, INC., a Delaware corporation (the "Company"), at the
Company's principal executive office, at the Exercise Price, up to the number of
shares of Common Stock, $.001, par value per share (the "Shares"), of the
Company shown above, all subject to adjustment and upon the terms and conditions
as hereinafter provided, and is entitled also to exercise the other appurtenant
rights, powers and privileges hereinafter described.
Certain terms used in this Warrant are defined in Article IV
hereof.
ARTICLE I
METHOD OF EXERCISE
1.01. Time of Exercise. Subject to the provisions of Sections
1.02 and 1.03 hereof, this Warrant may be exercised at any time and from time to
time after 9:00 a.m. New York Time on the first day immediately following the
date first written above and prior to the Expiration Time.
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1.02. Method of Exercise. To exercise this Warrant in whole or
in part, the Holder shall deliver to the Company, at the Company's principal
executive office (a) this Warrant, (b) a written notice of such Holder's
election to exercise this Warrant, which notice shall specify the number of
Shares to be purchased, but in no event less than 1,000 shares, the
denominations of the share certificate or certificates desired and the name or
names in which such certificates are to be registered, and (c) payment of the
Exercise Price with respect to such shares. Such payment may be made, at the
option of the Holder, in cash, by certified or bank cashier's check, money order
or wire transfer, in the manner specified in the next succeeding paragraph, or
in any other manner consented to in writing by the Company, or any combination
thereof.
The Company shall, as promptly as practicable after receipt of
the items required by the preceding paragraphs of this Section 1.02, execute and
deliver or cause to be executed and delivered, in accordance with such notice, a
certificate or certificates representing the aggregate number of Shares
specified in such notice. The share certificate or certificates so delivered
shall be in such denominations as shall be specified in such notice and shall be
issued in the name of the Holder or, provided, in an opinion of counsel
reasonably acceptable to the Company, the following is permitted under the
Securities Act and applicable state securities laws, such other name as shall be
designated in such notice. Such certificate or certificates shall be deemed to
have been issued, and such Holder or Holders or any other person so designated
to be named therein shall be deemed for all purposes to have become a Holder of
record of such shares, as of the date the aforementioned notice is received by
the Company. If this Warrant shall have been exercised only in part, the Company
shall, at the time of delivery of the certificate or certificates, deliver to
the Holder a new Warrant evidencing the right to purchase the remaining Shares
called for by this Warrant, which new Warrant shall in all other respects be
identical with this Warrant, or, at the request of the Holder, appropriate
notations may be made on this Warrant which shall then be returned to the
Holder. The Company shall pay all expenses, taxes and other charges payable in
connection with the preparation, issuance and delivery of share certificates and
new Warrants, except that, if share certificates or new Warrants shall be
registered in a name or names other than the name of the Holder, funds
sufficient to pay all transfer taxes, if any, payable as a result of such
transfer shall be paid by the Holder at the time of delivering the
aforementioned notice of exercise or promptly upon receipt of a written request
of the Company for payment.
1.03. Shares To Be Fully Paid and Nonassessable. All Shares
issued upon the exercise of this Warrant shall be validly issued, fully paid and
nonassessable and, if the Shares are then
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eligible for listing on any national securities exchanges (as defined in the
Exchange Act), or quoted on Nasdaq, shall be duly listed or quoted thereon or
application made therefor, as the case may be.
1.04. No Fractional Shares To Be Issued. The Company shall not
be required to issue fractions of Shares upon exercise of this Warrant. If any
fractions of a share would, but for this Section, be issuable upon any exercise
of this Warrant, in lieu of such fractional share the Company shall pay to the
holder, in cash, an amount equal to the same fraction of the Closing Price per
Share for the Trading Day immediately prior to the date of such exercise.
1.05. Share Legend. Each certificate for Shares issued upon
exercise of this Warrant, unless at the time of exercise such shares are
registered under the Securities Act, shall bear a legend substantially as
follows:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER
SUCH ACT OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND APPLICABLE STATE SECURITIES LAWS,
SUPPORTED BY AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO
THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED.
Any certificate issued at any time in exchange or substitution
for any certificate bearing such legend (except a new certificate issued upon
completion of a public distribution pursuant to a registration statement under
the Securities Act) shall also bear such legend unless, in the opinion of
counsel reasonably acceptable to the Company, the securities represented thereby
need no longer be subject to restrictions on resale under the Securities Act.
ARTICLE II
REPLACEMENTS OF WARRANT CERTIFICATES
2.01. Loss, Theft or Destruction of Warrant Certificates. Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of any Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity or security satisfactory to the Company,
or, in the case of any such mutilation, upon surrender and cancellation of the
Warrant, the Company will make and deliver, in lieu of such lost, stolen,
destroyed or mutilated Warrant, a new Warrant of like tenor and
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representing the right to purchase the same aggregate number of
Shares.
2.02. Change of Principal Executive Office. In the event the
Company shall change the address of its principal executive office, the Company
shall give the holder of this Warrant notice of any such change.
ARTICLE III
ANTIDILUTION PROVISIONS
3.01 Adjustments Generally. The Exercise Price and the number
of Shares (or other securities or property) issuable upon exercise of this
Warrant shall be subject to adjustment from time to time upon the occurrence of
certain events, as provided in this Article III.
3.02 Common Stock Reorganization. If the Company shall
subdivide its outstanding shares of Common Stock, $.001 par value per share
("Common Stock"), into a greater number of shares or consolidate its outstanding
shares of Common Stock into a smaller number of shares (any such event being
called a "Common Stock Reorganization"), then (a) the Exercise Price shall be
adjusted, effective immediately after the record date at which the holders of
shares of Common Stock are determined for purposes of such Common Stock
Reorganization, to a price determined by multiplying the Exercise Price in
effect immediately prior to such record date by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding on such record
date before giving effect to such Common Stock Reorganization and the
denominator of which shall be the number of shares of Common Stock outstanding
after giving effect to such Common Stock Reorganization, and (b) the number of
Shares subject to purchase upon exercise of this Warrant shall be adjusted,
effective at such time, to a number determined by multiplying the number of
Shares subject to purchase upon exercise of this Warrant immediately before such
Common Stock Reorganization by a fraction, the numerator of which shall be the
number of shares then outstanding after giving effect to such Common Stock
Reorganization and the denominator of which shall be the number of shares of
Common Stock outstanding immediately before such Common Stock Reorganization.
3.03 Special Dividends. If the Company shall issue or
distribute to all or substantially all holders of shares of Common Stock
evidences of indebtedness, any other securities of the Company, or any cash,
property or other assets, and if such issuance or distribution does not
constitute a cash dividend or distribution out of surplus or net profits legally
available therefor, or a Common
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Stock Reorganization (any such nonexcluded event being herein called a "Special
Dividend"), the Exercise Price shall be adjusted, effective immediately after
the record date at which the holders of shares of Common Stock are determined
for purposes of such Special Dividend, to a price determined by multiplying the
Exercise Price then in effect by a fraction, the numerator of which shall be the
Market Price per share of Common Stock on such record date less the then fair
market value (as reasonably determined in good faith by the Board of Directors
of the Company) of the evidences of indebtedness, securities or property or
other assets issued or distributed in such Special Dividend with respect to one
share of Common Stock, and the denominator of which shall be the Closing Price
per share of Common Stock on such record date.
3.04 Capital Reorganizations. If there shall be any
consolidation or merger to which the Company is a party, other than a
consolidation or a merger in which the Company is a continuing corporation and
which does not result in any reclassification of, or change (other than a Common
Stock Reorganization or a change in par value) in, outstanding shares of Common
Stock, or any sale or conveyance of the property of the Company as an entirety
or substantially as an entirety (any such event being called a "Capital
Reorganization"), then effective upon the effective date of such Capital
Reorganization, the Holder shall have the right to purchase, upon exercise of
this Warrant, the kind and amount of shares of stock and other securities and
property (including cash) which the Holder would have owned or have been
entitled to receive after such Capital Reorganization if this Warrant had been
exercised immediately prior to such Capital Reorganization. As a condition to
effecting any Capital Reorganization, the Company or the successor or surviving
corporation, as the case may be, shall execute and deliver to each Holder an
agreement as to the Holders' rights in accordance with this Section 3.04,
providing for subsequent adjustments as nearly equivalent as may be practicable
to the adjustments provided for in this Article III. The provisions of this
Section 3.04 shall similarly apply to successive Capital Reorganizations.
3.05. Certain Other Events. If any event occurs as to which
the foregoing provisions of this Article III are not strictly applicable or, if
strictly applicable, would not, in the good faith judgment of the Board of
Directors of the Company, fairly protect the purchase rights of the Warrants in
accordance with the essential intent and principles of such provisions, then
such Board shall make such adjustments in the application of such provisions, in
accordance with such essential intent and principles, as shall be reasonably
necessary, in the good faith opinion of such Board, to protect such purchase
rights as aforesaid, but in no event shall any such adjustment have the effect
of increasing the Exercise Price or
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decreasing the number of Shares subject to purchase upon exercise of
this Warrant.
3.06. Adjustment Rules. (a) Any adjustments pursuant to
this Article III shall be made successively whenever an event
referred to therein shall occur.
(b) If the Company shall set a record date to determine the
holders of shares of Common Stock for purposes of a Common Stock Reorganization
or Capital Reorganization, and shall legally abandon such action prior to
effecting such action, then no adjustment shall be made pursuant to this Article
III in respect of such action.
(c) All calculations under this Article III shall be made to
the nearest cent or to the nearest one hundredth (1/100th) of a share, as the
case may be. Notwithstanding any provision of this Article III to the contrary,
no adjustment in the Exercise Price shall be made if the amount of such
adjustment would be less than $0.05, but any such amount shall be carried
forward and an adjustment with respect thereto shall be made at the time of and
together with any subsequent adjustment which, together with such amount and any
other amount or amounts so carried forward, shall aggregate $0.05 or more.
(d) In any case in which the provisions of this Article III
shall require that an adjustment shall become effective immediately after a
record date for an event, the Company may defer until the occurrence of such
event (i) issuing to the holder of any Warrant exercised after such record date
and before the occurrence of such event the additional shares of Common Stock
issuable upon such conversion by reason of the adjustment required by such event
over and above the Shares issuable upon such exercise before giving effect to
such adjustment and (ii) paying to such holder any amount of cash in lieu of a
fractional share of Common Stock pursuant to Section 1.04; provided that the
Company upon request shall deliver to such holder a due xxxx or other
appropriate instrument evidencing such holder's rights to receive such
additional shares, and such cash, upon the occurrence of the event requiring
such adjustment.
3.07 Proceedings Prior to Any Action Requiring Adjustment. As
a condition precedent to the taking of any action that would require an
adjustment pursuant to this Article III, the Company shall take any action which
may be necessary in order that the Company may thereafter validly and legally
issue as fully paid and nonassessable all Shares that the Holders are entitled
to receive upon exercise of this Warrant.
3.08 Statement Regarding Adjustment. Whenever the
Exercise Price or the number of shares received upon exercise of the
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Warrants shall be adjusted as provided in this Article III, the Company shall
forthwith file, at the office of any transfer agent for the Warrants and at the
principal executive office of the Company, a statement showing in detail the
facts requiring such adjustment and the Exercise Price and the number of shares
received upon exercise of the Warrants that shall be in effect after such
adjustment, and the Company shall also cause a copy of such statement to be sent
by mail, first class postage prepaid, to each Holder, at its address appearing
on the Company's records. Where appropriate, such copy may be given in advance
and may be included as part of a notice required to be mailed under the
provisions of this Article III. Failure to give such notice, or any defect
therein, shall not affect the legality or validity of any such action.
3.09 Notice to Holders. In the event the Company shall propose
to take any action of the type described in this Article III (but only if the
action of the type described in this Article III would result in an adjustment
in the Exercise Price or the number of shares received upon exercise of the
Warrants), or to declare any cash dividends or distribution out of surplus or
net profits legally available therefor, the Company shall give notice to each
Holder in the manner set forth in Section 3.08, which notice shall specify the
record date, if any, with respect to any such action and the approximate date on
which such action is to take place. Such notice shall also set forth such facts
with respect thereto as shall be reasonably necessary to indicate the effect of
such action (to the extent such effect may be known at the date of such notice)
on the Exercise Price and the number, kind or class of shares or other
securities or property which shall be deliverable or purchasable upon the
occurrence of such action or deliverable upon exercise of the Warrants. In the
case of any action that would require the fixing of a record date, such notice
shall be given at least 10 days prior to the date so fixed, and in case of all
other action, such notice shall be given at least 15 days prior to the taking of
such proposed action. Failure to give such notice, or any defect therein, shall
not affect the legality or validity of any such action.
ARTICLE IV
DEFINITIONS
The following terms, as used in this Warrant, have the
following respective meanings:
"Capital Reorganization" shall have the meaning set forth
in Section 3.04 hereof.
"Closing Price" on any day means (a) if the Common Stock
is listed or admitted for trading on a national securities exchange,
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the reported last sales price or, if no such reported sale occurs on such day,
the average of the closing bid and asked prices on such day, in each case on the
principal national securities exchange on which the Common Stock is listed or
admitted to trading, (b) if the Common Stock is not listed or admitted to
trading on any national securities exchange, the average of the closing bid and
asked prices in the over-the-counter market on such day as reported by Nasdaq or
any comparable system or, if not so reported, as reported by any New York Stock
Exchange member firm selected by the Company for such purpose or (c) if no such
quotations are available on such day, the fair market value of one share of
Common Stock on such day as determined in good faith by the Board of Directors
of the Company.
"Common Stock" shall have the meaning set forth in Section
3.02 hereof.
"Common Stock Reorganization" shall have the meaning set forth
in Section 3.02 hereof.
"Company" shall have the meaning set forth in the first
paragraph of this Warrant.
"Demand Registration" shall have the meaning set forth in
Section 6.01(a).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any similar or successor Federal statute, and the rules and
regulations of the Securities and Exchange Commission (or its successor)
thereunder, all as the same shall be in effect at the time.
"Exercise Price" means $2.30, the Closing Price of a share of
Common Stock on the Trading Day immediately preceding the issuance of this
Warrant.
"Expiration Time" means 5:00 p.m. New York Time on January
19, 2004.
"Holder" shall have the meaning set forth in the first
paragraph of this Warrant and "Holders" shall include any and all successors and
assigns of the initial Holder with respect to this Warrant.
"Market Price" on any day means the average of the daily
Closing Prices of a share of Common Stock for the 20 consecutive Trading Days
ending on the most recent Trading Day for which a closing price is available and
if the shares of Common Stock are not then publicly traded Market Price shall be
determined in good faith by the Board of Directors of the Company.
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"NASD" means The National Association of Securities
Dealers, Inc.
"Nasdaq" means The National Association of Securities
Dealers, Inc. Automated Quotation System.
"New York Time" means Eastern Daylight Time or Eastern
Standard Time, whichever is in effect on the relevant date.
"Permitted Interruption" shall have the meaning set forth
in Section 6.01(e).
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A), as amended or supplemented
by any prospectus supplement, relating to the terms of the offering of any
portion of the Registra ble Securities covered by such Registration Statement
and all other amendments and supplements to the Registration Statement or
prospectus, as the case may be, including post-effective amendments, and all
material incorporated or deemed to be incorporated by reference in such
prospectus.
"Registrable Securities" means the Shares issuable upon
exercise of this Warrant.
"Registration Statement" means any registration statement of
the Company that covers any of the Registrable Securities pursuant to the
provisions of this Warrant, including the Prospectus, amendments and supplements
to such registration statement or the Prospectus, as the case may be, including
post-effective amendments, all exhibits, and all material incorporated or deemed
to be incorporated by reference in such registration statement.
"Securities Act" means the Securities Act of 1933, as amended,
and any similar or successor Federal statute, and the rules and regulations of
the Securities and Exchange Commission (or its successor) thereunder, all as the
same shall be in effect at the time.
"Shares" shall have the meaning set forth in the first
paragraph of this Warrant, subject to adjustment pursuant to Article III.
"Trading Day" means (a) if the Common Stock is listed or
admitted to trading on a national securities exchange, a day on which the
principal national securities exchange on which the Common Stock is listed or
admitted to trading is open for business or (b) if the
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Common Stock is not so listed or admitted to trading, a day on which any New
York Stock Exchange member firm is open for business.
"Warrant" and "Warrants" shall mean this warrant and any
warrants issued upon the partial exercise of this warrant.
ARTICLE V
REDEMPTION AND CANCELLATION OF WARRANTS
5.01 Redemption of Warrants. The Warrants are not redeemable
by the Company and the Company has no right to purchase or otherwise acquire the
Warrants.
5.02 Cancellation of Warrants. The Company shall cancel any
Warrant surrendered for transfer, exchange or exercise.
ARTICLE VI
REGISTRATION RIGHTS
6.01 Demand Registration. (a) Subject to the provisions of
Section 6.01(b) hereof and during the period commencing on the day immediately
following the date first written above and expiring at the Expiration Time, the
Holder may make a written request to the Company for registration under and in
accordance with the provisions of the Securities Act of all, and not less than
all, of the Registrable Securities held by the Holder(a "Demand Registration").
Except in the event that the Company is advised by counsel that the filing of a
Registration Statement would not be permitted under the Securities Act due to
the Company's not having current audited financial statements, in which event
within five (5) business days after completion of such audited financial
statements the Company shall file such Registration Statement, the Company will
file as soon as practicable, and in any event within sixty (60) days of receipt
of such request, and to use its best efforts to cause to become effective as
soon as practicable, the Registration Statement, subject to the terms of this
Warrant.
(b) Number of Registrations. The Holder is entitled to one
Demand Registration. The Holder agrees that if the Company determines that there
are material developments which the Company determines require the filing of a
post-effective amendment to the Registration Statement, then the Holder agrees
to refrain from selling any Registrable Securities until the post-effective
amendment is declared effective. The Company agrees to file and attempt to have
declared effective such post-effective amendment as soon as
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possible. The Company shall not be deemed to have effected a Demand Registration
unless and until such Demand Registration is declared effective.
(c) Reduction Size of Demand Registrations. If the managing
underwriter or underwriters of a Demand Registration advise the Company in
writing that in its or their opinion the principal amount and/or number of
Registrable Securities proposed to be sold in such Demand Registration exceeds
the principal amount and/or number of Registrable Securities which can be sold
in such offering without an adverse effect on such offering, the Company will
include in such registration only the number of Registrable Securities which, in
the opinion of such underwriter or underwriters, can be sold. The Holder shall
be entitled to an additional Demand Registration hereunder (with all expenses of
registration relating to such additional Demand Registration to be borne by the
Company) on the same terms and conditions as would have applied had such earlier
Demand Registration not been made in the event that all Registrable Securities
requested to be included in the Demand Registration are not so included.
(d) Selection of Underwriters and Counsel. If any Demand
Registration is an underwritten offering with respect to any issue of
Registrable Securities, the Holder will select the investment banker or bankers
and manager or managers to administer the offering and counsel to the Holder;
provided, that such investment bankers and managers be of nationally recognized
standing and reasonably satisfactory to the Company. The Holder shall pay all
underwriting discounts and commissions of such investment banker or bankers and
manager or managers.
(e) Notwithstanding the provisions of Section 6.01(a) hereof,
the Company shall have the right at any time on one occasion in respect of any
Registration Statement to delay the filing of such Registration Statement or to
withdraw such Registration Statement (or notify the Holder not to sell such
Registrable Securities pursuant to such Registration Statement) after the filing
and the effective date thereof (each such delay, withdrawal or notice is
referred to herein as a "Permitted Interruption") for a reasonable period of
time (not to exceed 45 days in any 12-month period in any such case, which may
not thereafter be extended) if, at such time: (i) the Holder is in possession of
material non-public information in respect of the Company; (ii) the Company is
engaged in any active program for repurchase of shares of Common Stock and
furnishes a certificate to that effect to the Holder; or (iii) the Board of
Directors of the Company shall determine in good faith that such offering will
interfere with a pending or contemplated financing, merger, acquisition, sale of
assets, recapitalization or other similar corporate action of the Company and
the Company furnishes a certificate to that effect to the Holder. After such
Permitted
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Interruption, the Company shall use its best efforts to restore such
Registration or to effect such Registration (as the case may be) within 30 days
without further request from the Holder, unless such Demand Registration request
has been withdrawn by written notice of the Holder.
6.02 Piggyback Registration Rights.
(a) If the Company at any time or from time to time subsequent
to the date of this Warrant proposes to register any securities under the
Securities Act either for its own account or the account of any selling security
holders (other than pursuant to (i) a registration statement on Forms S-4 or S-8
or any successor or similar forms, (ii) a registration relating solely to a
Commission Rule 145 offering, or (iii) a registration on any form that does not
permit secondary sales), it will give written notice to each of the Holders of
its intention at least ten (10) days in advance of the filing of any
registration statement with respect thereto. Upon the written request of any of
the Holders given within five (5) days after receipt of such notice, the Company
will use its best efforts to include in such registration, and in any
underwriting involved therein, all the Registrable Securities included in such
request.
(b) Upon making a request pursuant to this Section 6.02, the
Holders shall specify the number of shares of Registrable Securities to be
registered on their behalf and the intended method of disposition thereof. The
Company may require the Holders to furnish to the Company such information in
writing regarding themselves and the distribution of Registrable Securities as
the Company may from time to time reasonably request in writing in order to
comply with the Securities Act. The Holders agree to notify the Company as
promptly as practicable of any inaccuracy or change in information they have
previously furnished to the Company.
ARTICLE VII
MISCELLANEOUS
7.01 Notices. All notices, requests and other communications
provided for herein shall be in writing, and shall be deemed to have been made
or given when delivered or mailed, first class, postage prepaid, or sent by
telex or other telegraphic communications equipment. Such notices and
communications shall be addressed:
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(a) if to the Company, to
Paradigm Medical Industries, Inc.
1127 West 0000 Xxxxx, Xxxxx X
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Chief Executive Officer; or
(b) if to the Holder, to
Win Capital Corp.
00 Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
7.02 Waivers; Amendments. No failure or delay of the Holder in
exercising any right, power or privilege, hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof, or any abandonment or
discontinuance of steps to enforce such a right, power or privilege, preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies of the Holder are cumulative and not
exclusive of any rights or remedies which it would otherwise have. The
provisions of this Warrant may be amended, modified or waived if, but only if,
such amendment, modification or waiver is in writing and is signed by the
Company and a majority of the Holders; provided that no amendment, modification
or waiver may change the exercise price of the Warrant or the number of Shares
in which this Warrant is exercisable (including without limitation any
adjustments or any provisions with respect to adjustments, the expiration of or
the manner of exercising the Warrants) without the consent in writing of all of
the Holders.
7.03 Governing Law. This Warrant shall be construed in
accordance with and governed by the laws of the State of New York.
7.04 Survival of Agreements; Representations and Warranties,
etc. All warranties, representations and covenants made by the Company herein or
in any certificate or other instrument delivered by or on behalf of it in
connection herewith shall be considered to have been relied upon by the Holders
and shall survive the issuance and delivery of the Warrants and the Shares, and
shall continue in full force and effect so long as this Warrant is outstanding.
All statements in any such certificate or other instrument shall constitute
representations and warranties hereunder.
7.05 Covenants To Bind Successor and Assigns. All the
covenants, stipulations, promises and agreements in this Warrant
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contained by or on behalf of the Company shall bind its successors
and assigns, whether or not so expressed.
7.06 Severability. In case any one or more of the provisions
contained in this Warrant shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected or
impaired in such jurisdiction and shall not invalidate or render illegal or une
nforceable such provision in any other jurisdiction.
7.07 Headings. The headings used herein are for convenience of
reference only and shall not be deemed to be a part of this Warrant.
7.08 No Rights as Stockholder. This Warrant shall not entitle
the Holder to any rights as a stockholder of the Company.
7.09 Pronouns. The pronouns "it" and "its" herein shall be
deemed to mean "he" and "his" or "she" and "hers", as the context requires.
IN WITNESS WHEREOF, Paradigm Medical Industries, Inc. has
caused this Warrant to be executed in its corporate name by one of its officers
thereunto duly authorized as of the day and year first above written.
PARADIGM MEDICAL INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: CEO
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