EXHIBIT 4.03
ISONICS CORPORATION
AND
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
AND
PRYOR, McCLENDON, COUNTS & CO., INC.
AND
NATIONAL SECURITIES CORPORATION
_______________________
WARRANT AGREEMENT
Dated as of __________ __, 1996
THIS WARRANT AGREEMENT (the "Agreement"), dated this ___ day of
____________ 1996, by and among ISONICS CORPORATION, a California corporation
(the "Company"), CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent
(the "Warrant Agent"), PRYOR, McCLENDON, COUNTS & CO., INC. ("Xxxxx XxXxxxxxx")
and NATIONAL SECURITIES CORPORATION ("National"), its successors and assigns
(Xxxxx XxXxxxxxx and National are collectively referred to herein as the
"Representatives").
W I T N E S S E T H:
WHEREAS, in connection with (i) the Company's underwritten initial
public offering pursuant to a registration statement on Form SB-2 of
____________ shares of Common Stock (as defined in Section 1), and ____________
redeemable common stock purchase warrants (the "Warrants"), each warrant
entitling the holder thereof to purchase one additional share of Common Stock;
(ii) the over-allotment option to purchase up to an additional ___________
shares of Common Stock and ____________ Warrants (the "Over-allotment Option");
and (iii) the sale to the Representatives of warrants (the "Representatives'
Warrants") to purchase up to ___________ shares of Common Stock and/or
____________ Warrants, the Company will issue up to _____________ Warrants
(subject to adjustment as provided herein and in the Representatives' Warrant
Agreement); and
WHEREAS, the Company desires to provide for the issuance of
certificates representing the Warrants; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange and redemption of the Warrants, the
issuance of certificates representing the Warrants, the exercise of the Warrants
and the rights of the holders thereof.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth and for the purpose of defining the terms and
provisions of the Warrants and the certificates representing the Warrants and
the respective rights and obligations thereunder of the Company, the
Representatives, the holders of certificates representing the Warrants and the
Warrant Agent, the parties hereto agree as follows:
1. Definitions. As used herein, the following terms shall have the
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following meanings, unless the context shall otherwise require:
(a) "Act" shall mean the Securities Act of 1933, as amended.
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(a) "Common Stock" shall mean the authorized stock of the
Company of any class, whether now or hereafter authorized, which has the right
to participate in the voting and in the distribution of earnings and assets of
the Company without limit as to amount or percentage which at the date hereof
consists of shares of ___________ Common Stock, no par value per share.
(a) "Commission" shall mean the Securities and Exchange
Commission.
(a) "Corporate Office" shall mean the office of the Warrant
Agent (or its successor) at which at any particular time its business
in_____________, shall be administered, which office is located on the date
hereof c/o Continental Stock Transfer & Trust Company, ______________.
(a) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(a) "Exercise Date" shall mean, subject to the provisions of
Section 5(b) hereof, as to any Warrant, the date on which the Warrant Agent
shall have received both (i) the Warrant Certificate representing such Warrant,
with the exercise form thereon duly executed by the Registered Holder hereof or
his attorney duly authorized in writing, and (ii) payment in cash or by official
bank or certified check made payable to the Warrant Agent for the account of the
Company, of the amount in lawful money of the United States of America equal to
the applicable Purchase Price (as hereinafter defined) in good funds.
(a) "Exercise Price" shall mean, subject to modification and
adjustment as provided in Section 8, $______ per share and further subject to
the Company's right, in its sole discretion, to decrease the Exercise Price for
a period of not less than 30 days on not less than 30 days' prior written notice
to the Registered Holders and National.
(a) "Initial Warrant Exercise Date" shall mean the Effective
Date of the Prospectus.
(a) "Initial Warrant Redemption Date" shall mean the Effective
Date of the Prospectus.
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(a) "Market Price" shall mean the last reported sale price, or,
in case no such reported sale takes place on such day, the average of the last
reported sales prices for the last three (3) trading days, in either case as
officially reported by the principal securities exchange on which the Common
Stock is listed or admitted to trading or by the Nasdaq SmallCap Market, or, if
the Common Stock is not listed or admitted to trading on any national securities
exchange or quoted by the Nasdaq, the average closing bid price as furnished by
the Nasdaq or similar organization if Nasdaq is no longer reporting such
information, or if the Common Stock is not quoted on Nasdaq, as determined in
good faith (using customary valuation methods) by resolution of the members of
the Board of Directors of the Company, based on the best information available
to it.
(a) "NASD" shall mean the National Association of Securities
Dealers, Inc.
(a) "Nasdaq" shall mean the Nasdaq SmallCap Market.
(a) "Redemption Date" shall mean the date (which may not occur
before the Initial Warrant Redemption Date) fixed for the redemption of the
Warrants in accordance with the terms hereof.
(a) "Redemption Price" shall mean the price at which the Company
may, at its option, redeem the Warrants, in accordance with the terms hereof,
which price shall be $0.05 per Warrant, subject to adjustment from time to time
pursuant to the provisions of Section 9 hereof.
(a) "Registered Holder" shall mean the person in whose name the
Warrant Certificate representing the Warrant(s) in question shall be registered
on the books maintained by the Warrant Agent pursuant to Section 6.
(a) "Representative's Warrant Agreement" shall mean the
agreement dated as of ___________ __, 1996 between the Company and the
Representatives relating to and governing the terms and provisions of the
Representatives' Warrants.
(a) "Transfer Agent" shall mean Continental Stock Transfer &
Trust Company, or its authorized successor.
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(a) "Underwriting Agreement" shall mean the underwriting
agreement dated as of ____________ __, 1996 between the Company and the several
underwriters listed therein relating to the Offering.
(a) "Warrant Certificate" shall mean a certificate representing
one or more of the Warrants substantially in the form annexed hereto as Exhibit
A.
(a) "Warrant Expiration Date" shall mean, unless the Warrants
are redeemed as provided in Section 9 hereof prior to such date, 5:00 p.m. (New
York time), on ___________ [5 years from the date of the Prospectus], or the
Redemption Date as defined herein, whichever date is earlier; provided that if
such date shall in the State of New York be a holiday or a day on which banks
located in the State of New York are authorized to close, then 5:00 p.m. (New
York time) on the next following day which, in the State of New York, is not a
day on which such banks are authorized to close. Upon five business days' prior
written notice to the Registered Holders, the Company shall have the right to
extend the Warrant Expiration Date.
1. Warrants and Issuance of Warrant Certificates.
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(a) Each Warrant shall initially entitle the Registered Holder
of the Warrant Certificate representing such Warrant to purchase at the Exercise
Price therefor from the Initial Warrant Exercise Date until the Warrant
Expiration Date one share of Common Stock upon the exercise thereof in
accordance with the terms hereof, subject to modification and adjustment as
provided in Section 8.
(a) Upon execution of this Agreement, Warrant Certificates
representing the number of Warrants sold pursuant to the Underwriting Agreement
(subject to modification and adjustment as provided in Section 8) shall be
executed by the Company and delivered to the Warrant Agent.
(a) Upon exercise of the Representatives' Warrants as provided
therein, Warrant Certificates representing all or a portion of Warrants to
purchase up to an aggregate of shares of Common Stock (subject to modification
and adjustment as provided in Section 8 hereof and in the Representative's
Warrant Agreement), shall be countersigned, issued and delivered by the Warrant
Agent upon written order of the Company signed by its Chairman of the Board,
Chief Executive Officer, President or a Vice President and by its Chief
Financial Officer, Treasurer or an Assistant Treasurer or its Secretary or an
Assistant Secretary.
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(a) From time to time, up to the Warrant Expiration Date, the
Warrant Agent shall countersign and deliver Warrant Certificates in required
denominations of one or whole number multiples thereof to the person entitled
thereto in connection with any transfer or exchange permitted under this
Agreement. Except as provided herein, no Warrant Certificates shall be issued
except (i) Warrant Certificates initially issued hereunder and those issued on
or after the Initial Warrant Exercise Date, upon the exercise of fewer than all
Warrants held by the exercising Registered Holder, (ii) Warrant Certificates
issued upon any transfer or exchange of Warrants, (iii) Warrant Certificates
issued in replacement of lost, stolen, destroyed or mutilated Warrant
Certificates pursuant to Section 7, (iv) Warrant Certificates issued pursuant to
the Representative's Warrant Agreement, and (v) at the option of the Company,
Warrant Certificates in such form as may be approved by its Board of Directors,
to reflect any adjustment or change in the Exercise Price, the number of shares
of Common Stock purchasable upon exercise of the Warrants or the Redemption
Price therefor made pursuant to Section 8 hereof.
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1. Form and Execution of Warrant Certificates.
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(a) The Warrant Certificates shall be substantially in the form
annexed hereto as Exhibit A (the provisions of which are hereby incorporated
herein) and may have such letters, numbers or other marks of identification or
designation and such legends, summaries or endorsements printed, lithographed or
engraved thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Warrants may be listed, or to
conform to usage. The Warrant Certificates shall be dated the date of issuance
thereof (whether upon initial issuance, transfer, exchange or in lieu of
mutilated, lost, stolen or destroyed Warrant Certificates) and issued in
registered form. Warrants shall be numbered serially with the letter "W" on the
Warrants.
(a) Warrant Certificates shall be executed on behalf of the
Company by its Chairman of the Board, Chief Executive Officer, President or any
Vice President and by its Chief Financial Officer, Treasurer or an Assistant
Treasurer or its Secretary or an Assistant Secretary, by manual signatures or by
facsimile signatures printed thereon, and shall have imprinted thereon a
facsimile of the Company's seal. Warrant Certificates shall be manually
countersigned by the Warrant Agent and shall not be valid for any purpose unless
so countersigned. In any case any officer of the Company who shall have signed
any of the Warrant Certificates shall cease to be such officer of the Company
after the date of signature but before the date of issuance of the Warrant
Certificates or before countersignature by the Warrant Agent and issue and
delivery thereof, such Warrant Certificates, nevertheless, may be countersigned
by the Warrant Agent, issued and delivered with the same force and effect as
though the person who signed such Warrant Certificates had not ceased to be such
officer of the Company. After countersignature by the Warrant Agent, Warrant
Certificates shall be delivered by the Warrant Agent to the Registered Holder
promptly and without further action by the Company, except as otherwise provided
by Section 4(a) hereof.
1. Exercise.
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(a) Warrants in denominations of one or whole number multiples
thereof may be exercised by the Registered Holder
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thereof commencing at any time on or after the Initial Warrant Exercise Date,
but not after the Warrant Expiration Date, upon the terms and subject to the
conditions set forth herein and in the applicable Warrant Certificate. Warrants
may be exercised by their holders or redeemed by the Company as follows:
Exercise of Warrants shall be accomplished upon surrender of the Warrant
Certificate evidencing such Warrants, with the Form of Election to Purchase on
the reverse side thereof duly filled in and executed, to the Warrant Agent at
its business office, together with payment to the Warrant Agent of the Exercise
Price (as of the date of such surrender) of the Warrants then being exercised
and an amount equal to any applicable transfer tax and, if requested by the
Company, any other taxes or governmental charges which the Company may be
required by law to collect in respect of such exercise. Payment of the Exercise
Price and other amounts may be made by wire transfer of good funds, or by
certified or bank cashier's check, payable in lawful money of the United States
of America to the order of the Warrant Agent, who shall in turn make prompt
payment to the Company. No adjustment shall be made for any cash dividends,
whether paid or declared, on any securities issuable upon exercise of a Warrant.
A Warrant shall be deemed to have been exercised immediately prior to the close
of business on the Exercise Date and upon exercise thereof, the person entitled
to receive the securities deliverable upon such exercise shall be treated for
all purposes as the holder of the securities issued thereby as of the close of
business on the Exercise Date. If Warrants in denominations other than whole
number multiples thereof shall be exercised at one time by the same Registered
Holder, the number of full shares of Common Stock which shall be issuable upon
exercise thereof shall be computed on the basis of the aggregate number of full
shares of Common Stock issuable upon such exercise. As soon as practicable on or
after the Exercise Date and in any event within five business days after such
date, if one or more Warrants have been exercised in the manner described in
this subsection (a), the Warrant Agent on behalf of the Company shall cause to
be issued to the person or persons entitled to receive the same a Common Stock
certificate or certificates for the shares of Common Stock deliverable upon such
exercise, and the Warrant Agent shall deliver the same to the person or persons
entitled thereto. Upon the exercise of any one or more Warrants, the Warrant
Agent shall promptly notify the Company in writing of such fact and of the
number of securities delivered upon such exercise and, subject to subsection (b)
below, shall cause payment in cash or by check made payable to the order of the
Company, equal to the Exercise Price of such Warrants, to
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be deposited promptly in the Company's bank account or paid directly to the
Company, as specified by the Company.
(a) The Company shall engage the Representatives as Warrant
solicitation agents, and, at any time upon the valid exercise of any Warrants
after one year from the date hereof, excluding any Warrant (i) exercise at a
time when the Exercise Price exceeds the Market Price, (ii) held in a
discretionary account or (iii) exercised in an unsolicited transaction, the
Company shall instruct the Warrant Agent to, and the Warrant Agent shall, on a
daily basis, within two business days after such exercise, notify the
Representatives of the exercise of any such Warrants and shall, on a weekly
basis (subject to collection of funds constituting the tendered Exercise Price,
but in no event later than five business days after the last day of the calendar
week in which such funds were tendered), remit to the Representatives an amount
equal to five percent (5%) of the Exercise Price of such Warrants then being
exercised unless the Representatives shall have notified the Warrant Agent that
the payment of such amount with respect to such Warrant is violative of the
General Rules and Regulations promulgated under the Exchange Act, or the rules
and regulations of the Nasdaq or applicable state securities or "blue sky" laws,
or the Warrants are those underlying the Representatives' Warrants in which
event, the Warrant Agent shall have to pay such amount to the Company; provided,
that, the Warrant Agent shall not be obligated to pay any amounts pursuant to
this Section 4(b) during any week that such amounts payable are less than $1,000
and the Warrant Agent's obligation to make such payments shall be suspended
until the amount payable aggregates $1,000, and provided further, that, in any
event, any such payment (regardless of amount) shall be made not less frequently
than monthly. Notwithstanding the foregoing, the Representatives shall be
entitled to receive the commission contemplated by this Section 4(b) as Warrant
solicitation agent only if: (i) the Representatives have provided actual
services in connection with the solicitation of the exercise of a Warrant by a
Registered Holder and (ii) the Registered Holder exercising a Warrant
affirmatively designates in writing on the exercise form on the reverse side of
the Warrant Certificate that the exercise of such Registered Holder's Warrant
was solicited by the Representatives.
(a) The Company shall not be required to issue fractional shares
on the exercise of Warrants. Warrants may only be exercised in such multiples as
are required to permit the issuance by the Company of one or more whole shares.
If one or
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more Warrants shall be presented for exercise in full at the same time by the
same Registered Holder, the number of whole shares which shall be issuable upon
such exercise thereof shall be computed on the basis of the aggregate number of
shares purchasable on exercise of the Warrants presented. If any fraction of a
share would, except for the provisions provided herein, be issuable on the
exercise of any Warrant (or specified portion thereof), the Company shall pay an
amount in cash equal to such fraction multiplied by the then current Market
Price of a share of Common Stock, determined as follows:
(1) If the Common Stock is listed, or admitted to unlisted
trading privileges on a national securities exchange, or is traded on Nasdaq,
the current market value of a share of Common Stock shall be the closing sale
price of the Common Stock at the end of the regular trading session on the last
business day prior to the date of exercise of the Warrants on whichever of such
exchanges or Nasdaq which had the highest average daily trading volume for the
Common Stock on such day; or
(1) If the Common Stock is not listed or admitted to unlisted
trading privileges on any national securities exchange, or listed, quoted or
reported for trading on Nasdaq, but is traded in the over-the-counter market,
the current market value of a share of Common Stock shall be the average of the
last reported bid and asked prices of the Common Stock reported by the National
Quotation Bureau, Inc. on the last business day prior to the date of exercise of
the Warrants; or
(1) If the Common Stock is not listed, admitted to unlisted
trading privileges on any national securities exchange, or listed, quoted or
reported for trading on Nasdaq, and bid and asked prices of the Common Stock are
not reported by the National Quotation Bureau, Inc., the current market value of
a share of Common Stock shall be an amount, not less than the book value thereof
as of the end of the most recently completed fiscal quarter of the Company
ending prior to the date of exercise, determined by the members of the Board of
Directors of the Company exercising good faith and using customary valuation
methods.
1. Reservation of Shares; Listing; Payment of Taxes; etc.
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(a) The Company covenants that it will at all times reserve and
keep available out of its authorized Common Stock, solely for the purpose of
issue upon exercise of Warrants, such number of shares of Common Stock as shall
then be issuable
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upon the exercise of all outstanding Warrants. The Company covenants that all
shares of Common Stock which shall be issuable upon exercise of the Warrants
shall, at the time of delivery thereof, be duly and validly issued and fully
paid and nonassessable and free from all preemptive or similar rights, taxes,
liens and charges with respect to the issue thereof, and that upon issuance such
shares shall be listed on each securities exchange, if any, on which the other
shares of outstanding Common Stock of the Company are then listed.
(a) The Company covenants that if any securities to be reserved
for the purpose of exercise of Warrants hereunder require registration with, or
approval of, any governmental authority under any federal securities law before
such securities may be validly issued or delivered upon such exercise, then the
Company will file a registration statement under the federal securities laws or
a post-effective amendment, use its best efforts to cause the same to become
effective and to keep such registration statement current on or after the
Initial Warrant Exercise Date and while any of the Warrants are outstanding and
deliver a prospectus which complies with Section 10(a)(3) of the Act, to the
Registered Holder exercising the Warrant (except, if in the opinion of counsel
to the Company, such registration is not required under the federal securities
law or if the Company receives a letter from the staff of the Commission stating
that it would not take any enforcement action if such registration is not
effected; provided, however, that (i) if at the time of exercise of any Warrants
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the Company does not have in place an effective registration statement or is
otherwise, in the good faith determination of the Board of Directors of the
Company, precluded by applicable laws from issuing the underlying shares of
Common Stock, the Company may, in lieu of issuance of the shares of Common
Stock, elect to redeem the Warrants duly surrendered for exercise for a price
per Warrant equal to the difference between the Market Price of the securities
for which such Warrant is exercisable on the date of such submission and the
Exercise Price of such Warrants, and in the event of such redemption, the
Company will pay to the holder of such Warrants the above described redemption
price in cash within 10 business days after receipt of notice from the Warrant
Agent that such Warrants have been submitted for exercise, and (ii) if the
Market Price of the Common Stock is less than the Exercise Price, then the
Company need not take such actions to file a registration statement (or a
post effective amendment to a registration statement) with respect to the
issuance of Common Stock upon exercise of the Warrants until such time as the
Company has been subject to the requirements of Section 12 or 15(d) of the
Securities Exchange Act of 1934, as amended, for a period of at least twelve
calendar months immediately preceding the filing of the registration statement).
The Company will use its best efforts to obtain appropriate approvals or
registrations under state "blue sky" securities laws with respect to any such
securities. However, Warrants may not be exercised by,
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or shares of Common Stock issued to, any Registered Holder in any state in which
such exercise would be unlawful.
(a) The Company shall pay all documentary, stamp or similar
taxes and other governmental charges that may be imposed with respect to the
issuance of Warrants, or the issuance or delivery of any shares of Common Stock
upon exercise of the Warrants; provided, however, that if shares of Common Stock
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are to be delivered in a name other than the name of the Registered Holder of
the Warrant Certificate representing any Warrant being exercised, then no such
delivery shall be made unless the person requesting the same has paid to the
Warrant Agent the amount of transfer taxes or charges incident thereto, if any;
provided, however, that the Company shall not be required (i) to pay any tax
which may be payable in respect of any transfer involved in the transfer and
delivery of Warrant Certificates or (ii) to issue or deliver any certificate for
shares of Common Stock or other securities upon the exercise of any Warrant
Certificate until any such tax shall have been paid, all such tax being payable
by the holder of such Warrant Certificate at the time of surrender.
(a) The Warrant Agent is hereby irrevocably authorized as the
Transfer Agent to requisition from time to time certificates representing shares
of Common Stock or other securities required to be issued upon exercise of the
Warrants, and the Company will comply with all such requisitions.
1. Exchange and Registration of Transfer.
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(a) Warrant Certificates may be exchanged for other Warrant
Certificates representing an equal aggregate number of Warrants of the same
class or may be transferred in whole or in part. Warrant Certificates to be
exchanged shall be surrendered to the Warrant Agent at its Corporate Office,
and, promptly following satisfaction of the terms and provisions hereof, the
Company shall execute and the Warrant Agent shall countersign, issue and deliver
in exchange therefor the Warrant Certificate or Certificates which the
Registered Holder making the exchange shall be entitled to receive.
(a) The Warrant Agent shall keep, at its office, books in which,
subject to such reasonable regulations as it may prescribe, it shall register
Warrant Certificates and the transfer thereof in accordance with customary
practice. Upon due presentment for registration of transfer of any Warrant
Certificate at such office, the Company shall execute and the Warrant Agent
shall issue and deliver to the transferee or
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transferees a new Warrant Certificate or Certificates representing an equal
aggregate number of Warrants of the same class.
(a) With respect to all Warrant Certificates presented for
registration of transfer, or for exchange or exercise, the subscription or
exercise form, as the case may be, on the reverse thereof shall be duly endorsed
or be accompanied by a written instrument or instruments of transfer and
subscription, in form satisfactory to the Company and the Warrant Agent, duly
executed by the Registered Holder thereof or his attorney-in-fact duly
authorized in writing.
(a) A service charge may be imposed on the Registered Holder by
the Warrant Agent for any exchange or registration of transfer of Warrant
Certificates. In addition, the Company may require payment by such holder of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith.
(a) All Warrant Certificates surrendered for exercise or for
exchange in case of mutilated Warrant Certificates shall be promptly canceled by
the Warrant Agent and thereafter retained by the Warrant Agent until termination
of this Agreement.
(a) Prior to due presentment for registration of transfer
thereof, the Company and the Warrant Agent may deem and treat the Registered
Holder of any Warrant Certificate as the absolute owner thereof and of each
Warrant represented thereby (notwithstanding any notations of ownership or
writing thereon made by anyone other than a duly authorized officer of the
Company or the Warrant Agent) for all purposes and shall not be affected by any
notice to the contrary.
1. Loss or Mutilation. Upon receipt by the Company and the Warrant
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Agent of evidence satisfactory to them of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and (in the case of loss,
theft or destruction) of indemnity satisfactory to them, and (in case of
mutilation) upon surrender and cancellation thereof, the Company shall execute
and the Warrant Agent shall (in the absence of notice to the Company and/or the
Warrant Agent that a new Warrant Certificate has been acquired by a bona fide
purchaser) countersign and deliver to the Registered Holder in lieu thereof a
new Warrant Certificate of like tenor representing an equal aggregate number of
Warrants. Applicants for a substitute Warrant Certificate shall also comply with
such other reasonable regulations and pay such other reasonable charges as the
Warrant Agent may prescribe.
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1. Adjustments of Number and Kind of Shares Purchasable and Exercise
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Price. The number and kind of securities or other property purchasable upon
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exercise of a Warrant shall be subject to adjustment from time to time upon the
occurrence, after the date hereof, of any of the following events:
(a) Dividends, Stock Splits, Reverse Splits, Etc. In case the
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Company shall (i) pay a dividend in, or make a distribution of, shares of Common
Stock or of capital stock convertible into Common Stock on its outstanding
Common Stock, (ii) subdivide its outstanding shares of Common Stock into a
greater number of such shares or (iii) combine its outstanding shares of Common
Stock into a smaller number of such shares, the total number of shares of Common
Stock purchasable upon the exercise of each Warrant outstanding immediately
prior thereto shall be adjusted so that the Registered Holder of any Warrant
Certificate thereafter surrendered for exercise shall be entitled to receive, at
the same aggregate Exercise Price, the number of shares of Common Stock which
such holder would have owned or have been entitled to receive immediately
following the happening of any of the events described above had such Warrant
been exercised in full immediately prior to the happening of such event. Any
adjustment made pursuant to this subsection shall, in the case of a stock
dividend or distribution, become effective as of the record date therefor and,
in the case of a subdivision or combination, be made as of the effective date
thereof. If, as a result of an adjustment made pursuant to this subsection, the
Registered Holder of any Warrant Certificate thereafter surrendered for exercise
shall become entitled to receive shares of two or more classes of capital stock
of the Company, the Board of Directors of the Company (whose determination shall
be conclusive and shall be evidenced by a Board resolution filed with the
Warrant Agent) shall determine the allocation of the adjusted Exercise Price
between or among shares of such classes of capital stock.
(a) No Change in Aggregate Exercise Price. In the event of any
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adjustment of the total number of shares of Common Stock purchasable upon the
exercise of Warrants pursuant to subsection (a) above, the aggregate Exercise
Price of each such Warrant shall remain unchanged, but the number of shares of
capital stock obtainable on exercise of each such Warrant shall be adjusted as
provided in subsection (a) above.
(a) Reorganization or Reclassification. In the event of a
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capital reorganization or a reclassification of the Common Stock (except as
provided in subsection (a) above or subsection (e) below), any Registered Holder
of a Warrant, upon exercise of such Warrant, shall be entitled to receive, in
substitution for the Common Stock to which he would have become entitled upon
exercise immediately prior to such reorganization or reclassification, the
shares (of any class or classes) or other securities or property of the Company
(or cash) that he would have been entitled to receive at the same aggregate
Exercise Price upon such reorganization or reclassification if such Warrant had
been exercised immediately prior thereto; and in any such case, appropriate
provision (as determined by the Board of Directors of the Company, whose
determination shall be conclusive and
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shall be evidenced by a certified Board resolution filed with the Warrant Agent)
shall be made for the application of this Section 8 with respect to the rights
and interests thereafter of the Registered Holders of all then outstanding
Warrants (including but not limited to the allocation of the Exercise Price
between or among shares of classes of capital stock), to the end that this
Section 8 (including the adjustments of the number of shares of Common Stock or
other securities purchasable and the Exercise Price thereof) shall thereafter be
reflected, as nearly as reasonably practicable, in all subsequent exercises of
the Warrants for any shares or securities or other property (or cash) thereafter
deliverable upon the exercise of the Warrants.
(a) Certificate of Adjustment. Whenever the number of shares of
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Common Stock or other securities purchasable upon exercise of a Warrant is
adjusted as provided in this Section 8, the Company will promptly file with the
Warrant Agent a certificate signed by a Chairman or Co-Chairman of the Board or
the President or a Vice President of the Company and by the Chief Financial
Officer, Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Company setting forth the number and kind of securities or
other property purchasable upon exercise of a Warrant, as so adjusted, stating
that such adjustments in the number or kind of shares or other securities or
property conform to the requirements of this Section 8, and setting forth a
brief statement of the facts accounting for such adjustments. Promptly after
receipt of such certificate, the Company, or the Warrant Agent at the Company's
request, will deliver, by first class, postage prepaid mail, a brief summary
thereof (to be supplied by the Company) to the registered holder's of the
outstanding Warrant Certificates; provided, however, that failure to file or to
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give any notice required under this subsection, or any defect therein, shall not
affect the legality or validity of any such adjustments under this Section 8;
and provided, further, that, where appropriate, such notice may be given in
-------- -------
advance and included as part of the notice required to be given pursuant to
Section 12 hereof.
(a) Merger or Consolidation. In case of any consolidation of the
-----------------------
Company with, or merger of the Company into, another corporation (other than a
consolidation or merger which does not result in any reclassification or change
of the outstanding Common Stock), or in case of any sale or conveyance to
another corporation of the property of the Company as an entirety or
substantially as an entirety, the corporation formed by such consolidation or
merger or the corporation which shall have acquired such assets, as the case may
be, shall execute and deliver to the Warrant Agent a supplemental warrant
agreement provided that the Registered Holder of each Warrant then outstanding
shall have the right thereafter (until the expiration of such Warrant) to
receive, upon exercise of such Warrant, solely the kind and amount of shares of
stock and other securities and property (or cash) receivable upon such
consolidation, merger, sale or transfer by a holder of the number of shares of
Common Stock of the Company for which such Warrant might have been exercised
immediately prior to such consolidation, merger, sale or transfer. Such
supplemental warrant agreement shall provide for adjustments which shall be as
nearly equivalent as may be
14
practicable to the adjustments provided in this Section. The above provision of
this Subsection shall similarly apply to successive consolidations, mergers,
sales or transfers.
(a) Effect of Adjustments on Warrant Certificates. Irrespective
---------------------------------------------
of any adjustments in the number of kind of shares issuable upon exercise of
Warrants, Warrant Certificates theretofore or thereafter issued may continue to
express the same price and number and kind of shares as are stated in the
similar Warrant Certificates initially issuable pursuant to this Warrant
Agreement.
(a) Assistance of Accounting Firm in Making Computations. The
----------------------------------------------------
Company may retain a firm of independent public accountants of recognized
standing, which may be the firm regularly retained by the Company, selected by
the Board of Directors of the Company or the Executive Committee of said Board,
and not disapproved by the Warrant Agent, to make any computation required under
this Section, and a certificate signed by such firm shall, in the absence of
fraud or gross negligence, be conclusive evidence of the correctness of any
computation made under this Section.
(a) "Common Stock". For the purpose of this Section, the term
--------------
"Common Stock" shall mean (i) the class of stock designated as Common Stock in
the Certificate of Incorporation of the Company, as amended, at the date of this
Agreement, or (ii) any other class of stock resulting from successive changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value. In the event
that at any time as a result of an adjustment made pursuant to this Section, the
Registered Holder of any Warrant thereafter surrendered for exercise shall
become entitled to receive any shares of capital stock of the Company other than
shares of Common Stock, thereafter the number of such other shares so receivable
upon exercise of any 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 this Section, and all other provisions
of this Agreement, with respect to the Common Stock, shall apply on like terms
to any such other shares.
1. Redemption.
----------
(a) Commencing on the Initial Warrant Redemption Date, the
Company may, on 30 days' prior written notice, redeem all, but not less than
all, the Warrants at five cents ($0.05) per Warrant, provided, however, that
-------- -------
before any such call for redemption of Warrants can take place, the average
closing sale price for the Common Stock as reported by Nasdaq, if the Common
Stock is then traded on the Small Cap Market (or the average closing sale price,
if the Common Stock is then traded on the Nasdaq National Market or on a
national securities exchange) shall have equalled or exceeded $_____ per share
(200% of the initial public offering price
15
per share of Common Stock) for any twenty (20) consecutive trading days ending
on the day prior to the date on which the notice contemplated by (b) and (c)
below is given (subject to adjustment in the event of any stock splits or other
similar events as provided in Section 8 hereof).
(a) In case the Company shall exercise its right to redeem all
of the Warrants, it shall give or cause to be given notice to the Registered
Holders of the Warrants, by mailing to such Registered Holders a notice of
redemption, first class, postage prepaid, at their last address as shall appear
on the records of the Warrant Agent. Any notice mailed in the manner provide
herein shall be conclusively presumed to have been duly given whether or not the
Registered Holder receives such notice. Not less than five (5) business days
prior to the mailing to the Registered Holders of the Warrants of the notice of
redemption, the Company shall deliver or cause to be delivered to the
Representatives a similar notice telephonically and confirmed in writing, and if
the Representatives are engaged as Warrant solicitation agents, the Company
shall also cause to be delivered to the Representatives a list of the Registered
Holders (including their respective addresses and number of Warrants
beneficially owned) to whom such notice of redemption has been or will be given.
(a) The notice of redemption shall specify (i) the redemption
price, (ii) the Redemption Date, which shall in no event be less than thirty
(30) days after the date of mailing of such notice, (iii) the place where the
Warrant Certificate shall be delivered and the redemption price shall be paid,
(iv) that the Representatives shall receive the commission contemplated by
Section 4(b) hereof, and (v) that the right to exercise the Warrant shall
terminate at 5:00 p.m. (New York time) on the business day immediately preceding
the date fixed for redemption. No failure to mail such notice nor any defect
therein or in the mailing thereof shall affect the validity of the proceedings
for such redemption except as to a holder (a) to whom notice was not mailed or
(b) whose notice was defective. An affidavit of the Warrant Agent or the
Secretary or Assistant Secretary of the Company that notice of redemption has
been mailed shall, in the absence of fraud, be prima facie evidence of the facts
stated therein.
(a) Any right to exercise a Warrant shall terminate at 5:00 p.m.
(New York time) on the business day immediately preceding the Redemption Date.
The redemption price payable to the Registered Holders shall be mailed to such
persons at their addresses of record.
16
(a) If the Representatives act as the Warrant solicitation
agents for the Company, the Company shall indemnify the Representatives and each
person, if any, who controls the Representatives within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act against all loss, claim,
damage, expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which any
of them may become subject under the Act, the Exchange Act or otherwise, arising
from the registration statement or prospectus referred to in Section 5(b) hereof
to the same extent and with the same effect (including the provisions regarding
contribution) as the provisions pursuant to which the Company has agreed to
indemnify the Representatives contained in Section 7 of the Underwriting
Agreement.
(a) Five business days prior to the Redemption Date, the Company
shall furnish to the Representatives, as Warrant solicitation agents, (i) an
opinion of counsel to the Company, dated such date and addressed to the
Representatives, and (ii) a "cold comfort" letter dated such date addressed to
each of the Representatives, signed by the independent public accountants who
have issued a report on the Company's financial statements included in such
registration statement, in each case covering substantially the same matters
with respect to such registration statement (and the prospectus included
therein) and, in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements, as are customarily covered
in opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities.
(a) On and after the date fixed for redemption, the Registered
Holders shall have no rights with respect to the Warrants except to receive the
$.05 per Warrant upon surrender of their Warrant Certificates.
1. Concerning the Warrant Agent.
----------------------------
(a) The Warrant Agent acts hereunder as agent and in a
ministerial capacity for the Company and the Representatives, and its duties
shall be determined solely by the provisions hereof. The Warrant Agent shall
not, by issuing and delivering Warrant Certificates or by any other act
hereunder, be deemed to make any representations as to the validity or value or
authorization of the Warrant Certificates (except its
17
countersignature thereof) or the Warrants represented thereby or of any
securities or other property delivered upon exercise of any Warrant or whether
any stock issued upon exercise of any Warrant is fully paid and nonassessable.
(a) The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of Warrant Certificates to make or cause to be made
any adjustment of the Exercise Price or the Redemption Price provided in this
Agreement, or to determine whether any fact exists which may require any such
adjustments, or with respect to the nature or extent of any such adjustments,
when made, or with respect to the method employed in making the same (except
with respect to the exercise of Warrant Certificates after actual notice of any
adjustment of the Exercise Price). It shall not (i) be liable for any recital or
statement of fact contained herein or for any action taken, suffered or omitted
by it in reliance on any Warrant Certificate or other document or instrument
believed by it in good faith to be genuine and to have been signed or presented
by the proper party or parties (except its countersignature on the Warrant
Certificates and such statements or recitals as describe the Warrant Agent or
action taken or to be taken by it), (ii) be responsible for any failure on the
part of the Company to comply with any of its covenants and obligations
contained in this Agreement or in any Warrant Certificate, or (iii) be liable
for any act or omission in connection with this Agreement except for its own
negligence, bad faith or willful misconduct.
(a) The Warrant Agent may at any time consult with counsel
satisfactory to it (who may be counsel for the Company or for the
Representatives) and shall incur no liability or responsibility for any action
taken, suffered or omitted by it in good faith in accordance with the opinion or
advice of such counsel.
(a) Any notice, statement, instruction, request, direction,
order or demand of the Company shall be sufficiently evidenced by an instrument
signed by the Chairman of the Board of Directors, Chief Executive Officer, Chief
Financial Officer, President or any Vice President (unless other evidence in
respect thereof is herein specifically prescribed). The Warrant Agent shall not
be liable for any action taken, suffered or omitted by it in accordance with
such notice, statement, instruction, request, direction, order or demand
reasonably believed by it to be genuine.
18
(a) The Company agrees to pay the Warrant Agent reasonable
compensation for its services hereunder and to reimburse it for its reasonable
expenses hereunder; the Company further agrees to indemnify the Warrant Agent
and save it harmless from and against any and all losses, expenses and
liabilities, including judgments, costs and counsel fees, for anything done or
omitted by the Warrant Agent in the execution of its duties and powers hereunder
except losses, expenses and liabilities arising as a result of the Warrant
------
Agent's negligence, bad faith or willful conduct.
(a) The Warrant Agent may resign its duties and be discharged
from all further duties and liabilities hereunder (except liabilities resulting
as a result of the Warrant Agent's own gross negligence or willful misconduct),
after giving 30 days' prior written notice to the Company. At least 15 days
prior to the date such resignation is to become effective, the Warrant Agent
shall cause a copy of such notice of resignation to be mailed to the Registered
Holder of each Warrant Certificate at the Company's expense. Upon such
resignation, or any inability of the Warrant Agent to act as such hereunder, the
Company shall appoint in writing a new warrant agent. If the Company shall fail
to make such appointment within a period of 15 days after it has been notified
in writing of such resignation by the resigning Warrant Agent, then the
Registered Holder of any Warrant Certificate may apply to any court of competent
jurisdiction for the appointment of a new warrant agent. Any new warrant agent,
whether appointed by the Company or by such a court, shall be a bank or trust
company having a capital and surplus, as shown by its last published report to
its stockholders, of not less than $10,000,000 or a stock transfer company.
After acceptance in writing of such appointment by the new warrant agent is
received by the Company, such new warrant agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
herein as the Warrant Agent, without any further assurance, conveyance, act or
deed; but if for any reason it shall be necessary or expedient to execute and
deliver any further assurance, conveyance, act or deed, the same shall be done
at the expense of the Company and shall be legally and validly executed and
delivered by the resigning Warrant Agent. Not later than the effective date of
any such appointment the Company shall file notice thereof with the resigning
Warrant Agent and shall forthwith cause a copy of such notice to be mailed to
the Registered Holder of each Warrant Certificate.
Any corporation into which the Warrant Agent or any new warrant agent may
be converted or merged, any
19
corporation resulting from any consolidation to which the Warrant Agent or any
new warrant agent shall be a party, or any corporation succeeding to the
corporate trust business of the Warrant Agent or any new warrant agent shall be
a successor warrant agent under this Agreement without any further act, provided
that such corporation is eligible for appointment as successor to the Warrant
Agent under the provisions of the preceding paragraph. Any such successor
warrant agent shall promptly cause notice of its succession as warrant agent to
be mailed to the Company and to the Registered Holders of each Warrant
Certificate.
(a) The Warrant Agent, its subsidiaries and affiliates, and any
of its or their officers or directors, may buy and hold or sell Warrants or
other securities of the Company and otherwise deal with the Company in the same
manner and to the same extent and with like effect as though it were not Warrant
Agent. Nothing herein shall preclude the Warrant Agent from acting in any other
capacity for the Company or for any other legal entity.
(a) The Warrant Agent shall retain for a period of two years
from the date of exercise any Warrant Certificate received by it upon such
exercise.
(a) The Warrant Agent shall account promptly to the Company with
respect to Warrants exercised and concurrently pay to the Company all moneys
received by the Warrant Agent for the purchase of securities or other property
through the exercise of such Warrants.
1. Modification of Agreement.
-------------------------
The Warrant Agent and the Company may by supplemental agreement make
any changes or corrections in this Agreement (i) that they shall deem
appropriate to cure any ambiguity or to correct any defective or inconsistent
provision or manifest mistake or error herein contained; or (ii) that they may
deem necessary or desirable and which shall not adversely affect the interests
of the holders of Warrant Certificates; provided, however, that this Agreement
-------- -------
shall not otherwise be modified, supplemented or altered in any respect except
with the consent in writing of the Registered Holders representing not less than
66-2/3% of the Warrants then outstanding; provided, further, that no change in
-------- -------
the number or nature of the securities purchasable upon the exercise of any
Warrant, or to increase the Exercise Price therefor or to accelerate of the
Warrant Expiration Date, shall be made without the consent in writing of the
Registered Holder of the Warrant Certificate representing such Warrant, other
than such changes as are presenting specifically prescribed by this Agreement as
originally executed. In addition, this Agreement may not be modified, amended or
supplemented without the prior written consent of both
20
of the Representatives, other than to cure any ambiguity or to correct any
provision which is inconsistent with any other provision of this Agreement or to
make any such change that is necessary or desirable and which shall not
adversely affect the interests of the Representatives and except as may be
required by law.
1. Notices.
-------
All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been made when delivered or
mailed first-class registered or certified mail, postage prepaid, as follows: if
to the Registered Holder of a Warrant Certificate, at the last address of such
holder as shown on the registry books maintained by the Warrant Agent; if to the
Company at 0000 Xxxxxxxx Xxx., Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000 Attention:
CEO, or at such other address as may have been furnished to the Warrant Agent in
writing by the Company; and if to the Warrant Agent, at 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000. Copies of any notice delivered pursuant to this Agreement
shall also be delivered to Pryor, McClendon, Counts & Co., Inc., 3 Penn Plaza,
0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Xxxxxxxx Xxxxx and to National Securities Corporation, 0000 Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxxxx 00000-0000, Attention: General Counsel, or at such
other address as may have been furnished to the Company and the Warrant Agent in
writing.
1. Governing Law.
-------------
This Agreement shall be governed by and construed in accordance with
the laws of the state of California without giving effect to conflicts of laws.
1. Binding Effect.
--------------
This Agreement shall be binding upon and inure to the benefit of the
Company, the Representatives, the Warrant Agent and their respective successors
and assigns and the Registered Holders from time to time of Warrant Certificates
or any of them. Nothing in this Agreement is intended or shall be construed to
confer upon any other person any right, remedy or claim, in equity or at law, or
to impose upon any other person any duty, liability or obligation.
1. Termination.
-----------
This Agreement shall terminate at the close of business on the
Expiration Date of all of the Warrants or such earlier date upon which all
Warrants have been exercised or redeemed, except that the Warrant Agent shall
account to the Company for all Warrants outstanding and all cash held by it and
the provisions of Section 10 hereof shall survive such termination.
1. Counterparts.
------------
This Agreement may be executed in several counterparts, which taken
together shall constitute a single document.
21
1. Holders of Warrants Not Deemed Shareholders. No holder of a
-------------------------------------------
Warrant, as such, shall be entitled to vote, receive dividends or be deemed the
holder of Common Stock or any other securities of the Company which may at any
time be issuable on the exercise of the Warrants represented thereby for any
purpose whatever, nor shall anything contained herein or in any Warrant
Certificate be construed to confer upon any holder of a Warrant, as such, any of
the rights of a shareholder of the Company or any right to vote for the election
of directors or upon any matter submitted to shareholders at any meeting
thereof, or to give or withhold consent to any corporate action (whether upon
any recapitalization, issuance of stock, reclassification of stock, change of
par value or change of stock to no par value, consolidation, merger, conveyance
or otherwise), or to receive notice of meetings or other actions affecting
shareholders, or to receive dividend or subscription rights, or otherwise, until
such Warrant Certificate shall have been exercised in accordance with the
provisions hereof and the receipt of the Exercise Price and any other amounts
payable upon such exercise by the Warrant Agent.
1. Benefits of this Agreement. Nothing in this Agreement or in the
--------------------------
Warrant Certificates shall be construed to give to any person or corporation
other than the Company, the Representatives, the Warrant Agent, and their
respective successors and assigns hereunder and the Registered Holders of the
Warrant Certificates any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit of the
Company, the Representatives, the Warrant Agent, their respective successors and
assigns hereunder and the Registered Holders of the Warrant Certificates.
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the first date first above written.
ATTEST: ISONICS CORPORATION
By:__________________________ By:__________________________
Name:________________________
Name:________________________ Title:__________________________
Title:_______________________
ATTEST: CONTINENTAL STOCK TRANSFER &
TRUST COMPANY, as Warrant Agent
By:__________________________ By:__________________________
Name:________________________ Name:________________________
Title:_______________________ Title:_______________________
PRYOR, McCLENDON, COUNTS &
CO., INC.
By:__________________________
Name: Xxxxxxxx X. Xxxxx
Title: Chairman
NATIONAL SECURITIES
CORPORATION, INC.
By:__________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Chairman
23
EXHIBIT A
No. W _______ VOID AFTER ___________ ___, 2001
___________ WARRANTS
REDEEMABLE WARRANT CERTIFICATE TO
PURCHASE ONE SHARE OF COMMON STOCK
ISONICS CORPORATION
CUSIP #__________________
THIS CERTIFIES THAT, FOR VALUE RECEIVED
or its registered assigns (the "Registered Holder") is the owner of the number
of Redeemable Warrants (the "Warrants") specified above. Each Warrant initially
entitles the Registered Holder to purchase, subject to the terms and conditions
set forth in this Certificate and the Warrant Agreement (as hereinafter
defined), one fully paid and nonassessable share of Common Stock, par value
$____ per share, of Isonics Corporation, a California corporation (the
"Company"), at any time between the date of the Prospectus (the "Initial Warrant
Exercise Date"), and the earlier to occur of the Expiration Date (as hereinafter
defined ) and the Redemption Date (as hereinafter defined) upon the presentation
and surrender of this Warrant Certificate with the Subscription Form on the
reverse hereof duly executed, at the corporate office of American Stock Transfer
& Trust Company, as Warrant Agent, or its successor (the "Warrant Agent"),
accompanied by payment of $_____ per share, subject to adjustment (the "Exercise
Price"), in lawful money of the United States of America in cash or by check
made payable to the Warrant Agent for the account of the Company.
This Warrant Certificate and each Warrant represented hereby are
issued pursuant to and are subject in all respects to the terms and conditions
set forth in the Warrant Agreement (the "Warrant Agreement"), dated ____________
__, 1996, by and between the Company, Pryor, McClendon, Counts & Co., Inc.
("Xxxxx XxXxxxxxx") and National Securities Corporation ("National", Xxxxx
XxXxxxxxx and National are collectively referred to herein as the
"Representatives") and the Warrant Agent.
1
In the event of certain contingencies provided for in the Warrant
Agreement, the Exercise Price and the number of shares of Common Stock subject
to purchase upon the exercise of each Warrant represented hereby are subject to
modification or adjustment.
Each Warrant represented hereby is exercisable at the option of the
Registered Holder, but no fractional interests will be issued. In the case of
the exercise of less than all the Warrants represented hereby, the Company shall
cancel this Warrant Certificate upon the surrender hereof and shall execute and
deliver a new Warrant Certificate or Warrant Certificates of like tenor, which
the Warrant Agent shall countersign, for the balance of such Warrants.
The term "Expiration Date" shall mean 5:00 p.m. (New York time) on the
date which is five (5) years after the Initial Warrant Exercise Date or the date
fixed for redemption hereof, whichever date is earlier. If each such date shall
in the State of New York be a holiday or a day on which the banks are authorized
to close, then the Expiration Date shall mean 5:00 p.m. (New York time) the next
following day which in the State of New York is not a holiday or a day on which
banks are authorized to close.
The Company shall not be obligated to deliver any securities pursuant
to the exercise of this Warrant unless a registration statement under the
Securities Act of 1933, as amended (the "Act'), with respect to such securities
is effective or an exemption thereunder is available. The Company has covenanted
and agreed that it will file a registration statement under the Federal
securities laws, use its best efforts to cause the same to become effective, use
its best efforts to keep such registration statement current, if required under
the Act, while any of the Warrants are outstanding, and deliver a prospectus
which complies with Section 10(a)(3) of the Act to the Registered Holder
exercising this Warrant; provided, however, that (i) if at the time of exercise
-------- -------
of any of the Warrants the Company does not have in place an effective
registration statement or is otherwise, in the good faith determination of the
Board of Directors of the Company, precluded by applicable laws from issuing the
shares of Common Stock issuable upon such exercise, the Company may, in lieu of
issuance of those shares, elect to redeem the Warrants duly surrendered for
exercise for a price per Warrant equal to the difference between the Market
Price (as defined below) of a share of the Common Stock on the date of such
submission and the Exercise Price, and in the event of such redemption, the
Company will pay to the Registered Holder the above-described redemption price
in cash within 10 business days after receipt of notice from the Warrant Agent
that such Warrants have been submitted for exercise, and (ii) if the Market
Price of the Common Stock is less than the Exercise Price, then the Company need
not take such actions to file a registration statement (or a post-effective
amendment to a registration statement) with respect to the issuance of Common
Stock upon exercise of the Warrants until such time as the Company has been
subject to the requirements of Section 12 or 15(d) of the Securities Exchange
Act of 1934, as amended, for a period of at least
2
twelve calendar months immediately preceding the filing of the registration
statement. This Warrant shall not be exercisable by a Registered Holder in any
state where such exercise would be unlawful.
The term "Market Price" shall mean the last reported sale price, or,
in case no such reported sale takes place on such day, the average of the last
reported sales prices for the last three (3) trading days, in either case as
officially reported by the principal securities exchange on which the Common
Stock is listed or admitted to trading or by the Nasdaq SmallCap Market, or, if
the Common Stock is not listed or admitted to trading on any national securities
exchange or quoted by the Nasdaq, the average closing bid price as furnished by
the Nasdaq through Nasdaq or similar organization if Nasdaq is no longer
reporting such information, or if the Common Stock is not quoted on Nasdaq, as
determined in good faith (using customary valuation methods) by resolution of
the members of the Board of Directors of the Company, based on the best
information available to it.
This Warrant Certificate is exchangeable, upon the surrender hereof by
the Registered Holder at the corporate office of the Warrant Agent, for a new
Warrant Certificate or Warrant Certificates of like tenor representing an equal
aggregate number of Warrants, each of such new Warrant Certificates to represent
such number of Warrants as shall be designated by such Registered Holder at the
time of such surrender. Upon due presentment and payment of any tax or other
charge imposed in connection therewith or incident thereto, for registration of
transfer of this Warrant Certificate at such office, a new Warrant Certificate
or Warrant Certificates representing an equal aggregate number of Warrants will
be issued to the transferee in exchange therefor, subject to the limitations
provided in the Warrant Agreement.
Prior to the exercise of any Warrant represented hereby, the
Registered Holder shall not be entitled to any rights of a stockholder of the
Company, including, without limitation, the right to vote or to receive
dividends or other distributions, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided in the Warrant
Agreement.
Subject to the provisions of the Warrant Agreement, this Warrant may
be redeemed at the option of the Company, at a redemption price of $0.05 per
Warrant, at any time commencing after _______________ [the date 12 months from
the date of the Prospectus], provided that the average closing sale price for
the Common Stock as reported by the Nasdaq Small Cap Market, if the Common Stock
is then traded on the Nasdaq SmallCap Market (or the average closing sale price,
if the Common Stock is then traded on the Nasdaq National Market or a national
securities exchange), shall have equalled or exceeded $_____ per share for any
twenty (20) consecutive trading days ending on the fifth trading day prior to
the date on which the Notice of Redemption, as defined below, is given (subject
to adjustment in the event of any stock splits or other similar events). Notice
of redemption (the "Notice of Redemption") shall be given not later than the
thirtieth day before the date fixed for redemption, or as
3
provided in the Warrant Agreement. On and after the date fixed for redemption,
the Registered Holder shall have no rights with respect to the Warrants except
to receive the $0.05 per Warrant upon surrender of this Warrant Certificate.
Upon certain circumstances, the Representatives may be entitled to
receive an aggregate of five percent (5%) of the Exercise Price of the Warrants
represented hereby, if it is engaged as a Warrant solicitation agent by the
Company.
Prior to due presentment for registration of transfer hereof, the
Company and the Warrant Agent may deem and treat the Registered Holder as the
absolute owner hereof and of each Warrant represented hereby (notwithstanding
any notations of ownership or writing hereon made by anyone other than a duly
authorized officer of the Company or the Warrant Agent) for all purposes and
shall not be affected by any notice to the contrary, except as provided in the
Warrant Agreement.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to
conflicts of laws.
This Warrant Certificate is not valid unless countersigned by the
Warrant Agent.
4
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed, manually or in facsimile by two of its officers thereunto duly
authorized and a facsimile of its corporate seal to be imprinted hereon.
Dated:
[SEAL] ISONICS CORPORATION
By:_____________________________
Name:_________________________
Title:______________________
By:_____________________________
, Secretary
COUNTERSIGNED:
_____________________________,
as Warrant Agent
By:_____________________________
Authorized Officer
5
SUBSCRIPTION FORM
To Be Executed by the Registered Holder
in Order to Exercise Warrants
The undersigned Registered Holder hereby irrevocably elects to
exercise ________ Warrants represented by this Warrant Certificate, and to
purchase the securities issuable upon the exercise of such Warrants, and
requests that certificates for such securities shall be issued in the name of
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
________________________________________
________________________________________
________________________________________
(please print or type name and address)
and be delivered to
__________________________________________
__________________________________________
__________________________________________
(please print or type name and address)
and if such number of Warrants shall not be all the Warrants evidenced by this
Warrant Certificate, that a new Warrant Certificate for the balance of such
Warrants be registered in the name of, and delivered to, the Registered Holder
at the address stated below.
EXH.A-6
IMPORTANT: PLEASE COMPLETE THE FOLLOWING
1. The exercise of this Warrant was solicited by:
_____________________________________. [ ]
2. The exercise of this Warrant was not solicited. [ ]
Dated: ______________________
__________________________________
__________________________________
__________________________________
Address
_________________________________
Social Security or Taxpayer Identification
Number
_________________________________
Signature Guaranteed
_________________________________
EXH.A-7
ASSIGNMENT
To Be Executed by the Registered Holder
in Order to Assign Warrants
FOR VALUE RECEIVED, _____________________, hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
_______________________________________
_______________________________________
_______________________________________
_______________________________________
(please print or type name and address)
______________________________________ of the Warrants represented by this
Warrant Certificate, and hereby irrevocably constitutes and appoints
__________________________ Attorney to transfer this Warrant Certificate on the
books of the Company, with full power of substitution in the premises.
Dated: _____________________
__________________________________
Signatured Guaranteed
__________________________________
THE SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST CORRESPOND TO THE
NAME AS WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT
EXH.A-8
OR ANY CHANGE WHATSOEVER AND MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT
UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17Ad-15.
EXH.A-9
