EXHIBIT 4.9
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING
THIS COMMON STOCK PURCHASE WARRANT, AGREES FOR THE BENEFIT OF THE COMPANY THAT
SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE
COMPANY, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT, OR (C) IF REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS. IN ADDITION, A SECURITIES PURCHASE AGREEMENT ("PURCHASE
AGREEMENT"), DATED THE DATE HEREOF, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICE, CONTAINS CERTAIN ADDITIONAL
AGREEMENTS AMONG THE PARTIES, INCLUDING, WITHOUT LIMITATION, PROVISIONS WHICH
LIMIT THE EXERCISE RIGHTS OF THE HOLDER AND SPECIFY MANDATORY REDEMPTION
OBLIGATIONS OF THE COMPANY.
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MIRACOR DIAGNOSTICS, INC.
SPECIMEN FORM OF COMMON STOCK PURCHASE WARRANT
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Number of shares: 212,500 issued to five parties Holder: SPECIMEN
Expiration Date: June 11, 2008
Purchase Price Per Share: $0.25
For identification only. The governing terms of this
Warrant are set forth below.
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Miracor Diagnostics, Inc., a Utah corporation (the "COMPANY"), hereby certifies
that, for value received, SPECIMEN or assigns ("Holder"), is entitled, subject
to the terms set forth below, to purchase from the Company at any time or from
time to time after the date hereof and prior to the fifth anniversary hereof
(the "EXERCISE PERIOD"), at the Purchase Price hereinafter set forth, a total
amount of Two Hundred Twelve Thousand Five Hundred (212,500) shares of the fully
paid and nonassessable shares of common stock of the Company, $0.15 par value
per share (the "Common Stock"). The number and character of such shares of
Common Stock and the Purchase Price are subject to adjustment as provided
herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "PURCHASE PRICE") shall be $0.25.
(a) CERTAIN DEFINED TERMS. Capitalized terms used herein not otherwise defined
shall have the meanings ascribed thereto in the Purchase Agreement. As used
herein the following terms, unless the context otherwise requires, have the
following respective meanings:
(a) The term "COMPANY" shall include Miracor Diagnostics, Inc.
and any corporation that shall succeed or assume the obligations of
such corporation hereunder.
(b) The term "COMMON STOCK" includes (a) the Company's common
stock, $0.15 par value per share, (b) any other capital stock of any
class or classes (however designated) of the Company, authorized on or
after such date, the holders of which shall have the right, without
limitation as to amount, either to all or to a share of the balance of
current dividends and liquidating dividends after the payment of
dividends and distributions on any shares entitled to preference, and
the holders of which shall ordinarily, in the absence of contingencies,
be entitled to vote for the election of a majority of directors of the
Company (even though the right so to vote has been suspended by the
happening of such a contingency) and (c) any other securities into
which or for which any of the securities described in (a) or (b) may be
converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
(c) The term "OTHER SECURITIES" refers to any stock (other
than Common Stock) and other securities of the Company or any other
person (corporate or otherwise) that the Holder of this Warrant at any
time shall be entitled to receive, or shall have received, on the
exercise of this Warrant, in lieu of or in addition to Common Stock, or
that at any time shall be issuable or shall have been issued in
exchange for or in replacement of Common Stock or Other Securities
pursuant to Section 4 or otherwise.
2. EXERCISE OF WARRANT.
2.1 METHOD OF EXERCISE.
(a) This warrant may be exercised in whole or in part (but not
as to a fractional share of Common Stock), at any time and from time to time
during the Exercise Period by the Holder hereof by delivery of a notice of
exercise (a "NOTICE OF EXERCISE") substantially in the form attached hereto as
Exhibit A via facsimile to the Company. Promptly thereafter the Holder shall
surrender this Warrant to the Company at its principal office, accompanied by
payment of the Purchase Price multiplied by the number of shares of Common Stock
for which this Warrant is being exercised (the "EXERCISE PRICE"). Payment of the
Exercise Price shall be made, at the option of the Holder, (i) by check or bank
draft payable to the order of the Company, or (ii) by wire transfer to the
account of the Company.
(b) In addition to the foregoing, at the option of Holder,
this Warrant may be exercised, at any time or from time to time, in the
following "cashless exercise" transactions:
(i) Upon written notice of exercise from the Holder
to the Company that the Holder is exercising this Warrant in
whole or in part and as consideration of such exercise is
authorizing the Company to withhold from issuance a number of
shares of Common Stock issuable upon exercise of this Warrant,
the Company shall deliver to the Holder (without payment by
the Holder of the aggregate Purchase Price) that number of
shares of Common Stock equal to the quotient obtained by
dividing (x) the Spread Value by (y) the Fair Market Value of
one share of Common Stock immediately prior to the exercise of
the Conversion Right. The shares withheld by the Company shall
no longer be issuable under this Warrant.
(ii) Fair Market Value of a share of Warrant Shares
as of a particular date (the "Determination Date") shall mean:
(A) If the Warrant Shares are traded on an
exchange or are quoted on the Nasdaq National Market
or the Nasdaq SmallCap Market ("Nasdaq"), then the
average of the closing or last sale price,
respectively, reported for the five trading days
immediately preceding the Determination Date.
(B) If the Warrant Shares are not traded on
an exchange or on Nasdaq but are traded in the
over-the-counter market or other similar organization
(including the OTC Bulletin Board), then the average
of the closing bid and ask prices reported for the
five trading days immediately preceding the
Determination Date.
(C) If the Warrant Shares are not traded as
provided above, then the price determined in good
faith by the Board of Directors of the Company,
provided that (i) the basis or bases of each such
determination shall be set forth in the corporate
records of the Company pertaining to meetings and
other actions of such board, and (ii) such records
are available to the Holder for inspection during
normal business hours of the Company upon the giving
of reasonable prior notice.
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(D) If the Determination Date is the date of
a liquidation, dissolution or winding up, or any
event deemed to be a liquidation, dissolution or
winding up pursuant to the Company's certificate of
incorporation, then all amounts to be payable per
share to Holders of the securities then comprising
Warrant Shares pursuant to the charter in the event
of such liquidation, dissolution or winding up, plus
all other amounts to be payable per share in respect
of the Warrant Shares in liquidation under the
certificate of incorporation, assuming for the
purposes of this clause (D) that all of the shares of
Warrant Shares then issuable upon exercise of all of
the Warrants are outstanding at the Determination
Date.
(iii) The term "Spread Value" shall mean (i) the
number of shares exercised at a given time multiplied by the
Fair Market Value of one share of Common Stock, less (ii)
aggregate applicable Exercise Price.
(c) Upon exercise, the Holder shall be entitled to receive,
promptly after payment in full, one or more certificates, issued in the Holder's
name or in such name or names as the Holder may direct, subject to the
limitations on transfer contained herein, for the number of shares of Common
Stock so purchased. The shares of Common Stock so purchased shall be deemed to
be issued as of the close of business on the date on which the Company shall
have received from the Holder payment in full of the Exercise Price (the
"EXERCISE DATE").
(d) Notwithstanding anything to the contrary set forth herein,
upon exercise of all or a portion of this Warrant in accordance with the terms
hereof, the Holder shall not be required to physically surrender this Warrant to
the Company. Rather, records showing the amount so exercised and the date of
exercise shall be maintained on a ledger substantially in the form of Annex B
attached hereto (a copy of which shall be delivered to the Company or transfer
agent with each Notice of Exercise). It is specifically contemplated that the
Company shall act as the calculation agent for all exercises of this Warrant. In
the event of any dispute or discrepancies, such records maintained by the
Holders shall be controlling and determinative in the absence of manifest error.
The Holder and any assignee, by acceptance of this Warrant, acknowledge and
agree that, by reason of the provisions of this paragraph, following an exercise
of a portion of this Warrant, the number of shares of Common Stock represented
by this Warrant will be the amount indicated on Annex B attached hereto (which
may be less than the amount stated on the face hereof)."
2.2 REGULATION D RESTRICTIONS. The Holder hereof represents
and warrants to the Company that it has acquired this Warrant and anticipates
acquiring the shares of Common Stock issuable upon exercise of the Warrant
solely for its own account for investment purposes and not with a view to or for
resale of such securities unless such resale has been registered with the
Commission or an applicable exemption is available therefore. At the time this
Warrant is exercised, the Company may require the Holder to state in the Notice
of Exercise such representations concerning the Holder as are necessary or
appropriate to assure compliance by the Holder with the Securities Act.
2.3 COMPANY ACKNOWLEDGMENT. The Company will, at the time of
the exercise of this Warrant, upon request of the Holder hereof, acknowledge in
writing its continuing obligation to afford to such Holder the registration
rights to which such Holder shall continue to be entitled after such exercise in
accordance with the provisions of a Registration Rights Agreement dated the date
hereof (the "Registration Rights Agreement"). If the Holder shall fail to make
any such request, such failure shall not affect the continuing obligation of the
Company to afford such Holder any such rights.
2.4 LIMITATION ON EXERCISE. Notwithstanding the rights of the
Holder to exercise all or a portion of this Warrant as described herein, such
exercise rights shall be limited, solely to the extent set forth in the Purchase
Agreement as if such provisions were specifically set forth herein. In addition,
the number of shares of Common Stock issuable upon exercise of this Warrant is
subject to reduction as specified in Section 10.3 of the Purchase Agreement.
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3. DELIVERY OF STOCK CERTIFICATES, ETC., ON EXERCISE. As soon as
practicable after the exercise of this Warrant, and in any event within five (5)
business days thereafter, the Company at its expense (including the payment by
it of any applicable issue, stamp or transfer taxes) will cause to be issued in
the name of and delivered to the Holder thereof, or, to the extent permissible
hereunder, to such other person as such Holder may direct, a certificate or
certificates for the number of fully paid and nonassessable shares of Common
Stock (or Other Securities) to which such Holder shall be entitled on such
exercise, plus, in lieu of any fractional share to which such Holder would
otherwise be entitled, cash equal to such fraction multiplied by the then
applicable Purchase Price, together with any other stock or other securities and
property (including cash, where applicable) to which such Holder is entitled
upon such exercise pursuant to Section 2 or otherwise.
4. NO IMPAIRMENT. The Company will not, by amendment of its Certificate
of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder of this
Warrant against impairment. Without limiting the generality of the foregoing,
the Company (a) will not increase the par value of any shares of stock
receivable on the exercise of this Warrant above the amount payable therefor on
such exercise, (b) will take all such action as may be necessary or appropriate
in order that the Company may validly and legally issue fully paid and
unassessable shares of stock on the exercise of this Warrant, and (c) will not
transfer all or substantially all of its properties and assets to any other
person (corporate or otherwise), or consolidate with or merge into any other
person or permit any such person to consolidate with or merge into the Company
(if the Company is not the surviving person), unless such other person shall
expressly assume in writing and will be bound by all the terms of this Warrant.
5. NOTICES OF RECORD DATE, ETC. In the event of
(a) any taking by the Company of a record of the holders of
any class or securities for the purpose of determining the holders thereof who
are entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, or
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or any
transfer of all or substantially all the assets of the Company to or
consolidation or merger of the Company with or into any other person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder of this Warrant a notice specifying (i) the date on which any such record
is to be taken for the purpose of such dividend, distribution or right, and
stating the amount and character of such dividend, distribution or right, and
(ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place, and the time, if any, as of which the holders of
record of Common Stock (or Other Securities) shall be entitled to exchange their
shares of Common Stock (or Other Securities) for then and in each such event the
Company will mail or cause to be mailed to the Holder of this Warrant a notice
specifying (i) the date on which any such record is to be taken for the purpose
of such dividend, distribution or right, and stating the amount of character of
such dividend, distribution or right, and (ii) the date on which any such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up is to take place, and the time,
if any, as of which the holders of record of Common Stock (or Other Securities)
shall be entitled to exchange their shares of Common Stock (or Other Securities)
for securities or other property deliverable on such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
dissolution, liquidation or winding-up. Such notice shall be mailed at least 20
days prior to the date specified in such notice on which any action is to be
taken.
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6. RESERVATION OF STOCK, ETC. ISSUABLE ON EXERCISE OF WARRANT. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
7. EXCHANGE OF WARRANT.
(a) On surrender for exchange of this Warrant, properly
endorsed and in compliance with the restrictions on transfer set forth in the
legend on the face of this Warrant, to the Company, the Company at its expense
will issue and deliver to or on the order of the Holder thereof a new Warrant of
like tenor, in the name of such Holder or as such Holder (on payment by such
Holder of any applicable transfer taxes) may direct, calling in the aggregate on
the face or faces thereof for the number of shares of Common Stock called for on
the face of the Warrant so surrendered.
(b) Upon written notice from the Purchasers that the
Purchasers have elected to transfer amongst each other a portion of this
Warrant, and on surrender for amendment and restatement of this Warrant, the
Company at its expense will issue and deliver to or on the order of the Holder
thereof a new Warrant of like tenor, in the name of such Holder as the
Purchasers (on payment by such Holder of any applicable transfer taxes) may
direct, calling in the aggregate on the face or faces thereof for the number of
shares of Common Stock as set forth in such notice reflecting such transfer.
8. REPLACEMENT OF WARRANT. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of this Warrant, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
9. REMEDIES. The Company stipulates that the remedies at law of the
Holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
10. NEGOTIABILITY, ETC.. This Warrant is issued upon the following
terms, to all of which each Holder or owner hereof by the taking hereof consents
and agrees:
(a) title to this Warrant may be transferred by endorsement
and delivery in the same manner as in the case of a negotiable instrument
transferable by endorsement and delivery.
(b) any person in possession of this Warrant properly endorsed
is authorized to represent himself as absolute owner hereof and is empowered to
transfer absolute title hereto by endorsement and delivery hereof to a BONA FIDE
purchaser hereof for value; each prior taker or owner waives and renounces all
of his equities or rights in this Warrant in favor of such BONA FIDE purchaser,
and each such BONA FIDE purchaser shall acquire absolute title hereto and to all
rights represented hereby;
(c) until this Warrant is transferred on the books of the
Company, the Company may treat the registered Holder hereof as the absolute
owner hereof for all purposes, notwithstanding any notice to the contrary; and
(d) notwithstanding the foregoing, this Warrant may not be
sold, transferred or assigned except pursuant to an effective registration
statement under the Securities Act or pursuant to an applicable exemption
therefrom.
11. REGISTRATION RIGHTS. The Company is obligated to register the
shares of Common Stock issuable upon exercise of this Warrant in accordance with
the terms of the Registration Rights Agreement.
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12. WARRANT REDEMPTION. Upon occurrence of the events described in
Sections 3.4 and 10.4(c) of the Purchase Agreement, the Company, at the request
of Holder, shall redeem all outstanding Warrants that remain unexercised at a
redemption price equal to the greater of (x) an appraised value of the Warrants,
as determined by Black Xxxxxx, on the date they are called for redemption and
(y) the number of Warrants being redeemed multiplied by the excess of (A) the
average Closing Bid Price of the Common Stock for the five Trading Days
immediately prior to the date that the Warrants are called for redemption over
(B) the exercise price of the Warrants.
13. NOTICES, ETC.. All notices and other communications from the
Company to the Holder of this Warrant shall be mailed by first class registered
or certified mail, postage prepaid, at such address as may have been furnished
to the Company in writing by such Holder or, until any such Holder furnishes to
the Company any address, then to, and at the address of, the last Holder of this
Warrant who has so furnished an address to the Company.
14. MISCELLANEOUS. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of California. The headings in this
Warrant are for the purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
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DATED as of June 11, 2003.
MIRACOR DIAGNOSTICS, INC.
By:________________________
Name: _____________________
Title: ____________________
[Corporate Seal]
Attest:
By:
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Secretary
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EXHIBIT A
NOTICE OF EXERCISE - WARRANT
(To be executed only upon exercise
of the Warrant in whole or in part)
To ____________________________________________
The undersigned registered Holder of the accompanying Warrant, hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
__________(2) shares of Common Stock (as defined in such Warrant) and herewith
makes payment therefor in the amount and manner set forth below, as of the date
written below. The undersigned requests that the certificates for such shares of
Common Stock be issued in the name of, and delivered to, whose address is .
The Exercise Price is paid as follows:
[ ] Bank draft payable to the Company in the amount of $____________.
[ ] Wire transfer to the account of the Company in the amount
of $___________.
Upon exercise pursuant to this Notice of Exercise, the Holder will be
in compliance with the Limitation on Exercise (as defined in the Securities
Purchase Agreement pursuant to which this Warrant was issued).
Date:
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(Name must conform to name of Holder as
specified on the face of the Warrant)
By:
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Name:
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Title:
---------------------------------
Address of Holder:
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Date of exercise:
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(2) Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the Holder surrendering the same.
ANNEX B
WARRANT EXERCISE LEDGER
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ORIGINAL NUMBER OF WARRANTS EXERCISE PRICE NEW BALANCE ISSUER HOLDER
DATE WARRANTS EXERCISED PAID OF WARRANTS INITIALS INITIALS
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