THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT PURSUANT...
EXHIBIT
10.132
THIS WARRANT AND THE SECURITIES
ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT PURSUANT TO (1) A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR (2) UPON DELIVERY OF A LEGAL OPINION TO THE COMPANY, IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, THAT ANY SUCH
TRANSACTION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND ANY APPLICABLE STATE SECURITIES LAWS.
Dated:
June 23, 2008
WARRANT
To
Purchase 100,000 shares of
Common
Stock, $.01 par value
of
Performance
Health Technologies, Inc.
Expiring
June 23, 2013
THIS IS
TO CERTIFY THAT, for value received, XXXXXX XXXXX SECURITIES, INC.,
or its registered assigns (hereinafter referred to as the (“Holder”), is
entitled to subscribe and purchase from PERFORMANCE HEALTH TECHNOLOGIES,
INC., a Delaware corporation (the
“Company”), commencing on the date hereof, 100,000 shares of Common Stock, $.01
par value, of the Company (the “Shares”), at the place where the Warrant Agency
(as hereinafter defined) is located, at the Exercise Price (as hereinafter
defined), all subject to adjustment and upon the terms and conditions as
hereinafter provided, and is entitled also to exercise the other appurtenant
rights, powers and privileges hereinafter described; provided, however, that in
no event shall the Holder be entitled to exercise this Warrant for a number of
Shares in excess of that number of Shares which, upon giving effect to such
exercise, would cause the aggregate number of shares of Company Common Stock
beneficially owned by the Holder and its affiliates to exceed 9.99% of the
outstanding shares of the Company Common Stock following such exercise, except
within sixty (60) days of the Expiration Date. For purposes of the
foregoing proviso, the aggregate number of shares of Common Stock beneficially
owned by the Holder and its affiliates shall include the number of shares of
Common Stock issuable upon exercise of this Warrant with respect to which the
determination of such proviso is being made, but shall exclude shares of Common
Stock which would be issuable upon (i) exercise of the remaining, unexercised
Warrants beneficially owned by the holder and its affiliates and (ii) exercise
or conversion of the unexercised or unconverted portion of any
other
securities of the Company beneficially owned by the holder and its affiliates
(including, without limitation, any convertible notes or preferred stock)
subject to a limitation on conversion or exercise analogous to the limitation
contained herein. Except as set forth in the preceding sentence, for
purposes of this paragraph, beneficial ownership shall be calculated in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended. For purposes of this Warrant, in determining the number of
outstanding shares of Common Stock a Holder may rely on the number of
outstanding shares of Common Stock as reflected in (1) the Company’s most recent
Form 10-Q or Form 10-K, as the case may be, (2) a more recent public
announcement by the Company or (3) any other notice by the Company or its
transfer agent setting forth the number of shares of Common Stock
outstanding. Upon the written request of any holder, the Company
shall promptly, but in no event later than one (1) Business Day following the
receipt of such notice, confirm in writing to any such holder the number of
shares of Common Stock then outstanding. In any case, the number of
outstanding shares of Common Stock shall be determined after giving effect to
the exercise of Warrants (as defined below) by such holder and its affiliates
since the date as of which such number of outstanding shares of Common Stock was
reported.
This
Warrant is issued pursuant to Amendment No. 1 dated June 23, 2008 to the
Financial Advisory and Consulting Agreement dated July 2, 2007 between the
Company and Xxxxxx Xxxxx Securities, Inc. (as such agreement may be amended from
time to time, the “Consulting Agreement”). Capitalized terms used in
this Warrant and not otherwise defined shall have the meanings set forth in
Article IV hereof.
ARTICLE
I
EXERCISE OF WARRANTS
Section
1.01 Method of
Exercise. To exercise this Warrant in whole or in part, the
Holder shall deliver to the Company at the Warrant Agency, (a) this Warrant, (b)
a written notice, in substantially the form of the Subscription Notice attached
hereto, of such Holder’s election to exercise this Warrant, which notice shall
specify the number of Shares to be purchased, the denominations of the share
certificate or certificates desired and the name or names in which such
certificates are to be registered and (c) the aggregate Exercise Price for the
Shares purchased (unless the Holder chooses the “cashless exercise” option
provided in the third paragraph of this Section 1.01).
The
Company shall, as promptly as practicable and in any event within seventy-two
hours thereafter, execute and deliver or cause to be executed and delivered, in
accordance with such notice, a certificate or certificates representing the
aggregate number of Shares specified in said notice. The Share
certificate or certificates so delivered shall be in such denominations as
determined by the Company, or as may be specified in such notice, and shall be
issued in the name of the Holder or such other name or names as shall be
designated in such notice. Such certificate or certificates shall be
deemed to have been issued, and such Holder or any other person so designated to
be named therein shall be deemed for all purposes to have become holders of
record of such Shares, as of the date the aforementioned notice is received by
the Company. If this Warrant shall have been exercised only in part,
the Company shall, at the time of delivery of the certificate or certificates,
deliver to the Holder a new Warrant evidencing the rights to purchase the
remaining Shares called for by this Warrant, which new Warrant shall in
2
all other
respects be identical with this Warrant, or, at the request of the Holder,
appropriate notation may be made on this Warrant which shall then be returned to
the Holder. The Company shall pay all expenses, payable in connection
with the preparation, issuance and delivery of Share certificates and new
Warrants as contemplated by Section 2.07 below (other than transfer, income or
similar taxes in connection with the transfer of securities), except that, if
Share certificates or new Warrants shall be registered in a name or names other
than the name of the Holder, funds sufficient to pay all transfer taxes payable
as a result of such transfer shall be paid by the Holder at the time of
delivering the aforementioned notice of exercise or promptly upon receipt of a
written request of the Company for payment.
In lieu
of a monetary payment of the aggregate Exercise Price, the Holder may elect to
receive, without the payment of any additional consideration, Shares equal to
the value of this Warrant or portion thereof by the surrender of such Warrant to
the Company with the “cashless exercise” election marked in the form of
Subscription Notice. Thereupon, the Company shall issue to the
Holder, such number of fully paid and non-assessable Shares as is computed using
the following formula:
X =
Y(A-B)
A
|
Where
|
X=
|
the
number of Shares to be issued to the Holder pursuant to this Section
1.01 upon such cashless exercise
election.
|
|
|
Y=
|
the
number of Shares covered by this Warrant in respect of which the cashless
exercise election is made.
|
|
|
A=
|
the
Fair Market Value (as defined in Article IV hereof) of one Share, as at
the time the cashless exercise election is
made.
|
|
|
B=
|
the
Exercise Price in effect under this Warrant at the time the cashless
exercise election is made.
|
Section
1.02 Shares To Be
Fully Paid and Non-assessable. All Shares issued upon the
exercise of this Warrant (the “Warrant Shares”) pursuant to Section 1.01 above
shall be validly issued, fully paid and nonassessable and the Company shall at
all times reserve and keep available out of its authorized shares of Common
Stock a sufficient number of Shares for the purpose of issuance of the Warrant
Shares upon the exercise of this Warrant.
Section
1.03 No Fractional
Shares To Be Issued. The Company shall not be required to
issue fractions of Shares upon exercise of this Warrant. If any
fraction of a Share would, but for this Section, be issuable upon any exercise
of this Warrant, in lieu of such fractional Share the Company shall pay to the
Holder or Holders, as the case may be, in cash, an amount equal to the same
fraction of the Fair Market Value per share of outstanding Shares on the
Business Day immediately prior to the date of such exercise.
Section
1.04 Share
Legend. Each certificate for Shares issued upon exercise of
this Warrant shall bear the legend set forth below, unless Holder’s Counsel (as
defined below) shall
3
render an
opinion in form and substance reasonably satisfactory to the Company that such
legend is not required or at the time of exercise such Shares are registered
under the Securities Act:
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT PURSUANT
TO (1) A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR (2) UPON DELIVERY OF A LEGAL OPINION TO THE
COMPANY, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, THAT ANY
SUCH TRANSACTION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
Any
certificate issued at any time in exchange or substitution for any certificate
bearing such legend (except a new certificate issued upon completion of a public
distribution pursuant to a registration statement under the Securities Act)
shall also bear such legend unless, in the opinion (in form and substance
reasonably satisfactory to the Company) of counsel selected by the Holder of
such certificate and who is reasonably acceptable to the Company (“Holder’s
Counsel”), the securities represented thereby need no longer be subject to
restrictions on resale under the Securities Act.
ARTICLE
II
WARRANT
AGENCY; TRANSFER,
EXCHANGE
AND REPLACEMENT OF WARRANTS
Section
2.01 Warrant
Agency. Until such time, if any, as an independent agency
shall be appointed by the Company to perform services with respect to the
Warrants described herein (the “Warrant Agency”), the Company shall perform the
obligations of the Warrant Agency provided herein at its principal office
address or such other address as the Company shall specify by prior written
notice to all Holders.
Section
2.02 Ownership of
Warrant. The Company may deem and treat the person in whose
name this Warrant is registered as the holder and owner hereof (notwithstanding
any notations of ownership or writing hereon made by any person other than the
Company) for all purposes and shall not be affected by any notice to the
contrary, until presentation of this Warrant for registration of transfer as
provided in this Article II.
Section
2.03 Transfer of
Warrant. The Company agrees to maintain at the Warrant Agency
books for the registration of transfers of this Warrant and all rights hereunder
shall be registered, in whole or in part, on such books, upon surrender of this
Warrant at the Warrant Agency, together with a written assignment of this
Warrant duly executed by the Holder or its duly authorized agent or
attorney. Subject to applicable law and regulation and Section 2.04
4
hereof,
upon surrender of this Warrant as provided for herein, the Company shall execute
and deliver a new Warrant or Warrants in the name of the assignee or assignees
and in the denominations specified in the instrument of assignment, and this
Warrant shall promptly be canceled. Notwithstanding the foregoing, a
Warrant may be exercised by a new Holder which has become the registered Holder
of such Warrant without having a new Warrant issued.
Section
2.04 Restrictions on
Transfer. The Holder, by its acceptance hereof, represents
that this Warrant is being acquired for its own account, as an investment and
not with a view towards the further resale or the distribution thereof in
violation of the Securities Act, and agrees that this Warrant may not be
transferred, sold, assigned, hypothecated or otherwise disposed of, in whole or
in part, except as provided in the legend on the first page hereof and provided
that the Holder shall have furnished to the Company an opinion of Holder’s
Counsel, in form and substance reasonably satisfactory to the Company, to the
effect that such transfer is exempt from the registration requirements of the
Securities Act and any applicable state securities laws.
Section
2.05 Division or
Combination of Warrants. This Warrant may be divided or
combined with other Warrants upon surrender hereof and of any Warrant or
Warrants with which this Warrant is to be combined at the Warrant Agency,
together with a written notice specifying the names and denominations in which
the new Warrant or Warrants are to be issued, signed by the holders hereof and
thereof or their respective duly authorized agents or
attorneys. Subject to compliance with Section 2.04 as to any transfer
which may be involved in the division or combination, the Company shall execute
and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to
be divided or combined in accordance with such notice.
Section
2.06 Loss, Theft,
Destruction of Warrant Certificates. Upon receipt by the
Company of a written notice (or other evidence reasonably satisfactory to the
Company) of the loss, theft, destruction or mutilation of any Warrant and, in
the case of any such loss, theft or destruction, upon receipt of indemnity or
security reasonably satisfactory to the Company or, in the case of any such
mutilation, upon surrender and cancellation of such Warrant, the Company will
make and deliver, in lieu of such lost, stolen, destroyed or mutilated Warrant,
a new Warrant of like tenor and representing the right to purchase the same
aggregate number of Shares.
Section
2.07 Expenses of
Delivery of Warrants. The Company shall pay all expenses
(other than transfer taxes) and other charges payable in connection with the
preparation, issuance and delivery of Warrants and Warrant Shares
hereunder.
ARTICLE
III
COMPANY
COVENANTS AND REPRESENTATIONS
Section
3.01 Company
Covenants. In case at any time the Company shall (a) declare
any dividend or distribution on its Shares, whether payable in cash, stock or
other property, (b) offer to all holders of Shares any additional shares of
Common Stock, or any option, right or warrant to subscribe therefore, or (c)
declare a dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) or propose a sale of substantially
all of its property, assets and business as an entirety, then the Company shall
give written notice to the Holder of the date on which the books of the Company
shall close or a record shall be taken for
5
such
action. Such notice shall also specify the date as of which the
holders of Shares of record shall participate in such dividend or
distribution. Such written notice shall be given at least 30 days and
not more than 90 days prior to the action in question, and not less than 15 days
prior to the relevant record date or the date fixed for determining stockholders
entitled to participate therein, as the case may be.
Section
3.02 Authority,
Execution and Delivery. The Company hereby represents and
warrants that the Company has full corporate power and authority to enter into
this Warrant and to issue Shares in accordance with the terms
hereof. The execution, delivery and performance of this Warrant by
the Company have been duly and effectively authorized by the
Company. This Warrant has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.
Section
3.03 Information
Requirements. To the extent applicable, the Company shall
promptly furnish the Holder with copies of all reports, proxy statements and
similar materials that it mails to holders of its Common Stock.
ARTICLE
IV
CERTAIN
DEFINITIONS
The
following terms, as used in this Warrant, have the following respective
meanings:
“Business
Days” means each day in which banking institutions in New York are not required
or authorized by law or executive order to close.
“Exercise
Price” means $0.50 per share, subject to adjustment pursuant to Article
V.
“Fair
Market Value” means the value of a share of Common Stock on a particular date,
determined as follows: (i) if the Common Stock is not listed on such date on any
national securities exchange but is traded in the over-the-counter market, the
closing “bid” quotations of a share of Common Stock on such date (or if none, on
the most recent date on which there were bid quotations of a share of Common
Stock), as reported on the National Association of Securities Dealers, Inc.
Automated Quotation System, or, if not so reported, as reported by the National
Quotation Bureau, Incorporated, or any other similar service selected by the
Board; or (ii) if the Common Stock is listed on such date on one or more
national securities exchanges, the last reported sale price of a share of Common
Stock on such date as recorded on the composite tape system, or, if such system
does not cover the Common Stock, the last reported sale price of a share of
Common Stock on such date on the principal national securities exchange on which
the Common Stock is listed, or if no sale of Common Stock took place on such
date, the last reported sale price of a share of Common Stock on the most recent
day on which a sale of a share of Common Stock took place as recorded by such
system or on such exchange, as the case may be; or (iii) if the Common Stock is
neither listed on such date on a national securities exchange nor traded in the
over-the-counter market, as determined by the Company.
6
ARTICLE
V
ADJUSTMENTS
Section
5.01 Adjustment of
Warrant Exercise Price upon Subdivision or Combination of Common
Stock. If the Company at any time after the date of issuance
of this Warrant subdivides (by any stock split, stock dividend, recapitalization
or otherwise) one or more classes of its outstanding shares of Common Stock into
a greater number of shares, any Warrant Exercise Price in effect immediately
prior to such subdivision will be proportionately reduced and the number of
shares of Common Stock obtainable upon exercise of this Warrant will be
proportionately increased. If the Company at any time after the date
of issuance of this Warrant combines (by combination, reverse stock split or
otherwise) one or more classes of its outstanding shares of Common Stock into a
smaller number of shares, any Warrant Exercise Price in effect immediately prior
to such combination will be proportionately increased and the number of Warrant
Shares issuable upon exercise of this Warrant will be proportionately
decreased. Any adjustment under this Section 5.01 shall become
effective at the close of business on the date the subdivision or combination
becomes effective.
Section
5.02 Notices. Immediately
upon any adjustment of the Warrant Exercise Price, the Company will give written
notice thereof to the holder of this Warrant, setting forth in reasonable
detail, and certifying, the calculation of such adjustment.
ARTICLE
VI
MISCELLANEOUS
Section
6.01 Notices. Any
notice or other communication to be given hereunder shall be in writing and
shall be delivered by recognized courier, telecopy or certified mail, return
receipt requested, and shall be conclusively deemed to have been received by a
party hereto and to be effective on the day on which delivered or telecopied to
such party at its address set forth below (or at such other address as such
party shall specify to the other parties hereto in writing), or, if sent by
certified mail, on the third business day after the day on which mailed,
addressed to such party at such address. In the case of the Holder,
such notices and communications shall be addressed to its address as shown on
the books maintained by the Warrant Agency, unless the Holder shall notify the
Company and the Warrant Agency that notices and communications should be sent to
a different address, in which case such notices and communications shall be sent
to the address specified by the Holder. In the case of the Company, such notices
and communications shall be addressed as follows (until notice of a change is
given as provided herein): Performance Health Technologies, Inc., 000 Xxxxx Xxxx
Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxxx Xxxxxxxx,
Fax: (000) 000-0000.
Section
6.02 Waivers;
Amendments. No failure or delay of the Holder in exercising
any power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or
power. The rights and remedies of the Holder are cumulative and not
exclusive of any rights or remedies which it would otherwise
have. The provisions of this Warrant may be amended, modified or
waived with (and only with) the written consent of the Company and Holders
holding a majority of Warrants issued pursuant to the Consulting Agreement at
the time outstanding (or any
7
permitted
transferee of all of the Warrant). In the event of any such
amendment, modification or waiver the Company shall give prompt notice thereof
to all Holders of Warrants and, if appropriate, notation thereof shall be made
on all Warrants thereafter surrendered for registration of transfer or
exchange. No notice or demand on the Company in any case shall
entitle the Company to any other or further notice or demand in similar or other
circumstances.
Section
6.03 Governing
Law. This Warrant shall be construed in accordance with and
governed by the laws of the State of Delaware without regard to choice of law
doctrine.
Section
6.04 Covenants To Bind
Successor and Assigns. All covenants, stipulations, promises
and agreements in this Warrant contained by or on behalf of the Company shall
bind its successors and assigns, whether so expressed or not.
Section
6.05 Severability. In
case any one or more of the provisions contained in this Warrant shall be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby. The parties shall
endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
Section
6.06 Section
Headings. The section headings used herein are for convenience
of reference only, are not part of this Warrant and are not to affect the
construction of or be taken into consideration in interpreting this
Warrant.
Section
6.07 No Rights as
Stockholder. This Warrant shall not entitle the Holder to any
rights as a stockholder of the Company.
Section
6.08 No Requirement to
Exercise. Nothing contained in this Warrant shall be construed
as requiring the Holder to exercise this Warrant.
8
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed in its
corporate name by one of its officers thereunto duly authorized, and attested by
its Secretary or an Assistant Secretary, all as of the day and year first above
written.
PERFORMANCE
HEALTH TECHNOLOGIES, INC.
By:__________________________________________
Xxxxxx X.
Xxxxxxxx
President
and Chief Executive Officer
9
SUBSCRIPTION
NOTICE
(To be
executed upon exercise of Warrant)
To: Performance
Health Technologies, Inc. (the “Company”)
The
undersigned hereby irrevocably elects:
(i) to
exercise the right of purchase represented by the attached Warrant for, and to
purchase thereunder, __________ Shares, as provided for therein, and tenders
herewith payment of the Exercise Price in full in the form of certified or bank
cashier’s check or wire transfer; or
(ii) the
“cashless exercise” of its rights under the Section 1.01 of the attached Warrant
with respect to ___________ Shares otherwise available for purchase to it under
the Warrant and receive such number of Shares as provided in the formula set
forth in such Section 1.01.
Please
issue a certificate or certificates for such Shares in the following name or
names and denominations:
In
connection with the exercise of the Warrant, the undersigned hereby represents
and warrants that:
(i) it
recognizes that the Shares issuable pursuant to the attached Warrant have not
been registered under the Securities Act and may not be sold, pledged or
otherwise transferred except pursuant to the exceptions set forth on the legend
on such Shares which is also set forth in Section 1.04 of the attached
Warrant;
(ii) it
has received all material information with respect to the Company which it deems
necessary with its decision to exercise the attached Warrant and it has been
given an opportunity to ask questions and receive answers from representatives
of the Company;
(iii) it
is purchasing the Shares for its own account, for the purpose of investment
only, and not with a view towards the further resale or distribution thereof;
and
(iv) it
is an “Accredited Investor” within the meaning of Rule 501 of Regulation D under
the Securities Act of 1933, as amended.
If said
number of Shares shall not be all the Shares issuable upon exercise of the
attached Warrant, a new Warrant is to be issued in the name of the undersigned
for the balance remaining of such Shares less any fraction of a Share paid in
cash.
By:
_______________________
Name:
_____________________
Its:
_______________________
Dated:
____________________
NOTE: The
above signatory should correspond exactly with the name on the face of the
attached Warrant or with the name of the assignee appearing in the assignment
form below.
10
ASSIGNMENT
(To be
executed upon assignment of Warrant)
For value
received and in accordance with Section 2.03 of the attached Warrant,
____________________ hereby sells, assigns and transfers unto
___________________________ the attached Warrant, together with all right, title
and interest therein, and does hereby irrevocably constitute and appoint
__________________ attorney to transfer said Warrant on the books of Performance
Health Technologies, Inc. with full power of substitution in the
premises.
By:
___________________________
Name:
____________________
Its:
___________________________
Dated:____________________
|
NOTE:
|
The
above signatory should correspond exactly with the name on the face of the
attached Warrant.
|
Consented
to and approved in accordance with
Section
2.03 of the attached Warrant
PERFORMANCE
HEALTH TECHNOLOGIES, INC.
By: _________________________________
Name:
________________________
Its:
___________________________
11
