Exhibit 4.1
VOID AFTER JULY 4, 2006
HYPERBARIC SYSTEMS
260,000 Shares
COMMON STOCK PURCHASE WARRANT
No. W-101
In consideration of the Cancellation of Debt Agreement made effective
July 5, 2001, and other consideration set forth herein, receipt of
which is hereby acknowledged, Xxxxx Xxxxxx is entitled to purchase,
subject to the terms and conditions hereinafter set forth, 260,000
shares of Common Stock (the "Common Stock") of HyperBaric Systems, a
California corporation (the "Company").
1. Exercise Price.
This Warrant shall be exercisable at a price per share
(the "Exercise Price") equal to $0.01, subject to adjustment
as provided herein.
2. Exercise of Warrant.
(a) This Warrant may be exercised at any time in whole or
from time to time in part, on or prior to July 5, 2006 (the
"Termination Date"), subject to earlier termination as provided in
Section 9 below, by surrendering to the Company, at its principal
office, or at such other place as the Company may designate, this
Warrant and the Notice of Exercise attached hereto, duly executed by
the registered holder hereof, accompanied by payment in full of the
Exercise Price payable with respect to the number of shares being
purchased pursuant to such exercise. Payment of such Exercise Price
shall be by cash, check or bank draft payable to the Company or order
or by cancellation of indebtedness of the Company to the registered
holder hereof, if any, at the time of exercise. If less than all of
the purchase rights represented by this Warrant are exercised, the
Company will, upon such exercise, execute and deliver to the
registered owner hereof a new Warrant, dated the date hereof,
evidencing the number of purchase rights as to which this Warrant was
not exercised. As to purchase rights hereunder that are so exercised,
the Company shall deliver, to and in the name of the registered owner
hereof, within a reasonable time after the date of such exercise (in
no event later than 15 days following exercise), a certificate
representing the number of shares of Common Stock issuable upon such
exercise (the "Shares"), and the registered owner hereof shall be the
registered owner of the Shares as of the close of business on the date
the purchase rights under this Warrant for the Shares were exercised.
(b) No fractional shares or scrip representing fractional
shares shall be issued on the exercise of this Warrant. If on any
exercise of this Warrant, a fraction of a share would result, the
Company will pay the cash value of that fractional share calculated on
the basis of fair market value, as determined by the Company's Board
of Directors.
(c) The Company covenants that all shares which may be
issued upon the exercise of this Warrant will, upon such exercise and
payment of the Exercise Price therefor, be fully paid and
nonassessable and free from all taxes, liens and charges in respect of
the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously with such issue).
3. Charges, Taxes and Expenses. Issuance of certificates for the
Shares upon the exercise of this Warrant (or portion thereof) shall be
made without charge to the registered holder hereof for any issue or
transfer tax or other incidental expense in respect of the issuance of
such certificate, all of which taxes and expenses shall be paid by the
Company, and such certificates shall be issued in the name of the
registered holder of this Warrant or in such name or names as may be
directed by the registered holder of this Warrant; provided, however,
that in the event certificates for the Shares are to be issued in a
name other than the name of the registered holder of this Warrant,
this Warrant when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the holder hereof;
and provided further, that upon any transfer involved in the issuance
or delivery of any certificates for the Shares, the Company may
require, as a condition thereto, the payment of a sum sufficient to
reimburse it for any transfer tax incidental thereto.
4. No Rights as Shareholder. This Warrant and the purchase
rights represented hereby do not entitle the holder hereof to any
rights (including voting rights) as a shareholder of the Company prior
to the exercise hereof.
5. Exchange and Registry of Warrant. This Warrant is
exchangeable, upon the surrender hereof by the registered holder at
the above-mentioned office or agency of the Company, for a new Warrant
of like tenor and dated as of such exchange. The Company shall
maintain at the above-mentioned office or agency a registry showing
the name and address of the registered holder of this Warrant. This
Warrant may be surrendered for exchange, transfer or exercise, in
accordance with its terms, at such office or agency of the Company,
and the Company shall be entitled to rely in all respects, prior to
written notice to the contrary, upon such registry.
6. Transfer or Assignment of Warrant.
(a) This Warrant may not be assigned or transferred except
as provided herein and in accordance with and subject to the
provisions of the Securities Act of 1933, as amended, and the Rules
and Regulations promulgated thereunder (such Act and such Rules and
Regulations being hereinafter collectively referred to as the "Act").
Any purported transfer or assignment made other than in accordance
with this Section6 shall be null and void and of no force and effect.
(b) This Warrant shall be transferable only upon receipt
by the Company, if requested by the Company, of an opinion of counsel
satisfactory to the Company, which may be counsel to the Company, that
(i)the transferee is a person to whom this Warrant may be legally
transferred without registration under the Act, and (ii)such transfer
will not violate any applicable law or governmental rule or
regulation, including, without limitation, any applicable federal or
state securities law. Prior to the transfer or assignment, the
assignor or transferor shall reimburse the Company for its expenses,
including attorneys' fees, incurred in connection with the transfer or
assignment.
(c) Any assignment permitted hereunder shall be made by
surrender of this Warrant to the Company at its principal office with
the Assignment Form annexed hereto duly executed and funds sufficient
to pay any transfer tax. In such event the Company shall, without
charge, execute and deliver a new Warrant in the name of the assignee
named in such instrument of assignment and this Warrant shall promptly
be cancelled. This Warrant may be divided or combined with other
warrants which carry the same rights together with a written notice
signed by the holder thereof, specifying the names and denominations
in which new warrants are to be issued. Upon the transfer of all or
a portion of this Warrant in accordance with the terms of this
Agreement, the new holder or holders shall have and hold all of the
rights of the transferor hereunder.
7. Loss, Theft, Destruction or Mutilation of Warrant. Upon
receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft or destruction or mutilation of this Warrant, and in
case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to it, and upon reimbursement to the Company
of all reasonable expenses incidental thereto, and upon surrender and
cancellation of this Warrant, if mutilated, the Company will make and
deliver a new Warrant of like tenor and dated as of such cancellation,
in lieu of this Warrant.
8. Saturdays, Sundays, Holidays, etc. If the last or appointed
day for the taking of any action or the expiration of any right
required or granted herein shall be a Saturday or a Sunday or a legal
holiday, then such action may be taken or such right may be exercised
on the next succeeding day not a Saturday, Sunday or legal holiday.
9. Merger, Sales of Assets, etc. If at any time prior to the
Termination Date the Company proposes to consolidate with or merge
with or sell or convey all or substantially all of its assets to any
other corporation, then the Company shall give the holder of this
Warrant thirty (30) days notice of the proposed effective date of such
transaction and the holder of this Warrant shall have the option, in
its sole discretion, of exercising or selling this Warrant in
connection with such transaction. The Company will cooperate with the
holder in arranging the sale of this Warrant in connection with any
such transaction. The selling price per share of Common Stock covered
by this Warrant shall be equal to the consideration per share to be
received by the holders of Common Stock less the per share exercise
price hereunder.
10. Adjustment of Exercise Price and Number of Shares. The
Exercise Price and number of shares of Common Stock purchasable
hereunder are subject to the adjustment from time to time as follows:
(a) Reclassification, etc. If the Company at any time
shall, by subdivision, combination, reclassification or modification
of terms of securities or otherwise, change any of the securities to
which purchase rights under this Warrant exist into the same or a
different number of securities of any class or classes, this Warrant
shall thereafter entitle the holder to acquire such number and kind of
securities as would have been issuable as the result of such change
with respect to the securities which were subject to the purchase
rights under this Warrant immediately prior to such subdivision,
combination, reclassification or other change. If the shares of
Common Stock, or other securities purchasable hereunder, are
subdivided or combined into a greater or smaller number of shares, the
number of shares thereof issuable upon exercise of this Warrant shall
be appropriately adjusted and the Exercise Price per share under this
Warrant shall be proportionately reduced in case of a subdivision of
such Shares or proportionately increased in the case of a combination
of such shares, in both cases by the ratio which the total number of
such shares to be outstanding immediately after such event bears to
the total number of such shares outstanding immediately prior to such
event. Any stock dividend with respect to the shares of Common Stock
or other securities purchasable hereunder, shall be treated in a
manner substantially the same as a stock split thereof.
(b) Cash Distribution. No adjustments on account of cash
dividends or interest on the Company's Preferred Stock or Common Stock
or other securities purchasable hereunder will be made to the Exercise
Price.
(c) Rights Offering. In the event that the Company
proposes to effect a pro rata rights offering to all its existing
shareholders, the holder of this Warrant shall be entitled to
participate in such rights offering. For purposes of any such rights
offering, all shares of Common Stock covered by this Warrant shall be
deemed to have been issued and the Common Stock issuable upon such
exercise shall be deemed to be outstanding.
11. Certain Notices. In case:
(a) the Company shall take a record of the holders of its
capital stock for the purpose of entitling them to receive a dividend,
or any other distribution; or
(b) the Company shall take a record of the holders of its
capital stock for the purpose of entitling them to subscribe for or
purchase any shares of stock of any class or to receive any other
rights or options; or
(c) the Company commences proceedings for dissolution,
liquidation or winding up of the corporation then, and in any such
case, the Company shall cause to be mailed to the holder of record of
the Warrants at least thirty (30) days prior to the record date or the
date of the proposed action, a notice stating the date on which (x) a
record is to be taken for the purpose of such dividend, distribution,
subscription, purchase or receipt, or (y) such reclassification,
reorganization, consolidation, merger, conveyance, dissolution,
liquidation or winding up is to take place.
12. Reservation of Shares. The Company covenants that during the
period any purchase right under this Warrant is exercisable, it will
reserve from its authorized and unissued Common Stock a sufficient
number of shares thereof to provide for the issuance of shares of
Common Stock or other securities purchasable hereunder, upon the
exercise of any purchase rights under this Warrant. The Company
further covenants that its issuance of shares of Common Stock pursuant
hereto shall constitute full authority to its officers who are charged
with the duty of executing stock certificates to execute and issue the
necessary certificates for shares of the Common Stock upon the
exercise of purchase rights under this Warrant.
13. Miscellaneous.
(a) Binding Effect. The provisions of this Warrant shall
be binding upon any successors or assigns of the Company and upon any
successors and permitted assigns of the holder hereof. This Warrant
shall constitute a contract under, and shall be construed in
accordance with and governed by, the laws of the State of California.
(b) Restrictions. The holder hereof acknowledges that the
issuance of this Warrant and the Shares acquired upon the exercise of
this Warrant shall have restrictions upon their resale imposed by
applicable state and federal securities laws.
THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, HAVE BEEN ACQUIRED FOR
INVESTMENT ONLY AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT OR AN EXEMPTION THEREFROM.
IN WITNESS WHEREOF, HYPERBARIC SYSTEMS has caused this Warrant to be
executed by its duly authorized officer.
Dated: July 5, 2001
HYPERBARIC SYSTEMS
By: /s/ Xxxxx Xxxxxx
------------
Xxxxx Xxxxxx
President
NOTICE OF EXERCISE
HYPERBARIC SYSTEMS
The undersigned hereby irrevocably elects to exercise the right to
purchase shares of the Common Stock of HyperBaric Systems, as
represented by the Common Stock Purchase Warrant delivered herewith,
and requests that certificates for such shares be issued in the name
of:
(Please print name, address and social security number)
and, if said number of shares shall not be all the shares purchasable
thereunder, that a new Common Stock Purchase Warrant for the balance
remaining of the shares purchasable under the within Warrant be
registered in the name of the undersigned Warrant holder as below
indicated and delivered to the address stated below.
DATED: _________, 200_
Address:
Signature:
NOTE: The above signature must correspond exactly with the name of
the Warrant holder as subscribed to the within Warrant in every
particular, without alteration or enlargement or any change
whatsoever.
FORM OF ASSIGNMENT
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfer
unto
(Name and address of assignee must be printed or typewritten)
the within Warrant, hereby irrevocably constituting and appointing
Attorney to transfer said Warrant on the books of the Company, with
full power of substitution in the premises.
DATED: _________, 200_
(Signature of Registered Owner)
