WARRANT NO. _______
WARRANT TO PURCHASE COMMON STOCK
OF
THE MED-DESIGN CORPORATION
This certifies that, FOR VALUE RECEIVED, XXXXXXXX X. XXXXX (the
"Grantee") is entitled to purchase, subject to the provisions of this Warrant,
from The Med-Design Corporation, a Delaware Corporation (the "Company") Sixty
Six Thousand (66,000) fully paid, validly issued and nonassessable shares of
common stock , $.01 par value per share (the "Common Stock"), of the Company
(the "Warrant Shares") at a price of $11.875 per share (the "Exercise Price").
1. Grant of Warrant. Subject to the terms and conditions set forth in this
Agreement and in the Employment Agreement dated as of April 25, 2000 by and
between the Company, Med-Design Research and Xxxxxxxx X. Xxxxx (the "Employment
Agreement"), the Company hereby grants to the Grantee a warrant (the "Warrant")
to purchase 66,000 shares of Common Stock at an exercise price of $11.875 per
share. The Warrant shall become exercisable according to Paragraphs 2 and 5
below.
2. Exercisability of Warrant. The Warrant shall become exercisable on the
following dates:
Date Shares for Which the Warrant is Exercisable
---- -------------------------------------------
April 25, 2000 33,000
April 25, 2001 33,000
The exercisability of the Warrant is cumulative. In the event the Company shall
at any time subdivide, combine or reclassify the outstanding shares of Common
Stock, the number of Warrant Shares subject to this Warrant shall be adjusted
accordingly and the exercise price shall forthwith be proportionately decreased
in the case of a subdivision or increased in the case of a combination.
3. Term of Warrant. The Warrant shall terminate on April 25, 2005. The Warrant
shall automatically terminate upon Grantee being terminated for cause (as
defined in the Employment Agreement) or upon Grantee voluntarily terminating his
employment with the Company.
4. Exercise Procedures.
(a) Subject to the provisions of Paragraphs 2 and 3 above, the Grantee
may exercise part or all of the Warrant by delivering to the Company this
Warrant with the Notice of Exercise form annexed hereto, duly executed,
specifying the number of Warrant Shares as to which the Warrant is to be
exercised, together with the exercise price in cash.
(b) The obligation of the Company to deliver Warrant Shares upon
exercise of the Warrant shall be subject to all applicable laws, rules, and
regulations and such approvals by governmental agencies as may be deemed
appropriate by the Board, including such actions as Company counsel shall deem
necessary or appropriate to comply with relevant securities laws and
regulations. The Company may require that the Grantee (or other person
exercising the Warrant after the Grantee's death) represent that the Grantee is
purchasing Warrant Shares for the Grantee's own account and not with a view to
or for sale in connection with any distribution of the Warrant Shares, or such
other representation as the Board deems appropriate. All obligations of the
Company under this Agreement shall be subject to the rights of the Company to
withhold amounts required to be withheld for any taxes, if applicable. Subject
to Board approval, the Grantee may elect to satisfy any income tax withholding
obligation of the Company with respect to the Warrant by having Warrant Shares
withheld up to an amount that does not exceed the minimum applicable withholding
tax rate for federal (including FICA), state and local tax liabilities.
5. Fractional Shares. No fractional shares or script representing fractional
shares shall be issued upon the exercise of this Warrant.
6. Change of Control or Death. Unless this Warrant shall have been terminated as
of an earlier time, upon a Change of Control or the Grantee's death, the Warrant
shall automatically accelerate and become fully exercisable.
As used herein, a "Change of Control" shall be deemed to have occurred
if:
(a) Any "person" (as such term is used in sections 13(d) and 14(d) of
the Exchange Act) (other than persons who are shareholders on the effective date
of this Agreement) becomes a "beneficial owner" (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934), directly or indirectly, of securities of
the Company representing more than 50% of the voting power of the then
outstanding securities of the Company; provided that a Change of Control shall
not be deemed to occur as a result of a change of ownership resulting from the
death of a shareholder, and a Change of Control shall not be deemed to occur as
a result of a transaction in which the Company becomes a subsidiary of another
corporation and in which the shareholders of the Company, immediately prior to
the transaction, will beneficially own, immediately after the transaction,
shares entitling such shareholders to more than 50% of all votes to which all
shareholders of the parent corporation would be entitled in the election of
directors (without consideration of the rights of any class of stock to elect
directors by a separate class vote); or
(b) The consummation of (i) a merger or consolidation of the Company
with another corporation where the shareholders of the Company, immediately
prior to the merger or consolidation, will not beneficially own, immediately
after the merger or consolidation, shares entitling such shareholders to more
than 50% of all votes to which all shareholders of the surviving corporation
would be entitled in the election of directors (without consideration of the
rights of any class of stock to elect directors by a separate class vote), (ii)
a sale or other disposition of all or substantially all of the assets of the
Company, or (iii) a liquidation or dissolution of the Company.
7. Restrictions on Exercise. Only the Grantee may exercise the Warrant during
the Grantee's lifetime and, after the Grantee's death, the Warrant shall be
exercisable solely by the legal representatives of the Grantee, or by the person
who acquires the right to exercise the Warrant by will or by the laws of descent
and distribution, to the extent that the Warrant is exercisable pursuant to this
Agreement.
8. No Shareholder Rights. Neither the Grantee, nor any person entitled to
exercise the Grantee's rights in the event of the Grantee's death, shall have
any of the rights and privileges of a shareholder with respect to the Warrant
Shares subject to the Warrant, until certificates for Warrant Shares have been
issued upon the exercise of the Warrant.
9. Assignment and Transfers. The rights and interests of the Grantee under this
Agreement may not be sold, assigned, encumbered or otherwise transferred except,
in the event of the death of the Grantee, by will or by the laws of descent and
distribution. In the event of any attempt by the Grantee to alienate, assign,
pledge, hypothecate, or otherwise dispose of the Warrant or any right hereunder,
except as provided for in this Agreement, or in the event of the levy or any
attachment, execution or similar process upon the rights or interests hereby
conferred, the Company may terminate the Warrant by notice to the Grantee, and
the Warrant and all rights hereunder shall thereupon become null and void. The
rights and protections of the Company hereunder shall extend to any successors
or assigns of the Company and to the Company's parents, subsidiaries, and
affiliates. This Agreement may be assigned by the Company without the Grantee's
consent.
10 Applicable Law. The validity, construction, interpretation and effect of this
instrument shall be governed by and construed in accordance with the laws of the
State of Delaware, without giving effect to the conflicts of laws provisions
thereof.
11 Notice. Any notice to the Company provided for in this instrument shall be
addressed to the Company in care of the Chief Executive Officer at Med-Design
Corporation, 0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxxxxx 00000, and any notice to the
Grantee shall be addressed to such Grantee at the current address shown on the
payroll of the Company, or to such other address as the Grantee may designate to
the Company in writing. Any notice shall be delivered by hand, sent by telecopy
or enclosed in a properly sealed envelope addressed as stated above, registered
and deposited, postage prepaid, in a post office regularly maintained by the
United States Postal Service. All notices given in accordance herewith shall be
deemed given (i) on the date of delivery, if hand delivered, (ii) on the date of
receipt, if telecopied, (iii) three business days after the date of mailing, if
mailed by registered or certified mail, return receipt requested, and (iv) one
business day after the date of sending, if sent by Federal Express or other
recognized overnight courier.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer and its corporate seal to be affixed
hereto.
Dated: April 25, 2000
THE MED-DESIGN CORPORATION
(CORPORATE SEAL) By: ______________________________
Name: ___________________________
Title: __________________________
ATTEST:
-------------------------
Secretary
NOTICE OF EXERCISE
The undersigned registered holder or assignee of such
registered holder of the within Warrant, hereby elects to purchase ___________
Warrant Shares that the undersigned is entitled to purchase under the terms of
the within Warrant, and tenders herewith payment therefor in full. Such shares
shall be issued in the name of the undersigned or as otherwise specified below:
--------------------------------------
(Name)
--------------------------------------
(Address)
If the shares issuable upon exercise do not constitute all
shares issuable as provided in the within Warrant, a new warrant of like tenor
for the number of shares of Common Stock of the Company not being purchased
hereunder shall be issued in the name of the undersigned.
Dated: ________________, 200_ By: ________________________
(Signature)
