EXHIBIT 1
STOCK OPTION AGREEMENT
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November 22, 1996
Xxxxx X. Xxxxxxxx, CPA
Chief Executive Officer
INTERWEST HOME MEDICAL, INC.
000 Xxxx 0000 Xxxxx
Xxxx Xxxx Xxxx, XX 00000
Re: Letter Agreement/Stock Purchase Options
Dear Xx. Xxxxxxxx:
The purpose of this letter is to set forth the agreement (hereinafter
referred to as this "Letter Agreement") among INTERWEST HOME MEDICAL, INC., a
Utah corporation (hereinafter referred to as "the Company") and Xxxxxxx X.
Xxxxxxxxxx, Xxxx X. Xxxxxxxx, Xx., Xxxxxxx X. XxXxxxxx, and Xxxx X. Xxxxxxx, all
residents of the State of California, Xxxx X. Xxxxxx, M.D., Xxxxx X. Xxxxxxx,
M.D., and H. Xxxxx Xxxxxxx, X.X., all residents of the State of Missouri, and
Xxxxxx Xxxxx, M.D., a resident of the State of Kansas (all eight of which
individuals hereinafter collectively referred to as "Optionees") with respect to
the acquisition of certain options to acquire shares of the common capital stock
of the Company by Optionees, as set forth herein.
The Company and Optionees, upon execution of this Letter Agreement and in
exchange for $10.00 and other good and valuable consideration, each to the
other, in hand paid, the receipt and sufficiency of which is hereby acknowledged
by the Company and Optionees, do hereby agree as follows:
1. First Stock Option. Upon the terms and conditions of this section 1,
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the Company shall grant Optionees the right to purchase shares of the Company's
common stock (the "First Stock Option"). The First Stock Option shall terminate
and shall be of no force or effect unless the Optionees pay to the Company a
non-refundable option fee of One Hundred Thousand Dollars ($100,000) (the "First
Option Fee"), within ten (10) days from the Effective Date hereof. The First
Option Fee shall be paid by bank wire or cashiered funds.
1.1 Upon the payment of the First Option Fee by the Optionees to the
Company within ten (10) days from the Effective Date, the Company shall grant
Optionees the right to purchase One Hundred Sixty Two Thousand Five Hundred
(162,500) shares of the common capital stock of the Company, as adjusted for all
stock splits or stock dividends from and after the date hereof, if any
(hereinafter referred to as the "First Option Shares").
1.2 The First Stock Option shall be exercisable for a period of one
hundred eighty (180) days commencing on the date of the payment of the First
Option Fee.
1.3 The total purchase price for the First Option Shares shall be, in
the aggregate, Six Hundred Ninety Five Thousand Five Hundred Dollars ($695,500)
(the "First Exercise Price"). The per share purchase price for the First Option
Shares is Four and 28/100 Dollars ($4.28). The First Option Fee shall be
credited to the First Exercise Price (i.e., upon Optionees purchase of the
optioned shares, Five Hundred Ninety Five Thousand Five Hundred Dollars
($595,500) would be payable). The First Option Fee is non-refundable and if the
First Stock Option is not exercised, the First Option Fee shall be retained in
full by the Company.
1.4 If all or any part of the First Option Shares are purchased
within ninety (90) days of the Effective Date hereof, each share purchased shall
entitle the purchaser(s) thereof to the simultaneous issuance by the Company of
warrants ("Warrants") to purchase one common share (i.e., a maximum total of an
additional one Hundred Sixty Two Thousand Five Hundred (162,500) common shares),
as adjusted for all stock splits or stock dividends from and after the date
hereof, if any. The Warrants shall be for a term of three years commencing on
the Effective Date hereof and shall be exercisable at a price of Four and 28/100
Dollars ($4.28) per share if exercised during the first Warrant year, Four and
75/100 Dollars ($4.75) per share if exercised during the second Warrant year and
Five and 25/100 Dollars ($5.25) per share if exercised during the third Warrant
year. The Warrants shall be in the form of and have such benefits and
restrictions as set forth in Exhibit "A" attached hereto.
1.5 The First Option Shares shall have certain restrictions as
further set forth herein.
2. Second Stock Option. Upon the terms and conditions of this section 2,
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the Company shall grant Optionees the right to purchase shares of the Company's
common stock (the "Second Stock Option"). The Second Stock Option shall
terminate and shall be of no force or effect unless the Optionees pay to the
Company a non-refundable option fee of One Hundred Thousand Dollars ($100,000)
(the "Second Option Fee") within ninety (90) days from the date of the payment
of the First Option Fee described in section 1 above. The Second Option Fee
shall be paid by bank wire or cashiered funds.
2.1 Upon the payment of the Second Option Fee by the Optionees to the
Company within ninety (90) days from the date of payment of the First Option
Fee, the Company shall grant Optionees the right to purchase One Hundred Forty
Two Thousand Eight Hundred Fifty Seven (142,857) shares of the common capital
stock of the Company, as adjusted for all stock splits or stock dividends from
and after the date hereof, if any (hereinafter referred to as the "Second Option
Shares").
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2.2 The Second Stock Option shall be exercisable for a period of one
hundred thirty-five (135) days commencing on the date of the payment of the
Second Option Fee.
2.3 The total purchase price for the Second Option Shares shall be,
in the aggregate, Six Hundred Eighty Two thousand Eight Hundred Fifty Six and
46/100 Dollars ($682,856.46) (the "Second Exercise Price"). The per share
purchase price for the Second Option Shares is Four and 78/100 Dollars ($4.78).
The Second Option Fee shall be credited to the Second Exercise Price (i.e., upon
Optionees purchase of the optioned shares, Five Hundred Eighty Two Thousand
Eight Hundred Fifty Six and 46/100 Dollars ($582,856.46) would be payable). The
Second Option Fee is non-refundable and if the Second Stock Option is not
exercised, the Second Option Fee shall be retained in full by the Company.
2.4 If all or any part of the Second Option Shares are purchased
within ninety (90) days of the payment of the Second Option Fee, each share
purchased shall entitle the purchaser(s) thereof to the simultaneous issuance by
the Company of warrants ("Warrants") to purchase one common share (i.e., a
maximum total of an additional One Hundred Forty Two Thousand Eight Hundred
Fifty Seven (142,857) common shares), as adjusted for all stock splits or stock
dividends from and after the date hereof, if any. The Warrants shall be for a
term of three years commencing on the date of the payment of the Second Option
Fee and shall be exercisable at a price of Four and 78/100 Dollars ($4.78) per
share if exercised during the first Warrant year, Five and 25/100 Dollars
($5.25) per share if exercised during the second Warrant year and Five and
75/100 Dollars ($5.75) per share if exercised during the third Warrant year.
The Warrants shall be in the form of and have such benefits and restrictions as
set forth in Exhibit "A" attached hereto.
2.5 The Second Option Shares shall have certain restrictions as
further set forth herein.
3. Third Stock Option. Upon the terms and conditions of this section 3,
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the Company shall grant Optionees the right to purchase shares of the Company's
common stock (the "Third Stock Option"). The Third Stock Option shall terminate
and shall be of no force or effect unless the Optionees pay to the Company a
non-refundable option fee of One Hundred Thousand Dollars ($100,000) (the "Third
Option Fee") within ninety (90) days from the date of the payment of the Second
Option Fee described in section 2 above. The Third Option Fee shall be paid by
bank wire or cashiered funds.
3.1 Upon the payment of the Third Option Fee by the Optionees to the
Company within ninety (90) days from the date of the payment of the Second
Option Fee, the Company shall grant Optionees the right to purchase One Hundred
Forty Thousand (140,000) shares of the common capital stock of the Company, as
adjusted for all stock splits or stock dividends from and after the date hereof,
if any (hereinafter referred to as the "Third Option Shares").
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3.2 The Third Stock Option shall be exercisable for a period of one
hundred thirty five (135) days commencing on the date of the payment of the
Third Option Fee.
3.3 The total purchase price for the Third Option Shares shall be, in
the aggregate, Seven Hundred Seventy Thousand Dollars ($770,000) (the "Third
Exercise Price"). The per share purchase price for the Third Option Shares is
Five and 50/100 Dollars ($5.50). The Third Option Fee shall be credited to the
Third Exercise Price (i.e., upon Optionees purchase of the optioned shares, Six
Hundred Seventy Thousand Dollars ($670,000) would be payable). The Third Option
Fee is non-refundable and if the Third Stock Option is not exercised, the Third
Option Fee shall be retained in full by the Company.
3.4 If all or any part of the Third Option Shares are purchased
within ninety (90) days of the payment of the Third Option Fee, each share
purchased shall entitle the purchaser(s) thereof to the simultaneous issuance by
the Company of warrants ("Warrants") to purchase one common share (i.e., a
maximum total of an additional One Hundred Forty Thousand (140,000) common
shares), as adjusted for all stock splits or stock dividends from and after the
date hereof, if any. The Warrants shall be for a term of three years commencing
on the date of the payment of the Third Option Fee and shall be exercisable at a
price of Five and 50/100 Dollars ($5.50) per share if exercised during the first
Warrant year, Six Dollars ($6.00) per share if exercised during the second
Warrant year and Six and 50/100 Dollars ($6.50) per share if exercised during
the third Warrant year. The Warrants shall be in the form of and have such
benefits and restrictions as set forth in Exhibit "A" attached hereto.
3.5 The Third Option Shares shall have certain restrictions as
further set forth herein.
4. Fourth Stock Option. Upon the terms and conditions of this section 4,
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the Company shall grant Optionees the right to purchase shares of the Company's
common stock (the "Fourth Stock Option"). The Fourth Stock Option shall
terminate and shall be of no force or effect unless the Optionees pay to the
Company a non-refundable option fee of One Hundred Thousand Dollars ($100,000)
(the "Fourth Option Fee") within ninety (90) days from the date of the payment
of the Third Option Fee described in section 3 above. The Fourth Option Fee
shall be paid by bank wire or cashiered funds.
4.1 Upon the payment of the Fourth Option Fee by the Optionees to the
Company within ninety (90) days from the date of the payment of the Third Option
Fee, the Company shall grant Optionees the right to purchase One Hundred Forty
Thousand (140,000) shares of the common capital stock of the Company, as
adjusted for all stock splits or stock dividends from and after the date hereof,
if any (hereinafter referred to as the "Fourth Option Shares").
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4.2 The Fourth Stock Option shall be exercisable for a period of one
hundred thirty five (135) days commencing on the date of the payment of the
Fourth Option Fee.
4.3 The total purchase price for the Fourth Option Shares shall be,
in the aggregate, Eight Hundred Forty Thousand Dollars ($840,000) (the "Fourth
Exercise Price"). The per share purchase price for the Fourth Option Shares is
Six and no/100 Dollars ($6.00). The Fourth Option Fee shall be credited to the
Fourth Exercise Price (i.e., upon Optionees purchase of the optioned shares,
Seven Hundred Forty Thousand Dollars ($740,000) would be payable). The Fourth
Option Fee is non-refundable and if the Fourth Stock Option is not exercised,
the Fourth Option Fee shall be retained in full by the Company.
4.4 If all or any part of the Fourth Option Shares are purchased
within ninety (90) days of the payment of the Fourth Option Fee, each share
purchased shall entitle the purchaser(s) thereof to the simultaneous issuance by
the Company of warrants ("Warrants") to purchase one common share (i.e., a
maximum total of an additional One Hundred Forty Thousand (140,000) common
shares), as adjusted for all stock splits or stock dividends from and after the
date hereof, if any. The Warrants shall be for a term of three years commencing
on the date of the payment of the Fourth Option Fee and shall be exercisable at
a price of Six Dollars ($6.00) per share if exercised during the first Warrant
year, Six and 50/100 Dollars ($6.50) per share if exercised during the second
Warrant year and Seven Dollars ($7.00) per share if exercised during the third
Warrant year. The Warrants shall be in the form of and have such benefits and
restrictions as set forth in Exhibit "A" attached hereto.
4.5 The Fourth Option Shares shall have certain restrictions as
further set forth herein.
5. Rule 144 Restrictions. The First Option Shares, the Second Option
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Shares, the Third Option Shares, the Fourth Option Shares (collectively the
"Option Shares") and share purchased by the exercise of Warrants, if any, shall
be "restricted securities" as such term is defined in Rule 144 ("Rule 144")
promulgated under the Securities Act of 1933, as amended (the "Securities Act")
and the certificates representing such securities shall bear a legend as
follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR THE SECURITIES LAW OF ANY STATE. NO TRANSFER OF THIS
CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND THE LAWS OF
SUCH STATES UNDER WHOSE LAWS A TRANSFER OF SECURITIES WOULD BE
SUBJECT TO A REGISTRATION REQUIREMENT, UNLESS THE COMPANY AND ITS
COUNSEL HAVE RECEIVED A SATISFACTORY OPINION OF
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COUNSEL THAT SUCH TRANSFER DOES NOT REQUIRE REGISTRATION UNDER THE
ACT OR THE SECURITIES LAWS OF SUCH STATES."
6. Registration Rights. The shares purchased by Optionees upon the
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exercise of the Options or the exercise of Warrants shall have the registration
rights provided for in this Section 6. Any and all shares purchased upon the
exercise of the Options or Warrants are hereafter referred to as the
"Registrable Stock" and the record owners of such Registrable Stock are
hereafter referred to as the "Holders".
6.1 Right to Piggyback. Whenever the Company proposes to register
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any of its securities under the Securities Act and the registration form to be
used may be used for the registration of any of the Registrable Stock in
connection with the resale thereof by the Holders (a "Piggyback Registration"),
the Company will (i) give no less than fifteen (15) days prior written notice to
all Holders of its intention to effect such a registration (the "Registration
Notice"), and (ii) include in such registration all Registrable Stock issued
prior to the date fifteen (15) days following the date of the Registration
Notice in accordance with the priorities set forth in Sections 6.3 and 6.4
below. The obligations of the Company to register a particular share of
Registrable Stock shall expire on the date which is two (2) years after such
share of Registrable Stock was issued to a Holder provided that the Company has
filed all reports required to be filed by it pursuant to the Securities Act and
the Securities Exchange Act of 1934, as amended, and has taken such other action
as any Holder may reasonably request, all to the extent required to enable
Holders to sell Registrable Stock pursuant to Rule 144 adopted by the Securities
and Exchange Commission ("SEC") (as such rule may be amended from time to time)
or any similar rule or regulation hereafter adopted by the SEC.
6.2 Piggyback Expenses. All expenses incident to the Company's
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performance of or compliance with this Section 6, including, without limitation,
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses,
and fees and disbursements of counsel for the Company and all independent
certified public accountants, underwriters (excluding discounts and commissions
relating to Registrable Stock) and other persons or entities retained by the
Company in connection with any Piggyback Registration will be paid by the
Company. Holders shall pay for fees and disbursements of counsel retained by
Holders (or any of them) and, if the Piggyback Registration is an underwritten
offering, shall pay all underwriting discounts and commissions relating to the
sale of Registrable Stock.
6.3 Priority on Primary Registrations. If a Piggyback Registration
---------------------------------
is an underwritten primary registration on behalf of the Company and the
managing underwriters advise the Company in writing that in their opinion the
number of securities to be included in such registration exceeds the number
which can be sold in such offering, the Company will include in such
registration (i) first, the securities that the Company proposes to sell and
Registrable Stock prorata among the Company and the
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Holders on the basis of the number of shares which the Company proposes to
register and the number of shares of Registrable Stock issued to Holders prior
to the date of the Registration Notice; provided, however, that in no event will
the Registrable Stock issued to the Holders prior to the date of the
Registration Notice exceed forty percent (40%) of the securities being sought
for underwritten primary registration if the Company is unable to register all
of the securities for which the Company sought underwritten primary
registration.
6.4 Priority of Secondary Registrations. If a Piggyback Registration
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is an underwritten secondary registration on behalf of holders of the Company's
securities and the managing underwriters advise the Company in writing that in
their opinion the number of securities to be included in such registration
exceeds the number which can be sold in such offering, the Company will include
in such registration (i) first, the Registrable Stock of the Holders acquired
pursuant to this Letter Agreement prior to the date of the Registration Notice
prorata among the Holders, (ii) second, the securities requested to be included
therein by the other holders (other than the Holders) requesting such
registration, and (iii) third, the other securities requested to be included in
such registration, if any.
6.5 Mandatory Registration. If Holders purchase all of the First
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Option Shares and all of the Second Option Shares, the Company hereby agrees,
notwithstanding any provision herein to the contrary, to (i) file a registration
statement relating to all such First Option Shares and Second Option Shares
purchased no later than ninety (90) days after the date the last of said First
Option Shares and said Second Option Shares are purchased by the Holders (the
"Mandatory Registration") and (ii) register all additional Third Option Shares
and Fourth Option Shares and shares purchased by the Holders by the exercise of
Warrants, if any, purchased prior to the date of the filing of said Mandatory
Registration.
6.6 Selection of Underwriters. The Holders shall have no right to
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select or participate in the selection of any investment banker(s) or manager(s)
to administer any offering.
7. Holdback Agreements.
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7.1 In connection with any underwritten Piggyback Registration, each
Holder agrees not to effect any public sale or distribution of equity securities
of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven (7) days prior to and the
ninety (90) day period beginning on the effective date of any such underwritten
Piggyback Registration in which any shares of Registrable stock are included,
unless the underwriters managing the registered public offering otherwise agree
and such sale or distribution otherwise complies with Regulation (S) 240.10b-6
of the Exchange Act; provided, however, that the Holders may elect, at their
option, to not have the underwriter sell the Registrable Stock the Holders have
registered and to otherwise determine the method and timing of the sale of the
securities so registered without regard to the holdback provisions hereof.
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7.2 It is expressly understood that the rights of any Optionee
hereunder are expressly subject to any agreements by and between said Optionee
and the Company concerning the transfer or sale of any Option Shares and shares
purchased by the exercise of Warrants, if any, (including Sections 10 and 11
below), or any interest therein, whether contained herein, in the Company's
articles of incorporation on file prior hereto or other constituent documents on
file and specifically disclosed to Optionees by the Company prior to the
Effective Date hereof, or otherwise on file and specifically disclosed to
Optionees by the Company prior to the Effective Date hereof.
8. Registration Procedures. Whenever Registrable Stock will be
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registered pursuant to this Agreement, the Company will use its best efforts to
effect the registration and the sale of such Registrable Stock in accordance
with the intended method of disposition thereof, and pursuant thereto, the
Company will as expeditiously as possible:
8.1 Prepare and file with the SEC a registration statement filed
pursuant to the Securities Act on Form X-0, X-0, X-0, XX-0 or SB-2 or any
similar registration statement pursuant to which Registrable Stock may be
registered (a "Registration Statement") with respect to such Registrable Stock
and use its best efforts to cause such Registration Statement to become
effective (provided that, no less than ten (10) days before filing a
Registration Statement or prospectus or any amendments or supplements thereto,
the Company will furnish to the counsel or counsels of Optionees copies of all
such documents proposed to be filed);
8.2 Prepare and file with the SEC such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for a period of
not less than two (2) years and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration Statement;
8.3 Furnish to each Holder such number of copies of such Registration
Statement, each amendment and supplement thereto, the prospectus included in
such Registration Statement (including each preliminary prospectus) and such
other documents as such Holder may reasonably request in order to facilitate the
disposition of the Registrable Stock owned by such Holder;
8.4 Use its best efforts to register or qualify such Registrable
Stock under such other securities or blue sky laws of such jurisdictions as any
Holder reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate the
disposition in such jurisdictions of Registrable Stock owned by such Holder
(provided that the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this subparagraph, (ii) subject itself to
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taxation in any such jurisdiction, or (iii) consent to general service of
process in any such jurisdiction);
8.5 Notify each Holder, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening
of any event as a result of which the prospectus included in such Registration
Statement contains an untrue statement of material fact or omits any fact
necessary to make the statements therein not misleading, and, at the request of
any such Holder, the Company will prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of Registrable
Stock such prospectus will not contain an untrue statement of material fact or
omit to state any fact necessary to make the statements therein not misleading.
8.6 Cause all such Registrable Stock to be listed on each securities
exchange on which similar securities issued by the Company are then listed, if
any; and
8.7 Provide a transfer agent and registrar for all such Registrable
Stock not later than the effective date of such Registration Statement;
8.8 Make available for inspection during normal business hours by any
Holder, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent retained by
any such Optionee or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company and cause the Company's
officers, directors, employees and independent accounts to supply all
information reasonably requested by any such Optionee, underwriter, attorney,
accountant or agent in connection with such Registration Statement.
9. Indemnification.
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9.1 The Company agrees to indemnify, to the extent permitted by law,
each Holder against all losses, claims, damages, liabilities and expenses caused
by any untrue or alleged untrue statement of material fact contained in any
Registration Statement, prospectus or preliminary prospectus or any amendment
thereto or any omission or alleged omission of a material fact required to be
stated therein, except insofar as the same are caused by or contained in any
information furnished to the Company by Optionees (or any of them) expressly for
use therein or which Optionees (or any of them) failed to provide after being so
requested or by any Optionee's failure to deliver a copy of the Registration
Statement or prospectus or any amendments or supplements thereto after the
company has furnished such Optionee with a sufficient number of copies of the
same or which is otherwise attributable of the negligence or willful misconduct
of any Optionee.
9.2 In connection with any Registration Statement in which any
Optionee is participating, each such Optionee will furnish to the Company in
writing, within fifteen (15) days after written request therefor, such
information and affidavits as
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the Company reasonably requests for use in connection with any such Registration
Statement or prospectus and, to the extent permitted by law, will indemnify the
Company, its directors and officers, each person or entity who controls the
Company (within the meaning of the Securities Act), against any losses, claims,
damages, liabilities and expenses resulting from any untrue or alleged untrue
statement of material fact contained or required to be contained in the
Registration Statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but only to the extent that such untrue statement or omission is
contained or required to be contained in any information or affidavit so
furnished or required to be so furnished in writing by such Optionee.
9.3 Any person or entity entitled to indemnification hereunder will
(i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification, and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim, with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without the indemnifying party's consent (but such
consent will not be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim.
9.4 The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling person or entity
of such indemnified party and will survive the transfer of securities. The
company and Optionees also agree to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in the event
the Company's or any Optionee's indemnification, as the case may be, is
unavailable for any reason.
10. Purchased Option Shares Possibly Subject to 120 Day Lock-Up
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Restrictions. Each person acquiring shares, options or warrants ("Securities")
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of the Company under this agreement or under any Warrant Agreement delivered in
connection herewith, shall, if requested by an underwriter of a primary offering
of the company's securities, agree that he will not sell or otherwise transfer
or dispose of his shares of the Company's common stock during the period
beginning seven days prior to and ending 120 days following the effective date
of a registration statement of the Company filed under the Securities Act of
1933, as amended. The restrictions agreed to herein shall be binding upon any
assignee of persons acquiring Securities hereunder or under any Warrant
Agreement referred to herein.
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11. Optionees Sharing of Letter Agreement Rights. Optionees shall
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determine, as may be agreed among them in their sole discretion, the method or
manner in which the rights and obligations conferred in this Letter Agreement
shall be shared between them (unless otherwise expressly set forth herein).
Optionees shall comply with all SEC requirements relating to the filing of
reports with respect to their ownership of the Options, Warrants or the Shares
under any and all applicable securities laws.
12. Optionees Investor Suitability. Optionees hereunder must be
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accredited within the meaning of Rule 501(a) of Regulation D promulgated under
the Securities Act both as of the Effective Date hereof and at the date of each
payment of an Option Fee. Any individual not so accredited shall be excluded
from participating in Optionees rights hereunder, however, in such event there
shall be no diminution of the rights conferred in this Letter Agreement.
Optionees hereby represent that they (i) have reviewed the Company's financial
information to their full satisfaction, including all portions deemed relevant
by Optionees of the Company's public filings with the SEC, (ii) have had access
to all information necessary for them to make an informed decision with respect
to this Letter Agreement, (iii) were not solicited by the Company or any
representative of the Company in connection with this Letter Agreement, and (iv)
are capable of bearing the risks of loss of any investment in the Company as
provided this Letter Agreement.
13. Effective Date. This Letter Agreement shall not be valid until the
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date that the last of all of the Optionees [or in the event of death or
incapacity of one or more Optionees, their respective heir(s), or personal
representative(s), or other successor(s)], has affixed his or their signature
hereto, which date shall be for all purposes the "Effective Date" of this Letter
Agreement. If the Effective Date does not occur prior to the expiration of ten
(10) days from the date of this Letter Agreement shall first be executed by
Optionor, then in such event, this Letter Agreement shall be null and void in
all respects and of no further force or effect.
14. Term. This Letter Agreement shall remain in effect from and after the
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Effective Date until the expiration of any remaining unexercised stock purchase
rights conferred hereunder.
15. Entire Agreement; Definitive Agreement. This Letter Agreement and
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exhibits constitutes the whole and entire agreement among the Company and
Optionees with respect to the matters set forth herein and this Letter Agreement
shall not be modified or amended in any respect except by a written instrument
executed by the Company and Optionees.
16. Benefit. This Letter Agreement is binding upon and inures to the
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benefit of the Company and Optionees and their respective heirs, personal
representatives, successors and assigns; provided, however, the options granted
hereunder shall not be transferable by Optionees to any person or entity without
the consent of the Company in its sole discretion. Notwithstanding the
aforementioned restriction on transferability, Optionees shall have the right
without the consent of the Company to assign the options
-11-
granted hereunder in any lawful manner in connection with any lawful
financing(s) of any one or more of the Optionees whereby the resulting
assignment is for purposes of use by the assignee as collateral security for
sums advanced to any one or more of the Optionees connected or in any way
incident to Option Payments or stock purchases to be lawfully made hereunder.
17. Severability. If any provision or term of this Letter Agreement shall
------------
be held or determined to be unenforceable, the balance of this Letter Agreement
shall nevertheless continue in full force and effect, unaffected by such holding
or determination. In addition, in any such event, the parties agree that it is
their intention and agreement that any such provision or term which is held or
determined to be unenforceable as written, shall nonetheless be enforced and
binding to the fullest extent permitted by law as though such provision or term
had been written in such a manner to such an extent as to be enforceable under
the circumstances.
18. Law Governing. This Letter Agreement shall be governed and
-------------
interpreted under the laws of the State of Utah.
19. Further Assurances. Each party agrees that he or it will, whenever
------------------
and as often as he or it shall be required by any other party, execute,
acknowledge and deliver such further instruments and documents as may be
necessary in order to complete the agreements herein provided and to do any and
all other acts and to acknowledge, execute and deliver any and all other
documents which may be requested in order to reasonably carry out the intent and
purposes of this Letter Agreement.
20. Construction of Letter Agreement. The parties hereto agree that this
--------------------------------
Letter Agreement shall not be construed against any party hereto by reason of
the party or parties responsible for its preparation. The parties mutually agree
that each has had full access to the advice of legal counsel and that this
Letter Agreement represents the culmination of negotiations between the Company
and Optionees and their representatives. Any previous correspondence amongst
the parties hereto and all such negotiations are superseded hereby in all
respects are of no further force and effect.
21. Notices. All notices hereunder shall be given in writing and shall be
-------
sent by overnight courier, sent by facsimile transmission (with the original
forwarded in accordance with this Section) or sent by certified mail, postage
prepaid and return receipt requested. Notice shall be considered received by
the addressee two (2) days after deposit in the United States Mail (by certified
mail, postage prepaid and return receipt requested), or by facsimile
transmission, or by overnight courier. The parties hereto may change the
address at which they wish to receive notices by providing notice of the new
address to the other parties hereto. Unless either party receives notice of a
change of address in the manner provided in this Section, notices shall be
addressed at the last known address of the party to whom notice is sent.
If the foregoing is consistent with our mutual understandings and is
therefore acceptable to you, kindly execute and return multiple originals of
this Letter
-12-
Agreement, one for each of the signatories hereto to the offices at 000 X.
Xxxxxx Xxx., Xxxxx X, Xxxxxx Xxxxx, XX 00000.
Sincerely,
OPTIONEES:
/s/ Xxxx X. Xxxxxx, M.D. /s/ Xxxxx X. Xxxxxxx, M.D.
---------------------------------- --------------------------------
Xxxx X. Xxxxxx, M.D. Xxxxx X. Xxxxxxx, M.D.
Date: 12/3/96 Date: 12/3/96
----------------------------- ---------------------------
/s/ H. Xxxxx Xxxxxxx, M.D. /s/ Xxxxxx Xxxxx, M.D.
---------------------------------- --------------------------------
H. Xxxxx Xxxxxxx, M.D. Xxxxxx Xxxxx, M.D.
Date: 12/3/96 Date: 12/7/96
----------------------------- ---------------------------
/s/ Xxxxxxx X. Xxxxxxxxxx /s/ Xxxx X. Xxxxxxxx, Xx.
---------------------------------- --------------------------------
Xxxxxxx X. Xxxxxxxxxx Xxxx X. Xxxxxxxx, Xx.
Date: 12/2/96 Date: 11/22/96
----------------------------- ---------------------------
/s/ Xxxxxxx X. XxXxxxxx /s/ Xxxx X. Xxxxxxx
---------------------------------- --------------------------------
Xxxxxxx X. XxXxxxxx Xxxx X. Xxxxxxx
Date: 11/22/96 Date: 11/22/96
---------------------------------- ---------------------------
AGREED & ACCEPTED:
OPTIONOR:
INTERWEST HOME MEDICAL, INC.
By: Xxxxx X. Xxxxxxxx
----------------------
Its: President & CEO
----------------------
Date: 11/27/96
----------------------
-13-
EXHIBIT "A"
WARRANT AGREEMENT
AGREEMENT, dated as of the 22nd day of November, 1996, by and among
INTERWEST HOME MEDICAL, INC. ("Company"), ____________________________ (STOCK
TRANSFER COMPANY), as Warrant Agent (the "Warrant Agent") and Xxxxxxx X.
Xxxxxxxxxx, Xxxx X. Xxxxxxxx, Xx., Xxxxxxx X. XxXxxxxx, and Xxxx X. Xxxxxxx, all
residents of the State of California, Xxxx X. Xxxxxx, M.D., Xxxxx X. Xxxxxxx,
M.D., and H. Xxxxx Xxxxxxx, M.D., all residents of the State of Missouri, and
Xxxxxx Xxxxx, M.D., a resident of the State of Kansas (all eight of which
individuals hereinafter collectively referred to as "Optionees").
WITNESSETH
WHEREAS, in connection with a possible private placement pursuant to
the Letter Agreement dated November 22, 1996, incorporated herein by reference,
with the Optionees of shares of Common Stock, no par value per share, of the
Company ("Common Stock") and Warrants to purchase Common Stock (the "Warrants"),
the Company will issue up to Five Hundred Eighty Five Thousand Three Hundred
Fifty Seven (585,357) 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 holders of
certificates representing the Warrants and the Warrant Agent, the parties hereto
agree as follows:
SECTION 1. Definitions.
-----------
As used herein, the following terms shall have the following meanings,
unless the context shall otherwise require:
(a) "Common Stock" shall mean stock of the Company of any class,
whether now or hereafter authorized, which has the right to participate in the
distribution of earnings and assets of the Company without limit as to amount or
percentage, which at the date hereof consists of Fifty Million (50,000,000)
shares authorized as Common Stock.
-14-
(b) "Corporate Office" shall mean the office of the Warrant Agent (or
its successor) at which at any particular time its principal business shall be
administered, which office is located at the date hereof at _______________,
______________, _____________.
(c) "Exercise Date" shall mean, as to any Warrant, the date on which
the Warrant Agent shall have received both (a) the Warrant Certificate
representing such Warrant, with the exercise form thereon duly executed by the
Registered Holder thereof or his attorney duly authorized in writing, and (b)
payment in cash, or by official bank or certified check made payable to the
Company, of an amount in lawful money of the United States of America equal to
the applicable Purchased Price.
(d) "Purchase Price" shall mean the purchase price per share to be
paid upon exercise of Warrant in accordance with the terms of the Letter
Agreement dated November 22, 1996 between the Company and the Optionees.
(e) "Registered Holder" shall mean as to any Warrant and as of any
particular date, the person in whose name the certificate representing the
warrant shall be registered on that date on the books maintained by the Warrant
Agent pursuant to Section 6.
(g) "Transfer Agents" shall mean __________________ (Stock Transfer
Company), as the Company's transfer agent, or its authorized successor, as such.
(f) "Warrant Expiration Date" shall mean 5:00 P.M. (New York time) on
______________________ ____, _______ (i.e., three years from the Warrant issue
date); provided that if such date shall be in the State of New York be a holiday
or a day on which banks are authorized or required 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
holiday or a day on which banks are authorized or required to close. Upon
notice to all warrant holders the Company shall have the right to extend the
warrant expiration date.
SECTION 2. Warrants and Issuance of Warrant Certificates.
---------------------------------------------
(a) A Warrant initially shall entitle the Registered Holder of the
Warrant Certificate representing such Warrant to purchase one share of Common
Stock upon the exercise thereof, in accordance with the terms hereof.
(b) Upon execution of this Agreement, Warrant Certificates
representing Five Hundred Eighty Five Thousand Three Hundred Fifty Seven
(585,357) Warrants shall be executed by the Company and delivered to the Warrant
agent. Upon written order of the Company signed by its President or Chairman or
a Vice President and by its Treasurer or an Assistant Treasurer, the Warrant
Certificates shall be countersigned, issued and delivered by the Warrant Agent.
-15-
(c) From time to time, up to the Warrant Expiration Date, the Transfer
Agent shall countersign and deliver stock certificates in required whole number
denominations representing up to an aggregate of Five Hundred Eighty Five
Thousand Three Hundred Fifty Seven (585,357) shares of Common Stock, upon the
exercise of Warrants in accordance with this Agreement and the Letter Agreement
dated November 22, 1996 between the Company and the Optionees.
(d) From time to time, up to the Warrant Expiration Date, the Warrant
Agent shall countersign and deliver Warrant Certificates in required whole
number denominations to the persons entitled thereto in connection with any
transfer or exchange permitted under this Agreement; provided that no Warrant
Certificates shall be issued except (i) those initially issued hereunder, (ii)
those issued on or after the Initial Warrant Exercise Date, upon the exercise of
fewer than all Warrants represented by any Warrant Certificate, to evidence any
unexercised Warrants held by the exercising Registered Holder, (iii) those
issued upon any transfer or exchange pursuant to Section 6; and (iv) those
issued in replacement of lost, stolen, destroyed or mutilated Warrant
Certificates pursuant to Section 7.
SECTION 3. Form and Execution of Warrant Certificates.
------------------------------------------
(a) The Warrant Certificates shall be substantially in the forms
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 provision 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, or to confirm to usage or to the requirements
of this Agreement. 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. Warrant Certificates shall be numbered serially with the
letters WA.
(b) Warrant Certificates shall be executed on behalf of the Company by
its Chairman of the Board, President or any Vice President and by its Treasurer
or an Assistant Treasurer, 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 case any
officer of the Company who shall have signed any of the Warrant Certificates
shall cease to be an officer of the Company or to hold the particular office
referenced in the Warrant Certificate before the date of issuance of the Warrant
Certificates or before countersignature by the Warrant Agent and issue and
delivery thereof, such Warrant Certificates may nevertheless 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 an officer
of the Company or to hold such office. After countersignature by the Warrant
Agent, Warrant Certificates shall be delivered by the Warrant Agent to the
Registered
-16-
Holder without further action by the Company, except as otherwise provided by
Section 4 hereof.
SECTION 4. Exercise.
--------
Each Warrant may be exercised by the Registered Holder thereof at any
time on or after the date of its issuance, but not after the Warrant Expiration
Date, upon the terms and subject to the conditions set forth herein and in the
applicable Warrant Certificate. A Warrant shall be deemed to have been
exercised immediately prior to the close of business on the Exercise Date and
the person entitled to receive the securities deliverable upon such exercise
shall be treated for all purposes as the holder of those securities upon the
exercise of the Warrant as of the close of business on the Exercise Date. As
soon as practicable on or after the Exercise Date the Warrant Agent shall
deposit the proceeds received from the exercise of a Warrant and shall notify
the Company in writing of the exercise of the Warrants. Promptly following, and
in any event within five days after the date of such notice from the Warrant
Agent, the Warrant Agent, on behalf of the Company, shall cause to be issued and
delivered by the Transfer Agent, to the person or persons entitled to receive
the same, a certificate or certificates for the securities deliverable upon such
exercise (plus a certificate for any remaining unexercised Warrants of the
Registered Holder), unless prior to the date of issuance of such certificates
the Company shall instruct the Warrant Agent to refrain from causing such
issuance of certificates pending clearance of checks received in payment of the
Purchase Price pursuant to such Warrants. Notwithstanding the foregoing, in the
case of payment made in the form of a check drawn on an account of such
investment banks and brokerage houses as the Company shall approve in writing to
the Warrant Agent, certificates shall immediately be issued without prior notice
to the Company or any delay. Upon the exercise of any Warrant and clearance of
the funds received, the Warrant Agent shall promptly remit the payment received
for the warrant (the "Warrant Proceeds") to the Company or as the Company may
direct in writing.
SECTION 5. Reservation of Shares; Listing; Payment of Taxes; etc.
-----------------------------------------------------
(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 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, be duly and validly issued,
fully paid, nonassessable and free from all taxes, liens and charges with
respect to the issue thereof, (other than those which the Company shall promptly
pay or discharge).
(b) 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 in good faith and as expeditiously as reasonably possible, endeavor
to secure such registration or approval.
-17-
The Company will use reasonable 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, or shares of Common Stock
issued to, any Registered Holder in any state in which such exercise would be
unlawful.
(c) 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 upon exercise of the
Warrants; provided, however, that if the shares of Common Stock 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.
(d) The Warrant Agent is hereby irrevocably authorized to requisition
the Company's Transfer Agent from time to time for certificates representing
shares of Common Stock issuable upon exercise of the Warrants, and the Company
will authorize the Transfer Agent to comply with all such proper requisitions.
The Company will file with the Warrant Agent a statement setting forth the name
and address of the Transfer Agent of the company for shares of Common Stock
issuable upon exercise of the Warrants.
SECTION 6. Rule 144 Restrictions; Exchange; Registration of Transfer.
---------------------------------------------------------
(a) The Warrants shall be "restricted securities" as such term is
defined in Rule 144 ("Rule 144") promulgated under the Securities Act of 1933 as
amended, ("The Securities Act") and the certificates representing such
securities shall bear a legend as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE. NO
TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE
MADE EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND THE LAWS OF SUCH STATES UNDER WHOSE LAWS A
TRANSFER OF SECURITIES WOULD BE SUBJECT TO A REGISTRATION
REQUIREMENT, UNLESS THE COMPANY AND ITS COUNSEL HAVE
RECEIVED A SATISFACTORY OPINION OF COUNSEL THAT SUCH
TRANSFER DOES NOT REQUIRE REGISTRATION UNDER THE ACT OR THE
SECURITIES LAWS OF SUCH STATES."
(b) 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
-18-
surrendered to the Warrant Agent at its Corporate Office, and upon 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.
(c) 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 its regular practice.
Upon due presentation 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 transferees a new Warrant Certificate or
Certificates representing an equal aggregate number of Warrants.
(d) With respect to all Warrant Certificates presented for
registration or transfer, or for exchange or exercise, the subscription form 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 or his
attorney-in-fact duly authorized in writing.
(e) A service charge may be imposed 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.
(f) All Warrant Certificates surrendered for exercise or for exchange
in case of mutilated Warrant Certificates shall be promptly cancelled by the
Warrant Agent and thereafter retained by the Warrant Agent until termination of
this Agreement or resignation as Warrant Agent, or, with the prior written
consent of the owner (i.e., Registered Holder) of said Warrant Certificates,
disposed of or destroyed, at the direction of the Company.
(g) 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. The Warrants, which are being offered with shares of Common Stock,
will be immediately detachable from the Common Stock and transferable separately
therefrom.
SECTION 7. Loss or Mutilation.
------------------
Upon receipt by the Company and the Warrant Agent of evidence
satisfactory to them of the ownership of and loss, theft, destruction or
mutilation of any Warrant Certificate and (in case of loss, theft or
destruction) of indemnity satisfactory to them,
-19-
and (in the 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 Warrant Agent that the 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 comply with such other reasonable regulations and pay such other
reasonable charges as the Warrant Agent may prescribe.
SECTION 8. Fractional Warrants and Fractional Shares.
-----------------------------------------
The Company shall not be required to issue fractions of shares, upon
exercise of the Warrants or otherwise, or to distribute certificates that
evidence fractional shares. With respect to any fraction of a share called for
upon an exercise hereof, the Company shall pay to the Holder an amount in cash
equal to such fraction multiplied by the current market value of such fractional
share, determined as follows:
(a) If the Common Stock is listed on a National Securities Exchange or
admitted to unlisted trading privileges on such exchange or listed for trading
on the NASDAQ Quotation System, the current value shall be the last reported
sale price of the Commons Stock on such exchange on the last business day prior
to the date of exercise of this Warrant or if no such sale is made on such day,
the average of the closing bid and asked prices for such day on such exchange;
or
(b) If the Common Stock is not listed or admitted to unlisted trading
privileges, the current value shall be the mean of the last reported bid and
asked prices reported by the National Quotation Bureau, Inc. on the last
business day prior to the date of the exercise of this Warrant; or
(c) If the Common Stock is not listed or admitted to unlisted trading
privileges and bid and asked prices are not so reported, the current value shall
be an amount determined in such reasonable manner as may be prescribed by the
Board of Directors of the Company.
SECTION 9. Warrant Holders Not Deemed Stockholders.
---------------------------------------
No holder of Warrants shall, as such, be entitled to vote or to
receive dividends or be deemed the holder of Common Stock that may at any time
be issuable upon exercise of such Warrants for any purpose whatsoever, nor shall
anything contained herein be construed to confer upon the holder of Warrants, as
such, any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issue or reclassification of stock, change of par
value or change of stock to no par value, consolidation, merger or conveyance or
otherwise), or to receive notice of meetings, or to receive dividends or
subscription rights, until such Holder shall have exercised such
-20-
Warrants and been issued shares of Common Stock in accordance with the
provisions hereof.
SECTION 10. Registered Holders Exercise Rights.
----------------------------------
All rights of action with respect to this Agreement are vested in the
respective Registered Holders of the Warrant, and any Registered Holder of a
Warrant, without consent of the Warrant Agent or of the holder of any other
Warrant, may, in his own behalf and for his own benefit, enforce against the
Company his right to exercise his Warrants for the purchase of shares of Common
Stock in the manner provided in the Warrant Certificate and this Agreement.
SECTION 11. Agreement of Warrant Holders.
----------------------------
Every holder of a Warrant, by his acceptance thereof, consents and
agrees with the Company, the Warrant Agent and every other holder of a Warrant
that:
(a) The Warrants are transferable only on the registry books of the
Warrant Agent by the Registered Holder thereof in person or by his attorney duly
authorized in writing and only if the Warrant Certificates representing such
Warrants are surrendered at the office of the Warrant Agent, duly endorsed or
accompanied by a proper instrument of transfer satisfactory to the Warrant Agent
and the Company in their sole discretion, together with payment of any
applicable transfer taxes; and
(b) The Company and the Warrant Agent may deem and treat the person in
whose name the Warrant Certificate is registered as the holder and as the
absolute, true and lawful owner of the Warrants represented thereby for all
purposes, and neither the Company nor the Warrant Agent shall be affected by any
notice or knowledge to the contrary, except as otherwise expressly provided
herein.
SECTION 12. Cancellation of Warrant Certificates.
------------------------------------
If the Company shall purchase or acquire any Warrant or Warrants, the
Warrant Certificate or Warrant Certificates evidencing the same shall thereupon
be delivered to the Warrant Agent and canceled by it and retired. The Warrant
Agent shall also cancel the Warrant Certificate or Warrant Certificates
following exercise of any or all of the Warrants represented thereby or
delivered to it for transfer, split-up, combination or exchange.
SECTION 13. Concerning the Warrant Agent.
----------------------------
The Warrant Agent acts hereunder as agent and in a ministerial
capacity for the Company, 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, value or authorization of the Warrant
Certificates or the Warrants represented thereby or of any
-21-
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.
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 Purchase 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 adjustment, when made, or with respect to
the method employed in the making the same. It shall not (i) be liable for any
recital or statement of facts 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, (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 of willful misconduct.
The Warrant Agent may at any time consult with counsel satisfactory to
it (who may be counsel for the Company) 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.
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, President, any Vice President, its Clerk, or
Assistant Clerk, (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 believed by it to be genuine.
The Company agrees to pay the Warrant Agent reasonable compensation
for its services hereunder and to reimburse it for its reasonable expenses
hereunder; it further agrees to indemnify the Warrant Agent and save it harmless
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 or willful
misconduct.
The Warrant Agent may resign its duties and be discharged from all
further duties and liabilities hereunder (except liabilities arising as a result
of the Warrant Agent's own 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 a new
warrant agent in writing. If the Company shall fail to make such appointment
within a period of 15 days after it has been notified in writing of such
-22-
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 or any 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 trust business of the 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 Holder of each Warrant
Certificate.
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 effects 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.
SECTION 14. Optionees' Sharing of Warrants.
------------------------------
Optionees shall determine, as may be agreed among them in their sole
discretion, the method or manner in which the rights and obligations conferred
in this Warrant Agreement shall be shared between them (unless otherwise
expressly set forth herein).
SECTION 15. Modification of Agreement.
-------------------------
Subject to the provisions of Section 4, 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
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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 of Warrant Certificates
representing not less than 50% of the Warrants then outstanding; and provided,
further, that no change in the number or nature of the securities purchasable
upon the exercise of any warrant, or the Purchase Price therefor, or the
acceleration 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 specifically prescribed by this
Agreement as originally executed or are made in compliance with applicable law.
SECTION 16. 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 address of such holder
as shown on the registry books maintained by the Warrant Agent; if to the
Company, at 000 Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx, XX 00000, Attention: Xxxxx X.
Xxxxxxxx, or at such other address as may have been furnished to the Warrant
Agent in writing by the Company; if to the Warrant Agent, at its Corporate
Office; and if to Optionees, 000 X. Xxxxxx Xxxxxx, Xxxxx X, Xxxxxx Xxxxx, XX
00000.
SECTION 17. Governing Law.
-------------
This Agreement shall be governed by and construed in accordance with
the laws of the State of Utah, without reference to principles of conflict of
laws.
SECTION 18. Binding Effect.
--------------
This Agreement shall be binding upon and inure to the benefit of the
Company and, the Warrant Agent and their respective successors and assigns, and
the holders from time to time of Warrant Certificates. 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.
SECTION 19. Termination.
-----------
This Agreement shall terminate at the close of business on the
Expiration Date of all the Warrants or such earlier date upon which all Warrants
have been exercised, except that the Warrant Agent shall account to the Company
for cash held by it and the provisions of Section 13 hereof shall survive such
termination.
SECTION 20. Counterparts.
------------
This Agreement may be executed in several counterparts, which taken
together shall constitute a single document.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
INTERWEST HOME MEDICAL, INC.
By: _____________________________________
President
__________________________________________
(STOCK TRANSFER COMPANY)
By: _____________________________________
Authorized Officer
OPTIONEES:
_______________________________ _____________________________________
Xxxx X. Xxxxxx, M.D. Xxxxx X. Xxxxxxx, M.D.
Date: _________________________ Date: _______________________________
_______________________________ _____________________________________
H. Xxxxx Xxxxxxx, M.D. Xxxxxx Xxxxx, M.D.
Date: _________________________ Date: _______________________________
_______________________________ _____________________________________
Xxxxxxx X. Xxxxxxxxxx Xxxx X. Xxxxxxxx, Xx.
Date: _________________________ Date: _______________________________
-25-
_______________________________ _____________________________________
Xxxxxxx X. XxXxxxxx Xxxx X. Xxxxxxx
Date: _________________________ Date: _______________________________
-26-
EXHIBIT A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS
OF ANY STATE. NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE
MADE EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND
THE LAWS OF SUCH STATES UNDER WHOSE LAWS A TRANSFER OF SECURITIES WOULD BE
SUBJECT TO A REGISTRATION REQUIREMENT, UNLESS THE COMPANY AND ITS COUNSEL HAVE
RECEIVED A SATISFACTORY OPINION OF COUNSEL THAT SUCH TRANSFER DOES NOT REQUIRE
REGISTRATION UNDER THE ACT OR THE SECURITIES LAWS OF SUCH STATES.
NO. WA___________ ______________ Warrants
VOID AFTER ________________ _____, _______
(Month) (Day) (Year)
WARRANT CERTIFICATE FOR
PURCHASE OF COMMON STOCK OF
INTERWEST HOME MEDICAL, INC.
This certifies that FOR VALUE RECEIVED, or registered assigns (the "Registered
Holder") is the owner of the number of Warrants ("Warrants") specified above.
Each Warrant represented hereby initially entitles the Registered Holder to
purchase, subject to the terms and conditions set forth in this Warrant
Certificate and the Warrant Agreement (as hereinafter defined), one fully paid
and nonassessable share of Common Stock, no par value, of INTERWEST HOME
MEDICAL, INC., a Utah corporation (the "Company") at any time between
______________ ____, 1996, and the Expiration Date (as hereinafter defined),
upon the presentation and surrender of this Warrant Certificate with the
Subscription Form attached hereto duly executed, at the corporate office of
___________________________________________ (Stock Transfer Company) as Warrant
Agent, or its successor (the "Warrant Agent"), accompanied by payment of
_________________________________ and _______/100 Dollars ($____________) (the
"Purchase Price") in lawful money of the United States of America in cash or by
official bank or certified check made payable to INTERWEST HOME MEDICAL, INC.
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 November 22,
1996 by and among the Company and the Warrant Agent.
Each Warrant represented hereby is exercisable at the option of the
Registered Holder, but no fractional shares of Common Stock 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
_________________________ ____, _______ (i.e., three years from the Warrant
issue date). If such date shall in the State of New York be a holiday or a day
on which 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 has covenanted and agreed, under certain specified
conditions, that it will not file a registration statement and will use its best
efforts to cause the same to become effective and to keep such registration
statement current for a specified period of time. The Warrant(s) represented
hereby shall not be exercisable by a Registered Holder in any state where such
exercise would be unlawful.
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 with any tax or other governmental
charge imposed in connection therewith, 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.
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.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of Utah.
This Warrant Certificate is not valid unless countersigned by the
Warrant Agent.
-2-
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:
INTERWEST HOME MEDICAL, INC.
By: ____________________________________
President
_________________________________________
(STOCK TRANSFER COMPANY)
By: ____________________________________
Authorized Officer
-3-
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.
The undersigned represents that the exercise of the within Warrant was
solicited by a member of the National Association of Securities Dealers, Inc.
If not solicited by an NASD member, please write "unsolicited" in the space
below.
_______________________________________
(Name of NASD Member if other than____)
Dated: ___________________________ X____________________________________
_____________________________________
_____________________________________
Address
_____________________________________
Taxpayer Identification Number
_____________________________________
Signature Guaranteed
_____________________________________
ASSIGNMENT
To Be Executed by the Registered Holder in Order to Exercise 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: _________________________ X_________________________________
Signature Guaranteed
__________________________________
THE SIGNATURE TO THE ASSIGNMENT OF THE SUBSCRIPTION FORM MUST CORRESPOND TO THE
NAME AS WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE
GUARANTEED BY A COMMERCIAL BANK OR TRUST COMPANY OR A MEMBER FIRM OF THE
AMERICAN STOCK EXCHANGE, NEW YORK STOCK EXCHANGE, PACIFIC STOCK EXCHANGE OR
BOSTON STOCK EXCHANGE.
