Exhibit 10.80
EXHIBIT D
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
REASONABLY ACCEPTABLE TO THE COMPANY TO SUCH EFFECT, THE SUBSTANCE OF WHICH
SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR
OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT.
ADDITIONAL INVESTMENT RIGHT
To Purchase __________ Shares of Common Stock of
IMPLANT SCIENCES CORPORATION
THIS ADDITIONAL INVESTMENT RIGHT (the "ADDITIONAL INVESTMENT RIGHT")
CERTIFIES that, for value received, _____________ (the "HOLDER"), is entitled,
upon the terms and subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after the date of issuance of this
Additional Investment Right (the "INITIAL EXERCISE DATE") and on or prior to the
earlier of (a) 100 days after the Effective Date and (b) the 8 month anniversary
of the Closing Date (the "TERMINATION DATE") but not thereafter, to subscribe
for and purchase from Implant Sciences Corporation, a Massachusetts corporation
(the "COMPANY"), up to ____________ shares (the "ADDITIONAL INVESTMENT RIGHT
SHARES") of Common Stock, par value $0.10 per share, of the Company (the "COMMON
STOCK"). The purchase price of one share of Common Stock (the "EXERCISE PRICE")
under this Additional Investment Right shall be $11.61(1), subject to adjustment
hereunder. The Exercise Price and the number of Additional Investment Right
Shares for which the Additional Investment Right is exercisable shall be subject
to adjustment as provided herein. CAPITALIZED TERMS USED AND NOT OTHERWISE
DEFINED HEREIN SHALL HAVE THE MEANINGS SET FORTH IN THAT CERTAIN SECURITIES
PURCHASE AGREEMENT (THE "PURCHASE AGREEMENT"), DATED JUNE 17, 2004 AMONG THE
COMPANY AND THE PURCHASERS SIGNATORY THERETO.
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(1) 92.5% of the lesser of (i) the average of the 5 consecutive Closing Prices
immediately prior to the date of the Purchase Agreement and (ii) the Closing
Price immediately prior to the date of the Purchase Agreement.
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1. TITLE TO ADDITIONAL INVESTMENT RIGHT. Prior to the Termination
Date and subject to compliance with applicable laws and Section 7 of this
Additional Investment Right, this Additional Investment Right and all rights
hereunder are transferable, in whole or in part, at the office or agency of the
Company by the Holder in person or by duly authorized attorney, upon surrender
of this Additional Investment Right together with the Assignment Form annexed
hereto properly endorsed. The transferee shall sign an investment letter in form
and substance reasonably satisfactory to the Company.
2. AUTHORIZATION OF SHARES. The Company covenants that all
Additional Investment Right Shares which may be issued upon the exercise of the
purchase rights represented by this Additional Investment Right will, upon
exercise of the purchase rights represented by this Additional Investment Right,
be duly authorized, validly issued, 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. EXERCISE OF ADDITIONAL INVESTMENT RIGHT.
(a) Exercise of the purchase rights represented by this
Additional Investment Right may be made at any time or times on or after
the Initial Exercise Date and on or before the Termination Date by delivery
to the Company of a duly executed facsimile copy of the Notice of Exercise
Form annexed hereto (or such other office or agency of the Company as it
may designate by notice in writing to the registered Holder at the address
of such Holder appearing on the books of the Company); provided, however,
within 5 Trading Days of the date said Notice of Exercise is delivered to
the Company, the Holder shall have surrendered this Additional Investment
Right to the Company and the Company shall have received payment of the
aggregate Exercise Price of the shares thereby purchased by wire transfer
or cashier's check drawn on a United States bank. Certificates for shares
purchased hereunder shall be transmitted by the transfer agent of the
Company to the Holder by crediting the account of the Holder's prime broker
with the Depository Trust Company through its Deposit Withdrawal Agent
Commission ("DWAC") system within 3 Trading Days from the delivery to the
Company of the Notice of Exercise Form, surrender of this Additional
Investment Right and payment of the aggregate Exercise Price as set forth
above ("ADDITIONAL INVESTMENT RIGHT SHARE DELIVERY DATE"). This Additional
Investment Right shall be deemed to have been exercised on the date the
Exercise Price is received by the Company. The Additional Investment Right
Shares shall be deemed to have been issued, and Holder or any other person
so designated to be named therein shall be deemed to have become a holder
of record of such shares for all purposes, as of the date the Additional
Investment Right has been exercised by payment to the Company of the
Exercise Price and all taxes required to be paid by the Holder, if any,
pursuant to Section 5 prior to the issuance of such shares, have been paid.
If the Company fails to
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cause its transfer agent to transmit to the Holder through the DWAC system
a certificate or certificates representing the Additional Investment Right
Shares pursuant to this Section 3(a) by the Additional Investment Right
Share Delivery Date, then the Holder will have the right to rescind such
exercise. In addition to any other rights available to the Holder, if the
Company fails to cause its transfer agent to transmit to the Holder through
the DWAC system a certificate or certificates representing the Additional
Investment Right Shares pursuant to an exercise by the Additional
Investment Right Share Delivery Date, and if after such day the Holder is
required by its broker to purchase (in an open market transaction or
otherwise) shares of Common Stock to deliver in satisfaction of a sale by
the Holder of the Additional Investment Right Shares which the Holder
anticipated receiving upon such exercise (a "BUY-IN"), then the Company
shall (1) pay in cash to the Holder the amount by which (x) the Holder's
total purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (y) the amount obtained by
multiplying (A) the number of Additional Investment Right Shares that the
Company was required to deliver to the Holder in connection with the
exercise at issue times (B) the price at which the sell order giving rise
to such purchase obligation was executed, and (2) at the option of the
Holder, either reinstate the portion of the Additional Investment Right and
equivalent number of Additional Investment Right Shares for which such
exercise was not honored or deliver to the Holder the number of shares of
Common Stock that would have been issued had the Company timely complied
with its exercise and delivery obligations hereunder. For example, if the
Holder purchases Common Stock having a total purchase price of $11,000 to
cover a Buy-In with respect to an attempted exercise of shares of Common
Stock with an aggregate sale price giving rise to such purchase obligation
of $10,000, under clause (1) of the immediately preceding sentence the
Company shall be required to pay the Holder $1,000. The Holder shall
provide the Company written notice indicating the amounts payable to the
Holder in respect of the Buy-In, together with applicable confirmations and
other evidence reasonably requested by the Company. Nothing herein shall
limit a Holder's right to pursue any other remedies available to it
hereunder, at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief with respect to the Company's
failure to timely deliver certificates representing shares of Common Stock
upon exercise of the Additional Investment Right as required pursuant to
the terms hereof.
(b) If this Additional Investment Right shall have been
exercised in part, the Company shall, at the time of delivery of the
certificate or certificates representing Additional Investment Right
Shares, deliver to Holder a new Additional Investment Right evidencing the
rights of Holder to purchase the unpurchased Additional Investment Right
Shares called for by this Additional Investment Right, which new Additional
Investment Right shall in all other respects be identical with this
Additional Investment Right.
(c) The Holder shall not have the right to exercise any
portion of this Additional Investment Right, pursuant to Section 3(a) or
otherwise, to the extent that after giving effect to such issuance after
exercise, the Holder (together with the Holder's affiliates), as set forth
on the applicable Notice of Exercise, would beneficially own in excess of
4.99% of the number of shares of the Common Stock outstanding immediately
after giving effect to such issuance. For purposes of the foregoing
sentence, the number of shares of Common Stock beneficially owned by the
Holder and its affiliates shall include the number of shares of Common
Stock issuable upon exercise of this Additional Investment Right with
respect to which the determination of such sentence is being made, but
shall exclude the number of shares of Common Stock which would be issuable
upon (A) exercise of the remaining, nonexercised portion of this Additional
Investment Right
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beneficially owned by the Holder or any of its affiliates and (B) exercise
or conversion of the unexercised or nonconverted portion of any other
securities of the Company (including, without limitation, any other
Additional Investment Rights) subject to a limitation on conversion or
exercise analogous to the limitation contained herein beneficially owned by
the Holder or any of its affiliates. Except as set forth in the preceding
sentence, for purposes of this Section 3(c), beneficial ownership shall be
calculated in accordance with Section 13(d) of the Exchange Act, it being
acknowledged by Holder that the Company is not representing to Holder that
such calculation is in compliance with Section 13(d) of the Exchange Act
and Holder is solely responsible for any schedules required to be filed in
accordance therewith. To the extent that the limitation contained in this
Section 3(c) applies, the determination of whether this Additional
Investment Right is exercisable (in relation to other securities owned by
the Holder) and of which a portion of this Additional Investment Right is
exercisable shall be in the sole discretion of such Holder, and the
submission of a Notice of Exercise shall be deemed to be such Holder's
determination of whether this Additional Investment Right is exercisable
(in relation to other securities owned by such Holder) and of which portion
of this Additional Investment Right is exercisable, in each case subject to
such aggregate percentage limitation, and the Company shall have no
obligation to verify or confirm the accuracy of such determination. For
purposes of this Section 3(c), in determining the number of outstanding
shares of Common Stock, the Holder may rely on the number of outstanding
shares of Common Stock as reflected in (x) the Company's most recent Form
10-QSB or Form 10-KSB, as the case may be, (y) a more recent public
announcement by the Company or (z) any other notice by the Company or the
Company's Transfer Agent setting forth the number of shares of Common Stock
outstanding. Upon the written or oral request of the Holder, the Company
shall within two Trading Days confirm orally and in writing to the Holder
the number of shares of Common Stock then outstanding. In any case, the
number of outstanding shares of Common Stock shall be determined after
giving effect to the conversion or exercise of securities of the Company,
including this Additional Investment Right, by the Holder or its affiliates
since the date as of which such number of outstanding shares of Common
Stock was reported.
4. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Additional Investment Right. As to any fraction of a share which Holder would
otherwise be entitled to purchase upon such exercise, the Company shall pay a
cash adjustment in respect of such final fraction in an amount equal to such
fraction multiplied by the Exercise Price.
5. CHARGES, TAXES AND EXPENSES. Issuance of certificates for
Additional Investment Right Shares shall be made without charge to the Holder
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 Holder or
in such name or names as may be directed by the Holder; PROVIDED, HOWEVER, that
in the event certificates for Additional Investment Right Shares are to be
issued in a name other than the name of the Holder, this Additional Investment
Right when surrendered for exercise shall be accompanied by the Assignment Form
attached hereto duly executed by the Holder; and the Company may require, as a
condition thereto, the payment of a sum sufficient to reimburse it for any
transfer tax incidental thereto.
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6. CLOSING OF BOOKS. The Company will not close its stockholder
books or records in any manner which prevents the timely exercise of this
Additional Investment Right, pursuant to the terms hereof.
7. TRANSFER, DIVISION AND COMBINATION.
(a) Subject to compliance with any applicable securities
laws and the conditions set forth in Sections 1 and 7(e) hereof and to the
provisions of Section 4.1 of the Purchase Agreement, this Additional
Investment Right and all rights hereunder are transferable, in whole or in
part, upon surrender of this Additional Investment Right at the principal
office of the Company, together with a written assignment of this
Additional Investment Right substantially in the form attached hereto duly
executed by the Holder or its agent or attorney and funds sufficient to pay
any transfer taxes payable upon the making of such transfer. Upon such
surrender and, if required, such payment, the Company shall execute and
deliver a new Additional Investment Right or Additional Investment Rights
in the name of the assignee or assignees and in the denomination or
denominations specified in such instrument of assignment, and shall issue
to the assignor a new Additional Investment Right evidencing the portion of
this Additional Investment Right not so assigned, and this Additional
Investment Right shall promptly be cancelled. A Additional Investment
Right, if properly assigned, may be exercised by a new holder for the
purchase of Additional Investment Right Shares without having a new
Additional Investment Right issued.
(b) This Additional Investment Right may be divided or
combined with other Additional Investment Rights upon presentation hereof
at the aforesaid office of the Company, together with a written notice
specifying the names and denominations in which new Additional Investment
Rights are to be issued, signed by the Holder or its agent or attorney.
Subject to compliance with Section 7(a), as to any transfer which may be
involved in such division or combination, the Company shall execute and
deliver a new Additional Investment Right or Additional Investment Rights
in exchange for the Additional Investment Right or Additional Investment
Rights to be divided or combined in accordance with such notice.
(c) The Company shall prepare, issue and deliver at its
own expense (other than transfer taxes) the new Additional Investment Right
or Additional Investment Rights under this Section 7.
(d) The Company agrees to maintain, at its aforesaid
office, books for the registration and the registration of transfer of the
Additional Investment Rights.
(e) If, at the time of the surrender of this Additional
Investment Right in connection with any transfer of this Additional
Investment Right, the transfer of this Additional Investment Right shall
not be registered pursuant to an effective registration statement under the
Securities Act and under applicable state securities or blue sky laws, the
Company may require, as a condition of allowing such transfer (i) that the
Holder or transferee of this Additional Investment Right, as the case may
be, furnish to the Company a written opinion of counsel (which opinion
shall be in form, substance and
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scope customary for opinions of counsel in comparable transactions) to the
effect that such transfer may be made without registration under the
Securities Act and under applicable state securities or blue sky laws, (ii)
that the holder or transferee execute and deliver to the Company an
investment letter in form and substance acceptable to the Company and (iii)
that the transferee be an "accredited investor" as defined in Rule
501(a)(1), (a)(2), (a)(3), (a)(7), or (a)(8) promulgated under the
Securities Act or a qualified institutional buyer as defined in Rule
144A(a) under the Securities Act.
8. NO RIGHTS AS SHAREHOLDER UNTIL EXERCISE. This Additional
Investment Right does not entitle the Holder to any voting rights or other
rights as a shareholder of the Company prior to the exercise hereof. Upon the
surrender of this Additional Investment Right and the payment of the aggregate
Exercise Price, the Additional Investment Right Shares so purchased shall be and
be deemed to be issued to such Holder as the record owner of such shares as of
the close of business on the later of the date of such surrender or payment.
9. LOSS, THEFT, DESTRUCTION OR MUTILATION OF ADDITIONAL INVESTMENT
RIGHT. The Company covenants that upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Additional Investment Right or any stock certificate relating to the
Additional Investment Right Shares, and in case of loss, theft or destruction,
of indemnity or security reasonably satisfactory to it (which, in the case of
the Additional Investment Right, shall not include the posting of any bond), and
upon surrender and cancellation of such Additional Investment Right or stock
certificate, if mutilated, the Company will make and deliver a new Additional
Investment Right or stock certificate of like tenor and dated as of such
cancellation, in lieu of such Additional Investment Right or stock certificate.
10. 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, 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.
11. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF ADDITIONAL INVESTMENT
RIGHT SHARES; STOCK SPLITS, ETC. The number and kind of securities purchasable
upon the exercise of this Additional Investment Right and the Exercise Price
shall be subject to adjustment from time to time upon the happening of any of
the following. In case the Company shall (i) pay a dividend in shares of Common
Stock or make a distribution in shares of Common Stock to holders of its
outstanding Common Stock, (ii) subdivide its outstanding shares of Common Stock
into a greater number of shares, (iii) combine its outstanding shares of Common
Stock into a smaller number of shares of Common Stock, or (iv) issue any shares
of its capital stock in a reclassification of the Common Stock, then the number
of Additional Investment Right Shares purchasable upon exercise of this
Additional Investment Right immediately prior thereto shall be adjusted so that
the Holder shall be entitled to receive the kind and number of Additional
Investment Right Shares or other securities of the Company which it would have
owned or have been entitled to receive had such Additional Investment Right been
exercised in advance thereof. Upon each such adjustment of the kind and number
of Additional Investment Right Shares or other securities of the Company which
are purchasable hereunder, the Holder shall thereafter be entitled to purchase
the number of Additional Investment Right Shares or other securities resulting
from such adjustment at an Exercise Price per Additional Investment Right Share
or other security
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obtained by multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of Additional Investment Right Shares purchasable
pursuant hereto immediately prior to such adjustment and dividing by the number
of Additional Investment Right Shares or other securities of the Company that
are purchasable pursuant hereto immediately after such adjustment. An adjustment
made pursuant to this paragraph shall become effective immediately after the
effective date of such event retroactive to the record date, if any, for such
event.
12. REORGANIZATION, RECLASSIFICATION, MERGER, CONSOLIDATION OR
DISPOSITION OF ASSETS. In case the Company shall reorganize its capital,
reclassify its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving corporation or where there
is a change in or distribution with respect to the Common Stock of the Company),
or sell, transfer or otherwise dispose of its property, assets or business to
another corporation and, pursuant to the terms of such reorganization,
reclassification, merger, consolidation or disposition of assets, shares of
common stock of the successor or acquiring corporation, or any cash, shares of
stock or other securities or property of any nature whatsoever (including
warrants or other subscription or purchase rights) in addition to or in lieu of
common stock of the successor or acquiring corporation ("OTHER PROPERTY"), are
to be received by or distributed to the holders of Common Stock of the Company,
then the Holder shall have the right thereafter to receive, at the option of the
Holder, upon exercise of this Additional Investment Right, the number of shares
of Common Stock of the successor or acquiring corporation or of the Company, if
it is the surviving corporation, and Other Property receivable upon or as a
result of such reorganization, reclassification, merger, consolidation or
disposition of assets by a Holder of the number of shares of Common Stock for
which this Additional Investment Right is exercisable immediately prior to such
event. In case of any such reorganization, reclassification, merger,
consolidation or disposition of assets, the successor or acquiring corporation
(if other than the Company) shall expressly assume the due and punctual
observance and performance of each and every covenant and condition of this
Additional Investment Right to be performed and observed by the Company and all
the obligations and liabilities hereunder, subject to such modifications as may
be deemed appropriate (as determined in good faith by resolution of the Board of
Directors of the Company) in order to provide for adjustments of Additional
Investment Right Shares for which this Additional Investment Right is
exercisable which shall be as nearly equivalent as practicable to the
adjustments provided for in this Section 12. For purposes of this Section 12,
"common stock of the successor or acquiring corporation" shall include stock of
such corporation of any class which is not preferred as to dividends or assets
over any other class of stock of such corporation and which is not subject to
redemption and shall also include any evidences of indebtedness, shares of stock
or other securities which are convertible into or exchangeable for any such
stock, either immediately or upon the arrival of a specified date or the
happening of a specified event and any warrants or other rights to subscribe for
or purchase any such stock. The foregoing provisions of this Section 12 shall
similarly apply to successive reorganizations, reclassifications, mergers,
consolidations or disposition of assets.
13. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may at any time
during the term of this Additional Investment Right reduce the then current
Exercise Price to any amount and for any period of time deemed appropriate by
the Board of Directors of the Company.
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14. NOTICE OF ADJUSTMENT. Whenever the number of Additional
Investment Right Shares or number or kind of securities or other property
purchasable upon the exercise of this Additional Investment Right or the
Exercise Price is adjusted, as herein provided, the Company shall give notice
thereof to the Holder, which notice shall state the number of Additional
Investment Right Shares (and other securities or property) purchasable upon the
exercise of this Additional Investment Right and the Exercise Price of such
Additional Investment Right Shares (and other securities or property) after such
adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth the computation by which such adjustment was made.
15. NOTICE OF CORPORATE ACTION. If at any time:
(a) the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend or
other distribution, or any right to subscribe for or purchase any evidences
of its indebtedness, any shares of stock of any class or any other
securities or property, or to receive any other right, or
(b) there shall be any capital reorganization of the
Company, any reclassification or recapitalization of the capital stock of
the Company or any consolidation or merger of the Company with, or any
sale, transfer or other disposition of all or substantially all the
property, assets or business of the Company to, another corporation or,
(c) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall use its best efforts
to give to Holder (i) at least 20 days' prior written notice of the date on
which a record date shall be selected for such dividend, distribution or right
or for determining rights to vote in respect of any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
liquidation or winding up, and (ii) in the case of any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up, at least 20 days' prior written notice
of the date when the same shall take place. Such notice in accordance with the
foregoing clause also shall specify (i) the date on which any such record is to
be taken for the purpose of such dividend, distribution or right, the date on
which the holders of Common Stock shall be entitled to any such dividend,
distribution or right, and the amount and character thereof, and (ii) the date
on which any such reorganization, reclassification, merger, consolidation, sale,
transfer, disposition, dissolution, liquidation or winding up is to take place
and the time, if any such time is to be fixed, as of which the holders of Common
Stock shall be entitled to exchange their Additional Investment Right Shares for
securities or other property deliverable upon such disposition, dissolution,
liquidation or winding up. Each such written notice shall be sufficiently given
if addressed to Holder at the last address of Xxxxxx appearing on the books of
the Company and delivered in accordance with Section 17(d).
16. AUTHORIZED SHARES. The Company covenants that during the period
the Additional Investment Right is outstanding, it will reserve from its
authorized and unissued Common Stock a sufficient number of shares to provide
for the issuance of the Additional
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Investment Right Shares upon the exercise of any purchase rights under this
Additional Investment Right. The Company further covenants that its issuance of
this Additional Investment Right 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 the Additional Investment Right Shares upon
the exercise of the purchase rights under this Additional Investment Right. The
Company will take all such reasonable action as may be necessary to assure that
such Additional Investment Right Shares may be issued as provided herein without
violation of any applicable law or regulation, or of any requirements of the
Trading Market upon which the Common Stock may be listed.
Except and to the extent as waived or consented to by the Holder,
the Company shall not by any action, including, without limitation, amending its
certificate of incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Additional Investment Right, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all such
actions as may be necessary or appropriate to protect the rights of Xxxxxx as
set forth in this Additional Investment Right against impairment. Without
limiting the generality of the foregoing, the Company will (a) not increase the
par value of any Additional Investment Right Shares above the amount payable
therefor upon such exercise immediately prior to such increase in par value, (b)
take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable Additional
Investment Right Shares upon the exercise of this Additional Investment Right,
and (c) use commercially reasonable efforts to obtain all such authorizations,
exemptions or consents from any public regulatory body having jurisdiction
thereof as may be necessary to enable the Company to perform its obligations
under this Additional Investment Right.
Before taking any action which would result in an adjustment the
number of Additional Investment Right Shares for which this Additional
Investment Right is exercisable or in the Exercise Price, the Company shall
obtain all such authorizations or exemptions thereof, or consents thereto, as
may be necessary from any public regulatory body or bodies having jurisdiction
thereof.
17. MISCELLANEOUS.
(a) JURISDICTION. All questions concerning the
construction, validity, enforcement and interpretation of this Additional
Investment Right shall be determined in accordance with the provisions of
the Purchase Agreement.
(b) RESTRICTIONS. The Holder acknowledges that the
Additional Investment Right Shares acquired upon the exercise of this
Additional Investment Right, if not registered, will have restrictions upon
resale imposed by state and federal securities laws.
(c) NONWAIVER AND EXPENSES. No course of dealing or any
delay or failure to exercise any right hereunder on the part of Holder
shall operate as a waiver of such right or otherwise prejudice Xxxxxx's
rights, powers or remedies, notwithstanding all rights hereunder terminate
on the Termination Date. If the Company willfully and
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knowingly fails to comply with any provision of this Additional Investment
Right, which results in any material damages to the Holder, the Company
shall pay to Holder such amounts as shall be sufficient to cover any costs
and expenses including, but not limited to, reasonable attorneys' fees,
including those of appellate proceedings, incurred by Xxxxxx in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its
rights, powers or remedies hereunder.
(d) NOTICES. Any notice, request or other document
required or permitted to be given or delivered to the Holder by the Company
shall be delivered in accordance with the notice provisions of the Purchase
Agreement.
(e) LIMITATION OF LIABILITY. No provision hereof, in the
absence of any affirmative action by Holder to exercise this Additional
Investment Right or purchase Additional Investment Right Shares, and no
enumeration herein of the rights or privileges of Holder, shall give rise
to any liability of Holder for the purchase price of any Common Stock or as
a stockholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
(f) REMEDIES. Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Additional
Investment Right. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Additional Investment Right and hereby agrees to
waive the defense in any action for specific performance that a remedy at
law would be adequate.
(g) SUCCESSORS AND ASSIGNS. Subject to applicable
securities laws, this Additional Investment Right and the rights and
obligations evidenced hereby shall inure to the benefit of and be binding
upon the successors of the Company and the successors and permitted assigns
of Holder. The provisions of this Additional Investment Right are intended
to be for the benefit of all Holders from time to time of this Additional
Investment Right and shall be enforceable by any such Holder or holder of
Additional Investment Right Shares.
(h) AMENDMENT. This Additional Investment Right may be
modified or amended or the provisions hereof waived with the written
consent of the Company and the Holder.
(i) SEVERABILITY. Wherever possible, each provision of
this Additional Investment Right shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this
Additional Investment Right shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this Additional Investment Right.
(j) HEADINGS. The headings used in this Additional
Investment Right are for the convenience of reference only and shall not,
for any purpose, be deemed a part of this Additional Investment Right.
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IN WITNESS WHEREOF, the Company has caused this Additional Investment
Right to be executed by its officer thereunto duly authorized.
Dated: June ____, 2004
IMPLANT SCIENCES CORPORATION
By:
-------------------------------
Name:
Title:
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NOTICE OF EXERCISE
To: Implant Sciences Corporation
(1) The undersigned hereby elects to purchase ________ Additional
Investment Right Shares of the Company pursuant to the terms of the attached
Additional Investment Right (only if exercised in full), and tenders herewith
payment of the exercise price in full, together with all applicable transfer
taxes, if any.
Payment shall take the form of (check applicable box) lawful
money of the United States;
(2) Please issue a certificate or certificates representing said
Additional Investment Right Shares in the name of the undersigned or in such
other name as is specified below:
__________________________________
The Additional Investment Right Shares shall be delivered to the following:
__________________________________
__________________________________
__________________________________
(4) ACCREDITED INVESTOR. The undersigned is an "accredited investor"
as defined in Regulation D under the Securities Act of 1933, as amended.
[PURCHASER]
By:
------------------------------
Name:
Title:
Dated:
------------------------
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Additional Investment Right and all
rights evidenced thereby are hereby assigned to
_______________________________________________ whose address is
________________________________________________________________________.
________________________________________________________________________
Dated:
-------------, ------
Holder's Signature:
---------------------------
Holder's Address:
---------------------------
---------------------------
Signature Guaranteed:
------------------------------------------------
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Additional Investment Right, without alteration or
enlargement or any change whatsoever, and must be guaranteed by a bank or trust
company. Officers of corporations and those acting in a fiduciary or other
representative capacity should file proper evidence of authority to assign the
foregoing Additional Investment Right.
