EXHIBIT 4.8
WARRANT
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS WARRANT
NOR SUCH SECURITIES MAY BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER
SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
STEREOTAXIS, INC.
COMMON STOCK WARRANT
VOID AFTER ___________, 2006
ISSUED: _______________, 2001 CSW-_____
1. Warrant; Period of Exercise. Subject to the terms and
conditions herein set forth, __________________ or its assigns (the "Holder") is
hereby entitled to subscribe for and purchase ____________________ shares of the
fully paid and nonassessable shares of the Common Stock, par value $0.001 per
share (the "Common Stock") of the Company, at a price per share of $2.17 (as the
same may be adjusted pursuant to the terms and conditions set forth herein, the
"Warrant Price"). The Common Stock issuable upon exercise of this Warrant (the
"Shares") shall be entitled to registration rights pursuant to that certain
Third Amended and Restated Investor Rights Agreement, dated as of November 21,
2001 among the Company and certain securityholders of the Company named therein,
as the same may be hereafter amended, restated or otherwise modified. The
Warrants are exercisable at a price equal to the Warrant Price at any time from
and after _____________, 2001 but no later than the earlier of (i) ____________,
2006 and (ii) the date on which the Company consummates a Senior Preferred
Qualified IPO, as defined in Section 4(d)(ii) of Article V of the Company's
Amended and Restated Certificate of Incorporation, provided that if this Warrant
has not been exercised as of the date of any such Senior Preferred Qualified
IPO, then the Holder of this Warrant shall be deemed to have made an election to
effect a cashless exercise as of such date for all Shares issuable hereunder
pursuant to Section 5.B hereof. In the event of such a deemed exercise, the Fair
Market Value shall be equal to the net per share proceeds to the Company of the
Common Stock in such Senior Preferred Qualified IPO, after deduction of
underwriting commissions and discounts.
II. Fractional Shares. No fractional Shares will be issued in
connection with any exercise hereunder. In lieu of any fractional Shares which
would otherwise be issuable, the Company shall pay cash equal to the product of
such fraction multiplied by the Fair Market Value less the exercise price of one
share of the Common Stock on the date of exercise, as determined in good faith
by the Company's Board of Directors.
III. No Stockholder Rights. This Warrant shall not entitle its
Holder to any of the rights of a stockholder of the Company until the Holder has
exercised this Warrant.
IV. Reservation of Stock. The Company covenants that during the
period this Warrant is exercisable, the Company will reserve from its authorized
but unissued shares of Common Stock, a sufficient number of shares to provide
for the issuance of the Shares upon the exercise of this Warrant. The Company
agrees that its issuance of this Warrant 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 Shares.
V. Exercise of Warrant.
A. Without limiting Section 5.B below, the purchase
right represented by this Warrant may be exercised by the Holder hereof, in
whole or in part, by the surrender of this Warrant (with the notice of exercise
form attached hereto as EXHIBIT A duly executed) at the principal executive
offices of the Company, and by the payment in full to the Company, by check or
other form of immediately available funds, of an amount equal to the then
applicable Warrant Price per share multiplied by the number of Shares then being
purchased. The person or persons in whose name(s) any certificate(s)
representing Shares shall be issuable upon exercise of this Warrant shall be
deemed to have become, and shall be treated for all purposes as, the record
Holder(s) of the Shares represented thereby (and such Shares shall be deemed to
have been issued) immediately prior to the close of business on the date or
dates upon which this Warrant is exercised. In the event of any exercise of the
rights represented by this Warrant, certificates for the Shares so purchased
shall be delivered to the Holder hereof as promptly as practicable following
such exercise, and, unless this Warrant has been fully exercised or expired, a
new Warrant representing the portion of the Shares, if any, with respect to
which this Warrant shall not then have been exercised shall also be issued to
the Holder hereof as promptly as practicable.
B. Cashless Exercise. Notwithstanding anything to the
contrary contained in this Warrant, this Warrant may be exercised by
presentation and surrender of this Warrant to the Company at its principal
executive offices with a written notice of the Holder's intention to effect a
cashless exercise, including a calculation of the number of Shares to be issued
upon such exercise in accordance with the terms hereof. In the event of a
cashless exercise at the Holder's election (including a deemed election pursuant
to Section 1.B hereof), in lieu of paying the Warrant Price in cash, the Holder
shall surrender this Warrant for that number of Shares of Common Stock
determined by multiplying the number of Shares to which it would otherwise be
entitled by a fraction, the numerator of which shall be the difference between
the then current Fair Market Value per share of Common Stock and the then
applicable Warrant Price and the denominator of which shall be the then current
Fair Market Value per share of the Common Stock. The "Fair Market Value" shall
mean (1) if the Shares are traded on an exchange or quoted on the National
Association of Securities Dealers Automated Quotations System ("NASDAQ"), the
closing price on the day before the exercise date, (2) if the Shares are not
traded on an exchange or on the NASDAQ National Market but are traded in the
over-the-counter market, the closing price on the day before the exercise date,
or (3) if the Shares are not traded on an exchange or on the NASDAQ National
Market or in the over-the-counter market, the Fair Market Value as determined in
good faith by the Board of Directors of the Company.
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VI. Adjustment of Warrant Price and Number of Shares. The number
and kind of securities purchasable upon the exercise of the Warrant and the
Warrant Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
A. Reclassification or Merger. In case of any
reclassification, change or conversion of securities of the class issuable upon
exercise of this Warrant (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination), or in case of any merger of the Company with or into another
corporation (other than a merger with another corporation in which the Company
is a continuing corporation and which does not result in any reclassification or
change of outstanding securities issuable upon exercise of this Warrant), or in
case of any sale of all or substantially all of the assets of the Company, the
Company, or such successor or purchasing corporation, as the case may be, shall
execute a new Warrant providing that the Holder of this Warrant shall have the
right to exercise such new Warrant and upon such exercise to receive, in lieu of
each Share theretofore issuable upon exercise of this Warrant, the kind and
amount of shares of stock, other securities, money and property receivable upon
such reclassification, change or merger by a Holder of one share of stock
issuable upon the exercise hereof. Such new Warrant shall provide for
adjustments that shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 6. The provisions of this paragraph 6.A
shall similarly apply to successive reclassifications, changes, mergers and
transfers.
B. Subdivisions or Combination of Shares. If the Company
at any time while this Warrant remains outstanding and unexpired shall subdivide
or combine its stock, the Warrant Price and the number of Shares issuable upon
exercise hereof shall be proportionately adjusted.
C. Stock Dividends. If the Company at any time while
this Warrant is outstanding and unexpired shall pay a dividend payable in shares
of stock (except any distribution specifically provided for in the foregoing
paragraphs 6.A and 6.B), then the Warrant Price shall be adjusted, from and
after the date of determination of stockholders entitled to receive such
dividend or distribution, to that price determined by multiplying the Warrant
Price in effect immediately prior to such date of determination by a fraction
(a) the numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution, assuming that
all convertible securities of the Company have been converted into shares of
Common Stock and (b) the denominator of which shall be the total number of
shares of Common Stock outstanding immediately after such dividend or
distribution, assuming that all convertible securities of the Company have been
converted into shares of Common Stock, and the number of Shares subject to this
Warrant shall be proportionately adjusted.
D. No Impairment. The Company will not, by amendment of
its Amended and Restated Certificate of Incorporation or through any
reorganization, recapitalization, 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 to be observed
or performed hereunder by the Company, but will at all times in good faith
assist in the carrying
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out of all the provisions of this Section 6 and in the taking of all such action
as may be necessary or appropriate in order to protect the rights of the Holder
of this Warrant against impairment.
E. Notices of Record Date. In the event of any taking by
the Company of a record of its stockholders for the purpose of determining
stockholders who are entitled to receive payment of any dividend (other than a
cash dividend) or other distribution, any right to subscribe for, purchase or
otherwise acquire any share of any class or any other securities or property, or
to receive any other right, or for the purpose of determining stockholders who
are entitled to vote in connection with any proposed merger or consolidation of
the Company with or into any other corporation, or any proposed sale, lease or
conveyance of all or substantially all of the assets of the Company, or any
proposed liquidation, dissolution or winding up of the Company, the Company
shall mail to the registered Holder, at least twenty (20) days prior to the date
specified therein, a notice specifying the date on which any such record is to
be taken for the purpose of such dividend, distribution or right, and the amount
and character of such dividend, distribution or right.
VII. Notice of Adjustments. Whenever the Warrant Price shall be
adjusted pursuant to the provisions hereof, the Company shall within thirty (30)
days of such adjustment deliver a certificate signed by an executive officer to
the registered Holder(s) hereof setting forth, in reasonable detail, the event
requiring the adjustment, the amount of the adjustment, the method by which such
adjustment was calculated, and the Warrant Price after giving effect to such
adjustment.
VIII. Compliance with Securities Laws.
A. The Holder represents and agrees that this Warrant
(and the Shares, if the Warrant is exercised), are purchased only for
investment, for the Holder's own account, and without any present intention to
sell or distribute the Warrant or the Shares. The Holder further acknowledges
that the Shares will not be issued pursuant to the exercise of this Warrant
unless the exercise of the Warrant and the issuance and delivery of such Shares
shall comply with all relevant provisions of law, including, without limitation,
the Securities Act of 1933, as amended (the "1933 Act"), and other federal and
state securities laws and regulations and the requirements of any stock exchange
upon which the securities may then be listed.
B. The Holder of this Warrant acknowledges and agrees
that this Warrant and the Shares have not been registered under the 1933 Act and
accordingly will not be transferable except as permitted under the various
exemptions contained in the 1933 Act, or upon satisfaction of the registration
and prospectus delivery requirements of the 1933 Act. Therefore, the Warrant and
Shares must be held indefinitely unless they are subsequently registered under
the 1933 Act, or an exemption from such registration is available. The Holder
understands that the certificate evidencing the Shares will be imprinted with a
legend which prohibits the transfer of the Shares unless they are registered or
unless the Company receives an opinion of counsel reasonably satisfactory to the
Company that such registration is not required. The Holder is aware of the
adoption of Rule 144 by the Securities and Exchange Commission and that the
Company is not now and, at the time such Holder wishes to sell the Shares, may
not be satisfying the current public information requirements of Rule 144 and,
in such case, the Holder would be precluded
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from selling the Shares under Rule 144. The Holder understands that a stop
transfer instruction will be in effect with respect to transfer of Shares
consistent with the requirements of applicable securities laws.
C. All Shares issued upon exercise of this Warrant
(unless registered under the 0000 Xxx) shall be stamped or imprinted with
legends in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS
AND UNTIL SUCH SECURITIES ARE REGISTERED UNDER SUCH ACT OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT
SUCH REGISTRATION IS NOT REQUIRED."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS OF AN INVESTOR RIGHTS AGREEMENT BETWEEN THE HOLDER AND THE
CORPORATION, A COPY OF WHICH MAY BE OBTAINED FROM THE SECRETARY OF THE
CORPORATION."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
PROVISIONS, INCLUDING, AMONG OTHERS, RESTRICTIONS ON VOTING SET FORTH
IN A CERTAIN AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT DATED AS OF
NOVEMBER 21, 2001, A COPY OF WHICH IS AVAILABLE AT THE PRINCIPAL OFFICE
OF STEREOTAXIS, INC."
IX. Miscellaneous. This Warrant shall be governed by the internal
laws of the State of Missouri. The headings in this Warrant are for purposes of
convenience of reference only and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be change, waived,
discharged or terminated orally but only by an instrument in writing signed by
the Company and the registered Holder hereof. All notices and other
communications from the Company to the Holder of this Warrant shall be mailed by
first class registered or certified mail, postage prepaid, to the address
furnished to the Company in writing by the last Holder of this Warrant who shall
have furnished an address to the Company in writing.
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This Common Stock Warrant is issued this ______ day of _____________,
2001.
STEREOTAXIS, INC.
BY: _______________________
Xxxxx X. Xxxx
President and Chief Executive
Officer
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EXHIBIT A
NOTICE OF EXERCISE
To: Stereotaxis, Inc.
1. The undersigned hereby elects to purchase _______ shares of
the Common Stock of Stereotaxis, Inc. pursuant to the terms of the attached
Common Stock Warrant No CSW-_____, and tenders herewith payment of the purchase
price of such shares in full.
2. Please issue a certificate or certificates representing said
shares in the name of the undersigned or in such other name or names as are
specified below:
Name Address
______________________________ ______________________________________
______________________________ ______________________________________
______________________________ ______________________________________
__________________________________________
(Signature)
_____________________
(Date)
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