Exhibit 4(t)
NEITHER THIS WARRANT NOR THE SECURITIES UNDERLYING THIS WARRANT HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR UNDER
APPLICABLE STATE SECURITIES LAWS. THIS WARRANT HAS BEEN TAKEN BY THE REGISTERED
OWNER FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TOWARD RESALE OR
DISTRIBUTION HEREOF. THIS WARRANT MAY NOT BE TRANSFERRED OR DISPOSED OF WITHOUT
AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER HEREOF THAT SUCH TRANSFER OR
DISPOSITION DOES NOT VIOLATE THE SECURITIES ACT, THE RULES AND REGULATIONS
THEREUNDER, OR APPLICABLE STATE SECURITIES LAWS. IN CONNECTION WITH COMPLIANCE
WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, NO EXERCISE,
TRANSFER OR DISPOSITION OF THIS WARRANT OR THE SECURITIES UNDERLYING THIS
WARRANT SHALL BE MADE UNLESS THE CONDITIONS SPECIFIED HEREIN ARE SATISFIED.
No. Hardy Group- Number of Shares Purchasable Upon
Issue Date: As of April 29, 1997 Exercise of Warrant:
Void after 5:00 p.m. New York Time on April 29, 2002
COMMON STOCK PURCHASE WARRANT
OF
MEDCROSS, INC.
This is to certify that, subject to the provisions of this Common Stock
Purchase Warrant (the "Warrant") and for value received, (the "Holder")
is entitled to purchase ( ) shares of common stock, $.007 par
value per share (the "Common Stock") subject to adjustment as set forth herein
of Medcross, Inc., a Florida corporation (the "Company"), at an exercise price
of Two and 50/100 Dollars ($2.50) per share (the "Exercise Price"), at any time
during the period ending April 29, 2002 (the "Expiration Date"), but not later
than 5:00 p.m. Eastern Standard Time on the Expiration Date.
1. EXERCISE OF WARRANT. Subject to the provisions of Section 8 below, this
Warrant may be exercised in whole or in part at any time or from time to time on
or after the issue date and until the Expiration Date; provided, however, that
if either of such days is a day on which banking institutions are authorized by
law to close (a "Bank Holiday"), then on the next
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succeeding day which shall not be a Bank Holiday. This Warrant may be exercised
by presentation and surrender hereof to the Company at its principal office or
at the office of its transfer agent, if any (the "Transfer Agent"). The
presentation and surrender of this Warrant for exercise must be accompanied by:
(a) the form of subscription which is attached hereto in Annex A (the "Form of
Subscription") duly executed with signature guaranteed, and (b) payment of the
aggregate Exercise Price for the number of shares specified in such form. If
this Warrant should be exercised in part only, upon presentation and surrender
of this Warrant to the Company or the Transfer Agent for cancellation, the
Company shall execute and deliver a new warrant evidencing the rights of the
Holder to purchase the balance of the shares purchasable hereunder. Upon receipt
of this Warrant by the Company at its office or by the Transfer Agent at its
office, in proper form for exercise, the Holder shall be deemed to be the holder
of record of the shares of Common Stock issuable upon such exercise; provided,
however, that if at the date of surrender of such Warrant and payment of the
aggregate Exercise Price, the transfer books for the Common Stock shall be
closed, the certificates representing the shares of Common Stock or other
securities subject to issuance upon such exercise shall be issuable as of the
date on which the Company's transfer books shall next be opened. Until such
date, the Company shall be under no duty to deliver any certificate representing
such shares of Common Stock or other securities and the Holder shall not be
deemed to have become a holder of record or owner of such shares of Common Stock
or such other securities. The Company reserves the right to pay any broker-
dealer registered under the Securities Exchange Act of 1934, as amended, a fee
not to exceed ten percent of the Exercise Price upon the exercise of this
Warrant in accordance with applicable federal and state securities laws and
applicable regulations of the National Association of Securities Dealers, Inc.
2. RESERVATION OF SHARES. There shall at all times be reserved for issuance
upon exercise of this Warrant such number of shares of Common Stock as shall be
subject hereto.
3. FRACTIONAL SHARES. Notwithstanding any other provision hereof, the
Company shall not be required to issue fractional shares of Common Stock upon
the exercise of this Warrant. If any fraction of a share would, except for the
provisions hereof, be issuable upon the exercise of this Warrant, then: (a) if
the fraction of a share otherwise issuable is equal to or less than one-half,
the Company shall round down and issue only the largest whole number of shares
of Common Stock to which the Holder is otherwise entitled, or (b) if the
fraction of a share otherwise issuable is greater than one-half, the Company
shall round up and issue one additional share of Common Stock in addition to the
largest whole number of shares of Common Stock to which the Holder is otherwise
entitled.
4. EXCHANGE, TRANSFER OR ASSIGNMENT OF WARRANT. Subject to the provisions
of this section and of Section 9 below, this Warrant is exchangeable, without
expense, at the option of the Holder, upon presentation and surrender hereof to
the Company or the Transfer Agent, for other warrants of different denominations
entitling the holder thereof to purchase in the aggregate the same number of
shares of Common Stock purchasable hereunder. Subject to the provisions of this
section and of Section 9 below, upon surrender of this Warrant
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to the Company or the Transfer Agent accompanied by: (a) the form of assignment
which is attached hereto as Annex B (the "Form of Assignment") duly executed;
and (b) funds sufficient to pay any transfer tax, the Company shall, without
charge, execute and deliver a new warrant in the name of the assignee named in
the Form of Assignment and this Warrant shall promptly be canceled. This Warrant
may be divided or combined with other warrants which carry the same rights upon
presentation hereof at the office of the Company or the Transfer Agent,
accompanied by a written notice signed by the Holder hereof specifying the names
and denominations in which new warrants are to be issued.
Notwithstanding anything herein to the contrary, the Company may, without
any obligation to do so, at its option, at any time and from time to time prior
to the Expiration Date require that the Holder surrender this Warrant to the
Company or the Transfer Agent in exchange for a warrant certificate in engraved
or other form as may be approved by the Board of Directors representing this
Warrant, bearing such letters, numbers or other marks of identification or
designation and such legends, summaries or endorsements printed, lithographed or
engraved thereon as the Board of Directors may deem appropriate, having terms
and conditions substantially similar to those contained in this Warrant or
which, in the reasonable judgment of the Board of Directors, afford the Holder
or Holders of the outstanding Warrants issued by the Company as a class a net
benefit when considered under the totality of the circumstances 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 on which the
Warrants may be listed, or to conform to usage; it being understood and agreed,
however, that the terms and conditions of this Warrant may be modified, amended
or superseded by the Company at any time hereafter as set forth herein. The term
"Warrant" as defined above shall hereafter include any warrant into which this
Warrant may be divided, exchanged or combined, and any Warrant as the same may
be hereafter modified or amended from time to time.
5. THEFT, DESTRUCTION, LOSS OR MUTILATION OF WARRANT. Subject to the
provisions of Section 4, in the event of the theft, destruction, loss or
mutilation of this Warrant, upon receipt by the Company of evidence satisfactory
to it of such theft, destruction, loss or mutilation and, in the case of loss,
theft or destruction, of such indemnification as the Company may in its
discretion impose, and in the case of mutilation, upon surrender and
cancellation of this Warrant, the Company shall execute and deliver a new
warrant of like tenor and date.
6. RIGHTS OF THE HOLDER. Prior to the exercise of any Warrant represented
hereby, the Holder shall not be entitled by virtue hereof to any rights of a
stockholder in the Company, either at law or equity. The rights of the Holder
are limited to those expressed in this Warrant and are enforceable against the
Company only to the extent set forth herein.
7. ANTI-DILUTION PROVISIONS. The Exercise Price and the number and kind of
securities purchasable upon the exercise of this Warrant shall be subject to
adjustment from time to time as hereinafter provided:
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(a) In case the Company shall issue Common Stock as a dividend upon Common
Stock or in payment of a dividend thereon, or shall subdivide the number of
outstanding shares of its Common Stock into a greater number of shares or shall
contract the number of outstanding shares of its Common Stock into a lesser
number of shares, the Exercise Price then in effect shall be adjusted, effective
at the close of business on the record date for the determination of
stockholders entitled to receive the same, to the price (computed to the nearest
cent) determined by dividing (A) the product obtained by multiplying the
Exercise Price in effect immediately prior to the close of business on such
record date by the number of shares of Common Stock outstanding prior to such
dividend, subdivision or contraction, by (B) the number of shares of Common
Stock outstanding immediately after such dividend, subdivision, or contraction.
(b) If any capital reorganization or reclassification of the capital stock
of the Company, or consolidation or merger of the Company with or into another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provision
shall be made whereby the holder of this Warrant shall thereafter have the right
to purchase and receive upon the basis and upon the terms and conditions
specified in this Warrant and in lieu of the shares of Common Stock of the
Company immediately theretofore purchasable and receivable upon the exercise of
the rights represented by this Warrant, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange for a number
of outstanding shares of such Common Stock immediately theretofore purchasable
and receivable upon the exercise of the rights represented by this Warrant had
such reorganization, reclassification, consolidation, merger or sale not taken
place, and in any such case appropriate provision shall be made with respect to
the rights and interests of the Holder to the end that the provisions of this
Warrant (including, without limitation, provisions for adjustment of the
Exercise Price and of the number of shares of Common Stock or other securities
issuable upon the exercise of this Warrant) shall thereafter be applicable as
nearly as may be practicable in relation to any shares of stock, securities, or
assets thereafter deliverable upon exercise of this Warrant. The Company shall
not effect any such consolidation, merger or sale unless prior to or
simultaneously with the consummation thereof, the successor corporation (if
other than the Company) resulting from such consolidation or merger or the
corporation purchasing such assets shall assume, by written instrument, the
obligation to deliver to the Holder such shares of stock, securities or assets
as, in accordance with the foregoing provisions, the Holder may be entitled to
purchase.
(c) Upon each adjustment of the Exercise Price pursuant hereto, the number
of shares of Common Stock specified in this Warrant shall thereupon evidence the
right to purchase that number of shares of Common Stock (calculated to the
nearest hundredth of a share of Common Stock) obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number of
shares of Common Stock purchasable immediately prior to such adjustment upon
exercise of this Warrant and dividing the product so obtained by the Exercise
Price in effect after such adjustment.
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(d) Irrespective of any adjustments of the number or kind of securities
issuable upon exercise of this Warrant or the Exercise Price, any warrants
theretofore or thereafter issued may continue to express the same number of
shares of Common Stock and Exercise Price as are stated in similar warrants
previously issued.
(e) The Company may, at its sole option, retain the independent public
accounting firm regularly retained by the Company, or another firm of
independent public accountants of recognized standing selected by the Company's
board of directors (the "Board of Directors"), to make any computation required
under this section and a certificate signed by such firm shall be conclusive
evidence of any computation made under this section.
(f) Whenever there is an adjustment in the Exercise Price and/or in the
number or kind of securities issuable upon exercise of this Warrant, as provided
herein, the Company shall: (i) promptly file in the custody of its Secretary or
Assistant Secretary a certificate signed by the Chairman of the Board of
Directors or the President or an Executive Vice President of the Company and by
the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Company, showing in detail the facts requiring such adjustment
and the number and kind of securities issuable upon exercise of this Warrant
after such adjustment; and (ii) cause a notice to be sent to the Holder stating
that such adjustment has been effected and stating the Exercise Price then in
effect and the number and kind of securities issuable upon exercise of this
Warrant.
(g) Notwithstanding any other provision of this Warrant, the Exercise Price
shall never be less than the Conversion Price, as adjusted, of the Class C
Convertible Cumulative Redeemable Preferred Stock, computed in accordance with
the Articles of Amendment to the Amended and Restated Articles of Incorporation
of the Company dated August 15, 1996.
(h) The Exercise Price and the number of shares issuable upon exercise of
this Warrant shall only be adjusted in the manner and upon the conditions
heretofore specifically referred to in this Section 7.
8. REGISTRATION RIGHTS. The Company hereby covenants and agrees as follows:
a. Definitions. As used in this section, the following terms shall have
the meanings set forth below:
(i) The terms "register," "registered" and "registration" shall
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act, and the
declaration or ordering of the effectiveness of such registration statement or
document.
(ii) The term "Registrable Securities" shall mean: (A) this Warrant;
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(B) the Common Stock issued or issuable upon exercise of this Warrant; and (C)
any warrant or Common Stock or other securities of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect to, in
exchange for or in replacement of such Warrant or Common Stock referenced in
subsections (A) or (B) immediately above, excluding in all cases, however, any
Registrable Securities sold to the public pursuant to a registration under the
Securities Act or an applicable exemption therefrom.
(b) Demand Registration Rights. At any time commencing December 31, 1997
and through the period ending on the Expiration Date, upon the written request
of the Holders of at least a majority of the outstanding Registerable Securities
(the "Initiating Holders"), the Company shall, on not more than one occasion,
afford all of the Holders of Registrable Securities (as reflected in the records
of the Company) the opportunity to effect the registration of the offer and sale
of the Registerable Securities.
(c) Piggy-back Registration Rights. If (but without any obligation to do
so) the Company, at any time through the period ending on April 29, 2002,
proposes to register (including for this purpose a registration effected by the
Company for securityholders other than the Holder) any of its securities under
the Securities Act in connection with the public offering of such securities
solely for cash (other than a registration on Form X-0, Xxxx X-0 or any form
which does not include substantially the same information as would be required
to be included in a registration statement covering the sale of the Registrable
Securities), the Company shall, each such time, promptly give the Holder written
notice of such registration. Upon the written request of the Holder given within
twenty (20) days after receipt of such written notice from the Company, the
Company shall, subject to the provisions of this section, cause to be registered
under the Securities Act all of the Registrable Securities that the Holder has
requested to be registered; provided, however, that the Company shall have no
such obligation if, in the good faith judgment of the Company's Board of
Directors, it would be seriously detrimental to the Company and its
securityholders to include any Registrable Securities in the subject
registration statement or offering or if the managing underwriter of the subject
proposed offering objects in writing addressed to the Company to the inclusion
of any Registrable Securities in the subject registration statement or offering;
and provided further, however, that the Registrable Securities shall be subject
to restrictions on transfer for ninety (90) days after the effective date of the
subject registration statement. The inclusion of any of the Holder's Registrable
Securities in a registration statement filed by the Company and declared
effective by the Securities and Exchange Commission ("SEC") shall be deemed to
be the exercise by such Holder of the piggy-back registration rights granted
herein to such Holder.
(d) Obligations of the Company. Whenever required hereunder to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
6
(i) Prepare and file with the SEC a registration statement with respect
to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder,
keep such registration statement effective for at least four (4) months.
(ii) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(iii) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
(iv) Use its best efforts to register and qualify the securities covered
by such registration statement under the securities laws of such jurisdictions
as shall be reasonably requested by the Holders for the distribution of the
securities covered by the registration statement, provided that the Company
shall not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of process in any
such jurisdiction.
(v) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement with terms generally
satisfactory to the managing underwriter of such offering.
(vi) Notify the Holders, promptly after the Company shall have received
notice thereof, of the time when the registration statement becomes effective or
any supplement to any prospectus forming a part of the registration statement
has been filed.
(vii) Notify the Holders of any stop order suspending the effectiveness of
the registration statement and use its reasonable best efforts to remove such
stop order.
e. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant hereto that the Holder,
having chosen to have its Registrable Securities included for registration,
shall furnish to the Company such information regarding the Holder, its
Registrable Securities and the intended method of disposition of such securities
as shall be required to effect the registration thereof. The Holder shall be
required to represent to the Company that all such information which is given is
complete and accurate in all material respects. The Holder shall deliver to the
Company a statement in writing from the beneficial owners of such securities
that such beneficial owners bona fide intend to sell, transfer or otherwise
dispose of such securities.
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f. Expenses.
(i) Registration Expenses. All expenses incurred by the Company in
complying with this section, including without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel for the
Company, "Blue Sky" fees and expenses, and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company which shall be paid in any event by the
Company) shall be borne by the Company.
(ii) Selling Expenses. All underwriting discounts, underwriters'
expense allowance, and selling commissions applicable to the sale of Registrable
Securities by the Holders and all fees and disbursements of any special counsel
(other than the Company's regular counsel) shall be borne by the Holders of the
Registrable Securities so registered pro rata on the basis of the number of
Registrable Securities so registered.
g. Underwriting Requirements. All Holders proposing to distribute their
Registrable Securities through an underwriting in which the Company has proposed
or is proposing to participate, shall (together with the Company and any other
Holders distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for underwriting by the Company. Notwithstanding any other subsection
of this section, at the request of the managing underwriter, the Holder shall
delay the sale of Registrable Securities which such Holder has requested be
registered hereunder for up to ninety (90) days following the effective date of
the registration statement. If any Holder disapproves of the terms of any such
underwriting, such Holder may elect to withdraw therefrom by written notice to
the Company and the underwriter. Any Registrable Securities excluded or
withdrawn from such underwriting shall not be withdrawn from such registration
except at the election of the Holder.
x. Xxxxx of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this section.
i. Indemnification. In the event that any Registrable Securities are
included in a registration statement pursuant hereto:
(i) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the officers, directors and partners of each Holder,
any underwriter (as defined in the Securities Act) for such Holder and each
person, if any, who controls such Holder or underwriter within the meaning of
the Securities Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), against any losses, claims, damages or liabilities (joint or
several) to which they may become subject under the Securities Act, the Exchange
Act or other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations
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(collectively, a "Violation"): (A) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto; (B) the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary to make the
statements therein not misleading; or (C) any violation or alleged violation by
the Company of the Securities Act, the Exchange Act, any applicable state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any applicable state securities law; and the Company will
reimburse the Holder for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this subsection shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability or action to the extent that it arises out of or is based upon
a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
the Holder; and further provided, however, that the foregoing indemnity
agreement is subject to the condition that, insofar as it relates to any untrue
statement, alleged untrue statement, omission or alleged omission made in any
preliminary prospectus but eliminated or remedied in the prospectus, such
indemnity agreement shall not inure to the benefit of any underwriter or broker,
if a copy of the prospectus was not sent or given to such person with or prior
to the confirmation of the sale of such securities to such person.
(ii) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, its directors, its officers, any person
who controls the Company within the meaning of the Securities Act or the
Exchange Act, any underwriter (within the meaning of the Securities Act) for the
Company and any person who controls such underwriter against any losses, claims,
damages or liabilities (joint or several) to which the Company or any such
director, officer, controlling person, or underwriter or controlling person may
become subject, under the Securities Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by the Holder expressly for
use in connection with such registration; and the Holder will reimburse any
legal or other expenses reasonably incurred by the Company or any such director,
officer, controlling person, underwriter or controlling person thereof, in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this subsection shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Holder, which consent shall not be unreasonably withheld.
(iii) Promptly after receipt by an indemnified party of notice of the
commencement of any action (including any governmental action), such indemnified
party will, if a claim in respect thereof is to be made against any indemnifying
party hereunder, notify the
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indemnifying party in writing of the commencement thereof and the indemnifying
party shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to notify an
indemnifying party within a reasonable time of the commencement of any such
action, to the extent prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party
hereunder, but the omission so to notify the indemnifying party will not relieve
it of any liability that it may have to any indemnified party otherwise than
under this subsection.
j. Reports Under Exchange Act. Following registration of the
Company's securities under the Exchange Act and with a view of making available
to the Holders the benefits of Rule 144 under the Securities Act and any other
rule or regulation promulgated by the SEC that may at any time permit a Holder
to sell securities of the Company to the public without registration, the
Company agrees to:
(i) use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144, at all times;
and
(ii) use its best efforts to file with the SEC in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act.
k. Termination of the Company's Obligations.
(i) The Company shall have no obligations pursuant to
Subsection 8(b) or 8(c) with respect to any request made by the Holder after
April 29, 2002.
(ii) Notwithstanding any provision hereof to the contrary, the
Company shall not be required to effect any registration under the Securities
Act or under any state securities laws on behalf of any Holder or Holders if, in
the opinion of counsel for the Company, the offering or transfer by such Holder
or Holders in the manner proposed (including without limitation, the number of
shares proposed to be offered or transferred and the method of offering or
transfer) is exempt from the registration requirements of the Securities Act and
the securities or "Blue Sky" laws of applicable states.
x. Xxxxxx'x Acceptance of Obligations. Acceptance of this Warrant by its
Holder(s) shall be deemed to constitute the unqualified acceptance by the Holder
of all of the terms and conditions set forth herein.
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9. TRANSFER TO COMPLY WITH THE SECURITIES ACT AND OTHER APPLICABLE
SECURITIES LAWS. Neither this Warrant nor the shares of Common Stock (or other
securities) issuable upon exercise hereof have been registered under the
Securities Act or under state securities laws. Except as provided in Section 4
above: (a) this Warrant may not be transferred, assigned, pledged, sold, or
otherwise disposed of, and (b) the shares of Common Stock (or other securities)
issuable upon exercise of this Warrant may not be transferred, assigned,
pledged, sold or otherwise disposed of in the absence of registration under or
exemption from the applicable provisions of the Securities Act, unless the
Holder provides the Company with an opinion of counsel in form and substance
satisfactory to the Company (together with such other representations and
warranties as the Company may request) that the shares of Common Stock issued or
issuable, as applicable, upon exercise of this Warrant may be legally
transferred without violating the Securities Act, and any other applicable
securities law and then only against receipt of an agreement of the transferee
(in form and substance satisfactory to the Company) to comply with the
provisions of this section with respect to any resale or other disposition of
such securities.
10. 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 by first class mail, postage prepaid, as follows: If to the
Holder of this Warrant, at the address of the Holder as shown on the registry
books maintained by the Company, its transfer agent or the Warrant Agent; and if
to the Company, at 00000 X. Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxx 00000,
Attention: President, with a copy by like means to De Xxxxxxx Xxxxxxxxxxx Xxxxx
& Xxxxx, 0000 X Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000, Attention:
Xxxxx X. Xx Xxxxxxx, Esq.
11. SURVIVAL. All agreements, covenants, representations and warranties set
forth herein shall survive the execution and delivery of this Warrant and any
investigation at any time made by or on behalf of any parties hereto and the
exercise and purchase of this Warrant.
12. AMENDMENTS. The Company may, in its sole discretion, by supplemental
agreement or pursuant to an amended warrant certificate issued in exchange for
this Warrant make any changes or corrections to the terms and conditions hereof
which it deems appropriate in order to: (a) reduce the Exercise Price; (b)
extend the Expiration Date of this Warrant; (c) cure any ambiguity or to correct
any defective or inconsistent provision or manifest mistake or error herein
contained; (d) modify such other terms and conditions hereof which modification,
in the judgment of the Board of Directors, provides, when considered under the
totality of the circumstances a net benefit to or which, in the exercise of such
judgment, the Board of Directors determines would not be contrary to the
interests of the Holder of this Warrant and/or to all of the Holders of the then
outstanding Warrants of like tenor; provided, however, that no adverse change in
the number or nature of the securities purchasable upon the exercise of this
Warrant, or the Purchase Price therefor, or the acceleration of the Warrant
Expiration Date, shall be made without the consent in writing of the Holder of
this Warrant. In addition, the Company may at any time hereafter enter into an
agreement with a qualified warrant agent (a "Warrant Agent") chosen by it in its
sole
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discretion to act on behalf of the Company 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 (a "Warrant Agreement"). The registration rights
contained in Section 8 hereof shall survive any such modification or replacement
of this Warrant.
13. AGREEMENT OF WARRANT HOLDER. The Holder of this Warrant, by his
acceptance hereof, consents and agrees with the Company, any Warrant Agent, any
Transfer Agent that:
(a) The Warrants are transferable only on the registry books of the
Company, the Transfer Agent or the Warrant Agent by the 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
Company or the Warrant Agent, if any, duly endorsed or accompanied by a proper
instrument of transfer satisfactory to the Company and the Warrant Agent, if
any, in their sole discretion, together with payment of any applicable transfer
taxes;
(b) The Company and any 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 none of the Company, the Transfer Agent or the Warrant Agent shall
be affected by any notice or knowledge to the contrary, except as otherwise
expressly provided in Section 4 hereof;
(c) Each Warrant shall be subject in all respects to the terms and
conditions set forth in any amended warrant certificate upon the issuance
thereof or in any Warrant Agreement entered into by the Company as permitted
pursuant to Section 4 hereof upon the execution thereof and, in either such
case, upon the mailing by the Company of notice of the amendment of the terms
and conditions of this Warrant. In the event of the execution of any such
Warrant Agreement, a true copy thereof such be promptly mailed by the Company to
the Holder;
(d) He shall execute all such further instruments and documents and
take such further action as the Company may reasonably require in order to
effectuate the terms and purposes of this Warrant.
14. SEVERABILITY. The provisions of this Warrant shall be considered
severable in the event that any of such provisions are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable. Such
invalid, void or otherwise unenforceable provisions shall be automatically
replaced by other provisions which are valid and enforceable and which are as
similar as possible in term and intent to those provisions deemed to be invalid,
void or otherwise unenforceable. Notwithstanding the foregoing, the remaining
provisions hereof shall remain enforceable to the fullest extent permitted by
law.
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15. ENTIRE AGREEMENT. This Warrant is intended to and does contain and
embody the entire understanding and agreement of the Company and the Holder with
respect to the subject matter hereof and there exists no oral agreement or
understanding, express or implied whereby the absolute, final and unconditional
character and nature of this Warrant shall be in any way invalidated,
unempowered or affected.
16. HEADINGS. The headings in this Warrant are for convenience of reference
only and are not part of this Warrant.
17. GOVERNING LAW. This Warrant shall be governed by and construed and
interpreted in accordance with the laws of the State of Florida without
reference to principles of conflict of laws.
IN WITNESS WHEREOF, Medcross, Inc. has caused this Warrant to be signed in
its name and on its behalf and its corporate seal to be affixed hereon by its
duly authorized officers as of the date of issuance first above written.
MEDCROSS, INC.
[SEAL] By:
----------------------------
Authorized Officer
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Annex A to Common Stock Purchase Warrant
FORM OF SUBSCRIPTION
(Complete and sign only upon exercise of the Common Stock Purchase Warrant in
whole or in part.)
TO: Medcross, Inc.
The undersigned, the holder of the attached Common Stock Purchase Warrant
to which this Form of Subscription applies, hereby irrevocably elects to
exercise the purchase rights represented by such warrant for and to purchase
thereunder shares of common stock, par value $.007 per share (the "Common
Stock") of Medcross, Inc. (or such other securities issuable pursuant to the
terms of the Common Stock Purchase Warrant) and herewith makes payment of
$ in cash or by certified or official bank check. The undersigned hereby
requests that the certificate(s) representing such securities be issued in the
name(s) and delivered to the address(es) as follows:
Name:
Address:
Social Security Number:
Deliver to:
Address:
If the foregoing subscription evidences an exercise of the Common Stock
Purchase Warrant to purchase fewer than all of the shares of Common Stock (or
other securities issuable pursuant to the terms of the Common Stock Purchase
Warrant) to which the undersigned is entitled under such warrant, please issue a
new warrant, of like tenor, relating to the remaining portion of the securities
issuable upon exercise of such warrant (or other securities issuable pursuant to
the terms of such warrant) in the name(s), and deliver the same to the
address(es), as follows:
Name:
Address:
Dated:
------------------------------ -------------------------------------------
(Name of Holder) (Social Security or Taxpayer Identification
Number of Holder, if applicable)
------------------------------
(Signature of Holder or Authorized Signatory)
Signature Guaranteed:
Annex B to Common Stock Purchase Warrant
FORM OF ASSIGNMENT
(To be executed upon transfer of Common Stock Purchase Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to
the right represented by the Common Stock Purchase Warrant to which this Form of
Assignment applies, No. , together with all rights, title and interest
therein, and does hereby irrevocably constitute and appoint attorney to
transfer such Common Stock Purchase Warrant on the warrant register of Medcross,
Inc., the issuer of the Common Stock Purchase Warrant, with full power of
substitution.
DATED:
Signature:
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
Signature Guaranteed:
