Exhibit 99.3
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THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED,
OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE SECURITIES LAWS OR
EXEMPTION FROM REGISTRATION UNDER THE FOREGOING LAWS. ACCORDINGLY, THIS WARRANT
MAY NOT BE SOLD OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE
TRANSFERRED WITHOUT (i) AN OPINION OF COUNSEL SATISFACTORY TO FIRST CHOICE
SOLUTIONS, INC. THAT REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933 AND ANY APPLICABLE STATE SECURITIES LAWS, (ii) SUCH REGISTRATION, OR (iii)
UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
WARRANT TO PURCHASE
COMMON STOCK
OF
BSD MEDICAL CORPORATION
VOID AFTER NOVEMBER 28, 2006
This Warrant is issued to The Xxxxxxx Family Trust Dated 1/11/2000
("Holder") by BSD Medical Corporation, a Delaware corporation (the "Company"),
on December 10, 2003 (the "Warrant Issue Date"). This Warrant is issued in
connection with the Securities Purchase Agreement dated as of the date hereof
between the Company and the purchasers described therein (the "Purchase
Agreement"). This Warrant is intended to be an investment warrant and is not
issued in connection with any services.
1. Purchase of Shares. Subject to the terms and conditions hereinafter
set forth, the Holder is entitled, upon surrender of this Warrant at the
principal office of the Company (or at such other place as the Company shall
notify the holder hereof in writing), to purchase from the Company up to 60,000
fully paid and nonassessable shares of common stock of the Company, as
constituted on the Warrant Issue Date (the "Common Stock"). The number of shares
of Common Stock issuable pursuant to this Section 1 (the "Shares") shall be
subject to adjustment pursuant to Section 7 hereof.
2. Exercise Price. The purchase price for the Shares shall be $1.80 per
share, as adjusted from time to time pursuant to Section 7 hereof (the "Exercise
Price").
3. Exercise Period. This Warrant shall be exercisable, in whole or in
part, during the term commencing on the Warrant Issue Date and ending at 5:00
p.m., Mountain Standard Time, on November 28, 2006; provided, however, that in
the event of (a) the closing of the Company's sale or transfer of all or
substantially all of its assets, or (b) the closing of the acquisition of the
Company by another entity by means of merger, consolidation or other transaction
or series of related transactions, resulting in the exchange or purchase of the
outstanding shares of the Company's capital stock such that the stockholders of
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the Company prior to such transaction own, directly or indirectly, less than 50%
of the voting power of the surviving entity, this Warrant shall, on the date of
such event, no longer be exercisable and become null and void. In the event of a
proposed transaction of the kind described in (a) through (b) of this Section 3,
the Company shall notify the Holder at least 10 days prior to the consummation
of such event or transaction.
4. Method of Exercise. While this Warrant remains outstanding and
exercisable in accordance with Section 3 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(a) the surrender of the Warrant, together with a duly executed
copy of the form of Notice of Exercise attached hereto, to the
Secretary of the Company at its principal offices;
(b) the payment to the Company of a cash amount equal to the
aggregate Exercise Price for the number of Shares being purchased; and
(c) the delivery of a subscription agreement, an investment letter
or similar document acceptable to the Company demonstrating that the
sale of Shares to be purchased is exempt from registration under the
Securities Act of 1933, as amended, and any applicable state securities
laws (unless a registration statement covering the Shares being
purchased shall have been declared effective by the Securities and
Exchange Commission).
5. Certificates for Common Stock. Upon the exercise of the purchase
rights evidenced by this Warrant, one or more certificates for the number of
Shares so purchased shall be issued as soon as practicable thereafter (with
appropriate restrictive legends, if applicable), and in any event within 30 days
of the delivery of the subscription notice.
6. Issuance of Shares. The Company covenants that the Shares, when
issued pursuant to the exercise of this Warrant, will be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens, and charges
with respect to the issuance thereof.
7. Adjustment of Exercise Price and Number of Shares. The number of and
kind of securities purchasable upon exercise of this Warrant and the Exercise
Price shall be subject to adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If the Company
shall at any time prior to the expiration of this Warrant subdivide its
Common Stock, by split-up or otherwise, or combine its Common Stock, or
issue additional shares of its Common Stock as a dividend with respect
to any shares of its Common Stock, the number of Shares issuable on the
exercise of this Warrant shall forthwith be proportionately increased
in the case of a subdivision or stock dividend, or proportionately
decreased in the case of a combination. Appropriate adjustments shall
also be made to the purchase price payable per share, but the aggregate
purchase price payable for the total number of Shares purchasable under
this Warrant (as adjusted) shall remain the same. Any adjustment under
this Section 7(a) shall become effective at the close of business on
the date the subdivision or combination becomes effective, or as of the
record date of such dividend, or in the event that no record date is
fixed, upon the making of such dividend.
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(b) Reclassification, Reorganization, Consolidation. In case of
any reclassification, capital reorganization or change in the Common
Stock of the Company (other than as a result of a subdivision,
combination, or stock dividend provided for in Section 7(a) above),
then, as a condition of such reclassification, reorganization, change,
or consolidation lawful provision shall be made, and duly executed
documents evidencing the same from the Company or its successor shall
be delivered to the Holder, so that the Holder shall have the right at
any time prior to the expiration of this Warrant to purchase, at a
total price equal to that payable upon the exercise of this Warrant,
the kind and amount of shares of stock and other securities and
property receivable in connection with such reclassification,
reorganization, change, or consolidation by a holder of the same number
of shares of Common Stock as were purchasable by the Holder immediately
prior to such reclassification, reorganization, change, or
consolidation. In any such case appropriate provisions shall be made
with respect to the rights and interest of the Holder so that the
provisions hereof shall thereafter be applicable with respect to any
shares of stock or other securities and property deliverable upon
exercise hereof, and appropriate adjustments shall be made to the
purchase price per share payable hereunder, provided the aggregate
purchase price shall remain the same.
8. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefore on the basis of the Exercise Price then in effect.
9. No Stockholder Rights. Prior to exercise of this Warrant, the Holder
shall not be entitled to any rights of a stockholder with respect to the Shares,
including (without limitation) the right to vote such Shares, receive dividends
or other distributions thereon, exercise preemptive rights or be notified of
stockholder meetings, and such holder shall not be entitled to any notice or
other communication concerning the business or affairs of the Company.
10. Transfers of Warrant. Subject to compliance with applicable federal
and state securities laws, this Warrant and all rights hereunder are
transferable in whole or in part by the Holder to affiliates of the Holder upon
written notice to the Company. Any other transfer by the Holder shall require
the written consent of the Company. Any permitted transfer shall be recorded on
the books of the Company upon the surrender of this Warrant, properly endorsed,
to the Company at its principal offices, and the payment to the Company of all
transfer taxes and other governmental charges imposed on such transfer.
11. Successors and Assigns. The terms and provisions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and the Holders
hereof and their respective permitted successors and transferees.
12. Loss or Mutilation of Warrant. Upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction, or mutilation of
this Warrant, and (in the case of loss, theft or destruction) or reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will execute and deliver a new Warrant of
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like tenor and date and any such lost, stolen or destroyed Warrant shall
thereupon become void. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not this Warrant so lost, stolen, destroyed, or mutilated shall be at
any time enforceable by anyone.
13. Amendments and Waivers. Any term of this Warrant may be amended and
the observance of any term of this Warrant may be waived (either generally or in
a particular instance and either retroactively or prospectively), with the
written consent of the Company and the Holder.
14. Notices. All notices required under this Warrant shall be deemed to
have been given or made for all purposes (i) upon personal delivery, (ii) upon
confirmation receipt that the communication was successfully sent to the
applicable number if sent by facsimile; (iii) one day after being sent, when
sent by professional overnight courier service, or (iv) five days after posting
when sent by registered or certified mail. Notices to the Company shall be sent
to the principal office of the Company (or at such other place as the Company
shall notify the Holder hereof in writing). Notices to the Holder shall be sent
to the address of the Holder on the books of the Company (or at such other place
as the Holder shall notify the Company hereof in writing).
15. Attorneys' Fees. If any action of law or equity is necessary to
enforce or interpret the terms of this Warrant, the prevailing party shall be
entitled to its reasonable attorneys' fees, costs and disbursements in addition
to any other relief to which it may be entitled.
16. Captions. The section and subsection headings of this Warrant are
inserted for convenience only and shall not constitute a part of this Warrant in
construing or interpreting any provision hereof.
17. Governing Law. This Warrant shall be governed by the laws of the
State of Delaware as applied to agreements among Delaware residents made and to
be performed entirely within the State of Delaware.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company caused this Warrant to be executed by
an officer thereunto duly authorized.
BSD MEDICAL CORPORATION
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: President
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WARRANT ASSIGNMENT
(to be signed only upon transfer of this warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________________________ the right represented by the within
Warrant to purchase, from BSD Medical Corporation (the "Company"), shares of the
Common Stock of the Company, to which the within Warrant relates and appoints
_______________________________ attorney to transfer said right on the books of
BSD Medical Corporation, with full power of substitution in the premises.
Dated: _________________________
Signature
__________________________________ Social Security or other Tax
Identification No.
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Please print present name and address
ATTEST:
__________________________________
Name:
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NOTICE OF EXERCISE
To: BSD Medical Corporation
The undersigned hereby elects to purchase _______________ shares of
Common Stock of BSD Medical Corporation, pursuant to the terms of the attached
Warrant and payment of the Exercise Price per share required under such Warrant
accompanies this notice.
The undersigned hereby represents and warrants that the undersigned is
acquiring such shares for its own account for investment purposes only, and not
for resale or with a view to distribution of such shares or any part thereof.
Name of Warrant Holder
By: ___________________________
Name: _________________________
Title: ________________________
Address:
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Date:
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Name in which shares should be registered:
_______________________________________
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