NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY OTHER APPLICABLE
SECURITIES LAWS IN RELIANCE UPON AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER
SECURITIES LAWS. NEITHER THIS WARRANT NOR THE SHARES ISSUABLE
UPON EXERCISE HEREOF MAY BE SOLD, PLEDGED, TRANSFERRED,
ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR IN
A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER THE
PROVISIONS OF THE SECURITIES ACT.
STOCK PURCHASE WARRANT
To Purchase xx,000 Shares of Common Stock of
MW Medical, Inc.
THIS CERTIFIES that, for value received,_______________
(the "Holder"), is entitled, upon the terms and subject to the
conditions hereinafter set forth, at any time on or after July 30,
1999 (the "Initial Exercise Date") and on or prior to the close
of business on July 30, 2002 (the "Termination Date") but not
thereafter, to subscribe for and purchase from MW Medical, Inc.,
a corporation incorporated in Nevada (the "Company"), up to
_____________Thousand (xx,000) shares (the "Warrant Shares") of
Common Stock, $.001 par value, of the Company (the "Common Stock").
The purchase price of one share of Common Stock (the "Exercise
Price") under this Warrant shall be $2.75. The Exercise Price and
the number of shares for which the Warrant is exercisable shall
be subject to adjustment as provided herein. In the event of any
conflict between the terms of this Warrant and the Convertible
Debenture and Warrants Purchase Agreement dated as of July 14,
1999 pursuant to which this Warrant has been issued (the
"Purchase Agreement"), the Purchase Agreement shall control.
Capitalized terms used and not otherwise defined herein shall
have the meanings set forth for such terms in the Purchase
Agreement.
NY:71733.1 1
1. Title to Warrant. Prior to the Termination Date
and subject to compliance with applicable laws, this Warrant and
all rights hereunder are transferable, in whole or in part, at
the office or agency of the Company by the holder hereof in
person or by duly authorized attorney, upon surrender of this
Warrant together with the Assignment Form annexed hereto
properly endorsed.
2. Authorization of Shares. The Company covenants
that all shares of Common Stock which may be issued upon the
exercise of rights represented by this Warrant will, upon
exercise of the rights represented by this Warrant, 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 Warrant. Except as provided in
Section 4 herein, exercise of the purchase rights represented by
this Warrant may be made at any time or times on or after the
Initial Exercise Date, and before the close of business on the
Termination Date by the surrender of this Warrant and the Notice
of Exercise Form annexed hereto duly executed, at the office of
the Company (or such other office or agency of the Company as it
may designate by notice in writing to the registered holder
hereof at the address of such holder appearing on the books of
the Company) and upon payment of the Exercise Price of the
shares thereby purchased by wire transfer or cashier's check
drawn on a United States bank, the holder of this Warrant shall
be entitled to receive a certificate for the number of shares of
Common Stock so purchased. Certificates for shares purchased
hereunder shall be delivered to the holder hereof within three
(3) Trading Days after the date on which this Warrant shall have
been exercised as aforesaid. This Warrant shall be deemed to
have been exercised and such certificate or certificates 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 Warrant has been exercised by payment to the Company of the
Exercise Price and all taxes required to be paid by Holder, if
any, pursuant to Section 5 prior to the issuance of such shares,
have been paid. If this Warrant shall have been exercised in
part, the Company shall, at the time of delivery of the
certificate or certificates representing Warrant Shares, deliver
to Holder a new Warrant evidencing the rights of Holder to
purchase the unpurchased shares of Common Stock called for by
this Warrant, which new Warrant shall in all other respects be
identical with this Warrant. If no registration statement is
effective permitting the resale of the shares of Common Stock
issued upon exercise of this Warrant at any time commencing one
year after the issuance date hereof, then this Warrant shall
also be exercisable by means of a "cashless exercise" in which
the holder shall be entitled to receive a certificate for the
number of shares equal to the quotient obtained by dividing [(A-
B) (X)] by (A), where:
(A) = the average of the high and low trading prices per share
of Common Stock on the Trading Day preceding the date of such
election;
(B) = the Exercise Price of the Warrants; and
NY:71733.1 2
(X) = the number of shares issuable upon exercise of the
Warrants in accordance with the terms of this Warrant.
4. No Fractional Shares or Scrip. No fractional
shares or scrip representing fractional shares shall be issued
upon the exercise of this Warrant. 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 the
Exercise Price.
5. Charges, Taxes and Expenses. Issuance of
certificates for shares of Common Stock upon the exercise of
this Warrant shall be made without charge to the holder hereof
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 of this Warrant or in
such name or names as may be directed by the holder of this
Warrant; provided, however, that in the event certificates for
shares of Common Stock are to be issued in a name other than the
name of the holder of this Warrant, this Warrant when
surrendered for exercise shall be accompanied by the Assignment
Form attached hereto duly executed by the holder hereof; and the
Company may require, as a condition thereto, the payment of a
sum sufficient to reimburse it for any transfer tax incidental
thereto.
6. Closing of Books. The Company will not close its
shareholder books or records in any manner which prevents the
timely exercise of this Warrant.
7. Transfer, Division and Combination. (a) Subject
to compliance with any applicable securities laws, transfer of
this Warrant and all rights hereunder, in whole or in part,
shall be registered on the books of the Company to be maintained
for such purpose, upon surrender of this Warrant at the
principal office of the Company, together with a written
assignment of this Warrant substantially in the form attached
hereto duly executed by 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
Warrant or Warrants 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
Warrant evidencing the portion of this Warrant not so assigned,
and this Warrant shall promptly be cancelled. A Warrant, if
properly assigned, may be exercised by a new holder for the
purchase of shares of Common Stock without having a new Warrant
issued.
(b) This Warrant may be divided or combined with
other Warrants upon presentation hereof at the aforesaid office
of the Company, together with a written notice specifying the
names and denominations in which new Warrants are to be issued,
signed by 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 Warrant or Warrants in exchange for
the Warrant or Warrants to be divided or combined in accordance
with such notice.
NY:71733.1 3
(c) The Company shall prepare, issue and
deliver at its own expense (other than transfer taxes) the new
Warrant or Warrants 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 Warrants.
8. No Rights as Shareholder until Exercise. This
Warrant does not entitle the holder hereof to any voting rights
or other rights as a shareholder of the Company prior to the
exercise hereof. Upon the surrender of this Warrant and the
payment of the aggregate Exercise Price, the Warrant 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
Warrant. The Company covenants that upon receipt by the Company
of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant certificate or any
stock certificate relating to the Warrant Shares, and in case of
loss, theft or destruction, of indemnity or security reasonably
satisfactory to it (which shall not include the posting of any
bond), and upon surrender and cancellation of such Warrant or
stock certificate, if mutilated, the Company will make and
deliver a new Warrant or stock certificate of like tenor and
dated as of such cancellation, in lieu of such Warrant 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
Warrant Shares. (a) Stock Splits, etc. The number and kind of
securities purchasable upon the exercise of this Warrant 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 of Common Stock,
(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 Warrant Shares purchasable upon
exercise of this Warrant immediately prior thereto shall be
adjusted so that the holder of this Warrant shall be entitled to
receive the kind and number of Warrant Shares or other
securities of the Company which he would have owned or have been
entitled to receive had such Warrant been exercised in advance
thereof. Upon each such adjustment of the kind and number of
Warrant Shares or other securities of the Company which are
purchasable hereunder, the holder of this Warrant shall
thereafter be entitled to purchase the number of Warrant Shares
or other securities resulting from such adjustment at an Exercise
Price per Warrant Share or other security obtained by multiplying
the Exercise Price in effect immediately prior to such adjustment
by the number of Warrant Shares purchasable pursuant hereto
immediately prior to such adjustment and dividing by the number
of Warrant Shares or other securities of the Company resulting
from such adjustment. An adjustment
NY:71733.1 4
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.
(b) 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 all or
substantially all 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 Holder shall have the right
thereafter to receive, upon exercise of this Warrant, 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 Warrant 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 Warrant 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 shares of
Common Stock for which this Warrant is exercisable which shall
be as nearly equivalent as practicable to the adjustments
provided for in this Section 11. For purposes of this Section
11, "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 11 shall similarly apply to successive reorganizations,
reclassifications, mergers, consolidations or disposition of
assets.
12. Voluntary Adjustment by the Company. The Company
may at any time during the term of this Warrant, 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.
13. Notice of Adjustment. Whenever the number of
Warrant Shares or number or kind of securities or other property
purchasable upon the exercise of this Warrant or the Exercise
Price is adjusted, as herein provided, the Company shall
promptly mail by registered or certified mail, return receipt
requested, to the holder of this Warrant notice of such
adjustment or adjustments setting forth the number of Warrant
Shares (and other securities or property) purchasable upon the
exercise of this Warrant and the Exercise Price of such Warrant
Shares (and other securities or property) after such adjustment,
setting forth a brief statement of the facts
NY:71733.1 5
requiring such adjustment and setting forth the computation by
which such adjustment was made. Such notice, in the absence of
manifest error, shall be conclusive evidence of the correctness
of such adjustment.
14. 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 give
to Holder (i) at least 30 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 30
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 shares of Common Stock 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
Holder appearing on the books of the Company and delivered in
accordance with Section 16(d).
NY:71733.1 6
15. Authorized Shares. The Company covenants that
during the period the Warrant is outstanding, it will reserve
from its authorized and unissued Common Stock a sufficient
number of shares to provide for the issuance of the Warrant
Shares upon the exercise of any purchase rights under this
Warrant. The Company further covenants 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 Warrant
Shares upon the exercise of the purchase rights under this
Warrant. The Company will take all such reasonable action as
may be necessary to assure that such Warrant Shares may be
issued as provided herein without violation of any applicable
law or regulation, or of any requirements of the Principal
Market upon which the Common Stock may be listed.
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 Warrant, 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 Holder against impairment.
Without limiting the generality of the foregoing, the Company
will (a) not increase the par value of any shares of Common
Stock receivable upon the exercise of this Warrant 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 shares of Common
Stock upon the exercise of this Warrant, and (c) use its best
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 Warrant.
Upon the request of Holder, the Company will at
any time during the period this Warrant is outstanding
acknowledge in writing, in form reasonably satisfactory to
Holder, the continuing validity of this Warrant and the
obligations of the Company hereunder.
Before taking any action which would cause an
adjustment reducing the current Exercise Price below the then
par value, if any, of the shares of Common Stock issuable upon
exercise of the Warrants, the Company shall take any corporate
action which may be necessary in order that the Company may
validly and legally issue fully paid and non-assessable shares
of such Common Stock at such adjusted Exercise Price.
Before taking any action which would result in an
adjustment in the number of shares of Common Stock for which
this Warrant 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.
16. Miscellaneous.
(a) Jurisdiction. This Warrant shall be binding
upon any successors or assigns of the Company. This Warrant
shall constitute a contract under the laws of New York
NY:71733.1 7
without regard to its conflict of law, principles or rules,
and be subject to arbitration pursuant to the terms set forth
in the Purchase Agreement.
(b) Restrictions. The holder hereof acknowledges that the
Warrant Shares acquired upon the exercise of this Warrant, 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
Holder's rights, powers or remedies, notwithstanding all rights
hereunder terminate on the Termination Date. If the Company fails
to comply with any provision of this Warrant, 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 Holder 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 hereof 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 affirmative action by Holder to
purchase shares of Common Stock, and no enumeration herein of
the rights or privileges of Holder hereof, 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 Warrant. 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 Warrant
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 Warrant 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 Warrant are intended to be for the benefit
of all Holders from time to time of this Warrant and shall be
enforceable by any such Holder or holder of Warrant Shares.
(h) Indemnification. The Company agrees to indemnify and hold
harmless Holder from and against any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims,
costs, attorneys' fees, expenses and disbursements of any kind
which may be imposed upon, incurred by or asserted against Holder
in any manner relating to or arising out of any failure by the
Company to perform or observe in any material respect any of
its covenants, agreements, undertakings or obligations set forth
in this Warrant; provided, however, that the Company will not be
liable hereunder to the extent that any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims,
costs, attorneys' fees, expenses or
NY:71733.1 8
disbursements are found in a final non-appealable judgment by a
court to have resulted from Holder's negligence, bad faith or
willful misconduct in its capacity as a stockholder or
warrantholder of the Company.
(i) Amendment. This Warrant may be modified or amended or
the provisions hereof waived with the written consent of the
Company and the Holder.
(j) Severability. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this
Warrant 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 Warrant.
NY:71733.1 9
(k) Headings. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose,
be deemed a part of this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed by its officer thereunto duly authorized.
Dated: July 14, 1999 MW Medical, Inc.
By: \s\ Xxx Xxxxxxx President, CEO
--------------------------------
NOTICE OF EXERCISE
To: MW Medical, Inc.
(1) The undersigned hereby elects to purchase ________ shares
of Common Stock (the "Common Stock"), of MW Medical, Inc.
pursuant to the terms of the attached Warrant, and tenders
herewith payment of the exercise price in full, together with
all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates
representing said shares of Common Stock in the name of the
undersigned or in such other name as is specified below:
_______________________________
(Name)
_______________________________
(Address)
_______________________________
Dated:
______________________________
Signature
NY:71733.1
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 Warrant 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 Warrant, 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 an fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing
Warrant.
NY:71733.1
