EXHIBIT 4.3
WARRANT AGREEMENT
THIS WARRANT AGREEMENT, dated as of ______________, 2001, by and
between MedicalCV, Inc., a Minnesota corporation (the "Company"), and Registrar
& Transfer Company, as the Warrant Agent (the "Warrant Agent").
WHEREAS, the Company proposes to issue up to 1,500,000 units (the
"Units"), each Unit consisting of one share of common stock, $0.01 par value, of
the Company (the "Common Stock") and one redeemable Class A Warrant to purchase
one share of Common Stock (each a "Warrant"), in connection with the Company's
initial public offering (the "Offering") pursuant to the Company's Registration
Statement on Form SB-2.
WHEREAS, the Company may issue up to 225,000 additional Units pursuant
to the exercise of an overallotment option granted to the Company's underwriter
in connection with the Offering pursuant to the Company's Registration Statement
on Form SB-2.
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent desires so to act, in connection with the
issuance, registration, transfer, exchange and exercise of the Warrants.
NOW, THEREFORE, the Company and the Warrant Agent hereby agree as
follows:
ARTICLE I
APPOINTMENT OF WARRANT AGENT;
ISSUANCE, FORM AND EXECUTION OF
WARRANT CERTIFICATES
Section 1.1 APPOINTMENT OF WARRANT AGENT. The Company hereby appoints
the Warrant Agent to act as agent for the Company, and the Warrant Agent hereby
accepts the agency established herein and agrees to perform its agency duties in
accordance with the terms and conditions of this Warrant Agreement.
Section 1.2 WARRANT CERTIFICATES. On or about _______________, 2001,
the Company shall deliver to the Warrant Agent certificates which the Company
has authorized to represent the Warrants ("Warrant Certificates"). The Warrant
Certificates shall be substantially as set forth in Exhibit A hereto and may
have such legends, summaries or endorsements printed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this Warrant
Agreement, or as may be required to comply with any law or with any rule or
regulation relating to listing of the Warrants on any Nasdaq system, or on any
stock exchange, or to conform to usage. The Warrant Certificates shall be dated
with the date of their issuance.
Section 1.3 EXECUTION OF WARRANT CERTIFICATES. The Warrant Certificates
shall be executed on behalf of the Company by a duly authorized officer of the
Company, either manually or by facsimile signature printed thereon. The Warrant
Certificates shall be manually countersigned by the Warrant Agent and shall not
be valid for any purpose unless countersigned. Any Warrant Certificate may be
signed on behalf of the Company by the person who at the actual date of the
signing of such Warrant Certificate shall have been a duly authorized officer of
the Company, regardless of whether at the date of issuance of such Warrant
Certificate such person has ceased to be a duly authorized officer of the
Company.
ARTICLE II
EXERCISE OF WARRANTS
Section 2.1 EXERCISE. Any or all of the Warrants represented by each
Warrant Certificate may be exercised by the holder thereof commencing
_______________, ______, but on or before 5:00 p.m., Minneapolis time, on
_______________, ______ (unless extended by the Company), by surrender of the
Warrant Certificate with the purchase form, which is printed on the reverse
thereof (or a reasonable facsimile thereof), duly executed by such holder, to
the Warrant Agent at its principal office in Cranford, New Jersey. The purchase
form must be accompanied by payment, in cash or by certified check payable to
the Company, in an amount equal to the product of the number of shares of Common
Stock issuable upon exercise of the Warrant represented by such Warrant
Certificate, as adjusted pursuant to the provisions of Article III hereof,
multiplied by the exercise price of $6.50, as adjusted pursuant to the
provisions of Article III hereof (such price as so adjusted from time to time
being herein called the "Purchase Price"), and such holder shall be entitled to
receive such number of fully paid and nonassessable shares of Common Stock, as
so adjusted, at the time of such exercise.
Section 2.2 TIME OF EXERCISE. Each exercise of Warrants shall be deemed
to have been effective immediately prior to the close of business on the
business day on which the Warrant Certificate relating to such Warrant shall
have been surrendered to the Warrant Agent as provided in Section 2.1. At such
time, the person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such exercise, as
provided in Section 2.3, shall be deemed to have become the holder or holders of
record thereof.
Section 2.3 ISSUANCE OF SHARES OF COMMON STOCK; NO FRACTIONAL SHARES.
As soon as practicable after the exercise of any Warrant, and in any event
within 10 days after receipt by the Company of notice of exercise under Section
2.1, the Company, at its expense (including the payment by it of any applicable
issue taxes), will cause to be issued in the name of and delivered to the holder
thereof or as such holder (upon payment by such holder of any applicable
transfer taxes) may direct:
(a) a certificate or certificates for the number of fully paid
and nonassessable shares of Common Stock to which such holder shall be
entitled upon such exercise plus, in lieu of any fractional share to
which such holder would otherwise be entitled, an amount in cash equal
to such fraction multiplied by the then current value of a share of
Common Stock, such current value to be determined as follows:
(i) if the Common Stock shall be listed or admitted
to unlisted trading privileges on any single national
securities exchange, then such current value shall be computed
on the basis of the last reported sale price of the Common
Stock on such exchange on the last business day prior to the
date of the exercise of such Warrant upon which a sale shall
have been effected; or
(ii) if the Common Stock shall not be so listed or
admitted to unlisted trading privileges and bid and asked
prices therefor in the over-the-counter market shall be
reported by The Nasdaq Stock Market, including the Nasdaq
National Market or the Nasdaq SmallCap Market, then such
current value shall be computed on the basis of the Last
Reported Sale Valuation Method or, in the event such method
is not then used by The Nasdaq Stock Market, the average of
the closing bid and asked prices on the last business day
prior to the date of the exercise of such Warrant as so
reported; or
(iii) if the Common Stock shall be listed or admitted
to unlisted trading privileges on more than one national
securities exchange or one or more national securities
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exchanges and in the over-the-counter market, then such
current value shall, if different as a result of calculation
under the applicable method(s) described above in this
Section, be deemed to be the higher number calculated in
connection therewith; or
(iv) if the Common Stock shall not be so listed or
admitted to unlisted trading privileges and such bid and asked
prices shall not be so reported, then such current value shall
be computed on the basis of the book value of Common Stock as
of the close of business on the last day of the month
immediately preceding the date upon which such Warrant was
exercised, as determined by the Company; and
(b) in case such exercise includes only part of the Warrant
represented by the Warrant Certificate, a new Warrant Certificate or
Warrant Certificates of like tenor calling in the aggregate on the face
or faces thereof for the number of shares of Common Stock equal
(without giving effect to any adjustment therein) to the number of such
shares called for on the face of such Warrant Certificate minus the
number of such shares designated by the holder for such exercise as
provided in Section 2.1. Warrants represented by a properly assigned
Warrant Certificate may be exercised by a next holder without first
having a new Warrant Certificate issued.
Section 2.4 EXTENSION OF EXERCISE PERIOD; CHANGE OF EXERCISE PRICE.
The Company may, upon notice given to the Warrant Agent, and without the
consent of the holders of the Warrant Certificates, (a) reduce the Purchase
Price during all or any portion of the originally stated exercise period, (b)
extend the period over which the Warrants are exercisable beyond
_______________, ______, and (c) decrease the Purchase Price for any period
the Warrant exercise period is extended. Within a reasonable time prior to
the effective time of such change or extension, the Company shall provide the
Warrant Agent with written notice of any change in the Purchase Price or
extension of the exercise period, as the case may be, specifying the time to
which such exercise period is extended, or the new Purchase Price and the
periods for which such new Purchase Price is in effect.
ARTICLE III
ANTIDILUTION PROVISIONS
Section 3.1 ADJUSTMENT OF PURCHASE PRICE.
(a) In the event that:
(i) any dividends on any class of stock of the
Company payable in Common Stock or securities convertible into
Common Stock shall be paid by the Company;
(ii) the Company shall subdivide its then outstanding
shares of Common Stock into a greater number of shares; or
(iii) the Company shall combine outstanding shares of
Common Stock by reclassification or otherwise;
the Purchase Price in effect immediately prior to such event shall
(until adjusted again pursuant hereto) be adjusted immediately after
such event to a price (calculated to the nearest full cent) determined
by dividing (A) the number of shares of Common Stock outstanding
immediately prior to such event, multiplied by the then existing
Purchase Price, by (B) the total number of shares of Common Stock
outstanding immediately after such event (including the maximum
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number of shares of Common Stock issuable in respect of any securities
convertible into Common Stock). The resulting quotient shall be the
adjusted Purchase Price per share.
(b) No adjustments of the Purchase Price shall be made if the
amount of such adjustments shall be less than $0.05 per share, but in
such case any adjustment that would otherwise be required then to be
made shall be carried forward and shall be made at the time and
together with a subsequent adjustment which, together with any
adjustment or adjustments so carried forward, shall amount to not less
than $0.05 per share.
Section 3.2 ADJUSTMENT OF NUMBER OF SHARES PURCHASABLE ON EXERCISE OF
WARRANTS. Upon each adjustment of the Purchase Price pursuant to Section 3.1
above, the registered holder of each Warrant shall thereafter (until another
such adjustment) be entitled to purchase at the adjusted Purchase Price the
number of shares, calculated to the nearest full share, obtained by multiplying
the number of shares specified in such Warrant (as adjusted as a result of all
adjustments in the Purchase Price in effect prior to such adjustment) by the
Purchase Price in effect prior to such adjustment and dividing the product so
obtained by the adjusted Purchase Price.
Section 3.3 NOTICE AS TO ADJUSTMENT. Upon any adjustment of the
Purchase Price and in the number of shares of Common Stock purchasable upon the
exercise of the Warrant, then, and in each such case, the Company shall within
10 days after the effective date of such adjustment give written notice thereof,
by first-class mail, postage prepaid, addressed to each registered Warrantholder
at the address of such Warrantholder as shown on the books of the Company, which
notice shall state the adjusted Purchase Price and the adjusted number of shares
purchasable upon the exercise of the Warrants, setting forth in reasonable
detail the method of calculation and the facts upon which each calculation is
based.
Section 3.4 EFFECT OF REORGANIZATION, RECLASSIFICATION, MERGER, ETC. If
at any time while any Warrant is outstanding there should be any capital
reorganization or reclassification of the capital stock of the Company (other
than the issuance of any shares of Common Stock in subdivision of outstanding
shares of Common Stock by reclassification or otherwise and other than a
combination of shares provided for in Section 3.1 hereof) or any consolidation
or merger of the Company with another corporation or any sale, conveyance, lease
or other transfer by the Company of all or substantially all of its property to
any other corporation, then the holder of any Warrant shall, during the
remainder of the period such Warrant is exercisable, be entitled to receive,
upon payment of the Purchase Price, the number of shares of stock or other
securities or property of the Company, or of the successor corporation resulting
from such consolidation or merger, or of the corporation to which the property
of the Company has been sold, conveyed, leased or otherwise transferred, as the
case may be, to which the Common Stock (and any other securities and property)
of the Company, deliverable upon the exercise of such Warrant, would have been
entitled upon such capital reorganization, reclassification of capital stock,
consolidation, merger, sale, conveyance, lease or other transfer if such Warrant
had been exercised immediately prior to such capital reorganization,
reclassification of capital stock, consolidation, merger, sale, conveyance,
lease or other transfer; provided that, in any such case, appropriate adjustment
(as determined by the Board of Directors of the Company) shall be made in the
application of the provisions set forth in this Warrant Agreement with respect
to the rights and interests thereafter of the Warrantholders to the end that the
provisions set forth in this Warrant Agreement (including the adjustment of the
Purchase Price and the number of shares issuable upon the exercise of the
Warrants) shall thereafter be applicable, as near as may be reasonably
practicable, in relation to any shares or other property thereafter deliverable
upon the exercise of the Warrants as if the Warrants had been exercised
immediately prior to such capital reorganization, reclassification of capital
stock, consolidation, merger, sale, conveyance, lease or other transfer and the
Warrantholders had carried out the terms of the exchange as provided for by such
capital reorganization, reclassification, consolidation or merger. The Company
shall not effect any such capital reorganization, consolidation, merger or
transfer unless, upon or prior to the consummation thereof, the successor
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corporation or the corporation to which the property of the Company has been
sold, conveyed, leased or otherwise transferred shall assume by written
instrument the obligation to deliver to the holder of each Warrant such shares
of stock, securities, cash or property as, in accordance with the foregoing
provisions, such holder shall be entitled to purchase.
Section 3.5 PRIOR NOTICE AS TO CERTAIN EVENTS. In case at any time:
(a) the Company shall pay any dividend upon its Common Stock
payable in stock or make any distribution (other than cash dividends)
to the holders of its Common Stock;
(b) the Company shall offer for subscription purposes to the
holders of its Common Stock any additional shares of stock of any class
or any other rights;
(c) there shall be any capital reorganization or
reclassification of the capital stock of the Company, or consolidation
or merger of the Company with, or sale, conveyance, lease or other
transfer of all or substantially all of its assets to, another
corporation; or
(d) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
the Company shall give prior written notice, by first-class mail, postage
prepaid, addressed to each registered Warrantholder at the address of such
Warrantholder as shown on the books of the Company, of the date on which (i) the
books of the Company shall close or a record shall be taken for each stock
dividend, distribution or subscription rights or (ii) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up shall take place, as the case may be. Such notice shall also specify
the date as of which the holders of the Common Stock of record shall participate
in such dividend, distribution or subscription rights or shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding up, as the case may be. Such written notice shall be
given at least 20 days prior to the action in question and not less than 20 days
prior to the date on which the Company's transfer books are closed in respect
thereto.
Section 3.6 CERTAIN OBLIGATIONS OF THE COMPANY. The Company will not,
by any voluntary action, avoid or seek to avoid the observance or performance of
any of the terms of this Warrant Agreement or the Warrant Certificate, but will
at all times in good faith assist in the carrying out of all such terms. Without
limiting the generality of the foregoing, the Company (a) will 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 all Warrants from time to time outstanding, and (b) will not (i)
transfer all or substantially all of its properties and assets to any other
person or entity, (ii) consolidate with or merge into any other entity where the
Company is not the surviving entity, or (iii) permit any other entity to
consolidate with or merge into the Company where the Company is the surviving
entity, where in connection with such consolidation or merger, the Common Stock
then issuable upon the exercise of the Warrant shall be changed into or
exchanged for shares or other securities or property of any other entity unless,
in any such case, the other entity acquiring such properties and assets,
continuing or surviving after such consolidation or merger or issuing or
distributing such shares or other securities or property, as the case may be,
shall expressly assume in writing and be bound by all the terms of this Warrant
Agreement and the Warrant Certificates.
Section 3.7 RESERVATION AND LISTING OF COMMON STOCK. The Company will
at all times reserve a sufficient number of shares of Common Stock to provide
for the issuance of the same upon the exercise of all outstanding Warrants. All
such shares shall be authorized and, when issued upon such exercise, shall be
validly issued, fully paid and nonassessable. Upon the exercise of any of the
Warrants,
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the Company, at its expense, will list on the The Nasdaq Stock Market, and on
each national securities exchange on which any Common Stock may be listed,
subject to official notice of issuance, and will use its best efforts to
maintain such listing of, the shares of Common Stock issued upon the exercise
of any Warrant.
Section 3.8 REGISTRATION OR EXEMPTION FOR COMMON STOCK. The Company
will use its best efforts to (a) maintain the effectiveness of a current
prospectus covering the shares of Common Stock underlying the Warrants
pursuant to the Securities Act of 1933, as amended (the "Securities Act"),
and (b) maintain the exemptions or qualifications of such Common Stock under
the securities laws of the states in which the Company initially qualifies
the Units for sale in the Offering. The Warrant Agent shall have no
responsibility for the maintenance of such exemptions or qualifications or
for liabilities arising from the exercise or attempted exercise of Warrants
in jurisdictions where exemptions or qualifications have not been maintained
or are otherwise unavailable. Shares of Common Stock will not be issued to
persons desiring to exercise the Warrants if, at the time of exercise, a
registration statement is not effective under the Securities Act or the
Common Stock underlying the Warrants is not qualified or exempt from
qualification in the state where the holders of the Warrants reside.
ARTICLE IV
REDEMPTION OF WARRANTS
Section 4.1 REDEMPTION PRICE. The Warrants may be redeemed by the
Company at the option of the Company at any time once they become
exercisable, upon notice as set forth in Section 4.2, at the redemption price
equal to $0.01 per warrant, provided that the closing price of the Common
Stock or Units on the The Nasdaq Stock Market exceeds $8.50 (such price
subject to adjustment from time to time in the same manner as the Purchase
Price pursuant to the provisions of Article III hereof) for any ten
consecutive trading days prior to the date such notice of redemption is given
(the "Trading Day Period"). Notwithstanding the forgoing, if the Company
fails to provide holders of the Warrants with notice as set forth in Section
4.2 within 30 business days after the expiration of any Trading Day Period,
the Company will lose the right to redeem the Warrants with respect to that
Trading Day Period.
Section 4.2 NOTICE OF REDEMPTION. In the case of any redemption of
Warrants, the Company or, at its request, the Warrant Agent in the name of and
at the expense of the Company, shall give notice of such redemption to the
holders of the Warrants to be redeemed as hereinafter provided in this Section
4.2. Notices of redemption to the holders of Warrants shall be given by mailing
by first-class mail a notice of such redemption not less than ten business days
prior to the date fixed for redemption. Any notice which is given in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Warrantholder receives notice. In any case, failure to duly give such
notice to the holder of any Warrant Certificate shall not affect the validity of
the proceedings for the redemption of the Warrants represented by any other
Warrant Certificate. Each such notice shall specify the date fixed for
redemption, the place of redemption and the redemption price of $0.01 at which
each Warrant is to be redeemed, and shall state that payment of the redemption
price of the Warrants will be made upon surrender of the Warrants at such place
of redemption, and that if not exercised by the close of business on the date
fixed for redemption, the exercise rights of the Warrants identified for
redemption shall expire unless extended by the Company. Such notice shall also
state the current Purchase Price and the date on which the right to exercise the
Warrants will expire unless extended by the Company.
Section 4.3 PAYMENT OF WARRANTS ON REDEMPTION; DEPOSIT OF REDEMPTION
PRICE. If notice of redemption shall have been given as provided in Section 4.2,
the redemption price of $0.01 per Warrant shall, unless the Warrant is
theretofore exercised pursuant to the terms hereof, become due and payable on
the date and at the place stated in such notice. On and after such date of
redemption, provided that cash sufficient for the redemption thereof shall then
be deposited by the Company with the Warrant Agent for that purpose, the
exercise rights of the Warrants identified for redemption shall expire. On
presentation
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and surrender of Warrant Certificates at such place of payment specified in
such notice, the Warrant identified for redemption shall be paid and redeemed
at the redemption price of $0.01 per Warrant. Prior to the date fixed for
redemption, the Company shall deposit with the Warrant Agent an amount of
money sufficient to pay the redemption price of all the Warrants identified
for redemption. Any monies which shall have been deposited with the Warrant
Agent for redemption of Warrants and which are not required for that purpose
by reason of exercise of Warrants shall be repaid to the Company upon
delivery to the Warrant Agent of evidence satisfactory to it of such exercise.
ARTICLE V
CERTAIN OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
Section 5.1 NO RIGHTS OF SHAREHOLDERS. The Warrant Certificates shall
be issued in registered form only. No Warrant Certificate shall entitle the
holder thereof to any of the rights of a holder of shares of Common Stock of the
Company, including, without limitation, the right to vote, to receive dividends
and other distributions, or to receive any notice of, or to attend meetings of
holders of Common Stock or any other proceeding of the Company.
Section 5.2 LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT
CERTIFICATES. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to the Warrant Agent of the loss, theft, destruction or mutilation
of any Warrant Certificate, and (a) in the case of such loss, theft, or
destruction, upon delivery to the Warrant Agent of an indemnity bond in form and
amount, and issued by a bonding company, reasonably satisfactory to the Company,
or (b) in the case of any such mutilation, upon surrender to and cancellation by
the Warrant Agent of such Warrant Certificate, the Company at its expense will
execute and cause the Warrant Agent to countersign and deliver, in lieu thereof,
a new Warrant Certificate of like tenor.
Section 5.3 TRANSFER AGENT; CANCELLATION OF WARRANT CERTIFICATES;
UNEXERCISED WARRANTS. The Registrar & Transfer Company (and any successor), as
transfer agent of the Common Stock (the "Transfer Agent"), is hereby irrevocably
authorized and directed at all times to reserve such number of authorized and
unissued shares of Common Stock as shall be sufficient to permit the exercise in
full of all Warrants from time to time outstanding. The Company will keep a copy
of this Warrant Agreement on file with the Transfer Agent. The Warrant Agent,
and any successor thereto, is hereby irrevocably authorized to requisition from
time to time from the Transfer Agent certificates for shares of Common Stock
required for exercise of Warrants. The Company will supply the Transfer Agent
with duly executed certificates for shares of Common Stock for such purpose and
will make available any cash required in settlement of fractional share
interests. All Warrant Certificates surrendered upon the exercise or redemption
of Warrants shall be canceled by the Warrant Agent and shall thereafter be
delivered to the Company. Such canceled Warrant Certificates, with the purchase
form on the reverse thereof duly completed and signed, shall constitute
conclusive evidence as between the parties hereto of the numbers of shares of
Common Stock which shall have been issued upon exercises of Warrants. Promptly
after the last day on which the Warrants are exercisable (set forth in Section
2.1 above), the Warrant Agent shall certify to the Company the aggregate number
of Warrants then outstanding and unexercised. No shares of Common Stock shall be
subject to reservation with respect to Warrants not exercised prior to the time
and date identified in Section 2.1 above as the last time and date at which
Warrants may be exercised.
ARTICLE VI
TRANSFER AND EXCHANGE OF WARRANT CERTIFICATES
Section 6.1 WARRANT REGISTER; TRANSFER OR EXCHANGE OF WARRANT
CERTIFICATES. The Warrant Agent shall cause to be kept at the principal office
of the Warrant Agent a register (the "Warrant
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Register") in which, subject to such reasonable regulations as the Company
may prescribe, provisions shall be made for the registration of transfers and
exchanges of Warrant Certificates. Upon surrender for transfer or exchange of
any Warrant Certificate, properly endorsed, to the Warrant Agent, the Warrant
Agent at the Company's expense will issue and deliver to or upon the order of
the holder thereof a new Warrant Certificate of like tenor, in the name of
such holder or as such holder (upon payment by such holder of any applicable
transfer taxes) may direct, calling in the aggregate on the face thereof for
the number of shares of Common Stock called for on the face of the Warrant
Certificate so surrendered. Any Warrant Certificate surrendered for transfer
or exchange shall be canceled by the Warrant Agent and shall thereafter be
delivered to the Company.
Section 6.2 IDENTITY OF WARRANTHOLDERS. Until a Warrant Certificate is
transferred in the Warrant Register, the Company and the Warrant Agent may treat
the person in whose name the Warrant Certificate is registered as the absolute
owner thereof and of the Warrants represented thereby for all purposes,
notwithstanding any notice to the contrary, except that, if and when any Warrant
Certificate is properly assigned in blank, the Company and the Warrant Agent may
(but shall not be obligated to) treat the bearer thereof as the absolute owner
of the Warrant Certificate and of the Warrant represented thereby for all
purposes, notwithstanding any notice to the contrary.
ARTICLE VII
CONCERNING THE WARRANT AGENT
Section 7.1 TAXES. The Company will, from time to time, promptly pay to
the Warrant Agent, or make provision satisfactory to the Warrant Agent for the
payment of all taxes and charges that may be imposed by the United States or any
state upon the Company or the Warrant Agent upon the transfer or delivery of
shares of Common Stock upon the exercise of Warrants, but the Company shall not
be obligated to pay any tax imposed in connection with any transfer involved in
the delivery of a certificate for shares of Common Stock in any name other than
that of the registered holder of the Warrant Certificate surrendered in
connection with the purchase thereof.
Section 7.2 REPLACEMENT OF WARRANT AGENT IN CERTAIN CIRCUMSTANCES.
(a) The Warrant Agent may resign its duties and be discharged
from all further duties and liabilities hereunder after giving 20 days'
written notice to the Company (except that such shorter notice may be
given if approved by the Company). The Company may discharge the
Warrant Agent at any time with or without reason, effective upon 20
days' written notice to the Warrant Agent (except that such shorter
notice may be given if approved by the Warrant Agent). If the office of
Warrant Agent becomes vacant by resignation, discharge, incapacity to
act or otherwise, the Company shall appoint a new Warrant Agent. If the
Company shall fail to make such appointment within a period of 20 days
after it has been notified in writing of such resignation or incapacity
by the resigning or incapacitated Warrant Agent or by the holder of a
Warrant Certificate, then the holder of any Warrant Certificate may
apply to any court of competent jurisdiction for the appointment of a
new Warrant Agent. Any new Warrant Agent, whether appointed by the
Company or by such a court, shall be a corporation organized and doing
business under the laws of the United States or of the state of its
incorporation and authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by federal or
state authority. Furthermore, such new Warrant Agent shall be of good
standing. Any new Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to the Company an instrument accepting such
appointment hereunder and thereupon such new Warrant Agent without any
further act or deed shall become vested with all the rights, powers,
duties and responsibilities of the Warrant Agent hereunder with like
effect as if it had been named herein as the Warrant Agent, but if for
any reason it becomes necessary or expedient to have the former
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Warrant Agent execute and deliver any further assurance, conveyance,
act or deed, the same shall be done and shall be legally and validly
executed and delivered by the former Warrant Agent. Not later than the
effective date of any such appointment the Company shall file notice
thereof with the former Warrant Agent. The Company shall promptly give
notice of any such appointment to the holders of the Warrant
Certificates by mail to their addresses as shown in the Warrant
Register. Failure to file or give such notice, or any defect therein,
shall not affect the legality or validity of the appointment of the
successor Warrant Agent.
(b) Any company into which the Warrant Agent or any new
Warrant Agent may be merged or converted or with which it may be
consolidated or any company resulting from any merger, conversion or
consolidation to which the Warrant Agent or any new Warrant Agent shall
be a party, shall be the successor Warrant Agent under this Warrant
Agreement without any further act; provided that if such company would
not be eligible for appointment as a successor Warrant Agent under the
provisions of paragraph (a) of this Section 7.2 the Company shall
forthwith appoint a new Warrant Agent in accordance with such
provisions. Any such successor Warrant Agent may adopt the prior
countersignature of any predecessor Warrant Agent and deliver Warrant
Certificates countersigned and not delivered by such predecessor
Warrant Agent or may countersign Warrant Certificates either in the
name of any predecessor Warrant Agent or the name of the successor
Warrant Agent.
Section 7.3 REMUNERATION OF WARRANT AGENT. The Company will pay the
Warrant Agent reasonable remuneration in accordance with the Warrant Agent's
Warrant Exchange for Common Stock Fee Schedule, as amended from time to time,
for its services as Warrant Agent hereunder and will reimburse the Warrant Agent
upon demand for all expenditures that the Warrant Agent may reasonably incur in
the execution of its duties hereunder.
Section 7.4 FURTHER ASSURANCES. The Company will perform, exercise,
acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all acts, instruments and assurances as reasonably may be required by
the Warrant Agent for the carrying out or performing by the Warrant Agent of the
provisions of this Warrant Agreement.
Section 7.5 LIMITATIONS ON LIABILITIES OF THE WARRANT AGENT.
(a) The Warrant Agent may consult with legal counsel (who may
be legal counsel for the Company), and the opinion of such counsel
shall be full and complete authorization and protection of the Warrant
Agent as to any action taken or omitted by it in good faith and in
accordance with such opinion.
(b) Whenever, in the performance of its duties under this
Warrant Agreement, the Warrant Agent shall deem it necessary or
desirable that any matter be provided or established, or that any
instructions with respect to the performance of its duties hereunder be
given, by the Company prior to taking or suffering any action
hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved
and established, or such instructions may be given, by a certificate or
instrument signed by an officer of the Company and delivered to the
Warrant Agent; and such certificate or instrument shall be full
authorization to the Warrant Agent for any action taken or suffered in
good faith by it under the provisions of this Warrant Agreement in
reliance upon such certificate or instrument; provided, however, that
in its discretion the Warrant Agent may in lieu thereof accept other
evidence of such matter or may require such further or additional
evidence as it may deem reasonable.
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(c) The Warrant Agent shall be liable hereunder only for its
own negligence or willful misconduct. The Warrant Agent shall act
hereunder solely as agent, and its duties shall be determined solely by
the provisions hereof. The Company agrees to indemnify the Warrant
Agent and save it harmless against any and all liabilities, including
judgments, costs and counsel fees, for anything done or omitted by the
Warrant Agent in the execution of this Warrant Agreement except as a
result of the Warrant Agent's negligence or willful misconduct.
(d) The Warrant Agent shall not be liable for or by any reason
of any of the statements of fact or recitals contained in this Warrant
Agreement or in the Warrant Certificates (except its countersignature
thereof) or be required to verify the same, but rather all such
statements and recitals are and shall be deemed to have been made by
the Company only.
(e) The Warrant Agent shall not be under any responsibility in
respect to the validity or execution of any Warrant Certificate (except
its countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this
Warrant Agreement or in any Warrant Certificate; nor shall it be
responsible for the making of any adjustment in the Purchase Price, or
number of shares issuable upon exercise of the Warrant Certificates or
responsible for the manner, method or amount of any such adjustment or
the facts that would require any such adjustment; nor shall it by any
act hereunder be deemed to make any representation or warranty as to
the authorization or reservation of any shares of Common Stock to be
issued pursuant to this Warrant Agreement or any Warrant Certificate or
as to whether any shares of Common Stock or other securities are or
will be duly authorized and validly issued and fully paid and
nonassessable.
Section 7.6 AMENDMENT AND MODIFICATION. The Warrant Agent may,
without the consent or concurrence of the holders of the Warrant
Certificates, by supplemental agreement or otherwise, join with the Company
in making any changes or corrections in this Warrant Agreement (a) which they
shall have been advised by counsel are required to cure any ambiguity or to
correct any defective or inconsistent provision or clerical omission or
mistake or manifest error herein contained, (b) which add to the obligations
of the Company in this Warrant Agreement further obligations thereafter to be
observed by it, or surrender any right or power reserved to or conferred upon
the Company in this Warrant Agreement, including, without limitation, the
changes described in Section 2.4 hereof, or (c) which do not or will not
adversely affect, alter or change the rights, privileges or immunities of the
holders of Warrant Certificates not provided for under this Warrant
Agreement; provided, however, that any provision of this Warrant Agreement or
any Warrant Certificate may be changed, waived, discharged or terminated by
an instrument in writing signed by each party against which enforcement of
such change, waiver, discharge or termination is sought, or by which the same
is to be performed or observed.
ARTICLE VIII
OTHER MATTERS
Section 8.1 SUCCESSORS AND ASSIGNS. All the covenants and provisions of
this Warrant Agreement by or for the benefit of the Company or the Warrant Agent
shall bind and inure to the benefit of their respective successors and assigns.
Section 8.2 NOTICES. Any notice or demand authorized by this Warrant
Agreement to be given or made by the Warrant Agent or by the holder of any
Warrant Certificate to or on the Company shall be sufficiently given or made
if sent by first-class or registered mail, postage prepaid, addressed (until
another address is filed in writing by the Company with the Warrant Agent) as
follows: MedicalCV, Inc., 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx Xxxxx Xxxxxxx,
Xxxxxxxxx 00000, Attention: President. Any notice or demand authorized by
this Warrant Agreement to be given or made by the holder of any Warrant
Certificate or by the Company to or on the Warrant Agent shall be
sufficiently given or made if sent by
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first-class or registered mail, postage prepaid, addressed (until another
address is filed in writing by the Warrant Agent with the Company) as
follows: Registrar & Transfer Company, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000-0000.
Section 8.3 GOVERNING LAW. This Warrant Agreement and the Warrant
Certificates are being delivered in the State of Minnesota and shall be
construed and enforced in accordance with and governed by the laws of such
state, without giving effect to such state's choice of law rules.
Section 8.4 NO BENEFITS CONFERRED. Nothing in this Warrant Agreement
expressed and nothing that may be implied from any of the provisions hereof is
intended, or shall be construed, to confer upon, or give to, any person or
corporation other than the Company, the Warrant Agent and the holders of the
Warrant Certificates, any right, remedy or claim under or by reason of this
Warrant Agreement or of any covenant, condition, stipulation, promise or
agreement herein; and all covenants, conditions, stipulations, promises and
agreements in this Warrant Agreement shall be for the sole and exclusive benefit
of the Company, the Warrant Agent, their respective successors, and the holders
of the Warrant Certificates.
Section 8.5 HEADINGS. The descriptive headings used in this Warrant
Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, this Warrant Agreement has been duly executed by
the parties hereto as of the day and year first above written.
MEDICALCV, INC.
By__________________________________
Xxxxx X. Xxxxxx
Chief Executive Officer
THE REGISTRAR & TRANSFER COMPANY
By__________________________________
__________________________________
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SPECIMEN CLASS A WARRANT CERTIFICATE
THIS WARRANT MAY BE EXERCISED AND MAY BE TRANSFERRED SEPARATELY FROM THE COMMON
STOCK WITH WHICH IT WAS INITIALLY ISSUED COMMENCING ____________, ______. THIS
WARRANT IS VOID AFTER, 5:00 P.M. MINNEAPOLIS TIME, ON ____________, ________.
No. W-________________ Certificate for _____________ Warrants
UNIT CUSIP 584 639 20 7
WARRANT CUSIP 584 639 11 6
WARRANTS TO PURCHASE COMMON STOCK OF
MEDICALCV, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF MINNESOTA
THIS CERTIFIES that _________________________________________________
or assigns, is the owner of the number of Warrants set forth above, each of
which represents the right to purchase from MedicalCV, Inc., a Minnesota
corporation (the "Company"), at any time commencing ______________, ______,
but on or before 5:00 p.m., Minneapolis time, on _______________, ______,
upon compliance with and subject to the conditions set forth herein and in
the Warrant Agreement hereinafter referred to, one share (subject to
adjustments referred to below) of common stock of the Company (the "Shares"),
by surrendering this Warrant Certificate, with the purchase form on the
reverse side duly executed, at the principal office of The Registrar &
Transfer Company, or its successor, as warrant agent (the "Warrant Agent"),
and by paying, in full, in cash or by certified check payable to the order of
the Company, the purchase price of $6.50 per Share, subject to adjustment.
Upon any exercise of less than all the Warrants evidenced by this
Warrant Certificate, there shall be issued to the holder a new Warrant
Certificate in respect of the Warrants as to which this Warrant Certificate was
not exercised.
Upon the surrender for transfer or exchange hereof, properly endorsed,
to the Warrant Agent, the Warrant Agent (at the Company's expense) will issue
and deliver to the order of the holder hereof, a new Warrant Certificate or
Warrant Certificates of like tenor, in the name of such holder or as such holder
(upon payment by such holder of any applicable transfer taxes) may direct,
calling in the aggregate on the face thereof for the number of Shares called for
on the face hereof.
The Warrant Certificates are issued only as registered Warrant
Certificates. Until this Warrant Certificate is transferred in the Warrant
Register, the Company and the Warrant Agent may treat the person in whose name
this Warrant Certificate is registered as the absolute owner hereof and of the
Warrants represented hereby for all purposes, notwithstanding any notice to the
contrary.
This Warrant Certificate is issued under the Warrant Agreement dated as
of ___________, 2001, between the Company and the Warrant Agent and is subject
to the terms and provisions contained in said Warrant Agreement, to all of which
terms and provisions the registered holder of this Warrant Certificate consents
by acceptance hereof. Copies of said Warrant Agreement are on file at the
principal office of the Warrant Agent in Cranford, New Jersey, and may be
obtained by written request to the Warrant Agent.
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The number of Shares receivable upon the exercise of the Warrants
represented by this Warrant Certificate and the purchase price per Share are
subject to adjustment upon the happening of certain events specified in the
Warrant Agreement (which provisions are contained in Article III of the Warrant
Agreement and are hereby incorporated by reference).
No fractional Shares will be issued upon the exercise of Warrants. As
to any final fraction of a Share which a holder of Warrants exercised in the
same transaction would otherwise be entitled to purchase on such exercise, the
Company shall pay a cash adjustment in lieu of any fractional Share determined
as provided in the Warrant Agreement.
The Warrants may be redeemed by the Company at any time once they
become exercisable, upon notice of such redemption as set forth below, at the
redemption price equal to $0.01 per Warrant, provided that the closing price
of one Share or one Unit (each consisting of one Share and one Warrant) on
The Nasdaq Stock Market exceeds $8.50 (subject to adjustment as provided in
the Warrant Agreement) for any ten consecutive trading days prior to the date
such notice of redemption is given. Notice of redemption shall be mailed not
less than ten business days prior to the date fixed for redemption to the
holders of Warrants at their last registered addresses. If notice of
redemption shall have been given as provided in the Warrant Agreement and
cash sufficient for the redemption to be deposited by the Company for that
purpose, the exercise rights of the Warrants identified for redemption shall
expire at the close of business on such date of redemption unless extended by
the Company.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of Shares, including, without limitation, the right to
vote, to receive dividends and other distributions, or to receive any notice of
or to attend meetings of holders of Shares or any other proceedings of the
Company.
Shares may not be issued to holder upon exercise of this Warrant if, at
the time of exercise, a registration statement with respect to such Shares is
not effective under the Securities Act or if the Shares underlying the Warrant
are not qualified or exempt from qualification in the state wherein the holder
of the Warrant resides.
This Warrant Certificate shall be void and the Warrants and any rights
represented hereby shall cease unless exercised on or before 5:00 p.m.,
Minneapolis time, on _______________, ______, unless extended by the Company.
This Warrant Certificate shall not be valid for any purpose until it
shall have been countersigned by the Warrant Agent.
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WITNESS the facsimile signatures of the Company's duly authorized
officers.
Dated: MEDICALCV, INC.
_________________________________
By
__________________________
Xxxxx X. Xxxxxx
Chief Executive Officer
Attest:
________________________________
_____________________, Secretary
COUNTERSIGNED AND REGISTERED:
REGISTRAR & TRANSFER COMPANY
as Warrant Agent
By
__________________________________
Authorized Signature
14
PURCHASE FORM
(To Be Executed by the Registered Holder in Order to Exercise the Warrant)
The undersigned hereby irrevocably elects to exercise ________________*
of the Warrants represented by this Warrant Certificate and to purchase for cash
the Shares issuable upon the exercise of said Warrants, and herewith makes
payment of $____________ therefor, and requests that certificates for such
Shares be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR _______________________________
OTHER IDENTIFYING NUMBER OF (Print Name)
REGISTERED HOLDER OF CERTIFICATE
_______________________________
(Address)
__________________________________
_______________________________
Dated:____________________________ (City, State, Zip Code)
_______________________________
(Signature)
_______________________________
(Signature)
_______________________________
* Insert here the number of Warrants evidenced on the face of this Warrant
Certificate (or, in the case of a partial exercise, the portion thereof being
exercised) without making any adjustment for additional Shares or any other
securities or property or cash which, pursuant to the adjustment provisions
referred to in this Warrant Certificate, may be deliverable upon exercise.
NOTICE
THE SIGNATURE(S) TO THE PURCHASE FORM MUST CORRESPOND TO THE NAME(S) AS WRITTEN
UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR WITHOUT ALTERATION
OR ENLARGEMENT OR ANY DAMAGE WHATSOEVER.
15
ASSIGNMENT FORM
(To Be Executed by the Registered Holder in Order to Transfer the Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
________________** of the Warrants represented by this Warrant Certificate unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE _______________________________
(Print name)
____________________________________
_______________________________
(Address)
_______________________________
(City, State, Zip Code)
and does hereby irrevocably constitute and appoint
________________________________ Attorney to transfer this Warrant on the
records of the Company with full power of substitution in the premises.
Dated: _______________________________ _______________________________
(Signature)
_______________________________
(Signature)
_______________________________
(Signature(s) Guaranteed)
_______________________________
** Insert here the number of Warrants evidenced on the face of this Warrant
Certificate (or, in the case of a partial assignment, the portion thereof being
assigned) without making any adjustment for additional Shares or any other
securities or property or cash which, pursuant to the adjustment provisions
referred to in this Warrant Certificate, may be deliverable upon exercise.
NOTICE
THE SIGNATURE(S) TO THE ASSIGNMENT FORM MUST CORRESPOND TO THE NAME(S) AS
WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY DAMAGE WHATSOEVER.
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