1
MEDICAL DEVICE ALLIANCE INC.
EXHIBIT 10.08
FORM
OF
SELLING AGENT WARRANT
MEDICAL DEVICE ALLIANCE INC.
SERIES A PREFERRED STOCK
2
FORM OF
MEDICAL DEVICE ALLIANCE, INC.
SELLING AGENT WARRANT
This MEDICAL DEVICE ALLIANCE, Inc. Selling Agent Warrant (the "Warrant")
is made and entered into at Las Vegas, Nevada, on the date hereinafter set forth
by and between MEDICAL DEVICE ALLIANCE, INC., a Nevada Corporation, hereinafter
called the "Company", and the undersigned, hereinafter called the "Holder".
WHEREAS:
A. The Holder has acted as an agent of the Company in selling Common Stock
for the Company pursuant to the Private Placement Memorandum dated
November 1, 1996, (the "Offering") whereby the Company offered for sale
SEVEN MILLION FIVE HUNDRED THOUSAND DOLLARS ($7,500,000) of Common Stock
at a price of FIVE DOLLARS ($5.00) per Share; and
B. The Holder is entitled to a warrant which gives the Holder the right,
but not the obligation, to acquire the amount of Common Stock set forth
on the signature page hereof at the price as defined below as a result
of services rendered to the Company in connection with the Offering.
NOW, THEREFORE, in consideration of the premises and promises, warranties and
representations herein contained, it is agreed as follows:
1. WARRANT. Subject to the conditions set forth herein, the Company
hereby grants to the Holder the right, privilege and option to purchase up to
that number of shares of Common Stock set forth on the signature page hereto at
the Strike Price per share set forth below (the "Warrant Shares"), said number
of Warrant Shares and said Strike Price being subject to adjustment as provided
herein. No fractional Warrants will be issued.
2. STRIKE PRICE. The initial price per share for the Warrant Shares (the
"Strike Price") shall be FIVE DOLLARS ($5.00) per share. If from time to time
after the date hereof the Company completes any private placement sales of
Common Stock, or any preferred stock of the Company convertible into or
exchangeable for Common Stock (each a "Private Placement"), or an Initial Public
Offering or issues any warrant to purchase Common Stock, at a purchase or
"strike" price (in the case of Common Stock), or with a conversion price or
exchange rate (in the case of any preferred stock of the Company), lower than $5
per share, adjusted for stock splits, stock dividends or recapitalization, the
Strike Price shall be reduced to the purchase price (or conversion price or
exchange rate, as applicable) per share, as adjusted, at which such shares of
Common Stock or convertible preferred stock are sold.
3
3. METHOD OF EXERCISE. Stock purchased under this Warrant shall, at the
time of purchase, be paid for in full. The right to purchase shares hereunder
may be exercised, from time to time, by written notice to the Company stating
the number of shares with respect to which this Warrant is being exercised and
the time of delivery thereof, which shall be at least ten (10) days after the
giving of such notice, unless an earlier date shall have been mutually agreed
upon. At the time specified in such notice, the Company shall, without transfer
or issue tax to the Holder, deliver to him by certified mail, a certificate or
certificates for such shares, against the payment of the Strike Price, in full,
for the number of shares to be delivered, by certified or bank cashier's check,
or the equivalent thereof acceptable to the Company. Provided, however, that the
time of such delivery may be postponed by the Company for such period as may be
required for it, with reasonable diligence, to comply with any requirements of
any state or federal agency or any securities exchange and further provided that
no fractional shares of Common Stock will be issued. If the Holder fails to
accept delivery of and pay for all or any part of the number of shares specified
in the notice given by the Holder, upon tender and delivery of said shares, the
Holder's right to exercise this Warrant with respect to such undelivered shares
shall be terminated. If this Warrant is exercised within six (6) months of the
Company's Initial Public Offering (IPO), the Holder shall execute a lock-up
agreement for the balance of the six month period following the IPO.
4. TERMINATION OF WARRANT. Except as herein otherwise stated, this
Warrant, to the extent not theretofore exercised, shall terminate at 5:00 p.m.
Pacific Standard Time three (3) years after the date of issuance as stated on
the signature page hereof.
5. RECLASSIFICATION, CONSOLIDATION OR MERGER. If, and to the extent that
the number of issued shares of Common Stock of the Company shall be increased or
reduced by a change in par value, subdivision, combination, split-up,
reclassification, distribution of a dividend payable in stock, or the like (but
excluding dividends payable in cash), the number of Warrant Shares subject to
this Warrant, and the Strike Price therefor, shall be proportionately adjusted.
If the Company is reorganized or consolidated, or merged with any other
corporation, the Holder shall be entitled to receive warrants covering shares of
such reorganized, consolidated or merged Company in the same proportion, at an
equivalent price, and subject to the same conditions.
6. RIGHTS PRIOR TO EXERCISE OF WARRANT. The Holder shall have no rights
as a shareholder of shares subject to this Warrant until payment of the Strike
Price and the delivery of such shares as herein provided.
7. CERTAIN COVENANTS OF THE COMPANY. The Company covenants and agrees
that all shares which may be issued upon the exercise of this Warrant, will,
upon issuance, be duly and validly issued, fully paid and nonassessable; and
will from time to time take all such action as may be requisite to assure that
the par value per share of the Common Stock is at all times equal to or less
than the then effective purchase price per share of the Common Stock issuable
pursuant to the Warrant. The Company further covenants and agrees that, during
the period within which the rights represented by this
4
Warrant may be exercised, the Company will at all times have authorized, and
reserved for the purpose of issuance upon exercise of the purchase rights
evidenced by this Warrant, a sufficient number of shares of its Common Stock to
provide for the exercise of the rights represented by this Warrant. The Company
also further covenants that it will not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issuance 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 action as may be necessary or
appropriate in order to protect the rights of the holder of this Warrant against
impairment. Without limiting the generality of the foregoing, the Company (a)
will not increase the par value of any shares of stock issuable upon the
exercise of this Warrant above the amount payable therefor on such exercise, and
(b) will take all action that may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable shares of
stock on the exercise of this Warrant. So long as this Warrant is outstanding,
the Company shall not grant to any person or entity any anti-dilution rights on
terms more favorable than those granted to the Holder hereunder.
8. TRANSFER OF WARRANT. This Warrant may be transferred by the Holder
with the prior written consent of the Company, which shall not be unreasonably
withheld, and subject to the transferee qualifying as an Accredited Investor and
making the same representations to the Company as set forth herein and subject
to the first refusal right described in Paragraph 9. below.
9. RIGHT OF FIRST REFUSAL. Prior to any transfer of this Warrant by the
Holder, the Holder shall give written notice by certified or registered mail,
return receipt requested, to the Company specifying the price, terms and name
and address of the proposed transferee (the "Notice"). The Company shall have
thirty (30) days from receipt of said Notice to acquire the Warrant under the
same price and terms as specified by the Holder in the Notice.
10. REGISTRATION RIGHTS. The Holder shall have no registration rights
for this Warrant.
11. UNDERSTANDING OF HOLDER. The Company's obligation to issue and/or
register the Warrant Shares as set forth herein shall be conditioned upon a
timely receipt by the Company in writing of:
(a) With respect to issuance, investment representations as
deemed appropriate by the Company in its sole and absolute discretion sufficient
to assure the Company that the Warrant Shares upon issuance will be exempt from
registration under the Securities Act of 1933, as amended (the "Act"); and
(b) With respect to registration, information as the Company may
reasonably require from Holder, or any underwriter, for inclusion in such
registration statement.
5
12. BINDING EFFECT. This Warrant shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
13. GOVERNING LAW.This Warrant shall be governed by, and construed and
enforced in accordance with, the laws of the State of Nevada.
14. NOTICES. Any notice or demand to the Company under this Warrant may
be given and shall conclusively be deemed and considered to have been given and
received upon the date shown to have been received on any postal receipt or
independent courier receipt at the address of the Company appearing on the
records of the Holder, but actual written notice (including by telefax, hand
delivery, Federal Express, or other means), however given or received, shall
always be effective. For the purposes hereof, the addresses of the Company and
the Holder (until notice of a change thereof is given as provided in this
Section 14.) shall be as follows:
If to the Holder: At the address set forth on the
signature page hereof
If to the Company: MEDICAL DEVICE ALLIANCE, INC.
0000 Xxxxxx Xxxxxx Xxxx. Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Chairman of the Board
15. EXECUTION IN COUNTERPARTS. This Warrant may be executed in any
number of counterparts and any party hereto or thereto may execute any
counterpart, each of which when executed and delivered will be deemed to be an
original and all of which counterparts of this Warrant taken together will be
deemed to be but one and the same instrument. The execution of this Warrant by
any party hereto will not become effective until counterparts hereof or thereof,
as the case may be, have been executed by all the parties hereto or thereto, and
transmitted by facsimile copy with overnight delivery of manually executed
copies. Notwithstanding the above, the date of issuance of this Warrant shall be
the date which is specifically indicated on the signature page hereof.
SIGNATURES ON NEXT PAGE
6
IN WITNESS WHEREOF, the parties have caused this Selling Agent Warrant
to be executed on this 31st day of MARCH, 1997.
"Company"
MEDICAL DEVICE ALLIANCE, INC., a Nevada Corporation
By:
------------------------------------
Chairman of the Board
"Holder"
---------------------------------------
Signature
Address:
Tax Id. or Soc. Sec. Number:
DATE OF ISSUANCE OF WARRANT:
MARCH 31, 1997
AMOUNT OF WARRANT SHARES:
7
MEDICAL DEVICE ALLIANCE, INC.
SELLING AGENT WARRANT
This MEDICAL DEVICE ALLIANCE, Inc. Selling Agent Warrant (the "Warrant")
is made and entered into at Las Vegas, Nevada, on the date hereinafter set forth
by and between MEDICAL DEVICE ALLIANCE, INC., a Nevada Corporation, hereinafter
called the "Company", and the undersigned, hereinafter called the "Holder".
WHEREAS:
A. The Holder has acted as an agent of the Company in selling Series A
Preferred Stock for the Company pursuant to the Private Placement
Memorandum dated April 15, 1997, (the "Offering") whereby the Company
offered for sale up to FIFTEEN MILLION NINE HUNDRED FORTY TWO THOUSAND
FIVE HUNDRED TEN DOLLARS ($15,942,510) of Series A Preferred Stock at a
price of SIX DOLLARS ($6.00) per Share; and
B. The Holder is entitled to a warrant which gives the Holder the right,
but not the obligation, to acquire the amount of Common Stock set forth
on the signature page hereof at the price as defined below as a result
of services rendered to the Company in connection with the Offering.
NOW, THEREFORE, in consideration of the premises and promises, warranties and
representations herein contained, it is agreed as follows:
1. WARRANT. Subject to the conditions set forth herein, the Company
hereby grants to the Holder the right, privilege and option to purchase up to
that number of shares of Common Stock set forth on the signature page hereto at
the Strike Price per share set forth below (the "Warrant Shares"), said number
of Warrant Shares and said Strike Price being subject to adjustment as provided
herein. No fractional Warrants will be issued.
2. STRIKE PRICE. The initial price per share for the Warrant Shares (the
"Strike Price") shall be SIX DOLLARS ($6.00) per share. If from time to time
after the date hereof the Company completes any private placement sales of
Common Stock, or any preferred stock of the Company convertible into or
exchangeable for Common Stock (each a "Private Placement"), or an Initial Public
Offering or issues any warrant to purchase Common Stock, at a purchase or
"strike" price (in the case of Common Stock), or with a conversion price or
exchange rate (in the case of any preferred stock of the Company), lower than $5
per share, adjusted for stock splits, stock dividends or recapitalization, the
Strike Price shall be reduced to the purchase price (or conversion price or
exchange rate, as applicable) per share, as adjusted, at which such shares of
Common Stock or convertible preferred stock are sold.
8
3. METHOD OF EXERCISE. Stock purchased under this Warrant shall, at the
time of purchase, be paid for in full. The right to purchase shares hereunder
may be exercised, from time to time, by written notice to the Company stating
the number of shares with respect to which this Warrant is being exercised and
the time of delivery thereof, which shall be at least ten (10) days after the
giving of such notice, unless an earlier date shall have been mutually agreed
upon. At the time specified in such notice, the Company shall, without transfer
or issue tax to the Holder, deliver to him by certified mail, a certificate or
certificates for such shares, against the payment of the Strike Price, in full,
for the number of shares to be delivered, by certified or bank cashier's check,
or the equivalent thereof acceptable to the Company. Provided, however, that the
time of such delivery may be postponed by the Company for such period as may be
required for it, with reasonable diligence, to comply with any requirements of
any state or federal agency or any securities exchange and further provided that
no fractional shares of Common Stock will be issued. If the Holder fails to
accept delivery of and pay for all or any part of the number of shares specified
in the notice given by the Holder, upon tender and delivery of said shares, the
Holder's right to exercise this Warrant with respect to such undelivered shares
shall be terminated. If this Warrant is exercised within six (6) months of the
Company's Initial Public Offering (IPO), the Holder shall execute a lock-up
agreement for the balance of the six month period following the IPO.
4. TERMINATION OF WARRANT. Except as herein otherwise stated, this
Warrant, to the extent not theretofore exercised, shall terminate at 5:00 p.m.
Pacific Standard Time three (3) years after the date of issuance as state on the
signature page hereof.
5. RECLASSIFICATION, CONSOLIDATION OR MERGER. If, and to the extent that
the number of issued shares of Common Stock of the Company shall be increased or
reduced by a change in par value, subdivision, combination, split-up,
reclassification, distribution of a dividend payable in stock, or the like (but
excluding dividends payable in cash), the number of Warrant Shares subject to
this Warrant, and the Strike Price therefor, shall be proportionately adjusted.
If the Company is reorganized or consolidated, or merged with any other
corporation, the Holder shall be entitled to receive warrants covering shares of
such reorganized, consolidated or merged Company in the same proportion, at an
equivalent price, and subject to the same conditions.
6. RIGHTS PRIOR TO EXERCISE OF WARRANT. The Holder shall have no rights
as a shareholder of shares subject to this Warrant until payment of the Strike
Price and the delivery of such shares as herein provided.
7. CERTAIN COVENANTS OF THE COMPANY. The Company covenants and agrees
that all shares which may be issued upon the exercise of this Warrant, will,
upon issuance, be duly and validly issued, fully paid and nonassessable; and
will from time to time take all such action as may be requisite to assure that
the par value per share of the Common Stock is at all times equal to or less
than the then effective purchase price per share of the Common Stock issuable
pursuant to the Warrant. The Company further covenants and agrees that, during
the period within which the rights represented by this
9
Warrant may be exercised, the Company will at all times have authorized, and
reserved for the purpose of issuance upon exercise of the purchase rights
evidenced by this Warrant, a sufficient number of shares of its Common Stock to
provide for the exercise of the rights represented by this Warrant. The Company
also further covenants that it will not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issuance 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 action as may be necessary or
appropriate in order to protect the rights of the holder of this Warrant against
impairment. Without limiting the generality of the foregoing, the Company (a)
will not increase the par value of any shares of stock issuable upon the
exercise of this Warrant above the amount payable therefor on such exercise, and
(b) will take all action that may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable shares of
stock on the exercise of this Warrant. So long as this Warrant is outstanding,
the Company shall not grant to any person or entity any anti-dilution rights on
terms more favorable than those granted to the Holder hereunder.
8. TRANSFER OF WARRANT. This Warrant may be transferred by the Holder
with the prior written consent of the Company, which shall not be unreasonably
withheld, and subject to the transferee qualifying as an Accredited Investor and
making the same representations to the Company as set forth herein and subject
to the first refusal right described in Paragraph 9. below.
9. RIGHT OF FIRST REFUSAL. Prior to any transfer of this Warrant by the
Holder, the Holder shall give written notice by certified or registered mail,
return receipt requested, to the Company specifying the price, terms and name
and address of the proposed transferee (the "Notice"). The Company shall have
thirty (30) days from receipt of said Notice to acquire the Warrant under the
same price and terms as specified by the Holder in the Notice.
10. REGISTRATION RIGHTS. The Holder shall have no registration rights
for this Warrant.
11. UNDERSTANDING OF HOLDER. The Company's obligation to issue and/or
register the Warrant Shares as set forth herein shall be conditioned upon a
timely receipt by the Company in writing of:
(a) With respect to issuance, investment representations as
deemed appropriate by the Company in its sole and absolute discretion sufficient
to assure the Company that the Warrant Shares upon issuance will be exempt from
registration under the Securities Act of 1933, as amended (the "Act"); and
(b) With respect to registration, information as the Company may
reasonably require from Holder, or any underwriter, for inclusion in such
registration statement.
10
12. BINDING EFFECT. This Warrant shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
13. GOVERNING LAW.This Warrant shall be governed by, and construed and
enforced in accordance with, the laws of the State of Nevada.
14. NOTICES. Any notice or demand to the Company under this Warrant may
be given and shall conclusively be deemed and considered to have been given and
received upon the date shown to have been received on any postal receipt or
independent courier receipt at the address of the Company appearing on the
records of the Holder, but actual written notice (including by telefax, hand
delivery, Federal Express, or other means), however given or received, shall
always be effective. For the purposes hereof, the addresses of the Company and
the Holder (until notice of a change thereof is given as provided in this
Section 14.) shall be as follows:
If to the Holder: At the address set forth on the
signature page hereof
If to the Company: MEDICAL DEVICE ALLIANCE, INC.
0000 Xxxxxx Xxxxxx Xxxx. Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Chairman of the Board
15. EXECUTION IN COUNTERPARTS. This Warrant may be executed in any
number of counterparts and any party hereto or thereto may execute any
counterpart, each of which when executed and delivered will be deemed to be an
original and all of which counterparts of this Warrant taken together will be
deemed to be but one and the same instrument. The execution of this Warrant by
any party hereto will not become effective until counterparts hereof or thereof,
as the case may be, have been executed by all the parties hereto or thereto, and
transmitted by facsimile copy with overnight delivery of manually executed
copies. Notwithstanding the above, the date of issuance of this Warrant shall be
the date which is specifically indicated on the signature page hereof.
SIGNATURES ON NEXT PAGE
11
IN WITNESS WHEREOF, the parties have caused this Selling Agent Warrant
to be executed on this 31st day of JULY, 1997.
"Company"
MEDICAL DEVICE ALLIANCE, INC., a Nevada Corporation
By:
------------------------------------
Chairman of the Board
"Holder"
---------------------------------------
Signature
Address:
Tax Id. or Soc. Sec. Number:
------------------------
DATE OF ISSUANCE OF WARRANT:
JULY 31, 1997
AMOUNT OF WARRANT SHARES:
