Contract
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS
WARRANT MAY NOT BE TRANSFERRED IN THE ABSENCE OF REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY COMPARABLE STATE LAW, OR AN EXEMPTION
THEREFROM UNDER SUCH ACT. THIS WARRANT AND SUCH SHARES MAY BE
TRANSFERRED ONLY IN COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THIS
WARRANT
RemoteMDx,
Inc.
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Warrant
Holder:
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________________
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Date of
Grant:
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_____________,
20__
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Number of
Covered Shares:
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Exercise
Price Per Share:
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$
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Term:
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Five
year term
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Effective as of ______________
RemoteMDx, Inc., a Utah corporation (the “Company”), for value received,
hereby certifies that ___________ (“Holder”), is entitled to
purchase from the Company, at such times and in such amounts as are permitted
herein, ____________ duly authorized shares of the Common Stock, par value
$0.0001 per share, of the Company (the “Warrant Stock”) at a purchase
price per share of $________ per share, all subject to the terms and conditions
set forth below.
1. Exercise
of Warrant.
1.1. Manner of
Exercise. Holder may exercise this Warrant, in whole or in
part, during normal business hours on any business day by surrendering this
Warrant to the Company at the Company's principal office, accompanied by an
executed subscription agreement in substantially the form annexed hereto as
Exhibit "A", as such
form may be modified in the discretion of the Company to comply with any
applicable federal or state securities laws, and by payment, in cash or by
certified or official bank check payable to the order of the Company, or by any
combination of such methods, in the amount obtained by multiplying (a) the
number of shares of Warrant Stock designated in such subscription by (b) $___,
whereupon Holder shall be entitled to receive the number of duly authorized,
validly issued, fully paid and nonassessable shares of Warrant Stock as is
indicated on the subscription.
1.2. When Exercise
Effective. Each exercise of this Warrant shall be deemed
to have been effected immediately prior to the close of business on the business
day on which this Warrant shall have been surrendered to the Company as provided
in Section 1.1, and at such time the person or persons in whose name or names
any certificate or certificates for shares of Warrant Stock shall be issued upon
such exercise shall be deemed for all corporate purposes to have become the
holder of record thereof.
1.3. Delivery of Stock
Certificates. As soon as practicable after each exercise
of this Warrant, and in any event within five business days thereafter, 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 Holder, a
certificate or certificates for the number of duly authorized, validly issued,
fully paid and nonassessable shares of Warrant Stock to which Holder shall be
entitled upon such exercise.
1.4. Partial
Exercise.
(a) Fractional Shares. In
the event of any partial exercise of this Warrant, the Company will not issue
certificates for any fractional shares of the Warrant Stock to which Holder
otherwise may be entitled, and the Company shall not be obligated to refund an
amount of cash comprising the market value of any fractional share of Warrant
Stock for which the Company will not issue a certificate.
(b) Replacement
Warrant. In the event of any partial exercise of this Warrant,
at the request of Holder and upon tender of this Warrant to the Company, the
Company shall issue a new Warrant containing the same terms and conditions as
this Warrant but calling on the face thereof for the number of shares of Warrant
Stock equal to the number of shares called for on the face of this Warrant minus
the number of shares of Warrant Stock issued upon the partial exercise of this
Warrant.
2. Certain
Adjustments.
2.1. Mergers, Consolidations or
Sale of Assets. If at any time there shall be a capital
reorganization (other than a combination or subdivision of Warrant Stock
otherwise provided for herein), or a merger or consolidation of the Company with
or into another corporation, or the sale of the Company's properties and assets
as, or substantially as, an entirety to any other person, then, as a part of
such reorganization, merger, consolidation or sale, lawful provision shall be
made so that the holder shall thereafter be entitled to receive upon exercise of
this Warrant, during the period specified in this Warrant and upon payment of
the purchase price, the number of shares of stock or other securities or
property of the Company or the successor corporation resulting from such
reorganization, merger, consolidation or sale, to which a holder of the Common
Stock deliverable upon exercise of this Warrant would have been entitled under
the provisions of the agreement in such reorganization, merger, consolidation or
sale if this Warrant had been exercised immediately before that
reorganization, merger, consolidation or sale. In any such case,
appropriate adjustment (as determined in good faith by the Company's Board of
Directors) shall be made in the application of the provisions of this Warrant
with respect to the rights and interests of the holder after the reorganization,
merger, consolidation or sale to the end that the provisions of this Warrant
(including adjustment of the purchase price then in effect and the number of
shares of Warrant Stock) shall be applicable after that event, as near as
reasonably may be, in relation to any shares or other property deliverable after
that event upon exercise of this Warrant.
2.2. Splits and
Subdivisions. If the Company at any time or from time to time
after the date of this Warrant but before expiration effects a split or
subdivision of the outstanding shares of its then outstanding Common Stock into
a greater number of shares of Common Stock, or if the Company effects a reverse
split of the outstanding shares of its Common Stock into a lesser number of
shares of Common Stock, (by reclassification or otherwise than by payment of a
dividend in Common Stock), then, and in each such case, the number of shares
called for on the face of this Warrant (or the face of any replacement Warrant
issued upon partial exercise) shall be adjusted proportionally, and the exercise
price with respect to such adjusted number of shares also shall be adjusted
proportionally.
2.3. Certificate as to
Adjustments. In the case of each adjustment or readjustment of
the purchase price pursuant to this Section 2, the Company will promptly compute
such adjustment or readjustment in accordance with the terms hereof and cause a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based to be
delivered to the holder of this Warrant. The Company will, upon the
written request at any time of the holder of this Warrant, furnish or cause to
be furnished to such holder a certificate setting forth:
(a) Such
adjustments and readjustments;
(b) The
purchase price at the time in effect; and
(c) The
number of shares of Warrant Stock and the amount, if any, of other property at
the time receivable upon the exercise of the Warrant.
3. Restrictions
on Transfer.
3.1. Restrictive
Legends. Unless the shares issued upon exercise of this
Warrant are registered under the Securities Act of 1933 and under applicable
laws of any state, each certificate for Common Stock issued upon the exercise of
any Warrant, and each certificate issued upon the transfer of any such Common
Stock, shall be stamped or otherwise imprinted with a legend in substantially
the following form:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY
STATE. THESE SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF REGISTRATION, OR THE AVAILABILITY OF
AN EXEMPTION FROM REGISTRATION, UNDER THE SECURITIES ACT OF 1933 AND APPROPRIATE
STATE SECURITIES LAWS. FURTHERMORE, NO OFFER, SALE, TRANSFER, PLEDGE
OR HYPOTHECATION IS TO TAKE PLACE UNLESS THE COMPANY RECEIVES AN OPINION OF
COUNSEL AT SHAREHOLDER'S EXPENSE, AND SATISFACTORY TO IT, THAT AN EXEMPTION FROM
REGISTRATION IS AVAILABLE.
3.2. Notice of Proposed
Transfer; Opinions of Counsel. Prior to the
transfer of any shares of Common Stock issued upon the exercise of this Warrant
and during any period during which such shares of Common Stock are not
registered by the Company under an effective registration statement filed
pursuant to the Securities Act of 1933, the holder thereof shall give written
notice to the Company, which notice shall (a) state such holder's intention to
transfer such restricted shares and to comply in all other respects with the
transfer requirements of this Warrant; (b) describe the circumstances of the
proposed transfer in sufficient detail to enable counsel to render the opinions
referred to below, and (c) designate counsel for the holder giving such
notice. The holder giving such notice shall submit a copy thereof to
the counsel designated in such notice and the Company will promptly submit a
copy thereof to its counsel. The following provisions shall then
apply:
(a) If
(a) in the opinion of counsel for the holder designated in the notice the
proposed transfer may be effected without registration of such shares of Common
Stock under the Securities Act of 1933 and any applicable state securities laws,
and (b) counsel for the Company shall not have rendered an opinion within 15
days after receipt by the Company of such written notice that such registration
is required, such holder shall thereupon be entitled to transfer such shares of
Common Stock in accordance with the terms of the notice delivered by such holder
to the Company. Each Warrant or certificate, if any, issued upon or
in connection with such transfer shall bear the appropriate restrictive legend
set forth in Section 3.1, unless in the opinion of each such counsel such legend
is no longer required to insure compliance with the Securities
Act. If for any reason counsel for the Company (after having been
furnished with the information required to be furnished by clause (a) of this
Section 3.2) shall fail to deliver an opinion to the Company as aforesaid, then
for all purposes of this Warrant the opinion of counsel for the Company shall be
deemed to be the same as the opinion of counsel for such holder.
(b) If
in the opinion of either or both of such counsel the proposed transfer may not
legally be effected without registration of such shares of Common Stock under
the Securities Act of 1933 or applicable state securities laws (such opinion or
opinions to state the basis of the legal conclusions reached therein), the
Company will promptly so notify the holder thereof and thereafter such holder
shall not be entitled to transfer such shares of Common Stock until receipt of a
further notice from the holder under Section 3.2 above or until
registration of such shares of Common Stock under the Securities Act or
applicable state law has become effective.
4. Reservation
of Shares. The Company will at all times reserve and
keep available, solely for issuance and delivery upon the exercise of the
Warrants, the number of shares of Warrant Stock that would be issuable upon the
exercise of all Warrants at the time outstanding. All such shares
shall be duly authorized and, when issued upon such exercise, shall be validly
issued, fully paid and nonassessable with no liability on the part of the
holders thereof.
5. Replacement
of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant and, in the case of any such loss, theft of destruction of any Warrant,
upon delivery of indemnity reasonably satisfactory to the Company in form and
amount or, in the case of any such mutilation, upon surrender of such the
Company at its expense will execute and deliver, in lieu thereof, a new Warrant
of like tenor.
6. No Rights
or Liabilities as Stockholder. Nothing herein shall give
or shall be construed to give the holder of this Warrant any of the rights of a
shareholder of the Company including, without limitation, the right to vote on
matters requiring the vote of shareholders, the right to receive any dividend
declared and payable to the holders of Common Stock, and the right to a pro-rata
distribution upon the Company's dissolution.
7. Notices. All
notices and other communications provided for herein shall be delivered or
mailed by first class mail, postage prepaid, addressed (a) if to the holders of
any Warrant, at the registered address of such holder as set forth in the
register kept at the principal office of the Company, or (b) if to the Company,
at its principal office to the attention of the Company’s Chief Financial
Officer, RemoteMDx, Inc., 000 Xxxx Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxx
00000, or at the address of such other principal office of the Company as the
Company shall have furnished to each holder of any Warrants in writing, provided that the
exercise of any Warrants shall be effective only in the manner provided in
Section 1.
8. Assignment. No
Warrant granted herein or any of the rights and privileges thereby conferred
shall be transferred, assigned, pledged, or hypothecated in any way (whether by
operation of law or otherwise), and no such Warrant, right, or privilege shall
be subject to execution, attachment, or similar process. Upon any
attempt so to transfer, assign, pledge, hypothecate, or otherwise dispose of the
Warrant, or of any right or privilege conferred thereby, contrary to the
provisions hereof, or upon the levy of any attachment or similar process upon
which Warrant, right, or privilege, the Warrant and such rights and privileges
shall immediately become null and void.
9. Investment
Representations. In connection with its acquisition of this
Warrant, Holder represents and warrants, and (unless the shares underlying this
Warrant are registered pursuant to the Securities Act of 1933) in connection
with any exercise of this Warrant Holder will represent and warrant, as
follows:
9.1. Holder
is acquiring the Warrant and the Warrant Stock (together, the “Securities”) for his its own
account; no other person has any direct or indirect beneficial ownership in the
Securities.
9.2. Holder
is acquiring the Securities for investment, with no present intention of
distributing or selling any of the Securities or any interest
therein.
9.3. Holder
has the capacity to protect its own interests in connection with the acquisition
of the Securities. It has such knowledge and experience in financial
and business matters generally, and about the Company in particular, that it is
capable of evaluating the merits and risks of its acquisition of the
Securities.
9.4. Holder
acknowledges that as of the date hereof, and as of the date of any exercise of
the Warrants, it has read and analyzed, and retained copies of this Agreement
and the following documents:
(a) The
most recent Annual Report on Form 10-KSB of the Company;
(b) Any
and all Quarterly Reports on Form 10-Q of the Company filed since the latest
Form 10-KSB; and
(c) Any
and all Current Reports on Form 8-K of the Company filed since the latest Form
10-KSB.
9.5. Holder
has been informed and understands that there are risks associated with
purchasing the Securities, including those risks of ownership of Common Stock of
the Company identified in the Company’s Annual Reports on Form
10-KSB. Holder is capable of bearing the economic risk of ownership
of the Securities including, but not limited to, the possibility of the complete
loss of the value of the Securities and the restrictions on transferability of
the Securities.
10. Miscellaneous. This
Warrant and any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the party against which enforcement
of such change, waiver, discharge or termination is sought. This
Warrant shall be governed by the laws of the State of Utah. The
headings of this Warrant are inserted for convenience only and shall not be
deemed to constitute a part hereof.
11. Expiration. The
Warrants granted herein shall in no event be exercisable after
______________.
IN
WITNESS WHEREOF, this Warrant has been signed effective
_______________.
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REMOTEMDX,
INC.
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By:
_____________________________
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Title:
____________________________
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EXHIBIT
A
SUBSCRIPTION
(To be
executed by the holder of the Warrant to exercise the right to purchase Common
Stock evidenced by the Warrant)
To: Chief
Financial Officer
RemoteMDx, Inc.
0000 Xxxx 0000 Xxxxx
Xxxx Xxxx Xxxx,
Xxxx 00000
The
undersigned hereby irrevocably subscribes for ___________________ shares of the
Common Stock, par value $______ per share, of RemoteMdx, Inc., a Utah
corporation, pursuant to and in accordance with the terms and conditions of a
Warrant dated effective _________________ (the "Warrant"), and tenders with
the Warrant and this Subscription Agreement payment of $_____________________ as
payment for the shares, and requests that a certificate for such shares be
issued in the name of the undersigned and be delivered to the undersigned at the
address stated below.
NAME: __________________________________________________
ADDRESS: __________________________________________________
__________________________________________________
SOCIAL
SECURITY NUMBER:____________________________________
______________________________________________________________
Signed
DATED:
______________________________________________________
