Noninvasive Medical Technologies, Inc. Underwriters' Warrant Agreement
Noninvasive
Medical Technologies, Inc.
Underwriters'
Warrant Agreement
Underwriters'
Warrant Agreement
dated as
of __________, 2007 by and between Noninvasive
Medical Technologies, Inc.,
a
Delaware corporation (the "Company") and US
Euro Securities, Inc.
(“US
Euro”),
as
Representative of the several Underwriters (the “Underwriters”).
WITNESSETH:
Whereas,
the
Company proposes to issue warrants to the Underwriters ("Warrants") to purchase
up to 200,000 units of the Company (“Units”), consisting of two shares of the
Company’s common stock, $$0.0001 par value (the "Common Stock"), one Redeemable
Class A Warrant (the “Class A Warrant”) and one Non-Redeemable Class B Warrant
(the “Class B Warrant”), each having the terms described in the registration
statement to which the below-described offering relates; and
Whereas,
the
Underwriters have agreed, pursuant to the underwriting agreement (the
"Underwriting Agreement") dated ______________, 2007, by and among the
Underwriters and the Company, to act as the underwriters in connection with
the
Company's public offering of up to 1,500,000 Units at a public offering price
of
$10.00 per Unit (the "Public Offering"); and
Whereas,
the
Warrants to be issued pursuant to this Agreement will be issued on the Closing
Date (as such term is defined in the Underwriting Agreement) by the Company
to
the Underwriters in consideration for, and as part of their compensation in
connection with acting as underwriters pursuant to the Underwriting
Agreement;
Now,
Therefore,
in
consideration of the foregoing premises which are incorporated into the terms
hereof, of the payment by the Underwriters to the Company of $10.00 for the
Warrants purchased hereunder, the agreements herein set forth and other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.
Grant.
The
holders of the Warrants issued hereunder are hereby granted the right to
purchase, at any time from __________, 2007 until 5:00 p.m., New York time,
on
______________, up to 200,000 Units of the Company, at an initial exercise
price
(subject to adjustment as provided in Article 8 hereof) of $_____ per Unit
(____% of the public offering price per Units), subject to the terms and
conditions of this Agreement. The Units issuable upon exercise of the Warrants
are referred to as the "Warrant Units".
2.
Warrant
Certificates.
The
warrant certificates (the "Warrant Certificates") delivered and to be delivered
pursuant to this Agreement shall be in the form set forth in Exhibit
A,
attached hereto and made a part hereof, with such appropriate insertions,
omissions, substitutions, and other variations as required or permitted by
this
Agreement.
3.
Exercise
of Warrants.
The
Warrants are exercisable during the term set forth in Section 1 hereof at the
Exercise Price (defined below) per Share set forth in Section 6 hereof payable
by certified or cashier's check or money order payable in lawful money of the
United States, subject to adjustment as provided in Article 8 hereof. Upon
surrender of a Warrant Certificate with the annexed Form of Election to Purchase
duly executed, together with payment of the Exercise Price (as hereinafter
defined) for the Warrant Units (and such other amounts, if any, arising pursuant
to Section 4 hereof) at the Company's principal office in Las Vegas, Nevada,
the
registered holder of a Warrant Certificate ("Holder" or "Holders") shall be
entitled to receive a certificate or certificates for the Units so purchased
(or
following their separation, for the Common Stock, Class A Warrants and Class
B
Warrants underlying such Units). The purchase rights represented by each Warrant
Certificate are exercisable at the option of the Holder thereof, in whole or
in
part, (but not as to fractional Shares). The Warrants may be exercised to
purchase all or part of the Warrant Units represented thereby. In the case
of
the purchase of less than all the Warrant Units purchasable on the exercise
of
the Warrants represented by a Warrant Certificate, the Company shall cancel
the
Warrant Certificate represented thereby upon the surrender thereof and shall
execute and deliver a new Warrant Certificate of like tenor for the balance
of
the Warrant Units purchasable thereunder.
4.
Issuance
of Certificates.
Upon
the exercise of the Warrants and payment of the Exercise Price therefor, the
issuance of certificates for the Units (or following their separation, for
the
Common Stock, Class A Warrants and Class B Warrants underlying such Units)
shall
be made forthwith (and in any event within three (3) business days thereafter)
without further charge to the Holder thereof, and such certificates shall
(subject to the provisions of Sections 5 and 7 hereof) be issued in the name
of,
or in such names as may be directed by, the Holders thereof; provided,
however,
that
the Company shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issuance and delivery of any such certificates
in a name other than that of the Holders, and the Company shall not be required
to issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that
such
tax has been paid. The Warrant Certificates and the certificates representing
the Warrant Units shall be executed on behalf of the Company by the manual
or
facsimile signature of the then present Chairman or Vice Chairman of the Board
of Directors or President or Vice President of the Company under its corporate
seal reproduced thereon, attested to by the manual or facsimile signature of
the
then present Secretary or Assistant Secretary or Treasurer or Assistant
Treasurer of the Company. Warrant Certificates shall be dated the date of
execution by the Company upon initial issuance, division, exchange, substitution
or transfer.
5.
Restriction
on Transfer of Warrants.
The
Holder of a Warrant Certificate (and its Permitted Transferee, as defined
below), by its acceptance thereof, covenants and agrees that the Warrants are
being acquired as an investment and not with a view to the distribution thereof;
that the Warrants may be sold, transferred, assigned, hypothecated or otherwise
disposed of, in whole or in part, to any person (a "Permitted Transferee"),
provided such transfer, assignment, hypothecation or other deposition is made
in
accordance with the provisions of the Securities Act of 1933 (the "1933 Act");
and provided, further, that until November 18, 1997 (one year after the
Effective Date, defined below) only officers of the Underwriters, or any selling
group member or their respective officers or partners, shall be Permitted
Transferees.
6.
Exercise
Price.
a.
Initial
and Adjusted Exercise Price.
Except
as otherwise provided in Section 8 hereof, the initial exercise price of each
Warrant to purchase Warrant Units shall be $____ per Share. The adjusted
exercise price shall be the price which shall result from time to time from
any
and all adjustments of the initial exercise price in accordance with the
provisions of Section 8 hereof.
b.
Exercise
Price.
The
term "Exercise Price" herein shall mean the initial exercise price or the
adjusted exercise price, depending upon the context.
7.
Registration
Rights.
a.
Registration
Under the Securities Act of 1933.
The
Warrant certificates shall bear the following legend:
THE
SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED FOR SALE OR SOLD EXCEPT
PURSUANT TO (I) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF
1933 (THE "1933 ACT"), OR (II) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL
BE
REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM
REGISTRATION UNDER SUCH 1933 ACT IS AVAILABLE.
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b.
Demand
Registration.
At any
time commencing one (1) year and expiring five (5) years after the effective
date of the Company's Registration Statement relating to the Public Offering
(the "Effective Date"), the Holders of the Warrants and the Warrant Units
representing at least a Majority (as hereinafter defined) of such securities
shall have the right, exercisable by written notice to the Company, to have
the
Company prepare and file with the Securities and Exchange Commission (the
"Commission"), on one (1) occasion, a registration statement on Form ▇-▇, ▇▇-▇
(or other appropriate form, including, without limitation, a post-effective
amendment to the Company's Registration Statement) and such other documents,
including a prospectus, as may be necessary in the opinion of both counsel
for
the Company and counsel for the Holders, in order to comply with the provisions
of the 1933 Act, so as to permit a public offering and sale, for a period of
nine (9) months, of the Warrant Units and the shares of Common Stock, Class
A
Warrants and Class B Warrants underlying the Warrant Units by such Holders
and
any other Holders of the Warrants and/or Warrant Units who notify the Company
within fifteen (15) business days after receipt of the notice described in
the
succeeding sentence; provided, that following the separation date of the Units
the Underwriters may only request that such registration relate to the shares
of
Common Stock, Class A Warrants and Class B Warrants underlying the Warrant
Units. The Company covenants and agrees to give written notice of any
registration request under this Section 7(b) by any Holder(s) to all other
registered Holders of the Warrants and the Warrant Units within ten (10) days
from the date of the receipt of any such registration request. For purposes
of
this Agreement, the term "Majority" in reference to the Holders of the Warrants
or Warrant Units, shall mean in excess of fifty percent (50%) of the then
outstanding Warrants or Warrant Units that (i) are not held by the Company,
an
affiliate, officer, director, employee or agent thereof or any of their
respective affiliates, members of their family, persons acting as nominees
or in
conjunction therewith, or (ii) have not been resold to the public pursuant
to a
registration statement filed with the Commission under the 1933 Act. The Holders
of the Warrants may demand registration without exercising the Warrants, and
shall never be required to exercise same. For the purposes of subsection (i)
above, the Underwriters and their officers, directors, employees and agents
shall not be deemed an affiliate, officer, director, employee or agent of the
Company.
c.
Piggyback
Registration.
If, at
any time within the period commencing one (1) year and expiring six (6) years
after the Effective Date, the Company should file a registration statement
with
the Commission under the 1933 Act (other than in connection with a merger or
pursuant to Form S-8) it will give written notice by registered mail, at least
thirty (30) days prior to the filing of each such registration statement, to
the
Underwriters and to all other Holders of the Warrants and/or the Warrant Units
of its intention to do so. If the Underwriters or other Holders of the Warrants
and/or the Warrant Units notify the Company within twenty (20) days after
receipt of any such notice of its or their desire to include any Warrants Units,
or shares of Common Stock, Class A Warrants and Class B Warrants underlying
the
Warrant Units, in such proposed registration statement, the Company shall afford
the Underwriters and such Holders of the Warrants and/or Warrant Units the
opportunity to have any such Warrant Units, and the shares of Common Stock,
Class A Warrants and Class B Warrants underlying same, registered under such
registration statement; provided, that following the separation date of the
Units the Underwriters may only request that such registration relate to the
shares of Common Stock, Class A Warrants and Class B Warrants underlying the
Warrant Units. Notwithstanding the provisions of this Section 7(c), the Company
shall have the right at any time after it shall have given written notice
pursuant to this Section 7(c) (irrespective of whether a written request for
inclusion of any such securities shall have been made) to elect not to file
any
such proposed registration statement, or to withdraw the same after the filing
but prior to the effective date thereof.
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If
the
underwriter of an offering to which the above piggyback rights apply objects
to
such rights, such objection shall preclude such inclusion. However, in such
event, the Company will, within six (6) months of completion of such subsequent
underwriting, file at its sole expense, a registration statement relating to
such excluded Warrant Units, which shall be in addition to any registration
statement required to be filed pursuant to Section 7(b), unless such Holders
had
refused an opportunity provided with the consent of the underwriter, to be
included in the registration statement on the condition that they agree not
to
offer the securities for sale without the prior written consent of the
underwriter for a period not exceeding 60 days from the effective date of such
registration statement.
If
the
underwriter in such underwritten offering shall advise the Company that it
declines to include a portion or all of the shares of Common Stock, Class A
warrants and Class B Warrants requested by the Underwriters and the Holders
to
be included in the registration statement, then (A) registration of all of
the
Warrant Units (or shares of Common Stock, Class A Warrants and Class B Warrants
underlying the Warrant Units) shall be excluded from such registration statement
on the condition that all securities to be registered by other selling security
holders, if any, are also excluded and (B) registration of a portion of such
Warrant Units (or shares of Common Stock, Class A Warrants and Class B Warrants
underlying the Warrant Units) shall be allocated among the Underwriters and
the
Holders and any other selling securityholders in proportion to the respective
numbers of securities to be registered by the Underwriters and each such Holder
and other selling securityholder. In such event the Company shall give the
Underwriters and the Holders prompt notice of the number of shares of Common
Stock so excluded.
d.
Covenants
of the Company With Respect to Registration.
In
connection with any registrations under Sections 7(b) and 7(c) hereof, the
Company covenants and agrees as follows:
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(1)
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The
Company shall use its best efforts to file a registration statement
within
forty-five (45) days of receipt of any demand therefor; provided,
however,
that the Company shall not be required to produce audited or unaudited
financial statements for any period prior to the date such financial
statements are required to be filed in a report on Form 10-K or Form
10-Q
(or Form 10-KSB or Form 10-QSB), as the case may be. The Company
shall use
its best efforts to have any registration statements declared effective
at
the earliest possible time, and shall furnish each Holder desiring
to sell
Shares such number of prospectuses as shall reasonably be
requested.
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(2)
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The
Company shall pay all costs (excluding fees and expenses of Holder(s)'
counsel and any underwriting discounts or selling fees, expenses
or
commissions), fees and expenses in connection with any registration
statement filed pursuant to Sections 7(b) and 7(c) hereof including,
without limitation, the Company's legal and accounting fees, printing
expenses, blue sky fees and expenses. If the Company shall fail to
comply
with the provisions of Section 7(d) (1), the Company shall, in addition
to
any other equitable or other relief available to the Holder(s), be
liable
for any or all incidental, special and consequential damages and
damages
due to loss of profit sustained by the Holder(s) requesting registration
of their Warrant Units (and/or the Common Stock, Class A Warrants
and
Class B Warrants underlying same).
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(3)
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The
Company will take all necessary action which may be required to qualify
or
register the Warrant Units (and underlying securities) included in
a
registration statement for offering and sale under the securities
or blue
sky laws of such states as reasonably are requested by the Holder(s),
provided that the Company shall not be obligated to execute or file
any
general consent to service of process or to qualify as a foreign
corporation to do business under the laws of any such
jurisdiction.
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(4)
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The
Company shall indemnify the Holder(s) of the Warrant Units (and underlying
securities) to be sold pursuant to any registration statement and
each
person, if any, who controls such Holders within the meaning of Section
15
of the 1933 Act or Section 20(a) of the Securities Exchange Act of
1934
(the "Exchange Act"), against all losses, claims, damages, expenses
or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which any
of them
may become subject under the 1933 Act, the Exchange Act or otherwise,
arising from such registration statement, but only to the same extent
and
with the same effect as the provisions pursuant to which the Company
has
agreed to indemnify the Underwriters contained in Section 8 of the
Underwriting Agreement, and the Holder(s) shall indemnify the Company
to
the same extent and with the same effect as the provisions pursuant
to
which the Underwriters have agreed to indemnify the Company contained
in
Section 6 of the Underwriting
Agreement.
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(5)
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The
Holder(s) of the Warrant Units (and/or underlying securities) to
be sold
pursuant to a registration statement, and their successors and assigns,
shall severally, and not jointly, indemnify the Company, its officers
and
directors and each persons, if any, who controls the Company within
the
meaning of Section 15 of the 1933 Act or Section 20(a) of the Exchange
Act, against all losses, claims, damages, expenses or liability (including
all expenses reasonably incurred in investigating, preparing or defending
against any claim whatsoever) to which they may become subject under
the
1933 Act, the Exchange Act or otherwise, arising from information
furnished by or on behalf of such Holders, or their successors or
assigns,
for specific inclusion in such registration statement to the same
extent
and with the same effect as the provisions contained in Section 6
of the
Underwriting Agreement pursuant to which the Underwriters have agreed
to
indemnify the Company.
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(6)
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Nothing
contained in this Agreement shall be construed as requiring the Holder(s)
to exercise their Warrants prior to the initial filing of any registration
statement or the effectiveness
thereof.
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(7)
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If
the manner of distribution proposed by the holders of the Warrants
and the
Warrant Units is an underwriting, the Company shall furnish to each
Holder
participating in the offering and to each underwriter, a signed
counterpart, addressed to such Holder or underwriter of (i) an opinion
of
counsel to the Company, dated the effective date of such registration
statement (and if such registration includes an underwritten public
offering, an opinion dated the date of the closing under the underwriting
agreement), and (ii) a "cold comfort" letter dated the effective
date of
such registration statement (and, if such registration includes an
underwritten public offering, a letter dated the date of the closing
under
the underwriting agreement) signed by the independent public accountants
who have issued a report on the Company's financial statements included
in
such registration statement, in each case covering substantially
the same
matters with respect to such registration statement (and the prospectus
included therein) and, in the case of such accountants' letter, with
respect to events subsequent to the date of such financial statements,
as
are customarily covered in opinions of issuer's counsel and in
accountants' letter, with respect to events subsequent to the date
of such
financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to underwriters in
underwritten public offerings of
securities.
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(8)
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The
Company shall as soon as practicable after the effective date of
the
registration statement, and in any event within the first full four
fiscal
quarters following the effective date, make "generally available
to its
security holders" (within the meaning of Rule 158 under the ▇▇▇▇
▇▇▇) an
earnings statement (which need not be audited) complying with Section
11(a) of the ▇▇▇▇ ▇▇▇.
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(9)
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The
Company shall deliver promptly to each Holder participating in the
offering requesting the correspondence described below and any managing
underwriter, copies of all correspondence between the Commission
and the
Company, its counsel or auditors with respect to the registration
statement and permit each Holder and underwriter to do such investigation,
upon reasonable advance notice, with respect to information contained
in
or omitted from the registration statement as it deems reasonably
necessary to comply with applicable securities laws or rules of the
National Association of Securities Dealers Regulation, Inc. Such
investigation shall include access to books, records and properties
and
opportunities to discuss the business of the Company with its officers
and
independent auditors, all to such reasonable extent and at such reasonable
times and as often as any such Holder shall reasonably
request.
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(10)
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In
connection with an offering for which the Holders have demand rights,
the
Company shall enter into an underwriting agreement with the managing
underwriter selected for such underwriting by Holders holding a Majority
of the Shares requested to be included in such underwriting. In connection
with an offering for which the Holders have piggyback rights, the
Company
shall have the sole right to select the managing underwriter. Such
underwriting agreement shall be satisfactory in form and substance
to the
Company, a Majority of such Holders and such managing underwriters,
and
shall contain such representations, warranties and covenants by the
Company and such other terms as are customarily contained in agreements
of
that type used by the managing underwriter. The Holders shall be
parties
to any underwriting agreement relating to an underwritten sale of
their
Warrant Units and may, at their option, require that any or all the
representations, warranties and covenants of the Company to or for
the
benefit of such underwriters shall also be made to and for the benefit
of
such Holders. Such Holders shall not be required to make any
representations or warranties to or agreements with the Company or
the
underwriters except as they may relate to such Holders their ownership
and
their intended methods of
distribution.
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8.
Adjustments
to Exercise Price and Number of Securities; Redemption.
a.
(i)
Except as hereinafter provided, in the event the Company shall, at any time
or
from time to time after the date hereof, issue any shares of Common Stock as
a
stock dividend to the holders of Common Stock, or subdivide or combine the
outstanding shares of Common Stock into a greater or lesser number of shares
(any such issuance, subdivision or combination being herein called a "Change
of
Shares"), then, and thereafter upon each further Change of Shares, the Exercise
Price for the Warrants (whether or not the same shall be issued and outstanding)
in effect immediately prior to such Change of Shares shall be changed to a
price
(including any applicable fraction of a cent to the nearest cent) determined
by
dividing (i) the sum of (a) the total number of shares of Common Stock
outstanding immediately prior to such Change of Shares, multiplied by the
Exercise Price in effect immediately prior to such Change of Shares, and (b)
the
consideration, if any, received by the Company upon such issuance, subdivision
or combination by (ii) the total number of shares of Common Stock outstanding
immediately after such Change of Shares; provided,
however,
that in
no event shall the Exercise Price be adjusted pursuant to this computation
to an
amount in excess of the Exercise Price in effect immediately prior to such
computation, except in the case of a combination of outstanding shares of Common
Stock.
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For
the
purposes of any adjustment to be made in accordance with this Section 8(a)
the
following provisions shall be applicable:
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(1)
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Shares
or equivalents of Common Stock issuable by way of dividend or other
distribution on any stock of the Company shall be deemed to have
been
issued immediately after the opening of business on the day following
the
record date for the determination of shareholders entitled to receive
such
dividend or other distribution and shall be deemed to have been issued
without consideration.
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(2)
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The
reclassification of securities of the Company other than shares of
Common
Stock into securities including shares of Common Stock shall be deemed
to
involve the issuance of such shares of Common Stock for a consideration
other than cash immediately prior to the close of business on the
date
fixed for the determination of security holders entitled to receive
such
shares, and the value of the consideration allocable to such shares
of
Common Stock shall be determined in good faith by the Board of Directors
of the Company on the basis of a record of values of similar property
or
services.
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(3)
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The
number of shares of Common Stock at any one time outstanding shall
be
deemed to include the aggregate maximum number of shares issuable
(subject
to readjustment upon the actual issuance thereof) upon the exercise
of
options, rights or warrants and upon the conversion or exchange of
convertible or exchangeable
securities.
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b.
Upon
each adjustment of the Exercise Price pursuant to this Section 8, the number
of
shares of Common Stock, Class A Warrants and Class B Warrants purchasable upon
the exercise of each Warrant shall be the number derived by multiplying the
respective number of shares of Common Stock, Class A Warrants and Class B
Warrants purchasable immediately prior to such adjustment by the Exercise Price
in effect prior to such adjustment and dividing the product so obtained by
the
applicable adjusted Exercise Price.
c.
In
case of any reclassification or change of outstanding shares of Common Stock
issuable upon exercise of the Warrants (other than a change in par value, or
from par value to no par value, or from no par value to par value or as a result
of a subdivision or combination), or in case of any consolidation or merger
of
the Company with or into another corporation (other than a merger with a
subsidiary in which merger the Company is the continuing corporation and which
does not result in any reclassification or change of the then outstanding shares
of Common Stock or other capital stock issuable upon exercise of the Warrants
(other than a change in par value, or from par value to no par value, or from
no
par value to par value or as a result of subdivision or combination) or in
case
of any sale or conveyance to another corporation of the property of the Company
as an entirety or substantially as an entirety, then, as a condition of such
reclassification, change, consolidation, merger, sale or conveyance, the
Company, or such successor or purchasing corporation, as the case may be, shall
make lawful and adequate provision whereby the registered Holder of each Warrant
then outstanding shall have the right thereafter to receive on exercise of
such
Warrant the kind and amount of securities and property receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a holder
of the number of securities issuable upon exercise of such Warrant immediately
prior to such reclassification, change, consolidation, merger, sale or
conveyance. Such provisions shall include provision for adjustments which shall
be as nearly equivalent as may be practicable to the adjustments provided for
in
Section 8a. The above provisions of this Section 8b. shall similarly apply
to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales or conveyances.
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d.
Irrespective of any adjustments or changes in the Exercise Price or the number
of shares of Common Stock purchasable upon exercise of the Warrants, the Warrant
Certificates theretofore and thereafter issued shall, unless the Company shall
exercise its option to issue new Warrant Certificates, continue to express
the
Exercise Price per share and the number of shares purchasable thereunder as
the
Exercise Price per share and the number of shares purchasable thereunder were
expressed in the Warrant Certificates when the same were originally
issued.
e.
After
each adjustment of the Exercise Price pursuant to this Section 8, the Company
will promptly prepare a certificate signed by the Chairman or President, and
by
the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary, of the Company setting forth: (i) the Exercise Price as so adjusted,
(ii) the number of shares of Common Stock purchasable upon exercise of each
Warrant, after such adjustment, and (iii) a brief statement of the facts
accounting for such adjustment. The Company will promptly cause a brief summary
thereof to be sent by first class mail to each registered Holder at his last
address as it shall appear on the registry books of the Company. No failure
to
mail such notice nor any defect therein or in the mailing thereof shall affect
the validity thereof except as to the holder to whom the Company failed to
mail
such notice, or except as to the holder whose notice was defective. The
affidavit of the Secretary or an Assistant Secretary of the Company that such
notice has been mailed shall, in the absence of fraud, be prima
facie
evidence
of the facts stated therein.
f.
No
adjustment of the Exercise Price shall be made as a result of or in connection
with the issuance or sale of shares of Common Stock pursuant to options,
warrants, stock purchase agreements and convertible or exchangeable securities
outstanding or in effect on the date hereof. In addition, registered Holders
shall not be entitled to cash dividends paid by the Company prior to the
exercise of any Warrant or Warrants held by them.
g.
Definition
of Common Stock.
For the
purpose of this Agreement, the term "Common Stock" shall mean (i) the class
of
stock designated as Common Stock in the Certificate of Incorporation of the
Company as it may be amended as of the date hereof, or (ii) any other class
of
stock resulting from successive changes or reclassification of such Common
Stock
consisting solely of changes in par value, or from par value to no par value,
or
from no par value to par value. In the event that the Company shall after the
date hereof issue securities with greater or superior voting rights than those
of the shares of Common Stock outstanding as of the date hereof, the Holder,
at
its option, may receive upon exercise of any Warrant either shares of Common
Stock or a like number of such securities with greater or superior voting
rights.
h.
Reclassification,
Merger or Consolidation.
The
Company will not merge, reorganize or take any other action which would
terminate the Warrants without first making adequate provision for the Warrants.
In case of any reclassification or change of the outstanding shares of Common
Stock (other than a change in par value to no par value, or from no par value
to
par value, or as a result of a subdivision or combination), or in case of any
consolidation of the Company with, or merger of the Company with, or merger
of
the Company into, another corporation (other than a consolidation or merger
in
which the Company is the continuing corporation and which does not result in
any
reclassification or change of the outstanding Common Stock except a change
as a
result of a subdivision or combination of such shares or a change in par value,
as aforesaid), or in the case of a sale or conveyance to another corporation
or
other entity of the property of the Company as an entirety, the Holder of each
Warrant then outstanding or to be outstanding shall have the right thereafter
(until the expiration of such Warrant) to purchase, upon exercise of such
Warrant, the kind and number of shares of stock and other securities and
property receivable upon such reclassification, change, consolidation, merger,
sale or conveyance as if the Holder were the owner of the shares of Common
Stock
underlying such Warrants immediately prior to any such events at a price equal
to the product of (x) the number of shares issuable upon exercise of the
Warrants and (y) the Exercise Prices in effect immediately prior to the record
date for such reclassification, change, consolidation, merger, sale or
conveyance, as if such Holder has exercised the Warrants. In the event of a
consolidation, merger, sale or conveyance of property, the corporation formed
by
such consolidation or merger, or acquiring such property, shall execute and
deliver to the Holders a supplemental warrant agreement to such effect. Such
supplemental warrant agreement shall provide for adjustments which shall be
identical to the adjustment to those provided in Section 8. The provisions
of
this Section 8(h) shall similarly apply to successive consolidations or
mergers.
8
i.
No
Adjustment of Exercise Prices in Certain Cases.
No
adjustment of the Exercise Prices shall be made:
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(1)
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Upon
the issuance or sale of (i) the Warrants or the Warrant Units; (ii)
the
shares of Common Stock pursuant to the Public Offering; or (iii)
the
shares of Common Stock issuable upon the exercise of the options
or
warrants outstanding or in effect on the date hereof as described
in the
prospectus relating to the Public
Offering.
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(2)
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If
the amount of said adjustments shall be less than five ($.05) cents
per
Unit, provided,
however,
that 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 of
and
together with the next subsequent adjustment which, together with
any
adjustment so carried forward, shall amount to at least five ($.05)
cents
per Share.
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j.
Dividends
and Other Distributions.
In the
event that the Company shall at any time prior to the exercise of all the
Warrants declare a dividend (other than a dividend consisting solely of shares
of Common Stock) or otherwise distribute to its stockholders any assets,
property, rights, evidences of indebtedness, securities (other than shares
of
Common Stock), whether issued by the Company or by another, or any other thing
of value, the Holders of the unexercised Warrants shall thereafter be entitled,
in addition to the shares of Common Stock or other securities and property
receivable upon the exercise thereof, to receive, upon the exercise of such
Warrants, the same property, assets, rights, evidences of indebtedness,
securities or any other thing of value that they would have been entitled to
receive at the time of such dividend or distribution as if the Warrants had
been
exercised immediately prior to such dividend or distribution. At the time of
any
such dividend or distribution, the Company shall make appropriate reserves
to
ensure the timely performance of the provisions of this Section 8
(j).
k.
Subscription
Rights for Shares of Common Stock of Other Securities.
In the
event that the Company or an affiliate of the Company shall at any time after
the date hereof and prior to the exercise of all the Warrants issue any rights
to subscribe for shares of Common Stock or any other securities of the Company
or of such affiliate to all the stockholders of the Company, the Holders of
the
unexercised Warrants shall be entitled to receive, in addition to the Warrant
Units receivable upon the exercise of the Warrants, such rights at the time
such
rights are distributed to the other stockholders of the Company.
9.
Exchange
and Replacement of Warrant Certificates.
Each
Warrant Certificate is exchangeable without expense, upon the surrender thereof
by the registered Holder at the principal executive office of the Company,
for a
new Warrant Certificate of like tenor and date representing in the aggregate
the
right to purchase the same number of Shares in such denominations as shall
be
designated by the Holder thereof at the time of such surrender. Upon receipt
by
the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of any Warrant Certificate, and, in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it,
and reimbursement to the Company of all reasonable expenses incidental thereto,
and upon surrender and cancellation of the Warrants, if mutilated, the Company
will make and deliver a new Warrant Certificate of like tenor, in lieu
thereof.
9
10.
Elimination
of Fractional Interests.
The
Company shall not be required to issue certificates representing fractions
of
Units upon the exercise of the Warrants, nor shall it be required to issue
scrip
or pay cash in lieu of fractional interests; provided,
however,
that if
a Holder exercises all Warrants held of record by such Holder the fractional
interests shall be eliminated by rounding any fraction up to the nearest whole
number of Shares.
11.
Reservation
and Listing of Securities.
The
Company shall at all times reserve and keep available out of its authorized
shares of Common Stock, solely for the purpose of issuance upon the exercise
of
the Warrants, such number of shares of Common Stock as shall be issuable upon
the exercise or conversion thereof (including, but not limited to, the shares
of
Common Stock underlying the Class A Warrants and Class B Warrants). The Company
covenants and agrees that, upon exercise of the Warrants and payment of the
Exercise Price therefor, all the Warrant Units issuable upon such exercise
shall
be duly and validly issued, fully paid, nonassessable and not subject to the
preemptive rights of any stockholder. As long as the Warrants shall be
outstanding, the Company shall use its best efforts to cause the Common Stock
to
be listed and quoted (subject to official notice of issuance) on all securities
exchanges on which the Common Stock issued to the public in connection herewith
may then be listed or quoted.
12.
Notices
to Warrant Holders.
Nothing
contained in this Agreement shall be construed as conferring upon the Holders
the right to vote or to consent or to receive notice as a stockholder in respect
of any meetings of stockholders for the election of directors or any other
matter, or as having any rights whatsoever as a stockholder of the Company.
If,
however, at any time prior to the expiration of the Warrants and their exercise,
any of the following events shall occur:
a.
the
Company shall take a record of the holders of its shares of Common Stock for
the
purpose of entitling them to receive a dividend or distribution payable
otherwise than in cash, or a cash dividend or distribution payable otherwise
than out of current or retained earnings, as indicated by the accounting
treatment of such dividend or distribution on the books of the Company;
or
b.
the
Company shall offer to all the holders of its Common Stock any additional shares
of capital stock of the Company or securities convertible into or exchangeable
for shares of capital stock of the Company, or any option, right or warrant
to
subscribe therefor; or
c.
a
dissolution, liquidation or winding up of the Company (other than in connection
with a consolidation or merger) or a sale of all or substantially all of its
property, assets and business as an entirety shall be proposed;
then,
in
any one or more of said events, the Company shall give written notice of such
event at least fifteen (15) days prior to the date fixed as a record date or
the
date of closing the transfer books for the determination of the stockholders
entitled to such dividend, distribution, convertible or exchangeable securities
or subscription rights, or entitled to vote on such proposed dissolution,
liquidation, winding up or sale. Such notice shall specify such record date
or
the date of closing the transfer books, as the case may be. Failure to give
such
notice or any defect therein shall not affect the validity of any action taken
in connection with the declaration or payment of any such dividend, or the
issuance of any convertible or exchangeable securities, or subscription rights,
options or warrants, or any proposed dissolution, liquidation, winding up or
sale.
10
13.
Notices.
All
notices, requests, consents and other communications hereunder shall be in
writing and shall be deemed to have been duly made when delivered, or mailed
by
registered or certified mail, return receipt requested:
a.
If to
the registered Holder of the Warrants, to the address of such Holder as shown
on
the books of the Company; or
b.
If to
the Company to the address set forth in Section 3 hereof or to such other
address as the Company may designate by notice to the Holders.
14.
Supplements
and Amendments.
The
Company and the Underwriters may from time to time supplement or amend this
Agreement without the approval of any Holders of Warrant Certificates (other
than the Underwriters) in order to cure any ambiguity, to correct or supplement
any provision contained herein which may be defective or inconsistent with
any
provisions herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Company and NSL may deem necessary or
desirable and which the Company and the Underwriters deem shall not adversely
affect the interests of the Holders of Warrant Certificates.
15.
Successors.
All the
covenants and provisions of this Agreement shall be binding upon and inure
to
the benefit of the Company, the Underwriters, the Holders and their respective
successors and assigns hereunder.
16.
Termination.
This
Agreement shall terminate at the close of business on ________, 20__.
Notwithstanding the foregoing, the indemnification provisions of Section 7
shall
survive such termination until the close of business on the later of the
expiration of any applicable statue of limitations or _______,
20__.
17.
Governing
Law; Submission to Jurisdiction.
This
Agreement and each Warrant Certificate issued hereunder shall be deemed to
be a
contract made under the laws of the State of New York and for all purposes
shall
be construed in accordance with the laws of said State without giving effect
to
the rules of said State governing the conflicts of laws, except that matters
concerning the validity of the issuance of securities shall be determined and
construed in accordance with the laws of the State of Delaware. The Company,
the
Underwriters and the Holders hereby agree that any action, proceeding or claim
against it arising out of, or relating in any way to, this Agreement shall
be
brought and enforced in the courts of the State of New York or of the United
States of America for the Southern District of New York, and irrevocably submits
to such jurisdiction, which jurisdiction shall be exclusive. The Company, the
Underwriters and the Holders hereby irrevocably waive any objection to such
exclusive jurisdiction or inconvenient forum. Any such process or summons to
be
served upon any of the Company, the Underwriters and the Holders (at the option
of the party bringing such action, proceeding or claim) may be served by
transmitting a copy thereof, by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
13 hereof. Such mailing shall be deemed personal service and shall be legal
and
binding upon the party so served in any action, proceeding or
claim.
18.
Entire
Agreement; Modification.
This
Agreement (including the Underwriting Agreement to the extent portions thereof
are referred to herein) contains the entire understanding between the parties
hereto with respect to the subject matter hereof. Subject to Section 14, this
Agreement may not be modified or amended except by a writing duly signed by
the
party against whom enforcement of the modification or amendment is
sought.
11
19.
Severability.
If any
provision of this Agreement shall be held to be invalid or unenforceable, such
invalidity or unenforceability shall not affect any other provision of this
Agreement.
21.
Captions.
The
caption headings of the Sections of this Agreement are for convenience of
reference only and are not intended, nor should they be construed as, a part
of
this Agreement and shall be given no substantive effect.
22.
Benefits
of This Agreement.
Nothing
in this Agreement shall be construed to give to any person or corporation,
other
than the Company and the Underwriters and any other registered Holder(s) of
the
Warrant Certificates or Warrant Units, any legal or equitable right, remedy
or
claim under this Agreement; and this Agreement shall be for the sole and
exclusive benefit of the Company and the Underwriters and any other Holder(s)
of
the Warrant Certificates or Warrant Units.
23.
Counterparts.
This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and such
counterparts shall together constitute but one and the same
instrument.
24.
Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the Company, the
Underwriters and their successors and assigns and the Holders from time to
time
of the Warrant Certificate(s) or any of them.
In
Witness Whereof,
the
parties hereto have caused this Agreement to be duly executed, as of the day
and
year first above written.
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Noninvasive
Medical Technologies, Inc.
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| By: | ||
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▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, CEO
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US
Euro Securities, Inc.
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| By: | ||
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, CEO
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12
EXHIBIT
A
Noninvasive
Medical Technologies, Inc.
Warrant
Certificate
The
securities issuable upon exercise of the Warrant represented by this Certificate
may not be offered or sold except pursuant to (i) an effective registration
statement under the Securities Act of 1933, as amended (the "1933 Act"), (ii)
to
the extent applicable, Rule 144 under such Act (or any similar Rule under such
Act relating to the disposition of securities), or (iii) an opinion of counsel,
if such opinion shall be reasonably satisfactory to counsel for the Issuer,
that
an exemption from registration under such Act is
available.
The
securities represented by this certificate may not be offered for sale or sold
except pursuant to (i) an effective registration statement under the 1933 Act,
or (ii) an opinion of counsel, if such opinion shall be reasonably satisfactory
to counsel to the issuer, that an exemption from registration under such 1933
Act is available.
The
transfer or exchange of the Warrant represented by this Certificate is
restricted in accordance with the Warrant Agreement referred to
herein.
Exercisable
Commencing ___________, 2007 Through 5:00 P.M., New York time ________,
20__.
| No. WC-__ |
_________
Warrants
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This
Warrant Certificate certifies that ______________ _______________ or registered
assigns, is the registered holder of _________ warrants (the "Warrants") to
purchase initially, at any time from ____________, 2007, until 5:00 p.m., New
York time on __________, 20__ (the "Expiration Date"), up to ________ fully
paid
and non-assessable units ("Units"), of Noninvasive Medical Technologies, Inc.,
a
Delaware corporation (the "Company"), consisting of two shares of the Company’s
common stock, $$0.0001 par value (the "Common Stock"), one Redeemable Class
A
Warrant (the “Class A Warrant”) and one Non-Redeemable Class B Warrant (the
“Class B Warrant”), each having the terms described in the Company’s
registration statement relating to same as filed with the Securities and
Exchange Commission, at the exercise price of $_____ per Unit (the "Exercise
Price"), upon the surrender of this Warrant Certificate and payment of the
Exercise Price at an office or agency of the Company, but subject to the
conditions set forth herein and in the Warrant Agreement dated as of
_________________, 2007 (the "Warrant Agreement") by and between the Company
and
US Euro Securities, Inc. Payment of the Exercise Price shall be made by
certified or cashier's check or money order payable to the order of the Company.
No
Warrant may be exercised after 5:00 P.M, New York time, on the Expiration Date,
at which time all Warrants evidenced hereby, unless exercised prior thereto,
shall thereafter be void.
The
Warrants evidenced by this Warrant Certificate are part of a duly authorized
issue of Warrants issued pursuant to the Warrant Agreement, which Warrant
Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations duties and immunities thereunder of the Company and
the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
The
Warrant Agreement provides that upon the occurrence of certain events the
Exercise Price and the type and/or number of the Company's securities issuable
thereupon may, subject to certain conditions, be adjusted. In such event, the
Company will, at the request of the holder, issue a new Warrant Certificate
evidencing the adjustment in the Exercise Price and the number and/or type
of
securities issuable upon the exercise of the Warrants; provided,
however,
that
the failure of the Company to issue such new Warrant Certificates shall not
in
any way change, alter, or otherwise impair, the rights of the holder as set
forth in the Warrant Agreement.
Upon
due
presentment for registration of transfer of this Warrant Certificate at an
office or agency of the Company, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee(s) in exchange as provided herein,
without any charge except for any tax or other governmental charge imposed
in
connection with such transfer.
Upon
the
exercise of less than all of the Warrants evidenced by this Certificate, the
Company shall forthwith issue to the holder hereof a new Warrant Certificate
representing such number of unexercised Warrants.
The
Company may deem and treat the registered holder(s) hereof as the absolute
owner(s) of this Warrant Certificate (notwithstanding any notation of ownership
or other writing hereon made by anyone), for the purpose of any exercise hereof,
and of any distribution to the holder(s) hereof, and for all other purposes,
and
the Company shall not be affected by any notice to the contrary.
All
terms
used in this Warrant Certificate which are defined in the Warrant Agreement
shall have the meanings assigned to them in the Warrant Agreement.
In
Witness Whereof,
the
undersigned has executed this certificate this ___st day of ___________,
2007.
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[Seal]
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Noninvasive
Medical Technologies, Inc.
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| By: | ||
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▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, CEO
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Attest:
By:
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FORM
OF
ASSIGNMENT
(To
be
executed by the registered holder if such holder
desires
to transfer the Warrant Certificate.)
For
Value Received
____________________________________________ hereby sells, assigns and transfers
unto __________________________________________
(Please
print name and address of transferee)
this
Warrant Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint ____________________ Attorney,
to
transfer the within Warrant Certificate on the books of Noninvasive Medical
Technologies, Inc., with full power of substitution.
Dated:____________________
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Signature_____________________
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(Signature
must conform in all
respects
to the name of holder
as
specified on the face of the
Warrant
Certificate.)
______________________________
(Insert
Social Security or Other
Identifying
Number of Holder)
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FORM
OF
ELECTION
TO
PURCHASE
The
undersigned hereby irrevocably elects to exercise the right, represented by
this
Warrant Certificate, to purchase:
_______
Shares
and
herewith tenders in payment for such securities a certified or cashier's check
or money order payable to the order of Noninvasive Medical Technologies, Inc.
in
the amount of $_______________, all in accordance with the terms hereof. The
undersigned requests that a certificate for such securities be registered in
the
name of _____________________ whose address is ______________________________
and that such Certificate be delivered to _____________________________ whose
address is___________.
Dated:____________________
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Signature_____________________
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(Signature
must conform in all
respects
to the name of holder
as
specified on the face of
the
Warrant Certificate.)
______________________________
(Insert
Social Security or Other
Identifying
Number of Holder)
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