Exhibit 4(d)
Neither this Warrant nor the securities issuable upon exercise hereof have been
registered under the Securities Act of 1933, as amended, or under any state
securities laws and may not be transferred in violation of such act or laws, the
rules and regulations thereunder and the provisions of this Warrant.
WARRANT TO PURCHASE (# ) SHARES
OF COMMON STOCK OF
LIFEPOINT, INC.
Issued to
GRUNTAL & CO. L.L.C.
April 2, ▇▇▇▇
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▇▇▇▇▇▇▇▇▇, INC.
(Incorporated under the laws of the State of Delaware)
This certifies that (the "Warrant Holder") is the owner of a Warrant, subject
to adjustment as provided in Section 3 hereof, which entitles the owner thereof
to purchase, in whole or in part, and from time to time, as provided in Section
1 hereof, fully paid and nonassessable shares of the common stock, $.001 par
value (the "Common Stock") of LifePoint, Inc., a Delaware corporation (the
"Company"), at the purchase price of $4.50 per share (the "Purchase Price"),
subject to adjustment as provided in Section 3 hereof, payable in lawful money
of the United States of America upon surrender of this Warrant at the principal
office of the Company (currently ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ 91761) or
at such other place as the Company may designate by written notice to the
Warrant Holder. On the date hereof, the Warrant Holder paid the Company an
aggregate price of $100 in consideration for the Warrant.
1. Exercise
The Warrant evidenced hereby is immediately exercisable as to shares of the
Common Stock and shall terminate at 5:00 p.m., California time, on April 2,
2007; provided, however, that in no event may any fractional share of the Common
Stock be issued. In the event that a fractional share would otherwise be issued
as a result of any adjustment made pursuant to Section 3 hereof or otherwise,
payment of such fractional share shall be made on the basis of the Market Price
on the date of exercise. For the purpose of this Section 1, the term "Market
Price" shall mean (a) if the Common Stock is traded on a national securities
exchange or on The Nasdaq Stock Market, Inc., the closing sales price (or, if no
sales on that day, the high bid price) or (b) if the Common Stock is not traded
as provided in subsection (a), the closing bid price as reported in the OTC
Bulletin Board of the National Association of Securities Dealers, Inc. or in the
pink sheets as reported by an organization performing the services previously
furnished by the National Quotation Bureau, Inc.
Upon any exercise of the Warrant evidenced hereby, the form of election to
purchase set forth as Exhibit A hereto shall be properly completed, executed,
and delivered to the Company, together with a certified check or bank draft in
full payment to the Company of the Purchase Price for the shares as to which the
Warrant is exercised. In addition and in lieu of any cash payment, the Warrant
Holder shall have the right at any time, and from time to time, to exercise the
Warrant in full or in part by surrendering the Warrant in exchange for the
number of shares of Common Stock equal to the product of (x) the number of
shares of Common Stock as to which the Warrants are being exercised multiplied
by (y) a fraction, the numerator of which is the Market Price (as defined above
in this Section 1) of the shares of Common Stock less the Purchase Price and the
denominator of which is such Market Price. In the event that there is only a
partial exercise of the Warrant evidenced hereby, there shall be issued to the
Warrant Holder a new Warrant Certificate, in all respects similar to this
Warrant Certificate, evidencing the number of shares of the Common Stock still
available for exercise.
As soon as practicable after the warrant exercise and upon the receipt of full
payment and properly completed documentation, but in any event within five (5)
business days, the Company, at its sole cost and expense (including the payment
of any applicable issuance taxes) shall then cause the Transfer Agent for the
Common Stock to issue and deliver certificates evidencing fully paid and
nonassessable shares of the Common Stock as are represented by the exercise.
If this Warrant shall be surrendered upon exercise within any period during
which the transfer books for the Common Stock are closed for any purpose, the
Company shall not be required to make delivery of certificates for shares of the
Common Stock until the date of the reopening of said transfer books.
2. Expiration Date
The Warrant evidenced hereby may not be exercised after the expiration date set
forth in Section 1 hereof with respect to the shares of the Common Stock as to
which the Warrant may be exercised and, to the extent any such shares are not
exercised by such expiration date, the Warrant evidenced hereby shall become
void.
3. 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. At such time, the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be issuable upon
such exercise as provided in Section 1.3 shall be deemed to have become the
stockholder(s) of record thereof.
4. Representations of Warrant Holder. The Warrant Holder represents,
warrants and acknowledges to the Company that:
(a) it is an accredited investor within the meaning of Regulation D
promulgated under the Securities Act of 1933;
(b) it has been furnished with and has carefully read all documents that
the Holder has deemed necessary in connection with its investment in the Warrant
and is aware of the merits and risks of an investment in the Warrant to be
purchased by it and, due to its knowledge and experience in financial and
business matters, is capable of evaluating the merits and risks of such
investment;
(c) it has been given the opportunity to ask questions of, and receive
answers from, the Company (including its authorized representatives) concerning
the terms and conditions of the Warrant to be purchased by it and other matters
pertaining to an investment in the Warrant, in order for the Warrant holder to
evaluate the merits and risks of an investment in the Warrant to be purchased by
it to the extent the Company possesses such information or can acquire it
without unreasonable effort or expense;
(d) it is aware this Warrant has not been registered under the Securities
Act, or any state securities or blue sky laws and, therefore, the Warrant cannot
be resold unless it is registered under such laws or unless an exemption from
registration thereunder is available;
(e) it is purchasing the Warrant for its own account for investment, and
not with a view to, or for resale in connection with the distribution thereof,
and has no present intention of distributing or reselling the Warrant; and
(f) in making the foregoing representations, it is aware that it must
bear, and is able to bear, the economic risk of such investment for an
indefinite period of time
5. Representations of the Company. The Company represents, warrants and
acknowledges to the Holder that:
(a) it is a corporation duly formed and validly existing in the State of
Delaware;
(b) 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
common stock from time to time issuable upon the exercise of all Warrants at the
time outstanding. All such securities shall be duly authorized and, when issued
upon such exercise, shall be validly issued and, in the case of shares, fully
paid and non-assessable with no liability on the part of the holders thereof.
(c) this Warrant has been duly authorized and approved by all requisite
action of the Company, and constitutes a valid and binding agreement of the
Company; and
(d) when issued in accordance with the terms of this Warrant, the shares
of Common Stock covered by this Warrant will be duly authorized and validly
issued, fully paid and non-assessable.
6. Adjustments
Subject to the provisions of this Section 6, the Purchase Price and the shares
of the Common Stock as to which the Warrant may be exercised shall be subject to
adjustments from time to time as hereinafter set forth:
(a) If at any time, or from time to time prior to the termination date,
the Company shall, by stock split, reverse stock split, subdivision,
consolidation, or reclassification of shares or otherwise, change as a whole the
outstanding shares of the Common Stock into a different number or class of
shares, the number and class of shares so changed shall replace the shares
outstanding immediately prior to such change and the Purchase Price and the
number of shares purchasable under the Warrant immediately prior to the date on
which such change shall become effective shall be proportionately adjusted.
(b) Irrespective of any adjustments or change in the Purchase Price or
the number of securities actually purchasable under the Warrant, the Warrant
theretofore and thereafter issued may continue to express the exercise price and
the number of securities purchasable thereunder as the Purchase Price and the
number of securities purchasable as expressed in the Warrant when initially
issued.
(c) If at any time while the Warrant is outstanding, the Company shall
consolidate with, or merge into, another corporation, firm, or entity, or
otherwise enter into a form of business combination, the Warrant Holder shall
thereafter be entitled upon exercise thereof to purchase, with respect to each
security purchasable thereunder immediately prior to the date on which such
consolidation or merger or other form of business combination shall become
effective, the securities or property to which a holder of one such security
would have been entitled upon such consolidation or merger or other form of
business combination, without any change in, or payment in addition to, the
Purchase Price in effect immediately prior to such consolidation or merger or
other form of business combination, and the Company shall take such steps in
connection with such consolidation or merger or other form of business
combination as may be necessary to assure that all the provisions of the Warrant
shall thereafter be applicable, as nearly as reasonably may be, in relation to
any securities or property thereafter deliverable upon the exercise of the
Warrants. The Board of Directors of the Company, in its discretion, may, at any
time during the exercise period of the Warrant, extend the exercise period or
reduce the Purchase Price for the Warrants) Upon the happening of any event
requiring the adjustment of the exercise price hereunder, the Company shall
forthwith give written notice thereof to the registered holder of the Warrant
stating the adjusted Purchase Price and the adjusted number of securities
purchasable upon the exercise thereof resulting from such event and setting
forth in reasonable detail the method of calculation and the facts upon which
such calculation is based. The certificate of the Company's independent public
accountants shall be conclusive evidence of the correctness of any computation
made hereunder.
7. De Minimis Adjustments. No adjustment in the number of shares of common
stock purchasable hereunder shall be required unless such adjustment would
require an increase or decrease of at least one percent (1%) in the number of
shares of common stock purchasable upon the exercise of each Warrant; provided,
however, that any adjustments which by reason of this Section 7 are not required
to be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations shall be made to the nearest one-ten-billionth of a
share.
8. Notice to Warrant Holder
Nothing contained herein shall be construed as conferring upon the Warrant
Holder the right to vote or to consent or to receive notice as a stockholder in
respect of the meetings of stockholders for the election of directors of the
Company or any other matter, or any other rights whatsoever as a stockholder of
the Company; provided, however, that in the event that:
(a) the Company shall take action to make any distribution (other than
cash dividends payable out of earnings or earned surplus) on the Common Stock;
(b) the Company shall take action to offer for subscription pro rata to
the holders of the Common Stock any additional shares of stock of any class or
other rights or securities convertible into the Common Stock;
(c) the Company shall take action to accomplish any capital
reorganization, or reclassification of the capital stock of the Company (other
than a change in par value, or a change from par value to no par value, or a
change from no par value to par value, or a subdivision or combination of the
Common Stock), or a consolidation or merger of the Company into, or a sale of
all or substantially all of its assets to, another corporation; and the Company
shall take action looking to a voluntary dissolution, liquidation or winding up
of the Company; then, in any one or more of such cases, the Company shall, (x)
at least 10 days prior to the date on which the books of the Company shall close
or a record date shall be taken for such distribution or subscription rights or
for determining rights to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, cause notice thereof to be sent to the Warrant Holder at the address
appearing on the Warrant register of the Company and, (y) in the case of any
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, cause at least 10 days' prior written notice of the
date when the same shall take place to be given to the Warrant Holder in the
same manner. Such notice in accordance with the foregoing clause (x) shall also
specify, in the case of any such distribution or subscription rights, the date
on which the holders of the Common Stock shall be entitled thereto, and such
notice in accordance with the foregoing clause (y) shall also specify the date
on which the holders of the Common Stock shall be entitled to exchange their
shares of the Common Stock for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, as the case may be. Failure to give such notice or
any defect therein shall not affect the legality or validity of any of the
matters set forth in this Section 4 inclusive.
9. Transfers and Exchanges
The Company shall transfer, from time to time, any outstanding Warrant upon the
books to be maintained by the Company for that purpose, upon surrender thereof
for transfer properly endorsed or accompanied by appropriate instructions for
transfer. Upon any such transfer, a new Warrant shall be issued to the
transferee and the surrendered Warrant shall be canceled by the Company. The
Warrant so canceled shall be delivered to the Company from time to time upon
request. Warrants may be exchanged at the option of the holder thereof, when
surrendered at the office of the Company, for another Warrant, or other Warrants
of different denominations, of like tenor and representing in the aggregate the
rights to purchase a like number of shares. Anything in this section 6 to the
contrary notwithstanding, no transfer shall be made if such transfer would
violate Section 5 of the Securities Act.
10. Payment of Taxes
The Company will pay any documentary stamp taxes attributable to the initial
issuance of the Common Stock issuable upon the exercise of the Warrant;
provided, however, that the Company shall not be required to pay any tax or
taxes which may be payable in respect of any transfer involved in the issue or
delivery of any certificates for the Common Stock in a name other than that of
the registered holder of the Warrant in respect of which shares are issued, and
in such case the Company shall not be required to issue or deliver any
certificates for the Common Stock or any Warrant for remaining shares until the
person requesting the same has paid to the Company the amount of such tax or has
established to the Company's satisfaction that such tax has been paid.
11. Mutilated or Missing Warrant
In case the Warrant shall be mutilated, lost, stolen, or destroyed, the Company
may in its discretion issue and deliver in exchange and substitution for, and
upon cancellation of, the mutilated Warrant, or in lieu of, and in substitution
for, the Warrant lost, stolen, or destroyed, a new Warrant of like tenor and
representing an equivalent right or interest, but only upon receipt of evidence
satisfactory to the Company of such loss, theft, or destruction of such Warrant.
Applicants for such substitute Warrant shall also comply with such other
reasonable regulations and pay such reasonable charges as the Company may
prescribe.
12. Reserve
The Company covenants and agrees that, from time to time, there will be
authorized and available for delivery a sufficient number of its shares of the
Common Stock or other securities into which the Warrant is then exercisable to
permit the exercise of the Warrant at the time outstanding as and when the
certificates shall, from time to time, be deliverable in accordance with Section
1 hereof. In the event that there are insufficient shares or other securities
for such purpose, the Company shall use its best efforts to seek stockholder
approval for an Amendment to the Company's Certificate of Incorporation and/or
to take such other action as is necessary or appropriate to cause such shares or
other securities to be authorized.
13. Governing Law
The Warrant evidenced hereby shall be construed and enforced in accordance with
the laws of the State of Delaware applicable to contracts made and to be
performed in that State, without giving effect to any principles of conflicts of
laws.
IN WITNESS WHEREOF, LifePoint, Inc. has caused this Warrant to be signed
manually by a duly authorized officer.
Dated:_____________ LIFEPOINT, INC.
By:______________________
Exhibit A
ELECTION TO PURCHASE
To: LifePoint, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The undersigned hereby irrevocably elects to exercise the Warrant represented
by the within Warrant Certificate to purchase shares of the Common Stock
issuable upon the exercise of the Warrant and requests that certificates for
such shares shall be issued in the name of:
(Name)_______________________ (Taxpayer Number)_________________________
(Address)____________________________________________________________
and be delivered to (Name)___________________________________________
at (Address)_________________________________________________________
and delivered to the undersigned at the address below stated.
Date , 20
Name of holder of Warrant Certificate:
(Name)________________________________________________
(Address)______________________________________________________
(Signature)__________________________________________
Note: The above signature must correspond
with the name as written upon the face of
this Warrant Certificate in every particular,
without alteration or enlargement or any
change whatever.