Exhibit 10.1(c)
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAWS OF ANY STATE (THE "ACT ") AND MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN
EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACTS OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
No. W___
WARRANT TO PURCHASE COMMON STOCK
OF
NOMOS CORPORATION
This certifies that, for value received, Sunrise Securities Corp., a
Delaware corporation, or its registered assignee ("HOLDER"), is entitled,
subject to the terms set forth below, to purchase from NOMOS Corporation (the
"COMPANY"), a Delaware corporation, shares (the "Shares") of the Common Stock of
the Company ("COMMON STOCK"), as constituted on the date hereof (the "WARRANT
ISSUE DATE"), with the Notice of Exercise attached hereto duly executed, and
simultaneous payment therefor in lawful money of the United States, at the
Exercise Price as set forth in Section 2 below. The number, character and
Exercise Price of such shares of Common Stock are subject to adjustment as
provided below.
1. TERM OF WARRANT AND PRICE OF WARRANT.
1.1 This Warrant shall be exercisable, in whole or in part, during the
term commencing on September ___2000 and ending on September ___, 2004.
1.2 WARRANT PRICE. The Warrant shall have a purchase price of $0.001
per share.
2. EXERCISE PRICE AND NUMBER OF SHARES.
2.1 EXERCISE PRICE. The exercise price at which this Warrant may be
exercised shall be $10.00 per share of Common Stock, as adjusted from time to
time pursuant to Section 10 hereof (the "Exercise Price").
2.2 Number of Shares. The number of shares of Common Stock which may
be purchased pursuant to this Warrant shall be ______ shares, as adjusted from
time to time pursuant to Section 10 hereof.
3. EXERCISE OF WARRANT.
(a) The purchase rights represented by this Warrant are exercisable by
the Holder in whole or in part at any time during the term of this Warrant, or
from time to time, by the surrender of this Warrant and the Cash Exercise Form
or the Cashless Exercise Form, as the case may be, annexed hereto duly completed
and executed on behalf of the Holder, at the office of the Company (or such
other office or agency of the Company as it may designate by notice in writing
to the Holder at the address of the Holder appearing on the books of the
Company) upon payment in cash or by check acceptable to the Company. In lieu of
the payment of the Exercise Price in cash, the Holder shall have the right (but
not the obligation), during the Exercise Period, to require the Company to
convert this Warrant, in whole or in part, into the Warrant Shares as provided
for in this Section (the "Conversion Right"). Upon exercise of the Conversion
Right, the Company shall deliver to the Holder (without payment by the Holder of
the Exercise Price) that number of shares of Common Stock equal to (i) the
number of Shares issuable upon exercise of the portion of the Warrant being
converted, multiplied by (ii) the quotient obtained by dividing (x) the value of
the Warrant (on a per Share basis) at the time the Conversion Right is exercised
(determined by subtracting the Exercise Price from the Current Market Price (as
defined below), for the shares of Common Stock issuable upon exercise of the
Warrant immediately prior to the exercise of the Conversion Right) by (y) the
Current Market Price of one share of Common Stock immediately prior to the
exercise of the Conversion Right. The Conversion Rights provided under this
Section may be exercised in whole or in part and at any time and from time to
time while any Warrants remain outstanding. In order to exercise the Conversion
Right, the Holder shall surrender to the Company, at its offices, this Warrant
accompanied by the form of Subscription Agreement duly filled in and signed and
a duly completed Conversion Notice in the form attached hereto. The presentation
and surrender shall be deemed a waiver of the Holder's obligation to pay all or
any portion of the aggregate purchase price payable for the Shares being issued
upon such exercise of this Warrant. This Warrant (or so much thereof as shall
have been surrendered for conversion) shall be deemed to have been converted
immediately prior to the close of business on the day of surrender of this
Warrant for conversion in accordance with the foregoing provisions.
(b) The "CURRENT MARKET PRICE" per Share on any date shall be deemed
to be the average of the daily closing prices for the five (5) consecutive
trading days immediately preceding the date in question. The closing price for
each day shall be the last reported sales price regular way or, in case no such
reported sale takes place on such day, the closing bid price regular way, in
either case on the principal national securities exchange on which the Common
Stock is listed or admitted to trading or, if the Common Stock is not listed or
admitted to trading on any national securities exchange, the highest reported
bid price for the Common Stock as furnished by the National Association of
Securities Dealers, Inc. through NASDAQ or a similar organization if NASDAQ is
no longer reporting such information. If on any such date
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the Common Stock is not listed or admitted to trading on any national securities
exchange and is not quoted by NASDAQ or any similar organization, the fair value
of a share of Common Stock on such date, as determined in good faith by the
Board of Directors of the Company, whose determination shall be conclusive
absent manifest error, shall be used.
(c) This Warrant shall be deemed to have been exercised or converted,
as the case may be, immediately prior to the close of business on the date of
its surrender for exercise or conversion, as provided above, and the person
entitled to receive the shares of Common Stock issuable upon such exercise shall
be treated for all purposes as the holder of record of such shares as of the
close of business on such date. As promptly as practicable on or after such
date, the Company at its expense shall issue and deliver to the person or
persons entitled to receive the same a certificate or certificates for the
number of shares issuable upon such exercise or conversion. In the event that
this Warrant is exercised in part, the Company at its expense will execute and
deliver a new Warrant of like tenor exercisable for the number of shares for
which this Warrant may then be exercised.
(d) If this Warrant is exercised in part this Warrant must be
exercised or converted, as the ease may be, for a number of whole shares of the
Common Stock.
4. REPLACEMENT OF WARRANT. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft destruction or mutilation of this Warrant and,
in the case of loss, theft or destruction, on delivery of an indemnity agreement
reasonably satisfactory in form and substance to the Company or, in the case of
mutilation, on surrender and cancellation of this Warrant, the Company at its
expense shall execute and deliver, in lieu of this Warrant, a new warrant of
like tenor and amount.
5. RIGHTS OF STOCKHOLDERS. The Holder shall not be entitled to vote or
receive dividends or be deemed the holder of Common Stock, nor shall anything
contained herein be construed to confer upon the Holder, as such, any of the
rights of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par
value, or change of stock, to no par value, consolidation, merger, conveyance or
otherwise) or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise until and to the extent the Warrant shall have
been exercised as provided herein.
6. TRANSFER OF WARRANT.
6.1 EXCHANGE OF WARRANT UPON A TRANSFER. Upon delivery by the
transferee of a written agreement to be bound by the terms of this Warrant and
surrender of this Warrant for exchange, properly endorsed and transferred in
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accordance with this Section 6, the Company at its expense shall issue to or on
the order of the Holder a new warrant or warrants of like tenor, in the name of
the Holder or as the Holder (on payment by the Holder of any applicable transfer
taxes) may direct, of the number of shares issuable upon exercise hereof.
6.2 RESTRICTIONS ON TRANSFER; COMPLIANCE WITH SECURITIES LAWS.
(a) The Holder of this Warrant, by acceptance hereof, acknowledges that this
Warrant and the shares of Common Stock to be issued upon exercise hereof are
being acquired solely for the Holder's own account and not as a nominee for any
other party, and for investment and agrees to comply with the transfer
restrictions contained in this Section 6.2. The Holder will not offer, sell or
otherwise dispose of this Warrant or any shares of Common Stock to be issued
upon exercise hereof ("SHARES"), except under circumstances that will not result
in a violation of applicable federal and state securities laws. Prior to
offering, selling or otherwise disposing of the Warrants or Shares, the holder
hereof or thereof will give the Company a written notice describing the manner
and circumstances of the transfer accompanied by, if requested by the Company, a
written opinion of legal counsel satisfactory to the Company to the effect, as
amended, that the proposed transfer may be effected without registration under
the Securities Act of 1933 or any state blue sky law, Any Warrant or Shares
transferred in violation of applicable federal and state securities laws shall
be void and not recognized by the Company. Any transferee of this Warrant or
Shares shall execute an agreement agreeing to be bound by the terms of this
Section 6.
(b) All shares of Common Stock issued upon exercise hereof shall be
stamped or imprinted with a legend in substantially the following form (in
addition to any legend required by state securities laws):
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
UNITED STATES FEDERAL OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED
FOR SALE, SOLD OR OTHERWISE TRANSFERRED OR ASSIGNED FOR VALUE,
DIRECTLY OR INDIRECTLY, NOR MAY THE SECURITIES BE TRANSFERRED ON THE
BOOKS OF THE COMPANY, WITHOUT REGISTRATION OF SUCH SECURITIES UNDER
ALL APPLICABLE UNITED STATES FEDERAL SECURITIES LAWS OR COMPLIANCE
WITH AN APPLICABLE EXEMPTION THEREFROM, SUCH COMPLIANCE AT THE OPTION
OF THE COMPANY, TO BE EVIDENCED BY AN OPINION OF SHAREHOLDER'S
COUNSEL, IN FORM ACCEPTABLE TO THE COMPANY, THAT NO VIOLATION OF SUCH
REGISTRATION
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PROVISIONS WOULD RESULT FROM ANY PROPOSED TRANSFER OR ASSIGNMENT."
7. REGISTRATION RIGHTS.
7.1 CERTAIN DEFINITIONS.
As used in this Section 7, the following terms shall have the
following respective meanings:
"COMMISSION" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"FORM S 1" shall mean Form S- I issued by the Commission or any substantially
similar form then in effect.
"FORM S-2" shall mean Form S-2 issued by the Commission or any substantially
similar form then in effect.
"FORM S-3" shall mean Form S-3 issued by the Commission or any substantially
similar form then in effect.
"HOLDER" shall mean the record owner of Registrable Securities.
"INITIAL PUBLIC OFFERING" shall mean the first underwritten public offering of
the Company's securities.
"LOCK-UP PERIOD" shall mean the period beginning on the effective date of the
Initial Public Offering and ending six months later.
"MATERIAL ADVERSE EVENT" shall mean an occurrence having a consequence that
either (a) is materially adverse as to the business, properties, prospects or
financial condition of the Company taken as a whole or (b) is reasonably
foreseeable, has a reasonable likelihood of occurring and, if it were to occur,
would materially adversely affect the business, properties, prospects or
financial condition of the Company taken as a whole.
The terms "REGISTER" "REGISTERED" and "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act ("REGISTRATION STATEMENT"), and the declaration or ordering of
the effectiveness of such Registration Statement.
"REGISTRABLE SECURITIES" shall mean all Common Stock not previously sold to the
public and issued to the Holder pursuant to the exercise of this Warrant, or
Common Stock issued with respect to such shares pursuant to stock splits, stock
dividends and similar
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distributions with respect to such shares, provided, however, that shares of
Common Stock which are Registrable Securities shall cease to be Registrable
Securities at such time, and for so long as, such shares are eligible for sale
pursuant to Rule 144(k) under the Securities Act.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the Company in
complying with Section 7(b) of this Agreement, including, without limitation,
all federal and state registration, qualification and filing fees, printing
expenses, fees and disbursements of counsel for the Company, blue sky fees and
expenses, and the expense of any special audits incident to or required by any
such registration, but shall not include Selling Expenses.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean all underwriting discounts and selling commissions
applicable to the sale of Registrable Securities pursuant to this Agreement and
all expenses of any special counsel for the Purchaser.
7.2 PIGGYBACK REGISTRATION
7.2.1 NOTICE OF PIGGYBACK REGISTRATION AND INCLUSION OF REGISTRABLE
SECURITIES. Subject to the terms of this Agreement, in the event
the Company decides to Register any of its Common Stock for cash
(either for its own account or the account of a security holder),
other than pursuant to (i) an Initial Public Offering; (ii) a
Registration Statement which exclusively relates to the
Registration of securities under an employee stock option,
purchase, bonus or other benefit plan, or (iii) a Registration
relating solely to a transaction under Rule 145 promulgated by
the Commission, then at any time following an Initial Public
Offering and for so long as the Holder holds Registrable
Securities, the Company will: (1) promptly give the Holder
written notice thereof (which shall include a list of the
jurisdictions in which the Company intends to attempt to qualify
such securities under the applicable Blue Sky or other state
securities laws) and (2) include in such Registration (and any
related qualification under Blue Sky laws or other compliance),
and in any underwriting involved therein, all the Registrable
Securities specified in a written request delivered to the
Company by the Holder within 10 days after delivery of such
written notice from the Company.
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7.2.2 UNDERWRITING IN PIGGYBACK REGISTRATION. If the Registration of
which the Company gives notice is a Registered public offering
involving an underwriting, the Company shall so advise the Holder
as a part of the written notice given pursuant to Subsection 7.2.
1. In such event the right of the Holder to Registration shall be
conditioned upon such underwriting and the inclusion of a
Holder's Registrable Securities in such underwriting to the
extent provided in this Section 7.2. The Holder shall, together
with the Company, enter into an underwriting agreement with the
Underwriter's Representative for such offering. The Holder shall
have no right to participate in the selection of the underwriters
for an offering pursuant to this Section.
7.2.3 MARKETING, LIMITATION IN PIGGYBACK REGISTRATION. In the event
the Underwriter's Representative advises the Company and the
Holder engaged in a Registration under Subsection 7.2.1 in
writing that market factors (including, without limitation, the
aggregate number of shares of Common Stock requested to be
Registered, the general condition of the market and the status of
the persons proposing to sell securities pursuant to the
Registration) require a limitation of the number of shares to be
underwritten, the Underwriter's Representative (subject to the
allocation priority set forth in clause (Iii) below) may exclude
some or all of the Registrable Securities from such Registration
and underwriting.
7.2.4 ALLOCATION OF SHARES IN PIGGYBACK REGISTRATION. In the event
that the Underwriter's Representative limits the number of shares
to be included in a Registration pursuant to Subsection 7.2.1,
the Holder shall be entitled to include a portion of the
Registrable Securities requested to be included in such
Registration pro rata (based on the number of shares requested to
be included) with all other persons currently holding similar
written piggyback registration fights requesting Registration.
Unless all Registrable Securities and such other piggybacking
shares requested to be included in such Registration are so
included, no other securities may be included in the Registration
Statement in addition to those securities being sold on behalf of
the Company.
7.2.5 WITHDRAWAL IN PIGGYBACK REGISTRATION. If the Holder disapproves
of the terms of any such underwriting, it may elect to withdraw
therefrom by written notice to the Company and the underwriter
delivered at least seven days prior to the effective date of the
Registration Statement. Any Registrable Securities or other
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securities excluded or withdrawn from such underwriting shall be
withdrawn from such Registration.
7.3 DEMAND REGISTRATION. Subject to Section 7.5.3 below, if, at any
time after the end of the Lock-Up Period, the Company shall
receive a written request (specifying that it is being made
pursuant to this Section 7(c)) from persons holding more than
fifty percent (50%) of the Registrable Securities that the
Company file a registration statement or similar document under
the Securities Act, then the Company shall promptly notify in
writing all other Holders holding Registrable Securities of such
request and shall use its best efforts to cause all Registrable
Securities that Holders have requested be so registered within 20
days after written notice from the Company of the proposed
registration to be registered under the Securities Act.
Notwithstanding the foregoing, if the Company shall furnish to
such Holders a certificate signed by the President of the Company
stating that in good faith judgment of the Company's Board of
Directors it would be seriously detrimental to the Company or its
shareholders for a registration statement to be filed in the near
future, then the Company's obligation to use its best efforts to
file a registration statement shall be deferred for a period not
to exceed four (4) months; provided, however, that the Company
shall not obtain such a deferral more than once in any 12 month
period.
The Company shall be obligated to effect only one registration
pursuant to this Section 7.3. Any request for registration under
this Section 7.3 during the six month period immediately
following the Lock Up Period must be for an underwritten public
offering to be managed by an underwriter or underwriters of
recognized national standing selected by the Company in its sole
discretion.
7.4 FORM S-3 REGISTRATION RIGHT
In the event the Company is eligible to register securities on
Form S-3 and receives from Holders holding more than 50 percent
(50%) of the Registrable Securities a written request that the
Company effect a registration statement on Form S-3 for an
offering of Registrable Securities covering the registration of
not less than 50 percent (50%) of the Registrable Securities held
by all holders of Registrable Securities, the expected aggregate
price to the public of which exceeds $1,000,000, net of any
underwriting discounts and commissions, then the Company will
promptly give written notice of the proposed Form S-3
registration to all Holders of Registrable
8
Securities and will, as soon as practicable, use its best efforts
to effect registration of the Registrable Securities on Form S-3,
together with all or such portion of the Registrable Securities
of any holder joining in such request as are specified in a
written request delivered to the Company within 20 days after
written notice from the Company of the proposed registration.
These fights are in addition to, and not in lieu of, the rights
granted under Sections 7.2 and 7.3 hereof
7.5 OBLIGATIONS OF THE COMPANY AND HOLDERS.
7.5.1 OBLIGATIONS OF THE COMPANY. Whenever required under Section 7.3
or Section 7.4 to use its best efforts to the effect the
registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
7.5.1.1 Prepare and file with the Commission a registration statement
with respect to such Registrable Securities and use its best
efforts to cause such registration statement to become and remain
effective; PROVIDED, HOWEVER, that in connection with any
proposed registration intended to permit an offering of any
securities from time to time (i.e., a so-called "SHELF
REGISTRATION"), the Company shall in no event be obligated to
cause any such registration to remain effective for more than 180
days.
7.5.1.2 Prepare and file with the Commission, in a timely manner, such
amendments and supplements to such registration statement and the
prospectus used in connection with such registration statement as
may be necessary to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by
such registration statement.
7.5.1.3 Furnish to the Holders and deliver as directed such numbers of
copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such
other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by
them.
7.5.1.4 Use its best efforts to register and qualify the securities
covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be
reasonably appropriate for the distribution of the securities
covered by the registration statement, provided that the Company
shall not be required in connection
9
therewith or as a condition thereto to qualify to do business or
to file a general consent to service of process in any such
states or jurisdictions, and further provided that (anything in
this Agreement to the contrary notwithstanding with respect to
the bearing of expenses) if any jurisdiction in which the
securities shall be qualified shall require that expenses
incurred in connection with the qualification of the securities
in that jurisdiction be borne by selling shareholders, then such
expenses shall be payable by selling shareholder pro rata, to the
extent required by such jurisdiction.
7.5.2 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section
7.3 or Section 7.4 that the Holders shall furnish to the Company
such information regarding them, the Registrable Securities held
by them, and the intended method of disposition of such
securities as the Company shall reasonably request and as shall
be required in connection with the action to be taken by the
Company.
7.5.3 UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares pursuant to Sections 7.2, 7.3
or 7.4 hereof the Company shall not be required to include any of
the Holders' Registrable Securities in such underwriting unless
they accept the terms of the underwriting as agreed upon between
the Company and the underwriters selected by it. If the managing
underwriter or underwriters of such public offering advise the
Company that, in their opinion, the amount of the Registrable
Securities to be included in any such offering pursuant to the
request of the Holders would adversely affect the success of such
offering, the Company will include in such offering on behalf of
such Holders, the amount of Registrable Securities equal to the
total amount which, in the opinion of such managing underwriter
or underwriters, can be sold without such adverse effect, and
such Registrable Securities shall, be allocated on a pro rata
basis among the Holders of the Registrable Securities requested
to be included in such offering.
7.5.4 DELAY OF REGISTRATION. No Holder shall have any right to take
any action to restrain, enjoin, or otherwise delay any
registration as the result of any controversy that might arise
with respect to the interpretation or implementation of Section
7.3 or Section 7.4.
7.5.5 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with all Registrations pursuant to Sections 7.2, 7.3
and 7.4 shall be borne by the Company. Selling Expenses to be
borne by
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the holders of the Registrable Securities Registered shall be
borne pro rata on the basis of the number of Registrable
Securities being Registered.
7.5.6 REGISTRATION PROCEDURES. The Company will keep the Holders
advised as to the initiation and completion of such Registration.
At its expense the Company will use its best efforts to keep such
Registration effective (a) for a period of 180 days, (b) until
the registering Purchaser has completed the distribution
described in the Registration Statement relating thereto or (c)
until the Holders can register their Registrable Securities under
Rule 144(k) of the Securities Act, whichever first occurs.
7.6 INDEMNIFICATION.
7.6.1 COMPANY'S INDEMNIFICATION OF THE HOLDER. The Company will
indemnify the Holder, and each of its directors, officers,
stockholders, partners or other beneficial owners, and each
person controlling the Holder, with respect to which
Registration, qualification or compliance of Registrable
Securities has been effected pursuant to this Warrant, and each
underwriter, if any, and each person who controls any underwriter
against all claims, losses, damages or liabilities, including
reasonable legal fees and expenses (or actions in respect
thereof) to the extent such claims, losses, damages or
liabilities arise out of or are based upon any untrue statement
(or alleged untrue statement) of a material fact contained in any
prospectus or other document (including any related Registration
Statement) incident to any such Registration, qualification or
compliance, or are based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any
violation by the Company of any rule or regulation promulgated
under-the Securities Act applicable to the Company and relating
to action or inaction required of the Company in connection with
any such Registration, qualification or compliance; and the
Company will reimburse the Holder, each of its directors,
officers, stockholders, partners or other beneficial owners, each
such underwriter and each person who controls the Holder or
underwriter for any legal and any other expenses reasonably
incurred in connection with investigating or defending any such
claim, loss, damage, liability or action; PROVIDED, however, that
the indemnity contained in this Subsection 7.6 shall not apply to
amounts paid in settlement of any such claim, loss, damage,
liability or action if settlement is effected without the
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consent of the Company (which consent shall not unreasonably be
withheld); and PROVIDE , FURTHER, that the Company will not be
liable in any such case to the extent that any such claim, loss,
damage, liability or expense arises out of or is based upon any
untrue statement or omission based upon written information
furnished to the Company by the Holder, underwriter or
controlling person and stated to be for use in connection with
the offering of securities of the Company.
7.6.2 THE HOLDER'S INDEMNIFICATION OF COMPANY. The Holder will, if
Registrable Securities held by the Holder are included in the
securities as to which such Registration, qualification or
compliance is being effected pursuant to this Warrant, indemnify
the Company, each of its directors and officers, each legal
counsel and independent accountant of the Company, each
underwriter, if any, of the Company's securities covered by such
a Registration Statement, and each person who controls the
Company or such underwriter within the meaning of the Securities
Act against all claims, losses, damages and liabilities,
including legal fees and expenses (or actions in respect
thereof), arising out of or based upon any untrue statement (or
alleged untrue statement) of a material fact contained in any
such Registration Statement, prospectus, offering circular or
other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any
violation by the Holder of any rule or regulation promulgated
under the Securities Act applicable to the Holder and relating to
action or inaction required of the Holder in connection with any
such Registration, qualification or compliance; and will
reimburse the Company, such directors, officers, partners,
persons, law and accounting firms, underwriters or control
persons for any legal and any other expenses reasonably incurred
in connection with investigating or defending any such claim,
loss, damage, liability or action, in each case to the extent,
but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in
such Registration Statement, prospectus, offering circular or
other document in reliance upon and in conformity with written
information furnished to the Company by the Holder and stated to
be specifically for use in connection with the offering of
securities of the Company; provide , however, that the Holders'
liability under this Section 7(f)(2) shall not exceed the
Holder's proceeds from the offering of securities made in
connection with such Registration.
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7.6.3 INDEMNIFICATION PROCEDURE. Promptly after receipt by an
indemnified party under this Section 7.6 of notice of the
commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying
party under this Section 7.6, notify the indemnifying party in
writing of the commencement thereof and generally summarize such
action. The indemnifying party shall have the right to
participate in and to assume the defense of such claim; PROVIDED,
HOWEVER, that the indemnifying party shall be entitled to select
counsel for the defense of such claim with the approval of any
parties entitled to indemnification, which approval shall not be
unreasonably withheld; PROVIDED FURTHER, HOWEVER, that if either
party reasonably determines that there may be a conflict between
the position of the Company and the Holders in conducting the
defense of such action, suit or proceeding by reason of
recognized claims for indemnity under this Section 7.6, then
counsel for such party shall be entitled to conduct the defense
to the extent reasonably determined by such counsel to be
necessary to protect the interest of such party. The failure to
notify an indemnifying party promptly of the commencement of any
such action, if prejudicial to the ability of the indemnifying
party to defend such action, shall relieve such indemnifying
party, to the extent so prejudiced, of any liability to the
indemnified party under this Section 7.6, but the omission so to
notify the indemnifying party will not relieve such party of any
liability that such party may have to any indemnified party other
wise other than under this Section 7.6.
7.6.4 SUBSEQUENT TRANSFEREES. The provisions of this Section 7.6
applicable to the Holder shall apply with equal force and effect
to each subsequent transferee to whom any of the Registrable
Securities are transferred with the consent of the Company.
7.7 MARKET STAND-OFF.
During the Lock-Up Period, the Holder shall agree not to
transfer, sell, make short sales of, loan, grant any option for
the purchase of, or otherwise dispose of any Registrable
Securities, except for private sales to persons approved by the
Company (which approval will not be unreasonably withheld) and
who agree to be bound by the provisions of this Agreement
(including this Section 7.7).
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7.8 CURRENT PUBLIC INFORMATION.
At all times after the Company has filed a Registration Statement
pursuant to the Securities Act, the Company will file all reports
required under the Securities Act or the Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder,
and will take such further action as may be reasonably required
to enable any Holder of "RESTRICTED SECURITIES" (as defined in
Rule 144 adopted by the Commission under the Securities Act) to
sell such securities pursuant to Rule 144, as amended from time
to time, or any similar rule or regulation hereafter adopted by
the Commission.
8. RESERVATION OF STOCK. The Company covenants that during the term that
this Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this Warrant and, from time to time, will
take all steps necessary to amend its Certificate of Incorporation (the
"Certificate") to provide sufficient reserves of shares of Common Stock issuable
upon the exercise of the Warrant. The Company further covenants that all shares
that may be issued upon the exercise of rights represented by this Warrant, upon
exercise of the rights represented by this Warrant and payment of the Exercise
Price, all as set forth herein, will be free from all taxes, liens and charges
in respect of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously or otherwise specified herein), and will be validly
issued, fully paid and nonassessable.
9. NOTICES. Whenever the Exercise Price or number of shares
purchasable hereunder shall be adjusted pursuant to Section 11
hereof, the Company shall issue a certificate signed by its Chief
Financial Officer setting forth, in reasonable detail, the event
requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated, and the Exercise
Price and number of shares purchasable hereunder after giving
effect to such adjustment, and shall cause a copy of such
certificate to be mailed (by first-class mail, postage prepaid)
to the Holder of this Warrant.
10. AMENDMENTS.
(a) Any term of this Warrant may be amended with the written consent
of the Company and the Holder. Any amendment effected in accordance with this
Section 10 shall be binding upon the Holder, each future Holder and the Company.
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(b) No waivers of, or exceptions to, any term, condition or provision
of this Warrant, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term, condition or
provision.
11. ADJUSTMENTS. The number of shares purchasable hereunder is subject to
adjustment from time to time as follows:
11.1 REORGANIZATION, MERGER OR SALE OF ASSETS. If at any time while
this Warrant, or any portion thereof, is outstanding and unexpired there shall
be (i) a reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Company with or into another corporation in which the
Company is not the surviving entity, or a reverse triangular merger in which the
Company is the surviving entity but the shares of the Company's capital stock
outstanding immediately prior to the merger are converted by virtue of the
merger into other property, whether in- the form of securities, cash or
otherwise, or (iii) a sale or transfer 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, sale or transfer, lawful provision
shall be made so that the holder of this Warrant shall thereafter be entitled to
receive upon payment of the Exercise Price then in effect, the number of shares
of stock or other securities or property of the successor corporation resulting
from such reorganization, merger, consolidation, sale or transfer that a holder
of the shares deliverable upon exercise of this Warrant would have been entitled
to receive in such reorganization, consolidation, merger, sale or transfer if
this Warrant had been exercised immediately before such reorganization, merger,
consolidation, sale or transfer, all subject to further adjustment as provided
in this Section 11. The foregoing provisions of this Section 11. 1 shall
similarly apply to successive reorganizations, consolidations, mergers, sales
and transfers and to the stock or securities of any other corporation that are
at the time receivable upon the exercise of this Warrant. If the per-share
consideration payable to the Holder hereof for shares in connection with any
such transaction is in a form other than cash or marketable securities, then the
value of such consideration shall be determined in good faith by the Company's
Board of Directors. In all events, 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 transaction, to the end that the provisions of this Warrant
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.
11.2 RECLASSIFICATION. If the Company, at any time while this Warrant,
or any portion thereof, remains outstanding and unexpired, by reclassification
of securities or otherwise, shall change any of the securities as to which
purchase rights under this Warrant exist into the same or a different number of
securities of any other class or classes, this Warrant shall thereafter
represent the right to-acquire such number
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and kind of securities as would have been issuable as the result of such change
with respect to the securities that were subject to the purchase rights under
this Warrant immediately prior to such reclassification or other change and the
Exercise Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 11.
11.3 SPLIT, SUBDIVISION OR COMBINATION OF SHARES. If the Company at
any time while this Warrant, or any portion thereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which purchase
rights under this Warrant exist, into a different number of securities of the
same class, the Exercise Price for such securities shall be proportionately
decreased in the case of a split or subdivision or proportionately increased in
the case of a combination.
11.4 ISSUANCE OF SHARES BELOW EXERCISE PRICE.
11.4.1 If at anytime or from time to time after the Warrant Issue
Date, the Company shall issue or sell (each, a "Dilutive
Issuance") Additional Shares of Common Stock (as hereinafter
defined) for a consideration per share less than the Exercise
Price, then forthwith upon the determination that the
consideration will be less than the Exercise Price, the Exercise
Price shall be adjusted (downward only and calculated to the
nearest one-hundredth of a cent) by dividing (1) an amount equal
to the sum of (x) the product of the number of shares of Common
Stock outstanding immediately prior to such issuance or sale
multiplied by the then Exercise Price and (y) the aggregate of
the amount of all consideration received by the Company upon such
issuance or sale by (2) the number of shares of Common Stock
outstanding immediately after such issuance or sale.
11.4.2 For the purpose of this Section 11.4:
(a) the consideration received by the Company for any issue
or sale of securities shall, (i) to the extent it consists
of cash, be computed at the net amount of cash received by
the Company after deduction of any underwriting or similar
commissions, concessions or compensation paid or allowed by
the Company in connection with such issue or sale, and (ii)
to the extent it consists of a service or property other
than cash, be computed at the fair value of that service or
property as determined in good faith by the Board of
Directors of the Company;
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(b) the term "Stock OUTSTANDING" shall mean the aggregate
number of shares of Common Stock outstanding and all shares
of Common Stock issuable upon the exercise of all
outstanding options or warrants to purchase such stock and
the conversion of all outstanding securities convertible
into shares of Common Stock; and
(c) the term "ADDITIONAL SHARES OF COMMON Stock" shall mean
all shares of Common Stock issued or deemed issued by the
Company after the Warrant Issue Date whether or not
subsequently reacquired or retired by the Company, excluding
(i) shares issued as a dividend or other distribution on any
class of stock, (ii) shares issued upon a subdivision or
combination of shares of Common Stock, (iii) shares issued
upon conversion of shares of Series A Preferred Stock of the
Company, or (d) shares issued pursuant to the exercise of
any options to purchase, or other security convertible into,
shares of Common Stock granted to employees, officers or
directors of the Company pursuant to stock option
agreements, stock option plans or management incentive plans
adopted by the Board of Directors of the Company.
11.4.3 OPTIONS AND CONVERTIBLE SECURITIES. In case the Company shall
in any manner issue or grant any options, warrants or other
securities exercisable or exchangeable for convertible warrants
or other securities, the total maximum number of Shares issuable
upon the exercise of such options, warrants or other securities
or upon conversion or exchange of the total maximum amount of
such convertible or exchangeable securities at the time such
convertible or exchangeable securities first become convertible
or exchangeable shall (as of the date of issue or grant of such
options, or in the case of the issue or sale of convertible
securities other than where the same are issuable upon the
exercise of options, as of the date of such issue or sale) be
deemed to be issued and to be outstanding for the purpose of this
Section 11.4.3 and to have been issued for the sum of the amount
(if any) paid for such options, warrants or other securities or
convertible or exchangeable securities and the amount (if any)
payable upon the exercise of such options or upon the conversion
or exchange of such convertible securities at the time such
convertible securities first became convertible or exchangeable;
PROVIDED that, subject to the provisions of Section 11.4.4, no
further adjustment of the Exercise Price shall be made upon the
actual issuance of any such stock or exchangeable
17
securities or upon the conversion or exchange of any such
convertible securities.
11.4.4 CHANGE IN OPTION PRICE OR CONVERSION RATE. In the event that
the purchase price provided for in any option, warrant or other
securities referred to in subsection 11.4.3, or the rate at which
any convertible or exchangeable securities referred to in
subsection 11.4.3 are convertible into or exchangeable for shares
of Common Stock shall change at any time (other than under or by
reason of provisions designed to protect against dilution), than,
for purposes of any adjustment required by Section 11.4, the
Exercise Price in effect at the time of such event shall
forthwith be readjusted to the Exercise Price that would have
been in effect at such time had such options. warrants or other
securities or convertible or exchangeable securities still
outstanding provided for such changed purchase price, additional
consideration or conversion or exchange rate, as the case may be,
at the time initially granted, issued or sold. In the event that
the purchase price provided for in any such option referred to in
subsection 11.4.3, or the additional consideration (if any)
payable upon the conversion or exchange of any convertible or
exchangeable securities referred to in subsection 11.4.4, or the
rate at which any convertible or exchangeable securities referred
to in subsection 11.4.3 are convertible into or exchangeable for
shares of Common Stock, shall be reduced at any time under or by
reason of provisions with respect thereto designed to protect
against dilution, then in case of the delivery of shares of
Common Stock upon the exercise of any such option or upon
conversion or exchange of any such convertible or exchangeable
security, the Exercise Price then in effect hereunder shall, upon
issuance of such shares of Common Stock, be adjusted to such
amount as would have obtained had such option or convertible or
exchangeable security never been issued and had adjustments been
made only upon the issuance of the shares of Common Stock
delivered as aforesaid and for the consideration actually
received for such option or convertible or exchangeable security
and the shares of Common Stock.
11.4.5 TERMINATION OF OPTION OR CONVERSION RIGHTS. In the event of the
termination or expiration of any right to purchase shares of
Common Stock under any option, warrant or other security or of
any right to convert or exchange convertible or exchangeable
securities, the Exercise Price shall be adjusted to the Exercise
Price that would have been in effect at the time of such
expiration or termination had such option, warrant or other
security or
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convertible or exchangeable security, to the extent outstanding
immediately prior to such expiration or termination, never been
issued, and the shares of Common Stock issuable thereunder shall
no longer be deemed to be Stock Outstanding.
11.5 NO IMPAIRMENT. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Section 11 and in
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holders of this Warrant against impairment
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officers thereunto duly authorized.
Dated: September ___, 1999
NOMOS CORPORATION
By:
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman
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CASH EXERCISE FORM
TO: NOMOS CORPORATION
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
(1) The undersigned hereby elects to purchase _____shares of Common
Stock of NOMOS Corporation pursuant to the terms of the attached Warrant and
tenders herewith payment of the purchase price for such shares in full.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of Common Stock are being acquired solely for the
account of the undersigned and not as a nominee for any other party, and for
investment, and that the undersigned will not offer, sell or otherwise dispose
of any such shares of Common Stock except under circumstances that will not
result in a violation of the Securities Act of 1933, as amended, or any state
securities laws.
(3) Please issue a certificate or certificates representing said
shares of Common Stock in the name of the undersigned or in such other name as
is specified below:
------------------------------------
(Name)
------------------------------------
(Signature)
(4) Please issue a new Warrant for the unexercised portion of the
attached Warrant in the name of the undersigned or in such other name as is
specified below:
------------------------------------
(Name)
------------------------------------
(Signature)
-------------------------
(Date)
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CASHLESS EXERCISE FORM
TO: NOMOS CORPORATION
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
(1) The undersigned hereby irrevocably elects to surrender its Warrant
for the number of Shares as shall be issuable pursuant to the cashless exercise
provisions of Section I of the within Warrant, in respect of ______Shares
underlying the within Warrant.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of Common Stock are being acquired solely for the
account of the undersigned and not as a nominee for any other party, and for
investment, and that the undersigned will not offer, sell or other-wise dispose
of any such shares of Common Stock except under circumstances that will not
result in a violation of the Securities Act of 1933, as amended, or any state
securities laws.
(3) Please issue a certificate or certificates representing said
shares of Common Stock in the name of the undersigned or in such other name as
is specified below:
------------------------------------
(Name)
------------------------------------
(Signature)
(4) Please issue a new Warrant for the unexercised portion of the
attached Warrant in the name of the undersigned or in such other name as is
specified below:
------------------------------------
(Name)
------------------------------------
(Signature)
-------------------------
(Date)
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