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EXHIBIT 4(c)(c)
Void after 5:00 p.m., Florida Time on January 9, 2002
Warrant to Purchase 250,000 Shares of Common Stock
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WARRANT TO PURCHASE COMMON STOCK
OF
UNIVERSAL MEDICAL SYSTEMS, INC.
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THIS WARRANT AND THE SHARES OF COMMON STOCK
ISSUABLE PURSUANT TO THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD,
PLEDGED OR OTHERWISE TRANSFERRED UNLESS
REGISTERED UNDER THE ACT OR AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE
FOR VALUE RECEIVED, Universal Medical Systems, Inc., a Nevada corporation
(the "Company"), grants the following rights to GEM, LTD., whose address is
▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇.
ARTICLE 1. DEFINITIONS. As used herein, the following terms shall have the
following meanings, unless the context shall otherwise require:
(a) "Common Stock" shall mean the common stock, par value $.001 per
share, the Company.
(b) "Corporate Office" shall mean the office of the Company
(or its successor) at which at any particular time its principal business shall
be administered, which office is located at the date hereof at ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
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(c) "Exercise Date" shall mean any date upon which the Holder
shall give the Company a Notice of Exercise.
(d) "Exercise Price" shall mean the price to be paid to the Company for
each share of Common Stock to be purchased upon exercise of this Warrant in
accordance with the terms hereof which shall be $1.43750 (i.e., the closing bid
price on the day immediately preceding the issuance of this Warrant).
(e) "Expiration Date" shall mean 5:00 p.m. (Florida time) on
January 9, 2002.
(f) "SEC" shall mean the United States Securities and Exchange
Commission.
(g) "Transfer Agent" shall mean American Stock Transfer &
Trust Company, as the Company's transfer agent, or its authorized successor,
as such.
ARTICLE 2. EXERCISE.
2.1 Exercise of Warrant. This Warrant shall entitle Holder to
purchase up to 250,000 shares of Common Stock (the "Shares") at the Exercise
Price. This Warrant shall be exercisable at any time and from time to time
prior to the Expiration Date (the "Exercise Period"). This Warrant and the
right to purchase Shares hereunder shall expire and become void at the
Expiration Date.
2.2 Manner of Exercise.
(a) Holder may exercise this Warrant at any time and
from time to time during the Exercise Period, in whole or in part (but not in
denominations of fewer than 25,000 shares, except upon an exercise of this
Warrant with respect to the remaining balance of shares purchasable hereunder
at the time of exercise), by delivering to the Company at its corporate Office
(i) a duly executed Notice of Exercise in substantially the form attached as
Appendix 1 hereto and (ii) a bank cashier's or certified check for the
aggregate Exercise Price of the shares of Common Stock being purchased.
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(b) From time to time upon exercise of this Warrant, in whole
or in part, in accordance with its terms, the Company will cause the
Transfer Agent to countersign and deliver stock certificates to the Holder
representing the number of Shares being purchased pursuant to such
exercise, subject to adjustment as described herein.
(c) Promptly following any exercise of this Warrant, if the
Warrant has not been fully exercised and has not expired, the Company will
deliver to the Holder a new Warrant for the balance of the Shares covered
hereby.
2.3 Termination. All rights of the Holder in this Warrant,
to the extent they have not been exercised, shall terminate on the Expiration
Date.
2.4 No Rights Prior to Exercise. Prior to its exercise
pursuant to Section 2.2. above, this Warrant shall not entitle the Holder to
any voting or other rights as holder of shares of Common Stock.
2.5 Adjustments. In case of any reclassification, capital
reorganization, stock dividend or other change of outstanding shares of Common
Stock, or in case of any consolidation or merger of the Company with or 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, capital reorganization, stock dividend or other change of
outstanding shares or Common Stock), or in case of any sale or conveyance to
another corporation of the property of the Company as, or substantially as, an
entirety (other than a sale/leaseback, mortgage or other financing
transaction), the Company shall cause effective provision to be made so that
the Holder shall have the right thereafter, by exercising this Warrant, to
purchase the kind and number of shares of stock or other securities or property
(including cash) receivable upon such reclassification, capital reorganization,
stock dividend or other change, consolidation, merger, sale or conveyance as
the Holder would have been entitled to receive had the Holder exercised this
Warrant in full immediately before such reclassification, capital
reorganization, stock dividend or other change, consolidation, merger, sale or
conveyance. Any such provision shall include provision for adjustments that
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Section 2.5. The foregoing provisions shall similarly apply to
successive reclassifications, capital reorganizations, stock dividends and
other changes of outstanding shares of Common Stock and to successive
consolidations, mergers, sales or conveyances.
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2.6 Fractional Shares. No fractional shares shall be issuable upon
exercise or conversion of this Warrant and the number of Shares to be issued
shall be rounded down to the nearest whole share. If a fractional share
interest arises upon any exercise or conversion of the Warrant, the Company
shall eliminate such fractional share interest by paying Holder the amount
computed by multiplying the fractional interest by the closing bid price of a
full share of the Company's Common Stock on the date of the Notice of Exercise.
ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.
3.1 Representations and Warranties. The Company hereby represents
and warrants to the Holder as follows:
(a) All Shares which may be issued upon the exercise of the
purchase right represented by this Warrant shall, upon issuance, be duly
authorized, validly issued, fully-paid and nonassessable, and free of any liens
and encumbrances except for restrictions on transfer provided for herein or
under applicable federal and state securities laws, and not subject to any
preemptive rights.
(b) The Company is a corporation duly organized and validly
existing under the laws of the State of Nevada, and has the full power and
authority to issue this Warrant and to comply with the terms hereof. The
execution, delivery and performance by the Company of its obligations under
this Warrant, including, without limitation, the issuance of the Shares upon
any exercise of the Warrant have been duly authorized by all necessary
corporate action. This Warrant has been duly executed and delivered by the
Company and is a valid and binding obligation of the Company, enforceable in
accordance with its terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting enforceability
of creditors' rights generally and except as the availability of the remedy of
specific enforcement, injunctive relief or other equitable relief is subject to
the discretion of the court before which any proceeding therefor may be brought.
(c) The Company is not subject to or bound by any provision
of any certificate or articles of incorporation or by-laws, mortgage, deed of
trust, lease, note, bond, indenture, other instrument or agreement, license,
permit, trust, custodianship, other restriction or any applicable provision of
any law, statute, rule, regulation, judgment, order, writ, injunction or decree
of
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any court, governmental body, administrative agency or arbitrator which could
prevent or be violated by or under which there would be a default (or right of
termination) as a result of the execution, delivery and performance by the
Company of this Warrant.
ARTICLE 4. REGISTRATION UNDER THE ACT.
(a) Demand Request. (i) If at any time on and after the date
hereof, (i) the Company shall become subject to the reporting requirements of
Section 13 or Section 15 of the Securities Exchange Act of 1934, then
simultaneous with becoming subject thereto or as soon thereafter as
practicable, or (ii) upon the written request therefore (the "Demand Request"),
from the Holder, the Company shall prepare and file with the SEC a registration
statement under the Act covering the Shares and/or any securities issued in
lieu or substitution thereof (collectively, the "Registrable Securities") which
are the subject of such request and shall use its best efforts to cause such
registration statement to become effect.
(ii) If at the time of the Demand Request the Company is in
the process of preparing a registration statement under the Act relating to an
underwritten public offering, then the Company shall have the right to cause
the Holder to include the Registrable Securities in such registration statement
unless if in the good faith judgment of the managing underwriter of such public
offering the inclusion of such securities would interfere with the successful
marketing of the securities being underwritten. To the extent only a portion
of the Registrable Securities held by a Holder is included in the underwritten
public offering, a registration statement covering those Registrable Securities
which are excluded from the underwritten public offering will be filed with 120
days of the consummation of the underwritten public offering.
The obligation of the Company this paragraph (a) shall be
limited to two registration statements.
(b) Right to Postpone, Etc. Notwithstanding the foregoing, the
Company shall be entitled to postpone for up to six (6) months the filing of
any registration statement otherwise required to be prepared and filed by the
Company pursuant to Section 4 (b) if at the time the Company receives a request
for registration the Board of Directors of the Company determines, in its
reasonable business judgment, that the filing of such registration statement
and the offering of the shares of Registrable Stock pursuant thereto would
interfere
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with any financing, acquisition, corporate reorganization or other material
transaction by the Company, and the Company promptly gives the holders notice
of such determination and postponement. If the Company shall so postpone the
filing of a registration statement, the Holder shall have the right to withdraw
the request for registration by giving written notice, signed by the Holder, to
the Company within fifteen (15) days after receipt of the Company's notice of
postponement, and, in the event of such withdrawal, such request shall not be
deemed a request for registration which may be made pursuant to this Section 4.
The Company's right to postpone the filing of a registration statement as
provided herein may only be exercised by the Company once during any twelve
(12) consecutive month period. If requested by ▇▇▇▇▇▇, the Company shall enter
into customary agreements (including underwriting agreements with the
underwriter selected by the holder in connection with a Demand Request,
provided such underwriter is reasonably acceptable to the Company) and the
Company shall take all related actions as the Holder, or as the underwriter
selected by the Holder, reasonably request in order to expedite or facilitate
the disposition of the Registrable Securities included in a registration
statement filed with the SEC.
(c) Registration Procedures. If and whenever the Company is
required by the provisions of paragraph (a) above to effect the registration of
Registrable Securities under the Act, the Company will:
(i) prepare and file with the SEC a registration
statement with respect to such securities, and use its best efforts to cause
such registration statement to become and remain effective for such period as
may be reasonably necessary to effect the sale of such securities, not to
exceed nine months;
(ii) prepare and file with the SEC such amendments to
such registration statement and supplements to the prospectus contained therein
as may be necessary to keep such registration statement effective for such
period as may be reasonably necessary to effect the sale of such securities,
not to exceed nine months;
(iii) furnish to the Holder and to the underwriter of
the securities being registered, if any, such reasonable number of copies of
the registration statement, preliminary prospectus, final prospectus and such
other documents as such underwriter may reasonably request in order to
facilitate the public offering of such securities;
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(iv) notify the Holder, promptly after it shall
receive notice thereof, of the time when such registration statement has become
effective or a supplement to any prospectus forming a part of such registration
statement has been filed;
(v) notify the Holder promptly of any request by the
SEC for the amending of supplementing of such registration statement or
prospectus or for additional information;
(vi) prepare and file with the SEC, promptly upon the
request of the Holder, any amendments or supplements to such registration
statement or prospectus which, in the opinion of counsel for the holder (and
concurred in by counsel for the Company), is required under the Act or the
rules and regulations thereunder in connection with the distribution of the
Registrable Securities by the Holder;
(vii) prepare and promptly file with the SEC and
promptly notify the Holder of the filing of such amendment or supplement to
such registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Act, any event shall be
occurred as the result of which any such prospectus or any other prospectus as
then in effect would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances in which they were made, not misleading; and
(viii) advise the Holder, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance of any stop order
by the SEC suspending the effectiveness of such registration statement or the
initiation or threatening of any proceeding for that purpose and promptly use
its best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued.
(d) Expenses.
(i) With respect to any registration requested
pursuant to Section 4 (a) all fees, costs and expenses of and incidental to
such registration, inclusion and pubic offering (as specified in paragraph
(iii) below) in connection therewith shall be borne by the Company.
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(ii) The fees, costs and expenses of registration
above shall include, without limitation, all registration, filing, and NASD
fees, printing expenses, and fees and disbursements of counsel and accountants
for the Company. Fees and disbursements of counsel and accountants for the
selling security holders and any other expenses incurred b the selling security
holders not expressly included above shall be borne by the selling security
holders.
(e) Indemnification.
(i) The Company shall indemnify and hold harmless
the Holder, its directors and officers, and any underwriter (as defined in the
Act) for such holder and each person, if any, who controls such holder or such
underwriter within the meaning of the Act, from and against, and will reimburse
such holder and each such underwriter and controlling person with respect to,
any and all loss, damage, liability, cost and expense to which such holder or
any such underwriter or controlling person may become subject under the Act or
otherwise, insofar as such losses, damages, liabilities, costs or expenses are
caused by any untrue statement or alleged untrue statement of any material fact
contained in such registration statement, any prospectus contained therein or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided, however, that
the Company will not be liable in any such case to the extent that any such
loss, damage, liability, cost or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by the Holder, such underwriter
or such controlling person in writing specifically for use in the preparation
thereof.
(ii) As a condition of the Company's obligation under
this Article 4, the Holder will indemnify and hold harmless the Company, its
directors and officers, any controlling person and any underwriter from and
against, and will reimburse the Company, its directors and officers, any
controlling person and any underwriter with respect to, any and all loss,
damage, liability, cost or expense to which the Company or any controlling
person and/or any underwriter may become subject under the Act or otherwise,
insofar as such losses, damages, liabilities, costs or expenses are caused by
any untrue statement or alleged untrue statement of any material fact contained
in such registration statement, any prospectus contained therein or any
amendment or
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supplement thereto, or arise out of or are based upon any the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was so made in reliance upon and in strict conformity with
written information furnished by or on behalf of the Holder specifically for
use in the preparation thereof.
(iii) Promptly after receipt by an indemnified part
pursuant to the provisions of paragraph (i) or (ii) of this Article 4 of notice
of the commencement of any action involving the subject matter of the foregoing
indemnity provisions such indemnified party, if a claim thereof is to be made
against the indemnifying party pursuant to the provisions of said paragraph (i)
or (ii), promptly notify the indemnifying party of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than
hereunder. In case such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party shall have the right to participate in, and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party,
provided, however, if the defendants in any action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or in addition to those
available to the indemnified party, or if there is a conflict of interest
which would prevent counsel for the indemnifying party from also representing
the indemnified party, the indemnified party or parties have the right to
select separate counsel to participate in the defense of such action on behalf
of such indemnified party or parties. After notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party pursuant to the
provisions of said paragraph (i) or (ii) for any legal or other expense
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation, unless (A) the
indemnified party shall have employed counsel in accordance with the provisions
of the preceding sentence, (B) the indemnifying part shall not have employed
counsel satisfactory to the indemnified party to represent the
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indemnified party within a reasonable time after the notice of the commencement
of the action or (C) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party.
The Company's agreements with respect to Warrants or the Shares in this
Article 4 shall continue in effect regardless of the exercise and surrender of
this Warrant.
ARTICLES. MISCELLANEOUS.
5.1 Transfer. This Warrant may not be transferred or assigned, in
whole or in part, at any time, except in compliance with applicable federal and
state securities laws by the transferor and transferee (including, without
limitation, the delivery of an investment representation letter and a legal
opinion reasonably satisfactory to the Company, provided that this Warrant may
not be transferred or assigned such that either the Holder or any transferee
will, following such transfer or assignment, hold a Warrant for the right to
purchase fewer than 25,000 shares.
5.2 Transfer Procedure. Subject to the provisions of
Section 5.1, Holder may transfer or assign this Warrant by giving the Company
notice setting forth the name, address and taxpayer identification number of
the transferee or assignee, if applicable (the "Transferee") and surrendering
this Warrant to the Company for reissuance to the Transferee (and the Holder,
in the event of a transfer or assignment of this Warrant in part). (Each of the
persons or entities in whose name any such new Warrant shall be issued is
herein referred to as a "Holder).
5.3 Loss, Theft. Destruction or Mutilation. If this Warrant shall
become mutilated or defaced or be destroyed, lost or stolen, the Company shall
execute and deliver a new Warrant in exchange for and upon surrender and
cancellation of such mutilated or defaced Warrant or, in lieu of and in
substitution for such Warrant so destroyed, lost or stolen, upon the Holder
filing with the Company evidence satisfactory to it that such Warrant has been
so mutilated, defaced, destroyed, lost or stolen. However, the Company shall
be entitled, as a condition to the execution and delivery of such new Warrant,
to demand indemnity satisfactory to it and payment of the expenses and charges
incurred in connection with the delivery of such new Warrant. Any Warrant so
surrendered to the Company shall be cancelled.
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5.4 Notices. All notices and other communications from the Company
to the Holder or vice versa shall be deemed delivered and effective when given
personally, by facsimile transmission and confirmed in writing or mailed by
first-class registered or certified mail, postage prepaid at such address
and/or facsimile number as may have been furnished to the Company or the
Holder, as the case may be, in writing by the Company or the Holder from time
to time.
5.5 Waiver. This Warrant and any term hereof may be changed,
waived, or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
5.6 Governinq Law. This Warrant shall be governed by and construed
in accordance with the laws of the State of Nevada, the state of the Company's
incorporation, without giving effect to its principles regarding conflicts of
law.
Dated: January 9, 1997
UNIVERSAL MEDICAL SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman & CEO
ATTEST
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President and Secretary
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APPENDIX 1
NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase ________ shares of the Common
Stock of Universal Medical Systems, Inc. pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares in
full.
2. Please issue a certificate or certificates representing said shares
in the name of the undersigned or in such other name as is specified below:
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(Name)
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(Address)
3. The undersigned represents it is acquiring the shares solely for
its own account and not as a nominee for any other party and not with a view
toward the resale or distribution thereof except in compliance with applicable
securities laws.
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(Signature)
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(Date)