EXHIBIT 4.3
DOBI MEDICAL INTERNATIONAL, INC.
NO. Share
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FORM OF WARRANT TO PURCHASE COMMON STOCK
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VOID AFTER 5:30 P.M., EASTERN STANDARD TIME
ON THE EXPIRATION DATE
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED WITHOUT COMPLIANCE
WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND
STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM.
FOR VALUE RECEIVED, DOBI MEDICAL INTERNATIONAL, INC., a
Delaware corporation (the "Company"), hereby agrees to sell upon the terms and
on the conditions hereinafter set forth, but no later than 5:30 p.m., Eastern
Standard Time, on the Expiration Date (as hereinafter defined) to
__________________, or registered assigns (the "Holder"), under the terms as
hereinafter set forth, _____________ (_______) fully-paid and non-assessable
shares of the Company's Common Stock, par value $.0001 per share (the "Warrant
Stock"), at a purchase price per share of Three Dollars ($3.00) (the "Warrant
Price"), pursuant to this warrant (this "Warrant"). The number of shares of
Warrant Stock to be so issued and the Warrant Price are subject to adjustment in
certain events as hereinafter set forth. The term "Common Stock" shall mean,
when used herein, unless the context otherwise requires, the stock and other
securities and property at the time receivable upon the exercise of this
Warrant.
This Warrant is one of a series of the Company's Warrants to
purchase Common Stock (collectively, the "Warrants"), issued pursuant to that
certain Confidential Private Placement Memorandum, dated March 8, 2004 (the
"Memorandum"). Capitalized terms used and not otherwise defined herein shall
have the respective meanings attributed thereto in Section 12.
1. Exercise of Warrant.
(a) The Holder may exercise this Warrant according to
its terms by surrendering this Warrant to the Company at the address set forth
in Section 13, the subscription form attached hereto having then been duly
executed by the Holder, accompanied by cash, certified check or bank draft in
payment of the purchase price, in lawful money of the United States of America,
for the number of shares of the Warrant Stock specified in the subscription
form, or as otherwise provided in this Warrant prior to 5:30 p.m., Eastern
Standard Time, on July 30, 2008 (the "Expiration Date").
(b) This Warrant may be exercised in whole or in part
so long as any exercise in part hereof would not involve the issuance of
fractional shares of Warrant Stock. If exercised in part, the Company shall
deliver to the Holder a new Warrant, identical in form, in the name of the
Holder, evidencing the right to purchase the number of shares of Warrant Stock
as to which this Warrant has not been exercised, which new Warrant shall be
signed by the Chief Executive Officer or President and the Secretary or
Assistant Secretary of the Company. The term Warrant as used herein shall
include any subsequent Warrant issued as provided herein.
(c) No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. The Company
shall pay cash in lieu of fractions with respect to the Warrants based upon
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the fair market value of such fractional shares of Common Stock (which shall be
the closing price of such shares on the exchange or market on which the Common
Stock is then traded) at the time of exercise of this Warrant.
(d) In the event of any exercise of the rights
represented by this Warrant, a certificate or certificates for the Warrant Stock
so purchased, registered in the name of the Holder, shall be delivered to the
Holder within a reasonable time after such rights shall have been so exercised.
The person or entity in whose name any certificate for the Warrant Stock is
issued upon exercise of the rights represented by this Warrant shall for all
purposes be deemed to have become the holder of record of such shares
immediately prior to the close of business on the date on which the Warrant was
surrendered and payment of the Warrant Price and any applicable taxes was made,
irrespective of the date of delivery of such certificate, except that, if the
date of such surrender and payment is a date when the stock transfer books of
the Company are closed, such person shall be deemed to have become the holder of
such shares at the opening of business on the next succeeding date on which the
stock transfer books are open. Except as provided in Section 4 hereof, the
Company shall pay any and all documentary stamp or similar issue or transfer
taxes payable in respect of the issue or delivery of shares of Common Stock on
exercise of this Warrant.
2. Disposition of Warrant Stock and Warrant.
(a) The Holder hereby acknowledges that this Warrant
and any Warrant Stock purchased pursuant hereto are not being registered (i)
under the Securities Act of 1933, as amended (the "Act") on the ground that the
issuance of this Warrant is exempt from registration under Section 4(2) of the
Act as not involving any public offering or (ii) under any applicable state
securities law because the issuance of this Warrant does not involve any public
offering; and that the Company's reliance on the Section 4(2) exemption of the
Act and under applicable state securities laws is predicated in part on the
representations hereby made to the Company by the Holder that it is acquiring
this Warrant and will acquire the Warrant Stock for investment for its own
account, with no present intention of dividing its participation with others or
reselling or otherwise distributing the same, subject, nevertheless, to any
requirement of law that the disposition of its property shall at all times be
within its control.
The Holder hereby agrees that it will not sell or transfer all
or any part of this Warrant and/or Warrant Stock unless and until it shall first
have given notice to the Company describing such sale or transfer and furnished
to the Company either (i) an opinion, reasonably satisfactory to counsel for the
Company, of counsel (skilled in securities matters, selected by the Holder and
reasonably satisfactory to the Company) to the effect that the proposed sale or
transfer may be made without registration under the Act and without registration
or qualification under any state law, or (ii) an interpretative letter from the
U.S. Securities and Exchange Commission to the effect that no enforcement action
will be recommended if the proposed sale or transfer is made without
registration under the Act.
(b) If, at the time of issuance of the shares
issuable upon exercise of this Warrant, no registration statement is in effect
with respect to such shares under applicable provisions of the Act, the Company
may at its election require that the Holder provide the Company with written
reconfirmation of the Holder's investment intent and that any stock certificate
delivered to the Holder of a surrendered Warrant shall bear legends reading
substantially as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND MAY NOT BE
SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933 OR AN OPINION OF COUNSEL SATISFACTORY
TO THE ISSUER OF THIS CERTIFICATE THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT."
In addition, so long as the foregoing legend may remain on any stock certificate
delivered to the Holder, the Company may maintain appropriate "stop transfer"
orders with respect to such certificates and the shares
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represented thereby on its books and records and with those to whom it may
delegate registrar and transfer functions.
3. Reservation of Shares. The Company hereby agrees that
at all times there shall be reserved for issuance upon the exercise of this
Warrant such number of shares of its Common Stock as shall be required for
issuance upon exercise of this Warrant. The Company further agrees that all
shares which may be issued upon the exercise of the rights represented by this
Warrant will be duly authorized and will, upon issuance and against payment of
the exercise price, be validly issued, fully paid and non-assessable, free from
all taxes, liens, charges and preemptive rights with respect to the issuance
thereof, other than taxes, if any, in respect of any transfer occurring
contemporaneously with such issuance and other than transfer restrictions
imposed by federal and state securities laws.
4. Exchange, Transfer or Assignment of Warrant. This
Warrant is exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof to the Company or at the office of its stock
transfer agent, if any, for other Warrants of different denominations, entitling
the Holder or Holders thereof to purchase in the aggregate the same number of
shares of Common Stock purchasable hereunder. Upon surrender of this Warrant to
the Company or at the office of its stock transfer agent, if any, with the
Assignment Form annexed hereto duly executed and funds sufficient to pay any
transfer tax, the Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee named in such instrument of assignment and
this Warrant shall promptly be canceled. This Warrant may be divided or combined
with other Warrants that carry the same rights upon presentation hereof at the
office of the Company or at the office of its stock transfer agent, if any,
together with a written notice specifying the names and denominations in which
new Warrants are to be issued and signed by the Holder hereof.
5. Capital Adjustments. This Warrant is subject to the
following further provisions:
(a) Recapitalization, Reclassification and
Succession. If any recapitalization of the Company or reclassification of its
Common Stock or any merger or consolidation of the Company into or with a
corporation or other business entity, or the sale or transfer of all or
substantially all of the Company's assets or of any successor corporation's
assets to any other corporation or business entity (any such corporation or
other business entity being included within the meaning of the term "successor
corporation") shall be effected, at any time while this Warrant remains
outstanding and unexpired, then, as a condition of such recapitalization,
reclassification, merger, consolidation, sale or transfer, lawful and adequate
provision shall be made whereby the Holder of this Warrant thereafter shall have
the right to receive upon the exercise hereof as provided in Section 1 and in
lieu of the shares of Common Stock immediately theretofore issuable upon the
exercise of this Warrant, such shares of capital stock, securities or other
property as may be issued or payable with respect to or in exchange for a number
of outstanding shares of Common Stock equal to the number of shares of Common
Stock immediately theretofore issuable upon the exercise of this Warrant had
such recapitalization, reclassification, merger, consolidation, sale or transfer
not taken place, and in each such case, the terms of this Warrant shall be
applicable to the shares of stock or other securities or property receivable
upon the exercise of this Warrant after such consummation.
(b) Subdivision or Combination of Shares. If the
Company at any time while this Warrant
remains outstanding and unexpired shall subdivide or combine its Common Stock,
the number of shares of Warrant Stock purchasable upon exercise of this Warrant
and the Warrant Price shall be proportionately adjusted.
(c) Stock Dividends and Distributions. If the Company
at any time while this Warrant is outstanding and unexpired shall issue or pay
the holders of its Common Stock, or take a record of the holders of its Common
Stock for the purpose of entitling them to receive, a dividend payable in, or
other distribution of, Common Stock, then (i) the Warrant Price shall be
adjusted in accordance with Section 5(e) and (ii) the number of shares of
Warrant Stock purchasable upon exercise of this Warrant shall be adjusted to the
number of shares of Common Stock that Holder would have owned immediately
following such action had this Warrant been exercised immediately prior thereto.
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(d) Warrant Price Adjustment. Whenever the number of
shares of Warrant Stock purchasable upon exercise of this Warrant is adjusted,
as herein provided, the Warrant Price payable upon the exercise of this Warrant
shall be adjusted to that price determined by multiplying the Warrant Price
immediately prior to such adjustment by a fraction (i) the numerator of which
shall be the number of shares of Warrant Stock purchasable upon exercise of this
Warrant immediately prior to such adjustment, and (ii) the denominator of which
shall be the number of shares of Warrant Stock purchasable upon exercise of this
Warrant immediately thereafter.
(e) Certain Shares Excluded. The number of shares of
Common Stock outstanding at any given time for purposes of the adjustments set
forth in this Section 5 shall exclude any shares then directly or indirectly
held in the treasury of the Company.
(f) Deferral and Cumulation of De Minimis
Adjustments. The Company shall not be required to make any adjustment pursuant
to this Section 5 if the amount of such adjustment would be less than one
percent (1%) of the Warrant Price in effect immediately before the event that
would otherwise have given rise to such adjustment. In such case, however, any
adjustment that would otherwise have been required to be made shall be made at
the time of and together with the next subsequent adjustment which, together
with any adjustment or adjustments so carried forward, shall amount to not less
than one percent (1%) of the Warrant Price in effect immediately before the
event giving rise to such next subsequent adjustment.
(g) Duration of Adjustment. Following each
computation or readjustment as provided in this Section 5, the new adjusted
Warrant Price and number of shares of Warrant Stock purchasable upon exercise of
this Warrant shall remain in effect until a further computation or readjustment
thereof is required.
6. Notice to Holders.
(a) Notice of Record Date. In case:
(i) the Company shall take a record of the
holders of its Common Stock (or other stock or securities at
the time receivable upon the exercise of this Warrant) for the
purpose of entitling them to receive any dividend (other than
a cash dividend payable out of earned surplus of the Company)
or other distribution, or any right to subscribe for or
purchase any shares of stock of any class or any other
securities, or to receive any other right;
(ii) of any capital reorganization of the
Company, any reclassification of the capital stock of the
Company, any consolidation with or merger of the Company into
another corporation, or any conveyance of all or substantially
all of the assets of the Company to another corporation; or
(iii) of any voluntary dissolution,
liquidation or winding-up of the Company;
then, and in each such case, the Company will mail or cause to be mailed to the
Holder hereof at the time outstanding a notice specifying, as the case may be,
(i) the date on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up is to take place, and the time, if any, is to be fixed, as of which
the holders of record of Common Stock (or such stock or securities at the time
receivable upon the exercise of this Warrant) shall be entitled to exchange
their shares of Common Stock (or such other stock or securities) for securities
or other property deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, dissolution or winding-up. Such notice shall
be mailed at least thirty (30) days prior to the record date therein specified,
or if no record date shall have been specified therein, at least thirty (30)
days prior to such specified date.
(b) Certificate of Adjustment. Whenever any
adjustment shall be made pursuant to Section 5 hereof, the Company shall
promptly make a certificate signed by its Chief Executive Officer, President or
Vice President and by its Treasurer, Assistant Treasurer, Secretary or Assistant
Secretary, setting forth in reasonable
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detail the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated and the Warrant Price and number
of shares of Warrant Stock purchasable upon exercise of this Warrant after
giving effect to such adjustment, and shall promptly cause copies of such
certificates to be mailed (by first class mail, postage prepaid) to the Holder
of this Warrant.
7. Loss, Theft, Destruction or Mutilation. Upon receipt
by the Company of evidence satisfactory to it, in the exercise of its reasonable
discretion, of the ownership and the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to the Company and, in the case of mutilation, upon
surrender and cancellation thereof, the Company will execute and deliver in lieu
thereof, without expense to the Holder, a new Warrant of like tenor dated the
date hereof.
8. Modifications and Waivers. The terms of the Warrants
may be amended, modified or waived by written agreement of the Company and the
holders of the Warrants issued pursuant to the Memorandum representing a
majority of the Common Stock represented by all such Warrants then outstanding.
9. Warrant Holder Not a Stockholder. The Holder of this
Warrant, as such, shall not be entitled by reason of this Warrant to any rights
whatsoever as a stockholder of the Company, including any right to vote or to
consent to or receive notice as a stockholder of the Company.
10. Redemption of Warrants. The Warrants are redeemable
by the Company at any time after 18 months from the date of the final closing of
the offering contemplated by the Memorandum and prior to the Expiration Date on
not less than 60 days prior written notice, at a redemption price of $.01 per
Warrant, provided that prior to the redemption the market price for the Common
Stock issuable upon exercise of a Warrant shall exceed $6.00 per share and a
registration statement covering the shares underlying the Warrants has been
declared and remains effective or the shares are not otherwise subject to any
sale restrictions. Market price for the purpose of this Section 10 shall mean
the closing price of the Common Stock, as reported by the OTC Bulletin Board,
the American Stock Exchange or other primary trading market for the Common
Stock, as the case may be, for a period of 20 consecutive trading days ending
within 15 days prior to the date on which notice of redemption is given. If the
Company shall elect to redeem Warrants as permitted by this Section 10, notice
of redemption shall be given to the holders of all outstanding Warrants to whom
the redemption shall apply mailing by first-class mail a notice of such
redemption, not less than 60 nor more than 90 days prior to the date fixed for
redemption, to their last addresses as they shall appear upon the registry
books, but failure to give such notice by mailing to the holder of any Warrant,
or any defect therein, shall not affect the legality or validity of the
proceedings for the redemption of any other Warrants. The notice of redemption
to each holder of Warrants shall specify the date fixed for redemption and the
redemption price at which Warrants are to be redeemed, and shall state that
payment of the redemption price of the Warrants will be made at the office of
the Company upon presentation and surrender of such Warrants, and shall also
state that the right to exercise the Warrants so redeemed will terminate as
provided in this Warrant (stating the date of such termination) and shall state
the then current exercise price. If the giving of notice of redemption shall
have been completed as above provided, the right to exercise the Warrants shall
terminate at the close of business on the business day preceding the date fixed
for redemption, and the holder of each Warrant shall thereafter be entitled upon
surrender of his or its Warrant only to receive the redemption price thereof,
without interest.
11. Registration Rights. This Warrant and the shares of
Common Stock issuable upon exercise of this Warrant will be accorded the
registration rights under the Act set forth in that certain Subscription
Agreement between the Company and the Holder, a form of which agreement is being
furnished concurrently herewith.
12. Definitions. As used herein, unless the context
otherwise requires, the following terms have the respective meanings:
(a) "Affiliate": with respect to any Person, the
following: (i) any other Person that at such time directly or indirectly through
one or more intermediaries controls, or is controlled by or is under common
control with such first Person or (ii) any Person beneficially owning or
holding, directly or indirectly, 10% or more of any class of voting or equity
interests of the Company or any Subsidiary or any corporation of which the
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Company and its Subsidiaries beneficially own or hold, in the aggregate,
directly or indirectly, 10% of more of any class of voting or equity interests.
As used in such definition, "controls," "controlled by" and "under common
control," as used with respect to an Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise.
(b) "Person": any natural person, corporation,
division of a corporation, partnership, limited
liability company, trust, joint venture, association, company, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
(c) "Subsidiaries": with respect to any Person, any
corporation, association or other business
entity (whether now existing or hereafter organized) of which at least a
majority of the securities or other ownership interests having ordinary voting
power for the election of directors is, at the time as of which any
determination is being made, owned or controlled by such Person or one or more
subsidiaries of such Person.
13. Notices. Any notice required or contemplated by this
Warrant shall be deemed to have been duly given if transmitted by registered or
certified mail, return receipt requested, to the Company at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief
Executive Officer, or to the Holder at the name and address set forth in the
Warrant Register maintained by the Company.
14. Books and Records. The Company shall maintain, at the
office or agency of the Company maintained by the Company, books for the
registration and transfer of the Warrant.
15. Choice of Law. THIS WARRANT IS ISSUED UNDER AND SHALL
FOR ALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW RULES.
IN WITNESS WHEREOF, the Company has duly caused this Warrant
to be signed on its behalf, in its corporate name and by its duly authorized
officers, as of this 30th day of July, 2004.
DOBI MEDICAL INTERNATIONAL, INC.
By: /s/
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Executive Officer
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WARRANT EXERCISE FORM
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The undersigned, the Holder of the attached Warrant, hereby
irrevocably elects to exercise purchase rights represented by such Warrant for,
and to purchase thereunder, the following number of shares of Common Stock of
DOBI MEDICAL INTERNATIONAL, INC.:
Number of Shares Purchase Price Per Share
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$3.00
The undersigned herewith makes payment of $_________ therefor,
and requests that certificates for such shares (and any warrants or other
property issuable upon such exercise) be issued in the name of and delivered to
__________________________ whose address is _______________________________
(social security or taxpayer identification number ___________) and, if such
shares shall not include all of the shares issuable under such warrant, that a
new warrant of like tenor and date for the balance of the shares issuable
thereunder be delivered to the undersigned.
HOLDER:
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Signature
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Signature, if jointly held
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Date
ASSIGNMENT FORM
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FOR VALUE RECEIVED,
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hereby sells, assigns and transfers unto
Name:
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(Please typewrite or print in block letters)
Address:
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Social Security or Taxpayer Identification Number:
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the right to purchase Common Stock of DOBI MEDICAL INTERNATINONAL, INC., a
Delaware corporation, represented by this Warrant to the extent of shares as to
which such right is exercisable and does hereby irrevocably constitute and
appoint _________________, Attorney, to transfer the same on the books of the
Company with full power of substitution in the premises.
DATED:
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Signature
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Signature, if jointly held
Witness:
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