Exhibit 4.18
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NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
WARRANT TO PURCHASE
COMMON STOCK OF
INTRAOP MEDICAL CORPORATION
WARRANT #CC-223
FOR VALUE RECEIVED, subject to the terms and conditions herein set forth,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Strahlen-und Medizintechnik AG ("Holder") is entitled to
purchase from Intraop Medical Corporation, a Nevada corporation (the "Company"),
at any time after the date hereof and prior to the Expiration Date (as defined
below), at a price per share as set forth in Section 1 hereof (the "Warrant
Price"), the number of fully paid and non-assessable shares of Common Stock of
the Company as set forth in Section 2 hereof (the "Shares").
1. Warrant Price. The Warrant Price for each of the Shares
purchasable hereunder shall be Forty Five Cents ($0.45) (the "Warrant Price"),
subject to adjustment as provided in Section 10.
2. Number of Shares. The number of Shares issuable upon
exercise of this Warrant shall be One Hundred Thousand (100,000), subject to
adjustment as provided in Section 10.
3. Expiration of Warrant. Subject to earlier termination in
accordance with Section 8 below, this Warrant shall expire and shall no longer
be exercisable after July 25, 2009 (the "Expiration Date").
4. No Fractional Shares. This Warrant may not be exercised as to
fractional Shares.
5. No Stockholder Rights. This Warrant shall not entitle
Holder to any of the rights of a stockholder of the Company.
6. Reservation of Shares. The Company covenants that during
the period this Warrant is exercisable it will reserve from its authorized and
unissued shares of Common Stock a sufficient number of shares to provide for the
issuance of the maximum number of shares of Common Stock issuable upon the
exercise of this Warrant.
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The Company agrees that its issuance of this Warrant shall constitute full
authority to its officers to instruct the Company's transfer agent to issue the
necessary certificates for shares of Common Stock upon the exercise of this
Warrant.
7. Exercise of Warrant.
(a) This Warrant may be exercised by ▇▇▇▇▇▇, in whole
or in part, at any time after the date hereof and prior to the Expiration Date
by the surrender of this Warrant at the principal office of the Company,
together with the Subscription Form attached hereto duly completed and executed,
accompanied by payment in full of the aggregate Warrant Price for the Shares
being purchased upon such exercise. In the event of exercise of this Warrant in
compliance with the provisions hereof, certificates for the Shares so purchased
shall be delivered to Holder promptly and, unless this Warrant has been fully
exercised or expired, a new Warrant representing that portion of the Shares, if
any, with respect to which this Warrant will not then have been exercised, shall
be issued to Holder. The Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for
exercise as provided above, and Holder shall be treated for all purposes as the
holder of record of such shares as of the close of business on such date.
In lieu of exercising this Warrant pursuant to the first
paragraph of Section 7 (a), Holder may elect to receive Shares equal to the
value of this Warrant (or any portion thereof remaining unexercised) by
surrender of this Warrant at the principal office of the Company together with
the Subscription Form, in which event the Company shall issue to Holder a number
of Shares computed using the following formula:
X = Y (A-B)
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A
Where X= the number of Shares to be issued to Holder.
Y= the number of Shares for which this Warrant is then
being exercised (at the date of such exercise).
A= the fair market value of one Share (at the date of such
exercise).
B= the Warrant Price (as adjusted to the date of such exercise).
For purposes of this subsection fair market value of one Share shall
mean:
(i) The average of the closing bid and asked prices of
the Common Stock quoted in the NASDAQ National Market System
or the Over-the-Counter market or the closing price quoted on
any exchange on which the Common Stock is listed, whichever is
applicable, as published in the Western Edition of The Wall
Street Journal for the five (5) trading days prior to the date
of determination of the fair market value; or
(ii) If the Common Stock is not publicly traded, the
per share fair market value of the Common Stock shall be
determined in good faith by the Company's Board of
Directors.
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If Holder disagrees with the determination by the Board of
Directors of the fair market value of the Common Stock then such
fair market value shall be determined by an independent appraiser
selected jointly by the Company and Holder. The cost of such
appraisal shall be paid equally by the Company and Holder.
(b) As promptly as practicable on or after such date, the
Company shall cause to be issued and delivered to Holder a
certificate or certificates for the number of full Shares
issuable upon such exercise.
(c) Issuance of certificates for the Shares upon the
exercise of this Warrant shall be made without charge to the
registered holder hereof for any issue or transfer tax or other
incidental expense with respect to the issuance of such
certificates, all of which taxes and expenses shall be paid by
the Company, and such certificates shall be issued in the name of
the registered holder of this Warrant or in such name or names as
may be directed by the registered holder of this Warrant;
provided, however, that in the event certificates for the Shares
are to be issued in a name other than the name of the registered
holder of this Warrant, this Warrant, when surrendered for
exercise, shall be accompanied by the Assignment Form attached
hereto duly executed by Holder hereof, and provided further, that
any such transfer shall comply with Section 9 hereof.
8. Automatic Termination. In the event of the sale of all or
substantially all the capital stock, or substantially all the assets, of the
Company in a merger, business combination, or other form of business transaction
with or into a third party in which the Company's stockholders do not own at
least a majority of the outstanding voting securities of the surviving
corporation or business entity after such transaction, then the Company shall
give Holder of this Warrant at least thirty (30) days written notice of the
proposed effective date and terms of such offering, transaction or agreements,
and if the Warrant has not been exercised before the effective date of such
transaction, then this Warrant and the rights hereunder shall be automatically
terminated.
9. Transfer or Assignment of Warrant.
(a) This Warrant, and any rights hereunder, may not be
assigned or transferred, except as provided herein and in accordance with and
subject to the provisions of (i) applicable state securities laws, and (ii) the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (such Act and such rules and regulations being hereinafter
collectively referred to as the "Securities Act"). Any purported transfer or
assignment made other than in accordance with this Section 9 shall be null and
void and of no force and effect.
(b) This Warrant, and any rights hereunder, may be
transferred or assigned only with the prior written consent of the Company,
which shall be granted only upon receipt by the Company of an opinion of counsel
satisfactory to the Company that (i) the transferee is a person to whom this
Warrant may be legally transferred without registration under the Securities
Act, and (ii) such transfer will not violate any applicable law or governmental
rule or regulation, including, without limitation, any applicable federal or
state securities law.
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(c) Any assignment permitted hereunder shall be made by
surrender of this Warrant to the Company at its principal office with the
Assignment Form annexed hereto duly executed and funds sufficient to pay any
transfer tax, if any. In such event, 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 be promptly canceled.
10. Adjustments to Shares.
(a) If the outstanding shares of the Company's Common
Stock shall be subdivided into a greater number of shares or a dividend in
Common Stock shall be paid in respect of Common Stock, the Warrant Price in
effect immediately prior to such subdivision or at the record date of such
dividend shall simultaneously with the effectiveness of such subdivision or
immediately after the record date of such dividend be proportionately reduced.
If outstanding shares of Common Stock shall be combined into a smaller number of
shares, the Warrant Price in effect immediately prior to such combination shall,
simultaneously with the effectiveness of such combination, be proportionately
increased. When any adjustment is required to be made in the Warrant Price, the
number of shares of Common Stock purchasable upon the exercise of this Warrant
shall be changed to the number determined by dividing (i) an amount equal to the
number of shares issuable upon the exercise of this Warrant immediately prior to
such adjustment, multiplied by the Warrant Price in effect immediately prior to
such adjustment, by (ii) the Warrant Price in effect immediately after such
adjustment.
(b) In case of any reclassification or change of the
outstanding securities of the Company or of any reorganization of the Company
(or any other corporation the stock or securities of which are at the time
receivable upon the exercise of this Warrant) or any similar corporate
reorganization on or after the date hereof, then and in each such case the
holder of this Warrant, upon the exercise hereof at any time after the
consummation of such reclassification, change, reorganization, merger or
conveyance, shall be entitled to receive, in lieu of the stock or other
securities and property receivable upon the exercise hereof prior to such
consummation, the stock or other securities or property to which such holder
would have been entitled upon such consummation if such holder had exercised
this Warrant immediately prior thereto, all subject to further adjustment as
provided in Section 10(a); and in each such case, the terms of this Section 10
shall be applicable to the shares of stock or other securities properly
receivable upon the exercise of this Warrant after such consummation.
(c) When any adjustment is required to be made in the
number of shares of Common Stock purchasable hereunder or the Warrant Price
pursuant to this Section 10, the Company shall promptly mail to the Holder a
certificate setting forth (i) a brief statement of the facts requiring such
adjustment, (ii) the Warrant Price after such adjustment and (iii) the kind and
amount of stock or other securities or property into which this Warrant shall be
exercisable after such adjustment.
11. Loss, Theft, Destruction or Mutilation of Warrant. Upon
receipt by the Company of evidence reasonably satisfactory to it of the loss,
theft, destruction or mutilation of this Warrant, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto, and
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upon surrender and cancellation of this Warrant, if mutilated, the Company will
make and deliver a new warrant identical in tenor and date in lieu of this
Warrant.
12. General. This Warrant shall be governed by and interpreted
in accordance with the laws of the State of California, except for its
principles of conflicts of laws. The headings in this Warrant are for purposes
of convenience and reference only and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally but rather only by an instrument in writing
signed by the Company and Holder. All notices and other communications from the
Company to Holder shall be mailed by prepaid courier or first-class registered
or certified mail, postage pre-paid, to the address furnished to the Company in
writing by the last holder who shall have furnished an address to the Company in
writing.
13. Amendment and Waiver. Any provisions of this Warrant
(including, without limitation, termination of exercisability) may be amended or
waived, and any and all such amendments or waivers shall be binding upon Holder,
only if approved in writing by the Company and Holder.
Issued this 25 day of July, 2007.
INTRAOP MEDICAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President and
Chief Executive Officer
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SUBSCRIPTION FORM
The undersigned registered owner of the Warrant which accompanies this
Subscription Form hereby irrevocably (a) exercises such warrant for, and
purchases ______ shares of Common Stock (the "Shares") of Intraop Medical
Corporation, Inc., a Nevada corporation (the "Company"), purchasable upon the
exercise of such Warrant, and herewith makes payment therefor, or (b) exercises
such Warrant for ______ shares of Intraop Medical Corporation Common Stock
purchasable under the Warrant pursuant to the net exercise provisions of the
second paragraph of Section 7(a) of such Warrant all at the price and on the
terms and conditions specified in such Warrant.
1.01 Authorization. This exercise constitutes a valid and
legally binding obligation of the undersigned, enforceable in accordance with
its terms.
1.02 Investment Representation. The undersigned acknowledges,
represents, and warrants that it (a) has a preexisting personal or business
relationship with the Company, and/or by reason of its business or financial
experience has the capacity to protect its own interests in connection with the
transaction, and (b) is an "accredited investor" under Regulation D of the
Securities Act of 1933, as amended (the "Act"). The undersigned further
acknowledges that it is aware that the Shares have not been registered under the
Act, or qualified under any state's securities laws. The Shares are being
acquired for investment purposes only and not for sale or with a view to
distribution of all or any part thereof.
1.03 Access to Information. The undersigned represents that it has
or will have had upon exercise of the Warrant an opportunity to ask questions of
and receive answers from the Company regarding the terms and conditions of its
purchase of the Shares concerning the business, financial affairs and other
aspects of the Company, and it has further had the opportunity to obtain any
information (to the extent the Company possesses or can acquire such information
without unreasonable effort or expense) which it deems necessary to evaluate its
investment or to verify the accuracy of information otherwise provided to it.
The undersigned acknowledges that it is not relying upon any person, firm or
corporation (other than the Company and its officers and directors) in making
its investment or decision to invest in the Company, and the undersigned
represents that it has been solely responsible for its own "due diligence"
investigation of the Company and its management and business, for its own
analysis of the merits and risks of this investment.
1.04 Investment Experience. The undersigned represents and warrants
that by reason of its financial and business experience, it has the capacity to
protect its interests in connection with these transactions.
1.05 Restricted Securities. The undersigned understands that the
Shares will be characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering, and that under such laws and
applicable regulations such securities may be resold without registration under
the Act only in certain limited circumstances and that otherwise such securities
must be held indefinitely. In this connection, the undersigned represents that
it is familiar with SEC Rule 144, as presently in effect, and the conditions
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which must be met in order for that Rule to be available for resale of
"restricted securities," and understands the resale limitations imposed by the
Act.
1.06 Further Limitations on Disposition. Without in any way
limiting the representations set forth above, the undersigned further agrees not
to make any disposition of all or any portion of the Shares unless and until:
(a) There is then in effect a "Registration Statement"
under the Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement and any applicable requirements of
state securities laws; or
(b) (i) the undersigned shall have notified the Company of
the proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii) if
reasonably requested by the Company, shall have furnished the Company with an
opinion of counsel at undersigned's expense (except for dispositions pursuant to
Rule 144 of the Rules and Regulations under the Act which dispositions shall not
so require an opinion of counsel) reasonably satisfactory to the Company, that
such disposition will not require registration of the Shares under the Act or
the consent of or permit from appropriate authorities under any applicable state
securities law.
(c) Notwithstanding the provisions of paragraphs (a) and
(b) above, no such Registration Statement or opinion of counsel shall be
necessary for a transfer by the undersigned to a constituent stockholder or
constituent partner (including any constituent of a constituent) of the
undersigned, if the transferee or transferees agree in writing to be subject to
the terms hereof to the same extent as if they were the undersigned hereunder.
2. RESTRICTIONS ON THE TRANSFER OF SECURITIES.
2.01 Corporate Securities Law. The Shares shall be transferred only
in compliance with the conditions specified in Section 1.06, which conditions
are intended to ensure compliance with the provisions of the Act and state
securities laws with respect to the transfer of any such securities. Each
certificate representing the Shares shall bear at least a legend substantially
in the following form until such time as the conditions of such legend have been
met:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED ("ACT"), NOR HAVE THEY BEEN REGISTERED OR QUALIFIED
UNDER THE SECURITIES LAWS OF ANY STATE. NO TRANSFER OF SUCH SECURITIES WILL BE
PERMITTED UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH
TRANSFER, THE TRANSFER IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT OR AS
OTHERWISE PERMITTED BY THE COMPANY, OR IN THE OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY AND AT HOLDER'S EXPENSE, REGISTRATION UNDER THE ACT IS UNNECESSARY
IN ORDER FOR SUCH TRANSFER TO COMPLY WITH THE ACT AND WITH APPLICABLE STATE
SECURITIES LAWS.
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The Company shall, within ten (10) days of the request of any holder of a
certificate bearing the foregoing legend and the surrender of such certificate,
issue a new stock certificate in the name of the transferee provided that there
has been compliance with the provisions of subsection 1.06 above.
2.02 Additional Legends. The Company may also impose any additional
legend required under applicable federal or state securities laws or permitted
under its bylaws and shall be entitled to issue stop transfer notices on its
books with respect to any securities purchased hereunder until the conditions
set forth in the applicable legends have been met.
Dated:
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(Signature of Registered Owner)
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(Name)
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(Street Address)
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(City, State, Zip Code)
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Social Security or Tax Identification Number
If the number of Shares issuable upon this exercise shall not be all of the
Shares which the undersigned is entitled to purchase in accordance with the
enclosed Warrant, the undersigned requests that a new warrant evidencing the
right to purchase the Shares not issuable pursuant to the exercise evidenced
hereby be issued in the name of and delivered to:
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(Please print name and address)
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Date: Name of Holder:
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(By)
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(Name:)
(Title:)
(Signature must conform in all respects
to name of holder as specified on the face of
the Warrant)
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FORM OF ASSIGNMENT
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(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
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(Name and address of assignee must be printed or typewritten)
___________ shares of Intraop Medical Corporation Common Stock purchasable under
the within Warrant, hereby irrevocably constituting and appointing
______________________ Attorney to transfer said Warrant on the books of the
Company, with full power of substitution in the premises.
Dated:
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(Signature of Registered Owner)