EXHIBIT 10.15
FORM OF STOCK PURCHASE WARRANT
------------------------------
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION ("BLUE SKY LAWS"), AND CANNOT BE RESOLD UNLESS
THEY ARE REGISTERED UNDER THE ACT AND ANY APPLICABLE BLUE SKY LAWS,
UNLESS AN EXEMPTION IS AVAILABLE. THE SECURITIES REPRESENTED BY THIS
WARRANT HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR
IN CONNECTION WITH, THE SALE OF DISTRIBUTION THEREOF.
TOPFORM, INC.
STOCK PURCHASE WARRANT
WARRANT TO PURCHASE ____________ SHARES OF COMMON STOCK AS
DESCRIBED HEREIN
Dated: As of March 15, 1998
This certified that, for value received, including services to be performed
pursuant to various employment agreements by and between Topform, Inc. and
TrueVision Laser Centers, Inc. is entitled to purchase from Topform, Inc., a
Delaware corporation (the "Company"), having its principal office located at
▇▇▇ "▇" ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, eighteen million, six
hundred sixty sis thousand and six hundred sixty seven (18,666,667) fully
paid and nonassessable shares of Common Stock, no par value, of the Company
(the "Common Stock"), subject to the terms set forth herein, at an exercise
price of Nine Cents ($0.09), per share, subject to adjustment as provided
elsewhere herein (the "Warrant Price"). The holder of this Warrant shall be
referred to herein as the "Warrantholder" or the "Holder."
1. "COMMON STOCK." If at any time, as a result of an adjustment made
pursuant to Section , the securities or other property obtainable upon
exercise of this Warrant shall include shares or other securities of the
Company other than common stock or securities of another corporation or other
property, thereafter the number of such other shares or other securities or
property so obtainable shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provision with
respect to the Common stock contained in Section, and all other provisions of
this Warrant with respect to the Common stock shall apply on like terms to
any such other shares or other securities or property. Subject to the
foregoing, and unless the context requires otherwise, all references herein
to "Common Stock" shall, in the event of an adjustment pursuant to Section,
be deemed to refer as well to any other securities or property then
obtainable as a result of such adjustments.
2. EXERCISE OF WARRANT. The purchase rights represented by this Warrant
may be exercised by the Warrantholder or its duly authorized attorney or
representative, in whole or in part (but not as to a fractional share of
Common Stock), at any time and from time to time during the period commencing
on the date of this Warrant (the "Commencement Date") and expiring at 5:00
p.m., Pacific Standard Time, April 15, 1999 (the "Expiration Date") (or such
earlier date as may be provided pursuant to Section 8 herein), or if such
date is a day on which federal or state chartered banking institutions are
authorized by law to close, then on the next succeeding day which shall not
be such a day, upon presentation of this Warrant at the principal office of
the Company, or at the office of its stock transfer agent, if any, with the
purchase form attached hereto duly completed and signed, and upon payment to
the Company in cash or by certified check or bank draft of an amount equal to
the number of shares being so purchased multiplied by the Warrant Price,
together with all taxes applicable upon such exercise. The Company
agrees that the Warrantholder will be deemed the record owner of such shares
as of the close of business on the date on which the Warrant shall have been
presented and payment shall have been made for such shares as aforesaid.
Certificates for the shares of Common Stock so purchased shall be delivered
to the Warrantholder within a reasonable time, not exceeding 20 days, after
the exercise in full of the rights represented by this Warrant. If the
Warrant is exercised in part only, the Company shall, upon surrender of this
Warrant for cancellation, deliver a new Warrant evidencing the rights of the
Warrantholder to purchase the balance of the shares of Common Stock which the
Warrantholder is entitled to purchase hereunder.
3. VESTING. Subject to Section 9 herein, the purchase rights
represented by this Warrant shall become exercisable immediately upon
issuance, which shall occur on or before March 31, 1998.
4. CERTAIN ADJUSTMENTS TO WARRANT. (a) In case the Company shall (i)
pay a dividend in shares of Common Stock or make a distribution in shares of
Common Stock, (ii) subdivide its outstanding shares of Common Stock, (iii)
combine its outstanding shares of Common Stock into a small number of shares
of Common Stock or (iv) issue by reclassification of its shares of Common
Stock other securities of the Company, the number of shares of Common Stock
purchasable upon exercise of this Warrant immediately prior thereto shall be
adjusted so that the Warrantholder shall be entitled to receive the kind and
number of shares of Common Stock or other securities of the Company which he
would have owned or have been entitled to receive at the happening of any of
the events described above, had such Warrant been exercised immediately prior
to the happening of such event or any record date with respect thereto. An
adjustment made the pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event. (b) Whenever the number of shares of Common
Stock purchasable upon the exercise of this Warrant is adjusted, as herein
provided, the Warrant Price shall be adjusted by multiplying such Warrant
Price immediately prior to such adjustment by a fraction, of which the
numerator shall be the number of shares of Common Stock purchasable upon the
exercise of this Warrant immediately prior to such adjustment, and of which
the denominator shall be the number of shares of Common Stock so purchasable
immediately thereafter. (c) In the event of any adjustment pursuant to this
Section, no fractional shares of Common Stock shall be issued in connection
with the exercise of any Warrants, but the Company shall, in lieu of such
fractional shares, make such cash payment therefor on the basis of the
current market price on the day immediately prior to exercise. (d)
Irrespective of any adjustments pursuant to this Section to the Warrant Price
or to the number of shares or other securities obtainable upon exercise of
this Warrant, this Warrant may continue to state the Warrant Price and the
number of shares obtainable upon exercise, as the same price and number of
shares stated herein.
5. MERGER. In the event of a merger, consolidation or reorganization with
another corporation in which the Company is not the surviving corporation,
the Company (subject to the approval of the Board) or the board of
directors of any corporation assuming the obligations of the Company
hereunder shall take action pursuant to either clause (a) or (b) below:
(a) Appropriate provision may be made for the protection of this
Warrant by the substitution on an equitable basis of appropriate
shares of the surviving corporation, provided that the excess of
the aggregate fair market value (as determined by the Company) of
the shares subject to this Warrant immediately before such
substitution over the exercise price hereof is not more than the
excess of the aggregate fair market value of the substituted shares
made subject to purchase immediately after such substitution over
the exercise price thereof; or
(b) Appropriate provision may be made for the cancellation of this
Warrant. In such event, the Company, or the corporation assuming
the obligations of the Company hereunder, shall pay the Holder an
amount of cash (less normal withholding taxes) equal to the excess
of the
highest fair market value per share of the Common Stock during the
60-day period immediately preceding the merger, consolidation or
reorganization over the exercise price, multiplied by the number of
shares subject to this Warrant (whether or not then exercisable).
6. COVENANTS OF THE COMPANY. The Company covenants and agrees that:
(a) During the period within which the rights represented by the Warrant
may be exercised, the Company will at all times reserve and keep
available, free from preemptive rights out of the aggregate of its
authorized but unissued Common Stock, for the purpose of enabling it to
satisfy any obligation to issue shares of Common Stock upon the exercise
of this Warrant, the number of shares of authorized Common Stock shall not
be sufficient to effect the exercise of this Warrant, the Company will
take such corporate action as may be necessary to increase its authorized
but unissued Common Stock to such number of shares as shall be sufficient
for such purpose. The company shall have analogous obligations with
respect to any other securities or properties issuable upon exercise of
this Warrant. The Company's issuance of this Warrant shall constitute full
authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for shares of
Common Stock upon the exercise of this Warrant;
(b) All Common Stock that may be issued upon exercise of the rights
represented by this Warrant will, upon issuance, be validly issued, fully
paid, non-assessable, and free from all taxes, liens, and charges with
respect to the issue thereof; and
(c) All original issue taxes payable with respect to the issuance of
shares upon the exercise of the rights represented by this Warrant will be
borne by the Company but in no event will the Company be responsible or
liable for income taxes or transfer taxes upon the transfer of any Warrant.
7. NO STOCKHOLDER RIGHTS. Until exercised, this Warrant shall not entitle the
Warrantholder to any voting rights or other rights as a stockholder of the
Company. The rights of the Holder are limited to those expressed in this
Warrant and are not enforceable against the Company except to the extent
set forth herein.
8. TRANSFER RESTRICTIONS.
(a) This Warrant is not transferable except by will or the laws of descent
and distribution and, during Holder's lifetime, it may only be
exercised by Holder.
(b) Neither this Warrant nor the shares of stock issuable upon the
exercise hereof have been registered under the Securities Act of 1933,
as amended (the "Securities Act") or under any state securities laws
and unless so registered may not be transferred, sold, pledged,
hypothecated or otherwise disposed of unless an exemption from such
registration is available. In the event Holder desires to transfer any
of the shares of stock issued hereunder, the Holder must give the
Company prior written notice of such proposed transfer including the
name and address of the proposed transferee. Such transfer may be made
only either (i) upon publication by the Securities and Exchange
Commission (the "Commission") of a ruling, interpretation, opinion or
"no action letter" based upon facts presented to said Commission, or
(ii) upon receipt by the Company of an opinion of counsel to the
Company in either case to the effect that the proposed transfer will
not violate the provisions of the Securities Act, the Securities
Exchange Act of 1934, as amended, or the rules and regulations
promulgated under either such act, or in the case of clause (ii) above,
to the effect that the shares of stock to be sold or transferred have
been
registered under the Securities Act and that there is in effect a
current prospectus meeting the requirements of Subsection 10(a) of the
Securities Act, which is being or will be delivered to the purchaser
or transferee at or prior to the time of delivery of the certificates
evidencing the shares of stock to be sold or transferred.
(c) Prior to any such proposed transfer, and as a condition thereof, if
such transfer is not made pursuant to an effective registration
statement under the Securities Act, the Holder will, if requested by
the Company, deliver to the Company (i) an investment covenant signed
by the proposed transferee, (ii) an agreement by such transferee to
the impression of the restrictive investment legend set forth herein
on the certificate or certificates representing the securities
acquired by such transferee, (iii) an agreement by such transferee
that the Company may place a "stop transfer order" with its transfer
agent or registrar, and (iv) an agreement by the transferee to
indemnify the Company to the same extent as set forth in paragraph
8(d) below.
(d) Holder acknowledges that Holder understands the meaning and legal
consequences of this Section 8, and the Holder hereby agrees to
indemnify and hold harmless the Company, its representatives and each
officer and director thereof from and against any and all loss, damage
or liability (including all attorneys' fees and costs incurred in
enforcing this indemnity provision) due to or arising out of (i) the
inaccuracy of any representation or the breach of any Warranty of
Holder contained in, or any other breach of, this Warrant Agreement,
(ii) any transfer of any of this Warrant or the shares of stock
issuable hereunder in violation of the Securities Act, the Securities
Exchange Act of 1934, as amended, or the rules and regulations
promulgated under either of such acts, (iii) any transfer of this
Warrant or any of said shares of stock not in accordance with this
Warrant Agreement or (iv) any untrue statement or omission to state
any material fact in connection with the investment representations or
with respect to the facts and representations supplied by the Holder
to counsel to the Company upon which its opinion as to a proposed
transfer shall have been based.
(e) Any assignment, transfer, pledge, hypothecation or other disposition
of this Warrant attempted contrary to the provisions of this Warrant
Agreement, or any levy of execution, attachment or other process
attempted upon the Warrant, shall be null and void without effect.
(f) Unless the shares of stock issuable hereunder have been registered
under the Securities Act, upon exercise of this Warrant (in whole or
in part) and the issuance of any of said shares, the Company shall
instruct its transfer agent to enter stop transfer orders with respect
to such shares, and all certificates representing said shares shall
bear on the face thereof substantially the following legend, insofar
as is consistent with all Federal and State securities law:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
OFFERED FOR SALE, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED PURSUANT TO THE PROVISIONS OF THAT ACT OR AN OPINION OF COUNSEL TO
THE COMPANY IS OBTAINED STATING THAT SUCH DISPOSITION IS IN COMPLIANCE WITH
AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION."
9. TERMINATION OF THE WARRANT. Notwithstanding anything herein to the
contrary, this Warrant will expire and be of no further force and effect
on April 15, 1999.
10. LOST CERTIFICATE. If this Warrant is lost, stolen, mutilated or
destroyed, the Company shall, on such terms as the Company may reasonably
impose, including a requirement that the Warrantholder obtain a bond,
issue a new Warrant of like denomination, tenor and date.
11. BINDING EFFECT. This Warrant shall inure to the benefit of and be binding
upon the Warrantholder, the Company and their respective successors and
permitted assigns.
12. COMPANY'S NOTICE OF CERTAIN EVENTS. So long as this Warrant shall be
outstanding and unexercised (i) if the Company shall pay any dividend or
make any distribution upon the Common Stock,or (ii) if the company shall
offer to the holders of Common Stock for subscription or purchase y them
any shares of stock of any class or any other rights, or (iii) in the
event of any capital reorganization of the Company, reclassification of
the company, reclassification of the capital stock of the Company,
consolidation or merger of the Company with or into another corporation,
sale, lease or transfer of shall or substantially all of the property ad
assets of the Company to another corporation, or voluntary or involuntary
dissolution, the Company shall cause to be delivered to the Holder, at
least ten days prior to the date specified in (a) or (b) below,a s the
case may be, a notice containing a brief description of the the proposed
action and stating the date on which (a) a record is to be taken for the
purpose of such dividend, distribution or rights, or (b) such
reclassification, reorganization, consolidation, merger, conveyance,
lease, dissolution, liquidation or winding up is to take place and the
date, if any, is to be fixed, as of which the holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such reclassification,
reorganization, consolidation, merger, conveyance, dissolution,
liquidation or winding up.
13. NOTICE. Notices and other communications to be given to the Holder of the
Warrants evidenced by this certificate shall be delivered by hand, by
facsimile transmission, or by overnight express courier or mailed,
postage prepaid, to the Holder at the address set forth agove, or such
other address as Holder shall have designated by written notice to the
Company as provided herein. Notices or other communications to the
Company shall be deemed to have been sufficiently given if delivered by
hand, by facsimile transmission, or by overnight express courier or
mailed, postage prepaid, to the Company at ▇▇▇ "▇" ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other address as the Company shall have
designated by written notice to such registered owner as herein provided.
All notices required hereunder shall be in writing and shall be deemed
received when delivered personally, one business day after delivery to a
nationally recognized commercial overnight courier service, or two
business days after mailing when mailed by certified or registered mail
to the Company or the Warrantholder.
14. GOVERNING LAW. The validity, interpretation, and performance of this
Warrant and of the terms and provisions hereof shall be governed by and
construed in accordance with the laws of the State of Delaware without
giving effect to the principles of conflicts of laws.
15. AMENDMENT. this Warrant may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written
agreement executed by the Company and the Warrantholder.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed effective as of March 15, 1998.
Topform, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, President