EXHIBIT 4.21
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THIS WARRANT AND THE SHARES OF COMMON STOCK WHICH MAY BE ISSUED UPON THEIR
EXERCISE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR UNDER THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED OR SOLD IN
CONTRAVENTION OF THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
LAWS OR THE RESTRICTIONS CONTAINED IN THIS WARRANT.
WARRANT TO PURCHASE
500,000 SHARES OF NEW YORK HEALTH CARE, INC.
THIS WARRANT CERTIFIES THAT, for value received, CORVAL INTERNATIONAL INC.,
a Canadian corporation ("CII"), or registered assigns, is entitled to purchase
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from NEW YORK HEALTH CARE, INC., a New York corporation (the "Company"), at any
time after the date hereof to and including 5:00 p.m. New York time on the one
year anniversary of the issuance date, Five Hundred Thousand (500,000) fully
paid and non-assessable shares of the Common Stock, par value $.01 per share
(the "Common Stock"), of the Company.
I. Method of Exercise; Payment; Price; Issuance of New Warrant;
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Transfer and Exchange. This Warrant (the "Warrant") may be exercised by the
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holder hereof, during any period set forth above, in whole or in part (but not
as to a fractional share of Common Stock), by the surrender of this Warrant,
together with the exercise form attached hereto as Exhibit "1" (the "Exercise
Form") duly completed and signed, at the principal office of the Company, and by
payment to the Company of the Warrant Price: (a) in cash, certified check or
wire transfer; (b) by delivery to the Company of shares of Common Stock (which
may include restricted shares); (c) any combination of cash and Common Stock or
(d) such other consideration as the Company deems appropriate and in compliance
with applicable law. In the event that any shares of Common Stock shall be
transferred to the Company to satisfy all or any part of the purchase price, the
part of the purchase price deemed to have been satisfied by such transfer of
shares of Common Stock shall be equal to the product derived by multiplying the
fair market value (i.e., the closing bid price) as of the date of exercise times
the number of shares of Common Stock transferred to the Company.
For the purposes of this Warrant, the Warrant may be exercised at the times
and at the prices (the "Warrant Price") as follows:
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First Tranche: Vested immediately on the effective . 250,000 shares @ $2.50 per share
date of that certain Business Advisory Agreement
between CORVAL INTERNATIONAL INC. and The
Bio Balance Corp., a wholly-owned subsidiary of
New York Health Care, Inc. (the "Effective Date")
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Second Tranche: Vested 90 days after the Effective . 250,000 shares @ $2.50 per share
Date, but only if the Business Advisory Agreement
has not been terminated on or prior to the 90th day
pursuant to the provisions of paragraph 14 thereof.
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The Company agrees that the shares so purchased shall be deemed to be
issued to the holder hereof as the record owner of such shares as of the close
of business on the date on which this Warrant shall have been surrendered and
payment made for such shares as aforesaid shall have been made. In the event of
any exercise of this Warrant, certificates for the shares of Common Stock so
purchased shall be delivered to the holder hereof within a reasonable time after
this Warrant shall have been so exercised. Unless this Warrant has expired, a
new warrant representing the right to purchase the number of shares of Common
Stock, if any, with respect to which this Warrant shall not then have been
exercised, shall also be issued to the holder hereof at such time.
This Warrant shall be transferable only on the books of the Company
maintained at its principal office upon delivery thereof by the holder or by its
duly authorized attorney or representative, or accompanied by proper evidence of
succession, assignment or authority to transfer, together with the form of the
assignment, attached hereto as Exhibit "2" (the "Assignment Form") duly
completed and signed.
2. Stock Fully Paid; Reservation of Shares. The Company covenants and
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agrees that all shares of Common Stock shall, upon issuance pursuant to the
exercise of this Warrant and payment of the Warrant Price, be fully paid and
nonassessable and free from all liens and encumbrances with respect to the
issuance thereof, except for liens and encumbrances which may have been incurred
by CII or the holder hereof. The Company further covenants and agrees that
during the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, for the purpose of the issuance upon
exercise of this Warrant, at least the maximum number of shares of Common Stock
as are issuable upon the exercise of this Warrant.
3. Adjustment of Warrant Price and Number of Shares of Common Stock.
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The number and kind of securities purchasable upon the exercise of this Warrant
and the Warrant Price shall be subject to adjustment from time to time as
follows:
(a) If the Company shall subdivide its outstanding shares of
Common Stock, then the number of shares of Common Stock purchasable upon
exercise of this Warrant immediately prior thereto, shall be adjusted so that
the holder of this Warrant shall be entitled to receive the kind and number of
shares of Common Stock or other securities of the Company which it would have
owned or have been entitled to receive after the occurrence of any of the events
described above, had such Warrant been exercised immediately prior to the
occurrence of such event (or any record date with respect thereto). An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of the event retroactive to the record
date, if any, for such event.
(b) No adjustment in the number of shares of Common Stock
purchasable under this Warrant shall be required unless the adjustment would
require an increaseWJDWilliam J. DavisThis could have the effect of limiting
adjustments to only those which "increase" the issuable shares, rather than
decrease them, as in the case of a reverse split. I most warrants, the word
"increase" would be replaced by the word "adjustment." of at least one percent
in the number of shares of Common Stock purchasable upon the exercise of this
Warrant. Any adjustments which by reason of this paragraph (b) are not required
to be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 3 shall be made to the nearest
onehundredth of a share or to the nearest cent, as the case may be.
(c) Whenever the number of shares of Common Stock purchasable upon
the exercise of this Warrant is adjusted, the Warrant Price per share of Common
Stock payable upon exercise of each Warrant shall be adjusted by multiplying
such Warrant Price immediately prior to such adjustment by a fraction, the
numerator of which shall be the number of shares of Common
Stock purchasable upon the exercise of each Warrant immediately prior to such
adjustment, and the denominator of which shall be the number of shares of Common
Stock purchasable immediately after such adjustment.
(d) Whenever the number of shares of Common Stock purchasable upon
the exercise of this Warrant or the Warrant Price of such shares of Common Stock
is adjusted, the Company shall promptly mail by first class mail, postage
prepaid, to the holder of this Warrant notice of such adjustment or adjustments,
together with a certificate setting forth the number of shares of Common Stock
purchasable upon the exercise of this Warrant and the Warrant Price of the
shares of Common Stock after the adjustment, a brief statement of the facts
requiring such an adjustment, and the computation by which such adjustment was
made.
(e) For the purpose of this Section 3, the term "shares of Common
Stock" means the Common Stock of the Company of the class authorized at the date
of this Warrant and stock of any other class into which such presently
authorized shares of Common Stock may be changed and any other shares of stock
of the Company which do not have priority in the payment of dividends or upon
liquidation over any other class of stock. In the event that at any time, as a
result of an adjustment made pursuant to this Section 3, the holders of this
Warrant become entitled to purchase any shares of Common Stock or other
securities of the Company other than shares of Common Stock, thereafter the
number of such other shares or other securities so purchasable upon exercise of
this Warrant and the Warrant Price of such shares or other securities shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the shares contained
in this Section 3 and the provisions of this Section 3 and all other applicable
sections of this Warrant shall apply on like terms to any such other shares or
securities.
(f) Except as provided in paragraphs (a) through (e), no
adjustment for any dividends, or any distribution or sale of securities, shall
be made during the term of this Warrant or upon the exercise of this Warrant.
(g) In case of any capital reorganization, or any reclassification
of the shares of Common Stock of the Company, or in case of the consolidation or
merger of the Company with or into any other corporation or the sale, lease,
conveyance or other disposition of all or substantially all of the properties
and assets of the Company to any other corporation, the Company or such
successor or purchasing corporation, as the case may be, shall execute with the
holder of this Warrant an agreement to the effect that this Warrant shall, after
such capital reorganization, reclassification, consolidation, merger or sale,
lease, conveyance or other disposition, be exercisable into the kind and amount
of shares of stock or other securities or property (including cash) to which the
holder of the number of shares of Common Stock deliverable (immediately prior to
the happening of such capital reorganization, reclassification, consolidation,
merger, sale, lease, conveyance or other disposition) upon exercise of a Warrant
would have been entitled upon the happening of such event. The Company shall
mail by first class mail, postage prepaid, to the holder of this Warrant a
notice of any event requiring such agreement at least 30 days prior to the
effective date of such event. Such agreement shall provide for all appropriate
adjustments, which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 3. The provisions of this paragraph (g)
shall also apply to successive reorganizations, reclassifications,
consolidations, mergers, sales, leases, conveyances and other dispositions.
(h) Irrespective of any adjustments in the Warrant Price or the
number or kind of shares or other securities purchasable upon the exercise of
this Warrant, the Warrant theretofore or thereafter issued may continue to
express the same price and number and kind of shares of Common Stock as are
stated in this Warrant.
(i) The Company shall not be required to issue fractional shares
of Common Stock on the exercise of Warrants. If any fraction of a share would,
except for the provisions of this Section 3, be issuable on the exercise of this
Warrant (or specified portion thereof), the Company shall pay an amount in cash
equal to the current market price per share of Common Stock, multiplied by such
fraction.
4. Registration Rights. This Warrant shall entitle the holder hereof
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to certain registration rights with respect to the shares of Common Stock
issuable upon the exercise hereof, in accordance with the terms, and subject to
the conditions, of that certain Registration Rights Agreement in the form
attached hereto as Exhibit "3".
5. No Shareholder Rights. This Warrant shall not entitle the holder
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hereof to any voting rights or other rights as a shareholder of the Company.
6. Gender and Number. As used herein, the use of any of the masculine,
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feminine, or neuter gender and the use of singular or plural numbers shall
include any or all of the other, wherever and whenever appropriate in the
context.
7. Notices. Except as otherwise provided herein, any notice pursuant
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to this Warrant by the Company or any Holder of the Warrant shall be in writing
and shall be deemed to have been duly given when personally delivered or five
days after such notice is mailed by certified mail, return receipt requested,
postage prepaid (a) if to the Company, to The Bio Balance Corp., ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention ▇▇▇▇ ▇▇▇▇▇, President, and to New York
Health Care, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇▇▇▇▇, President; and (b) if to the Holder of this Warrant, to Corval
International Inc. : Attention ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ , President, or to such other
address as it may be changed from time to time on the books of the Company by
written notice. Copies of all notices to the Company shall be simultaneously
given to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Scheichet& ▇▇▇▇▇, P.C., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, fax (▇▇▇) ▇▇▇-▇▇▇▇, e-mail
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. Each party hereto may from time to time change the
address to which notices to it are to be delivered or mailed hereunder by notice
in writing to the other party.
8. Benefits. Nothing in the Warrant shall be construed to give to any
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person or corporation other than the Company and the holder of this Warrant any
legal or equitable right, remedy, or claim hereunder; but this Warrant shall be
for the sole and exclusive benefit of the Company and the holder of this
Warrant.
9. Investment. The Holder hereof covenants and agrees that this
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Warrant has been taken for investment and for its own account and not with a
view towards resale or distribution within the meaning of the Securities Act of
1933, as amended (the "Securities Act").
10. Exchange. This Warrant is exchangeable, upon the surrender hereof
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by the Holder hereof at the principal office of the Company, for new Warrants of
like tenor representing in the aggregate the right to subscribe for and purchase
the number of shares which may be subscribed for and purchased hereunder, each
of such new Warrants to represent the right to subscribe for and purchase such
number of shares as shall be designated by said Holder hereof at the time of
such surrender.
11. Applicable Law. This Warrant shall be governed by and construed
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and enforced
in accordance with the laws of the State of New York without giving effect to
the choice of law or conflict of laws principles. The New York state and federal
courts in New York shall have jurisdiction over any and all disputes arising out
of or relater to this Warrant..
DATED as of April 21, 2003 NEW YORK HEALTH CARE, INC.
By:
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Name:
Title:
EXHIBIT 1
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EXERCISE FORM
(To be Executed by the Registered Holder
to Exercise the Rights to Purchase
Common Shares Evidenced by the Warrant)
New York Health Care, Inc.
__________________________
__________________________
Attention: ______________
The undersigned hereby irrevocably subscribes for _________ shares of your
Common Stock pursuant to and in accordance with the terms and conditions of that
certain Warrant dated as of April 21, 2003, and herewith makes payment of
$__________ therefor, and requests that a certificate for such shares be issued
in the name of the undersigned and be delivered to the undersigned at the
address stated below. The undersigned further requests that if the number of
shares subscribed for herein shall not be all of the shares purchasable
hereunder, that a new Warrant of like tenor for the balance of the shares
purchasable hereunder be delivered to the undersigned.
Name:______________________________
Signed:____________________________
Address:___________________________
___________________________________
Dated:_________________________________
EXHIBIT 2
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ___________________________________
hereby sells, assigns and transfers unto _________________________________,
_______________ of the ____________ Warrants represented by the within Warrant,
together with all rights, title and interest therein, and does hereby
irrevocably constitute and appoint the Company the undersigned's attorney to
transfer said Warrant on the books of such Company with full power of
substitution in the premises.
Dated: _______________________________,
Name of Existing Warrant Holder:________________________________________________
Social Security or Federal Tax ID Number:_______________________________________
Address:________________________________________________________________________
Signature:______________________________________________________________________
Name of New Warrant Holder:_____________________________________________________
Social Security or Federal Tax ID Number:_______________________________________
Address:________________________________________________________________________
Signature:______________________________________________________________________
(A qualified Medallion Guarantee of the transferor's signature must appear
below)
EXHIBIT 3
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of April
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___, 2003, by and between New York Health Care, Inc., a New York corporation
with its principal offices in New York, NY (the "Company"), and CORVAL
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INTERNATIONAL INC a Canadian corporation with its registered offices in Montreal
Canada ("CII").
The parties hereto, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS. The following terms have the following meanings:
(a) "Act" means the U.S. Securities Act of 1933, as amended, and
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the rules and regulations promulgated thereunder.
(b) "Commission" means the Securities and Exchange Commission.
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(c) "Common Stock" means the Common Stock, par value $0.01 per
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share, of the Company.
(d) "Registrable Securities" means any Warrant Shares (as defined
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herein), of the Company owned by CII or its assigns .
(e) "Registration," "register" and like words mean compliance with
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all of the laws, rules and regulations (federal, state and local), and
provisions of agreements and corporate documents pertaining to the public
offering of securities, including registration of any public offering of
securities on any form under the Act.
(f) "Warrant Shares" means any shares of Common Stock of the
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Company received by CII in connection with the exercise of the Common Stock
Purchase Warrant (the "Warrant") of even date herewith given by the Company to
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CII or any new warrant given to CII pursuant to the terms of such warrant.
2. (a) PIGGYBACK REGISTRATION. At any time following the date hereof
and prior to the Registration of all of the Warrant Shares, and subject to the
other provisions of this Agreement, the Company shall advise CII by written
notice at least ten (10) days prior to the filing of any registration statement
under the Act by the Company (other than a registration statement on Form ▇-▇,
▇▇▇▇ ▇-▇ or subsequent similar forms), and will upon the provision of written
notice from CII as described below include in any such registration statement
such information as may be required to permit a public offering of the
Registrable Securities desired to be registered by CII. If CII desires to have
its Registrable Securities included in such registration statement, it must so
advise the Company in writing within five (5) days after the date of receipt of
the Company's notice of registration, setting forth the amount of Registrable
Securities for which registration is requested; provided, however, that if the
sole underwriter or managing underwriters advise the Company that the inclusion
in the offering of securities proposed to be sold by CII would adversely affect
the ability of the Company to complete the offering, then the Company shall have
the right to reduce the number of shares for which CII is seeking registration
on a pro rata
basis with all other selling shareholders seeking registration in any such
registration statement.
(b) DEMAND REGISTRATION RIGHTS. In the event that the Warrant Shares
are excluded from registration as described in 2(a) above (the "initial
registration"), the Company will at its own expense file a registration
statement at the next earliest practicable date not later than 90 days following
completion of that offering and include the Warrant Shares (the "Demand
Registration"). Such registration statement may be a post effective amendment,
registration under Form S-3 or any other registration process available to it
under the then existing SEC guidelines. In the event the Demand Registration is
not filed by the 90th day following the completion of the offering included in
the initial registration, the Company agrees that it will then be in default
under the terms of this Agreement. The holder of the Warrant Shares shall have
all rights and remedies available to him to seek damages as well as to seek
specific performance.
3. INFORMATION TO BE FURNISHED BY CII. CII shall furnish to the Company
in writing all information within its possession or knowledge required by the
applicable rules and regulations of the Commission and by any applicable state
securities or blue sky laws concerning CII, the proposed method of sale or other
disposition of the shares of Common Stock being sold by CII in such offering,
and the identity of and compensation to be paid to any proposed underwriter or
underwriters to be employed in connection with such offering.
4. COSTS AND EXPENSES. The Company shall pay all costs and expenses in
connection with the Registration under this Agreement; provided, however, that
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CII and the holder shall bear the fees and expenses of its own counsel and
accountants and any selling expenses relating to Registrable Shares registered
on behalf of CII or the holder in connection with such offering, including
without limitation, any transfer taxes, underwriting discounts or commissions.
5. NOTICES. All notices and other communications provided for
hereunder must be in writing and shall be deemed to have been given on the same
day when personally delivered or sent by confirmed facsimile transmission or on
the next business day when delivered by receipted courier service or on the
third business day when mailed with sufficient postage, certified mail, return
receipt requested, to the following addresses: (a) if to the Company, to The Bio
Balance Corp., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention ▇▇▇▇ ▇▇▇▇▇,
President, and to New York Health Care, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇, President; and (b) if to the Holder of this
Warrant, to Corval International Inc. :____________________________________
Attention ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ , President, or to such other address as it may be
changed from time to time on the books of the Company by written notice. Copies
of all notices to the Company shall be simultaneously given to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Esq., Scheichet& ▇▇▇▇▇, P.C., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
fax (▇▇▇) ▇▇▇-▇▇▇▇, e-mail ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. Each party hereto may
from time to time change the address to which notices to it are to be delivered
or mailed hereunder by notice in writing to the other party.
7. ENTIRE AGREEMENT; MODIFICATION OF AGREEMENT; CONSENTS. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof. Changes in or additions to this Agreement
may be made and/or compliance with any covenant or condition herein set forth
may be omitted only upon written consent of all the parties hereto.
8. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective permitted
successors, transferees and assigns.
9. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York without giving
effect to the choice of law or conflict of laws principles. The New York state
and federal courts in New York shall have jurisdiction over any and all disputes
arising out of or relating to this Agreement.
10. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original and both of which together shall constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be duly executed as of the date first set forth above.
NEW YORK HEALTH CARE, INC.
By:___________________________________
Name:_________________________________
Its:__________________________________
CORVAL INTERNATIONAL INC
By:___________________________________
Name:_________________________________
Its:__________________________________