PDT, INC.
AMENDED AND RESTATED PROMISSORY NOTE WARRANT
This PDT, Inc. Promissory Note Warrant (the "Warrant") is made and entered
into at Santa Barbara, California, on the date hereinafter set forth by and
between PDT, INC., a Delaware Corporation, hereinafter called the "Company", and
the undersigned, hereinafter called the "Holder".
WHEREAS:
A. The Holder has offered bridge financing to the Company in the form of a 10%
Promissory Note (the "Note"); and
B. The Company has, as incentive to enter into the bridge financing, offered
the Holder a Warrant which will grant the right, but not the obligation, to
acquire (NUMBER) (#) shares of PDT, Inc. Common Stock as specified on the
signature page hereof, at the Strike Price as defined below.
NOW, THEREFORE, in consideration of the premises and promises, warranties and
representations herein contained, it is agreed as follows:
1. WARRANT. Subject to the conditions set forth herein, the Company hereby
grants to the Holder the right, privilege and option to purchase up to that
number of shares of Common Stock set forth on the signature page hereto at the
Strike Price per share set forth below (the "Warrant Shares"), said number of
Warrant Shares and said Strike Price being subject to adjustment as provided
herein. No fractional Conversion Shares or fractional Conversion Warrants will
be issued.
2. STRIKE PRICE. The initial price per share for the Warrant Shares (the
"Strike Price") shall be TEN DOLLARS AND SIXTY-SEVEN CENTS ($10.67) per share.
If from time to time after the date hereof the Company completes any private
placement sales of Common Stock or any preferred stock of the Company
convertible into or exchangeable for Common Stock (each a "Private Placement"),
or an Initial Public Offering or issues any warrant to purchase Common Stock, at
a purchase or "strike" price (in the case of Common Stock), or with a conversion
price or exchange rate (in the case of any preferred stock of the Company),
lower than $10.67 per share, adjusted for stock splits, stock dividends or
recapitalization, the Strike Price shall be reduced to the purchase price (or
conversion price or exchange rate, as applicable) per share, as adjusted, at
which such shares of Common Stock or convertible preferred stock are sold.
3. METHOD OF EXERCISE. ▇▇▇▇▇ purchased under this Warrant shall at the time
of purchase, be paid for in full. The right to purchase shares hereunder may be
exercised, from time to time, by written notice to the Company stating the
number of shares with respect to which this Warrant is being exercised and the
time of delivery thereof, which shall be at least ten (10) days after the giving
of such notice, unless an earlier date shall have been mutually agreed upon. At
the time specified in such notice, the Company shall, without transfer or issue
tax to the Holder, deliver to him by certified mail, a certificate or
certificates for such shares, against the payment of the Strike Price, in full,
for the number of shares to be delivered, by certified or bank cashier's check,
or the equivalent thereof acceptable to the Company. Provided, however, that the
time of such delivery may be postponed by the Company for such period as may be
required for it, with reasonable diligence, to comply with any requirements of
any state or federal agency or any securities exchange and further provided that
no fractional shares of Common Stock will be issued. If the Holder fails to
accept delivery of and pay for all or any part of the number of shares specified
in the notice given by the Holder, upon tender and delivery of said shares, the
Holder's right to exercise this Warrant with respect to such undelivered shares
shall be terminated. If this Warrant is exercised within six (6) months of the
Company's Initial Public Offering (IPO), the Holder shall execute a lock-up
agreement for the balance of the six month period following the IPO.
4. TERMINATION OF WARRANT. Except as herein otherwise stated, this Warrant,
to the extent not theretofore exercised, shall terminate at 5:00 p.m. Pacific
Standard Time three (3) years after the effective date of the Company's IPO or
as amended.
5. RECLASSIFICATION, CONSOLIDATION OR MERGER If, and to the extent that the
number of issued shares of Common Stock of the Company shall be increased or
reduced by a change in par value, subdivision, combination, split-up,
reclassification, distribution of a dividend payable in stock, or the like (but
excluding dividends payable in cash), the number of Warrant Shares subject to
this Warrant, and the Strike Price therefor, shall be proportionately adjusted.
If the Company is reorganized or consolidated, or merged with any other
corporation, the Holder shall be entitled to receive warrants covering shares of
such reorganized, consolidated or merged Company in the same proportion' at an
equivalent price, and subject to the same conditions.
6. RIGHTS PRIOR TO EXERCISE OF WARRANT. The Holder shall have no rights as
a shareholder of shares subject to this Warrant until payment of the Strike
Price and the delivery of such shares as herein provided.
7. CERTAIN COVENANTS OF THE COMPANY. The Company covenants and agrees that
all shares which may be issued upon the exercise of this Warrant, will, upon
issuance, be duly and validly issued, fully paid and nonassessable; and will
from time to time take all such action as may be requisite to assure that the
par value per share of the Common Stock is at all times equal to or less than
the then effective purchase price per share of the Common Stock issuable
pursuant to the Warrant. The Company further covenants and agrees that, during
the period within which the rights represented by this Warrant may be exercised,
the Company will at all times have authorized, and reserved for the purpose of
issuance upon exercise of the purchase rights evidenced by this Warrant, a
sufficient number of shares of its Common Stock to provide for the exercise of
the rights represented by this Warrant. The Company also further covenants that
it will not, by amendment of its Certificate of Incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issuance
or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the holder of this Warrant against impairment. Without limiting
the generality of the foregoing, the Company (a) will not increase the par value
of any shares of stock issuable upon the exercise of this Warrant above the
amount payable therefor on such exercise, and (b) will take all action that may
be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable shares of stock on the exercise of this
Warrant. So long as this Warrant is outstanding, the Company shall not grant to
any person or entity any anti-dilution rights on terms more favorable than those
granted to the Holder hereunder.
8. TRANSFER OF WARRANT. This Warrant may be transferred by the Holder with
the prior written consent of the Company, which shall not be unreasonably
withheld, and subject to the transferee qualifying as an Accredited Investor and
making the same representations to the Company as set forth in the Convertible
Note Subscription Agreement executed by the Holder and subject to the first
refusal right described in Paragraph 9. below.
9. RIGHT OF FIRST REFUSAL. Prior to any transfer of this Warrant by the
Holder, the Holder shall give written notice by certified or registered mail,
return receipt requested, to the Company specifying the price, terms and name
and address of the proposed transferee (the "Notice"). The Company shall have
thirty (30) days from receipt of said ▇▇▇▇▇▇ to acquire the Warrant under the
same price and terms as specified by the Holder in the Notice.
10. REGISTRATION RIGHTS. The Holder shall have no registration rights for
this Warrant.
11. UNDERSTANDING OF HOLDER The Company's obligation to issue and/or
register the Warrant Shares as set forth herein shall be conditioned upon a
timely receipt by the Company in writing of:
(a) With respect to issuance, investment representations as deemed
appropriate by the Company in its sole and absolute discretion sufficient
to assure the Company that the Warrant Shares upon issuance will be exempt
from registration under the Securities Act of 1933, as amended (the "Act");
and
(b) With respect to registration, information as the Company may
reasonably require from Holder, or any underwriter, for inclusion in such
registration statement.
12. BINDING EFFECT. This Warrant shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
13. GOVERNING LAW. This Warrant shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware.
14. NOTICES. Any notice or demand to the Company under this Warrant may be
given and shall conclusively be deemed and considered to have been given and
received upon the date shown to have been received on any postal receipt or
independent courier receipt at the address of the Company appearing on the
records of the Holder, but actual written notice (including by telefax, hand
delivery, Federal Express, or other means), however given or received, shall
always be effective. For the purposes hereof, the addresses of the Company and
the Holder (until notice of a change thereof is given as provided in this
Section 14.) shall be as follows:
If to the Holder: At the address set forth on the signature page hereof
If to the Company: PDT, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ President, C.E.O. and Chairman
15. EXECUTION IN COUNTERPARTS. This Warrant may be executed in any number
of counterparts and any party hereto or thereto may execute any counterpart,
each of which when executed and delivered will be deemed to be an original and
all of which counterparts of this Warrant taken together will be deemed to be
but one and the same instrument. The execution of this Warrant by any party
hereto will not become effective until counterparts hereof or thereof, as the
case may be, have been executed by all the parties hereto or thereto, and
transmitted by facsimile copy with overnight delivery of manually executed
copies. Notwithstanding the above, the date of issuance of this Warrant shall be
the date which is specifically indicated on the signature page hereof.
SIGNATURES ON NEXT PAGE
IN WITNESS WHEREOF, the parties have caused this Conversion Warrant to be
executed on this _____ day of (MONTH), (YEAR).
"Company"
PDT, INC. a Delaware Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
C.E.O. and Chairman
"Holder"
Warrant Holder
Signature
Address:
(ADDRESS)
Tax Id. or Soc. Sec. Number:
(SOCIAL SECURITY NUMBER)
CONVERTIBLE PROMISSORY NOTE #______
DATE OF ISSUANCE OF WARRANT
DATED _______
AMOUNT OF WARRANT SHARES
_________(#)