EXHIBIT 10.5
THIS WARRANT IS SUBJECT TO THE
RESTRICTIONS ON TRANSFER SET FORTH ON PAGE 5 HEREOF.
HYPERTENSION DIAGNOSTICS, INC.
COMMON STOCK PURCHASE WARRANT
HYPERTENSION DIAGNOSTICS, INC., a Minnesota corporation (the
"COMPANY"), hereby agrees that, for value received, ____________________ is
entitled, subject to the terms set forth below, to purchase from the Company at
any time or from time to time beginning November 8, 2001, and before 5:00 P.M.,
Minneapolis, Minnesota time, on November 7, 2004, ________________ (_________)
shares of the Common Stock of the Company (the "COMMON STOCK"), at an exercise
price of $4.56 per share, subject to adjustment as provided herein (the "WARRANT
SHARES").
1. EXERCISE OF WARRANT.
(a) The purchase rights granted by this Warrant shall be exercised (in
minimum quantities of 100 shares) by the holder surrendering this
Warrant with the form of exercise attached hereto duly executed by
such holder, to the Company at its principal office, accompanied by
payment, in cash or by ▇▇▇▇▇▇▇'s check payable to the order of the
Company, of the purchase price payable in respect of the Common Stock
being purchased. If less than all of the Common Stock purchasable
hereunder is purchased, the Company will, upon such exercise, execute
and deliver to the holder hereof a new Warrant (dated the date hereof)
evidencing the number of shares of Common Stock not so purchased.
(b) As soon as practicable after the exercise of this Warrant and payment
of the purchase price, the Company will cause to be issued in the name
of and delivered to the holder hereof, or as such holder may direct, a
certificate or certificates representing the shares purchased upon
such exercise. The Company may require that such certificate or
certificates contain on the face thereof a legend substantially as
follows:
"The transfer of the shares represented by this certificate is
restricted pursuant to the terms of a Common Stock Purchase Warrant
dated November 8, 2001, issued by Hypertension Diagnostics, Inc., a
copy of which is available for inspection at the offices of
Hypertension Diagnostics, Inc. Transfer may not be made except in
accordance with the terms of the Common Stock Purchase Warrant. In
addition, no sale, offer to sell or transfer of the shares represented
by this certificate shall be made unless a registration statement
under the Securities Act of 1933, as amended, (the "Act"), with
respect to such shares is then in effect or an exemption from
registration is then in fact applicable to such shares."
THIS WARRANT IS SUBJECT TO THE
RESTRICTIONS ON TRANSFER SET FORTH ON PAGE 5 HEREOF.
2. NEGOTIABILITY AND TRANSFER. This Warrant is issued upon the
following terms, to which each holder hereof consents and agrees:
(a) Until this Warrant is duly transferred on the books of the
Company, the Company may treat the registered holder of this Warrant as
absolute owner hereof for all purposes without being affected by any
notice to the contrary.
(b) Each successive holder of this Warrant, or of any portion
of the rights represented thereby, shall be bound by the terms and
conditions set forth herein.
3. ANTIDILUTION ADJUSTMENTS. If the Company shall at any time hereafter
subdivide or combine its outstanding shares of Common Stock, or declare a
dividend payable in Common Stock, the exercise price in effect immediately prior
to the subdivision, combination or record date for such dividend payable in
Common Stock shall forthwith be proportionately increased, in the case of
combination, or proportionately decreased, in the case of subdivision or
declaration of a dividend payable in Common Stock, and each share of Common
Stock purchasable upon exercise of this Warrant, immediately preceding such
event, shall be changed to the number determined by dividing the then current
exercise price by the exercise price as adjusted after such subdivision,
combination or dividend payable in Common Stock.
No fractional shares of Common Stock are to be issued upon the exercise
of the Warrant, but the Company shall pay a cash adjustment in respect of any
fraction of a share which would otherwise be issuable in an amount equal to the
same fraction of the market price per share of Common Stock on the day of
exercise as determined in good faith by the Company.
In case of any capital reorganization or any reclassification of the
shares of Common Stock of the Company, or in the case of any consolidation with
or merger of the Company into or with another corporation, or the sale of all or
substantially all of its assets to another corporation, which is effected in
such a manner that the holders of Common Stock shall be entitled to receive
stock, securities or assets with respect to or in exchange for Common Stock,
then, as a part of such reorganization, reclassification, consolidation, merger
or sale, as the case may be, lawful provision shall be made so that the holder
of the Warrant shall have the right thereafter to receive, upon the exercise
hereof, the kind and amount of shares of stock or other securities or property
which the holder would have been entitled to receive if, immediately prior to
such reorganization, reclassification, consolidation, merger or sale, the holder
had held the number of shares of Common Stock which were then purchasable upon
the exercise of the Warrant. In any such case, appropriate adjustment (as
determined in good faith by the Board of Directors of the Company) shall be made
in the application of the provisions set forth herein with respect to the rights
and interest thereafter of the holder of the Warrant, to the end that the
provisions set forth herein (including provisions with respect to adjustments of
the exercise price) shall thereafter be applicable, as nearly as reasonably may
be, in relation to any shares of stock or other property thereafter deliverable
upon the exercise of the Warrant.
When any adjustment is required to be made in the exercise price,
initial or adjusted, the Company shall forthwith determine the new exercise
price, and
(a) prepare and retain on file a statement describing in
reasonable detail the method used in arriving at the new exercise
price; and
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THIS WARRANT IS SUBJECT TO THE
RESTRICTIONS ON TRANSFER SET FORTH ON PAGE 5 HEREOF.
(b) cause a copy of such statement to be mailed to the holder of
the Warrant as of a date within ten (10) days after the date when the
circumstances giving rise to the adjustment occurred.
4. TRANSFERABILITY; REGISTRATION RIGHTS. Prior to making any
disposition of the Warrant or of any Common Stock purchased upon exercise of the
Warrant, the holder will give written notice to the Company describing briefly
the manner of any such proposed disposition. The holder will not make any such
disposition until (i) the Company has notified the holder that, in the opinion
of its counsel, registration under the Act is not required with respect to such
disposition, or (ii) a registration statement covering the proposed distribution
has been filed by the Company and has become effective. The holder then will
make any disposition only pursuant to the conditions of such opinion or
registration. The Company agrees that, upon receipt of written notice from the
holder hereof with respect to such proposed distribution, it will use its best
efforts, in consultation with the holder's counsel, to ascertain as promptly as
possible whether or not registration is required, and will advise the holder
promptly with respect thereto, and the holder will cooperate in providing the
Company with information necessary to make such determination.
If, at any time after the date hereof and prior to the expiration of
three (3) years from November 8, 2001, the Company shall propose to file any
registration statement under the Securities Act of 1933, as amended, (the "ACT")
covering a public offering of the Company's Common Stock (other than a
registration on Form S-4, Form S-8 or any registration form that does not permit
secondary sales or a registration of the Warrant Shares), it will notify the
holder hereof in writing at least twenty (20) days prior to each such filing and
will include in the registration statement (to the extent permitted by
applicable regulation) the Common Stock purchased by the holder or purchasable
by the holder upon the exercise of the Warrant to the extent requested by the
holder hereof. Notwithstanding the foregoing, the number of shares of the
holders of the Warrants proposed to be registered thereby shall be reduced pro
rata with any other selling shareholder (other than the Company) upon the
request of the managing underwriter of such offering. If the registration
statement or offering statement filed pursuant to such twenty (20) day notice
has not become effective within six months following the date such notice is
given to the holder hereof, the Company must again notify such holder in the
manner provided above.
All expenses of any such registrations referred to in this Section 4,
except the fees of counsel or other professional advisors to such holders and
underwriting commissions or discounts shall be borne by the Company.
The Company will mail to each record holder, at the last known post
office address, written notice of any exercise of the rights granted under this
Section 4, by certified or registered mail, return receipt requested, and each
holder shall have ten (10) days from the date of deposit of such notice in the
U.S. Mail to notify the Company in writing whether such holder wishes to join in
such exercise.
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THIS WARRANT IS SUBJECT TO THE
RESTRICTIONS ON TRANSFER SET FORTH ON PAGE 5 HEREOF.
The Company will furnish the holder hereof with a reasonable number of
copies of any prospectus included in such filings and will amend or supplement
the same as required during the period of required use thereof. The Company will
maintain the effectiveness of any registration statement or the offering
statement filed by the Company, whether or not at the request of the holder
hereof, for at least six (6) months following the effective date thereof.
In the case of the filing of any registration statement, and to the
extent permissible under the Act and controlling precedent thereunder, the
Company and the holder hereof shall provide cross indemnification agreements to
each other in customary scope covering the accuracy and completeness of the
information furnished by each.
The holder of the Warrant agrees to cooperate with the Company in the
preparation and filing of any such registration statement or offering statement,
and in the furnishing of information concerning the holder for inclusion
therein, or in any efforts by the Company to establish that the proposed sale is
exempt under the Act as to any proposed distribution.
5. NOTICES. The Company shall mail to the registered holder of the
Warrant, at his last known post office address appearing on the books of the
Company, not less than ten (10) days prior to the date on which (a) a record
will be taken for the purpose of determining the holders of Common Stock
entitled to dividends (other than cash dividends) or subscription rights, or (b)
a record will be taken (or in lieu thereof, the transfer books will be closed)
for the purpose of determining the holders of Common Stock entitled to notice of
and to vote at a meeting of stockholders at which any capital reorganization,
reclassification of shares of Common Stock, consolidation, merger, dissolution,
liquidation, winding up or sale of substantially all of the Company's assets
shall be considered and acted upon.
6. RESERVATION OF COMMON STOCK. A number of shares of Common Stock
sufficient to provide for the exercise of the Warrant upon the basis herein set
forth shall at all times be reserved for the exercise thereof.
7. MISCELLANEOUS. Whenever reference is made herein to the issue or
sale of shares of Common Stock, the term "COMMON STOCK" shall include any stock
of any class of the Company other than preferred stock with a fixed limit on
dividends and a fixed amount payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company.
The Company will not, by amendment of its Articles of Incorporation or
through reorganization, consolidation, merger, dissolution or sale of assets, or
by any other voluntary act or deed, avoid or seek to avoid the observance or
performance of any of the covenants, stipulations or conditions to be observed
or performed hereunder by the Company, but will, at all times in good faith,
assist, insofar as it is able, in the carrying out of all provisions hereof and
in the taking of all other action which may be necessary in order to protect the
rights of the holder hereof against dilution.
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THIS WARRANT IS SUBJECT TO THE
RESTRICTIONS ON TRANSFER SET FORTH ON PAGE 5 HEREOF.
The representations, warranties and agreements herein contained shall
survive the exercise of this Warrant. References to the "holder of" include the
immediate holder of shares purchased on the exercise of this Warrant, and the
word "holder" shall include the plural thereof. This Common Stock Purchase
Warrant shall be interpreted under the laws of the State of Minnesota.
All shares of Common Stock or other securities issued upon the exercise
of the Warrant shall be validly issued, fully paid and non-assessable.
Notwithstanding anything contained herein to the contrary, the holder
of this Warrant shall not be deemed a stockholder (including, no right to vote
on any matters coming before the shareholders) of the Company for any purpose
whatsoever until and unless this Warrant is duly exercised.
IN WITNESS WHEREOF, this Warrant has been duly executed by Hypertension
Diagnostics, Inc., this 8th day of November, 2001.
HYPERTENSION DIAGNOSTICS, INC.
By: __________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, OR APPLICABLE STATE SECURITIES LAW. THESE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR
SALE, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ASSIGNED OR OTHERWISE
DISPOSED OF, AND NO TRANSFER OF THE SECURITIES WILL BE MADE BY THE
COMPANY OR ITS TRANSFER AGENT, IN THE ABSENCE OF SUCH REGISTRATION OR
AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED.
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WARRANT EXERCISE FORM
To be signed only upon exercise of Warrant.
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, __________________ of the shares of Common Stock of
Hypertension Diagnostics, Inc. to which such Warrant relates and herewith makes
payment of $___________ therefor in cash or by certified check, and requests
that such shares be issued and be delivered to, _________________________, the
address for which is set forth below the signature of the undersigned.
Dated: ______________________
________________________________ ______________________________________
(Taxpayer's I.D. Number) (Signature)
_______________________________________
_______________________________________
(Address)
------------------
ASSIGNMENT FORM
To be signed only upon authorized transfer of Warrant.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers unto ______________________________ the right to purchase shares of
Common Stock of Hypertension Diagnostics, Inc. to which the within Warrant
relates and appoints ____________________________, attorney, to transfer said
right on the books of Hypertension Diagnostics, Inc. with full power of
substitution in the premises.
Dated: ______________________
_______________________________________
(Signature)
_______________________________________
_______________________________________
(Address)
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