1
EXHIBIT 99.2
▇▇▇▇▇ MEDICAL CORPORATION
WARRANT PURCHASE AGREEMENT
WILL ▇▇▇▇▇▇▇▇/ BRODY
THIS WARRANT PURCHASE AGREEMENT is made as of the 29th day of June,
2000 (the "EFFECTIVE DATE") by and among ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Seller") and
Will ▇▇▇▇▇▇▇▇ (a "PURCHASER") with respect to common shares of ▇▇▇▇▇ Medical
Corporation, a Delaware Corporation (the "Company").
The parties hereby agree as follows:
1. TERMS AND ISSUANCE OF WARRANT
a) The Seller will sell to the Purchaser, for $500.00 a warrant to
purchase Common Stock of the Company. The exercise price of such
warrant will be $10.00 per common share. The warrant issuable
pursuant to this paragraph shall entitle the Purchaser to acquire
10,000 shares of Common Stock.
b) The warrant is attached hereto as Exhibit A (the "WARRANT").
2. THE CLOSING
2.1 CLOSING DATE. The closing of the purchase and sale of the
Warrant (the "CLOSING") shall be held on the Effective Date, or at such other
time as the Seller and the Purchaser shall agree (the "CLOSING DATE").
2.2 DELIVERY. At the Closing (i) the Purchaser will deliver to the
Seller a check in the amount of $500.00 and (ii) the Seller shall issue and
deliver to the Purchaser the Warrant.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER.
The Seller hereby represents and warrants to the Purchaser as follows:
3.1 REQUISITE POWER. The Seller will have at the Closing Date all
requisite power to execute and deliver this Agreement and to carry out and
perform its obligations under the terms of this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
4.1 PURCHASE FOR OWN ACCOUNT. The Purchaser represents that it is
acquiring the Warrant and the equity securities issuable upon exercise of the
Warrant (collectively, the "SECURITIES") solely for his own account and
beneficial interest for investment and not for sale or with a view to
distribution of the Securities or any part thereof, has no present intention of
selling (in connection with a distribution or otherwise), granting any
participation in, or otherwise distributing the same, and does not presently
have reason to anticipate a change in such intention except for a transfer by
such Purchaser to any entity under common control of such Purchaser, the owners
of which consist primarily of the family of the Purchaser's owner.
1.
2
4.2 INFORMATION AND SOPHISTICATION. The Purchaser acknowledges that
it has received all the information it has requested and it considers necessary
or appropriate for deciding whether to acquire the Securities. The Purchaser
represents that it has had an opportunity to ask questions and receive answers
from the Company regarding the terms and conditions of the offering of the
Securities and to obtain any additional information necessary to verify the
accuracy of the information given the Purchaser. The Purchaser further
represents that it has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risk of this investment.
4.3 ABILITY TO BEAR ECONOMIC RISK. The Purchaser acknowledges that
investment in the Securities involves a high degree of risk, and represents that
it is able, without materially impairing its financial condition, to hold the
Securities for an indefinite period of time and to suffer a complete loss of its
investment.
4.4 FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting
the representations set forth above, the Purchaser further agrees not to make
any disposition of all or any portion of the Securities unless and until:
(a) There is then in effect a Registration Statement under
the 1933 Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
(b) The Purchaser 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 if
reasonably requested by the Company, such Purchaser shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration under the 1933 Act or any
applicable state securities laws.
(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 such Purchaser to any entity under common control of such
Purchaser, the owners of which consist primarily of the family of the
Purchaser's owner, or transfers by gift, will or intestate succession to any
spouse or lineal descendants or ancestors, if all transferees agree in writing
to be subject to the terms hereof to the same extent as if they were Purchaser
hereunder.
4.5 ACCREDITED INVESTOR STATUS. The Purchaser is an "ACCREDITED
INVESTOR" as such term is defined in Rule 501 under the 1933 Act.
2.
3
5. MISCELLANEOUS
5.1 BINDING AGREEMENT. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any third party any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
5.2 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of New York as applied to agreements among New York
residents, made and to be performed entirely within the State of New York.
5.3 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.4 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
5.5 NOTICES. Any notice required or permitted under this Agreement
shall be given in writing and shall be deemed effectively given upon personal
delivery or 10 days after deposit with the United States Post Office, postage
prepaid, addressed to the Seller, Vantage Partners, LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, or the Purchaser at
the address indicated below, or at such other address as either party may
designate by ten (10) days advance written notice to the other party.
5.6 MODIFICATION; WAIVER. No modification or waiver of any provision
of this Agreement or consent to departure therefrom shall be effective unless in
writing and approved by the Company and the Purchaser.
5.7 ENTIRE AGREEMENT. This Agreement and the Exhibit hereto
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and no party shall be liable or bound to any
other in any manner by any representations, warranties, covenants and agreements
except as specifically set forth herein.
IN WITNESS WHEREOF, the parties have executed this WARRANT PURCHASE
AGREEMENT as of the date first written above.
PUCHASER: SELLER
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------- ------------------------
Signature
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------
Title:
---------------------------
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------
3.
4
EXHIBIT A
THIS WARRANT AND THE UNDERLYING SECURITIES MAY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER THE ACT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
WARRANT TO PURCHASE COMMON STOCK
JUNE 29, 2000
THIS CERTIFIES THAT, for value received, Purchaser (the "Holder"), is
entitled to subscribe for and purchase at the Exercise Price (defined below)
from ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Seller") at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, 10,000 shares of Common Stock of the Company.
1. DEFINITIONS. As used herein, the following terms shall have the
following respective meanings:
(a) "Exercise Period" shall mean the period commencing with the date
hereof and ending five years from the date hereof, unless sooner terminated as
provided below.
(b) "Exercise Price" shall mean $10.00 per common share, subject to
adjustment pursuant to Section 5 below.
(c) "Exercise Shares" shall mean the shares of the Corporation's
Common Stock issuable upon exercise of this Warrant.
(d) The "Corporation" or the "Company" shall mean ▇▇▇▇▇ Medical
Corporation, a Delaware corporation, with its principal office at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2. EXERCISE OF WARRANT. The rights represented by this Warrant may be
exercised in whole or in part at any time during the Exercise Period, by
delivery of the following to ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ at its address set forth above
(or at such other address as it may designate by notice in writing to the
Holder):
(a) An executed Notice of Exercise in the form attached hereto,
1
5
(b) Payment of the Exercise Price in cash, wire transfer, or by
check, and
(c) This Warrant.
Upon the exercise of the rights represented by this Warrant, a
certificate or certificates for the Exercise Shares so purchased, registered in
the name of the Holder or persons affiliated with the Holder, if the Holder so
designates, shall be issued and delivered to the Holder within a reasonable time
after the rights represented by this Warrant shall have been so exercised.
The person in whose name any certificate or certificates for Exercise
Shares are to be issued upon exercise of this Warrant shall be deemed to have
become the holder of record of such shares on the date on which this Warrant was
surrendered and payment of the Exercise Price was made, irrespective of the date
of delivery of such certificate or certificates, except that, if the date of
such surrender and payment is a date when the stock transfer books of the Seller
are closed, such person shall be deemed to have become the holder of such shares
at the close of business on the next succeeding date on which the stock transfer
books are open.
3. COVENANTS OF THE SELLER.
3.1. COVENANTS AS TO EXERCISE SHARES. The Seller covenants and agrees that
the Seller will at all times during the Exercise Period, hold free from liens,
preemptive rights and the like, a sufficient number of shares of Common Stock to
provide for the exercise of the rights represented by this Warrant.
4. REPRESENTATIONS OF HOLDER.
4.1 ACQUISITION OF WARRANT FOR OWN ACCOUNT. The Holder represents and
warrants that it is acquiring the Warrant solely for its account for investment
and not with a view to or for sale or distribution of said Warrant or any part
thereof. The Holder also represents that the entire legal and beneficial
interests of the Warrant and Exercise Shares the Holder is acquiring is being
acquired for, and will be held for, its account only.
4.2. SECURITIES ARE NOT REGISTERED.
(a) The Holder understands that the Warrant and the Exercise Shares
may have not been registered under the Securities Act of 1933, as amended (the
"Act") on the basis that no distribution or public offering of the stock of the
Corporation is to be effected. The Holder realizes that the basis for the
exemption may not be present if, notwithstanding its representations, the Holder
has a present intention of acquiring the securities for a fixed or determinable
period in the future, selling (in connection with a distribution or otherwise),
granting any participation in, or otherwise distributing the securities. The
Holder has no such present intention.
(b) The Holder recognizes that the Warrant and the Exercise Shares
must be held indefinitely unless they are subsequently registered under the Act
or an exemption from such registration is available.
2
6
(c) The Holder is aware that neither the Warrant nor the Exercise
Shares may be sold pursuant to Rule 144 adopted under the Act unless certain
conditions are met, including, among other things, the existence of a public
market for the shares, the availability of certain current public information
about the Company, the resale following the required holding period under Rule
144 and the number of shares being sold during any three month period not
exceeding specified limitations.
4.3. Disposition of Warrant and Exercise Shares.
(a) The Holder further agrees not to make any disposition of all or
any part of the Warrant or Exercise Shares in any event unless and until:
(i) The Seller shall have received a letter secured by the
Holder from the Securities and Exchange Commission stating that no action will
be recommended to the Commission with respect to the proposed disposition; or
(ii) There is then in effect a registration statement under
the Act covering such proposed disposition and such disposition is made in
accordance with said registration statement; or
(iii) The Holder shall have notified the Seller of the proposed
disposition and shall have furnished the Seller with a detailed statement of the
circumstances surrounding the proposed disposition, and if reasonably requested
by the Seller, the Holder shall have furnished the Seller with an opinion of
counsel, reasonably satisfactory to the Seller, for the Holder to the effect
that such disposition will not require registration of such Warrant or Exercise
Shares under the Act or any applicable state securities laws.
(iv) Notwithstanding anything else within this agreement to
the contrary, the Holder will not transfer the Warrant unless the Transferee is
intending upon exercising the Warrant immediately thereafter; and, furthermore,
the Transferee understands that the company has no intention of ever registering
the Warrant.
(b) The Holder understands and agrees that all certificates
evidencing the shares to be issued to the Holder may bear the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
(c) The Holder hereby agrees not to sell or otherwise transfer or
dispose of all or any part of this Warrant or the Exercise Shares during a
period specified by the representative of the underwriters of Common Stock (not
to exceed one hundred eighty (180) days) following the effective date of the
registration statement of the Corporation filed under the Act. Holder
3
7
further agrees that the Corporation may impose stop-transfer instructions with
respect to securities subject to the foregoing restrictions until the end of
such period.
5. ADJUSTMENT OF EXERCISE PRICE. In the event of changes in the
outstanding Common Stock of the Corporation by reason of stock dividends,
split-ups, recapitalizations, reclassifications, combinations or exchanges of
shares, separations, reorganizations, liquidations, or the like, the number and
class of shares available under the Warrant in the aggregate and the Exercise
Price shall be correspondingly adjusted to give the Holder of the Warrant, on
exercise for the same aggregate Exercise Price, the total number, class, and
kind of shares as the Holder would have owned had the Warrant been exercised
prior to the event and had the Holder continued to hold such shares until after
the event requiring adjustment. The form of this Warrant need not be changed
because of any adjustment in the number of Exercise Shares subject to this
Warrant.
6. FRACTIONAL SHARES. No fractional shares shall be issued upon the
exercise of this Warrant as a consequence of any adjustment pursuant hereto. All
Exercise Shares (including fractions) issuable upon exercise of this Warrant may
be aggregated for purposes of determining whether the exercise would result in
the issuance of any fractional share. If, after aggregation, the exercise would
result in the issuance of a fractional share, the Seller shall, in lieu of
issuance of any fractional share, pay the Holder otherwise entitled to such
fraction a sum in cash equal to the product resulting from multiplying the then
current fair market value of an Exercise Share by such fraction.
7. NO STOCKHOLDER RIGHTS. This Warrant in and of itself shall not entitle
the Holder to any voting rights or other rights as a stockholder of the
Corporation.
8. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost,
stolen, mutilated or destroyed, the Seller may, on such terms as to indemnity or
otherwise as it may reasonably impose (which shall, in the case of a mutilated
Warrant, include the surrender thereof), issue a new Warrant of like
denomination and tenor as the Warrant so lost, stolen, mutilated or destroyed.
Any such new Warrant shall constitute an original contractual obligation of the
Seller, whether or not the allegedly lost, stolen, mutilated or destroyed
Warrant shall be at any time enforceable by anyone.
9. NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent by telex, telegram,
express mail or other form of rapid communications, if possible, and if not then
such notice or communication shall be mailed by first-class mail, postage
prepaid, addressed in each case to the party entitled thereto at the following
addresses: (a) if to the to the Seller, Vantage Partners, LLC, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Fax #212/▇▇▇-▇▇▇▇
or if to the Holder, to the address set forth below, or at such other address as
one party may furnish to the other in writing. Notice shall be deemed effective
on the date dispatched if by personal delivery, telecopy, telex or telegram,
three days after mailing if by express mail, or ten days after mailing if by
first-class mail.
4
8
10. ACCEPTANCE. Receipt of this Warrant by the Holder shall constitute
acceptance of and agreement to all of the terms and conditions contained herein.
11. GOVERNING LAW. This Warrant and all rights, obligations and
liabilities hereunder shall be governed by the laws of the State of New York.
IN WITNESS WHEREOF, the Seller has caused this Warrant to be executed as of
June 29, 2000.
SELLER:
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
HOLDER:
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Signature
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------
Title:
-------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------
5
9
NOTICE OF EXERCISE
TO: SELLER
(1) The undersigned hereby elects to purchase 10,000 shares of the Common
Stock of ▇▇▇▇▇ Medical Corporation (the "Company") from ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(the "Seller"), pursuant to the terms of the attached Warrant, and tenders
herewith payment of the exercise price in full, together with all applicable
transfer taxes, if any.
(2) Please arrange for the Seller to transfer a certificate or
certificates representing said shares of Common Stock in the name of the
undersigned or in such other name as is specified below:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(Name)
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(Address)
(3) The undersigned represents that (i) the undersigned is aware of the
Company's business affairs and financial condition and has acquired sufficient
information about the Company to reach an informed and knowledgeable decision
regarding its investment in the Company; (ii) the undersigned is experienced in
making investments of this type and has such knowledge and background in
financial and business matters that the undersigned is capable of evaluating the
merits and risks of this investment and protecting the undersigned's own
interests; (iii) the undersigned is aware that the aforesaid shares of Common
Stock may not be sold pursuant to Rule 144 adopted under the Securities Act
unless certain conditions are met and until the undersigned has held the shares
for the number of years prescribed by Rule 144, that among the conditions for
use of the Rule is the availability of current information to the public about
the Company and (iv) the undersigned agrees not to make any disposition of all
or any part of the aforesaid shares of Common Stock unless there is in effect a
registration statement under the Securities Act covering such proposed
disposition and such disposition is made in accordance with said registration
statement, or the undersigned has provided the Company with an opinion of
counsel satisfactory to the Company, stating that such registration is not
required.
----------------------- ---------------------------
(Date) (Signature)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------
(Print name)
6