WARRANT TO PURCHASE COMMON STOCK OF EYETEL IMAGING, INC.
EXHIBIT
4.5
|
_______________CONFIDENTIAL
TREATMENT REQUESTED______________
|
|
CERTAIN
PORTIONS INDICATED BY [*****] HAVE BEEN OMITTED PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT. |
|
THE
OMITTED NON-PUBLIC PORTIONS HAVE BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. |
|
Warrant
No. _____
|
October
24, 2006
|
WARRANT
TO PURCHASE COMMON STOCK
OF
EYETEL
IMAGING, INC.
THIS
WARRANT AND THE UNDERLYING SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD,
TRANSFERRED, HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT (1) PURSUANT TO A
REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES THAT IS EFFECTIVE UNDER
THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION
UNDER
THE SECURITIES ACT RELATING TO THE DISPOSITION OF SECURITIES AND (2) IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
EyeTel
Imaging, Inc., a Delaware corporation (the “Company”),
hereby certifies that, for value received and pursuant to the Exclusive License
Agreement, dated as of the date hereof, by and between the Company and
NeuroMetrix, Inc. (the “License
Agreement”),
NeuroMetrix, Inc., a Delaware corporation (together with its successors and
assigns and any transferee of this Warrant, and its successors and assigns,
the
“Holder”),
is
entitled, subject to the terms and conditions set forth in this warrant (this
“Warrant”),
to
purchase from the Company, at any time or times in accordance with the vesting
provisions set forth on Schedule
I
attached
hereto, but not after 5:00 P.M., New York City time on October 24, 2016 (the
“Expiration
Date”),
up to
500,000 duly authorized, validly issued, fully paid, nonassessable shares of
the
Company’s Common Stock, par value $.001 per share (“Common
Stock”)
(the
“Warrant
Shares”),
which
shall be adjusted or readjusted from time to time as provided in this Warrant,
at an initial purchase price per share equal to $0.16 (the “Initial
Warrant Price”),
which
shall be adjusted or readjusted from time to time as provided in this Warrant
(as adjusted, the “Warrant Price”).
Section
1. Exercise; Exchange of Warrant
1.1. Manner
of Exercise; Exchange.
(a) Exercise.
The
Holder may exercise this Warrant, in whole or in part (except as to a fractional
share), at any time and from time to time during normal business hours on any
Business Day on or prior to the Expiration Date, by (i) delivering to the
Company a written notice, in the form attached hereto as Exhibit
A
(the
“Exercise
Notice”),
duly
executed by the Holder, specifying the number of Warrant Shares (without giving
effect to any adjustment thereto) to be issued to the Holder as a result of
such
exercise, (ii) surrendering this Warrant to the Company, properly endorsed
by
the Holder (or if this Warrant has been destroyed, stolen or has otherwise
been
misplaced, by delivering to the Company an affidavit of loss duly executed
by
the Holder), and (iii) by tendering payment for the shares of Common Stock
designated by the Exercise Notice in lawful money of the United States in the
form of cash, bank or certified check made payable to the order of the Company,
or by wire transfer of immediately available funds, or by the cancellation
of
indebtedness of the Company owed to the Holder, or in any combination thereof,
of an amount equal to the product of (A) the Initial Warrant Price and (B)
the
number of Warrant Shares (without giving effect to any adjustment thereof)
as to
which this Warrant is being exercised.
(b) Net
Exchange.
The
Holder may, in lieu of exercising or converting this Warrant pursuant to the
terms of Section
1.1(a),
elect
to exchange this Warrant, in whole or in part (except as to a fractional share),
at any time and from time to time during normal business hours on any Business
Day on or prior to the Expiration Date by (i) delivering to the Company a
written notice, in the form attached hereto as Exhibit
B
(the
“Exchange
Notice”),
duly
executed by the Holder, specifying the number of Warrant Shares (without giving
effect to any adjustment thereto) to be issued to the Holder as a result of
such
exchange, and (ii) surrendering this Warrant to the Company, properly endorsed
by the Holder (or if this Warrant has been destroyed, stolen or has otherwise
been misplaced, by delivering to the Company an affidavit of loss duly executed
by the Holder), and the Holder shall thereupon been entitled to receive the
number of Warrant Shares equal to the product of (A) the number of Warrant
Shares issuable upon exercise of this Warrant (or, if only a portion of this
Warrant is being exercised, issuable upon the exercise of such portion) for
cash, determined as provided in Section
2,
and (B)
a fraction, the numerator of which is the Fair Market Value per share of Common
Stock at the time of such exercise minus
the
Warrant Price in effect at the time of such exercise, and the denominator of
which is the Fail-Market Value per share of Common Stock at the time of such
exercise, such number of shares so issuable upon such exchange to be rounded
up
or down to the nearest whole number of shares of Common Stock.
(c) The
“exchange” of this Warrant pursuant to Section 1.1(b) is intended to qualify as
a recapitalization within the meaning of Section 368(a)(1)(E) of the
Code.
(d) For
all
purposes of this Warrant (other than this Section 1.1), any reference herein
to
the “exercise” of this Warrant shall be deemed to include a reference to the
exchange of this Warrant into Common Stock in accordance with the terms of
Section 1.1(b), and any reference to an “Exercise Notice” shall be deemed to
include a reference to an Exchange Notice in accordance with the terms of
Section 1.1(b).
1.2. When
Exercise Effective.
Each
exercise of this Warrant shall be deemed to have been effected immediately
prior
to the close of business on the Business Day on which this Warrant shall be
deemed to have been surrendered to the Company as provided in Section
1.1,
and at
such time the person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such exercise
as
provided in Section
1.3
shall be
deemed to have become the Holder or Holders of record thereof.
2
1.3. Delivery
of Stock Certificates Upon Exercise.
As soon
as practicable after exercise of this Warrant in accordance with this
Section
1,
but in
no event later than five (5) Business Days after such exercise, the Company
shall at its expense cause to be issued in the name of and delivered to the
Holder or, subject to Section
5
of this
Warrant, as the Holder may direct: (a) a certificate or certificates for the
number of Warrant Shares, determined as provided in Section
2
of this
Warrant, to which the Holder shall be entitled upon such exercise and, (b)
unless this Warrant has expired or has been exercised in full, a new Warrant
(or
Warrants) substantially in the form of, and on the terms in, this Warrant,
for
the number of Warrant Shares remaining following such exercise (without giving
effect to any adjustment thereto), and shall be subject to adjustment as
provided for in this Warrant as of the date hereof.
Section
2. Adjustments to Warrant Price and Warrant Shares
2.1. General.
The
number of Warrant Shares that the Holder shall be entitled to receive upon
exercise of this Warrant shall be determined by multiplying the number of
Warrant Shares which would otherwise (but for the provisions of this
Section
2)
be
issuable upon such exercise, as designated by the Holder in the Exercise Notice,
by a fraction, (i) the numerator of which shall be the Initial Warrant Price,
and (ii) the denominator of which shall be Warrant Price in effect on the date
of such exercise.
2.2. Adjustments.
(a) Subdivision
or Combination of Common Stock.
If the
Company shall at any time after the date hereof subdivide its outstanding shares
of Common Stock into a greater number of shares (by any stock split, stock
dividend or otherwise), then the Warrant Price in effect immediately prior
to
such subdivision shall be proportionately reduced, and, conversely, if the
Company shall at any time after the date hereof combine its outstanding shares
of Common Stock into a smaller number of shares (by any reverse stock split
or
otherwise), then the Warrant Price in effect immediately prior to such
combination shall be proportionately increased.
(b) Reorganization
or Reclassification.
If any
capital reorganization or reclassification of the capital stock of the Company
shall be effected in such a way that 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 condition of such reorganization or reclassification, lawful
and adequate provisions shall be made whereby the Holder shall thereupon have
the right to receive, upon the basis and upon the terms and conditions specified
herein and in lieu of the Warrant Shares immediately theretofore receivable
upon
the exercise of this Warrant in full, as the case may be, such shares of stock,
securities or assets as may be issued or payable with respect to or in exchange
for a number of outstanding shares of such Common Stock equal to the number
of
shares of such Common Stock immediately theretofore receivable upon such
exercise of this Warrant in full had such reorganization or reclassification
not
taken place, and in any such case appropriate provisions shall be made with
respect to the rights and interests of the Holder to the end that the provisions
hereof (including, without limitation, provisions for adjustments of the Warrant
Price) shall thereafter be applicable, as nearly as may be, in relation to
any
shares of stock, securities or assets thereafter deliverable upon the exercise
of such conversion rights.
3
Section
3. Covenants of the Company
The
Company covenants and agrees that:
(a) all
shares of Common Stock that may be issued upon the exercise of the rights
represented by this Warrant shall, upon issuance, be duly authorized, validly
issued, fully paid and nonassessable;
(b) during
the period within which this Warrant may be exercised, it will at all times
have
authorized and reserved a sufficient number of shares of Common Stock to provide
for the exercise of rights represented by this Warrant;
(c) if
any
shares of Common Stock reserved or to be reserved to provide for the exercise
of
this Warrant require registration with or approval of any governmental or
self-regulatory authority under any federal or state law or stock exchange
rule
before such shares may be validly issued, then it shall in good faith and as
expeditiously as possible endeavor to secure such registration or approval,
as
the case may be;
(d) it
shall
not, by amendment to its certificate of incorporation (whether by way of merger,
operation of law, or otherwise) or through any other reorganization, transfer
of
assets, consolidation, merger, dissolution, issuance or sale of securities,
agreement or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by
the
Company and shall at all times in good faith assist in the carrying out of
all
the provisions of this Warrant and in the taking of all such action as may
be
reasonably necessary or appropriate in order to protect the rights of the
Holders against impairment. Any successor to the Company shall agree in writing,
as a condition to such succession, to carry out and observe the obligations
of
the Company hereunder with respect to the Warrants.
Section
4. Restrictions on Transfer
(a) Each
certificate representing shares of Common Stock issued upon exercise of this
Warrant and each certificate representing shares of Common Stock issued to
any
subsequent transferee of any such certificate, shall be stamped or otherwise
imprinted with a legend in substantially the form as follows:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND MAY
NOT BE OFFERED, SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT
(1)
PURSUANT TO A REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH
IS
EFFECTIVE UNDER THE SECURITIES ACT OR TO AN AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES AND (2)
IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
4
(b) If
at any
time any securities other than shares of Common Stock shall be issuable upon
the
exercise of this Warrant, such securities shall bear a legend similar to the
one
set forth above. Whenever the legend requirement imposed shall terminate, the
Holder shall be entitled to receive within five (5) Business Days from the
Company, at the Company’s expense, a new Warrant certificate or certificates and
new stock certificates representing Common Stock issued upon exercise of this
Warrant, in each case, without such legends.
Section
5. Miscellaneous
5.1. Notice
of Adjustments.
(a) In
each
case of any adjustment or readjustment in the Warrant Price and the Warrant
Shares issuable upon exercise of this Warrant, the Company shall promptly
thereafter compute such adjustment or readjustment in accordance with the terms
of this Warrant and provide written report thereof certified by the Chief
Financial Officer of the Company to the Holder stating the number of Warrant
Shares and the Warrant Price, after giving effect to such adjustment or
readjustment, and setting forth in reasonable detail the method of calculation
and the facts upon which such calculation is based.
(b) The
Company shall, within (10) days of receipt of a written request by Holder or
Holders who retain the right to receive greater than fifty percent (50%) of
the
shares of Common Stock issuable upon exercise of this Warrant, cause independent
certified public accountants of recognized national standing, which may be
the
regular auditors of the Company, selected by the Company to verify such
computations reported pursuant to Section
5.1(a),
other
than any computation that pursuant to the provisions of this Warrant are to
be
determined reasonably and in good faith by the Board of Directors. The Company
shall promptly prepare, and remit to Holder, a copy of such independent
accountant’s report setting forth such adjustment or readjustment, showing in
reasonable detail the method of calculation thereof and the facts upon which
such adjustment or readjustment is based.
(c) The
Company shall also keep copies of all such reports generated pursuant to this
Section
5.1
at its
principal offices and will cause the same to be available for inspection at
such
offices during normal business hours by Holder any prospective purchaser of
this
Warrant designated by Holder.
5.2. Notice
of Certain Events.
In case
at any time:
(a) the
Company shall pay any dividend upon, or make any distribution in respect of,
its
stock of the Company;
(b) the
Company shall propose to register any of its equity securities under the
Securities Act in connection with a public offering;
(c) there
shall be any proposed capital reorganization or reclassification of the capital
stock, of the Company, or consolidation or merger of the Company with, or sale
of all or substantially all of its assets to, another person; or
(d) there
shall be a voluntary or involuntary dissolution, liquidation or winding up
of
the Company;
5
then,
in
any one or more of said cases, the Company shall give notice to Holder of the
date on which (i) the books of the Company shall close or a record shall be
taken for such dividend, distribution or subscription rights, or (ii) such
public offering, reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up shall take place, as the case may be.
Such notice shall be given not less than ten (10) days prior to the record
date
or the date on which the transfer books of the Company are to be closed in
respect thereto in the case of an action specified in clause (i). In the case
of
an action specified in clause (ii), such notice shall be given at least twenty
(20) days prior to the action in question, provided that ▇▇▇▇▇▇ agrees to
maintain the confidentiality of such information to the same extent required
by
the Company.
and
at
least twenty (20) days prior to the action in question in the case of an action
specified in clause (ii) unless prohibited under the terms of a confidentiality
agreement to which the Company is then a party.
5.3. Notice.
Any
notice that is required or provided to be given under this Warrant shall be
deemed to have been sufficiently given and received for all purposes when
delivered in writing by hand, telecopy, telex or other method of facsimile,
or
five (5) days after being sent by certified or registered mail, postage and
charges prepaid, return receipt requested, or two (2) days after being sent
by
overnight delivery providing receipt of delivery, to the following addresses:
if
to the Company, EyeTel Imaging, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇, Chief Financial Officer, Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇, or at any other address designated by the Company to Holder; if to
Holder, NeuroMetrix, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, or at any other address designated by Holder to
the
Company in writing.
5.4. No
Change in Warrant Terms on Adjustment.
Irrespective of any adjustment in the Warrant Price or the number of shares
of
Common Stock, this Warrant, whether theretofore or thereafter issued or
reissued, may continue to express the same price and number of shares of Common
Stock as are stated herein and the Warrant Price and such number of Common
Stock
shares specified herein shall be deemed to have been so adjusted.
5.5. Issuance
and Transfer Taxes.
The
issuance of certificates for shares of Common Stock upon any exercise of this
Warrant shall be made without charge to Holder for any issuance tax in respect
thereto; provided,
that
the Company shall not be required to pay any tax that may be payable in respect
of any transfer involved in the issuance and delivery of any certificate in
a
name other than that of Holder or upon any transfer of this
Warrant.
5.6. Market
Stand Off.
▇▇▇▇▇▇
agrees, if requested by an underwriter in connection with any underwritten
public offering of the Company’s securities, not to sell or otherwise transfer
or dispose of any securities held by it for such period, not to exceed one
hundred eighty (180) days following the effective date of the relevant
registration statement filed under the Securities Act in connection with such
public offering, as such underwriter shall specify reasonably and in good faith;
provided
that the
directors, officers and each of the Holders who hold 1% or more of the
outstanding securities of the Company enters into a similar
agreement.
6
5.7. Exchange
of Warrant.
This
Warrant is exchangeable at no cost to the Holder upon the surrender hereof
by
▇▇▇▇▇▇ at such office or agency of the Company, for a new warrant of like tenor
representing in the aggregate the right to subscribe for and purchase the number
of shares that may be subscribed for and purchased hereunder from time to time
after giving effect to all the provisions hereof, 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.
5.8. Lost,
Stolen, Mutilated or Destroyed Warrant.
If this
Warrant is lost, stolen, mutilated or destroyed, the Company shall at no cost
to
the Holder, on such terms as to indemnity or otherwise as the Company may in
its
discretion 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 Company, whether or not
the
allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time
enforceable by anyone.
5.9. Governing
Law.
This
Warrant shall be deemed to be a contract made under, and shall be construed
in
accordance with, the laws of the Commonwealth of Massachusetts, without giving
effect to conflict of laws principles thereof.
5.10. Section
Headings; Construction.
The
descriptive headings in this Warrant have been inserted for convenience only
and
shall not be deemed to limit or otherwise affect the construction of any
provision thereof or hereof. The parties have participated jointly in the
negotiation and drafting of this Warrant and the other agreements, documents
and
instruments executed and delivered in connection herewith with counsel
sophisticated in investment transactions. In the event an ambiguity or question
of intent or interpretation arises, this Warrant shall be construed as if
drafted jointly by the parties and no presumption or burden of proof shall
arise
favoring or disfavoring any party by virtue of the authorship of any provisions
of this Warrant and the agreements, documents and instruments executed and
delivered in connection herewith.
5.11. Remedies;
Severability.
It is
specifically understood and agreed that any breach of the provisions of this
Warrant by any person subject hereto will result in irreparable injury to the
other parties hereto, that the remedy at law alone will be an inadequate remedy
for such breach, and that, in addition to any other remedies which they may
have, such other parties may enforce their respective rights by actions for
specific performance (to the extent permitted by law). Whenever possible, each
provision of this Warrant shall be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of this Warrant
shall be deemed prohibited or invalid under such applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, and such
prohibition or invalidity shall not invalidate the remainder of such provision
or the other provisions of this Warrant.
7
5.12. Integration.
This
Warrant, including the exhibits referred to herein, constitute the entire
agreement and supersede all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter
hereof.
5.13. No
Rights or Liabilities as Stockholder.
Except
as expressly set forth herein, nothing contained in this Warrant shall be
construed as conferring upon Holder any rights as a stockholder of the Company
or as imposing any obligation on Holder to purchase any securities or as
imposing any liabilities on Holder as a stockholder of the Company, whether
such
obligation or liabilities are asserted by the Company or creditors of the
Company.
5.14. Waivers
and Consents; Amendments.
(a) For
the
purposes of this Warrant and all documents executed pursuant hereto, no course
of dealing between or among any of the parties hereto and no delay on the part
of any party hereto in exercising any rights hereunder or thereunder shall
operate as a waiver of the rights hereof or thereof. No covenant or provision
hereof may be waived otherwise than by a written instrument signed by the party
or parties so waiving such covenant or other provision contemplated
herein.
(b) No
amendment to this Warrant may be made without the written consent of the Company
and Holder or Holders who retain the right to receive greater than fifty percent
(50%) of the shares of Common Stock issuable upon exercise of this
Warrant.
(c) Any
actions required to be taken with respect to consents, approvals or waivers
required or contemplated to be given by ▇▇▇▇▇▇, shall require the vote of Holder
or Holders who retain the right to receive greater than 50% of the shares of
Common Stock issuable under this Warrant, and any such action by such majority
interest vote shall bind all Holders.
5.15. Certain
Definitions.
The
following terms as used in this Warrant shall have the following
meanings:
(a) “Business
Day”
means
any day other than a Saturday or a Sunday or a day on which commercial banking
institutions in New York City, New York are authorized or obligated by law
or
executive order to be closed. Any reference to “days” (unless Business Days are
specified) shall mean calendar days.
(b) “Code”
means
the Internal Revenue Code of 1986, as amended.
(c) “Fair
Market Value”
means
either (i) the Market Price, if any, of a share of Common Stock or (ii) if
no
Market Price exists, the value (which shall not take into effect any minority
discounts) of a share of Common Stock as determined by the Board of Directors
in
good faith. In the event that the parties disagree on the value, then it shall
be determined by a nationally recognized investment banking firm or accounting
firm designated by ▇▇▇▇▇▇ and reasonably acceptable to the Company; provided
that if the parties cannot agree on such a firm, each party shall choose a
nationally recognized investment banking firm, which shall choose a third
nationally recognized firm and that third firm shall determine the Fair Market
Value, which determination shall be final and binding. The cost relating to
retaining any such firm(s) pursuant to this definition shall be equally borne
by
the Company and the Holder.
8
(d) “Market
Price”
of
any
security means: if such security is listed on a national securities exchange
registered under the Exchange Act, a price equal to the average of the closing
sales prices for such security on such exchange for each day during the twenty
(20) consecutive trading days immediately preceding the date in
question.
5.16. Other
Definitional Provisions.
(a) Except
as
otherwise specified herein, all references herein:
(i) to
any
person other than the Company, shall be deemed to include such person’s
successors and assigns;
(ii) to
the
Company shall be deemed to include the Company’s successors; and
(iii) to
any
applicable law defined or referred to herein, shall be deemed references to
such
applicable law as the same may have been or may be amended or supplemented
from
time to time.
(b) When
used
in this Warrant, the words “herein”, “hereof” and “hereunder,” and words of
similar import, shall refer to this Warrant as a whole and not to any provision
of this Warrant, and the words “Section” and “Exhibit” shall refer to Sections
of, and Exhibits to, this Warrant unless otherwise specified.
(c) Whenever
the context so requires the neuter gender includes the masculine or feminine,
and the singular number includes the plural, and vice versa.
9
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
duly
authorized as of the date first written above.
| EYETEL IMAGING, INC. | |||
| ATTEST: | |||
|
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇
|
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇
|
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ |
||
|
Title:
Chief
Financial Officer
|
Title: President and Chief Executive Officer | ||
10
FINAL
Schedule
I
This
Warrant shall vest based upon the Holder achieving the following milestones
during the calendar years set forth in the table below. Any terms used but
not
defined herein shall have the meanings set forth in the License
Agreement.
|
Year
|
2007
|
2008
|
2009
|
2010
|
2011
|
Total
|
|
Units
placed (= or >)
|
[*****]
|
[*****]
|
[*****]
|
[*****]
|
[*****]
|
[*****]
|
|
Average
usage per installed unit per month
|
[*****]
|
[*****]
|
[*****]
|
[*****]
|
[*****]
|
[*****]
|
|
#
of Shares Vesting
|
[*****]
|
[*****]
|
[*****]
|
[*****]
|
[*****]
|
500,000
|
For
purposes of the table above:
“Units
placed” will equal the number of Initial Products for which the Holder has
received initial payment with respect to installation during the calendar
year(s) set forth in the table above (regardless of whether installation has
occurred prior to the end of such calendar year(s)). In the event that an
initial payment with respect to installation has been paid for an Initial
Product during a calendar year but such Initial Product is removed from the
Customer site prior to the end of such calendar year, then such Initial Product
shall not be deemed to be a “unit placed” for the purpose of this calculation.
In addition, in the event that an initial payment with respect to the
installation has been paid for an Initial Product during a calendar year but
such Initial Product is removed from the Customer site prior to the end of
[*****] after such calendar year, then such Initial Product will be deducted
from the units placed in such subsequent year.
“Average
usage per installed unit per month” will equal the monthly average number of
Scans ordered per installed Initial Product, for all Initial Products installed
by September 30 of each calendar year, by Customers in the Territory during
the
last three months of each of the calendar years set forth in the table
above.
Both
the
units placed and the average usage per installed unit per month requirements
must be met for any given calendar year(s) for the number of shares vesting
for
such calendar year(s) to vest; provided that if Holder does not meet one or
both
of the requirements for a specific year, but does meet the combined requirements
for two (2) or more consecutive years including such year, then all of the
shares scheduled to vest for each of the years during such period will vest.
All
shares will vest as of December 31st of the year in which the vesting
requirements are met.
*
Confidential Treatment Requested.
SCHEDULE
1
|
Year
|
2007
|
2008
|
2009
|
2010
|
2011
|
Total
|
|
Units
placed (= or >)
|
[*****]
|
[*****]
|
[*****]
|
[*****]
|
[*****]
|
[*****]
|
|
Average
usage per installed unit per month
|
[*****]
|
[*****]
|
[*****]
|
[*****]
|
[*****]
|
[*****]
|
|
#
of Shares Vesting
|
[*****]
|
[*****]
|
[*****]
|
[*****]
|
[*****]
|
500,000
|
*
Confidential Treatment Requested.
EXHIBIT
A
FORM
OF EXERCISE NOTICE
[To
be
executed only upon exercise of Warrant pursuant to Section
1.1(a)]
To
EyeTel
Imaging, Inc.
The
undersigned registered Holder of the within Warrant hereby irrevocably exercises
such Warrant for, and purchases thereunder, ______ shares of the Common Stock
and herewith makes payment of $____________ therefor, and requests that the
certificates for such shares be issued in the name of, and delivered to
_____________________, whose address is
____________________________.
|
Dated:
____________________
|
(Signature
must conform in all
respects to
name
of ▇▇▇▇▇▇ as specified on the face of
Warrant)
|
||
|
(Street
Address)
|
|||
|
(City)
(State)
(Zip
Code)
|
|||
EXHIBIT
B
FORM
OF EXCHANGE NOTICE
[To
be
executed only upon net exchange of the Warrant pursuant to Section
1.1(b)]
To
EyeTel
Imaging, Inc.
The
undersigned registered Holder of the within Warrant hereby irrevocably exchanges
such Warrant with respect to ____________ shares of the Common Stock which
such
Holder would be entitled to receive upon the exercise hereof, and requests
that
the certificates for such shares be issued in the name of, and delivered to
_____________________, whose address is ______________________.
|
Dated:
____________________
|
(Signature
must conform in all
respects to
name
of ▇▇▇▇▇▇ as specified on the face of
Warrant)
|
||
|
(Street
Address)
|
|||
|
(City)
(State)
(Zip
Code)
|
|||
EXHIBIT
E
|
EyeTel
Imaging, Inc. - Capitalization as of
10/24/06
|
|
Class/Series
of Stock
|
Number
of Shares
Outstanding
|
Reserved
for Issuance
|
|
Common
Stock
|
619,1071
|
2,297,1832
|
|
Series
B Preferred Stock
|
13,704,875
|
297,7033
|
1 Excludes 112,443 shares of restricted stock issued to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
2 Consists
of 55,120 and 2,139,474 shares reserved for issuance under the 2002 and
2004
Equity Incentive Plans, respectively, and 102,589 shares reserved for issuance
upon exercise of warrants. Also excludes 744,750 shares approved by the
board of
directors of EyeTel for issuance under the 2004 Equity Incentive Plan still
pending shareholder approval.
3 Shares
reserved for issuance upon exercise of warrants.