WARRANT TO PURCHASE COMMON STOCK OF VYCOR MEDICAL, INC.
|
Warrant
to Purchase 4,000 shares
|
|
Of Common Stock (subject to adjustment)
|
THIS
WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT
BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN
EXEMPTION FROM SUCH REGISTRATION.
WARRANT
TO PURCHASE COMMON STOCK
OF
VYCOR
MEDICAL, INC.
This
certifies that, for value received, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and his registered assigns
("Holder") is entitled, subject to the terms set forth below, to purchase from
VYCOR MEDICAL, INC., a Delaware corporation (the "Company"), 4,000 shares of
the
Common Stock of the Company, upon surrender hereof, at the principal office
of
the Company referred to below, with the Notice of
Exercise
form attached hereto (the "Notice of Exercise") duly executed, and simultaneous
payment therefor in lawful money of the United States as hereinafter provided,
at the Exercise Price as set forth in Section 2 below. The number, character
and
Exercise Price of such shares of Common Stock are subject to adjustment as
provided below. The term "Warrant" as used herein shall include this Warrant
and
any warrants delivered in substitution or exchange therefor as provided
herein.
This
Warrant is issued in connection with the purchase by the Holder of Common
Shares of the Company's stock pursuant to that certain Subscription Agreement
dated November 6, 2007.
1.
Term
of
Warrant. Subject to the terms and conditions set forth herein, this
Warrant shall be exercisable, in whole or in part, during the term commencing
on
the date hereof ("Initial Exercise Date") and ending at 5:00 p.m., Eastern
Time,
on the three-year anniversary of the Initial Exercise Date, and shall he void
thereafter.
2.
Exercise
Price.
The
Exercise Price at which this Warrant may be exercised shall be $0.50 per share
of Common Stock, as adjusted from time to time pursuant to Section 11
hereof.
3.
Exercise of
Warrant.
3.1
Notice
of Exercise.
The
purchase rights represented by this Warrant are exercisable by the holder in
whole or in part, but not for less than 1,000
shares at a time (or such lesser number of shares which may then constitute
the
maximum number purchasable; such number being subject to adjustment as provided
in Section 11 below), at any time, or from time to time, during the term hereof
as described in Section 1 above, by the surrender of this Warrant and the Notice
of Exercise duly completed and executed on behalf of the Holder, at the office
of the Company (or such other office or agency of the Company as it may
designate by notice in writing to the Holder at the address of the Holder
appearing on the books of the Company), upon payment in cash or by federal
funds
wire transfer to the Company of the purchase price of the shares to be
purchased.
3.2
Issuance
of Stock.
This
Warrant shall be deemed to have been exercised immediately prior to the close
of
business on the date of its surrender for exercise as provided above, and the
person entitled to receive the shares of Common Stock issuable upon such
exercise shall be treated for all purposes as the holder of record of such
shares as of the close of business on such date. As promptly as practicable
on
or after such date and in any event within ten (10) days thereafter, the Company
at its expense shall issue and deliver to the person or persons entitled to
receive the same a certificate or certificates for the number of shares issuable
upon such exercise. In the event that this Warrant is exercised in part, the
Company at its expense will execute and deliver a new Warrant of like tenor
exercisable for the number of shares for which this Warrant may then be
exercised.
4.
No
Fractional
Shares or
Scrip.
No
fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant. In lieu of any fractional share to which the
Holder would otherwise be entitled, the Company shall make a cash payment equal
to the Exercise Price multiplied by such fraction.
5.
Replacement
of Warrant. On
receipt
of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this warrant and, in the case of loss, theft or
destruction, on delivery of an indemnity agreement reasonably satisfactory
in
form and substance to the Company or, in the case of mutilation, on surrender
and cancellation of this Warrant, the Company at its expense shall execute
and
deliver, in lieu of this Warrant, a new warrant of like tenor and
amount.
6.
Rights
of Shareholders.
Subject to Sections
9 and 11 of this
Warrant, the Holder shall not be entitled to vote or receive dividends or be
deemed the holder of Common Stock or any other securities of the Company that
may at any
time
be issuable on the exercise hereof for any purpose, nor shall anything contained
herein be construed to
confer
upon the Holder, as such, any of the rights of a stockholder of the Company
or
any right to vote for the election of directors or upon any matter submitted
to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action or to receive notice of meetings, or to receive dividends
or
subscription rights or otherwise until the Warrant shall have been exercised
as
provided herein.
7.
Transfer
of Warrant.
7.1
Warrant
Register.
The
Company will maintain a register (the "Warrant Register") containing the names
and addresses of the Holder or Holders. Any Holder of this Warrant or any
portion thereof may change his or her address as shown on the Warrant Register
by written notice to the Company requesting such change. Any notice or written
communication required or permitted to be given to the Holder may
be
delivered or given by mail to such Holder as shown on the Warrant Register
and
at
the
address shown on the Warrant Register. Until this Warrant is transferred on
the
Warrant Register of the Company, the Company may treat the Holder as shown
on
the Warrant Register as the absolute owner of this Warrant for all purposes,
notwithstanding any notice to the contrary.
7.2 Warrant
Agent.
The
Company may, by
written notice to the Holder, appoint an agent for the purpose of maintaining
the Warrant Register referred to in Section 7.1 above, issuing the Common Stock
or other securities then issuable upon the exercise of this Warrant, exchanging
this Warrant, replacing this Warrant, or any or all of the foregoing.
Thereafter, any such registration, issuance, exchange, or replacement, as the
case may be, shall be made at the office of such agent.
7.3
Transferability
and Non-Negotiability of Warrant.
This
Warrant may not
be
transferred or assigned in whole or in part without compliance with all
applicable federal and state securities laws by the transferor and the
transferee (including the delivery of investment representation letters and
legal opinions reasonably satisfactory to the Company, if such are requested
by
the Company), provided, however, that this Warrant may not be transferred in
part unless such transfer is to a transferee who pursuant to such transfer
receives the right to purchase at least 50,000
shares
hereunder. Subject to the provisions of this Warrant with respect to compliance
with the Securities Act of 1933, as amended (the "Act"), title to this Warrant
may be transferred by endorsement (by the Holder executing the Assignment Form
attached hereto (the "Assignment Form") and delivery in the same manner as
a
negotiable instrument transferable by endorsement and delivery.
-2-
7.4
Exchange of Warrant Upon a Transfer. On
surrender of this Warrant for exchange, properly endorsed on the Assignment
Form
and subject to the provisions of this Warrant with respect to compliance with
the Act and with the limitations on assignments and transfers and contained
in
this Section 7, the Company at its expense shall issue to or on the order of
the
Holder a new warrant or warrants of like tenor, in the name of the Holder or
as
the Holder (on payment by the Holder of any applicable transfer taxes) may
direct, for the number of shares issuable upon exercise hereof.
7.5
Compliance
with Securities Laws.
(a)
The
Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant
and
the shares of Common Stock to be issued upon exercise hereof are being acquired
solely for the Holder's own account and not as a nominee
for any other party, and for investment, and that the Holder will not offer,
sell or otherwise dispose of this Warrant or any shares of Common Stock to
be
issued upon exercise hereof except under circumstances that will not result
in a
violation of the
Act
or
any state securities laws.
Upon
exercise of this Warrant, the Holder shall, if requested by the Company, confirm
in writing, in a form satisfactory to the Company, that the shares of Common
Stock so purchased are being acquired solely for the Holder's own account and
not as a nominee for any other party, for investment, and not with a view toward
distribution or resale.
(b)
This
Warrant and all shares of Common Stock issued upon exercise hereof shall be
stamped or imprinted with a legend in substantially
the following form (in addition to any legend required by state securities
laws):
THE
SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SECURITIES AND ANY
SECURITIES OR SHARES ISSUED HEREUNDER OR THEREUNDER MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SECURITIES
AND
RESTRICTING THEIR TRANSFER OR SALE MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OR RECORD HEREOF TO THE SECRETARY OF THE COMPANY AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY.
8.
Reservation
of Stock.
The
Company covenants that during the term this Warrant is exercisable, the Company
will reserve from its authorized and unissued Common Stock a sufficient number
of shares to provide for the issuance of Common Stock upon the exercise of
this
Warrant and, from time to time, will take all steps necessary to amend its
Articles of Incorporation (the "Articles") to provide sufficient reserves of
shares of Common Stock issuable upon exercise of this Warrant. The Company
further covenants that all shares that may be issued upon the exercise of rights
represented by this Warrant, upon exercise of the rights represented by this
Warrant and payment of the Exercise Price, all as set forth herein, will be
free
from all taxes, liens and charges in respect of the issue thereof (other than
taxes in respect of any transfer occurring contemporaneously or otherwise
specified herein). The Company agrees that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary certificates
for
shares of
Common
Stock upon the exercise of this Warrant.
-3-
9.
Notices.
Upon
the written request of the holder, whenever the Exercise Price or number of
shares purchasable hereunder shall be adjusted pursuant to Section 11 hereof,
the Company shall issue a certificate signed by its Chief Financial Officer
setting forth, in reasonable detail, the event requiring the adjustment, the
amount of the adjustment, the method by which such adjustment was calculated,
and the Exercise Price and number of shares purchasable hereunder after giving
effect to such adjustment, and shall cause a copy of such certificate to be
mailed (by first-class mail, postage prepaid) to the Holder of this Warrant.
All
notices and requests required under this Warrant shall be in writing and shall
be deemed to have been given for all purposes (a) upon personal delivery, (b)
one day after being sent, when sent by professional overnight courier service
from and to locations within the continental United States, (c) five days after
posting when sent by registered or certified mail, or (d) on the date of
transmission (if transmitted during normal business hours otherwise on the
next
succeeding business day) when sent by telegram, telegraph, telex or fax,
addressed to the Holder at its address set forth on the Warrant Register, and
addressed to the Company at Vycor Medical Inc., ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Fax: (▇▇▇) ▇▇▇ ▇▇▇▇. The Holder or the Company may from
time
to time by notice in writing delivered as provided herein, designate a different
mailing address to which such notices or requests shall thereafter be
delivered.
10.
Amendments.
10.1
Amendment.
Any
term of this Warrant may be amended with the written consent of the Company
and
the Holder. Any amendment effected in accordance with this Section 10 shall
be
binding upon the Company and each future holder of this Warrant.
10.2
Waiver.
No
waivers of, or exceptions to, any term, condition or provision of this Warrant
in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such term, condition or provision.
11.
Adjustments.
The
Exercise Price and the number of shares purchasable hereunder are subject to
adjustment from time to time as follows:
11.1
Merger,
Sale of Assets, etc.
If at
any time while this Warrant, or any portion thereof, is outstanding and
unexpired there shall be (a) a reorganization (other than a combination,
reclassification, exchange or subdivision of shares otherwise provided for
herein), (b) a merger or consolidation of the Company with or into another
corporation in which the Company is not the surviving entity, or a reverse
triangular merger in which the Company is the surviving entity but the shares
of
the Company's capital stock outstanding immediately prior to the merger are
converted by virtue of the merger into other property, whether in the form
of
securities, cash, or otherwise, or (c) a sale or transfer of
the
Company's properties and assets as, or substantially as, an entirety to any
other person, then, as a part of such reorganization, merger, consolidation,
sale or transfer, lawful provision shall be made so that the holder of this
Warrant shall thereafter be entitled to receive upon exercise of this Warrant,
during the period specified herein and upon payment of the Exercise Price then
in effect, the number of shares of stock or other securities or property of
the
successor corporation resulting from such reorganization, merger, consolidation,
sale or transfer that a holder of the shares deliverable upon exercise of this
Warrant would have been entitled to receive in such reorganization,
consolidation, merger, sale or transfer if this Warrant had been exercised
immediately before such reorganization, merger, consolidation, sale or transfer,
all subject to further adjustment as provided in this Section 11. The foregoing
provisions of this Section 11.1
shall
similarly apply to successive reorganizations, consolidations, mergers, sales
and transfers and to the stock or securities of any other corporation that
are
at the time receivable upon the exercise of this Warrant. If the per-share
consideration payable to the Holder for shares in connection with any such
transaction is in a form other than cash or marketable securities, then the
value of such consideration shall be determined in good faith by the Company's
Board of Directors. In all events, appropriate adjustment (as determined in
good
faith by the Company's Board of Directors) shall be made in the application
of
the provisions of this Warrant with respect to the rights and interests of
the
Holder after the transaction, to the end that the provisions of this Warrant
shall be applicable after that event as near as reasonably may be, in relation
to any shares or other property deliverable after that event upon exercise
of
this Warrant.
-4-
11.2
Reclassification,
etc. If
the
Company, at any time while this Warrant, or any portion thereof, remains
outstanding and unexpired by reclassification of securities or otherwise, shall
change any of the securities
as to which purchase rights under this Warrant exist into the same or a
different number of securities of any other class or classes, this Warrant
shall thereafter
represent the right to acquire such number and kind of securities as would
have been issuable as the result
of such
change with respect to the securities
that were subject to the purchase rights under this Warrant immediately prior
to
such reclassification or other change
and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided
in this Section 11.
11.3
Split, Subdivision
or Combination of Shares. If
the
Company at any time while this warrant, or any portion thereof, remains
outstanding and unexpired shall split, subdivide or combine the securities
as to
which
purchase
rights under this Warrant exist into a different number of securities of the
same class, the Exercise Price for such securities shall be proportionately
decreased in the case of a split or
subdivision or
proportionately increased in the case of a combination.
11.4
Adjustments
for Dividends in Stock or
Other
Securities or Property.
If
while
this Warrant,
or any portion thereof, remains outstanding and unexpired the holders of the
securities as to which purchase
rights under this Warrant exist at the
time
shall
have
received, or, on or after the record date fixed for the determination of
eligible shareholders, shall have become entitled to receive, without payment
therefor, other or additional stock or other securities or property (other
than
cash) of the Company by way of dividend, then and in each case this Warrant
shall represent the right
to
acquire, in addition to the number of shares of the security receivable upon
exercise of this Warrant, and without payment of any additional consideration
therefor, the amount of such other or additional stock or other securities
or
property (other than cash) of the
Company that such holder would hold on the date of such exercise had
it been
the
holder of record of the security receivable upon exercise of this Warrant on
the
date hereof and had thereafter, during the period from the date hereof to
and including the date
of
such exercise, retained such shares
and/or all other additional stock available by it as aforesaid during such
period, giving effect to all adjustments called for during such period by the
provisions of this Section 11.
11.5
Certificate
as to
Adjustments.
Upon
the
occurrence of each adjustment or readjustment pursuant to this Section 11,
the
Company shall, upon the written request, at any time, of any Holder of this
Warrant, furnish or cause to be furnished to such Holder a like certificate
setting forth: (a) adjustments and readjustments in accordance with the terms
hereof; (b) the Exercise Price at the time in effect; and (c) the number of
shares and the amount, if any, of other property that at the time would be
received upon the exercise of the Warrant.
12.
Miscellaneous.
(a)
Attorneys' Fees.
In
any
action at law or in equity to enforce any of the provisions or rights
under this
Warrant,
the unsuccessful party to such
litigation, as determined by the court in a final judgment or decree, shall
pay
the successful party all costs, expenses and reasonable attorneys' fees incurred
by the successful party (including, without limitation, costs, expenses and
fees
on any appeal).
(b)
Governing
Law; Venue.
This
Warrant and the legal relations between the Holder and the Company shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and performed in such State and without regard
to
conflicts of law doctrines of any other State
or
country.
In
the
event
of
any action at law or equity to enforce any of the provisions or
rights
under this Agreement, the parties agree that the proper venue for such action
is
New York City, New York and that the parties may bring such an action to enforce
their respective rights under this Agreement only in a court located within
the
Borough of Manhattan, State of New York. The parties further agree that such
court shall have personal jurisdiction over each of the parties to this
Agreement.
-5-
IN
WITNESS WHEREOF,
VYCOR
MEDICAL, INC. has caused this Warrant to be executed by its officers thereunto
duly authorized.
Dated:
November 6, 2007
VYCOR
MEDICAL, INC.
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
Its: CEO
|
|
ATTEST:
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
|
|
Its:
President
|
|
-6-
NOTICE
OF EXERCISE
To:
VYCOR
MEDICAL, INC.
(1)
The
undersigned hereby elects to purchase shares of Common Stock of VYCOR MEDICAL,
INC., pursuant to the
terms
of the attached
Warrant, and tenders herewith payment of the purchase price for such shares
in
full.
(2)
In
exercising this Warrant the undersigned hereby confirms and acknowledges that
the shares of Common Stock or the Common Stock are being acquired solely for
the
account of the undersigned and not as a nominee for any other party, and for
investment, and that the undersigned will not offer, sell or otherwise dispose
of any such shares of Common Stock or Common Stock except under circumstances
that will not result in a
violation of the Securities Act of 1933, as amended, or any state securities
laws.
(3)
Please issue a certificate or certificates representing those shares of Common
Stock in the name of the undersigned or in such other name as is specified
below:
(Name)
(4)
Please issue a new Warrant for the unexercised portion of the attached Warrant
in the name of the undersigned or in such other name as is specified
below:
(Name)
(Date)
(Signature)
-7-
ASSIGNMENT
FORM
FOR
VALUE
RECEIVED, the undersigned registered owner of this Warrant hereby sells, assigns
and transfers unto the Assignee named below all of the rights of the
undersigned under the within Warrant, with respect to the number of shares
of
Common Stock (or Common Stock) set forth below:
|
NAME
OF ▇▇▇▇▇▇▇▇
|
ADDRESS
|
NO.
OF SHARES
|
||
And
does
hereby constitute and appoint ______________________ as Attorney-in-Fact to
make
such transfer
on the books of VYCOR MEDICAL, INC., maintained for the purpose
with
full power of substitution in the premises.
The
undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof or conversion thereof are being acquired for investment and
that
the Assignee will not offer, sell or otherwise dispose of this Warrant or any
shares of stock to
be
issued upon exercise hereof
or
conversion thereof except under circumstances which will not result in a
violation of the Securities Act of 1933, as amended, or any state securities
laws. Further, the Assignee has acknowledged that upon exercise of this Warrant,
the Assignee shall, if requested by the Company, confirm in writing, in a form
satisfactory to the Company, that the shares of stock so purchased are being
acquired for investment and not with a view toward distribution or
resale.
Dated:
|
Signature
of Holder:
|
ATTEST:
|
Signature
of Assignee
|
-8-