Exhibit 4.8
No._____ ___________Shares
REFOCUS GROUP, INC.
WARRANT TO PURCHASE COMMON STOCK
VOID AFTER 5:30 P.M., EASTERN STANDARD
TIME, ON THE EXPIRATION DATE
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND
MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE
TRANSFERRED WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS
OF APPLICABLE FEDERAL, STATE AND FOREIGN SECURITIES LAWS OR APPLICABLE
EXEMPTIONS THEREFROM.
FOR VALUE RECEIVED, Refocus Group, Inc., a Delaware corporation (the
"Company"), hereby agrees to sell upon the terms and on the conditions
hereinafter set forth, but no later than 5:30 p.m., Eastern Standard Time, on
the Expiration Date (as hereinafter defined) to
_____________________________________________________________or registered
assigns (the "Holder"), under the terms as hereinafter set forth, up to
___________________ (______) fully paid and non-assessable shares of Company
common stock, par value $0.0001 per share (the "Warrant Stock"), at a purchase
price per share equal to the Warrant Price (as defined herein), pursuant to this
warrant (this "Warrant"). The number of shares of Warrant Stock to be so issued
and the Warrant Price are subject to adjustment in certain events as hereinafter
set forth.
This Warrant is one of a series of Company Warrants to purchase Common
Stock (collectively, the "Warrants") issued pursuant to the Loan Agreement (as
defined herein). Capitalized terms used and not otherwise defined herein shall
have the respective meanings attributed thereto in Section 10 hereof.
1. Exercise of Warrant.
(a) The Holder may exercise this Warrant according to its terms by
surrendering this Warrant to the Company at the address set forth in Section 11,
the subscription form attached hereto having then been duly executed by the
Holder, accompanied by cash, certified check or bank draft in payment of the
purchase price, in lawful money of the United States of America, for the number
of shares of the Warrant Stock specified in the subscription form, or as
otherwise provided in this Warrant prior to 5:30 p.m., Eastern Standard Time, on
October 8, 2009 (the "Expiration Date").
(b) This Warrant may be exercised in whole or in part so long as any
exercise in part hereof would not involve the issuance of fractional shares of
Warrant Stock. If exercised in part, the Company shall deliver to the Holder a
new Warrant, identical in form, in the name of the Holder, evidencing the right
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to purchase the number of shares of Warrant Stock as to which this Warrant has
not been exercised, which new Warrant shall be signed by the Chief Executive
Officer, President, Secretary or the Assistant Secretary of the Company. The
term "Warrant" as used herein shall include any subsequent Warrant issued as
provided herein.
(c) No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of this Warrant. The Company shall pay cash in lieu of
fractions with respect to the Warrants based upon the fair market value of such
fractional shares of Common Stock (which shall be the closing price of such
shares on the exchange or market on which the Common Stock is then traded or
quoted) at the time of exercise of this Warrant.
(d) In the event of any exercise of the rights represented by this Warrant,
a certificate or certificates for the Warrant Stock so purchased, registered in
the name of the Holder, shall be delivered to the Holder within a reasonable
time after such rights shall have been so exercised. The person or entity in
whose name any certificate for the Warrant Stock is issued upon exercise of the
rights represented by this Warrant shall for all purposes be deemed to have
become the holder of record of such shares immediately prior to the close of
business on the date on which the Warrant was surrendered and payment of the
Warrant Price and any applicable taxes was made, irrespective of the date of
delivery of such certificate, except that, if the date of such surrender and
payment is a date when the stock transfer books of the Company are closed, such
person shall be deemed to have become the holder of such shares at the opening
of business on the next succeeding date on which the stock transfer books are
open. Except as provided in Section 4 hereof, the Company shall pay any and all
documentary stamp or similar issue or transfer taxes payable in respect of the
issue or delivery of shares of Common Stock on exercise of this Warrant.
2. Disposition of Warrant Stock and Warrant.
(a) The Holder hereby acknowledges that this Warrant and any Warrant Stock
purchased pursuant hereto are not being registered (i) under the Act on the
ground that the issuance of this Warrant is exempt from registration under
Section 4(2) of the Act as not involving any public offering and (ii) under any
applicable state securities law because the issuance of this Warrant does not
involve any public offering; and that the Company's reliance on the Section 4(2)
exemption of the Act and under applicable state securities laws is predicated in
part on the representations hereby made to the Company by the Holder that it is
acquiring this Warrant, and will acquire the Warrant Stock, for investment for
its own account, with no present intention of dividing its participation with
others or reselling or otherwise distributing the same, subject, nevertheless,
to any requirement of law that the disposition of its property shall at all
times be within its control.
The Holder hereby agrees that it will not sell or transfer all or any part
of this Warrant and/or Warrant Stock unless and until it shall have first given
notice to the Company describing such sale or transfer and furnished to the
Company either (i) an opinion, reasonably satisfactory to counsel for the
Company, of counsel (skilled in securities matters, selected by the Holder and
reasonably satisfactory to the Company) to the effect that the proposed sale or
transfer may be made without registration under the Act and without registration
or qualification under any state law, or (ii) an interpretative letter from the
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U.S. Securities and Exchange Commission to the effect that no enforcement action
will be recommended if the proposed sale or transfer is made without
registration under the Act.
(b) If, at the time of issuance of the shares issuable upon exercise of
this Warrant, no registration statement is in effect with respect to such shares
under applicable provisions of the Act, the Company may, at its election,
require that the Holder provide the Company with written reconfirmation of the
Holder's investment intent and that any stock certificate delivered to the
Holder of a surrendered Warrant shall bear a legend reading substantially as
follows:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR REGISTERED OR QUALIFIED UNDER THE SECURITIES LAWS
OF ANY STATE, AND HAVE BEEN TAKEN FOR INVESTMENT PURPOSES
ONLY AND NOT WITH A VIEW TO THE DISTRIBUTION THEREOF, AND
NEITHER SUCH SHARES NOR ANY INTEREST THEREIN MAY BE SOLD,
TRANSFERRED, ASSIGNED OR PLEDGED, EXCEPT IF REGISTERED UNDER
THE ACT AND APPLICABLE STATE BLUE SKY OR SECURITIES LAWS OR
ANY EXEMPTIONS FROM SUCH REGISTRATION UNDER THE ACT OR
REGISTRATION OR QUALIFICATION UNDER APPLICABLE STATE BLUE
SKY OR SECURITIES LAWS ARE APPLICABLE."
In addition, so long as the foregoing legend may remain on any stock certificate
delivered to the Holder, the Company may maintain appropriate "stop transfer"
orders with respect to such certificates and the shares represented thereby on
its books and records and with those to whom it may delegate registrar and
transfer functions.
3. Reservation of Shares. The Company hereby agrees that at all times there
shall be reserved for issuance upon the exercise of this Warrant such number of
shares of its Common Stock as shall be required for issuance upon exercise of
this Warrant. The Company further agrees that all shares that may be issued upon
the exercise of the rights represented by this Warrant will be duly authorized
and will, upon issuance and against payment of the Warrant Price, be validly
issued, fully paid and non-assessable, free from all taxes, liens, charges and
preemptive rights with respect to the issuance thereof, other than taxes, if
any, in respect of any transfer occurring contemporaneously with such issuance
and other than transfer restrictions imposed by federal and state securities
laws.
4. Exchange, Transfer, Assignment or Loss of Warrant. This Warrant is
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company or at the office of its stock transfer
agent, if any, for other Warrants of different denominations, entitling the
Holder or Holders thereof to purchase in the aggregate the same number of shares
of Common Stock purchasable hereunder. Upon surrender of this Warrant to the
Company or at the office of its stock transfer agent, if any, with the
Assignment Form annexed hereto duly executed and funds sufficient to pay any
transfer tax, the Company shall, without charge, execute and deliver a new
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Warrant in the name of the assignee named in such instrument of assignment and
this Warrant shall promptly be canceled. This Warrant may be divided or combined
with other Warrants that carry the same rights upon presentation hereof at the
office of the Company or at the office of its stock transfer agent, if any,
together with a written notice specifying the names and denominations in which
new Warrants are to be issued and signed by the Holder hereof.
5. Capital Adjustments. This Warrant is subject to the following further
provisions:
(a) Recapitalization, Reclassification and Succession. If any
recapitalization of the Company or reclassification of its Common Stock or any
merger or consolidation of the Company into or with a corporation or other
business entity, or the sale or transfer of all or substantially all of the
Company's assets or of any successor corporation's assets to any other
corporation or business entity (any such corporation or other business entity
being included within the meaning of the term "successor corporation") shall be
effected, at any time while this Warrant remains outstanding and unexpired,
then, as a condition of such recapitalization, reclassification, merger,
consolidation, sale or transfer, lawful and adequate provision shall be made
whereby the Holder of this Warrant thereafter shall have the right to receive
upon the exercise hereof as provided in Section 1 and in lieu of the shares of
Common Stock immediately theretofore issuable upon the exercise of this Warrant,
such shares of capital stock, securities or other property as may be issued or
payable with respect to, or in exchange for, a number of outstanding shares of
Common Stock equal to the number of shares of Common Stock immediately
theretofore issuable upon the exercise of this Warrant immediately prior to such
recapitalization, reclassification, merger, consolidation, sale or transfer, and
in each such case, the terms of this Warrant shall be applicable to the shares
of stock or other securities or property receivable upon the exercise of this
Warrant after such consummation.
(b) Subdivision or Combination of Shares. If the Company at any time while
this Warrant remains outstanding and unexpired shall subdivide or combine its
Common Stock, the number of shares of Warrant Stock purchasable upon exercise of
this Warrant and the Warrant Price shall be proportionately adjusted.
(c) Stock Dividends and Distributions. If the Company at any time while
this Warrant is outstanding and unexpired shall issue or pay the holders of its
Common Stock a stock dividend, then (i) the Warrant Price shall be adjusted in
accordance with Section 5(d) and (ii) the number of shares of Warrant Stock
purchasable upon exercise of this Warrant shall be adjusted to the number of
shares of Common Stock that the Holder would have owned immediately following
such action had this Warrant been exercised immediately prior thereto.
If the Company shall at any time after the date of issuance of this Warrant
distribute to all holders of its Common Stock any shares of capital stock of the
Company (other than Common Stock) or evidences of its indebtedness or assets
(excluding cash dividends or distributions paid from retained earnings or
current year's or prior year's earnings of the Company) or rights or warrants to
subscribe for or purchase any of its securities (excluding those referred to in
the immediately preceding paragraph) (any of the foregoing being hereinafter in
this paragraph called the "Securities"), then in each such case, the Company
shall reserve shares or other units of such securities for distribution to the
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Holder upon exercise of this Warrant so that, in addition to the shares of the
Common Stock to which such Holder is entitled, such Holder will receive upon
such exercise the amount and kind of such Securities that such Holder would have
received if the Holder had, immediately prior to the record date for the
distribution of the Securities, exercised this Warrant.
(d) Warrant Price Adjustment. Whenever the number of shares of Warrant
Stock purchasable upon exercise of this Warrant is adjusted, as herein provided,
the Warrant Price payable upon the exercise of this Warrant shall be adjusted to
that price determined by multiplying the Warrant Price immediately prior to such
adjustment by a fraction (i) the numerator of which shall be the number of
shares of Warrant Stock purchasable upon exercise of this Warrant immediately
prior to such adjustment, and (ii) the denominator of which shall be the number
of shares of Warrant Stock purchasable upon exercise of this Warrant immediately
thereafter.
(e) Certain Shares Excluded. The number of shares of Common Stock
outstanding at any given time for purposes of the adjustments set forth in this
Section 5 shall exclude any shares then directly or indirectly held in the
treasury of the Company.
(f) Deferral and Cumulation of De Minimis Adjustments. The Company shall
not be required to make any adjustment pursuant to this Section 5 if the amount
of such adjustment would be less than one percent (1%) of the Warrant Price in
effect immediately before the event that would otherwise have given rise to such
adjustment. In such case, however, any adjustment that would otherwise have been
required to be made shall be made at the time of, and together with, the next
subsequent adjustment, which, together with any adjustment or adjustments so
carried forward, shall amount to not less than one percent (1%) of the Warrant
Price in effect immediately before the event giving rise to such next subsequent
adjustment.
(g) Duration of Adjustment. Following each computation or readjustment as
provided in this Section 5, the new adjusted Warrant Price and number of shares
of Warrant Stock purchasable upon exercise of this Warrant shall remain in
effect until a further computation or readjustment thereof is required.
6. Notice to Holders.
(a) Notice of Record Date. In case:
(i) the Company shall take a record of the holders of its Common Stock
(or other stock or securities at the time receivable upon the exercise of
this Warrant) for the purpose of entitling them to receive any dividend
(other than a cash dividend payable out of earned surplus of the Company)
or other distribution, or any right to subscribe for or purchase any shares
of stock of any class or any other securities, or to receive any other
right;
(ii) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company into another corporation, or any conveyance of all or
substantially all of the assets of the Company to another corporation; or
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(iii) of any voluntary dissolution, liquidation or winding-up of the
Company;
then, and in each such case, the Company will mail, or cause to be mailed, to
the Holder hereof at the time outstanding a notice specifying, as the case may
be, (i) the date on which a record is to be taken for the purpose of such
dividend, distribution or right, and stating the amount and character of such
dividend, distribution or right, or (ii) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up is to take place, and the time, if any, to be fixed, as of which the
holders of record of Common Stock (or such stock or securities at the time
receivable upon the exercise of this Warrant) shall be entitled to exchange
their shares of Common Stock (or such other stock or securities) for securities
or other property deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, dissolution or winding-up. Such notice shall
be mailed at least fifteen (15) days prior to the record date therein specified,
or if no record date shall have been specified therein, at least thirty (30)
days prior to such specified date.
(b) Certificate of Adjustment. Whenever any adjustment shall be made
pursuant to Section 5 hereof, the Company shall promptly make a certificate
signed by its Chairman, Chief Executive Officer, President or a Vice President
and by its Treasurer or Assistant Treasurer or its Secretary or Assistant
Secretary, 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 Warrant Price and number of shares of Warrant Stock
purchasable upon exercise of this Warrant after giving effect to such
adjustment, and shall promptly cause copies of such certificates to be mailed
(by first class mail, postage prepaid) to the Holder of this Warrant.
7. Loss, Theft, Destruction or Mutilation. Upon receipt by the Company of
evidence satisfactory to it, in the exercise of its reasonable discretion, of
the ownership and the loss, theft, destruction or mutilation of this Warrant
and, in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to the Company and, in the case of mutilation, upon surrender and
cancellation thereof, the Company will execute and deliver in lieu thereof,
without expense to the Holder, a new Warrant of like tenor dated the date
hereof.
8. Warrant Holder Not a Stockholder. The Holder of this Warrant, as such,
shall not be entitled by reason of this Warrant to any rights whatsoever as a
stockholder of the Company.
9. Registration Rights. The shares of Common Stock issuable upon exercise
of this Warrant will be afforded the registration rights set forth in the Loan
Agreement, if any.
10. Definitions. As used herein, unless the context otherwise requires, the
following terms have the respective meanings:
(a) "Affiliate": with respect to any Person, the following: (i) any other
Person that at such time, directly or indirectly, through one or more
intermediaries controls, or is controlled by or is under common control with
such first Person or (ii) any Person beneficially owning or holding, directly or
indirectly, 10% or more of any class of voting or equity interests of the
Company or any Subsidiary or any corporation of which the Company and its
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Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly,
10% of more of any class of voting or equity interests. As used in such
definition, "controls," "controlled by" and "under common control," as used with
respect to a Person, shall mean the possession, directly or indirectly, of the
power to direct, or cause the direction of, the management policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise.
(b) "Common Stock" shall mean, when used herein, unless the context
otherwise requires, the stock and other securities and property at the time
receivable upon the exercise of this Warrant.
(c) "Loan Agreement" shall mean that certain Loan Agreement, dated October
8, 2004, by and among the Company, the initial holder of this Warrant and the
other parties thereto, as supplemented, modified and amended from time to time.
(d) "Person" shall mean any natural person, corporation, division of a
corporation, partnership, limited liability company, trust, joint venture,
association, company, estate, unincorporated organization or government or any
agency or political subdivision thereof.
(e) "Subsidiaries", with respect to any Person (whether now existing or
hereafter organized) of which at least a majority of the securities or other
ownership interests having ordinary voting power for the election of directors
is, at the time as of which any determination is being made, owned or controlled
by such Person or one or more subsidiaries of such Person.
(f) "Warrant Price" shall mean the lesser of (i) 1.25 times the volume
weighted average closing price per share of Common Stock, as reported by the
exchange or market on which shares of Common Stock are then traded or quoted,
for the twenty (20) consecutive trading days immediately prior to the date of
issuance of this Warrant or (ii), if the Company consummates a financing that is
in the form of its equity securities aggregating at least $2.0 million on or
prior to April 8, 2005, or receives on or prior to April 8, 2005, a binding
commitment that requires the purchase of an aggregate of at least $2.0 million
of its equity securities within six months following the maturity date of the
Notes, in each case excluding the outstanding principal balance and interest due
under the Notes issued pursuant to the Loan Agreement, the price per share of
the common stock of the Company purchased, or committed to be purchased, in such
financing, if any.
11. Notices. Any notice required or contemplated by this Warrant shall be
deemed to have been duly given if transmitted by registered or certified mail,
return receipt requested, to the Company at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: President, or to the Holder at the
name and address set forth in the Warrant Register maintained by the Company.
12. Choice of Law. THIS WARRANT IS ISSUED UNDER, AND SHALL FOR ALL PURPOSES
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW RULES.
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IN WITNESS WHEREOF, the Company has duly caused this Warrant to be signed
on its behalf, in its corporate name and by its duly authorized officer, as of
this 8th day of October 2004.
REFOCUS GROUP, INC.
By:___________________________
▇▇▇▇ ▇. ▇▇▇
Vice President
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SUBSCRIPTION FORM
The undersigned, the Holder of the attached Warrant, hereby irrevocably
elects to exercise the purchase rights represented by such Warrant for, and to
purchase thereunder, the following number of shares of Common Stock of REFOCUS
GROUP, INC.:
Number of Shares Purchase Price Per Share
The undersigned herewith makes payment of $_________ therefor, and requests
that certificates for such shares (and any warrants or other property issuable
upon such exercise) be issued in the name of, and delivered to,
__________________________, whose address is _______________________________
(social security or taxpayer identification number ___________) and, if such
shares shall not include all of the shares issuable under such warrant, that a
new warrant of like tenor and date for the balance of the shares issuable
thereunder be delivered to the undersigned.
HOLDER:
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Signature
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Signature, if jointly held
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Date
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ASSIGNMENT FORM
FOR VALUE RECEIVED,
_______________________________________________________________________________
hereby sells, assigns and transfers unto
Name __________________________________________________________________________
(Please typewrite or print in block letters)
Social Security or Taxpayer Identification Number:_____________________________
possesses the right to purchase Common Stock of REFOCUS GROUP, INC., a Delaware
corporation, represented by this Warrant to the extent of shares as to which
such right is exercisable and does hereby irrevocably constitute and appoint
_________________, attorney, to transfer the same on the books of the Company
with full power of substitution in the premises.
DATED:_________________
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Signature
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Signature, if jointly held
Witness:
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