EXHIBIT 99.10
THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), NOR UNDER
ANY APPLICABLE STATE SECURITIES LAWS. NEITHER THIS WARRANT NOR THE SECURITIES
ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS (I) COVERED BY AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, (II) THE SALE IS MADE
PURSUANT TO RULE 144 UNDER THE ACT, IF AVAILABLE, AND EXEMPTIONS FROM
REGISTRATION UNDER APPLICABLE STATE SECURITIES LAWS OR (III) AN OPINION IS
OBTAINED FROM COUNSEL TO THE HOLDER, REASONABLY SATISFACTORY TO COUNSEL TO
PREMIER LASER SYSTEMS, INC. THAT AN EXEMPTION FROM REGISTRATION IS AVAILABLE
UNDER THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS.
CLASS D WARRANT
TO PURCHASE COMMON STOCK
NO PAR VALUE OF
PREMIER LASER SYSTEMS, INC.
50,000 Warrants (Partial Shares)/1/ February 25, 1998
This certifies that Stanley Chang, M.D. ("Holder"), for value received, is
entitled, subject to the other terms set forth below, to purchase from Premier
Laser Systems, Inc., a California corporation (the "Company"), having a place of
business at 3 Morgan, Irvine, California 92618, at any time from the Notice Date
defined below until 5:00 P.M. (California time) on the ninetieth day following
the Notice Date (the "Expiration Date"), unless earlier terminated pursuant to
the provisions of Section 2.4 hereof, at which time this Warrant shall expire
and become void, a fraction of a share, of the Company's Common Stock, no par
value (the "Common Stock") in an amount determined pursuant to Section 2 below.
The purchase or exercise price per share (the "Exercise Price") shall be one
cent ($0.01) regardless of the number of Warrants which must be exercised to
obtain a Warrant Share (as defined below).
_______________
/1/ (Does not represent 50,000 shares - See Paragraph 2 for computation.)
-1-
The number and character of the securities purchasable upon exercise of
this Warrant are subject to adjustment as provided in Section 3.3 hereof.
This Warrant is subject to the following terms and conditions:
1. Exercise; Issuance of Certificates; Payment for Shares.
1.1 Duration of Exercise of Warrant. This Warrant is exercisable at
the option of Holder at any time from the Notice Date until 5:00 P.M.
(California time) on the Expiration Date for all or a portion of the shares of
Common Stock that may be purchased hereunder. This Warrant shall be exercised
upon surrender to the Company of this Warrant properly endorsed with a completed
and executed Subscription Agreement in the form attached hereto as Exhibit A,
and upon payment in cash or cashier's check of the aggregate Exercise Price for
the number of shares of Common Stock for which this Warrant is being exercised
(the "Warrant Shares"). The Company agrees that any Warrant Shares purchased
under this Warrant shall be deemed to be issued to Holder as the record owner of
such shares as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for such shares. Certificates for the
Warrant Shares so purchased, together with any other securities or property to
which Holder is entitled upon such exercise, shall be delivered to Holder by the
Company or its transfer agent at the Company's expense as soon as practicable
after the rights represented by this Warrant have been exercised. Each stock
certificate so delivered shall be in such denominations of Common Stock as may
be reasonably requested by Holder and shall be registered in the name of Holder
or such other name as shall be designated by Holder. If, upon exercise of this
Warrant, fewer than all of the shares issuable upon exercise of this Warrant are
purchased, one or more new warrants substantially in the form of, and on the
terms contained in, this Warrant will be issued for the remaining number of
shares not exercised.
1.2 Securities to be Fully Paid; Reservation of Warrant Shares. The
Company covenants and agrees that all Warrants and Warrant Shares that may be
issued upon the exercise of the rights represented by this Warrant will, upon
issuance, be duly authorized, validly issued, fully paid and nonassessable and
such issuance will not violate any pre-emptive rights under applicable law, the
Premier Articles of Incorporation or By-laws, contracts, or agreement, or
otherwise. The Company covenants that it will at all times from the date hereof
reserve and keep available a sufficient number of shares of its authorized but
unissued Common Stock (or other securities) solely for issuance and delivery to
Holder upon exercise of this Warrant. The Company will take all such reasonable
action as may be necessary to assure that such Warrants and Warrant Shares may
be issued as provided herein without violation of any applicable law or
regulation.
-2-
2. Notice of Exercisability and Determination of Number of Warrant Shares.
2.1 Condition to Exercise. This Warrant shall not become exercisable
unless the Net Sales of Qualified Products (both as defined herein) for the
twelve (12) month period ended December 31, 1999 (the "Determination Date")
equal or exceed Eleven Million Six Hundred Dollars ($11,600,000). Except as set
forth below, "Net Sales" shall mean net sales of Qualified Products as
determined by generally accepted accounting principles, as consistently applied
by Ophthalmic Imaging Systems ("OIS"). "Qualified Products" shall mean products
sold by, and in connection with the current core business of OIS including: (i)
products related to or arising out of such current core products; (ii) products
under development as of the date hereof; and (iii) those same products if sold
by any successor owner of OIS' operations. For the purposes of this Class D
Warrant only, firm purchase orders or purchase agreements from purchasers
seeking shipment of goods by December 31, 1999, and which are accompanied by at
least a 10% deposit, shall be deemed to be December 1999 sales. As soon as
practicable after the Determination Date, the Company shall determine the Net
Sales of Qualified Products for the twelve (12) month period ended on the
Determination Date and shall mail to the holder of the Warrant, and shall
publish in a newspaper of national circulation a notice (the "Exercise Notice")
stating whether this condition to exercisability has been met. The date of such
mailing and publication is the "Notice Date."
2.2 Shares Issuable. To determine the number of Warrant Shares for
which the Warrant may be exercised, the Company shall determine the average
Closing Price (as defined below) of the Common Stock for the (i) fifteen (15)
consecutive trading days immediately preceding the Determination Date and (ii)
the thirty (30) consecutive trading days ending fifteen (15) trading days prior
to the Determination Date, and shall calculate the number of shares of the
Common Stock, or fraction thereof, which could be purchased at the greater of
such two average Closing Prices for a purchase price of twenty-five cents
($0.25). The result of this calculation shall be the "Share Factor." The Share
Factor shall be multiplied by the number of Warrants stated on the first page of
this Warrant to determine the number of whole shares for which this Warrant may
be exercised. Fractional shares resulting from aggregate exercises shall be
rounded to the nearest whole share.
2.3 Notice. The Exercise Notice sent to the Holder shall state the
number of Warrant Shares for which the Warrant has become exercisable.
2.4 Exercise. If the Exercise Notice states that the condition stated
in Section 2.1 has not been satisfied, then the Notice Date shall become the
Expiration Date, this Warrant shall expire effective as of the Notice Date and
the Holder shall have no further rights hereunder. If the Exercise Notice states
the condition has been met, this
-3-
Warrant shall thereafter be exercisable for the number of whole shares
determined as provided in Section 2.2 and specified in the applicable Exercise
Notice.
2.5 Closing Price. For purposes of any computation pursuant to this
Section 2, the term "Closing Price" for any day shall mean the last reported
sale price, regular way, of the Common Stock, or, in case no such reported sale
takes place on such day, the average of the closing bid and asked prices,
regular way, for such day, in either case on the principal national securities
exchange on which the Common Stock is listed or admitted to trading, or if it is
not listed or admitted to trading on any national securities exchange, but is
traded on Nasdaq, the closing sale price of the Common Stock or, in case no sale
is reported, the average of the closing bid and asked quotations for the Common
Stock on Nasdaq, or any comparable system.
3. Certain Notices.
3.1 Notice of Certain Events. If at any time after the
Determination Date and before the Expiration Date:
3.1.1 the Company shall declare any cash dividend upon its
Common Stock;
3.1.2 the Company shall declare any dividend upon its Common
Stock payable in stock (other than a dividend payable solely in shares of Common
Stock) or make any special dividend or other distribution to the holders of its
Common Stock;
3.1.3 the Company shall offer for subscription pro rata to the
holders of its Common Stock any additional shares of stock of any class or other
rights;
3.1.4 there shall be any capital reorganization or
reclassification of the capital stock of the Company; or consolidation or merger
of the Company with, or sale or leases, exchanges or other conveyances (other
than pledges, mortgages and liens related to loans) of substantially all of its
assets to, another corporation;
3.1.5 there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Company; or
3.1.6 any purchase, retirement, or redemption by the Company of
its Common Stock;
then, in any one or more of said cases, the Company shall give to the registered
holder of this Warrant, by the means specified in Section 8 herein, (i) at least
twenty (20) days'
-4-
prior written notice of the date on which the books of the Company shall close
or a record shall be taken for such dividend, distribution or subscription
rights or for determining rights to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up, and (ii) in the case of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation, winding-up, at least
twenty (20) days' prior written notice of the date when the same shall take
place; provided, however, that the Company shall not be required to send any
notice pursuant to this Section 3.1 if the Company determines the condition in
Section 2.1 has not been met. Any notice given in accordance with the foregoing
clause (i) shall also specify, in the case of any such dividend, distribution or
subscription rights, the date on which the holders of Common Stock shall be
entitled thereto. Any notice given in accordance with the foregoing clause (ii)
shall also specify the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation, winding-up, conversion or public offering, as
the case may be. If Holder does not exercise this Warrant prior to the
occurrence of an event described above, Holder shall not be entitled to receive
the benefits accruing to then existing holders of Common Stock.
3.2 Notice of Adjustment. Upon the happening of an event requiring an
adjustment of the amount or the kind of securities or property purchasable
hereunder, the Company shall forthwith give notice to the Holder which indicates
the event requiring the adjustment, the adjusted number of Warrant Shares that
may be acquired or the amount or kind of any such securities or property so
purchasable upon exercise of this Warrant, as the case may be, and setting forth
in reasonable detail the method of calculation and the facts upon which such
calculation is based. The Company's independent public accountant shall
determine the method for calculating the adjustment and shall prepare a
certificate setting forth such calculations, the reason for the methodology
chosen, and the facts upon which such calculation is based. Such certificate
shall accompany the notice to be provided to the Holder pursuant to this Section
3.2.
3.3 Adjustment of Purchase Price and Number of Warrant Shares. The
number and kind of securities that may be acquired upon the exercise of this
Warrant shall be subject to adjustment following the Determination Date and
prior to the earlier of the exercise of, or the Expiration Date of this Warrant,
upon the happening of any of the following events:
(a) Dividends, Subdivisions, Combinations, or Consolidations of
Common Stock.
-5-
(i) In the event the Company shall declare, pay, or make
any dividend upon its outstanding Common Stock payable in Common Stock or shall
effect a subdivision of the outstanding shares of Common Stock into a greater
number of shares of Common Stock, then the Share Factor shall be adjusted so
that the number of Warrant Shares that may thereafter be purchased upon the
exercise of the rights represented hereby shall be increased in proportion to
the increase in the number of outstanding shares of Common Stock through such
dividend or subdivision. In case the Company shall at any time combine the
outstanding shares of its Common Stock into a smaller number of shares of Common
Stock, the Share Factor shall be adjusted so that number of Warrant Shares that
may thereafter be acquired upon the exercise of the rights represented hereby
shall be decreased in proportion to the decrease through such combination. In
each case, the Exercise Price will not be adjusted.
(ii) If the Company declares, pays or makes any dividend or
other distribution upon its outstanding Common Stock payable in securities or
other property (excluding cash dividends and dividends payable in Common Stock,
but including, without limitation, shares of any other class of the Company's
stock or stock or other securities convertible into or exchangeable for shares
of Common Stock or any other class of the Company's stock or other interests in
the Company or its assets ("Convertible Securities")), a proportionate part of
those securities or that other property shall be set aside by the Company and
delivered to the Holder in the event that the Holder exercises this Warrant. The
securities and other property then deliverable to the Holder upon the exercise
of this Warrant shall be in the same ratio to the total securities and property
set aside for the Holder as the number of Warrant Shares with respect to which
this Warrant is then exercised as to the total number of Warrant Shares that may
be acquired pursuant to this Warrant at the time the securities or property were
set aside for the Holder.
(iii) If the Company shall declare a dividend payable in
money on its outstanding Common Stock and at substantially the same time shall
offer to its shareholders a right to purchase new shares of Common Stock from
the proceeds of such dividend or for an amount substantially equal to the
dividend, all shares of Common Stock so issued shall, for purposes of this
Warrant, be deemed to have been issued as a stock dividend subject to the
adjustments set forth in Section 3.3 (a)(i).
(iv) If the Company shall declare a dividend payable in
money on its outstanding common Stock and at substantially the same time shall
offer to its shareholders a right to purchase new shares of a class of stock
(other than Common Stock), Convertible Securities, or other interests from the
proceeds of such dividend or for an amount substantially equal to the dividend,
all shares of stock, Convertible Securities, or other interests so issued or
transferred shall, for purposes of this Warrant, be deemed to have been issued
or transferred shall, for purposes of this Warrant, be deemed
-6-
to have been issued as a dividend or other distribution subject to Section
3.3.(a)(ii).
(v) If the Company shall declare a dividend payable in cash
on its outstanding Common Stock, such dividend shall be deemed to have been
issued as a dividend or other distribution subject to Section 3.3(a)(i).
(b) Effect of Reclassification, Reorganization, Consolidation,
Merger, or Sale of Assets.
(i) Upon the occurrence of any of the following events, the
Company shall cause an effective provision to be made so that the Holder shall
have the right thereafter, by the exercise of this Warrant, to acquire for the
Exercise other securities, property and interests as would be issued or payable
with respect to or in exchange for the number of Warrant Shares that are then
purchasable pursuant to this Warrant as if such Warrant Shares had been issued
to the Holder immediately prior to such event: (A) reclassification, capital
reorganization, or other change of outstanding Common Stock (other than a change
as a result of an issuance of Common Stock under Subsection 3.3(a)), (B)
consolidation or merger of the Company with or into another corporation or
entity (other than a consolidation or merger in which the Company is the
continuing corporation and that does not result in any reclassification, capital
reorganization or other change of the outstanding shares of Common Stock or the
Warrant Shares issuable upon exercise of this Warrant), or (C) spin-off of
assets, a subsidiary or any affiliated entity, or the sale, lease, conveyance
(other than pledges, mortgages and liens related to loans) or exchange of a
significant portion of the Company's assets taken as a whole, in a transaction
pursuant to which the Company's shareholders of record are to receive securities
or other interests in a successor entity. Any such provision made by the Company
for adjustments with respect to this Warrant shall be as nearly equivalent to
the adjustments otherwise provided for in this Warrant as is reasonably
practicable. The foregoing provisions of this Section 3.3(b)(i) shall similarly
apply to successive reclassifications, capital reorganizations and similar
changes of shares of Common Stock and to successive consolidations, mergers,
spin-offs, sales, leases or exchanges.
(ii) If any sale or exchange of all, or substantially all,
of the Company's assets or business or any dissolution, liquidation or winding
up of the Company (a "Termination of Business") shall be proposed, the Company
shall deliver written notice to the Holder of this Warrant in accordance with
Section 3.2 hereof as a condition precedent to the consummation of that
Termination of Business. If the result of the Termination of Business is that
shareholders of the
-7-
Company are to receive securities or other interests of a successor entity, the
provisions of Section 3.3(b)(i) above shall apply. However, if the result of the
Termination of Business is that shareholders of the Company are to receive money
or property other than securities or other interests in a successor entity, the
Holder of this Warrant shall be entitled to exercise this Warrant and, with
respect to any Warrant Shares purchasable pursuant to this Warrant so acquired,
shall be entitled to all of the rights of the other shareholders of Common Stock
with respect to any distribution by the Company in connection with the
Termination of Business. In the event no successor entity is involved and
Section 3.3(b)(i) does not apply, all acquisition rights under this Warrant
shall terminate at the close of business on the date as of which shareholders of
record of the Common Stock shall be entitled to participate in a distribution of
the assets of the Company in connection with the Termination of Business;
provided, that, in no event shall that date be less than 20 days after delivery
- -------- ----
to the Holder of this Warrant of the written notice described above and in
Section 3.2 hereof. If the termination of acquisition rights under this Warrant
is to occur as a result of the event at issue, a statement to that effect shall
be included in that written notice.
(c) Obligation of Successors or Transferees. The Company shall not
effect any consolidation, merger, or sale or conveyance of assets within the
meaning of Section 3.3(b)(i)(B)-(C) unless prior to or simultaneously with the
consummation thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger or the corporation purchasing such
assets shall assume by written instrument executed and mailed or delivered to
the Holder pursuant to Section 8 herein, the obligation to deliver to the Holder
such shares of stock, securities, or assets as, in accordance with the foregoing
provisions, the Holder may be entitled to acquire. In no event shall the
securities received pursuant to this Section be registerable or transferable
other than pursuant and subject to the terms of this Warrant.
(d) Application of this Section. The provisions of this Section 3.3
shall apply to successive events that may occur from time to time but shall only
apply to a particular event if it occurs prior to the expiration of this Warrant
either by its terms or by its exercise in full.
(e) Definition of Common Stock. Unless the context requires
otherwise, whenever reference is made in this Section 3.3 to the issue or sale
of shares of Common Stock, the term "Common Stock" shall mean (i) the no par
value Class A Common Stock of the Company, (ii) any other class of stock ranking
on a parity with, and having substantially similar rights and privileges as the
Company's no par value Class A Common Stock, and (iii) any Convertible Security
convertible into either (i) or (ii). However, subject to the provisions of
Section 3.3(b)(i) above, Common Stock issuable upon the exercise of this Warrant
shall include only shares of Common Stock designed as no par value Class A
Common Stock of the Company as of the date of this Warrant.
-8-
(f) Company-Held Stock. For purposes of Sections 3.3(a) above, shares
of Common Stock owned or held at any relevant time by, or for the account of,
the Company in its treasury or otherwise, shall not be deemed to be outstanding
for purposes of the calculation and adjustments described therein.
4. Issue Tax. The issuance of certificates for Warrant Shares upon the
exercise of the Warrant shall be made without charge to Holder of any issue tax
or other governmental charges in respect thereof; provided, however, 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 the then holder of the Warrant being exercised.
5. No Voting or Dividend Rights; Limitation of Liability. Nothing
contained in this Warrant shall be construed as conferring upon Holder the right
to vote or to consent or to receive notice as a stockholder in respect of
meetings of stockholders for the election of directors of the Company or any
other matters or any rights whatsoever as a stockholder of the Company, until,
and only to the extent that, this Warrant shall have been exercised. Except as
provided in Section 3.1 in the event of a dividend on the Common Stock payable
in shares of Common Stock, no dividends or interest shall be payable or accrued
in respect of this Warrant or the interest represented hereby or the Warrant
Shares purchasable hereunder until, and only to the extent that, this Warrant
shall have been exercised. The Company covenants, however, that until the
Termination Date, for so long as this Warrant remains at least partially
unexercised, it will furnish the Holder with copies of all reports and
communications furnished to the stockholders of the Company. No provisions
hereof, in the absence of affirmative action by Holder to purchase Warrant
Shares, and no mere enumeration herein of the rights or privileges of Holder
shall give rise to any liability of Holder for the Exercise Price or as a
stockholder of the Company whether such liability is asserted by the Company or
by its creditors.
6. Registration Rights. Holder shall have registration rights with
respect to the Warrant Shares issuable on exercise of this Warrant, as more
fully set forth in that certain Registration Rights Agreement dated February 25,
1998 by and among the Company, Holder and others.
Further, the Company shall, with a view to making available to the
Holders of the Common Stock issuable upon exercise of the Warrant the benefits
of certain rules and regulations of the Securities and Exchange Commission (the
"Commission") (including, without limitation, Rule 144 under the Securities Act)
which may permit the sale of such Warrant Shares to the public without
registration, file required reports under Section 13 or 15(d), of the Securities
Exchange Act of 1934, as amended (the "Exchange
-9-
Act"), use commercially reasonable efforts to make available to the Holders of
such benefits, and in furtherance of (but without limiting) the foregoing:
(a) make and keep public information available as those terms are
defined in Rule 144 under the Securities Act or any successor provision thereto;
(b) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) so long as the Holders own any Warrants or Warrant Shares, furnish
the Holders forthwith upon request a written statement by the Company as to
compliance with the reporting requirements of Rule 144 or any successor
provision thereto, and of the Securities Act and the Exchange Act, a copy of the
most recent annual or quarterly report of the Company with the Commission, and
such other reports and documents of the Company and other information in the
possession of or reasonably obtainable by the Company as the Holders may
reasonably request in availing itself of any rule or regulation of the
Commission allowing the Holders to sell any such securities without
registration.
7. Modification and Waiver. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
8. Notices. Any notice required or permitted under this Warrant shall be
in writing and either delivered personally, telegraphed or telecopied or sent by
certified or registered mail, postage prepaid, and shall be deemed to be given,
dated and received when so delivered personally, telegraphed or telecopied or,
if mailed, five (5) business days after the date of mailing to the following
address or facsimile number, or to such other address or addresses as such
person may subsequently designate by notice given hereunder.
If to the Company: Premier Laser Systems, Inc.
Attention: Secretary
3 Morgan
Irvine, California 92618
Facsimile: 714 951-7218
with a copy to: Paul, Hastings, Janofsky & Walker LLP
Attention: Peter J. Tennyson, Esq.
695 Town Center Drive, 17th Floor
Costa Mesa, California 92626-1924
Facsimile: 714 979-1921
-10-
If to Holder: As Holder's address appears
on a register of Warrants
maintained by the Company's
transfer agent.
9. Binding Effect on Successors. This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets. All of the obligations of the
Company relating to the Common Stock issuable upon the exercise of this Warrant
shall survive the exercise and termination of this Warrant. All of the
covenants and agreements of the Company shall inure to the benefit of the
successors and assigns of the Holder.
10. Descriptive Headings and Governing Law. The descriptive headings of
the several sections and paragraphs of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant. This Warrant shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the laws of the State of California.
11. Exchange, Assignment, Combination and Replacement of Warrants.
(a) This Warrant is exchangeable, without expense other than as
provided in this Section 11, at the option of the Holder upon the reasonable
request, presentation and surrender hereof to the Company for other Warrants of
different denominations entitling the Holder thereof to acquire in the aggregate
the same number of Warrant Shares that may be acquired hereunder.
(b) All of the covenant and provisions of this Warrant by or for the
benefit of the Holder shall be binding upon and shall inure to the benefit of,
its successors and permitted assigns hereunder. This Warrant and all rights
hereunder are transferrable and may be sold, transferred, assigned, or
hypothecated upon surrender of this Warrant to the Company, together with a duly
executed assignment in the form attached hereto as Exhibit B (the "Assignment
Form"), whereupon the Company shall, without charge, execute and deliver a new
Warrant containing the same terms and conditions of this Warrant in the name of
the assignee as named in the Assignment Form, and this Warrant shall be canceled
at that time. This Warrant, if properly assigned, may be exercised by a new
Holder without first having the new Warrant issued.
(c) This Warrant may be delivered or combined with other Warrants that
carry the same rights upon the reasonable request, presentation and surrender of
this Warrant at the office of the Company, together with a written notice signed
by the Holder, specifying the names and denominations in which new Warrants are
to be issued.
-11-
(d) The Company will execute and deliver to the Holder a new Warrant
of like tenor and date upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction, or mutilation of this
Warrant; provided, that (i) in the case of loss, theft, or destruction, the
Company receives a reasonably satisfactory indemnity or bond, or (ii) in the
case of mutilation, the Holder shall provide and surrender this Warrant to the
Company for cancellation.
(e) Any new Warrant executed and delivered by the Company in
substitution or replacement of this Warrant shall constitute a contractual
obligation of the Company regardless of whether this Warrant was lost, stolen,
destroyed or mutilated, and shall be enforceable by any Holder thereof.
(f) The Holder shall pay all transfer and excise taxes applicable to
any issuance of new Warrants under this Section 11.
12. Fractional Shares. No fractional shares shall be issued upon exercise
of this Warrant. The Company shall, in lieu of issuing any fractional share,
round such fractional shares to the nearest whole share.
13. Best Efforts. The Company covenants that it will not, by amendment of
its Articles of Incorporation or bylaws, or through any reorganization, transfer
of assets, consolidation, merger, dissolution, reissue or sale of securities, or
any other voluntary action, avoid or seek to avoid the observation or
performance for any term of this Warrant, but will at all times in good faith
assist in carrying out all those terms and in taking all action necessary or
appropriate to protect the rights of the Holder against dilution or other
impairment.
14. Further Assurances. The Company will take all such action as may be
necessary or appropriate in order that the Company may validly and legally
issue, duly authorized fully paid and nonassessable Warrants and Common Stock
and other securities issuable upon exercise of this Warrant from time to time
and not in violation of any pre-emptive rights.
(Signature Page Follows)
-12-
[SIGNATURE PAGE - CLASS D WARRANT]
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officer effective as of ________ __, 1998.
PREMIER LASER SYSTEMS, INC.
By: /s/ COLETTE COZEAN
-------------------------
Colette Cozean, Ph.D.
Chief Executive Officer
-13-
EXHIBIT A
PREMIER LASER SYSTEMS, INC.
COMMON STOCK WARRANT
FORM OF SUBSCRIPTION AGREEMENT
(To be signed and delivered
upon exercise of Warrant)
PREMIER LASER SYSTEMS, INC.
3 Morgan
Irvine, California 92618
Attention: Secretary
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, _______________ shares of Common Stock (the "Stock") of
Premier Laser Systems, Inc. (the "Company") and herewith makes payment of
__________________________ Dollars ($________) therefor and requests that the
certificates for such shares be issued in the name of, and delivered to,
______________, whose address is ____________________________________. A copy
of the Exercise Notice (as defined in the Warrant) evidencing that the Warrant
is exercisable for at least the number of shares covered by this agreement is
attached.
If the exercise of this Warrant is not covered by a registration statement
effective under the Securities Act of 1933, as amended (the "Act"), the
undersigned represents that:
(i) the undersigned is acquiring such Stock for investment for his own
account, not as nominee or agent, and not with a view to the distribution
thereof and the undersigned has not signed or otherwise arranged for the
selling, granting any participation in, or otherwise distributing the same;
(ii) the undersigned has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of the
undersigned's investment in the Stock;
A-1
(iii) the undersigned has received all of the information the undersigned
has requested from the Company and considers necessary or appropriate for
deciding whether to purchase the shares of Stock;
(iv) the undersigned has the ability to bear the economic risks of his
prospective investment;
(v) the undersigned understands and agrees that (A) he may be unable to
readily liquidate his investment in the shares of Stock and that the shares must
be held indefinitely unless a subsequent disposition thereof is registered or
qualified under the Act and applicable state securities laws or is exempt from
such registration or qualification, and that the Company is not required to
register the same or to take any action or make such an exemption available
except to the extent provided in the within Warrant; (B) the exemption from
registration under the Act afforded by Rule 144 promulgated by the Securities
and Exchange Commission ("Rule 144") depends upon the satisfaction of various
conditions by the undersigned and the Company and that, if applicable, Rule 144
affords the basis for sales under certain circumstances in limited amounts, and
that if such exemption is utilized by the undersigned, such conditions must be
fully complied with by the undersigned and the Company, as required by Rule 144;
and (C) among the conditions required for use of Rule 144 is the availability of
current information to the public about the Company, and the undersigned
understands that the Company has not made such information available and has no
present plans to do so;
(vi) the undersigned either (A) is familiar with the definition of and
the undersigned is an "accredited investor" within the meaning of such term
under Rule 501 of Regulation D promulgated under the Act, or (B) is providing
representations and warranties reasonably satisfactory to the Company and its
counsel, to the effect that the sale and issuance of Stock upon exercise of such
Warrant may be made without registration under the Act or any applicable state
securities and Blue Sky laws; and
(vii) the address set forth below is the true and correct address of the
undersigned.
-------------------------
(Name)
-------------------------
(Address)
-------------------------
-------------------------
A-2
If said number of shares shall not be all the shares exercisable or
purchasable under the within Warrant, a new Warrant is to be issued in the name
of the undersigned for the balance remaining of the Warrants.
DATED:________________________
----------------------------------------
(Name of holder must conform in all
respects to name of holder as specified
on the face of the Warrant or with the
name of the assignee appearing on the
assignment form attached hereto.)
----------------------------------------
(signature)
----------------------------------------
(print name)
----------------------------------------
(print title)
A-3
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED, the receipt and adequacy of which are each hereby
confirmed, the undersigned,_____________________, hereby sells, assigns and
transfers unto___________________ all of the undersigned's right, title and
interest in and to an aggregate of __________ (___) warrants to purchase shares
of the Common Stock of Premier Laser Systems, Inc. (the "Corporation) standing
in the name of the undersigned on the books of the Corporation and evidenced by
that certain Class __ Warrant, dated ________ __, ___ (the "Warrant"), and does
hereby irrevocable constitute and appoint __________________ as attorney-in-fact
to effect the reissue of the Warrant as necessary and the transfer of said
Warrant on the books of the Corporation with full power of substitution upon
presentation to the Corporation of this Assignment Form together with the
Warrant.
Dated: ____________ __, ___
Signature: ___________________________
Printed Name: ___________________________
B-1