EXHIBIT 4(a)
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED IN
VIOLATION OF SUCH ACT, THE RULES AND REGULATIONS THEREUNDER OR THE PROVISIONS OF
THIS WARRANT.
No. of Shares of Common Stock: 200,000 Warrant No. 1
WARRANT
To Purchase 200,000 Common Stock of
CLINICOR, INC.
THIS IS TO CERTIFY THAT ORACLE PARTNERS, L.P., or registered assigns,
is entitled, at any time prior to the Expiration Date (as hereinafter defined),
to purchase from Clinicor, Inc., a Nevada corporation (the "Company"), 200,000
shares of Common Stock (as hereinafter defined and subject to adjustment as
provided herein), in whole or in part, including fractional parts, at a purchase
price of $5.50 per share, all on the terms and conditions and pursuant to the
provisions hereinafter set forth.
1. DEFINITIONS
As used in this Warrant, the following terms have the respective
meanings set forth below:
"Additional Shares of Common Stock" means any shares of Common Stock
issued by the Company after the Closing Date other than Warrant Stock.
"Appraised Value" means, in respect of any share of Common Stock on
any date herein specified, the fair saleable value of such share of Common Stock
(determined without giving effect to the discount for (i) a minority interest or
(ii) any lack of liquidity of the Common Stock or to the fact that the Company
may have no class of equity registered under the Exchange Act) as of the last
day of the most recent fiscal month end prior to such date specified, based on
the value of the Company, as determined by an investment banking firm selected
in accordance with the terms of Section 15, divided by the number of Fully
Diluted Outstanding shares of Common Stock.
"Book Value" means, in respect of any share of Common Stock on any
date herein specified, the consolidated book value of the Company as of the last
day of any month immediately preceding such date, divided by the number of Fully
Diluted Outstanding shares of Common Stock as determined in accordance with GAAP
by or any other firm of independent certified public accountants of recognized
national standing selected by the Company and reasonably acceptable to Holder.
"Business Day" means any day that is not a Saturday or Sunday or a day
on which banks are required or permitted to be closed in the State of New York.
"Closing Date" means July 1, 1997.
"Commission" means the Securities and Exchange Commission or any other
federal agency then administering the Securities Act and other federal
securities laws.
"Common Stock" means (except where the context otherwise indicates)
the Common Stock, $0.001 par value, of the Company as constituted on the Closing
Date, and any capital stock into which such Common Stock may thereafter be
changed, and shall also include (i) capital stock of the Company of any other
class (regardless of how denominated) issued to the Holders of shares of Common
Stock upon any reclassification thereof which is also not preferred as to
dividends or assets on liquidation over any other class of stock of the Company
and which is not subject to redemption and (ii) shares of common stock of any
successor or acquiring corporation received by or distributed to the Holders of
Common Stock of the Company in the circumstances contemplated by Section 4.8.
"Convertible Securities" means evidences of indebtedness, shares of
stock or other securities which are convertible into or exchangeable, with or
without payment of additional consideration in cash or property, for Additional
Shares of Common Stock, either immediately or upon the occurrence of a specified
date or a specified event.
"Current Market Price" means, in respect of any share of Common Stock
on any date herein specified, if there shall not then be a public market for the
Common Stock, the higher of (a) the Book Value per share of Common Stock at such
date, and (b) the Appraised Value per share of Common Stock at such date, or if
there shall then be a public market for the Common Stock, the higher of (x) the
Book Value per share of Common Stock at such date, and (y) the average of the
daily market prices for 30 consecutive Business Days commencing 45 days before
such date. The daily market price for each such Business Day shall be (i) the
last sale price on such day on the principal stock exchange on which such Common
Stock is then listed or admitted to trading, (ii) if no sale takes place on such
day on any such exchange, the average of the last reported closing bid and asked
prices on such day as officially quoted on any such exchange, (iii) if the
common Stock is not then listed or admitted to trading on any stock exchange,
the average of the last reported closing bid and asked prices on such day in the
over-the-counter market, as furnished by the National Association of Securities
Dealers Automatic Quotation System or the National Quotation Bureau, Inc., (iv)
if neither such corporation at the time is engaged in the business of reporting
such prices, as furnished by any similar firm then engaged in such business, or
(v) if there is no such firm, as furnished by any member of the NASD selected
mutually by Holder and the Company or, if they cannot agree upon such selection,
as selected by two such members of the NASD, one of which shall be selected by
Holder and one of which shall be selected by the Company.
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"Current Warrant Price" means, in respect of a share of Common Stock
at any date herein specified, the price at which a share of Common Stock may be
purchased pursuant to this Warrant on such date. Until the Current Warrant
Price is adjusted pursuant to the terms herein, the initial Current Warrant
Price shall be $5.50 per share.
"Deferral Notice" has the meaning specified in Section 14.1(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"Exercise Period" means the period during which this Warrant is
exercisable pursuant to Section 2.1.
"Expiration Date" means the fifth anniversary of the Closing Date or
such later date to which the Expiration Date has been extended pursuant to the
terms hereof.
"Fully Diluted Outstanding" means, when used with reference to Common
Stock, at any date as of which the number of shares thereof is to be determined,
all shares of Common Stock Outstanding at such date and all shares of Common
Stock issuable in respect of the Warrants and other options or warrants to
purchase, or securities convertible into, shares of Common Stock outstanding on
such date which would be deemed outstanding in accordance with GAAP for purposes
of determining book value or net income per share.
"GAAP" means generally accepted accounting principles in the United
States of America as from time to time in effect.
"Holder" means the Person in whose name the Warrant set forth herein
is registered on the books of the Company maintained for such purpose.
"NASD" means the National Association of Securities Dealers, Inc., or
any successor corporation thereto.
"Other Property" has the meaning set forth in Section 4.8.
"Outstanding" means, when used with reference to Common Stock, at any
date as of which the number of shares thereof is to be determined, all issued
shares of Common Stock, except shares then owned or held by or for the account
of the Company or any subsidiary thereof, and shall include all shares issuable
in respect of outstanding scrip or any certificates representing fractional
interests in shares of Common Stock.
"Person" means any individual, sole proprietorship, partnership, joint
venture, trust, incorporated organization, association, corporation,
institution, public benefit
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corporation, entity or government (whether federal, state, county, city,
municipal or otherwise, including, without limitation, any instrumentality,
division, agency, body or department thereof).
"Repurchase Price" has the meaning specified in Section 14.2.
"Restricted Common Stock" means shares of Common Stock which are, or
which upon their issuance on the exercise of any Warrant would be, evidenced by
a certificate bearing the restrictive legend set forth in Section 3.2.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Transfer" means any disposition of any Warrant or Warrant Stock or of
any interest in either thereof, which would constitute a sale thereof within the
meaning of the Securities Act.
"Transfer Notice" has the meaning specified in Section 3.3.
"Warrants" means this Warrant and all warrants issued upon transfer,
division or combination of, or in substitution for, any thereof. All Warrants
shall at all times be identical as to terms and conditions and date, except as
to the number of shares of Common Stock for which they may be exercised.
"Warrant Price" means an amount equal to (i) the number of shares of
Common Stock being purchased upon exercise of this Warrant pursuant to Section
2.1, multiplied by (ii) the Current Warrant Price.
"Warrant Stock" means the shares of Common Stock purchased by the
Holders of the Warrants upon the exercise thereof.
2. EXERCISE OF WARRANT
2.1. Manner of Exercise. From and after the Closing Date and until
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5:00 P.M., New York time, on the Expiration Date, Holder may exercise this
Warrant, on any Business Day, for all or any part of the number of shares of
Common Stock purchasable hereunder.
In order to exercise this Warrant, in whole or in part, Holder shall
deliver to the Company at its principal office or at the office or agency
designated by the Company pursuant to Section 12, (i) a written notice of
Holder's election to exercise this Warrant, which notice shall specify the
number of shares of Common Stock to be purchased,
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(ii) payment of the Warrant Price certified or official bank check, and (iii)
this Warrant. Such notice shall be substantially in the form of the subscription
form appearing at the end of this Warrant as Exhibit A, duly executed by Holder
or its agent or attorney. Upon receipt thereof, the Company shall, as promptly
as practicable, and in any event within five (5) Business Days thereafter,
execute or cause to be executed and deliver or cause to be delivered to Holder a
certificate or certificates representing the aggregate number of full shares of
Common Stock issuable upon such exercise, together with cash in lieu of any
fraction of a share, as hereinafter provided. The stock certificate or
certificates so delivered shall be, to the extent possible, in such denomination
or denominations as Holder shall request in the notice and shall be registered
in the name of Holder or, such other name as shall be designated in the notice.
This Warrant shall be deemed to have been exercised and such certificate or
certificates shall be deemed to have been issued, and Holder or any other Person
so designated to be named therein shall be deemed to have become a Holder of
record of such shares for all purposes, as of the date the notice, together with
the cash or check, this Warrant, is received by the Company as described above
and all taxes required to be paid by Holder if any, pursuant to Section 2.2
prior to the issuance of such shares have been paid. If this Warrant shall have
been exercised in part, the Company shall, at the time of delivery of the
certificate or certificates representing Warrant Stock, deliver to Holder a new
Warrant evidencing the rights of Holder to purchase the unpurchased shares of
Common Stock called for by this Warrant, which new Warrant shall in all other
respects be identical with this Warrant, or at the request of Holder,
appropriate notation may be made on his Warrant and the same returned to Holder.
2.2. Payment of Taxes. All shares of Common Stock issuable upon the
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exercise of this Warrant pursuant to the terms hereof shall be validly issued
and, upon payment of the Warrant Price, fully paid and nonassessable and without
any preemptive rights. The Company shall pay all expenses in connection with,
and all transfer, stamp or similar taxes and other governmental charges that may
be imposed with respect to, the issue or delivery thereof. The Company shall not
be required, however, to pay any or other charge imposed in connection with any
transfer involved in the issue of any certificate for shares of Common Stock
issuable upon exercise of this Warrant in any name other than that of Holder,
and in such case the Company shall not be required to issue or deliver any stock
certificate until such tax or other charge has been paid or it has been
established to the satisfaction of the Company that no such tax or other charge
is due.
2.3. Fractional Shares. The Company shall not be required to issue a
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fractional share of Common Stock upon exercise of any Warrant. As to any
fraction of a share which Holder of one or more Warrants, the rights under which
are exercised in the same transaction, would otherwise be entitled to purchase
upon such exercise, the Company shall pay a cash adjustment in respect of such
final fraction in an amount equal to the Current Market Price per share of
Common Stock on the date of exercise, unless a different cash payment is
required to be made pursuant to Section 78.205 of the Nevada Revised Statutes.
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2.4. Continued Validity. A Holder of shares of Common Stock issued
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upon the exercise of this Warrant, in whole or in part (other than a Holder who
acquires such shares after the same have been publicly sold pursuant to a
Registration Statement under the Securities Act or sold pursuant to Rule 144
thereunder), shall continue to be entitled with respect to such shares to all
rights to which it would have been entitled as Holder under Sections 10 and 13
of this Warrant. The Company will, at the time of each exercise of this Warrant,
in whole or in part, upon the request of the Holder of the shares of Common
Stock issued upon such exercise hereof, acknowledge in writing, in form
reasonably satisfactory to such Holder, its continuing obligation to afford to
such Holder all such rights; provided, however, that if such Holder shall fail
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to make any such request, such failure shall not affect the continuing
obligation of the Company to afford to such Holder all such rights.
3. TRANSFER, DIVISION AND COMBINATION
3.1. Transfer. The Warrants and the Warrant Stock shall be freely
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transferable, subject to compliance with all applicable laws, including, but not
limited to the Securities Act. Transfer of this Warrant and all rights
hereunder, in whole or in part, shall be registered on the books of the Company
to be maintained for such purpose, upon surrender of this Warrant at the
principal office of the Company referred to in Section 2.1 or the office or
agency designated by the Company pursuant to Section 12, together with a written
assignment of this Warrant substantially in the form of Exhibit B hereto duly
executed by Holder or its agent or attorney and if such transfer is not to be
made pursuant to Section 14, funds sufficient to pay any transfer taxes payable
upon the making of such transfer. Upon such surrender and, if required, such
payment, the Company shall, execute and deliver a new Warrant or Warrants in the
name of the assignee or assignees and in the denomination specified in such
instrument of assignment, and shall issue to the assignor a new Warrant
evidencing the portion of this Warrant not so assigned, and this Warrant shall
promptly be cancelled. Notwithstanding anything herein to the contrary, this
Warrant may not be transferred or assigned in whole or in part without
compliance with applicable federal and state securities laws. A Warrant may be
exercised by a new Holder for the purchase of shares of Common Stock without
having a new Warrant issued.
3.2. Restrictive Legend. Unless such stock has been registered as
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otherwise provided in the Registration Rights Agreement, each certificate for
Warrant Stock initially issued upon the exercise of this Warrant, and each
certificate for Warrant Stock issued to any subsequent transferee of any such
certificate, shall be stamped or otherwise imprinted with a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF
ANY STATE AND MAY NOT BE SOLD, ASSIGNED OR OTHERWISE
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TRANSFERRED EXCEPT UPON SUCH REGISTRATION OR IN A TRANSACTION EXEMPT
THEREFROM.
3.3. Notice of Proposed Transfers: Requests for Registration. Prior
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to any Transfer or attempted Transfer of any Warrant or any Restricted Common
Stock, the Holder of such Warrant or Restricted Common Stock shall give 10 days'
prior written notice (a "Transfer Notice") to the Company of such Holder's
intention to effect such Transfer, describing the manner and circumstances of
the proposed Transfer. Thereafter, upon surrender of such Warrant or such
Restricted Common Stock for exchange, properly endorsed on the Assignment Form
attached hereto as Exhibit B and subject to the provisions hereof with respect
to compliance with the Securities Act, the Holder shall thereupon be entitled to
Transfer such Warrant or Restricted Common Stock, in accordance with the terms
of the Transfer Notice. Each certificate, if any, evidencing such shares of
Restricted Common Stock issued upon such Transfer shall bear the restrictive
legend set forth in Section 3.2. The Holder of the Warrant giving the Transfer
Notice shall not be entitled to transfer such Warrant until receipt of notice
from the Company under this Section 3.3.
3.4. Division and Combination. This Warrant may be divided or
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combined with other Warrants upon presentation hereof at the aforesaid office or
agency of the Company, together with a written notice specifying the names and
denominations in which new Warrants are to be issued, signed by Holder or its
agent or attorney. Subject to compliance with Section 3.1, as to any transfer
which may be involved in such division or combination, the Company shall execute
and deliver a new Warrant or warrants in exchange for the Warrant or Warrants to
be divided or combined in accordance with such notice.
3.5. Expenses. The Company shall prepare, issue and deliver at its
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own expense (other than transfer taxes) the new Warrant or Warrants under this
Section 3.
3.6. Maintenance of Books. The Company agrees to maintain, at its
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aforesaid office or agency, books for the registration and the registration of
transfer of the Warrants.
4. ADJUSTMENTS
The number of shares of Common Stock for which this Warrant is
exercisable, and the price at which such shares may be purchased upon exercise
of this Warrant, shall be subject to adjustment from time to time as set forth
in this Section 4. The Company shall give Holder notice of any event described
below which requires an adjustment pursuant to this Section 4 in accordance with
Sections 5.1 and 5.2.
4.1. Stock Dividends. Subdivisions and Combinations. If at any time
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the Company shall:
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(a) take a record of the holders of its Common Stock for the purpose
of entitling them to receive a dividend payable in, or other distribution
of, Additional Shares of Common Stock,
(b) subdivide its outstanding shares of Common Stock into a larger
number of shares of Common Stock, or
(c) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock,
then (i) the number of shares of Common Stock for which this Warrant is
exercisable immediately after the occurrence of any such event shall be adjusted
to equal the number of shares of Common Stock which a record holder of the same
number of shares of Common Stock for which this Warrant is exercisable
immediately prior to the occurrence of such event would own or be entitled to
receive after the happening of such event, and (ii) the Current Warrant Price
shall be adjusted to equal (A) the Current Warrant Price multiplied by the
number of shares of Common Stock for which this Warrant is exercisable
immediately prior to the adjustment divided by (B) the number of shares of
Common Stock for which this Warrant is exercisable immediately after such
adjustment.
4.2. Certain Other Distributions. If at any time the Company shall
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take a record of the holders of its Common Stock for the purpose of entitling
them to receive any dividend or other distribution of:
(a) cash (other than a cash dividend payable out of earnings or
earned surplus legally available for the payment of dividends under the
laws of the jurisdiction of incorporation of the Company),
(b) any evidences of its indebtedness, any shares of stock of any
class or any other securities or property of any nature whatsoever (other
than cash, Convertible Securities or Additional Shares of Common Stock), or
(c) any warrants or other rights to subscribe for or purchase any
evidences of its indebtedness, any shares of stock of any class or any
other securities or property of any nature whatsoever (other than cash,
Convertible Securities or Additional Shares of Common Stock),
then (i) the number of shares of Common Stock for which this
Warrant is exercisable shall be adjusted to equal the product of the
number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such adjustment by a fraction (A) the numerator
of which shall be the Current Market Price per share of Common Stock
at the date of taking such record and (B) the denominator of which
shall be such Current Market Price per share of
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Common Stock minus the amount allocable to one share of Common Stock
of any such cash so distributable and of the fair value (as determined
in good faith by the Board of Directors of the Company and supported
by an opinion from an investment banking firm of recognized national
standing acceptable to Holder) of any and all such evidences of
indebtedness, shares of stock, other securities or property or
warrants or other subscription or purchase rights so distributable,
and (ii) the Current Warrant Price shall be adjusted to equal (A) the
Current Warrant Price multiplied by the number of shares of Common
Stock for which this Warrant is exercisable immediately prior to the
adjustment divided by (B) the number of shares of Common Stock for
which this Warrant is exercisable immediately after such adjustment. A
reclassification of the Common Stock (other than a change in par
value, or from par value to no par value or from no par value to par
value) into shares of Common Stock and shares of any other class of
stock shall be deemed a distribution by the Company to the holders of
its Common Stock of such shares of such other class of stock within
the meaning of this Section 4.2 and, if the outstanding shares of
Common Stock shall be changed into a larger or smaller number of
shares of Common Stock as a part of such reclassification, such change
shall be deemed a subdivision or combination, as the case may be, of
the outstanding shares of Common Stock within the meaning of Section
4.1.
4.3. Issuance of Additional Shares of Common Stock.
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(a) If at any time the Company shall issue or sell any Additional
Shares of Common Stock in exchange for consideration in an amount per
Additional Share of Common Stock less than the Current Warrant Price at the
time the Additional Shares of Common Stock are issued or sold then (i) the
Current Warrant Price as to the number of shares for which this Warrant is
exercisable prior to such adjustment shall be reduced to a price determined
by dividing (A) an amount equal to the sum of (x) the number of shares of
Common Stock Outstanding immediately prior to such issue or sale multiplied
by the then existing Current Warrant Price, plus (y) the consideration, if
any, received by the Company upon such issue or sale, by (B) the total
number of shares of Common Stock Outstanding immediately after such issue
or sale; and (ii) the number of shares of Common Stock for which this
Warrant is exercisable shall be adjusted to equal the product obtained by
multiplying the Current Warrant Price in effect immediately prior to such
issue or sale by the number of shares of Common Stock for which this
Warrant is exercisable immediately prior to such issue or sale and dividing
the product thereof by the Current Warrant Price resulting from the
adjustment made pursuant to clause (i).
(b) If at any time the Company shall at any time issue or sell any
Additional Shares of Common Stock in exchange for consideration in an
amount per
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Additional Share of Common Stock less than the Current Market Price at the
time the Additional Shares of Common Stock are issued or sold, then (i) the
number of shares of Common Stock for which this Warrant is exercisable
shall be adjusted to equal the product obtained by multiplying the number
of shares of Common Stock for which this Warrant is exercisable immediately
prior to such issue or sale by a fraction (A) the numerator of which shall
be the number of shares of Common Stock Outstanding immediately after such
issue or sale, and (B) the denominator of which shall be the number of
shares of Common Stock Outstanding immediately prior to such issue or sale
plus the number of shares which the aggregate offering price of the total
number of such Additional Shares of Common Stock would purchase at the then
Current Market Price; and (ii) the Current Warrant Price as to the number
of shares for which this Warrant is exercisable prior to such adjustment
shall be adjusted by multiplying such Current Warrant Price by a fraction
(X) the numerator of which shall be the number of shares for which this
Warrant is exercisable immediately prior to such issue or sale; and (Y) the
denominator of which shall be the number of shares of Common Stock
purchasable immediately after such issue or sale.
(c) If at any time the Company shall issue or sell any Additional
Shares of Common Stock in exchange for consideration in an amount per
Additional Shares of Common Stock which is less than the Current Warrant
Price and Current Market Price at the time the Additional Shares of Common
Stock are issued or sold, the adjustment required under Section 4.3 shall
be made in accordance with the formula in paragraph (a) or (b) above which
results in the lower Current Warrant Price following such adjustment. The
provisions of paragraphs (a) and (b) of Section 4.3 shall not apply to any
issuance of Additional Shares of Common Stock for which an adjustment is
provided under Section 4.1 or 4.2. No adjustment of the number of shares of
Common Stock for which this Warrant shall be exercisable shall be made
under paragraph (a) or (b) of Section 4.3 upon the issuance of any
Additional Shares of Common Stock which are issued pursuant to the exercise
of any warrants or other subscription or purchase rights or pursuant to the
exercise of any conversion or exchange rights in any Convertible
Securities, if any such adjustment shall previously have been made upon the
issuance of such warrants or other rights or upon the issuance of such
Convertible Securities (or upon the issuance of any warrant or other rights
therefor) pursuant to Section 4.4 or Section 4.5.
4.4. Issuance of Warrants or Other Rights. If at any time the Company
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shall take a record of the Holders of its Common Stock for the purpose of
entitling them to receive a distribution of, or shall in any manner (whether
directly or by assumption in a merger in which the Company is the surviving
corporation) issue or sell, any warrants or other rights to subscribe for or
purchase any Additional Shares of Common Stock or any Convertible Securities,
whether or not the rights to exchange or convert thereunder are immediately
exercisable, and the price per share for which Common Stock is issuable upon the
exercise of such warrants or other rights or upon conversion or exchange of such
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Convertible Securities shall be less than the Current Warrant Price or the
Current Market Price in effect immediately prior to the time of such issue or
sale, then the number of shares for which this Warrant is exercisable and the
Current Warrant Price shall be adjusted as provided in Section 4.3 on the basis
that the maximum number of Additional Shares of Common Stock issuable pursuant
to all such warrants or other rights or necessary to effect the conversion or
exchange of all such Convertible Securities shall be deemed to have been issued
and outstanding and the Company shall have received all of the consideration
payable therefor, if any, as of the date of the actual issuance of such warrants
or other rights. No further adjustments of the Current Warrant Price shall be
made upon the actual issue of such Common Stock or of such Convertible
Securities upon exercise of such warrants or other rights or upon the actual
issue of such Common Stock upon such conversion or exchange of such Convertible
Securities.
4.5. Issuance of Convertible Securities. If at any time the Company
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shall take a record of the Holders of its Common Stock for the purpose of
entitling them to receive a distribution of, or shall in any manner (whether
directly or by assumption in a merger in which the Company is the surviving
corporation) issue or sell, any Convertible Securities, whether or not the
rights to exchange or convert thereunder are immediately exercisable, and the
price per share for which Common Stock is issuable upon such conversion or
exchange shall be less than the Current Warrant Price or Current Market Price in
effect immediately prior to the time of such issue or sale, then the number of
shares of Common Stock for which this Warrant is exercisable and the Current
Warrant Price shall be adjusted as provided in Section 4.3 on the basis that the
maximum number of Additional Shares of Common Stock necessary to effect the
conversion or exchange of all such Convertible Securities shall be deemed to
have been issued and outstanding and the Company shall have received all of the
consideration payable therefor, if any, as of the date of actual issuance of
such Convertible Securities. No further adjustment of the number of shares of
Common Stock for which this Warrant is exercisable and the Current Warrant Price
shall be made under this Section 4.5 upon the issuance of any Convertible
Securities which are issued pursuant to the exercise of any warrants or other
subscription or purchase rights therefor, if any such adjustment shall
previously have been made upon the issuance of such warrants or other rights
pursuant to Section 4.4. No further adjustments of the number of shares of
Common Stock for which this Warrant is exercisable and the Current Warrant Price
shall be made upon the actual issue of such Common Stock upon conversion or
exchange of such Convertible Securities.
4.6. Superseding Adjustment. (a) If, at any time after any
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adjustment of the number of shares of Common Stock for which this Warrant is
exercisable and the Current Warrant Price shall have been made pursuant to
Section 4.4 or Section 4.5 as the result of any issuance of warrants, other
rights or Convertible Securities, then (i) such warrants or other rights, or the
right of conversion or exchange in such other Convertible Securities, shall
expire, and all or a portion of such warrants or other rights, or the right of
conversion or exchange with respect to all or a portion of such other
Convertible Securities,
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as the case may be shall not have been exercised, or (ii) the consideration per
share for which shares of Common Stock are issuable pursuant to such warrants or
other rights, or the terms of such other Convertible Securities, shall be
increased solely by virtue of provisions therein contained for an automatic
increase in such consideration per share upon the occurrence of a specified date
or event, then for each outstanding Warrant such previous adjustment shall be
rescinded and annulled and the Additional Shares of Common Stock which were
deemed to have been issued by virtue of the computation made in connection with
the adjustment so rescinded and annulled shall no longer be deemed to have been
issued by virtue of such computation.
(b) Upon the occurrence of an event set forth in 4.6(a) above there
shall be, a recomputation made of the effect of such warrants, other rights
or options or other Convertible Securities on the basis of: (i) treating
the number of Additional Shares of Common Stock or other property, if any,
theretofore actually issued or issuable pursuant to the previous exercise
of any such warrants or other rights or any such right of conversion or
exchange, as having been issued on the date or dates of any such exercise
and for the consideration actually received and receivable therefor, and
(ii) treating any such warrants or other rights or any such other
Convertible Securities which then remain outstanding as having been granted
or issued immediately after the time of such increase of the consideration
per share for which shares of Common Stock or other property are issuable
under such warrants or other rights or other Convertible Securities;
whereupon a new adjustment of the number of shares of Common Stock for
which this Warrant is exercisable and the Current Warrant Price shall be
made, which new adjustment shall supersede the previous adjustment so
rescinded and annulled.
4.7. Other Provisions applicable to Adjustments under this Section.
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The following provisions shall be applicable to the making of adjustments of the
number of shares of Common Stock for which this Warrant is exercisable and the
Current Warrant Price provided for in this Section 4:
(a) Computation of Consideration. To the extent that any Additional
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Shares of Common Stock or any Convertible Securities or any warrants or
other rights to subscribe for or purchase any Additional Shares of Common
Stock or any Convertible Securities shall be issued for cash consideration,
the consideration received by the Company therefor shall be the amount of
the cash received by the Company therefor, or, if such Additional Shares of
Common Stock or Convertible Securities are offered by the Company for
subscription, the subscription price, or, if such Additional Shares of
Common Stock or Convertible Securities are sold to underwriters or dealers
for public offering without a subscription offering, the initial public
offering price (in any such case subtracting any amounts paid or receivable
for accrued interest or accrued dividends and without taking into account
any compensation, discounts or expenses paid or incurred by the Company for
and in the
12
underwriting of, or otherwise in connection with, the issuance thereof). To
the extent that such issuance shall be for a consideration other than cash,
then, except as herein otherwise expressly provided, the amount of such
consideration shall be deemed to be the fair value of such consideration at
the time of such issuance as determined in good faith by the Board of
Directors of the Company. In case any Additional Shares of Common Stock or
any Convertible Securities or any warrants or other rights to subscribe for
or purchase such Additional Shares of Common Stock or Convertible
Securities shall be issued in connection with any merger in which the
Company issues any securities, the amount of consideration therefor shall
be deemed to be the fair value, as determined in good faith by the Board of
Directors of the Company, of such portion of the assets and business of the
nonsurviving corporation as such Board in good faith shall determine to be
attributable to such Additional Shares of Common Stock, Convertible
Securities, warrants or other rights, as the case may be. The consideration
for any Additional Shares of Common Stock issuable pursuant to any warrants
or other rights to subscribe for or purchase the same shall be the
consideration received by the Company for issuing such warrants or other
rights plus the additional consideration payable to the Company upon
exercise of such warrants or other rights. The consideration for any
Additional Shares of Common Stock issuable pursuant to the terms of any
Convertible Securities shall be the consideration received by the Company
for issuing warrants or other rights to subscribe for or purchase such
Convertible Securities, plus the consideration paid or payable to the
Company in respect of the subscription for or purchase of such Convertible
Securities, plus the additional consideration, if any, payable to the
Company upon the exercise of the right of conversion or exchange in such
Convertible Securities. In case of the issuance at any time of any
Additional Shares of Common Stock or Convertible Securities in payment or
satisfaction of any dividends upon any class of stock other than Common
Stock, the Company shall be deemed to have received for such Additional
Shares of Common Stock or Convertible Securities a consideration equal to
the amount of such dividend so paid or satisfied.
(b) When Adjustments to Be Made. The adjustments required by this
---------------------------
Section 4 shall be made whenever and as often as any specified event
requiring an adjustment shall occur, except that any adjustment of the
number of shares of Common Stock for which this Warrant is exercisable that
would otherwise be required may be postponed (except in the case of a
subdivision or combination of shares of the Common Stock, as provided for
in Section 4.1) up to, but not beyond the date of exercise if such
adjustment either by itself or with other adjustments not previously made
adds or subtracts less than 1% of the shares of Common Stock for which this
Warrant is exercisable immediately prior to the making of such adjustment.
Any adjustment representing a change of less than such minimum amount
(except as aforesaid) which is postponed shall be carried forward and made
as soon as such adjustment, together with other adjustments required by
this Section 4 and not previously made, would result in a minimum
adjustment or on the date of exercise.
13
For the purpose of any adjustment, any specified event shall be deemed to
have occurred at the close of business on the date of its occurrence.
(c) Fractional Interests. In computing adjustments under this
--------------------
Section 4, fractional interests in Common Stock shall be taken into account
to the nearest 1/100th of a share.
(d) When Adjustment Not Required. If the Company shall take a record
----------------------------
of the holders of its Common Stock for the purpose of entitling them to
receive a dividend or distribution or subscription or purchase rights and
shall, thereafter and before the distribution to stockholders thereof,
legally abandon its plan to pay or deliver such dividend, distribution,
subscription or purchase rights, then thereafter no adjustment shall be
required by reason of the taking of such record and any such adjustment
previously made in respect thereof shall be rescinded and annulled.
(e) Escrow of Warrant Stock. If after any property becomes
-----------------------
distributable pursuant to this Section 4 by reason of the taking of any
record of the holders of Common Stock, but prior to the occurrence of the
event for which such record is taken, and Holder exercises this Warrant,
any shares of Common Stock issuable upon exercise by reason of such
adjustment shall be deemed the last shares of Common Stock for which this
Warrant is exercised (notwithstanding any other provision to the contrary
herein) and such shares or other property shall be held in escrow for
Holder by the Company to be issued to Holder upon and to the extent that
the event actually takes place, upon payment of the Current Warrant Price.
Notwithstanding any other provision to the contrary herein, if the event
for which such record was taken fails to occur or is rescinded, then such
escrowed shares shall be cancelled by the Company and escrowed property
returned.
(f) Challenge to Good Faith Determination. Whenever the Board of
-------------------------------------
Directors of the Company shall be required to make a determination in good
faith of the fair value of any item under this Section 4, such
determination may be challenged by Holder, and any dispute shall be
resolved by an investment banking or accounting firm of recognized national
standing selected by the Holder and reasonably acceptable to the Company in
a manner customary for such evaluations and no arbitration or similar
hearings shall be conducted in connection therewith.
4.8. Reorganization, Reclassification, Merger, Consolidation or
----------------------------------------------------------
Disposition of Assets. In case the Company shall reorganize its capital,
- ---------------------
reclassify its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving corporation or where there
is a change in or distribution with respect to the Common Stock of the Company),
or sell, transfer or otherwise dispose of all or substantially all its property,
assets or business to another corporation and, pursuant to the terms of such
reorganization, reclassification, merger, consolidation or disposition of
assets, shares of
14
common stock of the successor or acquiring corporation, or any cash, shares of
stock or other securities or property of any nature whatsoever (including
warrants or other subscription or purchase rights) in addition to or in lieu of
common stock of the successor or acquiring corporation ("Other Property"), are
to be received by or distributed to the holders of Common Stock of the Company,
then Holder shall have the right thereafter to receive, upon exercise of this
Warrant, the number of shares of common stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and Other
Property receivable upon or as a result of such reorganization,
reclassification, merger, consolidation or disposition of assets by a Holder of
the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such event. In case of any such reorganization,
reclassification, merger, consolidation or disposition of assets, the successor
or acquiring corporation (if other than the Company) shall expressly assume the
due and punctual observance and performance of each and every covenant and
condition of this Warrant to be performed and observed by the Company and all
the obligations and liabilities hereunder, subject to such modifications as may
be deemed appropriate (as determined by resolution of the Board of Directors of
the Company) in order to provide for adjustments of shares of the Common Stock
for which this Warrant is exercisable which shall be as nearly equivalent as
practicable to the adjustments provided for in this Section 4. For purposes of
this Section 4.8 common stock of the successor or acquiring corporation shall
include stock of such corporation of any class which is not preferred as to
dividends or assets on liquidation over any other class of stock of such
corporation and which is not subject to redemption and shall also include any
evidences of indebtedness, shares of stock or other securities which are
convertible into or exchangeable for any such stock, either immediately or upon
the arrival of a specified date or the happening of a specified event and any
warrants or other rights to subscribe for or purchase any such stock. The
foregoing provisions of this Section 4.8 shall similarly apply to successive
reorganizations, reclassifications, mergers, consolidations or disposition of
assets.
4.9. Other Action Affecting Common Stock. In case at any time or from
-----------------------------------
time to time the Company shall take any action in respect of its Common Stock,
other than the payment of dividends permitted by Section 4.2(a) or any other
action described in this Section 4, then, unless such action will not have a
materially adverse effect upon the rights of Holder, the number of shares of
Common Stock or other stock for which this Warrant is exercisable and/or the
purchase price thereof shall be adjusted in such manner as may be equitable in
the circumstances.
4.10. Certain Limitations. Notwithstanding anything herein to the
-------------------
contrary, the Company agrees not to enter into any transaction which, by reason
of any adjustment hereunder, would cause the Current Warrant Price to be less
than the par value per share of Common Stock.
4.11. Excluded Transactions. Notwithstanding anything herein to the
---------------------
contrary, no adjustment pursuant to this Section 4 shall be made by reason of
the issuance of
15
any additional shares of Common Stock upon (i) the exercise or conversion of
currently outstanding options, warrants or sales agent warrants or preferred
stock (including the issuance and conversion of preferred stock issued as
dividends on currently outstanding preferred stock or on preferred stock so
issued as dividends) to purchase Common Stock, (ii) the issuance or exercise of
options, to purchase up to an aggregate of 2,000,000 shares of Common Stock,
granted on or after the date hereof pursuant to the company's 1995 Employee and
Consultant Stock Option Plan or any similar plan or arrangement hereafter
adopted for the benefit of the Company's employees, consultants or directors,
(iii) or in connection with the private placement by the Borrower of up to
1,500,000 shares of Common Stock or securities convertible into or exercisable
for such number of shares of Common Stock, for a purchase price of $4.00 per
share or more.
5. NOTICES TO WARRANT HOLDERS
5.1. Notice of Adjustments. Whenever the number of shares of Common
---------------------
Stock for which this Warrant is exercisable, or whenever the price at which a
share of such Common Stock may be purchased upon exercise of this Warrant, shall
be adjusted pursuant to Section 4, the Company shall forthwith prepare a
certificate to be executed by the chief financial officer of the Company setting
forth, in reasonable detail, the event requiring the adjustment and the method
by which such adjustment was calculated (including a description of the basis on
which the Board of Directors of the Company determined the fair value of any
evidences of indebtedness, shares of stock, other securities or property or
warrants or other subscription or purchase rights referred to in Section 4.2 or
4.7(a)), specifying the number of shares of Common Stock for which this Warrant
is exercisable and (if such adjustment was made pursuant to Section 4.8 or 4.9)
describing the number and kind of any other shares of stock or Other Property
for which this Warrant is exercisable, and any change in the purchase price or
prices thereof, after giving effect to such adjustment or change. The Company
shall promptly cause a signed copy of such certificate to be delivered to Holder
in accordance with Section 17.2. The Company shall keep at its office or agency
designated pursuant to Section 12 copies of all such certificates and cause the
same to be available for inspection at said office during normal business hours
by Holder or any prospective purchaser of this Warrant designated by Holder.
5.2. Notice of Corporate Action. If at any time:
--------------------------
(a) the Company shall take a record of the holders of its Common Stock
for the purpose of entitling them to receive a dividend (other than a cash
dividend payable out of earnings or earned surplus legally available for
the payment of dividends under the laws of the jurisdiction of
incorporation of the Company) or other distribution, or any right to
subscribe for or purchase any evidences of its indebtedness, any shares of
stock of any class or any other securities or property, or to receive any
other right, or
16
(b) there shall be any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or
any consolidation or merger of the Company with, or any sale, transfer or
other disposition of all or substantially all the property, assets or
business of the Company to, another corporation, or
(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company; then, in any one or more of such
cases, the Company shall give to Holder (i) at least 30 days' prior written
notice of the date on which a record date shall be selected for such
dividend, distribution or right or for determining rights to vote in
respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or
winding up, and (ii) in the case of any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up, at least 30 days' prior written
notice of the date when the same shall take place. Such notice in
accordance with the foregoing clause also shall specify (i) the date on
which any such record is to be taken for the purpose of such dividend,
distribution or right, the date on which the holders of Common Stock shall
be entitled to any such dividend, distribution or right, and the amount and
character thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up is to take place and the time, if
any such time is to be fixed, as of which the holders of Common Stock shall
be entitled to exchange their shares of Common Stock for securities or
other property deliverable upon such reorganization, reclassification,
merger, consolidation, sale, transfer, disposition, dissolution,
liquidation or winding up. Each such written notice shall be sufficiently
given if addressed to Holder at the last address of Holder appearing on the
books of the Company and delivered in accordance with Section 17.2.
5.3. Notice to Stockholders. The Holder shall be entitled to the same
----------------------
rights to receive notice of corporate action as any holder of Common Stock.
6. NO IMPAIRMENT
The Company shall not by any action including, without limitation,
amending its certificate of incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of all
such actions as may be necessary or appropriate to protect the rights of Holder
against impairment. Without limiting the generality of the foregoing, the
Company will (a) not increase the par value of any shares of Common Stock
receivable upon the exercise of this Warrant above the amount payable therefor
upon such exercise immediately prior to such
17
increase in par value, (b) take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of Common Stock upon the exercise of this Warrant, and
(c) use its best efforts to obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction thereof as may be
necessary to enable the Company to perform its obligations under this Warrant.
Upon the request of Holder, the Company will at any time during the period this
Warrant is outstanding acknowledge in writing, in form satisfactory to Holder,
the continuing validity of this Warrant and the obligations of the Company
hereunder.
7. RESERVATION AND AUTHORIZATION OF COMMON STOCK:
REGISTRATION WITH OR APPROVAL OF ANY GOVERNMENTAL AUTHORITY
From and after the Closing Date, the Company shall at all times
reserve and keep available for issue upon the exercise of Warrants such number
of its authorized but unissued shares of Common Stock as will be sufficient to
permit the exercise in full of all outstanding Warrants. All shares of Common
Stock which shall be so issuable, when issued upon exercise of any Warrant and
payment therefor in accordance with the terms of such Warrant, shall be duly and
validly issued and fully paid and nonassessable, and not subject to preemptive
rights.
Before taking any action which would cause an adjustment reducing the
Current Warrant Price below the then par value, if any, of the shares of Common
Stock issuable upon exercise of the Warrants, the Company shall take any
corporate action which may be necessary in order that the Company may validly
and legally issue fully paid and non-assessable shares of such Common Stock at
such adjusted Current Warrant Price.
Before taking any action which would result in an adjustment in the
number of shares of Common Stock for which this Warrant is exercisable or in the
Current Warrant Price, the Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
If any shares of Common Stock required to be reserved for issuance
upon exercise of Warrants require registration or qualification with any
governmental authority under any federal or state law before such shares may be
so issued, the Company will in good faith and as expeditiously as possible and
at its expense endeavor to cause such shares to be duly registered.
18
8. TAKING OF RECORD; STOCK AND WARRANT TRANSFER BOOKS
In the case of all dividends or other distributions by the Company to
the Holders of its Common Stock with respect to which any provision of Section 4
refers to the taking of a record of such Holders, the Company will in each such
case take such a record and will take such record as of the close of business on
a Business Day. The Company will not at any time, except upon dissolution,
liquidation or winding up of the Company, close its stock transfer books or
Warrant transfer books so as to result in preventing or delaying the exercise or
transfer of any Warrant.
9. REGISTRATION RIGHTS
The Holder of this Warrant shall have certain registration rights as
set forth in a Registration Rights Agreement, dated as of the date hereof,
between Oracle Partners, L.P. and the Company.
10. SUPPLYING INFORMATION
The Company shall cooperate with Holder and each Holder of Restricted
Common Stock in supplying such information as may be reasonably necessary for
such Holder to complete and file any information reporting forms presently or
hereafter required by the Commission as a condition to the availability of an
exemption from the Securities Act for the sale of any Warrant or Restricted
Common Stock.
11. LOSS OR MUTILATION
Upon receipt by the Company from Holder of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of this Warrant and indemnity reasonably satisfactory to it (it being
understood that the written agreement of the original Holder shall be sufficient
indemnity) and in case of mutilation upon surrender and cancellation hereof, the
Company will execute and deliver in lieu hereof a new Warrant of like tenor to
Holder; provided, however, that in the case of mutilation, no indemnity shall be
-------- -------
required if this Warrant in identifiable form is surrendered to the Company for
cancellation.
12. OFFICE OF THE COMPANY
As long as any of the Warrants remain outstanding, the Company shall
maintain an office or agency (which may be the principal executive offices of
the Company) where the Warrants may be presented for exercise, registration of
transfer, division or combination as provided in this Warrant.
19
13. FINANCIAL AND BUSINESS INFORMATION
13.1. Quarterly Information. The Company will deliver to Holder, as
---------------------
soon as available and in any event within 45 days after the end of each of the
first three quarters of each fiscal year of the Company, one copy of an
unaudited consolidated balance sheets of the Company and its subsidiaries as at
the end of such quarter, and the related unaudited consolidated statements of
income, retained earnings and cash flow of the Company and its subsidiaries for
such quarter and, in the case of the second and third quarters, for the portion
of the fiscal year ending with such quarter, setting forth in each case in
comparative form the figures for the corresponding periods in the previous
fiscal year. Such financial statements shall be prepared by the Company in
accordance with GAAP and accompanied by the certification of the Company's chief
executive officer or chief financial officer that such financial statements
present fairly the consolidated financial position, results of operations and
cash flow of the Company and its subsidiaries as at the end of such quarter and
for such year-to-date period, as the case may be.
13.2. Annual Information. The Company will deliver to Holder as soon
------------------
as available and in any event within 90 days after the end of each fiscal year
of the Company, one copy of an audited consolidated balance sheet of the Company
and its subsidiaries as at the end of such year, and audited consolidated
statements of income, retained earnings and cash flow of the Company and its
subsidiaries for such year; setting forth in each case in comparative form the
figures for the corresponding periods in the previous fiscal year; all prepared
in accordance with GAAP, and which audited financial statements shall be
accompanied by (i) an opinion thereon of the independent certified public
accountants regularly retained by the Company, or any other firm of independent
certified public accountants of recognized national standing selected by the
Company and (ii) a report of such independent certified public accountants
confirming any adjustment made pursuant to Section 4 during such year.
13.3. Filings. The Company will file on or before the required date
-------
all regular or periodic reports (pursuant to the Exchange Act) with the
Commission and will deliver to Holder promptly upon their becoming available one
copy of each report, notice or proxy statement sent by the Company to its
stockholders generally, and of each regular or periodic report (pursuant to the
Exchange Act) and any registration statement, prospectus or written
communication (other than transmittal letters) (pursuant to the Securities Act),
filed by the Company with (i) the Commission or (ii) any securities exchange on
which shares of Common Stock are listed.
13.4. Access. At any reasonable time and at reasonable intervals,
------
the Company shall permit any holder of Warrants or Warrant Stock and any
authorized agent or representative thereof to (a) visit the properties of the
Company and any of its subsidiaries and (b) discuss the affairs, finances and
accounts of the Company and any of its subsidiaries with any of their respective
officers or directors.
20
14. APPRAISAL
The determination of the Appraised Value per share of Common Stock
shall be made by an investment banking firm of nationally recognized standing
selected by the Holder and reasonably acceptable to the Company. If the
investment banking firm selected by the Holder is not acceptable to the Company
and the Company and Holder cannot agree on a mutually acceptable investment
banking firm, then Holder and the Company shall each choose one such investment
banking firm and the respective chosen shall agree on another investment banking
firm which shall make the determination. The Company shall retain, at its sole
cost, such investment banking firm as may be necessary for the determination of
Appraised Value required by the terms of this Warrant. Such determination shall
be made in a manner customary for such evaluations and no arbitration or similar
hearings shall be conducted in connection therewith.
15. LIMITATION OF LIABILITY
No provision hereof, in the absence of affirmative action by Holder to
purchase shares of Common Stock, and no enumeration herein of the rights or
privileges of Holder hereof, shall give rise to any liability of Holder for the
purchase price of any Common Stock or as a stockholder of the Company, whether
such liability is asserted by the Company or by creditors of the Company.
16. MISCELLANEOUS
16.1. Nonwaiver and Expenses. No course of dealing or any delay or
----------------------
failure to exercise any right hereunder on the part of Holder shall operate as a
waiver of such right or otherwise prejudice Holder's rights, powers or remedies.
If the Company fails to make, when due, any payments provided for hereunder, or
fails to comply with any other provision of this Warrant, the Company shall pay
to Holder such amounts as shall be sufficient to cover any costs and expenses
including, but not limited to, reasonable attorneys' fees, including those of
appellate proceedings, incurred by Holder in collecting any amounts due pursuant
hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.
16.2. Notice Generally. All notices, requests, demands or other
----------------
communications provided for herein shall be in writing and shall be deemed to
have been given three days after being sent by registered or certified mail,
return receipt requested, or when personally delivered, or successfully sent by
facsimile transmission as evidenced by a fax machine confirmation report
thereof, addressed, as the case may be, to the Holder at 712 Fifth Avenue, New
York, New York 10019, Attention: Mr. Larry Feinberg, Facsimile No. (212) 688-
7847; with a copy to Kane Kessler, P.C., 1350 Avenue of the Americas, New York,
New York 10019, Attention: Robert L. Lawrence, Esq., Facsimile No. (212) 245-
3009; or to the Company at Clinicor, Inc., 1717 West Sixth Street, Suite 400,
Austin, Texas 78703 Attention: Robert Sammis, Facsimile No. (512) 477-0027; with
a copy to Graves,
21
Dougherty, Hearon & Moody, 515 Congress Avenue, Suite 2300, Austin, Texas,
Attention: Karen Bartoletti, Esq., Facsimile No. (512) 478-1976, or to such
other person or address as either party shall designate to the other from time
to time in writing forwarded in like manner.
16.3. Indemnification. The Company agrees to indemnify and hold
---------------
harmless Holder from and against any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, attorneys' fees, expenses
and disbursements of any kind which may be imposed upon, incurred by or asserted
against Holder in any manner relating to or arising out of (i) Holder's exercise
of this Warrant and/or ownership of any shares of Warrant Stock issued in
consequence thereof, or (ii) any litigation to which Holder is made a party in
its capacity as a stockholder of the Company; provided, however, that the
-------- -------
Company will not be liable hereunder to the extent that any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, attorneys' fees, expenses or disbursements are found in a final non-
appealable judgment by a court to have resulted from Holder's gross negligence,
bad faith or willful misconduct in its capacity as a stockholder or warrant
Holder of the Company.
16.4. Successors and Assigns. Subject to compliance with the
----------------------
provisions of Section 3.1, this Warrant and the rights evidenced hereby shall
inure to the benefit of and be binding upon the successors of the Company and
the successors and assigns of Holder. The provisions of this Warrant are
intended to be for the benefit of all Holders from time to time of this Warrant,
and shall be enforceable by any such Holder.
16.5. Amendment. This Warrant may be modified or amended or the
---------
provisions of this Warrant waived with the written consent of the Company and
Holder.
17.6. Severability. Wherever possible, each provision of this
------------
Warrant shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be modified to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Warrant.
16.7. Headings. The headings used in this Warrant are for the
--------
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.
22
16.8. Governing Law. This Warrant and the transactions contemplate
-------------
hereby shall be deemed to be consummated in the State of Nevada and shall be
governed by and interpreted in accordance with the local laws of the State of
Nevada without regard to the provisions thereof relating to conflict of laws.
The Company hereby irrevocably consents to the jurisdiction of the United States
District Court located in New York City, New York in connection with any action
or proceeding arising out of or relating to this Warrant. In any such
litigation the Company waives personal service of any summons, complaint or
other process and agrees that the service thereof may be made by certified or
registered mail directed to the Company at its address set forth in (S) 17.2.
Within 30 days after such mailing, the Company so served shall appear or answer
to such summons, complaint or other process. Should the Company so served fail
to appear or answer within said 30-day period, the Company shall be deemed in
default and judgment may be entered by the Holder against the Borrower for the
amount as demanded in any summons, complaint or other process so served.
IN WITNESS WHEREOF, Clinicor, Inc. has caused this Warrant to be
executed by its duly authorized officer and attested by its Secretary.
Dated: July 1, 1997
CLINICOR, INC.
By: /s/ James W. Clark, Jr.
------------------------------------
Name: James W. Clark, Jr.
Title: CFO
Attest:
By: /s/ Robert S. Sammis
----------------------------
Name: Robert S. Sammis
Title: Secretary
23
EXHIBIT A
SUBSCRIPTION FORM
[To be executed only upon exercise of Warrant]
The undersigned registered owner of this Warrant irrevocably exercises this
Warrant for the purchase of shares of Common Stock of , and herewith makes
payment therefor, all at the price and on the terms and conditions specified in
this Warrant and requests that certificates for the shares of Common Stock
hereby purchased (and any securities or other-property issuable upon such
exercise) be issued in the name of and delivered to whose address is . and, if
such shares of Common Stock shall not include all of the shares of Common Stock
issuable as provided in this Warrant,. that a new Warrant of like tenor and date
for the balance of the shares of Common Stock issuable hereunder be delivered to
the undersigned.
-----------------------------------
(Name of Registered Owner)
-----------------------------------
(Signature of Registered Owner)
-----------------------------------
(Street Address)
-----------------------------------
(State) (Zip Code)
NOTICE: The signature on this subscription must correspond with the name as
written upon the face of the Warrant in every particular, without
alteration or enlargement or any change whatsoever.
24
EXHIBIT B
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 this Warrant, with respect to the number of shares of
common Stock set forth below:
Name and Address of Assignee No. of Shares of
Common Stock and does hereby irrevocably constitute and appoint attorney-in-fact
to register such transfer on the books of . , maintained for the purpose, with
full power of substitution in the premises.
Dated: Print Name:
Signature:
Witness:
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the Warrant in every particular, without alteration or
enlargement or any change whatsoever.