EXHIBIT 4.3
THIS WARRANT AND THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("Act") AND MAY NOT BE
OFFERED OR SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (ii)
TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER SUCH
ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL,
IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT
AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
MEDJET INC.
1090 King Georges Post Rd., Suite 301
Edison, New Jersey 08837
WARRANT TO PURCHASE 45,000 SHARES OF COMMON STOCK
THIS CERTIFIES THAT, for value received, STEVEN G. COOPERMAN, M.D. (the
"Holder") is entitled to subscribe for and purchase FORTY-FIVE THOUSAND (45,000)
shares (as adjusted pursuant to Paragraph 5 hereof, the "Shares") of the fully
paid and nonassessable Common Stock of MEDJET INC., a Delaware corporation (the
"Company") at a price per share (the "Warrant Price") equal to $6.70 per share,
subject to the provisions and upon the terms and conditions hereinafter set
forth. As used herein, the term "Common Stock" shall mean the Company's
presently authorized Common Stock, $.001 par value, and any stock into or for
which such Common Stock may hereafter be converted or exchanged.
1. Term. The purchase right represented by this Warrant is exercisable,
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in whole or in part, at any time and from time to time commencing on the date
hereof and ending at the earlier of (a) 5:00 p.m. New Jersey time on the fifth
(5th) calendar anniversary hereof or (b) the merger, consolidation or
acquisition of all or substantially all of the Company's assets provided the
Company has complied with the provisions of Section 4.
2. Method of Exercise; Payment; Issuance of New Warrant. (a) Subject to
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Paragraphs 1 and 11 hereof, the purchase right represented by this Warrant may
be exercised by the Holder, in whole or in part and from time to time on or
after the date hereof, (i) only as to that fraction of the Shares subject to
this Warrant determined by dividing the number of full one year periods elapsed
since the date hereof by four (4); it being understood that after four (4) years
from the date hereof, this Warrant shall be exercisable in full; and (ii) by the
surrender of this Warrant (with the notice of exercise form attached hereto as
Exhibit A duly executed) at the principal office of the Company and by the
payment to the Company, by check, of an amount equal to the Warrant Price per
share. The person or persons in whose name(s) any certificate(s) representing
shares of Common Stock shall be issuable upon exercise of this Warrant shall be
deemed to have become the holder(s) of record of, and shall be treated for all
purposes as the record holder(s) of, the shares represented thereby (and such
shares shall be deemed to have been issued) immediately prior to the close of
business on the date or dates upon which this Warrant is exercised. In the
event of any exercise of the rights represented by this Warrant, certificates
for the shares of stock so purchased shall be delivered to the Holder as soon as
possible and in any event within thirty days of receipt of such notice and,
unless this Warrant has been fully exercised or expired, a new Warrant
representing the portion of the Shares, if any, with respect to which this
Warrant shall not then have been exercised shall also be issued to the Holder as
soon as possible and in any event within such thirty-day period.
(b) In lieu of exercising this Warrant as provided in Section 2(a)
above, the Holder may elect to receive shares equal to the value of this Warrant
(or the portion thereof being cancelled) by surrender of this Warrant at the
principal office of the Company together with notice of such election, in which
event the Company shall issue to the Holder hereof a number of shares of Common
Stock computed using the following formula:
Y (A - B)
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X = A
Where
X - The number of shares of Common Stock to be issued to Holder;
Y - The number of shares of Common Stock purchasable under this
Warrant;
A - The fair market value of one share of the Company's Common
Stock; and
B - Warrant Price (as adjusted to the date of such calculations;
(c) Determination of Fair Market Value. For purposes of Section 2(b)
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above, fair market value of a share of Common Stock as of a particular date (the
"Determination Date") shall mean:
(i) If the exercise is in connection with a sale of the Company's
Common Stock to the public in a public offering pursuant to a Registration
Statement under the Securities Act of 1933, as amended (a "Public Offering"),
and if the Company's Registration Statement relating to such Public Offering
("Registration Statement") has been declared effective by the Securities and
Exchange Commission, then the initial "Price to Public" for such type of
security specified in the final prospectus with respect to such offering.
(ii) If the exercise is not in connection with a Public Offering, then
as follows:
(A) If such type of security is traded on a securities
exchange, the fair market value shall be deemed to be the average of the closing
prices of such type of security on such exchange over the 30-day period ending
five business days prior to the Determination Date;
(B) If such type of security is traded over-the-counter, the
fair market value shall be deemed to be the average of the closing bid prices of
such type of security over the 30-day period ending five business days prior to
the Determination Date; and
(C) If there is no public market for such type of security,
then fair market value shall be determined by mutual agreement of the Holder and
the Company, and if the Holder and the Company are unable to so agree, by an
investment banker of national reputation selected by the Company and reasonably
acceptable to the Holder, the cost to be shared equally by the parties.
3. Stock Fully Paid; Reservation of Shares. All Shares that may be
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issued upon the exercise of the rights represented by this Warrant will, upon
issuance, be fully paid and nonassessable, and free from all preemptive rights,
taxes, liens and charges with respect to the issue thereof; provided that the
Company shall not be required to pay any transfer taxes with respect to the
issue of shares in any name other than that of the registered holder hereof.
During the period within which the rights represented by this Warrant may be
exercised, the Company will at all times have authorized, and reserved for the
purpose of the issue upon exercise of the purchase rights evidenced by this
Warrant, a sufficient number of shares of Common Stock to provide for the
exercise of the rights represented by this Warrant. The Company shall at all
times take all such action and obtain all such permits or orders as may be
necessary to enable the Company lawfully to issue such shares of Common Stock as
duly and validly issued, fully paid and nonassessable shares upon exercise in
full of this Warrant.
4. Notice of Capital Changes. If at any time the Company shall offer for
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subscription pro rata to the holders of shares of Common Stock any additional
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shares of stock of any class, other rights or any equity security of any kind,
or there shall be any capital reorganization or reclassification of the capital
stock of the Company (including, without limitation, any stock split, stock
dividends, recapitalizations, reclassifications or similar events), or
consolidation or merger of the Company with, or sale of all or substantially all
of its assets to another company or there shall be a
voluntary or involuntary dissolution, liquidation or winding up of the Company,
then, in any one or more of said cases, the Company shall give the Holder
written notice, by registered or certified mail, postage prepaid, of the date on
which (i) a record shall be taken for such subscription rights or (ii) such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up shall take place, as the case may be. Such notice
shall also specify the date as of which the holders of record of shares of
Common Stock shall participate in such subscription rights, or shall be entitled
to exchange their shares of Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up, as the case may be. Such written
notice shall be given at least 20 days prior to the action in question and not
less than 20 days prior to the record date in respect thereto.
5. Certain Adjustments.
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5.1 Common Stock Dividends. If the Company at any time prior to the
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expiration of this Warrant shall pay a dividend with respect to the Common Stock
payable in shares of Common Stock, or make any other distribution with respect
to the Common Stock, then the purchase price per share shall be appropriately
decreased, and the number of Warrant Shares shall be appropriately increased in
proportion to such dividend.
5.2 Splits and Subdivisions. In the event the Company should at any time
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or from time to time fix a record date for the effectuation of a split or
subdivision of the outstanding shares of Common Stock of the Company, or the
determination of the holders of Common Stock of the Company entitled to receive
a dividend or other distribution payable in additional shares of Common Stock of
the Company or other securities or rights convertible into, or entitling the
holder thereof to receive directly or indirectly, additional shares of the
Common Stock (hereinafter referred to as the "Common Stock Equivalents") without
payment of any consideration by such holder for the additional shares of Common
Stock or Common Stock Equivalents (including the additional shares of Common
Stock issuable upon conversion or exercise thereof), then, as of such record
date (or the date of such distribution, split or subdivision if no record date
is fixed), the per share purchase price shall be appropriately decreased, and
the number of Warrant Shares shall be appropriately increased in proportion to
such increase of outstanding shares.
5.3 Combination of Shares. If the number of shares of Common Stock
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outstanding at any time after the date hereof is decreased by a combination of
the outstanding shares of Common Stock of the Company, the per share purchase
price shall be appropriately increased and the number of Warrant Shares shall be
appropriately decreased in proportion to such decrease in outstanding shares.
5.4 Recapitalizations. If at any time or from time to time there shall be
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a recapitalization of the Common Stock (other than a split, subdivision or
combination provided for elsewhere in this Section 5), provision shall be made
so that the holder of this Warrant shall thereafter be entitled to receive, upon
exercise of this Warrant, the number of shares of stock or other securities or
property of the Company or otherwise, to which a holder of Common Stock
deliverable upon exercise would have been entitled on such recapitalization. In
any such case, appropriate adjustment shall be made in the application of the
provisions of this Section 5 with respect to the rights of the holders of this
Warrant after the recapitalization to the end that the provisions of this
Section 5 (including adjustment of the purchase price then in effect and the
number of shares purchasable upon exercise of this Warrant) shall be applicable
after that event as nearly equivalent as may be practicable.
5.5 Adjustments for Other Distributions. In the event the Company shall
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declare a distribution payable in securities of other persons, evidences of
indebtedness issued by the Company or other persons, assets (excluding cash
dividends), or options, or rights not referred to in subsection 5.2, then, in
each such case for the purpose of this subsection 5.5, upon exercise of this
Warrant the holder hereof shall be entitled to a proportionate share of any such
distribution as though such holder was the holder of the number of shares of
Common Stock of the Company into which this Warrant may be exercised as of the
record date fixed for the determination of the holders of Common Stock of the
Company entitled to receive such distribution.
5.6 Certificate as to Adjustments. In the case of each adjustment or
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readjustment of the purchase price pursuant to this Section 5, the Company will
promptly compute such adjustment or readjustment in accordance with the terms
hereof and cause a certificate setting forth such adjustment or readjustment,
and showing in detail the facts upon which such adjustment or readjustment is
based to be delivered to the holder of this Warrant. The Company will, upon
the written request at any time of the holder of this Warrant, furnish or cause
to be furnished to such holder a certificate setting forth:
(a) such adjustments and readjustments;
(b) the purchase price at the time in effect; and
(c) the number of Warrant Shares receivable upon the exercise of this
Warrant.
6. Fractional Shares. No fractional shares of Common Stock will be
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issued in connection with any exercise hereunder, but in lieu of such fractional
shares the Company shall make a cash payment therefor upon the basis of the
current market price of such Shares then in effect as determined in good faith
by the Company's Board of Directors.
7. Privilege of Stock Ownership. Prior to the exercise of this Warrant,
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the Holder shall not be entitled, by virtue of holding this Warrant, to any
rights of a stockholder of the Company, including (without limitation) the right
to vote, receive dividends or other distributions, or exercise preemptive
rights, and the Holder shall not be entitled to any notice or other
communication concerning the business or affairs of the Company. Nothing in this
Section 7, however, shall limit the right of the Holder to be provided the
notices described in Section 4, hereof, or to participate in distributions
described in Section 5 hereof if the Holder ultimately exercises this Warrant.
8. Limitation of Liability. Except as otherwise provided herein, in the
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absence of affirmative action by the Holder hereof to purchase the Warrant
Shares, no mere enumeration herein of the rights or privileges of the Holder
hereof shall give rise to any liability of Holder for the purchase price or as a
stockholder of the Company, whether such liability is asserted by the Company or
by creditors of the Company.
9. Warrant Register.
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9.1 The Company will maintain a register (the "Warrant Register")
containing the name and address of the Holder. Holder may change its address as
shown on the Warrant Register by written notice to the Company requesting such
change. Any notice or written communication required or permitted to be given
to the Holder may be delivered or given by mail to Holder as shown on the
Warrant Register and at the address shown on the Warrant Register.
9.2 This Warrant may not be exercised without compliance with all
applicable federal and state securities laws by the Holder (including the
delivery of investment representation letters and legal opinions reasonably
satisfactory to the Company, if such are requested by the Company).
9.3 The Holder, by acceptance hereof, acknowledges that this Warrant and
the Warrant Shares to be issued upon exercise hereof are being acquired solely
for the Holder's own account and not as a nominee for any other party, and for
investment, and that the Holder will not offer, sell or otherwise dispose of
this Warrant or any Warrant Shares to be issued upon exercise hereof except
under circumstances that will not result in a violation of the Act or any state
securities laws. Upon exercise of this Warrant, the Holder shall, if requested
by the Company, confirm in writing, in a form satisfactory to the Company, that
the Warrant Shares so purchased are being acquired solely for the Holder's own
account and not as a nominee for any other party, for investment, and not with a
view toward distribution or resale.
9.4 This Warrant and all Warrant Shares issued upon exercise hereof shall
be stamped or imprinted with a legend in substantially the following form (in
addition to any legend required by state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED OR TRANSFERRED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER
SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR
UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT.
10. Lock-Up. For a period of twenty four (24) months following the
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closing date of the Company's contemplated public offering under Registration
Statement No. 333-3184, the Holder shall not directly or indirectly, offer, sell
(including by effecting any short sale), loan, hypothecate, pledge, grant any
option for the sale of, acquire any option to dispose of, transfer or gift
(except for estate planning or charitable transfers or other private sales,
provided the transferees agree to be bound by the same restrictions on
transfer), or otherwise dispose of any Shares without obtaining the prior
written consent of Patterson Travis, Inc. ("PT") (which consent may be withheld
or granted in PT's discretion). The Holder acknowledges and agrees that in order
to enforce the covenants contained in this Paragraph 10, the Company will impose
stop-transfer instructions with respect to the Shares until the end of such
twenty four (24) month period for transfers other than those exceptions
described above. In addition, the Holder waives any registration rights he may
have with respect to all such Shares for such twenty four (24) month period.
This Paragraph 10 shall lapse and become null and void if no closing of such
public offering shall have occurred on or before the date which is 90 days (or,
if such public offering is extended by agreement of the Holder and the Company,
an additional 90 days thereafter) after the date of this Warrant.
11. Termination of Services. If the Holder ceases to provide consulting
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services under that certain Consulting Agreement with the Company dated the date
hereof or ceases to serve as a director of the Company for any reason or no
reason, he may, but only within thirty (30) days after the earlier of (a) the
date he ceases to provide consulting services under the above-mentioned
Consulting Agreement or (b) the date he ceases to serve as a director of the
Company, exercise this Warrant to the extent he was entitled to exercise it at
the date of such termination. To the extent he was not entitled to exercise
this Warrant at such date, or if he does not exercise it within the time
specified herein, this Warrant shall terminate.
12. Non-Transferability of Warrant. This Warrant may not be assigned,
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hypothecated, transferred or disposed of in any manner other than by will or by
the laws of descent or distribution and may be exercised during the lifetime of
the Holder only by him. The terms of this Warrant shall be binding upon the
executors, administrators, heirs and successors of the Holder.
13. Representations and Warranties. The Company represents and warrants
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to the Holder as follows:
(a) This Warrant has been duly authorized and executed by the Company
and is a valid and binding obligation of the Company enforceable in accordance
with its terms; and
(b) The Shares have been duly authorized and reserved for issuance by
the Company and, when issued in accordance with the terms hereof, will be
validly issued, fully paid and nonassessable.
14. Notices. Any notice, request or other document required or permitted
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to be given or delivered to the Holder or the Company shall be delivered, or
shall be sent by certified or registered mail, postage prepaid, to each Holder
at its address as shown on the books of the Company or to the Company at the
address indicated therefor on the signature page of this Warrant.
15. Lost Warrants or Stock Certificates. The Company covenants to the
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Holder that upon receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction, or mutilation of this Warrant or any stock
certificate and, in the case of any such loss, theft or destruction, upon
receipt of an indemnity reasonably satisfactory to the Company (in the case of a
regulated financial institution, a direct letter of indemnity shall be deemed
reasonably satisfactory to the Company), or in the case of any such mutilation
upon surrender and cancellation of such Warrant or stock certificate, the
Company will make and deliver a new Warrant or stock certificate, of like tenor,
in lieu of the lost, stolen, destroyed or mutilated Warrant or stock
certificate.
16. Descriptive Headings. The descriptive headings of the several
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paragraphs of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant.
17. Governing Law. This Warrant shall be construed and enforced in
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accordance with, and the rights of the parties shall be governed by, the laws of
the State of Delaware.
18. Amendments and Waivers. Any term of this Warrant may be amended, and
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the observance of any term of this Warrant may be waived (either generally or in
a particular instance, and either retroactively or prospectively), with the
written consent of the Company and the Holder. Any such amendment or waiver
shall be binding on the Company and the Holder and any subsequent transferee of
this Warrant.
MEDJET INC.
By: /s/ Eugene I. Gordon
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Title: President
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Address:
1090 King Georges Post Rd., Suite 301
Edison, New Jersey 08837
Dated: May 20, 1996