NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK FOR WHICH IT IS
EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND NO
TRANSFER OR ASSIGNMENT OF THIS WARRANT OR THE SHARES ISSUABLE UPON ITS EXERCISE
MAY BE MADE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT
OR THE AVAILABILITY OF AN EXEMPTION FROM THE REGISTRATION PROVISIONS OF SUCH ACT
IN RESPECT OF SUCH TRANSFER OR ASSIGNMENT.
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK FOR WHICH IT IS
EXERCISABLE MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED BY
ANY PERSON BEFORE THE EXERCISE COMMENCEMENT DATE EXCEPT AS SET FORTH IN SECTION
2 OF THIS WARRANT.
STOCK PURCHASE WARRANT
CARDIOPULMONARY CORP.
COMMON STOCK
($.01 Par Value)
Dated ________, 1996
______ Shares Void After ________, 2001
This certifies that, for good and valuable consideration, [the
Representative] is entitled, upon the due exercise hereof at any time during the
four-year period commencing on the date which is the first anniversary (the
"Exercise Commencement Date") of the date on which the Registration Statement
(as such term is defined below) is declared effective (the "Effective Date") and
terminating at 5:00 p.m. E.S.T. on the fifth anniversary of the Effective Date
(the "Expiration Date") to purchase _______________________ shares of Common
Stock (as hereinafter defined), $.01 par value, of Cardiopulmonary Corp.
(hereinafter called the "Company"), such number of shares being subject to
adjustment upon the occurrence of the contingencies set forth in this Warrant.
The purchase price payable upon the exercise of this Warrant shall be $____ per
share (120% of the public offering price) (hereinafter referred to as the
"Exercise Price"), subject to adjustment upon the occurrence of the
contingencies set forth in this Warrant. This Warrant is originally issued
pursuant to an underwriting agreement (the "Underwriting Agreement") between the
Company and Advest, Inc. and Cruttenden Roth Incorporated as representatives of
the several underwriters, in connection with the public offering of 2,000,000
shares of the Company's Common Stock pursuant to a Registration Statement (File
No. [333- ]) (the "Registration Statement") filed under the
Securities Act of 1933, as amended (the "Act"). (Hereinafter, (i) said common
stock, together with any other equity securities which may be issued by the
Company with respect thereto or in substitution therefor, is referred to as the
"Common Stock," (ii) the shares of the Common Stock purchasable hereunder or
under any other Warrant (as hereinafter defined) are referred to as the "Warrant
Shares," (iii) this Warrant, the Warrant issued to [the Other Representative]
for ______ shares on the date hereof, and all Warrants hereafter issued in
exchange or substitution for these Warrants are referred to as the "Warrants"
and (iv) the holder of this Warrant is referred to as the "Holder" and the
holder of this Warrant and all other Warrants or Warrant Shares issued upon the
exercise of any Warrant are referred to as the "Holders.")
Upon delivery of this Warrant with the subscription form annexed hereto,
duly executed, together with payment of the Exercise Price for the shares of
Common Stock thereby purchased, at the offices of The First National Bank of
Boston, Transfer Agent for the Common Stock of the Company (hereinafter called
the "Warrant Agent"), or at such other address as the Company may designate by
notice in writing to the Holder, the Holder shall be entitled to receive a
certificate or certificates for the shares of Common Stock so purchased. The
Exercise Price shall be paid either (a) in cash, by wire transfer or by
certified or official bank check payable to the Company; (b) by delivery of
shares of Common Stock or other securities of the Company having a Market Price
on the business day immediately preceding the applicable exercise equal to the
aggregate Exercise Price; or (c) by surrender of rights under this Warrant to
receive a number of Warrant Shares equal to the Exercise Price multiplied by the
number of Warrant Shares to be purchased pursuant to the applicable exercise,
divided by the Market Price of the Company's Common Stock on the business day
immediately preceding the applicable exercise. For purposes of this Warrant, the
term "Market Price" shall mean, on any business day, the average of the closing
"bid" and "asked" prices for the Company's Common Stock on such business day as
reported on the National Association of Securities Dealers, Inc.'s Automated
Quotation system, or such other exchange on which the Company's Common Stock is
listed on such business day.
This Warrant is subject to the following terms and conditions:
1. EXERCISE OF WARRANT. This Warrant may be exercised during the four-year
period beginning on the Exercise Commencement Date, and ending at 5:00 p.m.
E.S.T. on the Expiration Date, in whole at any time or in part from time to
time, but not as to a fractional share of Common Stock. In case of any partial
exercise of this Warrant, the Company shall execute and deliver a new Warrant of
like tenor and date for the balance of the shares of Common Stock purchasable
hereunder.
2. EXCHANGE AND TRANSFER OF WARRANT. Prior to the Exercise Commencement
Date, this Warrant may not be sold, transferred, assigned or hypothecated except
(i) to and among officers or partners of [the Representative] or (ii) at any
such officer's or partner's death, pursuant to will, trust or the laws of
intestate succession, and may not be further transferred by any such transferee
prior to the
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Exercise Commencement Date except as set forth in clauses (i) and (ii) of this
sentence. This Warrant is exchangeable, without expense, at the option of the
Holder, upon presentation and surrender hereof at the office of the Warrant
Agent, for other warrants of different denominations entitling the holder
thereof to purchase in the aggregate the same number of shares of Common Stock
purchasable hereunder. Except as limited herein, this Warrant and all rights
hereunder are transferable by the Holder in person or by duly authorized
attorney on the books of the Company upon surrender of this Warrant at the
offices of the Warrant Agent, together with the form of transfer authorization
attached hereto duly executed. Absent any such transfer, the Company may deem
and treat the Holder at any time as the absolute owner hereof for all purposes
and shall not be affected by any notice to the contrary.
3. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES PURCHASABLE HEREUNDER.
The Exercise Price and the number of Warrant Shares purchasable upon the
exercise of this Warrant are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 3.
(a) In case the Company shall at any time after the date of this Agreement
(i) declare a dividend on the Common Stock payable in shares of its capital
stock (whether in shares of Common Stock or of capital stock of any other
class), (ii) subdivide the outstanding Common Stock, (iii) combine the
outstanding Common Stock into a smaller number of shares or (iv) issue any
shares of its capital stock in a reclassification of the Common Stock (including
any such reclassification in connection with a consolidation or merger in which
the Company is the continuing corporation), the Exercise Price in effect at the
time of the record date for such dividend or of the effective date of such
subdivision, combination or reclassification, shall be proportionately adjusted
so that the Holder shall be entitled to receive the aggregate number and kind of
shares of capital stock which, if this Warrant had been exercised immediately
prior to such date, the Holder would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision, combination or
reclassification. Such adjustment shall be made successively whenever any event
listed above shall occur.
(b) In case the Company shall issue rights or warrants to all holders of
Common Stock entitling them (for a period expiring within 45 calendar days after
the date of issuance) to subscribe for or to purchase Common Stock or any stock
or securities convertible or exchangeable into Common Stock (such convertible or
exchangeable stock or securities being herein called "Convertible Securities"),
whether or not such rights or warrants or the right to convert or exchange any
such Convertible Securities are immediately exercisable, and the price per share
for which Common Stock is issuable upon the exercise of such rights or warrants
or upon conversion or exchange of such Convertible Securities (determined by
dividing (I) the total amount, if any, received or receivable by the Company as
consideration for the granting of such rights or warrants, plus the aggregate
amount of additional consideration payable to the Company upon the exercise of
all such rights or warrants, plus, with respect to Convertible Securities, the
minimum aggregate
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amount of additional consideration, if any, payable upon the conversion or
exchange thereof, by (II) the total maximum number of shares of Common Stock
issuable, upon the exercise of such rights or warrants or upon the conversion or
exchange of all such Convertible Securities issuable upon the exercise of such
rights or warrants) shall be less than the current market price per share of
Common Stock (as defined in Section 3(d)) on the record date mentioned below,
the Exercise Price to be in effect after such record date shall be determined by
multiplying the Exercise Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the number of shares of Common
Stock outstanding on such record date plus the number of shares of Common Stock
that the aggregate offering price for the total shares of Common Stock so to be
offered (or the sum of the purchase price of the Convertible Securities and the
aggregate initial conversion price of the Convertible Securities so to be
offered) would purchase at the then current market price per share of Common
Stock (as defined in Section 3(d)) and the denominator of which shall be the
number of shares of Common Stock outstanding on such record date plus the number
of shares of Common Stock to be offered for subscription or purchase (or into
which the Convertible Securities so to be offered are initially convertible). In
case such subscription price may be paid in consideration part or all of which
shall be in a form other than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors of the Company and described
in a statement filed with the Warrant Agent. Shares of Common Stock owned by or
held for the account of the Company or any majority-owned subsidiary shall not
be deemed outstanding for the purpose of any such computation. Such adjustment
shall be made successively whenever such a record date is fixed; and in the
event that such rights or warrants are not so issued or exercised prior to their
expiration, the Exercise Price shall again be adjusted to be the Exercise Price
that would then be in effect if such record date had not been fixed, but such
subsequent adjustment shall not affect the number of Warrant Shares issued upon
any exercise of this Warrant prior to the date such adjustment is made.
(c) In case the Company shall fix a record date for the making of a
distribution to all holders of Common Stock (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing corporation) of evidences of indebtedness or assets (other than cash
dividends or cash distributions payable out of consolidated earnings or earned
surplus or dividends payable in Common Stock or capital stock that are subject
to Section 3(a)) or subscription rights or warrants (other than rights or
warrants described in Section 3(b)), the Exercise Price to be in effect after
such record date shall be determined by multiplying the Exercise Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the current market price per share of Common Stock (as defined in
Section 3(d)), on such record date, less the fair market value (as determined in
good faith by the Board of Directors of the Company and described in a statement
filed with the Warrant Agent) of the portion of the assets or evidences of
indebtedness so to be distributed or of such subscription rights or warrants
applicable to one share of Common Stock and the denominator of which shall be
such current market price per share of Common
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Stock. Such adjustment shall be made successively whenever such a record date is
fixed; and in the event that such distribution is not so made or such rights or
warrants are not exercised prior to their expiration, the Exercise Price shall
again be adjusted to be the Exercise Price which would then be in effect if such
record date had not been fixed, but such subsequent adjustment shall not affect
the number of Warrant Shares issued upon any exercise of this Warrant prior to
the date such adjustment is made.
(d) For the purpose of any computation under Section 3(b) or Section 3(c),
the current market price per share of Common Stock on any date shall be deemed
to be the average of the daily closing prices for the 15 consecutive trading
days immediately preceding the date of determination. The closing price for each
day shall be the last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices regular way,
on the principal national securities exchange on which the Common Stock is
listed or admitted to trading, or if the Common stock is not listed or admitted
to trading on any national securities exchange, the average of the highest
reported bid and lowest reported asked prices reported on Nasdaq (or, if the
securities are included in the Nasdaq National Market System, the last sale
price, if a sale takes place on such day) or, if the Common Stock is not listed
or admitted to trading on any national securities exchange, or is not included
in Nasdaq, as furnished by the National Quotation Bureau or similar organization
if the National Quotation Bureau is no longer reporting such information, then
the current market price per share of Common Stock shall be deemed to be the
amount most recently determined by the Board of Directors to represent the fair
market value per share of the Common Stock (including without limitation a
determination for purposes of granting Common Stock options or issuing Common
stock under an employee benefit plan of the Company).
(e) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least ten cents ($.10)
per Warrant Share; provided, however, that any adjustments which by reason of
this Section 3(e) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Section 3
shall be made to the nearest cent or to the nearest one-hundredth of a share, as
the case may be.
(f) If, as a result of an adjustment made pursuant to Section 3(a), the
Holder shall become entitled to receive any shares of capital stock of the
Company other than shares of Common Stock, the number of such other shares so
receivable upon exercise of this Warrant shall be subject thereafter to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Warrant Shares contained in
this Warrant.
(g) Whenever this Section 3 shall require that an adjustment in the
Exercise Price be effective as of a record date for a specified event, and the
Holder elects to exercise this Warrant after such record date, but before the
occurrence of
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such event, the Company may elect to delay issuing to the Holder until the
occurrence of such event such additional Warrant Shares and other capital stock
of the Company, if any, issuable upon such exercise over and above the Warrant
Shares and other capital stock of the Company, if any, issuable upon such
exercise on the basis of the Exercise Price in effect prior to such adjustment;
provided, however, that the Company shall deliver to the Holder a due bill or
other appropriate instrument evidencing the Holder's right to receive such
additional shares upon the occurrence of the event requiring such adjustment.
(h) Upon each adjustment of the Exercise Price as a result of the
calculations made in Section 3(a), Section 3(b) or Section 3(c), this Warrant
outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Exercise Price, that number of
Warrant Shares (calculated to the nearest hundredth) obtained by (A) multiplying
the number of Warrant Shares purchasable upon exercise of this Warrant
immediately prior to such adjustment of the number of Warrant Shares by the
Exercise Price in effect immediately prior to such adjustment of the Exercise
Price and (B) dividing the product so obtained by the Exercise Price in effect
immediately after such adjustment of the Exercise Price.
(i) In case of any capital reorganization of the Company, or of any
reclassification of the Common Stock (other than a change in par value, or from
no par value to par value, or from par value to no par value, or as a result of
a dividend on the Common Stock payable in shares of capital stock of the
Company, a subdivision or combination), or in case of the consolidation of the
Company with or the merger of the Company with any other corporation (other than
a consolidation or merger in which (i) the Company is the continuing corporation
and (ii) the holders of the Company's Common Stock immediately prior to such
merger or consolidation continue as holders of Common Stock after such merger or
consolidation) or of the sale of the properties and assets of the Company as, or
substantially as, an entirety to any other corporation, this Warrant shall after
such reorganization, reclassification, consolidation, merger or sale be
exercisable, upon the terms and conditions specified in this Agreement, for the
number of shares of stock or other securities or property to which a holder of
the number of Warrant Shares purchasable (at the time of such reorganization,
reclassification, consolidation, merger or sale) upon exercise of such Warrant
would have been entitled in connection with such reorganization,
reclassification, consolidation, merger or sale; and in any such case, if
necessary, the provisions set forth in this Section 3 with respect to the rights
and interests thereafter of the Holder shall be appropriately adjusted so as to
be applicable, as nearly as may reasonably be, to any shares of stock or other
securities or property thereafter deliverable on the exercise of this Warrant.
The Company shall not effect any such consolidation, merger or sale, unless
prior to or simultaneously with the consummation thereof the successor
corporation (if other than the Company) resulting from such consolidation or
merger or the corporation purchasing such assets or other appropriate
corporation or entity shall assume, by written instrument executed and delivered
to the Warrant Agent, the obligation to deliver to the Holder such shares of
stock, securities or assets as, in
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accordance with the foregoing provisions, the Holder may be entitled to purchase
and the other obligations under this Agreement.
4. FRACTIONAL SHARES. Notwithstanding an adjustment in the number of
Warrant Shares purchasable upon the exercise of this Warrant pursuant to Section
3(h), the Company shall not be required to issue fractions of Warrant Shares
upon exercise of this Warrant or to distribute certificates which evidence
fractional Warrant Shares. In lieu of fractional Warrant Shares, there shall be
paid to the Holder at the time such Warrant is exercised, as herein provided, an
amount in cash equal to the same fraction of the then current market value of a
share of Common Stock. For purposes of this Section 4, the current market value
of a share of Common Stock shall be the closing price of a share of Common Stock
(as determined pursuant to the second sentence of Section 3(d)) for the trading
day immediately prior to the date of such exercise or, if no such price is
reported, the average of the highest reported bid and lowest reported asked
price (as determined pursuant to the second sentence of Section 3(d)).
5. CHARGES, TAXES AND EXPENSES. The issuance of certificates of shares of
Common Stock upon any exercise of this Warrant shall be made without charge to
the Holder for any tax or other expense in respect to the issuance of such
certificates, all of which taxes and expenses shall be paid by the Company.
6. COVENANTS OF ISSUER. The Company covenants and agrees that all shares
that may be issued upon the exercise of the rights represented by this Warrant
will, upon issuance, be fully paid and nonassessable and free from all taxes,
liens and charges with respect to the issue thereof (other than taxes in respect
of any transfer occurring contemporaneously with such issue). The Company
further covenants and agrees that during the period within which the rights
represented by this Warrant may be exercised, the Company will at all times have
authorized and reserved a sufficient number of shares of Common Stock and, if
applicable, other capital stock to provide for the exercise in full of the
rights represented by this Warrant. The Company will provide to, or make
available to, as the case may be, the Holder the same information, reports and
notices as it shall provide to, or make available to, the holders of its Common
Stock. The Company will not, by amendment of its Certificate of Incorporation or
through reorganization, consolidation, merger, dissolution or sale of assets, or
by any other voluntary act or deed, avoid or seek to avoid the performance or
observance of any of the covenants, stipulations or conditions to be performed
or observed by the Company, but will at all times in good faith, assist, insofar
as it is able, in the carrying out of all provisions of this Warrant and in the
taking of all other action that may be necessary in order to protect the rights
of the Holder. Without limiting the generality of the foregoing, the Company
agrees that it will not establish or increase the par value of the shares of
Common Stock that are at the time issuable upon exercise of this Warrant above
the then prevailing Exercise Price hereunder and that, before taking any action
that would cause an adjustment reducing the Exercise Price hereunder below the
then par value of the shares of Common Stock issuable upon exercise hereof, the
Company will take any corporate action that may, in the
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opinion of its counsel, be necessary in order that the Company may validly and
legally issue fully paid and nonassessable shares of such Common Stock at the
Exercise Price as so adjusted.
7. REGISTRATION UNDER SECURITIES ACT OF 1933.
(a) The Company agrees that if, at any time during the period commencing on
the Exercise Commencement Date and ending on 5:00 p.m. E.S.T. on the fourth
anniversary of said date, the Holder and/or the Holders of any other Warrants
and/or Warrant Shares who or which shall hold not less than 50% of the Warrants
and/or Warrant Shares initially issued or issuable hereunder shall request that
the Company file a registration statement under the Securities Act of 1933 (the
"Act") covering not less than 50% of the Warrant Shares issuable upon the
exercise of the Warrants and not previously sold under this Section or under
Rule 144 under the Act, the Company will (i) promptly notify each Holder of the
Warrants and each holder of Warrant Shares not so previously sold that such
registration statement will be filed and that the Warrant Shares which are then
held, and/or may be acquired upon exercise of the Warrants by the Holder and
such Holders will be included in such registration statement at the Holder's and
such Holders' request, (ii) cause such registration statement to cover all
Warrant Shares which it has been so requested to include, (iii) use its best
efforts to cause such registration statement to become effective as soon as
practicable and (iv) take all other action necessary under any Federal or state
law or regulation of any governmental authority to permit all Warrant Shares
which it has been so requested to include in such registration statement to be
sold or otherwise disposed of, and will maintain such compliance with each such
Federal and state law and regulation of any governmental authority for the
period necessary for such Holders to effect the proposed sale or other
disposition, but in no event to exceed 120 days. The Company shall be required
to effect a registration or qualification pursuant to this Subsection 7(a) on
one occasion only. Notwithstanding the foregoing, the Company shall not be
required to effect a registration under this Subsection 7(a) when it would
become effective prior to 90 days following the effective date of any
registration statement with respect to which the Holders shall have had the
opportunity to register Warrant Shares pursuant to Subsection 7(b) hereof or
(ii) for a period of 60 days following the date of the request under this
Subsection 7(a) if the Board of Directors of the Company determines in good
faith that the filing of a registration statement would, if not deferred for
such period, adversely effect a then proposed or pending corporate change,
acquisition, merger or corporate reorganization.
(b) The Company agrees that if, at any time and from time to time during
the period commencing on the Exercise Commencement Date and ending on 5:00 p.m.
E.S.T. on the sixth anniversary of said date, the Board of Directors of the
Company shall authorize the filing of a registration statement (any such
registration statement being hereinafter called a "Subsequent Registration
Statement") under the Act (otherwise than pursuant to Subsection 7(a) hereof, or
other than a registration statement on Form S-8 or other form which does not
include
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substantially the same information as would be required in a form for the
general registration of securities) in connection with the proposed offer of any
of its securities by it or any of its stockholders, the Company will (i)
promptly notify the Holder and each of the Holders, if any, of other Warrants
and/or Warrant Shares not previously sold pursuant to this Section 7 that such
Subsequent Registration Statement will be filed and that the Warrant Shares
which are then held, and/or which may be acquired upon the exercise of the
Warrants, by the Holder and such Holders, will, at the Holder's and such
Holders' request, be included in such Subsequent Registration Statement, (ii)
upon the written request of a Holder made within 20 days after the giving of
such notice by the Company, include in the securities covered by such Subsequent
Registration Statement all Warrant Shares which it has been so requested to
include, (iii) use its best efforts to cause such Subsequent Registration
Statement to become effective as soon as practicable and (iv) take all other
action necessary under any Federal or state law or regulation of any
governmental authority to permit all Warrant Shares which it has been so
requested to include in such Subsequent Registration Statement to be sold or
otherwise disposed of, and will maintain such compliance with each such Federal
and state law and regulation of any governmental authority for the period
necessary for the Holder and such Holders to effect the proposed sale or other
disposition, but in no event to exceed 120 days. There are no limitations on the
number or times the Holder and such Holders may exercise such piggyback rights.
Notwithstanding the foregoing, if the offering is underwritten and the
underwriter managing the offering reasonably believes in good faith that the
inclusion of any or all of the Warrant Shares (the "Requested Warrant Shares")
so requested by the Holder and such Holders to be included in such offering
would materially and adversely affect such offering then the Holder and such
Holders and other holders of securities entitled to include them in such
registration shall participate in the registration pro rata based upon their
total ownership of shares of Common Stock. If any holder would thus be entitled
to include more securities than such holder requested to be registered, the
excess shall be allocated among other requesting holders pro rata in the manner
described in the preceding sentence.
(c) Whenever the Company is required pursuant to the provisions of this
Section 7 to include Warrant Shares in a registration statement the Company
shall (i) furnish each Holder of any such Warrant Shares and each underwriter of
such Warrant Shares with such copies of the prospectus, including the
preliminary prospectus conforming to the Act (and such other documents as each
such Holder or each such underwriter may reasonably request) in order to
facilitate the sale or distribution of the Warrant Shares, (ii) use its best
efforts to register or qualify such Warrant Shares under the blue sky laws (to
the extent applicable) of such jurisdiction or laws (to the extent applicable)
of such jurisdiction or jurisdictions as the Holders of any such Warrant Shares
and each underwriter of Warrant Shares being sold by such Holders shall
reasonably request and (iii) take such other actions as may be reasonably
necessary or advisable to enable such Holders and such underwriters to
consummate the sale or distribution in such jurisdiction or jurisdictions in
which such Holders shall have reasonably requested that the Warrant Shares be
sold.
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(d) The Company shall pay all expenses incurred in connection with any
registration statement or other action pursuant to the provisions of this
Section 7, other than underwriting discounts and applicable transfer taxes
relating to the Warrant Shares and the out-of-pocket expenses incurred by the
Holders in connection with such registration statement or other action.
(e) The Company will indemnify the Holders of Warrant Shares which are
included in each Subsequent Registration Statement referred to in Subsections
7(a) and 7(b), and the underwriters of such Warrant Shares, substantially to the
same extent as the company has indemnified the underwriters (the "Underwriters")
of its public offering of Common Stock pursuant to the Underwriting Agreement,
and such Holders will indemnify the Company (and the underwriters, if
applicable) with respect to information furnished by them in writing to the
Company for inclusion therein substantially to the same extent as the
Underwriters have indemnified the Company.
8. HOLDER'S RIGHTS. The Holder, as such, shall not be entitled to vote or
receive dividends or be deemed to be a shareholder of the Company for any
purpose, nor shall anything contained in this Warrant be construed to confer
upon the Holder, as such, any rights as a shareholder of the Company or any
right to vote, give or withhold consent to any corporate action, receive notice
of meetings, receive dividends, or subscription rights, or otherwise.
9. NOTICES. If there shall be any adjustment as provided above in Section
3, or if securities or property other than shares of Common Stock of the Company
shall become purchasable in lieu of shares of such Common Stock upon exercise of
this Warrant, the Company shall forthwith cause written notice thereof to be
sent by registered mail, postage prepaid, to the Holder at the address of the
Holder shown on the books of the Warrant Agent, which notice shall be
accompanied by an explanation prepared by the Company setting forth in
reasonable detail the basis for the Holder's becoming entitled to purchase such
shares and the number of shares which may be purchased and the Exercise Price
thereof, or the facts requiring any such adjustment and the Exercise Price and
number of shares purchasable after such adjustment, or the kind and amount of
any such securities or property so purchasable upon the exercise of this
Warrant, as the case may be. The Company will promptly provide the Holder, at
the Holder's request, a written confirmation of such calculation by independent
certified public accountants of recognized national standing (which may be the
Company's independent certified public accountants). At the request of the
Holder and upon surrender of this Warrant, the Company shall reissue this
Warrant in a form conforming to such adjustments.
10. DISSOLUTION OR LIQUIDATION. In the event of any proposed dissolution or
total liquidation of the Company, other than in connection with a consolidation,
merger or sale of all, or substantially all, of its property, assets, business
and goodwill as an entirety, the Company shall forthwith cause written notice
thereof to be sent by registered mail, postage prepaid, to the Holder at the
address of the Holder shown on the books of the Company. Such notice shall be
given not later
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than 30 days prior to any record date fixed for the purpose of determining
shareholders entitled to participate in any liquidating distribution.
11. LOST, STOLEN, MUTILATED, OR DESTROYED WARRANTS. If this Warrant shall
become lost, stolen, mutilated, or destroyed, the Company shall, on such
reasonable terms as to indemnity or otherwise as it may in its discretion
impose, issue a new warrant of like denomination, tenor, and date as this
Warrant so lost, stolen, mutilated, or destroyed. Any such new warrant shall
constitute an original contractual obligation of the Company, whether or not the
allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time
enforceable by anyone.
12. APPLICABLE LAW. The validity, interpretation, and performance of this
Warrant shall be governed by the laws of the State of Connecticut.
13. SUCCESSORS AND ASSIGNS. This Warrant and the rights evidenced hereby
shall inure to the benefit of and be binding upon the successors and assigns of
the Company, the Holder and, as to Section 7, the holder of the shares of Common
Stock issued upon the exercise hereof, and shall be enforceable by any such
holder.
14. HEADINGS. Headings of the sections in this Warrant are for convenience
and reference only and shall not, for any purpose, be deemed a part of this
Warrant.
THE NEXT PAGE IS THE SIGNATURE PAGE
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer and its corporate seal to be affixed hereto.
Dated: _______, 1996.
CARDIOPULMONARY CORP.
(CORPORATE SEAL) By:______________________________
James W. Biondi, M.D.
Its Chairman
ATTEST:
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N. Nicoll Snow
Its Secretary
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EXHIBIT A
[Subscription form to be executed upon exercise of Warrants]
The undersigned, registered holder or assignee of such registered holder of
the within Warrant, hereby (1) subscribes for __________ shares which the
undersigned is entitled to purchase under the terms of the within Warrant, (2)
makes the payment therefor called for by the within Warrant, and (3) directs
that the shares issuable upon exercise of said Warrant be issued as follows:
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(Name)
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(Address)
Signature __________________________
Date: ________________, 199_
EXHIBIT B
Assignment
(To be executed by the Holder to effect a transfer of the within Warrant)
FOR VALUE RECEIVED __________________________ hereby sells, assigns, and
transfers unto ______________________________, of ________________________, the
right to purchase ______________ shares evidenced by the within Warrant, and
does hereby irrevocably constitute and appoint ______________________ to
transfer such right on the books of the Company, with full power of
substitution.
Date: ________________, 199_
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(Signature)