EXHIBIT 4.3
THE WARRANTS REPRESENTED HEREBY AND THE COMMON STOCK ISSUABLE UPON EXERCISE OF
THE WARRANTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR REGISTERED OR QUALIFIED UNDER SECURITIES LAWS
OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. THE WARRANTS
REPRESENTED HEREBY AND THE COMMON STOCK ISSUABLE UPON EXERCISE OF THE WARRANTS
MAY NOT BE OFFERED, SOLD, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS
REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT IS APPLICABLE (IN WHICH CASE, IF REQUESTED,
THE ISSUER SHALL HAVE RECEIVED AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE ISSUER TO SUCH EFFECT) AND THE PROVISIONS OF ALL
OTHER APPLICABLE SECURITIES LAWS ARE OBSERVED.
BIOLASE TECHNOLOGY, INC.
Incorporated Under the Laws of the State of Delaware
No. _______ ________ Common Stock
Purchase Warrants
CERTIFICATE FOR COMMON STOCK
PURCHASE WARRANTS
1. Warrant. This Warrant Certificate certifies that _____________________
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(the "Registered Holder"), is the registered owner of the above indicated number
of Warrants expiring on the Expiration Date, as hereinafter defined. One (1)
Warrant entitles the Registered Holder to purchase one (1) share of the common
stock, par value $0.001 per share (a "Share"), of BioLase Technology, Inc., a
Delaware corporation (the "Company"), from the Company at a purchase price of
________ Dollars ($______) (the "Exercise Price") to the extent and on the
conditions specified herein at any time prior to the Expiration Date, upon
surrender of this Warrant Certificate with the exercise form hereon duly
completed and executed and accompanied by payment of the Exercise Price at the
principal executive office of the Company.
2. Restrictive Legends. Each Warrant Certificate shall bear a legend
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substantially in the form of the legend that appear at the beginning of this
Warrant Certificate. Each certificate representing Shares issued upon exercise
of Warrants, unless such Shares are then registered for issuance under the
Securities Act of 1933, as amended (the "Act"), shall bear a legend in
substantially the following form:
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"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR REGISTERED OR QUALIFIED UNDER THE SECURITIES
LAWS OF ANY OTHER JURISDICTION IN RELIANCE UPON EXEMPTIONS
AFFORDED UNDER THE SECURITIES ACT AND APPLICABLE LAWS OF OTHER
JURISDICTIONS. THE SHARES REPRESENTED HEREBY MAY NOT BE OFFERED,
SOLD, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS REGISTERED
UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT IS APPLICABLE (IN WHICH
CASE, IF REQUESTED, THE ISSUER SHALL HAVE RECEIVED AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
ISSUER TO SUCH EFFECT) AND THE PROVISIONS OF ALL OTHER APPLICABLE
SECURITIES LAWS ARE OBSERVED."
3. Exercise. Subject to the terms hereof, the Warrants evidenced by this
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Warrant Certificate may be exercised at the Exercise Price in whole or in part
at any time prior to the close of business at the location of the principal
executive offices of the Company on ______________________ (the "Expiration
Date"). The Exercise Period may be extended by the Company's Board of Directors.
A Warrant shall be deemed to have been exercised immediately prior to the
close of business on the date (the "Exercise Date") of the surrender to the
Company prior to the Expiration Date at its principal executive offices of this
Warrant Certificate with the exercise form attached hereto duly completed and
executed by the Registered Holder and accompanied by payment to the Company, in
cash or by official bank or certified check, of an amount equal to the aggregate
Exercise Price for the Shares being acquired through exercise of Warrants, in
lawful money of the United States of America.
The person entitled to receive the Shares issuable upon exercise of a
Warrant or Warrants ("Warrant Shares") shall be treated for all purposes as the
holder of such Warrant Shares as of the close of business on the Exercise Date.
The Company shall not issue any fractional share interests in Warrant Shares
issuable or deliverable on the exercise of any Warrant, but the Company will
instead pay a cash adjustment in respect of any fraction of a Warrant Share
which would otherwise be issuable in an amount equal to the same fraction of the
market price of a Share on the Exercise Date, such market price to be determined
in good faith by the Board of Directors of the Company. If Warrants represented
by more than one Warrant Certificate shall be exercised at one time by the same
Registered Holder, the number of full Shares which shall be issuable on exercise
thereof shall be computed on the basis of the aggregate number of full shares
issuable on such exercise.
Promptly, and in any event within ten business days after the Exercise
Date, the Company shall cause to be issued and delivered to the person or
persons entitled to
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receive the same a certificate or certificates for the number of Warrant Shares
deliverable on such exercise.
The Company may deem and treat the Registered Holder of the Warrants at any
time as the absolute owner thereof for all purposes, and the Company shall not
be affected by any notice to the contrary. The Warrants shall not entitle the
Registered Holder thereof to any of the rights of shareholders or to any
dividend declared on the Shares unless the Registered Holder shall have
exercised the Warrants and thereby purchased the Warrant Shares prior to the
record date for the determination of holders of Shares entitled to such dividend
or other right.
4. Reservation of Shares and Payment of Taxes. The Company covenants that
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it will at all times reserve and have available from its authorized Common Stock
such number of shares as shall then be issuable on the exercise of outstanding
Warrants. The Company covenants that all Warrant Shares which shall be so
issuable shall be duly and validly issued, fully paid and nonassessable, and
free from all taxes, liens and charges with respect to the issue thereof.
The Registered Holder shall pay all documentary, stamp or similar taxes and
other government charges that may be imposed with respect to the issuance,
transfer or delivery of any Warrant Shares on exercise of the Warrants.
5. Registration of Transfer. The Company shall keep transfer books at its
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principal executive office or at such other office as it may designate, which
shall register Warrant Certificates and the transfer thereof. On due presentment
at such office of any Warrant Certificate for registration of a transfer
permitted hereunder, the Company shall execute, issue and deliver to the
transferee a new Warrant Certificate representing the number of Warrants
transferred and, if the number of Warrants transferred is less than the number
of Warrants represented by the Warrant Certificate presented, shall execute,
issue and deliver to the Registered Holder a new Warrant Certificate
representing the balance. All Warrant Certificates presented for registration of
transfer or exercise shall be duly endorsed or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
shall be accompanied by documentary evidence, reasonably satisfactory to the
Company, demonstrating the entitlement of the transferee to the requested
transfer. The Company may require payment of a sum sufficient to cover any tax
or other government charge that may be imposed in connection therewith.
All Warrant Certificates surrendered for transfer, or surrendered for
exercise or for exchange in case of mutilated Warrant Certificates, shall be
promptly canceled by the Company and thereafter retained by the Company until
the Expiration Date. Prior to due presentment for registration of transfer
thereof, the Company may treat the Registered Holder of any Warrant Certificate
as the absolute owner thereof (notwithstanding any notations of ownership or
writing thereon made by anyone other than the Company), and the Company shall
not be affected by any notice to the contrary.
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6. Loss or Mutilation. On receipt by the Company of evidence satisfactory
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as to the ownership of and the loss, theft, destruction or mutilation of this
Warrant Certificate, the Company shall execute and deliver, in lieu thereof, a
new Warrant Certificate representing an equal aggregate number of Warrants. In
the case of loss, theft or destruction of any Warrant Certificate, the
individual requesting issuance of a new Warrant Certificate shall be required to
indemnify the Company in an amount satisfactory to the Company. In the event a
Warrant Certificate is mutilated, such Certificate shall be surrendered and
canceled by the Company prior to delivery of a new Warrant Certificate.
Applicants for a new Warrant Certificate shall also comply with such other
reasonable regulations as the Company may prescribe.
7. Adjustment of Shares. The number and kind of securities issuable upon
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exercise of a Warrant or to be delivered upon the redemption of Warrants
hereunder shall be subject to adjustment from time to time upon the happening of
certain events, as follows:
(a) If the Company shall, at any time prior to the complete exercise
of the Warrants evidenced hereby, declare or pay to the holders of its
outstanding Shares, a dividend payable in any kind of shares of stock or
other securities of the Company, the Registered Holder when thereafter
exercising the Warrants evidenced hereby as herein provided shall be
entitled to receive for the Exercise Price, in addition to one Warrant
Share, such additional share or shares of stock, or scrip representing
fractions of a share, or other securities as the Registered Holder would
have received in the form of such dividend if he had been the holder of
record of such Warrant Share on the record date for the determination of
the holders of Shares entitled to receive such dividend.
(b) If the Company shall, at any time prior to the complete exercise
of the Warrants evidenced hereby, effect a stock split, reverse stock split
or other recapitalization of such character that the Warrant Shares for
which the Warrants are exercisable shall be changed into or become
exchangeable for a larger or smaller number of Shares, then thereafter the
number of Shares which the Registered Holder shall be entitled to purchase
hereunder shall be increased or decreased, as the case may be, in direct
proportion to the increase or decrease in the number of outstanding Shares
of the Company arising solely by reason of such stock split, reverse stock
split or recapitalization, and the Exercise Price (per Share) shall in the
case of an increase in the number of Shares be proportionately reduced and
in the case of a decrease in the number of shares be proportionately
increased, so that the aggregate exercise price shall remain the same and
the Registered Holder shall receive upon payment thereof the same number of
Shares he would have received upon such stock split, reverse stock split or
recapitalization in exchange for Warrant Shares issuable upon exercise
hereof if he had been the holder of record of such Warrant Shares on the
record date for the determination of the holders of Shares with respect to
such stock split, reverse stock split or recapitalization.
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(c) In case of any reorganization of the Company (or any other
corporation the stock or other securities of which are at the time
receivable upon exercise of a Warrant) or in case the Company (or any such
other corporation) shall merge into or with or consolidate with another
corporation or convey all or substantially all of its assets to another
corporation or enter into a business combination of any form as a result of
which the Shares or other securities receivable upon exercise of a Warrant
are converted into other stock or securities of the same or another
corporation at any time prior to the complete exercise of the Warrants
evidenced hereby, then and in each such case, the Registered Holder of a
Warrant, upon exercise of the purchase right at any time after the
consummation of such reorganization, consolidation, merger, conveyance or
combination, shall be entitled to receive, in lieu of the Shares or other
securities to which such Registered Holder would have been entitled had he
exercised the purchase right immediately prior thereto, such stock and
securities which such Registered Holder would have owned immediately after
such event with respect to the Shares and other securities for which a
Warrant may have been exercised immediately before such event had the
Registered Holder exercised the Warrant immediately prior to such event.
(d) In case the Company shall at any time prior to the exercise of a
Warrant evidenced hereby make any distribution of its assets to holders of
its Shares by liquidating or partial liquidating dividend or by way of
return of capital, or other than as a dividend payable out of earnings or
any surplus legally available for dividends under the laws of the state of
its incorporation, then the Registered Holder when thereafter exercises
such Warrant as herein provided after the date of record for the
determination of those holders of Shares entitled to such distribution of
assets, shall be entitled to receive for the Exercise Price, in addition to
a Warrant Share, the amount of such assets (or at the option of the
Company, a sum equal to the value thereof at the time of such distribution
to holders of Shares as such value is determined by the Board of Directors
of the Company in good faith) which would have been payable to the
Registered Holder had he been the holder of record of such Warrant Share
receivable upon exercise of such Warrant on the record date for the
determination of those entitled to such distribution.
In each case of an adjustment in the Shares or other securities receivable
upon the exercise of a Warrant, the Company shall promptly notify the Registered
Holder of such adjustment. Such notice shall set forth the facts upon which such
adjustment is based.
8. Reduction in Exercise Price at Company's Option. The Company's Board
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of Directors may, at its sole discretion, can reduce the Exercise Price of the
Warrants in effect at any time either for the life of the Warrants or any
shorter period of time determined by the Company's Board of Directors. The
Company shall promptly notify the Registered Holders of any such reduction in
the Exercise Price.
9. Notices. All notices, demands, elections, or requests (however
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characterized or described) required or authorized hereunder shall be deemed
given sufficiently if in writing and either delivered by messenger or courier or
sent by registered or certified mail,
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return receipt requested and postage prepaid, to the Company, at its principal
executive office, and to the Registered Holder, at the address of such holder as
set forth on the records relating to the Warrants maintained by the Company.
11. General Provisions. This Warrant Certificate shall be construed and
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enforced in accordance with, and governed by, the laws of the State of
California. Except as otherwise expressly stated herein, time is of the essence
in performing hereunder. The headings of this Warrant Certificate are for
convenience in reference only and shall not affect the meaning hereof.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed as of the ___________ day of ____________________.
BioLase Technology, Inc.
By ________________________
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BIOLASE TECHNOLOGY, INC.
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entireties Custodian
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JR TEN - as joint tenants with right (Cust) (Minor)
of survivorship and not as under Uniform Gifts
tenants in common to Minors Act _____
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF ASSIGNMENT
(To be Executed by the Registered Holder if He Desires to
Assign Warrants Evidenced by the Within Warrant Certificate)
FOR VALUE RECEIVED _______________________________________ hereby
sells, assigns and transfers unto ______________________ ___________________
______________________________ (_________) Warrants, evidenced by the within
Warrant Certificate, and does hereby irrevocably constitute and appoint
____________________________ __________________ Attorney to transfer the said
Warrants evidenced by the within Warrant Certificates on the books of the
Company, with full power of substitution.
Dated:____________________ _____________________________
Signature
Notice: The above signature must correspond with the name as written upon
the face of the Warrant Certificate in every particular, without
alteration or enlargement or any change whatsoever.
Signature Guaranteed: __________________________________________
SIGNATURE MUST BE GUARANTEED BY AN "ELIGIBLE GUARANTOR INSTITUTION", AS DEFINED
IN RULE 17Ad-15 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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FORM OF ELECTION TO PURCHASE
(To be Executed by the Holder to Exercise Warrants)
To BioLase Technology, Inc.:
The undersigned hereby irrevocably elects to exercise
____________________________ (_______) Warrants evidenced by the within Warrant
Certificate for, and to purchase thereunder, ____________________________
(_______) full shares of Common Stock issuable upon exercise of said Warrants
and delivery of $___________ and any applicable taxes.
The undersigned hereby:
(i) either [check one]
[_] certifies that the undersigned is an accredited investor, as
defined in Rule 501 under the Securities Exchange Act of 1934, as
amended, and will be the record and beneficial owner of the shares of
Common Stock to be issued upon exercise of these Warrants; or
[_] is supplying an opinion of counsel for the undersigned, which shall
be reasonably satisfactory in form and substance to BioLase Technology,
Inc., to the effect that the issuance of shares of Common Stock
pursuant to this exercise is exempt from the registration requirements
of the Securities Act of 1933, as amended; and
(ii) agrees that the undersigned will not offer, sell, hypothecate or otherwise
transfer such shares of Common Stock unless such shares are registered under
said Securities Act or an exemption from the registration requirements of such
Act is applicable (in which case the undersigned shall supply an opinion of
counsel in form and substance reasonably satisfactory to BioLase Technology,
Inc. to such effect) and the provisions of all other applicable securities laws
are observed.
Please register the certificates for such shares as follows:
Taxpayer identification or
social security number:
__________________________________________ __________________________________
(Please print name)
___________________________________________________________________________
(Please print address)
___________________________________________________________________________
(FORM OF ELECTION TO PURCHASE CONTINUES ON FOLLOWING PAGE)
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If said number of Warrants shall not be all the Warrants evidenced by the
within Warrant Certificate, the undersigned requests that a new Warrant
Certificate evidencing the Warrants not so exercised be registered in the name
of the undersigned at the following address and delivered to that address:
_________________________________________________________________________
(Please print address)
_________________________________________________________________________
Dated: __________________
Signature:______________________________
NOTICE: The above signature must correspond with the name as written upon the
face of the within Warrant Certificate in every particular, without
alteration or enlargement or any change whatsoever. If the certificate
representing the shares is to be registered in a name other than that
in which the within Warrant Certificate is registered, the signature
of the holder hereof must be guaranteed.
Signature Guaranteed: ________________________________
SIGNATURE MUST BE GUARANTEED BY AN "ELIGIBLE GUARANTOR INSTITUTION", AS DEFINED
IN RULE 17Ad-15 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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