Exhibit 10.0
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WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of August 24, 2001, between LASIK America,
Inc., a Nevada corporation (the "Company"), and Dr. Howard P. Silverman, the
Chief Executive Officer and President of the Company ("Silverman").
W I T N E S S E T H:
1. Issue. The Company shall issue to Silverman a certificate (the
"Warrant Certificate") dated as of the date hereof providing Silverman, and any
subsequent assignee or transferee of Silverman, with the right to purchase, at
any time, commencing six months after the date that the Company's registration
statement filed on Form SB-2 with the U.S. Securities and Exchange Commission
becomes effective ("Effective Date"), until 5:30 p.m., New York time, five (5)
years from the Effective Date, 125,000 shares of Common Shares of the Company
(the "Warrant Shares") (subject to adjustment as provided in Section 10 hereof),
at an exercise price (subject to adjustment as provided in Section 10 hereof) of
$7.20 per Common Share.
2. Warrant Certificate. The Warrant Certificate to be delivered
pursuant to this Agreement shall be in the form set forth as an Exhibit,
attached hereto and made a part hereof, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement.
3. Exercisability of Warrants. The Warrants shall be exercisable at any
time commencing six months after the Effective Date, until 5:30 p.m., New York
time, five (5) years after the Effective Date.
4. Procedure for Exercise of Warrants.
4.1 Cash Exercise. The Warrants are exercisable at an
aggregate initial exercise price per Common Share set forth in Section
8 hereof payable by certified check or official bank check in New York
Clearing House funds. Upon surrender of a Warrant Certificate with the
annexed Form of Election to Purchase duly executed, together with
payment of the Exercise Price (as hereinafter defined) for the Warrant
Shares purchased, at the Company's principal offices in Albuquerque,
New Mexico (presently located at 6646 Indian School Road, N.E.,
Albuquerque, New Mexico), Silverman shall be entitled to receive a
certificate for the Warrant Shares so purchased. The purchase rights
represented by the Warrant Certificate are exercisable at the option of
Silverman, in whole or in part (but not as to fractional Common Shares
underlying the Warrants). In the case of the purchase of less than all
the Warrant Shares purchasable under the Warrant Certificate, the
Company shall cancel said Warrant Certificate upon the surrender
thereof and shall execute and deliver a new Warrant Certificate of like
tenor for the balance of the Warrant Shares purchasable thereunder.
4.2 Cashless Exercise. In addition to the exercise of all or a
portion of the Warrants by the payment of the Exercise Price in cash or
check as set forth in Section 4.1 above, and in lieu of any such
payment, Silverman has the right to exercise the Warrants, in full or
in part, by surrendering the Warrant Certificate with the annexed Form
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of Election to Purchase duly executed, in exchange for the number of
Common Shares equal to the product of (x) the number of Common Shares
as to which the Warrants are being exercised multiplied by (y) a
fraction, the numerator of which is the Current Market Price of the
Common Shares (as defined below) less the Exercise Price then in effect
and the denominator of which is the Current Market Price.
4.3 Current Market Price. The term "Current Market Price"
shall mean (i) if the Shares are traded in the over-the-counter market
or on the National Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ"), the average per Share closing bid prices
on the 20 consecutive trading days immediately preceding the date of
exercise, as reported by NASDAQ or an equivalent generally accepted
reporting service, or (ii) if the Shares are traded on a national
securities exchange, the average for the 20 consecutive trading days
immediately preceding the exercise date of the daily per Share closing
prices on the principal stock exchange on which the Shares are listed,
as the case may be. The closing price referred to in clause (ii) above
shall be the last reported sales price or, if no such reported sale
takes place on such day, the average of the reported closing bid and
asked prices, in either case on the national securities exchange on
which the Shares are then listed.
5. Issuance of Certificate. Upon the exercise of the Warrants, the
issuance of a certificate for Warrant Shares (or Other Securities) shall be made
forthwith (and in any event within five (5) business days thereafter) without
charge to Silverman including, without limitation, any tax which may be payable
in respect of the issuance thereof, and such certificate shall (subject to the
provisions of Sections 6 and 9 hereof) be issued in the name of, or in such
names as may be directed by Silverman; provided, however, that the Company shall
not be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any such certificate in a name other
than that of Silverman and the Company shall not be required to issue or deliver
such certificate unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid. The
Warrant Certificate and the certificate representing the Warrant Shares (or
Other Securities) shall be executed on behalf of the Company by the manual or
facsimile signature of the then present Chairman or Vice Chairman of the Board
of Directors or President or any Vice President of the Company under its
corporate seal reproduced thereon, attested to by the manual or facsimile
signature of the then present Secretary or any Assistant Secretary of the
Company. The Warrant Certificate shall be dated the date of execution by the
Company upon initial issuance, division, exchange, substitution or transfer.
6. Transfer of Warrants. Silverman, by his acceptance hereof, covenants
and agrees that the Warrants are being acquired as an investment and not with a
view to the distribution thereof. The Warrants may be sold, transferred,
assigned, hypothecated or otherwise disposed of, in whole or in part, without
restriction, subject to compliance with applicable securities laws.
7. Redemption of Warrant.
7.1 Commencing on the date which is six months after the
Effective Date, Redemption Date, the Company may, on 30 days' prior
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written notice, redeem all the Warrants at ten cents ($.10) per
Warrant, PROVIDED, HOWEVER, that before any such call for redemption of
Warrants can take place, the average closing bid price for the Common
Stock as reported by the Over-the-Counter Electronic Bulletin Board
maintained by the NASD, if the Common Stock is not then traded on any
national securities exchange shall have equaled or exceeded $9.00 per
share for any twenty (20) trading days prior to the date on which the
notice contemplated by (b) and (c) below is given (subject to
adjustment in the event of any stock splits or other similar events as
provided in Section 9 hereof).
7.2 In case the Company shall exercise its right to redeem all
of the Warrants, it shall give or cause to be given notice to the
Registered Holders of the Warrants, by mailing to such Registered
Holders a notice of redemption, first class, postage prepaid, at their
last address as shall appear on the records of the Warrant Agent. Any
notice mailed in the manner provided here shall be conclusively
presumed to have been duly given whether or not the Registered Holder
receives such notice. Not less than four (4) trading days prior to the
mailing to the Registered Holders of the Warrants of the notice of
redemption, the Company shall deliver or cause to be delivered to the
representative of the underwriters, a similar notice telephonically and
confirmed in writing together with a list of the Registered Holders
(including their respective addresses and number of Warrants
beneficially owned) to whom such notice of redemption has been or will
be given.
7.3 The notice of redemption shall specify (i) the
redemption price, (ii) the Redemption Date, which shall in no event be
less than thirty (30) days after the date of mailing of such notice,
(iii) the place where the Warrant Certificate shall be delivered and
the redemption price shall be paid, and (iv) that the right to exercise
the Warrant shall terminate at 5:30 p.m. (New York time) on the
business day immediately preceding the date fixed for redemption. No
failure to mail such notice nor any defect therein or in the mailing
thereof shall affect the validity of the proceedings for such
redemption except as to a holder (a) to whom notice was not mailed or
(b) whose notice was defective. An affidavit of the Warrant Agent or
the Secretary or Assistant Secretary of the Company that notice of
redemption has been mailed shall, in the absence of fraud, be prima
facie evidence of the facts stated therein.
7.4 Any right to exercise a Warrant shall terminate at 5:30
p.m. (New York time) on the business day immediately preceding the
Redemption Date. The redemption price payable to the Registered Holders
shall be mailed to such persons at their addresses of record.
8. Exercise Price.
8.1 Initial and Adjusted Exercise Price. Except as otherwise
provided in Section 9 hereof, the initial exercise price of each
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Warrant shall be the price set forth in Section 1 hereof per Warrant
Share issued hereunder. The adjusted exercise price shall be the price
which shall result from time to time from any and all adjustments of
the initial exercise price in accordance with the provisions of Section
9 hereof.
8.2 Exercise Price. The term "Exercise Price" herein shall
mean the initial exercise price or the adjusted exercise price,
depending upon the context.
9. Registration Under the Securities Act of 1933. As of the date
hereof, the Warrants, the Warrant Shares and any of the other securities
issuable upon exercise of the Warrants have not been registered under the
Securities Act of 1933, as amended (the "Act"). Upon exercise, in whole or in
part, of the Warrants, a certificate representing the Warrant Shares underlying
the Warrants, and any of the other securities issuable upon exercise of the
Warrants (collectively, the "Warrant Securities") shall bear the following
legend unless such Warrant Shares previously have been registered under the Act
in accordance with the terms hereof: THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("ACT"), AND MAY NOT BE OFFERED OR SOLD 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 THE 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 THE ACT IS AVAILABLE.
10. Adjustments to Exercise Price and Number of Securities. The
Exercise Price and, in some cases, the number of Warrant Shares purchasable upon
the exercise of the Warrants, shall be subject to adjustment from time to time
upon the occurrence of certain events described in this Section 10.
10.1 Subdivision or Combination of Common Shares and Common
Share Dividend. In case the Company shall at any time subdivide its
outstanding Common Shares into a greater number of Common Shares or
declare a dividend upon its Common Shares payable solely in Common
Shares, the Exercise Price in effect immediately prior to such
subdivision or declaration shall be proportionately reduced, and the
number of Warrant Shares issuable upon exercise of the Warrants shall
be proportionately increased. Conversely, in case the outstanding
Common Shares of the Company shall be combined into a smaller number of
Common Shares, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased, and the number of
Warrant Shares issuable upon exercise of the Warrants shall be
proportionately reduced.
10.2 Notice of Adjustment. Promptly after adjustment of the
Exercise Price or any increase or decrease in the number of Warrant
Shares purchasable upon the exercise of this Warrant, the Company shall
give written notice thereof, by first class mail, postage prepaid,
addressed to Silverman of this Warrant at the address shown on the
books of the Company. The notice shall be signed by the Company's chief
financial officer and shall state (i) the effective date of the
adjustment and the Exercise Price resulting from such adjustment and
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(ii) the increase or decrease, if any, in the number of Common Shares
purchasable at such price upon the exercise of this Warrant, setting
forth in reasonable detail the method of calculation and the facts upon
which such calculation is based.
10.3 Other Notices. If at any time: (a) the Company shall
declare any cash dividend upon its Common Shares; (b) the Company shall
declare any dividend upon its Common Shares payable in securities
(other than a dividend payable solely in Common Shares) or make any
special dividend or other distribution to Silverman of its Common
Shares; (c) there shall be any consolidation or merger of the Company
with another corporation, or a sale of all or substantially all of the
Company's assets to another corporation; or (d) 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, by certified or registered mail, postage prepaid, addressed to
Silverman of this Warrant at the address of Silverman as shown on the
books of the Company, (i) at least 15 days' prior written notice of the
date on which the books of the Company shall close or a record shall be
taken for such dividend, distribution or subscription rights or for
determining rights to vote in respect of any such dissolution,
liquidation or winding-up; (ii) at least 10 days' prior written notice
of the date on which the books of the Company shall close or a record
shall be taken for determining rights to vote in respect of any such
reorganization, reclassification, consolidation, merger or sale, and
(iii) in the case of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding-up, at
least 15 days' written notice of the date when the same shall take
place. Any notice given in accordance with clause (i) above shall also
specify, in the case of any such dividend, distribution or option
rights, the date on which shall be entitled thereto. Any notice given
in accordance with clause (iii) above shall also specify the date on
which Silverman shall be entitled to exchange his Common Shares for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation
or winding-up, as the case may be. If Silverman does not exercise this
Warrant prior to the occurrence of an event described above, except as
provided in Sections 10.1 and 10.5, then Silverman shall not be
entitled to receive the benefits accruing to existing holders of the
Common Shares in such event.
10.4 Changes in Common Shares. In case at any time the Company
shall be a party to any transaction (including, without limitation, a
merger, consolidation, sale of all or substantially all of the
Company's assets or recapitalization of the Common Shares) in which the
previously outstanding Common Shares shall be changed into or exchanged
for different securities of the Company or common stock or other
securities of another corporation or interests in a non-corporate
entity or other property (including cash) or any combination of any of
the foregoing (each such transaction being herein called the
"Transaction" and the date of consummation of the Transaction being
herein called the "Consummation Date"), then, as a condition of the
consummation of the Transaction, lawful and adequate provisions shall
be made so that Silverman, upon the exercise hereof at any time on or
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after the Consummation Date, shall be entitled to receive, and this
Warrant shall thereafter represent the right to receive, in lieu of the
Common Shares issuable upon such exercise prior to the Consummation
Date, the highest amount of securities or other property to which
Silverman would actually have been entitled upon the consummation of
the Transaction if Silverman had exercised such Warrant immediately
prior thereto. The provisions of this Section 10.5 shall similarly
apply to successive Transactions.
11. Exchange and Replacement of Warrant Certificate. The Warrant
Certificate is exchangeable without expense, upon the surrender thereof by
Silverman at the principal executive office of the Company, for a new Warrant
Certificate of like tenor and date representing in the aggregate the right to
purchase the same number of Warrant Shares in such denominations as shall be
designated by Silverman thereof at the time of such surrender. Upon receipt by
the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of the Warrant Certificate, and, in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it,
and reimbursement to the Company of all reasonable expenses incidental thereto,
and upon surrender and cancellation of the Warrants, if mutilated, the Company
will make and deliver a new Warrant Certificate of like tenor, in lieu thereof.
12. Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of Common Shares upon the
exercise of the Warrants, nor shall it be required to issue scrip or pay cash in
lieu of fractional interests, it being the intent of the parties that all
fractional interests shall be eliminated by rounding any fraction up to the
nearest whole number of Common Shares or Other Securities.
13. Reservation of Securities. The Company shall at all times reserve
and keep available out of its authorized Common Shares, solely for the purpose
of issuance upon the exercise of the Warrants, such number of Common Shares or
Other Securities as shall be issuable upon the exercise thereof. The Company
covenants and agrees that, upon exercise of the Warrants and payment of the
Exercise Price therefor, all Common Shares or Other Securities issuable upon
such exercise shall be duly and validly issued, fully paid, non-assessable and
not subject to the preemptive rights of any holder of Common Shares.
14. Notices to Warrant Holder. Nothing contained in this Agreement
shall be construed as conferring upon the holder by virtue of his holding the
Warrant the right to vote or to consent or to receive notice as a holder of
Common Shares in respect of any meetings of such holders for the election of
directors or any other matter, or as having any rights whatsoever as such a
shareholder of the Company.
15. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made and
sent when delivered, or mailed by registered or certified mail, return receipt
requested: (a) If to Silverman, to the address of Silverman as shown on the
books of the Company; or (b) If to the Company, to the address set forth in
Section 4 hereof or to such other address as the Company may designate by notice
to the Silverman.
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16. Supplements and Amendments. The Company and Silverman may from time
to time supplement or amend this Agreement in order to cure any ambiguity, to
correct or supplement any provision contained herein which may be defective or
inconsistent with any provisions herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and Silverman
may deem necessary or desirable.
17. Successors. All the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of the Company, Silverman and
their respective successors and assigns hereunder.
18. Termination. This Agreement shall terminate at the close of
business on the tenth anniversary of the issuance of the Warrants.
19. Governing Law. This Agreement and the Warrant Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State of
Nevada and for all purposes shall be construed in accordance with the laws of
the State of Nevada without giving effect to the rules of the State of Nevada
governing the conflicts of laws.
20. Entire Agreement; Modification. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and may not be modified or amended except by a writing duly signed by the
party against whom enforcement of the modification or amendment is sought.
21. Severability. If any provision of this Agreement shall be held to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
22. Captions. The caption headings of the Sections of this Agreement
are for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
23. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and
Silverman any legal or equitable right, remedy or claim under this Agreement;
and this Agreement shall be for the sole and exclusive benefit of the Company
and Silverman.
24. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be duly executed, as of the day and year first above written.
LASIK AMERICA, INC.
By:_______________________________
Robert Helmer, Chief Operating Officer
ACCEPTED AND AGREED TO: HOLDER
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Name: Address: Social Security/Tax I.D. No.:
Howard P. Silverman
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[FORM OF WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES
ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i)
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT") (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY
SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS
AVAILABLE. EXERCISABLE FROM THE EFFECTIVE DATE UNTIL 5:30 P.M., NEW YORK TIME,
FIVE YEARS (5) AFTER THE EFFECTIVE DATE.
WARRANT CERTIFICATE
This Warrant Certificate certifies that or his/her registered assigns
("Holder"), is the registered Holder of 125,000 Warrants to purchase initially
at any time commencing six months after the Effective Date, until 5:30 p.m. New
York time, five (5) years after the Effective Date ("Expiration Date"), up to
125,000 fully-paid and non-assessable shares of common stock, par value $.001
per share ("Common Shares") of LASIK AMERICA, INC., a Nevada corporation (the
"Company"), at an initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), equal to $7.20 per Common Share, upon surrender
of this Warrant Certificate and payment of the initial exercise price at an
office or agency of the Company, but subject to the conditions set forth herein
and in the Warrant Agreement dated as of the date hereof between the Company and
Silverman (the "Warrant Agreement"). Payment of the Exercise Price shall be made
by certified check or official bank check in New York Clearing House funds
payable to the order of the Company, unless exercise is made pursuant to Section
4.2 of the Warrant Agreement. No Warrant may be exercised after 5:30 p.m., New
York time, on the Expiration Date, at which time all Warrants evidenced hereby,
unless exercised prior thereto, shall thereafter be void. The Warrants evidenced
by this Warrant Certificate are part of a duly authorized issue of Warrants
issued pursuant to a certain Warrant Agreement, which Warrant Agreement is
hereby incorporated by reference in and made a part of this instrument and is
hereby referred to for a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Company and the Holder (the
word "Holder" meaning the registered Holder) of the Warrants. The Warrant
Agreement provides that upon the occurrence of certain events, the Exercise
Price and the type and/or number of the Company's securities issuable thereupon
may, subject to certain conditions, be adjusted. In such event, the Company
will, at the request of the Holder, issue a new Warrant Certificate evidencing
the adjustment in the Exercise Price and the number and/or type of securities
issuable upon the exercise of the Warrants; provided, however, that the failure
of the Company to issue such new Warrant Certificate shall not in any way
change, alter, or otherwise impair, the rights of the Holder as set forth in the
Warrant Agreement. Upon due presentment for registration of transfer of this
Warrant Certificate at an office or agency of the Company, a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
exchange for this Warrant Certificate, subject to the limitations provided
herein and in the Warrant Agreement, without any charge except for any tax or
other governmental charge imposed in connection with such transfer. Upon the
exercise of less than all of the Warrants evidenced by this Certificate, the
Company shall forthwith issue to the Holder hereof a new Warrant Certificate
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representing such number of unexercised Warrants. The Company may deem and treat
the registered Holder(s) hereof as the absolute owner(s) of this Warrant
Certificate (notwithstanding any notation of ownership or other writing hereon
made by anyone), for the purpose of any exercise hereof, and of any distribution
to the Holder(s) hereof, and for all other purposes, and the Company shall not
be affected by any notice to the contrary. All terms used in this Warrant
Certificate which are defined in the Warrant Agreement shall have the meanings
assigned to them in the Warrant Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed.
Dated as of August 24, 2001.
LASIK AMERICA, INC.
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By: Robert S. Helmer
Chief Operating Officer
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[FORM OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase _______ Common Shares and
herewith tenders in payment for such securities a certified check or official
bank check payable in New York Clearing House Funds to the order of LASIK
AMERICA, INC. in the amount of $_____, all in accordance with the terms of
Section 4 of the Warrant Agreement dated as of ____________, 2001, between LASIK
AMERICA, INC. and the undersigned (or its assignor). The undersigned requests
that a certificate for such securities be registered in the name of __________
whose address is __________ and that such Certificate be delivered to whose
address is _________.
Dated:
Signature _________________________________
(Signature must conform in all respects to name of Holder as specified on the
face of the Warrant Certificate.) (Insert Social Security or Other Identifying
Number of Holder)
[FORM OF ASSIGNMENT]
(To be executed by the registered Holder if such Holder desires to
transfer the Warrant Certificate.)
FOR VALUE RECEIVED ________________ hereby sells, assigns and transfers
unto (Please print name and address of transferee) this Warrant Certificate,
together with all right, title and interest therein, and does hereby irrevocably
constitute and appoint Attorney, to transfer the within Warrant Certificate on
the books of the within-named Company, with full power of substitution.
Dated: ________________
Signature:________________________ SSN:__________________________
(Signature must conform in all respects to name of Holder as specified on the
face of the Warrant Certificate.) (Insert Social Security or Other Identifying
Number of Assignee)
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