Exhibit 2.5
YORK MEDICAL INC.
- WARRANT CERTIFICATE -
For value received, York Medical Inc. (the "COMPANY") hereby grants to
BioStar Inc. (the "WARRANT HOLDER") 37,500 warrants (the "BIOSTAR WARRANTS").
Subject to the terms and conditions set forth in herein (the "WARRANT
AGREEMENT"), each BioStar Warrant shall entitle the holder thereof to purchase
from the Company, subject to adjustment as provided herein, one fully paid and
non-assessable common share (a "COMMON SHARE") of the Company. The BioStar
Warrants may be exercised in accordance with and subject to the provisions
hereof, in whole or in part, at any time and from time to time, ninety days
following the date hereof and prior to the Time of Expiry (as defined below) at
an exercise price of $9.00 per Common Share (the "SUBSCRIPTION PRICE"). The
number of Common Shares which the Warrant Holder is entitled to acquire upon
exercise of the BioStar Warrants (and the Subscription Price per Common Share)
are subject to adjustment as hereinafter provided.
For the purpose of this BioStar Warrant certificate "TIME OF EXPIRY"
means 5:00 p.m. (Toronto time) on the date which is the fifth anniversary date
of the date hereof.
1. EXERCISE OF BIOSTAR WARRANTS
(a) Election to Purchase. Subject to provisions hereof, the BioStar
Warrants may be exercised by the Warrant Holder, in whole or in part,
from time to time, and in accordance with the provisions hereof by
delivery of:
(i) an Election to Purchase, in substantially the form attached
hereto as Exhibit 1, duly completed and executed; and
(ii) a certified cheque, bank draft or cash in an amount equal to
the aggregate Subscription Price to acquire the number of
Common Shares specified in the Election to Purchase,
to the Company at the principal offices of the Company at 5045 Orbitor
Drive, Bldg. 11, Suite 400, Mississauga, Ontario, Canada, L4W 4Y4, or
such other address in Canada as the Warrant Holder may be notified of
in writing by the Company (the "COMPANY OFFICE") at any time prior to
the Time of Expiry.
In case of the purchase of less than all the Common Shares purchasable
under the BioStar Warrants, the Warrant Holder shall be entitled to
receive a new BioStar Warrant certificate in respect of BioStar
Warrants not then exercised.
(b) Exercise. The Company shall, on the day (being any day other than a
Saturday, Sunday or statutory holiday in the City of Toronto, Ontario)
(the "EXERCISE DATE") it receives:
(i) a duly completed and executed Election to Purchase; and
(ii) the aggregate Subscription Price, in the manner set out in
Paragraph 1(a) hereof, for the number of Common Shares
specified in the Election to Purchase,
issue that number of Common Shares specified in the Election to
Purchase as fully paid and non-assessable shares of the Company. Such
duly executed Election to Purchase shall constitute the Warrant
Holder's acknowledgment of and undertaking to comply to the
satisfaction of the Company and its counsel, acting reasonably, with
all applicable laws, rules, regulations and policies of each applicable
exchange upon which the Common Shares may from time to time be listed
or traded, and any other applicable regulatory authorities.
(c) Certificates. As promptly as practicable after the Exercise Date,
and in any event not later than three business days thereafter, the
Company shall deliver to the Warrant Holder, registered in such name or
names as the Warrant Holder may direct or, if no such direction has
been given, in the name of the Warrant Holder, a certificate or
certificates for the number of Common Shares corresponding to the
number of Common Shares specified in the Election to Purchase and
issued hereunder. To the extent permitted by law, such exercise shall
be deemed to have been effected as of the close of business on the
Exercise Date and, at such time, the rights of the Warrant Holder with
respect to the portion of the BioStar Warrants which have been
exercised as such shall cease and the person or persons in whose name
or names any certificate or certificates for Common Shares shall then
be issuable upon such exercise shall be deemed to have become the
holder or holders of record of the Common Shares represented thereby.
(d) Fractional Shares. No fractional shares shall be issued upon
exercise of the BioStar Warrants and no payment or adjustment shall be
made upon any exercise on account of any cash dividends accrued on the
Common Shares issued upon such exercise.
(e) Corporate Changes. If, at any time after the Closing Date, the
Company shall be a party to any reorganization, merger, amalgamation,
dissolution or sale of all or substantially all of its assets, whether
or not the Company is the surviving entity, (the "ADJUSTING EVENT") the
BioStar Warrants shall be adjusted so as to apply to the securities to
which the holder of that number of Common Shares subject to the
unexercised portion of the BioStar Warrants would have been entitled by
reason of such reorganization, merger, amalgamation, dissolution or
sale of all or substantially all of its assets, and the Subscription
Price shall be adjusted to be the amount determined by multiplying the
Subscription Price in effect immediately prior to the Adjusting Event
by the number of Common Shares subject to the unexercised portion of
the BioStar Warrants immediately prior to the Adjusting Event and
dividing the product thereof by the number of securities to which the
holder of that number of Common Shares subject to the unexercised
portion of the BioStar Warrants would have been entitled by reason of
such Adjusting Event.
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(f) Subdivision or Consolidation of Common Shares
(i) If, at any time after the Closing Date, the Company subdivides
its outstanding Common Shares into a greater number of Common
Shares, the Subscription Price in effect immediately prior to
such subdivision shall be proportionately reduced and,
conversely, if the outstanding Common Shares are consolidated
into a smaller number of Common Shares, the Subscription Price
in effect immediately prior to such consolidation shall be
proportionately increased.
(ii) Upon each adjustment of the Subscription Price as provided
herein, the Warrant Holder shall thereafter be entitled to
acquire, at the Subscription Price resulting from such
adjustment, the number of Common Shares (calculated to the
nearest whole Common Share) obtained by multiplying the
Subscription Price in effect immediately prior to such
adjustment by the number of Common Shares which may be
acquired hereunder immediately prior to such adjustment and
dividing the product thereof by the Subscription Price
resulting from such adjustment.
(g) Change or Reclassification of Common Shares. If, at any time after
the Closing Date, the Company changes or reclassifies its outstanding
Common Shares into a different class of securities, the BioStar
Warrants shall be adjusted as follows so as to apply to the successor
class of securities:
(i) the number of the successor class of securities which the
Warrant Holder shall be entitled to acquire shall be that
number of the successor class of securities which a holder of
that number of Common Shares subject to the unexercised
portion of the BioStar Warrants immediately prior to the
change or reclassification would have been entitled to by
reason of such change or reclassification; and
(ii) the Subscription Price shall be determined by multiplying the
Subscription Price in effect immediately prior to the change
or reclassification by the number of Common Shares subject to
the unexercised portion of the BioStar Warrants immediately
prior to the change or reclassification, and dividing the
product thereof by the number of shares determined in clause
2(g)(i) hereof.
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(h) Additional Subscriptions. If, at any time after the Closing Date,
the Company shall issue rights, options or warrants (the "RIGHTS") to
all of its shareholders under which such holders are entitled, during a
period expiring not more than 45 days after the record date for such
issue, to subscribe for or purchase Common Shares, or securities
exchangeable for or convertible into Common Shares, at a price per
share to the holder (or at an exchange or conversion price per share at
the date of issue of the securities to the holder in the case of
securities exchangeable for or convertible into Common Shares) of less
than 95% of the Fair Market Value (as hereinafter defined) for the
Common Shares on such record date, the Subscription Price shall be
adjusted immediately after such record date so that it shall equal the
price determined by multiplying the Subscription Price in effect on
such record date by a fraction, of which the numerator shall be the
total number of Common Shares outstanding on such record date plus the
number arrived at by dividing the aggregate price of the total number
of additional Common Shares offered for subscription or purchase (or
the aggregate conversion or exchange price of the convertible or
exchangeable securities so offered) by such Fair Market Value, and of
which the denominator shall be the total number of Common Shares
outstanding on such record date plus the total number of additional
Common Shares offered for subscription or purchase (or into which the
convertible or exchangeable securities so offered are convertible or
exchangeable); any Common Shares owned by or held for the account of
the Company or any associate or affiliate (as such terms are defined in
the Business Corporations Act (Ontario)) of the Company shall be deemed
not to be outstanding for the purpose of any such computation; such
adjustment shall be made successively whenever such a record date is
fixed; to the extent that any such rights, options or warrants are not
so issued or any such rights, options or warrants are not exercised
prior to the expiration thereof, the Subscription Price shall then be
re-adjusted to the Subscription Price which would then be in effect if
such record date had not been fixed or to the Subscription Price which
would then be in effect based upon the number of Common Shares (or
securities convertible into or exchangeable for Common Shares) actually
issued upon the exercise of such rights, options or warrants, as the
case may be.
(i) Carry Over of Adjustments. No adjustment of the Subscription Price
shall be made if the amount of such adjustment shall be less than 1% of
the Subscription Price in effect immediately prior to the event giving
rise to the adjustment; provided, however, that in such case any
adjustment that would otherwise be required then to be made shall be
carried forward and shall be made at the time of and together with the
next subsequent adjustment which, together with any adjustment so
carried forward, shall amount to at least 1% of the Subscription Price.
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(j) Notice of Adjustment. Upon any adjustment of the number of Common
Shares subject to the BioStar Warrants and upon any adjustment of the
Subscription Price, then and in each case the Company shall give
written notice thereof to the Warrant Holder, which notice shall state
the Subscription Price and the number of Common Shares or other
securities subject to the unexercised portion of the BioStar Warrants
resulting from such adjustment, and shall upon receipt of the written
request of the Warrant Holder set forth in reasonable detail the method
of calculation and the facts upon which such calculation is based. Upon
the request of the Warrant Holder, and at its expense, the Company
shall obtain a statement of the Company's auditors to the effect that
such firm concurs with the Company's calculation of the adjustment.
(k) Other Notices. If, at any time after the Closing Date:
(i) the Company shall declare any dividend upon its Common Shares
payable in shares or other securities of the Company;
(ii) the Company shall offer for subscription pro rata to the
holders of its Common Shares any additional shares of any
class or other rights;
(iii) there shall be any capital reorganization or reclassification
of the capital stock of the Company, or consolidation,
amalgamation or merger of the Company with, or sale of all or
substantially all of its assets to, another corporation; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Company,
then, in any one or more of such cases, the Company shall give to the
Warrant Holder:
(i) at least 20 days' written notice prior to the record date for
such dividend, distribution or subscription rights or for
determining rights to vote in respect of any such
reorganization, reclassification, consolidation, merger,
amalgamation, sale, dissolution, liquidation or winding-up;
and
(ii) in the case of any such reorganization, reclassification,
consolidation, merger, amalgamation, sale, dissolution,
liquidation or winding-up, at least 20 days' prior written
notice of the date when the same shall take place.
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Such notice in accordance with the foregoing shall also specify:
(i) in the case of any such dividend, distribution or subscription
rights, the date on which the holders of Common Shares shall
be entitled thereto, and such notice in accordance with the
foregoing; and
(ii) the date on which the holders of Common Shares shall be
entitled to exchange their Common Shares for securities or
other property in connection with the reorganization,
reclassification, consolidation, merger, amalgamation, sale,
dissolution, liquidation or winding-up, as the case may be.
(l) Common Shares to be Reserved. The Company will at all times keep
available, and reserve if necessary, out of its authorized Common
Shares, solely for the purpose of issue upon the exercise of the
BioStar Warrants, such number of Common Shares as shall then be
issuable upon the exercise of the BioStar Warrants. The Company
covenants and agrees that all Common Shares which shall be so issuable
will, upon issuance, be duly authorized and issued as fully paid and
non-assessable. The Company will take all such actions as may be
possible to ensure that all such Common Shares may be so issued without
violation of any applicable requirements of any applicable exchange
upon which the Common Shares of the Company may be listed or traded or
in respect of which the Common Shares are qualified for unlisted
trading privileges. The Company will take all such actions as are
within its power to ensure that all such Common Shares may be so issued
without violation of any applicable law. The issuance of certificates
for Common Shares upon the exercise of the BioStar Warrants shall be
made without charge to the Warrant Holder.
(m) Listing. The Company will, at its expense and as expeditiously as
possible, use its best efforts to cause all Common Shares issuable upon
the exercise of the BioStar Warrants to be duly listed on all
applicable exchanges on which the Company's Common Shares are then
trading immediately prior to the issuance of such shares.
(n) Fair Market Value. For the purpose of this BioStar Warrant
certificate, the "Fair Market Value" at any date shall be the weighted
average sale price per Common Share (or, as applicable, other
securities) of the Company for any 20 consecutive trading days
(selected by the Company) commencing not more than 25 trading days
before such date on The Toronto Stock Exchange or, if the Common Shares
(or, as applicable, other securities) in respect of which a
determination of Fair Market Value is being made are not listed on The
Toronto Stock Exchange, on any stock exchange on which the Common
Shares are listed or, if the Common Shares (or, as applicable, other
securities) are not listed on any stock exchange, then in any
over-the-counter market or, if the Common Shares (or, as applicable,
other securities) are not traded in any over-the-counter market, the
Fair Market Value shall be determined by the Company's auditors, on the
basis of the highest price available for the Common Shares in an open
and unrestricted market between informed and prudent parties, acting at
arm's length and under no compulsion to act, expressed in terms of
cash, which determination shall, absent manifest error, be conclusive.
The weighted average sale price shall be determined by dividing the
aggregate sale price of all Common Shares sold on such exchange or
market, as the case may be, during such 20 consecutive trading days by
the total number of Common Shares or, as applicable, other securities
so sold.
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2. NO TRANSFER
The BioStar Warrants are non-assignable and non-transferable by the
Warrant Holder.
3. REPLACEMENT
Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of this BioStar Warrant certificate and, if
requested by the Company, upon delivery of a bond of indemnity satisfactory to
the Company (or, in the case of mutilation, upon surrender of the BioStar
Warrant certificate), the Company will issue to the Warrant Holder a replacement
warrant certificate (containing the same terms and conditions as this BioStar
Warrant certificate).
4. EXPIRY DATE
The BioStar Warrants shall expire and all rights to purchase Common
Shares hereunder shall cease and become null and void at the Time of Expiry.
5. INABILITY TO DELIVER SHARES
If for any reason, other than the failure or default of the Warrant
Holder, the Company is unable to issue and deliver the Common Shares or other
securities contemplated herein to the Warrant Holder upon the proper exercise by
the Warrant Holder of the option to purchase any of the Common Shares covered by
the BioStar Warrants, the Company shall pay, at the option of the Warrant Holder
and in complete satisfaction of the Company's obligations hereunder, to the
Warrant Holder, in cash, an amount equal to the difference between the
Subscription Price and the Fair Market Value of such Common Shares or other
securities calculated as of the Exercise Date, within 30 days of being requested
to do so in writing by the Warrant Holder, in accordance with the provisions
hereof.
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6. GOVERNING LAW
The laws of the Province of Ontario and the federal laws of Canada
applicable therein shall govern this BioStar Warrant certificate.
7. CONFLICT
The Warrant Holder hereby acknowledges that upon any conflict between
the terms of the Agency Agreement and this BioStar Warrant certificate, the
terms of this BioStar Warrant certificate shall govern.
8. SUCCESSORS
Subject to the terms hereof, the BioStar Warrants shall enure to the
benefit of and shall be binding upon the Warrant Holder and the Company and
their respective successors.
IN WITNESS WHEREOF the Company has caused this BioStar Warrant
certificate to be signed by its duly authorized officers.
DATED this 15th day of September, 2000.
YORK MEDICAL INC.
Per: ______________________________________
Authorized Signing Officer
AGREED AND ACCEPTED this day of , 2000.
BIOSTAR INC.
Per: ______________________________________
Authorized Signing Officer
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EXHIBIT 1
ELECTION TO PURCHASE
Capitalized terms used herein have the meanings ascribed thereto in the
certificate representing the warrants executed by York Medical Inc. (the
"COMPANY") in favour of BioStar Inc. (the "WARRANT HOLDER") dated September 15,
2000.
The undersigned Warrant Holder hereby irrevocably elects to exercise
the BioStar Warrants granted by the Company pursuant to the BioStar Warrant
certificate for the number of Common Shares (or other property or securities
contemplated in the BioStar Warrant certificate) as set forth below:
(a) Number of shares to be acquired
(b) Subscription Price (per share) $4.50
(c) Aggregate Subscription Price [(a)
multiplied by (b)] $
The Warrant Holder hereby tenders a certified cheque, bank draft or cash for
such aggregate Subscription Price and directs such Common Shares to be
registered and certificates therefor to be issued as directed below.
DATED this day of , .
Per:______________________________
Name:
Title:
Direction as to Registration
Name of Registered Holder:
Address of Registered Holder:
[ ] PLEASE CHECK THIS BOX IF THE CERTIFICATES REPRESENTING THESE SECURITIES
ARE TO BE DELIVERED AT THE OFFICE OF THE COMPANY, FAILING WHICH THE
CERTIFICATES WILL BE MAILED TO THE ADDRESS(ES) SET FORTH ABOVE.
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