THIS WARRANT AND THE SECURITIES REPRESENTED BY THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE
SECURITIES ACT OF ANY STATE AND MAY NOT BE SOLD OR TRANSFERRED
UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACTS COVERING THIS WARRANT AND THE SECURITIES REPRESENTED BY
THIS WARRANT OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACTS.
NUWAY MEDICAL, INC.
FORM OF WARRANT TO PURCHASE COMMON STOCK
Issued: XXXX, 2005
WARRANT NO. XXXX
THIS CERTIFIES THAT, for value received, XXXXXXX, an individual (the
"Holder"), is entitled to subscribe for and purchase from NUWAY MEDICAL, INC., a
corporation organized under the laws of the state of Delaware (the "Company"),
subject to Section 1(b) hereof, commencing at the time periods prescribed herein
and ending at 5:00 p.m. California on January 31, 2008, XXXX shares (the
"Shares") of common stock, par value, $0.00067, of the Company (the "Common
Stock"). The exercise price for each Share subject to this Warrant (the "Warrant
Price") is equal to $0.05. The number of Shares and the Warrant Price are
subject to adjustment from time to time as provided in Section 4 of this
Warrant.
This Warrant is issued in connection with and as consideration for the
Convertible Note dated the date hereof and issued by the Company in favor of the
Holder, which Convertible Note has been issued pursuant the Holder's investment
in the Company.
1. Method of Exercise; Payment; Issuance of New Warrant. (a) The purchase
right represented by this Warrant may be exercised by the Holder, in whole or in
part, subject to the limitation set forth below, and from time to time, by (i)
the surrender of this Warrant (with a notice of exercise in the form attached
hereto as Exhibit A, duly executed) at the principal office of the Company and
(ii) the payment to the Company, by check or wire transfer of funds to an
account specified in writing by the Company, of an amount equal to the aggregate
Warrant Price. The Shares so purchased, representing the aggregate number of
shares specified in the executed Exhibit A, shall be delivered to the Holder
within a reasonable time, not exceeding ten (10) business days, after this
Warrant shall have been so exercised. Upon receipt by the Company of this
Warrant at the office of the Company, in proper form for exercise and
accompanied by the amount equal to the aggregate Warrant Price, the Holder shall
be deemed to be the holder of record of the Shares issuable upon such exercise,
notwithstanding that the stock transfer books of the Company shall then be
closed or that certificates representing such Shares shall not then be actually
delivered to the Holder.
(b) Notwithstanding anything else herein to the contrary, the Holder
shall not have the right, and the Company shall not have the obligation, to
exercise all or any portion of this Warrant, unless and until each of the
following events has first occurred: (i) the Company's stockholders have
approved an increase in the number of shares of common stock authorized by the
Company's Certificate of Incorporation in an amount not less than the amount
required to permit all warrants issued in this series to be converted into
shares of the Company's Common Stock as provided herein, at a validly held
meeting of stockholders at which a quorum is present and acting throughout; and
(ii) the Company has filed with the Secretary of State of State of Delaware a
Certificate of Amendment to the Company's Certificate of Incorporation to amend
its Certificate of Incorporation to increase the number of shares of common
stock authorized by the Company's Certificate of Incorporation.
(c) If this Warrant shall have been exercised only in part, the
Company shall, at the time of delivery of such Shares, deliver to the Holder a
new Warrant evidencing the right to purchase the remaining Shares called for by
this Warrant, which new Warrant shall in all other respects be identical with
this Warrant, or, at the request of Holder, appropriate notation may be made on
this Warrant which shall then be returned to Holder.
2. Stock Fully Paid; Reservation of Shares. 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 preemptive rights, taxes,
liens and charges with respect to the issue thereof; provided, however, that the
Company shall not be required to pay any transfer taxes with respect to the
issue of shares in any name other than that of the registered holder hereof.
During the period within which the rights represented by this Warrant may be
exercised, the Company will at all times have authorized, and reserved for the
purpose of the issue upon exercise of the purchase rights evidenced by this
Warrant, a sufficient number of shares of Common Stock to provide for the
exercise of the rights represented by this Warrant. The Company shall at all
times take all such action and obtain all such permits or orders as may be
necessary to enable the Company lawfully to issue such Common Stock as duly and
validly issued, fully paid and nonassessable shares upon exercise in full of
this Warrant.
3. Fractional Shares. No fractional shares of Common Stock will be issued
in connection with any exercise hereunder, but in lieu of such fractional shares
the Company shall make a cash payment therefor upon the basis of the Fair Market
Value of such Shares.
4. Adjustment. This Warrant shall be subject to adjustment from time to
time upon the occurrence of certain events, as follows:
(a) Adjustment for Stock Splits and Combinations. If the Company
shall at any time or from time to time after the date hereof effect a
subdivision of the outstanding Common Stock, the Warrant Price then in effect
immediately before that subdivision shall be proportionately decreased. If the
Company shall at any time or from time to time after the date hereof combine the
outstanding Common Stock, the Warrant Price then in effect immediately before
the combination shall be proportionately increased. Any adjustment under this
subsection shall become effective at the close of business on the date the
subdivision or combination becomes effective.
(b) Adjustment for Certain Dividends and Distributions. In the event
the Company at any time or from time to time after the date hereof shall make or
issue a dividend or other distribution payable in additional shares of Common
Stock, then and in each such event the Warrant Price shall be decreased as of
the time of such issuance, by multiplying the Warrant Price by a fraction:
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(x) the numerator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the
time of such issuance; and
(y) the denominator of which shall be the total number of shares
of Common Stock issued and outstanding immediately prior to
the time of such issuance plus the number of shares of Common
Stock issuable in payment of such dividend or distribution.
(c) Adjustment of Number of Shares. Upon each adjustment of the
Warrant Price pursuant to either Section 4(a) or 4(b) of this Warrant, the
number of shares of Common Stock purchasable upon exercise of this Warrant shall
be adjusted to the number of shares of Common Stock, calculated to the nearest
one hundredth of a share, obtained by multiplying the number of shares of Common
Stock purchasable immediately prior to such adjustment upon the exercise of the
Warrant by the Warrant Price in effect prior to such adjustment and dividing the
product so obtained by the new Warrant Price.
(d) Adjustment for Reclassification, Exchange and Substitution. If
the Common Stock issuable upon the exercise of this Warrant are changed into the
same or different number of shares of any class or classes of stock, whether by
recapitalization, reclassification or otherwise (other than a subdivision or
combination provided for in Section 4(a) above, a dividend or distribution
provided for in Section 4(b) above, or a reorganization, merger, consolidation
or sale of assets, provided for in Section 4(e) below), then and in any such
event the Holder shall have the right thereafter to exercise this Warrant into
the kind and amount of stock and other securities receivable upon such
recapitalization, reclassification or other change, by holders of the number of
shares of Common Stock for which this Warrant might have been exercised
immediately prior to such recapitalization, reclassification or change.
(e) Reorganization, Mergers, Consolidations or Sales of Assets. If
at any time or from time to time there is a capital reorganization of the Common
Stock (other than a subdivision or combination provided for in Section 4(a)
above, a dividend or distribution provided for in Section 4(b) above, or a
reclassification or exchange of shares provided for in Section 4(d) above) or a
merger or consolidation of the Company with or into another entity, or a sale of
all or substantially all of the Company's properties and assets to any other
person or entity, then, as a part of such reorganization, merger, consolidation
or sale, provision shall be made so that the Holder shall thereafter be entitled
to receive upon exercise of this Warrant the number of shares of stock or other
securities, money or property of the Company, or of the successor entity
resulting from such merger or consolidation or sale, to which a holder of Common
Stock deliverable upon conversion would have been entitled on such capital
reorganization, merger, consolidation, or sale. The Company shall not effect any
reorganization, merger, consolidation or sale unless prior to the consummation
thereof each entity or person (other than the Company) that may be required to
deliver any cash, securities or other property upon the exercise of this Warrant
shall assume, by written instrument delivered to the Holder, the obligation to
deliver to the Holder such cash, securities or other property as in accordance
with the foregoing provisions the Holder may be entitled to receive. The
foregoing provisions of this Section 4(e) shall similarly apply to successive
reorganizations, mergers, consolidations and sales.
(f) No Impairment. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company but will at all
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times in good faith assist in the carrying out of all the provisions of this
Section and in the taking of all such action as may be necessary or appropriate
in order to protect the conversion rights of the Holder against dilution or
other impairment. Without limiting the generality of the foregoing, the Company
will not issue any capital stock of any class which is preferred as to dividends
or as to the distribution of assets upon the voluntary or involuntary
dissolution, liquidation or winding up of the Company.
(g) Notice of Adjustments. Whenever this Warrant shall be adjusted
pursuant to this Section 4, the Company shall make a certificate signed by an
officer of the Company setting forth, in reasonable detail, the event requiring
the adjustment, the amount of the adjustment, the method by which such
adjustment was calculated, and the new Warrant Price and the type or the number
of Shares purchasable after giving effect to such adjustment, and shall cause
copies of such certificate to be mailed (by first class mail, postage prepaid)
to the Holder.
5. The Company's Obligation to Make Payments.
(a) Dividends and Distributions. In the event the Company at any
time or from time to time after the date hereof shall make or issue a dividend
or other distribution, whether payable in cash, securities or other property of
the Company, with respect to any of its capital stock for which an adjustment is
not made pursuant to Section 4 of this Warrant, then and in each such event, the
Company shall concurrently make a cash payment to the Holder equal to the
product of (i) the quotient obtained by dividing (x) the amount of cash plus the
fair value of any property or securities distributed by (y) the number of shares
of Common Stock outstanding on the record date for such dividend or distribution
and (ii) the number of Shares on such record date.
(b) Redemption of Capital Stock. In the event the Company at any
time or from time to time after the date hereof shall repurchase or redeem any
of its capital stock or any rights, including without limitation, options,
warrants or other convertible or exchangeable securities, to acquire such
capital stock, then and in each such event, the Company shall concurrently make
a cash payment to the Holder equal to the product of (i) the quotient obtained
by dividing (x) the aggregate amount of cash and the aggregate fair value of any
property paid out by the Company in connection with any such repurchase or
redemption by (y) the number of shares of Common Stock outstanding on a fully
diluted basis immediately after such repurchase or redemption and (2) the number
of Shares.
6. Notice of Record Date. In the event:
(1) that the Company declares a dividend (or any other
distribution) on any of its capital stock (including without
limitation, its Common Stock);
(2) that the Company repurchases or redeems any of its capital
stock (including without limitation, its Common Stock) or any
rights to acquire such capital stock;
(3) that the Company subdivides or combines its outstanding shares
of Common Stock;
(4) of any reclassification of the Common Stock, or of any
consolidation, merger or share exchange of the Company into or
with another entity, or of the sale of all or substantially
all of the assets of the Company;
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(5) of the involuntary or voluntary dissolution, liquidation or
winding up of the Company; or
(6) of any offer of its Common Stock or any rights to acquire such
Common Stock for consideration paid per share of Common Stock
less than the Warrant Price then in effect.
then the Company shall notify the Holder at least 30 days prior to the date
specified in (A), (B) or (C) below, in writing stating:
(A) the record date of such dividend, distribution, repurchase,
redemption, subdivision or combination, or, if a record is not to be
taken, the date as to which the holders of Common Stock of record to be
entitled to such dividend, distribution, repurchase, redemption,
subdivision or combination are to be determined;
(B) the date on which such reclassification, consolidation, merger,
share exchange, sale, dissolution, liquidation or winding up is expected
to become effective, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, dissolution or winding up;
or
(C) the date on which such offering of its Common Stock or any
rights to acquire such Common Stock for consideration paid per share of
Common Stock less than the Warrant Price is expected to become
consummated.
7. Compliance with Securities Act; Disposition of Warrant or Common Stock.
(a) Compliance with Securities Act. The Holder, by acceptance
hereof, agrees that this Warrant and the Shares to be issued upon exercise
hereof are being acquired for investment and that such Holder will not offer,
sell or otherwise dispose of this Warrant or any Common Stock to be issued upon
exercise hereof except under circumstances which will not result in a violation
of the Securities Act of 1933, as amended (the "Act"). All Shares issued upon
exercise of this Warrant (unless registered under the Act or sold or transferred
pursuant to Rule 144 promulgated under the Act) shall be stamped or imprinted
with a legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 OR THE SECURITIES ACTS OF ANY STATE AND MAY NOT BE SOLD
OR TRANSFERRED UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACTS COVERING THIS SECURITY OR PURSUANT TO
AN EXEMPTION FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SUCH ACTS."
(b) Disposition of Warrant or Shares. Subject to the terms and
conditions of this Warrant and applicable securities laws, this Warrant and the
rights represented by this Warrant may be transferred, assigned or pledged, in
whole or in part with prior written notice to the Company. Any transfer shall be
accompanied by the Notice of Transfer form attached hereto as Exhibit B.
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8. Rights as Shareholders. The Holder shall not, by virtue hereof, be
entitled to any rights of a shareholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in this Warrant and
are not enforceable against the Company except to the extent set forth herein.
9. Representations and Warranties. The Company represents and warrants to
the Holder as follows:
(a) This Warrant has been duly authorized and executed by the
Company and is a valid and binding obligation of the Company enforceable in
accordance with its terms;
(b) The Shares have been duly authorized and reserved for issuance
by the Company and, when issued in accordance with the terms hereof, will be
validly issued, fully paid and nonassessable;
(c) The rights, preferences, privileges and restrictions granted to
or imposed upon the Shares and the holders thereof are as set forth in the
Company's Certificate of Incorporation;
(d) The execution and delivery of this Warrant are not, and the
issuance of the Shares upon exercise of this Warrant in accordance with the
terms hereof will not be, inconsistent with the Company's Articles of
Incorporation or by-laws, do not and will not contravene any law, governmental
rule or regulation, judgment or order applicable to the Company, and, except for
consents that have already been obtained by the Company, do not and will not
conflict with or contravene any provision of, or constitute a default under, any
indenture, mortgage, contract or other instrument of which the Company is a
party or by which it is bound or require the consent or approval of, the giving
of notice to, the registration with or the taking of any action in respect of or
by, any federal, state or local government authority or agency or other person;
and
10. Modification and Waiver. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
11. Notices. Except as otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
telegraphic, telex, telecopier or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered to the applicable party at its address
specified opposite its signature below, or at such other address as shall be
designated by such party in a written notice to the other. All such notices and
communications shall, when mailed, telegraphed, telexed, telecopied or cabled or
sent by overnight courier, be effective when deposited in the mails, delivered
to the telegraph company, cable company or overnight courier, as the case may
be, or sent by telex or telecopier.
12. Descriptive Headings. The descriptive headings of the several sections
of this Warrant are inserted for convenience only and do not constitute a part
of this Warrant.
13. Governing Law. THIS WARRANT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF CALIFORNIA.
14. Binding Effect on Successors. This Warrant shall be binding upon any
entity succeeding the Company by merger, consolidation or acquisition of all or
substantially all of the Company's assets, and all of the obligations of the
Company relating to the Common Stock issuable upon the exercise of this Warrant
shall survive the exercise, and termination of this Warrant and all of the
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covenants and agreements of the Company shall inure to the benefit of the
successors and assigns of the Holder.
15. Severability. In case any one or more of the provisions contained in
this Warrant shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. The parties shall
endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions, the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
16. Lost Warrants or Stock Certificates. The Company covenants to the
Holder that upon receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction, or mutilation of this Warrant or any stock
certificate and, in the case of any such loss, theft or destruction, upon
receipt of an indemnity reasonably satisfactory to the Company, or in the case
of any such mutilation upon surrender and cancellation of such Warrant or stock
certificate, the Company will make and deliver a new Warrant or stock
certificate, of like tenor, in lieu of the lost, stolen, destroyed or mutilated
Warrant or stock certificate.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed and
delivered by its duly authorized officer on the day and year first above
written.
NUWAY MEDICAL, INC.
By:
-------------------------------------
Name: Dennis Calvert, President
Address: 2603 Main Street, Suite 1155
Irvine, California 92614
Attention: Dennis Calvert
Facsimile: 949 666-7297
ACKNOWLEDGED AND ACCEPTED:
XXXXX
By:
-----------------------
Name:
Title:
Address:
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EXHIBIT A
NOTICE OF EXERCISE
TO: NUWAY MEDICAL, INC.
(1) The undersigned hereby elects to purchase __________ shares of Common
Stock of NUWAY MEDICAL, INC. pursuant to the terms of the attached Warrant, and,
unless such Warrant allows the exercise to be "cashless," tenders herewith
payment of the Warrant Price for such shares in full.
(2) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
-------------------------------------
(Name)
-------------------------------------
(Name)
(3) Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of the undersigned or in such other name as is specified
below:
-------------------------------------
(Name)
-------------------------------------
(Name)
-------------------------------------
(Signature)
-------------------------------------
(Date)
EXHIBIT B
NOTICE OF TRANSFER
(To be signed only upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________________________________ the right represented by the
attached Warrant to purchase __________ shares of the Common Stock of NUWAY
MEDICAL, INC., to which the attached Warrant relates, and appoints
_____________________ as Attorney to transfer such right on the books of NUWAY
MEDICAL, INC., with full power of substitution in the premises.
Dated:
------------------------
--------------------------------------
(Signature must conform in all
respects to the name of the Holder as
specified on the face of the Warrant)
--------------------------------------
--------------------------------------
(Address)
Signed in the presence of:
----------------------------