THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF
UNDER SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS
THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE COMPANY AND ITS COUNSEL AND FROM ATTORNEYS REASONABLY
ACCEPTABLE TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED.
HEALTHRENU MEDICAL, INC.
WARRANT
This Warrant is issued in connection with that certain Promissory Note
(the "Note") issued by HEALTHRENU MEDICAL, INC., a Nevada corporation (the
"Company") in favor of Paul Cartmell (the "Investor"). Capitalized terms used
herein, but not otherwise defined, shall have the meaning given to them in the
Note.
THIS CERTIFIES THAT, for value received, the Investor, or its registered
assigns is entitled to purchase from the Company at any time or from time to
time during the period specified in Paragraph 2 hereof FOUR HUNDRED THOUSAND
(400,000) fully paid and nonassessable shares of the Company's Common Stock,
$0.001 par value per share (the "Common Stock"), at an exercise price per share
equal to $0.05 (the "Exercise Price").
The term "Warrant Shares," as used herein, refers to the shares of Common
Stock purchasable hereunder. The Warrant Shares and the Exercise Price are
subject to adjustment as provided in Paragraph 4 hereof. This Warrant is subject
to the following terms, provisions, and conditions:
1. Manner of Exercise; Issuance of Certificates; Payment for Shares.
Subject to the provisions hereof, this Warrant may be exercised by the holder
hereof, in whole or in part, by the surrender of this Warrant, together with a
completed exercise agreement in the form attached hereto (the "Exercise
Agreement"), to the Company during normal business hours on any business day at
the Company's principal executive offices (or such other office or agency of the
Company as it may designate by notice to the holder hereof), and upon payment to
the Company in cash, by certified or official bank check or by wire transfer for
the account of the Company of the Exercise Price for the Warrant Shares
specified in the Exercise Agreement for the Warrant Shares specified in the
Exercise Agreement. The Warrant Shares so purchased shall be deemed to be issued
to the holder hereof or such holder's designee, as the record owner of such
shares, as of the close of business on the date on which this Warrant shall have
been surrendered, the completed Exercise Agreement shall have been delivered,
and payment shall have been made for such shares as set forth above.
Certificates for the Warrant Shares so purchased, representing the aggregate
number of shares specified in the Exercise Agreement, shall be delivered to the
holder hereof within a reasonable time after this Warrant shall have been so
exercised. The certificates so delivered shall be in such denominations as may
be requested by the holder hereof and shall be registered in the name of such
holder or such other name as shall be designated by such holder. If this Warrant
shall have been exercised only in part, then, unless this Warrant has expired,
the Company shall, at its expense, at the time of delivery of such certificates,
deliver to the holder a new Warrant representing the number of shares with
respect to which this Warrant shall not then have been exercised.
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2. Period of Exercise. This Warrant is exercisable at any time or from
time to time on or after the date on which this Warrant is issued and delivered
pursuant to the terms of the Note and before 5:00 p.m., New York, New York time
on the fifth anniversary of the date hereof (the "Exercise Period").
3. Certain Agreements of the Company. the Company hereby covenants and
agrees as follows:
(a) Shares to be Fully Paid. All Warrant Shares will, upon issuance in
accordance with the terms of this Warrant, be validly issued, fully paid,
and nonassessable and free from all taxes, liens, and charges with respect
to the issue thereof.
(b) Reservation of Shares. During the Exercise Period, the Company shall
at all times have authorized, and reserved for the purpose of issuance
upon exercise of this Warrant, a sufficient number of shares of Common
Stock to provide for the exercise of this Warrant.
(c) Successors and Assigns. This Warrant will be binding upon any entity
succeeding to the Company by merger, consolidation, or acquisition of all
or substantially all the Company's assets.
4. Adjustment and Antidilution Provisions. On or after the date of
issuance of this Warrant, the Warrant Exercise Price and number of shares
issuable pursuant to this Warrant shall be subject to adjustment as follows:
(a) In case the Company shall (i) declare a dividend or make a
distribution on its outstanding shares of Common Stock in shares of Common
Stock, (ii) subdivide or reclassify its outstanding shares of Common Stock
into a greater number of shares, or (iii) combine or reclassify its
outstanding shares of Common Stock into a smaller number of shares, the
Exercise Price in effect at the time of the record date for such dividend
or distribution or of the effective date of such subdivision, combination
or reclassification shall be adjusted so that it shall equal the price
determined by multiplying the Exercise Price by a fraction, the
denominator of which shall be the number of shares of Common Stock
outstanding after giving effect to such action, and the numerator of which
shall be the number of shares of Common Stock immediately prior to such
action. Such adjustment shall be made each time any event listed above
shall occur.
(b) Whenever the Exercise Price payable upon exercise of each
Warrant is adjusted pursuant to Subsection (a) above, the number of shares
purchasable upon exercise of this Warrant shall simultaneously be adjusted
by multiplying the number of shares initially issuable upon exercise of
this Warrant by the Exercise Price in effect on the date hereof and
dividing the product so obtained by the Exercise Price, as adjusted.
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(c) All calculations under this Section 4 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may
be. Anything in this Section 4 to the contrary notwithstanding, the
Company shall be entitled, but shall not be required, to make such changes
in the Exercise Price in addition to those required by this Section 4, as
it shall determine, in its sole discretion, to be advisable in order that
any dividend or distribution in shares of Common Stock, or any
subdivision, reclassification or combination of Common Stock, hereafter
made by the Corporation shall not result in any Federal Income tax
liability to the holders of the Common Stock or securities convertible
into Common Stock (including warrant).
(d) Whenever the Exercise Price is adjusted, as herein provided, the
Corporation shall promptly cause a notice setting forth the adjusted
Exercise Price and adjusted number of shares issuable upon exercise of
each Warrant to be mailed to the Holder, at its last address appearing in
the Company's Warrant Register. The Company may retain a firm of
independent certified public accountants selected by the Board of
Directors (who may be the regular accountants employed by the Company) to
make any computation required by this Section 4, and a certificate signed
by such firm shall be conclusive evidence of the correctness of such
adjustment.
5. Issue Tax. The issuance of certificates for Warrant Shares upon the
exercise of this Warrant shall be made without charge to the holder of this
Warrant or such shares for any issuance tax or other costs in respect thereof,
provided 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
certificate in a name other than the holder of this Warrant.
6. No Rights or Liabilities as a Shareholder. This Warrant shall not
entitle the holder hereof to any voting rights or other rights as a shareholder
of the Company. No provision of this Warrant, in the absence of affirmative
action by the holder hereof to purchase Warrant Shares, and no mere enumeration
herein of the rights or privileges of the holder hereof, shall give rise to any
liability of such holder for the Exercise Price or as a shareholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
7. Transfer, Exchange, and Replacement of Warrant.
(a) Restriction on Transfer. This Warrant and the rights granted to
the holder hereof are transferable, in whole or in part, upon surrender of
this Warrant, together with a properly executed assignment in the form
attached hereto, at the office or agency of the Company referred to in
Paragraph 7(e) below, provided, however, that any transfer or assignment
shall be subject to the conditions set forth in Paragraph 7(f) hereof.
Until due presentment for registration of transfer on the books of the
Company, the Company may treat the registered holder hereof as the owner
and holder hereof for all purposes, and the Company shall not be affected
by any notice to the contrary.
(b) Warrant Exchangeable for Different Denominations. This Warrant
is exchangeable, upon the surrender hereof by the holder hereof at the
office or agency of the Company referred to in Paragraph 7(e) below, for
new Warrant of like tenor representing in the aggregate the right to
purchase the number of shares of Common Stock which may be purchased
hereunder, each of such new Warrant to represent the right to purchase
such number of shares as shall be designated by the holder hereof at the
time of such surrender.
3
(c) Replacement of Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutilation
of this Warrant and, in the case of any such loss, theft, or destruction,
upon delivery of an indemnity agreement reasonably satisfactory in form
and amount to the Company, or, in the case of any such mutilation, upon
surrender and cancellation of this Warrant, the Company, at its expense,
will execute and deliver, in lieu thereof, a new Warrant of like tenor.
(d) Cancellation; Payment of Expenses. Upon the surrender of this
Warrant in connection with any transfer, exchange, or replacement as
provided in this Paragraph 7, this Warrant shall be promptly canceled by
the Company. The Company shall pay all taxes (other than securities
transfer taxes) and all other expenses (other than legal expenses, if any,
incurred by the holder or transferees) and charges payable in connection
with the preparation, execution, and delivery of Warrant pursuant to this
Paragraph 7.
(e) Register. The Company shall maintain, at its principal executive
offices (or such other office or agency of the Company as it may designate
by notice to the holder hereof), a register for this Warrant, in which the
Company shall record the name and address of the person in whose name this
Warrant has been issued, as well as the name and address of each
transferee and each prior owner of this Warrant.
(f) Exercise or Transfer Without Registration. If, at the time of
the surrender of this Warrant in connection with any exercise, transfer,
or exchange of this Warrant, this Warrant (or, in the case of any
exercise, the Warrant Shares issuable hereunder), shall not be registered
under the Securities Act of 1933, as amended (the "Securities Act") and
under applicable state securities or blue sky laws, the Company may
require, as a condition of allowing such exercise, transfer, or exchange,
(i) that the holder or transferee of this Warrant, as the case may be,
furnish to the Company a written opinion of counsel, which opinion and
counsel are acceptable to the Company, to the effect that such exercise,
transfer, or exchange may be made without registration under said Act and
under applicable state securities or blue sky laws, (ii) that the holder
or transferee execute and deliver to the Company an investment letter in
form and substance acceptable to the Company and (iii) that the transferee
be an "accredited investor" as defined in Rule 501(a) promulgated under
the Securities Act; provided that no such opinion, letter or status as an
"accredited investor" shall be required in connection with a transfer
pursuant to Rule 144 under the Securities Act. The first holder of this
Warrant, by taking and holding the same, represents to the Company that
such holder is acquiring this Warrant for investment and not with a view
to the distribution thereof.
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8. Registration Rights. The initial holder of this Warrant (and certain
assignees thereof) shall have the following registration rights:
(a) Registration of Common Shares.
(i) Registration. The Company agrees to use its best efforts
to file a registration statement for registration under the
Securities Act of the shares issuable upon exercise of this
Warrant (the "Common Shares") on or before 90 days after the
date hereof and to use its best efforts to have the
registration statement declared effective within 150 days of
filing. The registration requested pursuant to this Section
8(a)(i) is referred to herein as the "Registration".
(ii) Restrictions on Registration. The Company will not be
obligated to effect a Registration within 120 days after the
effective date of a registration statement in which Common
Shares of the Investor are included in a registration
statement pursuant to Section 8(b) hereof. The Company may
postpone for a period not exceeding 90 days the filing or the
effectiveness of a registration statement for a Registration
if the Company provides Investor with written notice that in
the Company's good faith judgment such Registration might have
an adverse effect on any proposal or plan by the Company to
engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation,
tender offer, public offering or similar transaction, provided
that, in such event, the Company will use its best efforts to
effect a Registration as promptly as practicable thereafter.
(b) Participation in Registered Offerings. If the Company proposes
or is required to register any of its shares or other equity securities
for public sale for cash under the Securities Act (other than on Forms S-4
or S-8 or similar registration forms), it will at each such time or times
give written notice to the Investor of its intention to do so. Upon the
written request of the Investor given within 20 days after receipt of any
such notice, the Company shall use its best efforts to cause to be
included in such registration any Common Shares held by the Investor
requested to be registered; provided, that if the managing underwriter
advises that less than all of the shares requested to be registered should
be offered for sale so as not materially and adversely to affect the price
or salability of such offering being registered by the Company, the
Investor (but not the Company to the extent it desires to include shares
for its own account) shall reduce the number of its Common Shares to be
included in the registration statement as required by the underwriter to
the extent requisite of all prospective sellers of the securities proposed
to be registered (other than the Company) on a pro rata basis according to
the amounts of securities proposed to be registered by all prospective
sellers to permit the sale or other disposition (in accordance with the
intended method of disposition thereof as aforesaid) by the prospective
seller or sellers of the securities so registered. The registration
requested pursuant to this Section 8(b) is referred to herein as the
"Piggyback Registration".
5
(c) Obligations of Investor. It shall be a condition precedent to
the obligation of the Company to register any Common Shares pursuant to
this Section 8 that the Investor shall furnish to the Company such
information regarding the Common Shares held and the intended method of
disposition thereof and other information concerning the Investor as the
Company shall reasonably request and as shall be required in connection
with the registration statement to be filed by the Company. If after a
registration statement becomes effective the Company advises the Investor
that the Company considers it appropriate to amend or supplement the
applicable registration statement, the Investor shall suspend further
sales of the Common Shares until the Company advises the Investor that
such registration statement has been amended or supplemented.
(d) Registration Proceedings. Whenever the Company is required by
the provisions of this Section 8 to effect the registration of the Common Shares
under the Securities Act, the Company shall:
(i) Prepare and promptly file with the SEC a registration
statement with respect to such securities and use its best
efforts to cause such registration statement to become
effective within 150 days of filing and remain effective;
(ii) Prepare and file with the SEC such amendments to such
registration statement and supplements to the prospectus
contained therein as may be necessary to keep such
registration statement effective;
(iii) Furnish to the Investor and to the underwriters of the
securities being registered such reasonable number of copies
of the registration statement, preliminary prospectus, final
prospectus and such other documents as such underwriters may
reasonably request in order to facilitate the public offering
of such securities;
(iv) Use its best efforts to register or qualify the
securities covered by such registration statement under such
state securities or Blue Sky Laws of such jurisdictions as the
Investor may reasonably request within twenty (20) days
following the original filing of such registration statement,
except that the Company shall not for any purpose be required
to execute a general consent to service of process or to
qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified;
(v) Notify the Investor, promptly after it shall receive
notice thereof, of the time when such registration statement
has become effective or a supplement to any prospectus forming
a part of such registration statement has been filed;
6
(vi) Notify the Investor promptly of any request by the SEC
for the amending or supplementing of such registration
statement or prospectus or for additional information; and
(vii) Prepare and promptly file with the SEC and promptly
notify the Investor of the filing of such amendment or
supplement to such registration statement or prospectus as may
be necessary to correct any statements or omissions if, at the
time when a prospectus relating to such securities is required
to be delivered under the Securities Act, any event shall have
occurred as the result of which any such prospectus or any
other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
Notwithstanding any provision herein to the contrary, the
Company shall not be required to amend, supplement, or update
a prospectus contained in any registration statement if to do
so would result in an unduly burdensome expense to the
Company.
(e) Expenses. With respect to the inclusion of the Common Shares in a
registration statement pursuant to this Section 8, all registration expenses,
fees, costs and expenses of and incidental to such registration, shall be borne
by the Company; provided, however, that Investor shall bear its own professional
fees and pro rata share of the underwriting discounts and commissions. The fees,
costs and expenses of registration to be borne by the Company shall include,
without limitation, all registration, filing, and printing expenses, fees and
disbursements of counsel and accountants for the Company, fees and disbursements
of counsel for the underwriter or underwriters of such securities (if the
Company and/or selling security holders are required to bear such fees and
disbursements), and all legal fees and disbursements and other expenses of
complying with state securities or Blue Sky laws of any jurisdiction in which
the securities to be offered are to be registered or qualified.
(f) Indemnification of the Investor. Subject to the conditions set forth
below, in connection with any registration of the Common Shares pursuant to this
Section 8, the Company agrees to indemnify and hold harmless the Investor, any
underwriter for the offering and each of their officers and directors and agents
and each other person, if any, who controls Investor or their underwriter (each,
an "Investor Indemnified Party"), within the meaning of Section 15 of the
Securities Act, as follows:
(i) Against any and all loss, claim, damage and expense
whatsoever arising out of or based upon (including, but not
limited to, any and all expense whatsoever reasonably incurred
in investigating, preparing or defending any litigation,
commenced or threatened, or any claim whatsoever based upon)
any untrue or alleged untrue statement of a material fact
contained in any preliminary prospectus (if used prior to the
effective date of the registration statement), the
registration statement or the prospectus (as from time to time
amended and supplemented), or in any application or other
document executed by the Company or based upon written
information furnished by the Company filed in any jurisdiction
in order to qualify the Company' securities under the
securities laws thereof, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
any other violation of applicable federal or state statutory
or regulatory requirements or limitations relating to action
or inaction by the Company in the course of preparing, filing,
or implementing such registered offering; provided, however,
that the indemnity agreement contained in this section shall
not apply to any loss, claim, damage, liability or action
arising out of or based upon any untrue or alleged untrue
statement or omission made in reliance upon and in conformity
with any information furnished in writing to the Company by or
on behalf of the Investor expressly for use in connection
therewith or arising out of any action or inaction of the
Investor;
7
(ii) Subject to the proviso contained in Subsection (i) above,
against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, commenced or threatened, or of
any claim whatsoever based upon any untrue statement or
omission (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing or
defending against any such litigation or claim) if such
settlement is effected with the written consent of the
Company; and
(iii) In no case shall the Company be liable under this
indemnity agreement with respect to any claim made against any
Investor Indemnified Party unless the Company shall be
notified, by letter or by facsimile confirmed by letter, of
any action commenced against such Investor Indemnified Party,
promptly after such person shall have been served with the
summons or other legal process giving information as to the
nature and basis of the claim. The failure to so notify the
Company, if prejudicial in any material respect to the
Company' ability to defend such claim, shall relieve the
Company from its liability to the indemnified person under
this Section 8(f), but only to the extent that the Company was
prejudiced. The failure to so notify the Company shall not
relieve the Company from any liability which it may have
otherwise than on account of this indemnity agreement. The
Company shall be entitled to participate at its own expense in
the defense of any suit brought to enforce any such claim, but
if the Company elects to assume the defense, such defense
shall be conducted by counsel chosen by it, provided such
counsel is reasonably satisfactory to the Investor Indemnified
Party in any suit so brought. In the event the Company elects
to assume the defense of any such suit and retain such
counsel, the Investor Indemnified Party in the suit shall,
after the date they are notified of such election, bear the
fees and expenses of any counsel thereafter retained by them,
as well as any other expenses thereafter incurred by them in
connection with the defense thereof; provided, however, that
if the Investor Indemnified Party reasonably believes that
there may be available to it any defense or counterclaim
different than those available to the Company or that
representation of the Investor Indemnified Party by counsel
for the Company presents a conflict of interest for such
counsel, then the Investor Indemnified Party shall be entitled
to defend such suit with counsel of its own choosing and the
Company shall bear the fees, expenses and other costs of such
separate counsel.
8
(g) Indemnification of the Company. The Investor agrees to
indemnify and hold harmless the Company, each underwriter for the
offering, and each of their officers and directors and agents and
each other person, if any, who controls the Company and the
underwriter within the meaning of Section 15 of the Securities Act
and any other stockholder selling securities against any and all
such losses, liabilities, claims, damages and expenses as are
indemnified against by the Company under Section 8(f) (i), (ii) and
(iii) above; provided, however, that such indemnification by
Investor hereunder shall be limited to any losses, liabilities,
claims, damages, or expenses to the extent caused by any untrue
statement of a material fact or omission of a material fact
(required to be stated therein or necessary to make statements
therein not misleading), if any made (or in settlement of any
litigation effected with the written consent of such Investors,
alleged to have been made) in any preliminary prospectus, the
registration statement or prospectus or any amendment or supplement
thereof or in any application or other document in reliance upon,
and in conformity with, written information furnished in respect of
such Investor by or on behalf of such Investor expressly for use in
any preliminary prospectus, the registration statement or prospectus
or any amendment or supplement thereof or in any such application or
other document or arising out of any action or inaction of such
Investor in implementing such registered offering. Notwithstanding
the foregoing, the indemnification obligation of Investor shall not
exceed the purchase price of the Note. In case any action shall be
brought against the Company, or any other person so indemnified, in
respect of which indemnity may be sought against any Investor, such
Investor shall have the rights and duties given to the Company, and
each other person so indemnified shall have the rights and duties
given to Investor, by the provisions of Section 8(f). The person
indemnified agrees to notify the Investor promptly after the
assertion of any claim against the person indemnified in connection
with the sale of securities.
(h) Contribution. If the indemnification provided for in
Sections 8(f) and 8(g) above are unavailable or insufficient to hold
harmless an indemnified party in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnified party, on one hand, and such
indemnifying party, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims,
damages, or liabilities (or actions in respect thereof). The
relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnified party, on one
hand, or such indemnifying party, on the other hand, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. No
person who has committed fraudulent misrepresentation (within the
meaning of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this Section shall
be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending any such action or claim.
9
(i) Assignment of Registration Rights. The right to have the
Company register Common Shares pursuant to this Agreement shall be
automatically assignable to any transferee of all or any portion of
the Debentures, warrants or Common Shares if: (a) the Investor
agrees in writing with the transferee or assignee to assign such
rights, and a copy of such agreement is furnished to the Company
within a reasonable time after such assignment, (b) the Company is,
within a reasonable time after such transfer or assignment,
furnished with written notice of (i) the name and address of such
transferee or assignee, and (ii) the securities with respect to
which such registration rights are being transferred or assigned,
(c) following such transfer or assignment, the further disposition
of such securities by the transferee or assignee is restricted under
the 1933 Act and applicable state securities laws and, (d) at or
before the time the Company receives the written notice contemplated
by clause (b) of this sentence, the transferee or assignee agrees in
writing with the Company to be bound by all of the provisions
contained herein (the foregoing a "Permitted Transferee").
9. Notices. All notices, requests, and other communications required or
permitted to be given or delivered hereunder to the holder of this Warrant shall
be in writing, and shall be personally delivered, or shall be sent by certified
or registered mail or by recognized overnight mail courier, postage prepaid and
addressed, to such holder at the address shown for such holder on the books of
the Company, or at such other address as shall have been furnished to the
Company by notice from such holder. All notices, requests, and other
communications required or permitted to be given or delivered hereunder to the
Company shall be in writing, and shall be personally delivered, or shall be sent
by certified or registered mail or by recognized overnight mail courier, postage
prepaid and addressed, to the office of the Company at 12777 Jones Road, Suite
481, Houston, Texas 77070, Attention: President, or at such other address as
shall have been furnished to the holder of this Warrant by notice from the
Company. Any such notice, request, or other communication may be sent by
facsimile, but shall in such case be subsequently confirmed by a writing
personally delivered or sent by certified or registered mail or by recognized
overnight mail courier as provided above. All notices, requests, and other
communications shall be deemed to have been given either at the time of the
receipt thereof by the person entitled to receive such notice at the address of
such person for purposes of this Paragraph 9, or, if mailed by registered or
certified mail or with a recognized overnight mail courier upon deposit with the
United States Post Office or such overnight mail courier, if postage is prepaid
and the mailing is properly addressed, as the case may be.
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10. Governing Law. THIS WARRANT SHALL BE ENFORCED, GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICT OF LAWS. THE PARTIES HERETO HEREBY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF THE UNITED STATES FEDERAL COURTS LOCATED IN NEW YORK
WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS WARRANT, THE AGREEMENTS ENTERED
INTO IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
BOTH PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH SUIT OR PROCEEDING. BOTH PARTIES FURTHER AGREE THAT SERVICE
OF PROCESS UPON A PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED IN EVERY
RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT EITHER PARTY'S RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW. BOTH PARTIES AGREE THAT A FINAL
NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER
LAWFUL MANNER. THE PARTY WHICH DOES NOT PREVAIL IN ANY DISPUTE ARISING UNDER
THIS WARRANT SHALL BE RESPONSIBLE FOR ALL FEES AND EXPENSES, INCLUDING
ATTORNEYS' FEES, INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH SUCH
DISPUTE.
11. Miscellaneous.
(a) Amendments. This Warrant and any provision hereof may only be
amended by an instrument in writing signed by the Company and the holder
hereof.
(b) Descriptive Headings. The descriptive headings of the several
paragraphs of this Warrant are inserted for purposes of reference only,
and shall not affect the meaning or construction of any of the provisions
hereof.
(c) Remedies. The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to the holder, by
vitiating the intent and purpose of the transaction contemplated hereby.
Accordingly, the Company acknowledges that the remedy at law for a breach
of its obligations under this Warrant will be inadequate and agrees, in
the event of a breach or threatened breach by the Company of the
provisions of this Warrant, that the holder shall be entitled, in addition
to all other available remedies at law or in equity, and in addition to
the penalties assessable herein, to an injunction or injunctions
restraining, preventing or curing any breach of this Warrant and to
enforce specifically the terms and provisions thereof, without the
necessity of showing economic loss and without any bond or other security
being required.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
HEALTHRENU MEDICAL, INC.
By: ____________________________________
Robert W. Prokos
Chief Executive Officer and President
Dated: ___________, 2006
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FORM OF EXERCISE AGREEMENT
Dated: ________ __, 200_
To: ______________________
The undersigned, pursuant to the provisions set forth in the within
Warrant, hereby agrees to purchase ________ shares of Common Stock covered by
such Warrant, and makes payment herewith in full therefor at the price per share
provided by such Warrant in cash or by certified or official bank check in the
amount of $________. Please issue a certificate or certificates for such shares
of Common Stock in the name of and pay any cash for any fractional share to:
Name: ______________________________
Signature: ____________________________
Address: ____________________________
____________________________
Note: The above signature should
correspond exactly with the name
on the face of the within Warrant,
if applicable.
and, if said number of shares of Common Stock shall not be all the shares
purchasable under the within Warrant, a new Warrant is to be issued in the name
of said undersigned covering the balance of the shares purchasable thereunder
less any fraction of a share paid in cash.
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers
all the rights of the undersigned under the within Warrant, with respect to the
number of shares of Common Stock covered thereby set forth hereinbelow, to:
Name of Assignee Address No. of Shares
- ---------------- ------- -------------
, and hereby irrevocably constitutes and appoints ______________________________
as agent and attorney-in-fact to transfer said Warrant on the books of the
within-named corporation, with full power of substitution in the premises.
Dated: ________ __, 200_
In the presence of: _____________________________
Name:______________________________
Signature:_________________________
Title of Signing Officer or Agent (if any):
______________________________
Address: ______________________________
______________________________
Note: The above signature should
correspond exactly with the name
on the face of the within Warrant,
if applicable.
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