Attached files
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8-K/A - ProUroCare Medical Inc. | v189007_8ka.htm |
EX-10.1 - ProUroCare Medical Inc. | v189007_ex10-1.htm |
Exhibit
4.1
The
Warrant and the securities issuable upon exercise of this Warrant (COLLECTIVELY,
the “Securities”) have not been registered under the Securities Act of 1933, as
amended (the “Securities Act”), or under any state securities or Blue Sky laws
(“Blue Sky Laws”). No transfer, sale, assignment, pledge,
hypothecation or other disposition of this Warrant or the Securities or any
interest therein may be made except (a) pursuant to an effective registration
statement under the Securities Act and any applicable Blue Sky Laws or (b) if
the Company has been furnished with both an opinion of counsel for the holder,
which opinion and counsel shall be satisfactory to the Company, to the effect
that no registration is required because of the availability of an exemption
from registration under the Securities Act and applicable Blue Sky Laws, and
assurances that the transfer, sale, assignment, pledge, hypothecation or other
disposition will be made only in compliance with the conditions of any such
registration or exemption.
Form
of Warrant
for
Shares
of Common Stock
of
ProUroCare
Medical Inc.
Warrant No. 10-__ |
Eden
Prairie, Minnesota
___________,
2010
|
FOR VALUE
RECEIVED, _________________________, or its
successors or assigns (“Holder”), is entitled
to subscribe for and purchase from ProUroCare Medical Inc., a Nevada corporation
(the “Company”), up to
___________ fully paid and non-assessable shares of the Company’s common stock,
$0.00001 par value per share (the “Common Stock”), is
subject to the following provisions, terms and conditions:
1. Terms and Exercise of
Warrants.
(a) Warrant
Price. This warrant shall entitle the Holder thereof, subject
to the provisions of this warrant agreement, to purchase from the Company the
number of shares of Common Stock stated therein, at the price of $1.30 per whole share, subject
to the adjustments provided in Section 2 hereof. The term “Warrant Price” as
used in this warrant agreement refers to the price per share at which Common
Stock may be purchased at the time a warrant is exercised.
(b) Duration of
Warrants. This warrant may be exercised only until 5:00 p.m.,
Minneapolis, Minnesota time on the earlier to occur of (i) [Warrant
date plus 3 years] or (ii) the date fixed
for redemption of the warrants as provided in Section 4 of this warrant
agreement (the “Expiration Date”).
Except with respect to the right to receive the Redemption Price (as set forth
in Section 4 hereunder), each warrant not exercised on or before the Expiration
Date shall become void, and all rights thereunder and all rights in respect
thereof under this warrant agreement shall cease at 5:00 p.m., Minneapolis,
Minnesota time on the Expiration Date.
(c) Exercise of
Warrant. The rights represented by this warrant may be
exercised by the Holder, in whole or in part, by a duly executed copy of the
form of Notice of Exercise attached hereto delivered to the Company at least
three days prior to the intended date of exercise and by the surrender of this
warrant (properly endorsed if required) at the principal office of the Company,
upon payment to the Company by cash, certified check or bank draft of the
purchase price for such shares and the delivery of a subscription agreement, an
investment letter or similar document acceptable to the Company demonstrating
that the sale of shares to be purchased is exempt from registration under the
Securities Act and any applicable state securities laws (unless a registration
statement covering the shares being purchased shall have been declared effective
by the Securities and Exchange Commission). The shares so purchased shall be
deemed to be issued as of the close of business on the date on which this
warrant has been exercised by its surrender and payment to the Company of the
Warrant Price multiplied by the number of shares of Common Stock to be
purchased. Certificates for the shares of stock so purchased, bearing
the restrictive legend set forth in Section 3(b) of this warrant, shall be
delivered to the Holder within 15 days after the rights represented by this
warrant shall have been so exercised, and, unless this warrant has expired, a
new warrant representing the number of shares, if any, with respect to which
this warrant has not been exercised shall also be delivered to the Holder within
such time. No fractional shares shall be issued upon the exercise of
this warrant.
1
Exhibit
4.1
2. Adjustments.
(a) The
number of and kind of securities purchasable upon exercise of the warrants and
the Warrant Price shall be subject to adjustment from time to time as
follows:
(i) Subdivisions, Combinations
and Other Issuances. If the Company shall at any time prior to
the expiration of the warrants subdivide its Common Stock, by split-up or
otherwise, or combine its Common Stock, or issue additional shares of its Common
Stock as a dividend with respect to any shares of its Common Stock, the number
of shares of Common Stock issuable on the exercise of the warrants shall be
proportionately increased in the case of a subdivision or stock dividend, or
proportionately decreased in the case of a combination. Appropriate
adjustments shall also be made to the Warrant Price, but the aggregate purchase
price payable for the total number of shares of Common Stock purchasable under
the warrants (as adjusted) shall remain the same. Any adjustment
under this Section 2(a)(i) shall become effective at the close of business on
the date the subdivision or combination becomes effective, or as of the record
date of such dividend, or in the event that no record date is fixed, upon the
making of such dividend.
(ii) Reclassification,
Reorganization, Consolidation, Merger and Other Changes. In
case of any reclassification, capital reorganization or change in the Common
Stock of the Company (other than as a result of a subdivision, combination, or
stock dividend provided for in Section 2(a)(i) above), or consolidation or
merger of the Company with or into another corporation, or the sale of all or
substantially all of its assets to another corporation shall be effected in such
a way that holders of the Company’s Common Stock shall be entitled to receive
stock, securities or assets with respect to or in exchange for such Common
Stock, then, as a
condition of such reclassification, reorganization, change, consolidation,
merger or sale, lawful provision shall be made, and duly executed documents
evidencing the same from the Company or its successor shall be delivered to the
Holder of the warrant, so that the Holder shall have the right at any time prior
to the expiration of the warrant to purchase, at a total price equal to that
payable upon the exercise of the warrant, the kind and amount of shares of stock
and other securities and property receivable in connection with such
reclassification, reorganization, change, consolidation, merger or sale by a
holder of the same number of shares of Common Stock as were purchasable by the
Holder immediately prior to such reclassification, reorganization, change,
consolidation, merger or sale. In any such case appropriate
provisions shall be made with respect to the rights and interest of the Holder
so that the provisions hereof shall thereafter be applicable with respect to any
shares of stock or other securities and property deliverable upon exercise
hereof, and appropriate adjustments shall be made to the purchase price per
share payable hereunder, provided the aggregate purchase price shall remain the
same.
2
Exhibit
4.1
(b) Minimum
Adjustment. Notwithstanding anything herein to the contrary,
no adjustment under this Section 2 need be made to the Warrant Price unless such
adjustment would require an increase or decrease of at least 1% of the Warrant
Price then in effect. Any lesser adjustment shall be carried forward
and shall be made at the time of and together with the next subsequent
adjustment, which, together with any adjustment or adjustments so carried
forward, shall amount to an increase or decrease of at least 1% of such Warrant
Price. Any adjustment to the Warrant Price carried forward and not
theretofore made shall be made prior to the conversion of the warrant pursuant
thereto.
(c) Other
Adjustment. If the Company at any time or from time to time
shall take any other action, or if any other event occurs, affecting the shares
of Common Stock or its other equity interests, if any, other than an action
described in this Section 2, then, and in each such case, the Warrant Price
shall be adjusted in such manner and at such time as the Board of Directors of
the Company in good faith determines to be equitable in the circumstances (such
determination to be evidenced in a resolution, a certified copy of which shall
be mailed to the Holder).
(d) Notice of
Adjustment. Upon any adjustment of the Warrant Price, the
Company shall give written notice thereof, by first class mail, postage prepaid,
addressed to the Holder of this warrant at the address of such Holder as shown
on the books of the Company, which notice shall state the Warrant Price
resulting from such adjustment and the increase or decrease, if any, in the
number of 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.
(e) No Fractional
Shares. Notwithstanding any provision contained in this
warrant agreement to the contrary, the Company shall not issue fractional shares
upon exercise of warrants. If, by reason of any adjustment made pursuant to this
Section 2, the Holder would be entitled, upon the exercise of the warrant, to
receive a fractional interest in a share, the Company shall, upon such exercise,
round up to the nearest whole number the number of the shares of Common Stock to
be issued to the warrant holder.
(f) Form of
Warrant. The form of warrant need not be changed because of
any adjustment pursuant to this Section 2. However, the Company may at any time
in its sole discretion make any change in the form of warrant that the Company
may deem appropriate and that does not affect the substance thereof, and any
warrant thereafter issued or countersigned, whether in exchange or substitution
for an outstanding warrant or otherwise, may be in the form as so
changed.
3
Exhibit
4.1
3. Application of Restrictions
of Transfer.
(a) No transfer
of this warrant may be completed unless and until (i) the Company has received
an opinion of counsel for the Company that such securities may be sold pursuant
to an exemption from registration under the Securities Act of 1933, as amended
(the “Securities
Act”), or (ii) a registration statement relating to this warrant has been
filed by the Company and declared effective by the Securities and Exchange
Commission. Subject to the foregoing, this warrant and all rights
hereunder are transferable, in whole or in part, at the principal office of the
Company by the Holder in person or by duly authorized attorney, upon surrender
of this warrant properly endorsed to any person or entity who represents in
writing that he/she/it is acquiring the warrant for investment and without any
view to the sale or other distribution thereof. Each Holder of this
warrant, by taking or holding the same, consents and agrees that the bearer of
this warrant, when endorsed, may be treated by the Company and all other persons
dealing with this warrant as the absolute owner hereof for any purpose and as
the person entitled to exercise the rights represented by this warrant or
perform the obligations required hereby, or to the transfer hereof on the books
of the Company, any notice to the contrary notwithstanding; but until such
transfer on such books, the Company may treat the registered owner hereof as the
owner for all purposes.
(b) Each
certificate for shares issued upon the exercise of the rights represented by
this warrant shall bear a legend as follows unless, in the opinion of counsel to
the Company, such legend is not required in order to ensure compliance with the
Securities Act:
"THE SECURITIES EVIDENCED
BY THIS CERTIFICATE WERE
ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
APPLICABLE STATE SECURITIES LAWS, AND IN RELIANCE UPON THE HOLDER’S
REPRESENTATION THAT SUCH SECURITIES WERE BEING ACQUIRED FOR INVESTMENT AND NOT
FOR RESALE. NO TRANSFER OF THE SECURITIES MAY BE MADE ON THE BOOKS OF
THE COMPANY UNLESS (i) SUCH TRANSFER IS MADE PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
APPLICABLE STATE SECURITIES LAWS OR (ii) UNLESS THE HOLDER SHALL HAVE PROVIDED
THE COMPANY WITH AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY TO
THE EFFECT THAT NO SUCH REGISTRATION IS REQUIRED."
4. Redemption.
(a) Redemption. Subject
to Section 4(d) hereof, not less than all of the outstanding warrants may be
redeemed, at the option of the Company, at any time after they become
exercisable and prior to their expiration, upon the notice referred to in
Section 4(b), at the price of $0.01 per warrant (the “Redemption Price”),
provided that
the last sales price of the Common Stock has been equal to or greater than $4.00
per share for 10 consecutive trading days.
4
Exhibit
4.1
(b) Date Fixed for, and Notice
of, Redemption. In the event the Company shall elect to redeem
the warrants, the Company shall fix a date for the redemption. Notice of
redemption shall be mailed to the Holder by first class mail, postage prepaid,
by the Company not less than 30 days prior to the date fixed for redemption. Any
notice mailed in the manner herein provided shall be conclusively presumed to
have been duly given whether or not the Holder received such
notice.
(c) Exercise After Notice of
Redemption. The warrants may be exercised for cash in
accordance with Section 1 of this warrant agreement at any time after notice of
redemption shall have been given by the Company pursuant to Section 4(b) hereof
and prior to the time and date fixed for redemption. On and after the redemption
date, the Holder of the warrants shall have no further rights except to receive,
upon surrender of the warrants, the Redemption Price.
(d) Outstanding Warrants
Only. The redemption rights provided for by this Section 4
apply only to outstanding warrants.
5. Other Provisions Relating to
Rights of Holders of Warrants.
(a) No Rights as
Stockholder. A warrant does not entitle the Holder thereof to
any of the rights of a stockholder of the Company, including, without
limitation, the right to receive dividends or other distributions, exercise any
preemptive rights to vote or to consent or to receive notice as stockholders in
respect of the meetings of stockholders or the election of directors of the
Company or any other matter.
(b) Lost, Stolen, Mutilated, or
Destroyed Warrants. If any warrant is lost, stolen, mutilated,
or destroyed, the Company may on such terms as to indemnity or otherwise (which
shall, in the case of a mutilated warrant, include the surrender thereof), issue
a new warrant of like denomination, tenor, and date as the warrant so lost,
stolen, mutilated, or destroyed. Any such new warrant shall constitute a
substitute contractual obligation of the Company, whether or not the allegedly
lost, stolen, mutilated, or destroyed warrant shall be at any time enforceable
by anyone, and the allegedly lost, stolen, mutilated, or destroyed warrant shall
thereupon become void.
(c) Reservation of Common
Stock. The Company shall at all times reserve and keep
available a number of its authorized but unissued shares of Common Stock that
will be sufficient to permit the exercise in full of this warrant.
6. Governing
Law.
This
warrant shall be governed by and construed in accordance with the laws of the
State of Minnesota without regard to its conflicts-of-law
provisions.
7. Amendments and
Waivers.
The
provisions of this warrant may not be amended, modified or supplemented, and
waiver or consents to departures from the provisions hereof may not be given,
unless the Company agrees in writing and has obtained the written consent of the
Holder.
5
Exhibit
4.1
8. Successors and
Assigns.
All the
terms and conditions of this warrant shall be binding upon and inure to the
benefit of the permitted successors and assigns of the Company and the
Holder.
9. Headings and
References.
The
headings of this warrant are for convenience only and shall not affect the
interpretation of this warrant. Unless the context indicates
otherwise, all references herein to Sections are references to Sections of this
warrant.
10. Notices.
All
notices or communications hereunder, except as herein otherwise specifically
provided, shall be in writing and shall be deemed to have been given or made for
all purposes (i) upon personal delivery, (ii) upon confirmation
receipt that the communication was successfully sent to the applicable number if
sent by facsimile; (iii) one day after being sent, when sent by
professional overnight courier service, or (iv) five days after posting
when sent by registered or certified mail. Notices sent to the Holder
shall be mailed, hand delivered or faxed to the Holder at his, her or its
address set forth in the Company’s records. Notices sent to the
Company shall be mailed, hand delivered or faxed to ProUroCare Medical Inc.,
6440 Flying Cloud Dr., Suite 101, Eden Prairie, MN 55344, or to such
other address as the Company or the Holder shall notify the other as provided in
this Section.
6
Exhibit
4.1
IN
WITNESS WHEREOF, the Company has caused this warrant to be signed and delivered
by its duly authorized officer.
Dated:
_____________, 2010.
ProUroCare Medical Inc.:
By: __________________________
Name: Richard C.
Carlson
Title: Chief
Executive Officer
7
Exhibit
4.1
NOTICE OF EXERCISE
(CASH/CHECK)
(To be
signed only upon exercise of warrant for cash/check)
The
undersigned, the holder of the foregoing warrant, hereby irrevocably elects to
exercise the purchase right represented by such warrant for, and to purchase
thereunder of the shares of Common Stock of ProUroCare Medical Inc. to which
such warrant relates and herewith makes payment of $ therefor in cash or by
check and requests that the certificates for such shares be issued in the name
of, and be delivered to , whose address is set forth below the signature of the
undersigned.
The
undersigned hereby represents and warrants that the undersigned is acquiring
such shares for its own account for investment purposes only, and not for resale
or with a view to distribution of such shares or any part thereof.
Dated:
___/___/20___
|
Name
of Warrant Holder
|
By:
_________________________
|
|
Name:
_______________________
|
|
Title: ________________________
|
|
|
Address:
|
____________________________ | |
____________________________ | |
____________________________ |
INSTRUCTIONS
FOR REGISTRATION OF SECURITIES
Name and Address: | ________________________________________________ | |
________________________________________________ | ||
________________________________________________ | ||
(please typewrite or print in block letters) |
____________
8
Exhibit
4.1
WARRANT
ASSIGNMENT
(To be
signed only upon transfer of warrant)
FOR VALUE
RECEIVED, ________________________________
hereby sells, assigns and transfers unto:
Name and Address: | ___________________________________________________________________________ | |
___________________________________________________________________________ | ||
___________________________________________________________________________ | ||
(please typewrite or print in block letters) |
the right
to purchase __________ shares of Common Stock as represented by this warrant to
the extent of ____________ shares of Common Stock and as to which such right is
exercisable and does hereby irrevocably constitute and appoint
_________________________ attorney, to transfer the same on the books of the
Company with full power of substitution in the premises.
Dated: __________________
|
________________________________________ |
(Signature) |
9