Attached files
| file | filename |
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| 8-K - Rennova Health, Inc. | v208586_8k.htm |
| EX-99.2 - Rennova Health, Inc. | v208586_ex99-2.htm |
| EX-99.1 - Rennova Health, Inc. | v208586_ex99-1.htm |
| EX-99.3 - Rennova Health, Inc. | v208586_ex99-3.htm |
FINAL
WARRANT
THE
SECURITIES REPRESENTED HEREBY MAY NOT BE TRANSFERRED UNLESS (I) SUCH SECURITIES
HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), (II) SUCH SECURITIES MAY BE SOLD PURSUANT TO RULE 144,
OR (III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY
TO IT THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OR QUALIFICATION UNDER APPLICABLE STATE SECURITIES
LAWS.
THIS
WARRANT SHALL BE VOID AFTER 5:00 P.M., CALIFORNIA TIME, ON JANUARY 14, 2015 (THE
“EXPIRATION
DATE”).
TEGAL
CORPORATION
WARRANT
TO PURCHASE 464,442 SHARES OF
COMMON
STOCK, PAR VALUE $0.01 PER SHARE
FOR VALUE
RECEIVED, se2quel Management GmbH, a German limited liability company
(Gesellschaft mit beschränkter Haftung) (“Warrantholder”), is
entitled to purchase, subject to the provisions of this Warrant, from Tegal
Corporation, a Delaware corporation (“Company”), at any
time not later than 5:00 P.M., California time, on the Expiration Date (as
defined above), at an exercise price per share equal to $0.63 (the exercise
price in effect being herein called the “Warrant Price”),
464,442 shares (“Warrant Shares”) of
the Company’s common stock, par value $0.01 per share (“Common Stock”). The
number of Warrant Shares purchasable upon exercise of this Warrant and the
Warrant Price shall be subject to adjustment from time to time as described
herein.
In
partial consideration of the issuance of this Warrant, Stephen Mohren agrees
that he shall devote at least 60% of his business time to sequel Power LLC, a
Delaware limited liability company.
Section
1. Registration. The
Company shall maintain books for the transfer and registration of this Warrant.
Upon the initial issuance of this Warrant, the Company shall issue and register
the Warrant in the name of the Warrantholder.
Section
2. Transfers. As
provided herein, this Warrant and the Warrant Shares may be transferred only
pursuant to a registration statement filed under the Securities Act of 1933, as
amended (the “Securities Act”), or
an exemption from such registration. Subject to such restrictions, the Company
shall transfer this Warrant from time to time upon the books to be maintained by
the Company for that purpose, upon surrender thereof for transfer properly
endorsed or accompanied by appropriate instructions for transfer and such other
documents as may be reasonably required by the Company, including an opinion of
counsel to the effect that such transfer is exempt from the registration
requirements of the Securities Act, to establish that such transfer is being
made in accordance with the terms hereof, and a new Warrant shall be issued to
the transferee and the surrendered Warrant shall be canceled by the
Company.
Section
3. Exercise of
Warrant. Subject
to the provisions hereof, the Warrantholder may exercise this Warrant in whole
or in part at any time prior to its expiration upon surrender of the Warrant,
together with delivery of the duly executed Warrant Exercise Form attached
hereto as Appendix
A (the “Exercise Agreement”)
and payment by cash, certified check or wire transfer of funds (or, in certain
circumstances, by cash-less exercise as provided below) for the aggregate
Warrant Price for that number of Warrant Shares then being purchased, 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 Warrantholder). The Warrant Shares so purchased
shall be deemed to be issued to the Warrantholder or the Warrantholder’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 (or evidence of loss,
theft or destruction thereof and security or indemnity satisfactory to the
Company), the Warrant Price shall have been paid and the completed Exercise
Agreement shall have been delivered. Certificates for the Warrant Shares so
purchased, representing the aggregate number of shares specified in the Exercise
Agreement, shall be delivered to the Warrantholder within a reasonable time, not
exceeding three (3) business days, after this Warrant shall have been so
exercised. The certificates so delivered shall be in such denominations as may
be requested by the Warrantholder and shall be registered in the name of the
Warrantholder or such other name as shall be designated by the Warrantholder,
subject to the restrictions on transfer set forth in this Warrant. 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 Warrantholder a new Warrant representing the number
of shares with respect to which this Warrant shall not then have been exercised.
As used herein, “business day” means a day, other than a Saturday or Sunday, on
which banks in San Francisco, California are open for the general transaction of
business.
Section
4. Compliance with the
Securities Act of 1933. The
Company may cause the legend set forth on the first page of this Warrant to be
set forth on each Warrant or similar legend on any security issued or issuable
upon exercise of this Warrant, unless counsel for the Company is of the opinion
as to any such security that such legend is unnecessary.
Section
5. Payment of
Taxes. The
Company will pay any documentary stamp taxes attributable to the initial
issuance of Warrant Shares issuable upon the exercise of the Warrant; provided, however,
that the Company shall not be required to pay any tax or taxes which may be
payable in respect of any transfer involved in the issuance or delivery of any
certificates for Warrant Shares in a name other than that of the Warrantholder
in respect of which such shares are issued, and in such case, the Company shall
not be required to issue or deliver any certificate for Warrant Shares or any
Warrant until the person requesting the same has paid to the Company the amount
of such tax or has established to the Company’s reasonable satisfaction that
such tax has been paid. The Warrantholder shall be responsible for income taxes
due under federal, state or other law, if any such tax is due.
Section
6. Mutilated or Missing
Warrants. In
case this Warrant shall be mutilated, lost, stolen or destroyed, the Company
shall issue in exchange and substitution of and upon cancellation of the
mutilated Warrant, or in lieu of and substitution for the Warrant lost, stolen
or destroyed, a new Warrant of like tenor and for the purchase of a like number
of Warrant Shares, but only upon receipt of evidence reasonably satisfactory to
the Company of such loss, theft or destruction of the Warrant, and with respect
to a lost, stolen or destroyed Warrant, reasonable indemnity or bond with
respect thereto, if requested by the Company.
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Section
7. Reservation of Common
Stock. The
Company hereby represents and warrants that there have been reserved, and the
Company shall at all applicable times keep reserved until issued (if necessary)
as contemplated by this Section 7, out of the
authorized and unissued shares of Common Stock, sufficient shares to provide for
the exercise of the rights of purchase represented by this Warrant. The Company
agrees that all Warrant Shares issued upon due exercise of this Warrant shall
be, at the time of delivery of the certificates for such Warrant Shares, duly
authorized, validly issued, fully paid and non-assessable shares of Common Stock
of the Company.
Section
8. Adjustments. Subject
and pursuant to the provisions of this Section 8, the
Warrant Price and number of Warrant Shares subject to this Warrant shall be
subject to adjustment from time to time as set forth hereinafter.
(a) If
the Company shall, at any time or from time to time while this Warrant is
outstanding, pay a dividend or make a distribution on its Common Stock in shares
of Common Stock, subdivide its outstanding shares of Common Stock into a greater
number of shares or combine its outstanding shares of Common Stock into a
smaller number of shares or issue by reclassification of its outstanding shares
of Common Stock any shares of its capital stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), then the number of Warrant Shares
purchasable upon exercise of the Warrant and the Warrant Price in effect
immediately prior to the date upon which such change shall become effective,
shall be adjusted by the Company so that the Warrantholder thereafter exercising
the Warrant shall be entitled to receive the number of shares of Common Stock or
other capital stock which the Warrantholder would have received if the Warrant
had been exercised immediately prior to such event upon payment of a Warrant
Price that has been adjusted to reflect a fair allocation of the economics of
such event to the Warrantholder. Such adjustments shall be made successively
whenever any event listed above shall occur.
(b) If
any capital reorganization, reclassification of the capital stock of the
Company, consolidation or merger of the Company with another corporation in
which the Company is not the survivor, or sale, transfer or other disposition of
all or substantially all of the Company’s assets to another corporation shall be
effected, then, as a condition of such reorganization, reclassification,
consolidation, merger, sale, transfer or other disposition, lawful and adequate
provision shall be made whereby each Warrantholder shall thereafter have the
right to purchase and receive upon the basis and upon the terms and conditions
herein specified and in lieu of the Warrant Shares immediately theretofore
issuable upon exercise of the Warrant, such shares of stock, securities or
assets as would have been issuable or payable with respect to or in exchange for
a number of Warrant Shares equal to the number of Warrant Shares immediately
theretofore issuable upon exercise of the Warrant, had such reorganization,
reclassification, consolidation, merger, sale, transfer or other disposition not
taken place, and in any such case appropriate provision shall be made with
respect to the rights and interests of each Warrantholder to the end that the
provisions hereof (including, without limitation, provision for adjustment of
the Warrant Price) shall thereafter be applicable, as nearly equivalent as may
be practicable in relation to any shares of stock, securities or assets
thereafter deliverable upon the exercise hereof.
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(c) An
adjustment to the Warrant Price shall become effective immediately after the
effective date of each other event which requires an adjustment.
(d) In
the event that, as a result of an adjustment made pursuant to this Section 8, the
Warrantholder shall become entitled to receive any shares of capital stock of
the Company other than shares of Common Stock, the number of such other shares
so receivable upon exercise of this Warrant shall be subject thereafter to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Warrant Shares contained in
this Warrant.
Section
9. Fractional
Interest. The
Company shall not be required to issue fractions of Warrant Shares upon the
exercise of this Warrant. If any fractional share of Common Stock would, except
for the provisions of the first sentence of this Section 9, be
deliverable upon such exercise, the Company, in lieu of delivering such
fractional share, shall pay to the exercising Warrantholder an amount in cash
equal to the fair market value as determined by the Board of Directors of the
Company of such fractional share of Common Stock on the date of
exercise.
Section
10. Benefits. Nothing
in this Warrant shall be construed to give any person, firm or corporation
(other than the Company and the Warrantholder) any legal or equitable right,
remedy or claim, it being agreed that this Warrant shall be for the sole and
exclusive benefit of the Company and the Warrantholder.
Section
11. Notices to
Warrantholder. Upon
the happening of any event requiring an adjustment of the Warrant Price, the
Company shall promptly give written notice thereof to the Warrantholder at the
address appearing in the records of the Company, stating the adjusted Warrant
Price and the adjusted number of Warrant Shares resulting from such event and
setting forth in reasonable detail the method of calculation and the facts upon
which such calculation is based. Failure to give such notice to the
Warrantholder or any defect therein shall not affect the legality or validity of
the subject adjustment.
Section
12. Notices. Unless
otherwise provided, any notice required or permitted under this Warrant shall be
given in writing and shall be deemed effectively given as hereinafter described
(i) if given by personal delivery, then such notice shall be deemed given
upon such delivery, (ii) if given by telex or facsimile, then such notice
shall be deemed given upon receipt of confirmation of complete transmittal,
(iii) if given by electronic mail, upon confirmation of delivery when directed
to the electronic mail address set forth below, (iv) if given by mail, then such
notice shall be deemed given upon the earlier of (A) receipt of such notice
by the recipient or (B) three days after such notice is deposited in first
class mail, postage prepaid, and (v) if given by an internationally
recognized overnight air courier, then such notice shall be deemed given one
business day after delivery to such carrier. All notices shall be addressed as
follows: if to the Warrantholder, at its address as set forth in the Company’s
books and records and, if to the Company, at the address as follows, or at such
other address as the Warrantholder or the Company may designate by ten days’
advance written notice to the other: Tegal Corporation, 2201 South
McDowell Boulevard, Petaluma, California 94954, Attention: Chief Executive
Officer, Fax: (707) 763-0415, e-mail: tmika@tegal.com.
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Section
13. Successors. All
the covenants and provisions hereof by or for the benefit of the Warrantholder
shall bind and inure to the benefit of its respective successors and assigns
hereunder.
Section
14. Governing Law; Consent to
Exclusive Jurisdiction; Dispute Resolution. The laws of the State
of Delaware shall govern the validity of this Warrant and the construction and
interpretation of its terms. Any legal action or proceeding with respect
to this Warrant shall be brought in the Court of Chancery of the State of
Delaware. By delivery or acceptance of this Agreement, each of the Company
and Warrantholder accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid court and irrevocably
consents to the service of process of the aforementioned court in any such
action or proceeding by the mailing of copies thereof by certified mail, postage
prepaid, to the Party pursuant to Section
12.
Section
15. Cashless
Exercise.Notwithstanding
any other provision contained herein to the contrary, the Warrantholder may
elect to receive, without the payment by the Warrantholder of the aggregate
Warrant Price in respect of the shares of Common Stock to be acquired, shares of
Common Stock equal to the value of this Warrant or any portion hereof by the
surrender of this Warrant (or such portion of this Warrant being so exercised)
together with the Net Issue Election Notice annexed hereto as Appendix B duly
executed, at the office of the Company. Thereupon, the Company shall issue to
the Warrantholder such number of fully paid, validly issued and nonassessable
shares of Common Stock as is computed using the following formula:
X = Y(A-B)
A
where
X = the
number of shares of Common Stock which the Warrantholder has then requested be
issued to the Warrantholder;
Y = the
total number of shares of Common Stock covered by this Warrant which the
Warrantholder has surrendered at such time for cash-less exercise (including
both shares to be issued to the Warrantholder and shares to be canceled as
payment therefor);
A = the
average closing price of the Common Stock on its principal trading market or
exchange for the 10-trading day period immediately prior to date the net issue
election is made; and
B = the
Warrant Price in effect under this Warrant at the time the net issue election is
made.
Section
16. No Rights as
Stockholder. Prior
to the exercise of this Warrant, the Warrantholder shall not have or exercise
any rights as a stockholder of the Company by virtue of its ownership of this
Warrant.
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Section
17. Amendment;
Waiver. Any
term of this Warrant may be amended or waived upon the written consent of the
Company and the Warrantholder.
Section
18. Section
Headings. The
section headings in this Warrant are for the convenience of the Company and the
Warrantholder and in no way alter, modify, amend, limit or restrict the
provisions hereof.
[Signature page to
follow]
6
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed, as of
the 14th day of
January 2011.
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TEGAL
CORPORATION
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By:
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/s/ Thomas R. Mika
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Name: Thomas
R. Mika
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Title: Chairman,
President and CEO
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ACKNOWLEDGED AND
AGREED:
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By:
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Name: Stephan
Mohren
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APPENDIX
A
TEGAL
CORPORATION
WARRANT
EXERCISE FORM
To Tegal
Corporation:
The
undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant (“Warrant”) for, and to purchase thereunder by
the payment of the Warrant Price and surrender of the Warrant, ________________
shares of Common Stock (“Warrant Shares”) provided for therein, and requests
that certificates for the Warrant Shares be issued as follows:
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Name
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Address
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Federal
Tax ID or Social Security
No.
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and
delivered by certified mail to the above address, or (other (specify):
______________________________).
and, if
the number of Warrant Shares shall not be all the Warrant Shares purchasable
upon exercise of the Warrant, that a new Warrant for the balance of the Warrant
Shares purchasable upon exercise of this Warrant be registered in the name of
the undersigned Warrantholder or the undersigned’s Assignee as below indicated
and delivered to the address stated below.
Dated:
______________________, ______
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Name:
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Address
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Federal
Identification or Social Security No.
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Assignee:
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Note: The
signature must correspond with the name of Warrantholder as written on the first
page of the Warrant in every particular, without alteration or enlargement or
any change whatsoever, unless the Warrant has been assigned.
APPENDIX
B
TEGAL
CORPORATION
NET ISSUE
ELECTION NOTICE
To Tegal
Corporation:
Date:
[_________________________]
The
undersigned hereby elects under Section 15 of
this Warrant to surrender the right to purchase [______________] shares of
Common Stock pursuant to this Warrant and hereby requests the issuance of
[______________] shares of Common Stock. The certificate(s) for the shares
issuable upon such net issue election shall be issued in the name of the
undersigned or as otherwise indicated below.
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Signature
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Name
for Registration
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Mailing
Address
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