EXHIBIT 4.10
Void after 5:00 p.m. Los Angeles, California Time,
on August 8, 2003
This Warrant to Purchase 60,000 shares of Common Stock
THIS WARRANT AND THE SHARES OF COMMON STOCK UNDERLYING THIS WARRANT
(collectively, the "Securities") HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (the "Securities Act") AND MAY NOT BE
SOLD OR TRANSFERRED, UNLESS THE SECURITIES ARE REGISTERED UNDER THE SECURITIES
ACT OR AN EXEMPTION FROM SUCH REGISTRATION UNDER THE SECURITIES ACT IS
APPLICABLE.
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WARRANT TO PURCHASE COMMON STOCK
OF
CAPRIUS, INC.
a Delaware corporation
This is to certify that, FOR VALUE RECEIVED,
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("the Holder"), is entitled to purchase, subject to the provisions of this
Warrant, from Caprius, Inc., a Delaware corporation (the "Company"), Sixty
Thousand (60,000) fully paid, validly issued and non-assessable shares of common
stock, $0.01 par value, of the Company ("Common Stock") at any time from the
date hereof through and including August 8, 2003, subject to earlier termination
in accordance with Section (j) hereof ("Exercise Period"). The Warrant exercise
price shall be Twenty-Five Cents ($0.25) for each share of Common Stock of the
Company. The number of shares of Common Stock to be received upon the exercise
of this Warrant and the price to be paid for each share of Common Stock may be
adjusted from time to time as hereinafter set forth. The shares of Common Stock
deliverable upon such exercise, and as adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Shares" and the exercise price of
a share of Common Stock in effect at any time, and as adjusted from time to
time, is hereinafter sometimes referred to as the "Exercise Price."
(a) Exercise of Warrant. This Warrant may be exercised in whole
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or in part at any time during the Exercise Period. During the Exercise Period
the Holder shall have the right to exercise this Warrant into the kind and
amount of shares of Common Stock (and other securities and property (including
cash) receivable by a holder of the number of shares of Common Stock into which
this Warrant might have been exercisable immediately prior thereto pursuant to
Section (f) hereof). This Warrant, subject to the provisions hereof, may be
exercised by presentation and surrender hereof to the Company at its principal
office, or at the office of its stock transfer agent, if any, with the Purchase
Form annexed hereto duly executed and accompanied by payment (by certified check
or wire transfer) of the Exercise Price for the number of Warrant Shares
specified in such form. As soon as practicable after each such exercise of the
Warrant, but not later than five (5) business days from the date of such
exercise, the Company shall issue and deliver to the Holder (or the person
designated in the Purchase Form) a certificate or certificates for the Warrant
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Shares issuable upon such exercise, registered in the name of the Holder or its
designee. The Common Stock and any Warrants issued in exchange for this Warrant
shall be issued with such restrictive legends as are required by the Act or the
Regulations thereunder. If this Warrant should be exercised in part only, the
Company shall, upon surrender of this Warrant for cancellation, execute and
deliver a new Warrant evidencing the rights of the Holder thereof to purchase
the balance of the Warrant Shares purchasable thereunder.
(b) Reservation of Shares. The Company shall at all times
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reserve for issuance and/or delivery upon exercise of this Warrant such number
of shares of its Common Stock as shall be required for issuance and delivery
upon exercise of the Warrant.
(c) Fractional Shares. No fractional shares or script
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representing fractional shares shall be issued upon the exercise of this
Warrant. With respect to any fraction of a share called for upon any exercise
hereof, the Company shall pay to the Holder an amount in cash equal to such
fraction multiplied by the current market value of a share (the "Trading
Price"), determined as follows:
(1) If the Common Stock is listed on a National Securities
Exchange or admitted to unlisted trading privileges on such Exchange or listed
for trading on the NASDAQ System, the current market value shall be the last
reported sale price of the Common Stock on such Exchange or System on the last
business day prior to the date of exercise of this Warrant or if no such sale is
made on such day, the average closing bid and asked prices for such day on such
Exchange or System; or
(2) If the Common Stock is not so listed or admitted to
unlisted trading privileges, the current market value shall be the mean of the
last reported bid and asked prices reported by the National Quotation Bureau,
Inc. on the last business day prior to the date of the exercise of this Warrant;
or
(3) If the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and asked prices are not so reported, the
current market value shall be an amount not less than book value thereof as at
the end of the most recent fiscal year of the Company ending prior to the date
of the Warrant, determined in such reasonable manner as may be prescribed by the
Board of Directors of the Company.
(d) Exchange, Transfer Assignment or Loss of Warrant. This
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Warrant is exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof to the Company or at the office of its stock
transfer agent, if any, for other warrants of different denominations entitling
the holder thereof to purchase in the aggregate the same number of shares of
Common Stock purchasable hereunder. Upon surrender of this Warrant to the
Company at its principal office or at the office of its stock transfer agent, if
any, with the Assignment Form annexed hereto duly executed and funds sufficient
to pay any transfer tax, the Company shall, without charge, execute and deliver
a new Warrant in the name of the assignee named in such instrument of assignment
and this Warrant shall promptly be canceled. The term "Warrant" as used herein
includes any Warrants into which this Warrant may be divided or exchanged for
this Warrant, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will execute and deliver a new Warrant of
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like tenor and date. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not this Warrant so lost, stolen, destroyed, or mutilated shall be at
any time enforceable by anyone.
(e) Rights of the Holder. The Holder shall not, by virtue
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hereof, be entitled to any rights of a stockholder in the Company, either at law
or equity except with respect to certificates representing shares of Common
Stock issued upon exercise of this Warrant. 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. Prior to due presentment for registration
or transfer of this Warrant, the Company may deem and treat the Holder as the
absolute owner of this Warrant for purposes of any exercise hereof and for all
other purposes of the Company shall not be affected by any notice to the
contrary.
(f) Anti-Dilution Provisions. The Exercise Price in effect at
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any time and the number and kind of securities purchasable upon the exercise of
the Warrants shall be subject to adjustment from time to time upon the happening
of certain events as follows:
(1) In case the Company shall (i) declare a stock 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 share 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 outstanding
immediately prior to such action. Such adjustment shall be made successively
whenever any event listed above shall occur.
(2) Whenever the Exercise Price payable upon exercise of
each Warrant is adjusted pursuant to Subsection (1) 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.
(3) Whenever the Exercise Price is adjusted, as herein
provided, the Company 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 Holders, at their last addresses appearing in the
Warrant register, and shall cause a certified copy thereof to be mailed to its
transfer agent, if any. 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 (f), and a certificate signed by such firm shall be conclusive evidence
of the correctness of such adjustment.
(4) In the event that at any time, as a result of an
adjustment made pursuant to Subsection (1) above, the Holder of this Warrant
thereafter shall become entitled to receive any shares of the Company, other
than Common Stock, thereafter the number of such other shares so receivable upon
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exercise of this Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Common Stock contained in Subsection (1) above.
(5) Irrespective of any adjustments in the Exercise Price
or the number or kind of shares purchasable upon exercise of this Warrant,
Warrants theretofore or thereafter issued may continue to express the same price
and number and kind of shares as are stated in the similar Warrants initially
issuable pursuant to this Agreement.
(g) Officer's Certificate. Whenever the Exercise Price shall be
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adjusted as required by the provisions of Section (f) hereof, the Company shall
forthwith file in the custody of its Secretary or an Assistant Secretary at its
principal office and with its stock transfer agent, if any, an officer's
certificate showing the adjusted Exercise Price determined as herein provided,
setting forth in reasonable detail the facts requiring such adjustment,
including a statement of the number of additional shares of Common Stock, if
any, and such other facts as shall be necessary to show the reason for and the
manner computing such adjustment. Each such officer's certificate shall be made
available at all reasonable times for inspection by the Holder or any holder of
a Warrant executed and delivered pursuant to Section (h) hereof and the Company
shall forthwith after each such adjustment, mail a copy by certified mail of
such certificate to the Holder or any such holder.
(h) Notices to Warrant Holders. So long as this Warrant shall be
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outstanding, (i) if the Company shall pay any dividend or make any distribution
upon the Common Stock or (ii) if the Company shall offer to all the holders of
Common Stock for subscription or purchase by them of any share of any class or
any other rights or (iii) if the capital reorganization of the Company,
reclassification of the capital stock of the Company, consolidation or merger of
the Company with or into another corporation, sale of all or substantially all
of the property and assets of the Company to another corporation or voluntary or
involuntary dissolution, liquidation or winding up of the Company shall be
effected, then in any such case, the Company shall cause to be mailed to the
Holder, at least ten days prior to the date specified in (x) or (y) below, as
the case may be, a notice containing a brief description of the proposed action
and stating the date on which (x) a record is to be taken for the purpose of
such dividend, distribution or rights, or (y) such reclassification,
reorganization, consolidation, merger, sale, dissolution, liquidation or winding
up is to take place and date, if any is to be fixed, as of which the holders of
the Common Stock or other securities shall receive cash or other property
deliverable upon such reclassification, reorganization, consolidation, merger,
conveyance, dissolution, liquidation or winding up. Notwithstanding the above,
the failure to give such notice shall not affect the validity of any transaction
for which the notice was required to be given.
(i) Reclassification, Reorganization or Merger. In case of any
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reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the Company, or in case of any consolidation or merger of the
Company with or into another corporation, other than a merger with a subsidiary,
in which merger the Company is the continuing corporation and which does not
result in any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the class issuable upon exercise of this
Warrant, or in case of any sale to another corporation of the property of the
Company as an entirety, the Company shall, as a condition precedent to such
transaction, cause effective provisions to be made so that the Holder shall have
the right thereafter by exercising this Warrant at any time prior to the
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expiration of the Warrant, to purchase the kind and amount of shares of stock
and other securities and property receivable upon such reclassification, capital
reorganization and other change, consolidation, merger or sale by a holder of
the number of shares of Common Stock which might have been purchased upon
exercise of this Warrant immediately prior to such reclassification, change
consolidation, merger or sale; provided that, the resulting entity is a publicly
traded corporation, otherwise this Warrant shall terminate upon the closing of
such transaction to the extent then unexercised. Any such provision shall
include provision for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Warrant. The foregoing
provisions of this Section (i) shall similarly apply to successive
reclassification, capital reorganizations and changes of shares of Common Stock
and to successive consolidations, mergers or sales. In the event that in
connection with any such capital reorganization any shares of Common Stock shall
be issued in exchange, conversion, substitution or payment, in whole or in part,
for a security of the Company other than Common Stock, any such issue shall be
treated as an issue of Common Stock covered by the provisions of Subsection (1)
of Section (f) hereof.
(j) Callable Warrant. This Warrant may be called by the Company,
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at its discretion, if the average Trading Price (as defined in Section (c)
hereof) for any period of twenty (20) consecutive trading days equals or exceeds
180% of the then Exercise Price. The call price shall be $.01 per share of
Common Stock exercisable under this Warrant. In case the Company decides to call
this Warrant, it shall give written notice to the Holder at least ten (10) days
prior to the proposed call date (the "Call Date") describing the call. Any right
to exercise this warrant shall terminate at 5:00 P.M., Los Angeles time, on the
Call Date.
(k) Registration. If at any time prior to the Expiration Date
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the Company proposes to register shares of its Common Stock under the Securities
Act on any form for the registration of its Common Stock under the Securities
Act (the "Registration Statement") for the account of stockholders (other than a
registration relating to (i) a registration of a stock option, stock purchase or
compensation or incentive plan or of stock issued or issuable pursuant to any
such plan, or a dividend investment plan; (ii) a registration of securities
proposed to be issued in exchange for securities or assets of, or in connection
with a merger or consolidation with, another corporation; or (iii) a
registration of securities proposed to be issued in exchange for other
securities of the Company) in a manner which would permit registration of the
Shares for sale to the public under the Securities Act (a "Piggyback
Registration"), it will at such time give prompt written notice to the Holder
within 30 days of its intention to do so and of the Holder's rights under this
Section (k). Such rights are referred to hereinafter as "Piggyback Registration
Rights". Upon the written request of the Holder to the Company made within ten
(10) days after the giving of any such notice (which request shall specify the
number of Shares intended to be disposed of by the Holder and the intended
method of disposition thereof), the Company will include in the Registration
Statement the Shares which the Company has been so requested to register by the
Holder, provided that the Company's obligation shall continue after exercise of
the Warrants, but it need not include any Shares in a Registration Statement
filed after the Expiration Date.
(1) If, any time after giving written notice of its
intention to register any securities in a Piggyback Registration but prior to
the effective date of the related Registration Statement filed in connection
with such Piggyback Registration, the Company shall determine for any reason not
to register such securities, the Company will give written notice of such
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determination to the Holder and thereupon shall be relieved of its obligation to
register any Shares in connection with such Piggyback Registration.
(2) The Holder may elect in writing, not later than three
(3) business days prior to the effectiveness of the Piggyback Registration not
to have his Shares so included in connection with the Registration Statement.
(3) If the securities covered by the Registration Statement
are to be underwritten, the Company shall not be required to include therein any
of the Shares unless the Holder accepts the terms of the underwriting as agreed
upon between the Company and the underwriters selected by it. If in the opinion
of the managing underwriter, the registration of all, or a part of, the Shares
which the Holder has requested to be included in the Registration Statement
would adversely affect such public offering, then, (i) the Company shall be
required to include in the underwriting only the number of Shares, if any, which
the managing underwriter believes may be sold without causing such adverse
effect, and the number of Shares that may be included in such registration shall
be allocated among all selling stockholders, requesting to participate in such
registration in proportion (as nearly as practicable) to the amount of shares of
Common Stock owned by each selling stockholder (including the Holder), or (ii)
the Company may require the selling shareholders (including the Holder) to delay
any offering of the Shares for a period of up to ninety (90) days.
(4) The Company is obligated to file only one Registration
Statement pursuant to this Section 7 which is declared effective under the
Securities Act. The Piggyback Registration Rights under this Section __ are the
only rights granted by the Company to the Holder to include the Warrant Shares
in a Registration Statement.
(l) Miscellaneous.
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(1) Binding Effect. The terms and conditions of this
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Warrant shall be binding upon and shall inure to the benefit of the Company and
the Holder.
(2) Successors and Assigns. All the covenants and
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provisions of this Warrant by or for the benefit of the Company and the Holder
shall bind and inure to the benefit of their respective successors and permitted
assigns hereunder.
(3) Entire Agreement. This Warrant is intended by the
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parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights under the Securities Act granted
by the Company with respect to this Warrant or the Warrant Shares. This Warrant
is issued pursuant to a Settlement Agreement and Mutual Release of All Claims,
dated as of August __ 2000, among the Company, Kessler and the other parties
thereto. This Warrant supersedes all prior agreements and understandings between
the parties with respect to the subject matter herein.
(4) Amendments and Waivers. This Warrant may not be
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amended, modified or terminated except by a writing signed by all parties.
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(5) Governing Law. This Warrant shall be governed by and
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construed in accordance with the laws of the State of Delaware.
(6) Notices. All written notices, demands or requests of
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any kind, which either party may be required or may desire to serve on the other
in connection with this Warrant, must be served by registered or certified mail,
with postage prepaid and return receipt requested, to the following address:
If to the Holder, to:
Saundra J. Kessler as guardian for
Nicholas C. Kessler, a minor
253A 26th Street
Suite 200
Santa Monica, California 90402
If to the Company, to:
Caprius, Inc.
One Parker Place
Fort Lee, New Jersey 07024
Attn: George Aaron, President
or to such other address as either party hereto may duly give to the other. In
lieu of mailing, either party may cause delivery of such notices, demands and
requests to be made by personal service, provided that acknowledgement of
receipt is made. Notice shall be deemed given upon personal delivery or prepaid
three (3) days after depositing in the U.S. Mail, postage.
(7) Headings. The Article and Section headings herein are
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for convenience only and are not part of this Warrant and shall not effect the
interpretation thereof.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed and attested by the Undersigned, each being duly authorized, as of the
date below.
Caprius, Inc., a Delaware Corporation
By:
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Name: George Aaron
Title: President
Dated: , 2000
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PURCHASE FORM
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Dated: , 200
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The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing shares of Common Stock and hereby makes
payment of , in payment of the actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name:
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(Please typewrite or print in block letters)
Address:
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Signature:
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Tax Identification Number:
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ASSIGNMENT FORM
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FOR VALUE RECEIVED,
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hereby sells, assigns and transfers unto
Name:
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(Please typewrite or print in block letters)
Address:
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the right to purchase Common Stock represented by this Warrant to the extent of
shares as to which such right is exercisable and does hereby
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irrevocably constitute and appoint Attorney, to transfer
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the same on the book of Caprius, Inc. with full power of substitution in the
premises.
Date: , 200
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Signature:
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