PERFORMANCE HEALTH TECHNOLOGIES, INC.
AMENDED AND RESTATED STOCK PURCHASE WARRANT
For value received, Performance Health Technologies, Inc., a
corporation of the State of Delaware (the "Company"), promises to deliver to
____________ ("Holder") a certificate for ____________ fully-paid and
non-assessable shares of the Common Stock of the Company, as constituted at the
time of purchase, upon presentation and surrender of this Warrant duly endorsed
at any time on or before December 31, 2010 at the office or agency of the
Company, upon payment of the purchase price of $.25 per share therefor;
provided, any such exercise shall be for whole shares of Common Stock and no
fractional shares shall be issued hereunder.
It is expressly understood that the number of shares of stock called
for hereunder shall be good delivery hereunder whether or not the rights or
interests represented by such shares are equivalent to the rights or interests
represented by the shares of Common Stock of the Company authorized or
outstanding at the date hereof or at any other time prior to such purchase and
irrespective of any change which may have occurred prior to the exercise hereof
including (without prejudice to the generality of the foregoing) any change by
way of payment of stock dividends, sale, exchange, or other disposition of any
class of stock of the Company, any change of authorized capital or
reclassification thereof, the sale or lease by the Company of all or
substantially all or any part of its property or any change whatsoever;
PROVIDED, HOWEVER, that if, while this Warrant is in effect, the shares of such
Common Stock which the holder hereof may be entitled to purchase in accordance
with the provisions hereof shall be subdivided or consolidated into a greater or
lesser number of shares of Common Stock of the Company, or if, upon a merger or
consolidation, the shares of such Common Stock of the Company shall be exchanged
for shares of Common Stock of the Company resulting from such merger or
consolidation, then the holder hereof shall be entitled to purchase such number
of new shares of Common Stock of the Company or such number of shares of Common
Stock of the Company resulting from such merger or consolidation as were
exchangeable for the number of shares of Common Stock of the Company which the
holder would have been entitled to purchase except for such action, but no such
change in the number of shares purchasable hereunder shall increase or decrease
the total purchase price payable hereunder. Whenever in this Warrant the Company
is referred to this shall be deemed to include any corporation into which the
Company may have been merged or consolidated.
This Warrant does not entitle the holder hereof to any rights
whatsoever as a stockholder of the Company.
This Warrant may be redeemed, at the option of the Company, on not
less than thirty (30) days prior notice to the registered holder hereof, at the
Redemption Price. The date fixed for redemption is referred to herein as the
"Redemption Date." If the Company desires to exercise its right to redeem this
Warrant, the Company shall mail a notice of redemption (the "Redemption Notice")
to the registered holder, certified mail, return receipt requested, not later
than the 30th day before the Redemption Date, at the registered holder's last
address as shall appear on the Company's books. The Redemption Notice shall
specify (i) the Redemption Price, (ii) the Redemption Date, (iii) the place
where this Warrant shall be delivered and the Redemption Price to be paid, and
(iv) that the right to exercise this Warrant shall terminate at 5:00 p.m.
(Colorado time) on the business day immediately preceding the Redemption Date.
"Redemption Price" shall mean $.10 per share of Common Stock for which this
Warrant may be exercised. Any right to acquire Common Stock pursuant to the
exercise of this Warrant shall terminate at 5:00 p.m. (Colorado time) on the
business day immediately preceding the Redemption Date. On and after the
Redemption Date, the Registered Holder shall have no further rights except to
receive, upon surrender of this Warrant, the Redemption Price. From and after
the Redemption Date, the Company shall, at the place specified in the Redemption
Notice, upon presentation and surrender to the Company by or on behalf of the
registered holder of this Warrant deliver or cause to be delivered to or upon
the written order of the registered holder a sum in cash equal to the Redemption
Price for each this Warrant so presented and surrendered.
Holder understands that this Warrant has been issued without
registration pursuant to the Securities Act of 1933, as amended (the "Act") and
without registration pursuant to any state securities laws, in each case in
reliance upon an exemption from the registration requirements of the Act and
such state securities laws. As a result, Xxxxxx understands that:
THIS WARRANT WAS ACQUIRED WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR OTHER
APPLICABLE STATE SECURITIES LAWS. NO TRANSFER OR SALE OF THIS
WARRANT OR ANY INTEREST THEREIN MAY BE MADE EXCEPT UNDER AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT AND SAID
STATE SECURITIES LAWS COVERING SAID SECURITIES UNLESS THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO if
THAT SUCH TRANSFER OR SALE DOES NOT REQUIRE REGISTRATION UNDER
THE 1933 ACT OR SAID STATE SECURITIES LAWS.
Xxxxxx agrees, represents, and warrants that this Warrant is being acquired for
Xxxxxx's account, and not with a view to or in connection with any offering or
distribution and no public distribution of this Warrant will be made in
violation of the provisions of the Act or applicable state securities laws. In
the event of any permitted transfer of this Warrant, it shall be a condition to
the transfer of any rights set forth in this Warrant that any transferee thereof
deliver to the Company said transferee's written agreement to accept and be
bound by all of the terms and conditions of this Warrant, Holder will be
responsible for any transfer taxes or fees due as a result of any transfer of
this Warrant, and the rights represented by this Warrant will be transferable
only on the books of the Company at the office or agency of the Company, by the
holder hereof in person or by his duly authorized attorney upon surrender of
this Warrant properly endorsed.
Holder understands that Common Stock issued or to-be-issued hereunder
(collectively, the "Securities") have been or will be issued without
registration pursuant to the Securities Act of 1933, as amended (the "Act") and
without registration pursuant to any state securities laws, in each case in
reliance upon an exemption from the registration requirements of the Act and
such state securities laws. As a result, Xxxxxx understands that any document or
certificate evidencing any of the Securities may contain a restrictive legend
substantially as follows:
-2-
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ACQUIRED
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), OR OTHER APPLICABLE STATE
SECURITIES LAWS. NO TRANSFER OR SALE OF THESE SECURITIES OR
ANY INTEREST THEREIN MAY BE MADE EXCEPT UNDER AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT AND SAD STATE
SECURITIES LAWS COVERING SAID SECURITIES UNLESS THE ISSUER
HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO IT THAT
SUCH TRANSFER OR SALE DOES NOT REQUIRE REGISTRATION UNDER THE
1933 ACT OR SAID STATE SECURITIES LAWS.
Upon such issuance Holder further agrees, represents, and warrants that (a) the
Securities are being acquired for Holder's account, and not with a view to or in
connection with any offering or distribution; (b) no public distribution of the
Securities will be made in violation of the provisions of the Act or applicable
state securities laws; and (c) during such period as delivery of a prospectus
with respect to any of the Securities may be required by the Act, no public
distribution of the Securities will be made in a manner or on terms different
from those set forth in, or without delivery of, a prospectus then meeting the
requirements of the Act and in compliance with all applicable state securities
laws. Holder further agrees that if any transfer or distribution of any
Securities is proposed to be made otherwise than pursuant to registration under
the Act and applicable state securities laws, such action shall be taken only
after submission to the Company of an opinion of counsel, reasonably
satisfactory in form and substance to the Company's counsel, to the effect that
the proposed transfer or distribution will not be in violation of the Act or of
applicable state securities laws. Furthermore, it shall be a condition to the
transfer of any rights set forth in this Warrant that any transferee thereof
deliver to the Company said transferee's written agreement to accept and be
bound by all of the terms and conditions of this Warrant. Holder is responsible
for any transfer taxes or fees due as a result of any transfer of any
Securities.
Dated:_______________ PERFORMANCE HEALTH TECHNOLOGIES, INC.
By:
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Title:
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-3-
PERFORMANCE HEALTH TECHNOLOGIES, INC.
WARRANT EXERCISE FORM
To be Executed by the Holder
in Order to Exercise Warrant
The undersigned Holder hereby irrevocably elects to exercise its rights
represented by this Stock Purchase Warrant to purchase ___ shares of Common
stock issuable upon the exercise of this Stock Purchase Warrant and requests
that certificates for such securities shall be issued in the name of the Holder
and be delivered to
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(please print or type name and address)
And if such number of shares of Common Stock shall not be all the shares that
may be acquired pursuant to the exercise of this Stock Purchase Warrant that a
new Stock Purchase Warrant for the balance of such shares be registered in the
name of and delivered to the Holder at the address stated below.
Dated:
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Address
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Taxpayer Identification Number
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Signature Guaranteed
