SECOND AMENDMENT TO WARRANT AGREEMENT
Exhibit
4.24
SECOND
AMENDMENT TO WARRANT AGREEMENT
THIS SECOND AMENDMENT TO WARRANT
AGREEMENT made as of July 2, 2010 (this “Amendment”) amends that certain
Warrant Agreement dated January 12, 2009, as amended September 25, 2009 (the
“Warrant Agreement”) between ProUroCare Medical Inc., a Nevada corporation (the
“Company”) and Interwest Transfer Company Inc., a Utah corporation (the “Warrant
Agent”). Capitalized terms that are used and not defined in
this Amendment shall have the meanings assigned to them in the Warrant
Agreement.
WITNESSETH:
WHEREAS, the Company is
engaged in a tender offer (the “Tender Offer”) to promote the early exercise of
all of the Warrants that are the subject of the Warrant Agreement, and the terms
of the Warrants have been temporarily modified during the period of such Tender
Offer, which, as defined by the documents relating to the Tender Offer, is the
period from July 2, 2010 until August 2, 2010 at 4 P.M. Central Time, unless
earlier withdrawn or otherwise extended by the Company (the “Offer Period”), so
that each Warrant holder who tenders a Warrant for early exercise will receive,
in addition to the shares of Common Stock purchased upon exercise, one new
three-year redeemable warrant to purchase the same number of shares of Common
Stock at an exercise price of $1.30 per share (the “2010 Replacement Warrant”);
and
WHEREAS, as a result of the
Tender Offer, the Company may issue and deliver 2010 Replacement Warrants to
purchase up to 5,750,536 shares of Common Stock to those Warrant holders who
tender their Warrants for early exercise during the Offer Period;
and
WHEREAS, the Company desires
the Warrant Agent to act on behalf of the Company, and the Warrant Agent is
willing to so act, in connection with the issuance, registration, transfer,
exchange, redemption and exercise of the 2010 Replacement Warrants;
and
WHEREAS, Section 9(h) of the
Warrant Agreement provides that the Warrant Agreement may be amended by the
parties thereto without the consent of any Registered Holder for the purpose of
adding or changing any provisions with respect to matters arising under the
Warrant Agreement as the parties may deem necessary or desirable and that the
parties deem shall not adversely affect the interest of the Registered Holders;
and
WHEREAS, the parties desire to
amend the Warrant Agreement to expand the scope of the Warrant Agent’s
appointment to include the 2010 Replacement Warrants in addition to the
Warrants, and the parties deem that such amendment does not adversely affect the
interest of the Registered Holders.
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Exhibit
4.24
NOW, THEREFORE, in
consideration of the foregoing and the mutual agreements herein contained, and
intending to be legally bound hereby, the Company and the Warrant Agent hereby
agree as follows:
1. Definition of “Warrants” to
Include Replacement Warrants. The term “Warrants” as used in
the Warrant Agreement shall be deemed to include the Public Warrants, the
Private Warrants, the Replacement Warrants and the 2010 Replacement
Warrants.
2. Amendment to Section
3(b). Section 3(b) of the Warrant Agreement shall be deleted
in its entirety and replaced with the following:
“(b) Duration of
Warrants. A Public Warrant or Private Warrant may be exercised
only during the period commencing on the 30th day following the date of the
prospectus with respect to the Company’s Public Offering, and terminating at
5:00 p.m., Minneapolis, Minnesota time on the earlier to occur of (i) January 7,
2014 or (ii) the date fixed for redemption of the Public Warrants and Private
Warrants as provided in Section 6 of this Warrant Agreement. A
Replacement Warrant may be exercised only during the period commencing November
12, 2009, and terminating at 5:00 p.m., Minneapolis, Minnesota time on the
earlier to occur of (i) November 12, 2012 or (ii) the date fixed for redemption
of the Replacement Warrants as provided in Section 6 of this Warrant
Agreement. A 2010 Replacement Warrant may be exercised only during
the period commencing on the closing date of the offering, which shall be a date
promptly following expiration of the Offer Period (the “Closing Date”), and
terminating at 5:00 p.m., Minneapolis, Minnesota time on the earlier to occur of
(i) the three-year anniversary of the Closing Date or (ii) the date fixed for
redemption of the Replacement Warrants as provided in Section 6 of this Warrant
Agreement. The term “Exercise Period” as used in this Warrant
Agreement refers to the period during which a Warrant may be exercised in
accordance with the foregoing sentences, and the term “Expiration Date” as used
in this Warrant Agreement refers to the last date of the applicable Exercise
Period as set forth in the foregoing sentences. Except with respect
to the right to receive the Redemption Price (as set forth in Section 6
hereunder), each Warrant not exercised on or before the applicable 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 applicable Expiration Date. The Company in its
sole discretion may extend the duration of the Warrants by delaying the
applicable Expiration Date; provided, however, that the Company will provide
notice to Registered Holders of Warrants of such extension not less than 20 days
prior to such extension becoming effective.”
3. Amendment to Section
6(a). Section 6(a) of the Warrant Agreement shall be deleted
in its entirety and replaced with the following:
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Exhibit
4.24
“(a) Redemption. Subject
to Section 6(d) hereof, not less than all of the outstanding Public Warrants and
Private Warrants together may be redeemed, at the option of the Company, at any
time after they become exercisable and prior to their expiration, at the office
of the Warrant Agent, upon the notice referred to in Section 6(b), at the price
of $0.01 per Public Warrant and Private Warrant, provided that the last sales
price of the Common Stock has been equal to or greater than $1.82 per share, for
10 consecutive trading days; provided, however, that the Private Warrants issued
pursuant to the Underwriter’s Warrant may not be redeemed prior to one year
following the date of the prospectus with respect to the Company’s Public
Offering and following the notice period required by Section
6(b). Subject to Section 6(d) hereof, not less than all of the
outstanding Replacement Warrants may be redeemed, at the option of the Company,
at any time after they become exercisable and prior to their expiration, at the
office of the Warrant Agent, upon the notice referred to in Section 6(b), at the
price of $0.01 per Replacement Warrant, 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. Subject to Section 6(d) hereof, not less
than all of the outstanding 2010 Replacement Warrants may be redeemed, at the
option of the Company, at any time after they become exercisable and prior to
their expiration, at the office of the Warrant Agent, upon the notice referred
to in Section 6(b), at the price of $0.01 per Replacement Warrant, 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. The term “Redemption
Price” as used in this Warrant Agreement refers to the price per share to be
paid by the Company to redeem any of the Public Warrants, Private Warrants,
Replacement Warrants or 2010 Replacement Warrants.”
4. Amendment to Section
6(b). Section 6(b) of the Warrant Agreement shall be deleted
in its entirety and replaced with the following:
“(b) Date Fixed for, and Notice
of, Redemption. In the event the Company shall elect to redeem
all of the Public Warrants and Private Warrants together, all of the Replacement
Warrants, or all of the 2010 Replacement Warrants, the Company shall fix a date
for such redemption. Notice of redemption shall be mailed by first class mail,
postage prepaid, by the Company not less than 30 days prior to the date fixed
for redemption to the Registered Holders of the Warrants to be redeemed at their
last addresses as they shall appear on the Warrant Register. Any notice mailed
in the manner herein provided shall be conclusively presumed to have been duly
given whether or not the Registered Holder received such
notice.”
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Exhibit
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5. Amendment to Section
7(d). Section 7(d) of the Warrant Agreement shall be deleted
in its entirety and replaced with the following:
“(d) Registration
Requirement. Notwithstanding anything else in this Warrant
Agreement, no Warrants may be exercised unless at the time of exercise (i) a
registration statement covering the shares of Common Stock to be issued upon
exercise (other than shares of Common Stock to be issued upon exercise of any
Private Warrant) is effective under the Act and (ii) a prospectus thereunder
relating to the shares of Common Stock (other than shares of Common Stock to be
issued upon exercise of any Private Warrant) is current. The Company
shall use its best efforts to have a registration statement in effect covering
the shares of Common Stock issuable upon exercise of the Warrants (other than
shares of Common Stock to be issued upon exercise of any Private Warrant) from
the date the Warrants become exercisable and to maintain a current prospectus
relating to shares of Common Stock to be issued upon exercise of the Warrants
(other than shares of Common Stock to be issued upon exercise of any Private
Warrant) until such warrants expire or are redeemed. In the event
that, at the end of the Exercise Period, a registration statement covering the
shares of Common Stock to be issued upon exercise of the Warrants (other than
shares of Common Stock to be issued upon exercise of any Private Warrant) is not
effective under the Act, the Exercise Period shall be extended until a
registration statement covering the shares of Common Stock to be issued upon
exercise of the Warrants (other than shares of Common Stock to be issued upon
exercise of any Private Warrant) is effective under the Act and 30 days’ notice
of such effectiveness has been provided to the Registered Holders of any
then-outstanding Warrants. Upon such 30 days’ written notice of such
effectiveness to the Registered Holders of any then-outstanding Warrants, all
the rights of holders hereunder shall terminate and all of the Warrants shall
expire unexercised and worthless. In no event shall the Warrants be
settled on a net cash basis nor shall the Company be required to issue
unregistered shares upon the exercise of any Warrant that is not a Private
Warrant. This Section 7(d) shall not work to shorten the Exercise
Period of the Warrants.”
6. Amendment to Exhibit
A. Exhibit A to the Warrant Agreement is hereby amended to
label the present form of warrant set forth in Exhibit A as “Form of Public
Warrant and Private Warrant,” to insert the form of Replacement Warrant attached
hereto immediately following the Form of Public Warrant and Private Warrant and
to insert the form of 2010 Replacement Warrant attached hereto immediately
following the form of Replacement Warrant.
7. Binding
Effect. Except to the extent expressly provided herein, the
Warrant Agreement shall remain in full force and effect in accordance with its
terms. This Amendment shall be governed by and construed as one with
the Warrant Agreement, and the Warrant Agreement shall be read and construed so
as to incorporate this Amendment.
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Exhibit
4.24
8. Governing
Law. This Amendment shall be governed by and construed in
accordance with the law of the State of Utah applicable to contracts made in
Utah by persons domiciled in Salt Lake City and without regard to its principles
of conflicts of laws.
9. Counterparts;
Effectiveness. This Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
IN WITNESS
WHEREOF, this Second Amendment to Warrant Agreement has been
duly executed by the parties hereto as of the day and year first above
written.
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By:
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Its:
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Chief
Executive Officer
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INTERWEST
TRANSFER COMPANY INC.
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By:
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Its:
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Vice
President
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