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EXHIBIT 4.5
NO. WC-__
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VISTA LASER CENTERS OF THE PACIFIC, INC.
(Incorporated under the laws of the State of Nevada)
CLASS C COMMON STOCK PURCHASE WARRANTS
_________ SHARES OF COMMON STOCK
VOID AFTER 5:00 P.M. ON ___________________, 2001 (FIVE YEARS AFTER EFFECTIVE
DATE OF PROSPECTUS)
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This is to certify that, for value received, receipt of which is hereby
acknowledged, ________________________________, (herein called the "holder"), is
entitled to purchase from VISTA LASER CENTERS OF THE PACIFIC, INC., a Nevada
corporation (hereinafter called the "Company"), at the warrant exercise price of
SIX DOLLARS ($6.00) per share, subject to adjustment as hereinafter provided
(hereinafter called the "Warrant Price"), at any time on or before the
expiration date set forth below, up to _________________________________________
(_______) fully paid and non-assessable shares of Common Stock of the Company
(hereinafter called "Common Stock"), subject to the terms and conditions hereof,
including such adjustments as may be required under the terms hereof.
For the purposes of this Warrant, the Expiration Date shall mean 5:00
P.M. Pacific time on date of the fifth anniversary of the effective date for the
Company's registration statement for the public offering in which this Warrant
was distributed to the public (the "IPO").
This Warrant was originally issued during 1996 as part of an issue of
Class C common stock purchase warrants (herein called the "Warrants") as a
registered public offering of Units consisting of two (2) shares of Company
Common Stock and one Class C Warrant by the Company. This Warrant represents
part of such public distribution of securities and is herein called "this
Warrant."
This Warrant may be exercised by the holder as hereinabove provided as
to the whole or any part of the shares of Common Stock covered hereby, by
surrender of this Warrant at the principal office of any transfer agent for the
Common Stock, or, if the Company shall not have any transfer agent for the
Common Stock, at the principal office of the Company (any such transfer agent,
or the Company acting hereunder, being hereinafter called the "Warrant Agent"),
with the statement of election to subscribe attached hereto duly executed and
upon payment to the Company of the Warrant Price for shares so purchased in cash
or by certified check or bank draft. Thereupon (except that if, upon such date,
the stock transfer books of the Company shall be closed, then upon the next
succeeding date on which such transfer books are open), this Warrant shall be
deemed to have been exercised and the person exercising the same to have become
a holder of record of shares of Common Stock purchased hereunder for all
purposes, and certificates for such shares so purchased shall be delivered to
the purchaser within a reasonable time (not exceeding five business days, except
while the transfer books of the Company are closed) after this Warrant shall
have been exercised as set forth hereinabove. If this Warrant shall be exercised
in respect of a part only of the shares of Common
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Stock covered hereby, the holder shall be entitled to receive a similar warrant
of like tenor and date covering the number of shares in respect of which this
Warrant shall not have been exercised.
The Company covenants and agrees that all shares which may be issued
upon the exercise of the rights represented by this Warrant will, upon issuance,
be validly issued, fully paid and non-assessable and free from all taxes, liens
and charges with respect to the issue thereof (other than taxes in respect of
any transfer occurring contemporaneously with such issue). The Company further
covenants and agrees that, during the period within which the rights represented
by this Warrant may be exercised, the Company will at all times have authorized
and reserved a sufficient number of shares of Common Stock to provide for the
exercise of the rights represented by this Warrant.
The rights of the holder of this Warrant shall be subject to the
following terms and conditions:
SECTION 1. CERTAIN ADJUSTMENTS AND NOTICES
1.1. In case the Company shall hereafter at any time change as a whole,
by split-up, subdivision or combination in any manner or by the making of a
stock dividend, the number of outstanding shares of Common Stock into a
different number of shares of Common Stock with or without par value, (i) the
number of shares of Common Stock which immediately prior to such change the
holder of this Warrant shall have been entitled to purchase pursuant to this
Warrant shall be increased or decreased in direct proportion to the increase or
decrease, respectively, in the number of shares of Common Stock outstanding
immediately prior to such change, and (ii) the Warrant Price in effect
immediately prior to such change shall be increased or decreased, as the case
may be, in inverse proportion to such increase or decrease in the number of such
shares outstanding immediately prior to such change; in any such event, the
rights of the holder of this Warrant to an adjustment in the number of shares of
Common Stock purchasable on exercise of this Warrant as herein provided shall
continue and be preserved in respect of any shares, securities, or assets which
the holder of this Warrant becomes entitled to purchase hereafter.
1.2. In case of any capital reorganization or any reclassification of
the capital stock of the Company, or in the case of the consolidation or merger
of the Company with another corporation, or in case of any sale, transfer or
other disposition to another corporation of all or substantially all of the
property, assets, business and goodwill of the Company as an entirety, as the
case may be, the holder of this Warrant shall thereafter be entitled to purchase
(and it shall be a condition to the consummation of any such reorganization,
reclassification consolidation, merger, sale, transfer or other disposition that
appropriate provision shall be made so that such holder shall thereafter be
entitled to purchase) the kind and amount of shares of stock and other
securities and property receivable, upon such capital reorganization,
reclassification of capital stock, consolidation, merger, sale, transfer or
other disposition, by a holder of the number of shares of Common Stock which
this Warrant entitled the holder thereof to purchase immediately prior to such
capital reorganization, reclassification of capital stock, consolidation,
merger, sale, transfer or other disposition; and in any such case appropriate
adjustments (as determined in good faith by the Board of Directors of the
Company or of such other corporation, as the case may be) shall be made in the
application of the provisions herein set forth with respect to rights and
interests thereafter of the holder of this Warrant, to the end that the
provisions set forth herein (including the specified changes in and other
adjustments of the Warrant Price) shall thereafter be applicable, as near as
reasonably may be, in relation to any shares or other property thereafter
purchasable upon the exercise of this Warrant.
1.3. In case the Company shall hereafter at any time declare a dividend
upon shares of Common Stock payable otherwise than out of retained earnings or
otherwise than in shares of Common Stock or in stock or obligations directly or
indirectly convertible into or exchangeable for Common Stock, the holder of this
Warrant shall, upon exercise of this Warrant in whole or in part, be entitled to
receive, in addition to the
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number of shares of Common Stock deliverable upon such exercise against payment
of the Warrant Price therefor, but without further consideration, the cash,
stock or other securities or property which the holder of this Warrant would
have received as dividends (otherwise than out of such retained earnings and
otherwise than in shares of Common Stock or in such convertible or exchangeable
stock or obligations) if continuously since the date set forth at the foot of
this Warrant such holder (i) had been the holder of record of the number of
shares of Common Stock deliverable upon such exercise and (ii) had retained all
dividends in stock or other securities (other than shares of Common Stock or
such convertible or exchangeable stock or obligations) paid or payable in
respect of said number of shares of Common Stock or in respect of any such stock
or other securities so paid or payable as such dividends. For purposes of this
Section 1.3, a dividend payable otherwise than in cash shall be considered to be
payable out of retained earnings only to the extent of the fair value of such
dividend as determined by the Board of Directors of the Company.
1.4. No certificates for fractional shares of Common Stock shall be
issued upon the exercise of this Warrant, but in lieu thereof the Company shall,
upon exercise in full of this Warrant, purchase out of funds legally available
therefor any such fractional interest for an amount in cash equal to the current
market value of such fractional interest calculated to the nearest cent,
computed on the basis of the closing sale price, as reported by the National
Association of Securities Dealers, Inc., of the Common Stock in the
over-the-counter market on the most recent day within ten days prior to the date
of such exercise for which such closing prices shall have been so reported, or,
if the Common Stock is listed on a stock exchange registered with the Securities
and Exchange Commission (the "SEC"), the last reported sale price on such
exchange on such day; and if there shall have been no sale on said day, then the
computation shall be made on the basis of the last reported sale price on such
exchange within ten days prior to such date. If there have been no reported
closing sale prices, as the case may be, within such ten days, the current
market value shall be fixed in a manner determined in good faith by the Board of
Directors of the Company.
1.5. Whenever the Warrant Price is adjusted, as herein provided, the
Company shall forthwith file with the Warrant Agent a statement signed by the
President or any one of the Vice Presidents of the Company and by its Treasurer
or an Assistant Treasurer, stating the adjusted Warrant Price determined as
herein provided. Such statement shall show in detail the facts requiring such
adjustment, including a statement of the consideration received by the Company
for any additional securities issued. Whenever the Warrant Price is adjusted,
the Company will forthwith cause a notice stating the adjustment and the Warrant
Price to be mailed to the registered holder of this Warrant at the address of
such holder shown on the books of the Company.
1.6. In case:
(a) the Company shall take a record of the holders of
its Common Stock (or any other securities issuable upon the exercise of
the Warrants) for the purpose of entitling them to receive any dividend
(other than a regular cash dividend at the same rate as the rate of the
last regular cash dividend theretofore paid) or other distribution, or
any right to subscribe for, purchase or otherwise acquire any shares of
stock of any class or any other securities, or to receive any other
right; or
(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation
or merger of the Company with or into another corporation, or any
conveyance of all or substantially all of the assets of the Company to
another corporation; or
(c) of any voluntary or involuntary dissolution,
liquidation or winding up of the Company, then, and in each such case,
the Company shall mail or cause to be mailed to each holder of record
of the Warrants at the time outstanding a notice specifying, as the
case may be, (i) the date on which a record is to be taken for the
purpose of such dividend, distribution or right, and stating
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the amount and character of such dividend, distribution or right, or
(ii) the date on which such reorganization, reclassification,
consolidation, merger, conveyance, dissolution or winding up is to take
place, and the time, if any, is to be fixed, as to which the holders of
record of Common Stock (or such other securities at the time receivable
upon the exercise of the Warrants) shall be entitled to exchange their
shares of Common Stock (or such other securities) for securities or
other property deliverable upon such event. Such notice shall be mailed
at least thirty (30) days prior to the date therein specified and the
Warrants may be exercised prior to said date during the term of the
Warrants.
SECTION 2. REDEMPTION OF WARRANT
2.1. The Company may redeem this Warrant upon the notice (as described
below) at any time and from time to time after the Company's Common Stock shall
have traded in the over-the-counter market or on a stock exchange registered
with the SEC at a bid price equal to or in excess of $8.00 per share for ten
(10) consecutive days. The Warrants represented by this certificate may be
redeemed by the Company in whole or in part, by paying to the holder of record
the sum of Twenty-Five Cents ($.25) per Warrant (the "Redemption Price").
2.2. The Company shall give notice of its election to redeem this
Warrant by mailing a copy of such notice, postage prepaid, to the holder of
record of this Warrant, not less than thirty (30) days nor more than ninety (90)
days prior to the date designated as the date of redemption, addressed to the
holder's address as appearing on the books of the Company or its duly appointed
stock transfer agent. Failure to give notice, or any defect in a notice or in
mailing thereof, will not affect the validity of the redemption.
2.3. Prior to providing the notice to the Warrant holder required by
Section 2.2 above, the Company shall have registered for distribution with the
SEC, and the states wherein at least seventy-five percent (75%) of the holders
of all Warrants to be redeemed reside, an effective and current registration
statement on the number of shares of the Company's Common Stock equal to the
number of Warrants to be redeemed. In the event the Company Common Stock cannot
be registered for distribution in the state in which the holder of this Warrant
resides, the holder shall not be permitted to exercise this Warrant.
2.4. If only a portion of the Company's Class C Warrants then
outstanding is to be redeemed at a given time, the Company shall select the
Class C Warrants to be redeemed by lot or pro rata, in whatever reasonable
manner the Company's Board of Directors shall determine.
2.5. On and after the date of redemption specified in the notice, the
holder of record of this Warrant shall be entitled to receive the Redemption
Price hereof, upon presentation and surrender of this Warrant at the place
designated in such notice.
2.6. From and after the date of the redemption specified in the
required notice (unless the Company defaults in providing money for the payment
of the Redemption Price), all rights of the holder of record of this Warrant
shall cease, except for the right to receive the Redemption Price hereof,
without interest, and this Warrant shall no longer be deemed to be outstanding.
SECTION 3. MISCELLANEOUS
3.1. The issue of any stock or other certificate upon the exercise of
this Warrant shall be made without charge to the registered holder hereof for
any tax in respect of the issue of such certificate. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of any certificate in a name other
than that of the registered holder of this
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Warrant, and the Company shall not be required to issue or deliver any such
certificate unless and until the person or persons requesting the issue thereof
shall have paid to the Company the amount of such tax or shall have established
to the satisfaction of the Company that such tax has been paid.
3.2. This Warrant and all rights hereunder or any portion thereof are
transferable on the books of the Company, upon surrender of this Warrant, with
the form of assignment attached hereto duly executed by the registered holder
hereof or by his attorney duly authorized in writing, to the Warrant agent at
its principal office hereinabove referred to, and thereupon there shall be
issued in the name of the transferee or transferees, in exchange for this
Warrant, a new Warrant or Warrants of like tenor and date, representing in the
aggregate the right to subscribe for and purchase the number of shares, or such
portion thereof as shall be so transferred, which may be subscribed for and
purchased hereunder and if there shall be any balance of such shares not so
transferred, there shall be issued in the name of the registered holder of this
Warrant, a new Warrant or Warrants of like tenor and date representing in the
aggregate the right to subscribe for and purchase the balance of the number of
shares which may be subscribed for and purchased hereunder.
3.3. If this Warrant shall be lost, stolen, mutilated or destroyed, the
Company may instruct the Warrant Agent, on such terms as to indemnify or
otherwise as the Company may in its discretion impose, to 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 an original contractual
obligation of the Company, whether or not the allegedly lost, stolen, mutilated
or destroyed Warrant shall be at any time enforceable by anyone.
3.4. The Company and any Warrant Agent may deem and treat the
registered holder of this Warrant as the absolute owner of this Warrant for all
purposes and shall not be affected by any notice to the contrary.
3.5. This Warrant shall not entitle the holder to any rights of a
stockholder of the Company, either at law or in equity, including, without
limitation, the right to vote, to receive dividends and other distributions, to
exercise any preemptive rights or to receive any notice of meetings of
stockholders or of any other proceedings of the Company.
3.6. This Warrant shall be governed by the laws of the State of
California.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its corporate name by its duly authorized officer as of the day and year written
below.
Dated: ____________________
VISTA LASER CENTERS OF THE PACIFIC, INC.
By: ________________________________
President
Attest:
________________________________
[Assistant] Secretary
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TRANSFER OF WARRANT
For value received ____________________________________________ hereby sells,
assigns and transfers unto ________________________, the right to purchase
_______________ of the shares of Common Stock of VISTA LASER CENTERS OF THE
PACIFIC, INC., a Nevada corporation, which rights are represented by the within
Warrant, and does hereby irrevocably constitute and appoint ____________________
attorney to transfer said rights on the books of the within named Company, with
full power of substitution in the premises.
Dated: ___________________, _____ ___________________________________
(Signature)
____________________________
Signature Guarantee [Medallion
Signature Guarantee]
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ELECTION TO SUBSCRIBE
Date:_________________, _____
To: VISTA LASER CENTERS OF THE PACIFIC, INC.: The undersigned hereby subscribes
for __________ of the shares of Common Stock covered by the within Warrant and
tenders payment herewith in the amount of $_______________ in accordance with
the terms thereof:
Deliver Stock Certificate(s)
[ ] [ ]
Issue Certificate(s) for said Stock by mail against
counter-receipt
TO: TO:
___________________________________ ___________________________________
(Name) (Name)
___________________________________ ___________________________________
(Taxpayer Identification Number) (Street and Number)
___________________________________ ___________________________________
(Street and Number) City State ZIP Code
___________________________________
City State ZIP Code
and if said number of shares shall not be all of the shares covered by the
within Warrant, that a new Warrant for the balance of the shares remaining be
registered in the name of, and delivered, to the registered holder of this
Warrant certificate.
___________________________________ ___________________________________
(Signature of Registered Holder) Signature Guarantee
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