Exhibit 99.3
THIS WARRANT AND THE STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND CAN BE
TRANSFERRED ONLY IN COMPLIANCE WITH THE ACT AND APPLICABLE STATE SECURITIES
LAWS. THIS WARRANT AND SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT, UNLESS, IN THE OPINION OF
COUNSEL FOR THE COMPANY OR COUNSEL FOR THE REGISTERED HOLDER (WHICH SHALL BE IN
FORM AND FROM SUCH COUNSEL AS SHALL BE REASONABLY SATISFACTORY TO THE COMPANY),
SUCH REGISTRATION IS NOT THEN REQUIRED.
MOBILE P.E.T. SYSTEMS, INC.
COMMON STOCK PURCHASE WARRANT
1. Issuance. In consideration of good and valuable consideration, the
receipt of which is hereby acknowledged by Mobile P.E.T. Systems, Inc., a
Delaware corporation (the "Company"), York, LLC, a Cayman Islands limited
liability company, or registered assigns (the "Holder") is hereby granted the
right to purchase at any time until 5:00 P.M., Pacific Coast time, on May 17,
2006 (the "Expiration Date"), four hundred thousand (400,000) fully paid and
nonassessable shares of the Company's Common Stock, no par value per share (the
"Common Stock") at an exercise price of $0.70 per share (the "Exercise Price")
subject to further adjustment as set forth in Section 6 hereof.
2. Exercise of Warrants. This Warrant is exercisable in whole or in part
for whole shares of the Company's Common Stock at the Exercise Price per share
of Common Stock payable hereunder, payable in cash or by certified or official
bank check. In lieu of paying cash to exercise this Warrant, the Holder may, by
designating a "cashless" exercise on the Notice of Exercise Form, acquire a
number of whole shares of the Company's Common Stock equal to (a) the difference
between (i) the Market Value of the Company's Common Stock and (ii) the Exercise
Price, multiplied by (b) the number of shares of Common Stock purchasable under
the portion of the Warrant tendered to the Company, divided by (c) the Market
Value of the Company's Common Stock. Upon surrender of this Warrant Certificate
with the annexed Notice of Exercise Form duly executed, together with payment of
the Exercise Price for the shares of Common Stock purchased, the Holder shall be
entitled to receive a certificate or certificates for the shares of Common Stock
so purchased. For the purposes of this Section 2, "Market Value" shall be an
amount equal to the average closing bid price of a share of Common Stock for the
five (5) business days immediately preceding the Company's receipt of the Notice
of Exercise Form duly executed.
3. Reservation of Shares. The Company hereby agrees that at all times
during the term of this Warrant there shall be reserved for issuance upon
exercise of this Warrant such number of shares of its Common Stock as shall be
required for issuance upon exercise of this Warrant (the "Warrant Shares").
4. Mutilation or Loss of Warrant. Upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss,
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theft or destruction) receipt of reasonably satisfactory indemnification, and
(in the case of mutilation) upon surrender and cancellation of this Warrant,
the Company will execute and deliver a new Warrant of like tenor and date and
any such lost, stolen, destroyed or mutilated Warrant shall thereupon become
void.
5. Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or equity,
and 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.
6. Adjustments to Exercise Terms.
If the Company at any time prior to the full execution of this Warrant
shall, by subdivision, combination, merger, spin-off, re-classification or like
capital adjustment of the securities, change any of the securities to which
purchase rights under this Warrant exist into the same or different number of
securities of any class or classes, this Warrant shall thereafter entitle the
Holder to acquire such number and kind of securities as would have been
issuable as a result of such change with respect to the securities acquirable
immediately prior to such transaction. If shares of the securities acquirable
upon exercise of this Warrant are subdivided into a greater number of
securities, including any stock dividend, or if such securities are combined
into a lesser number of securities, then the purchase price for the securities
acquirable upon exercise of this Warrant and the securities acquirable pursuant
to this Warrant shall be proportionately and equitably adjusted.
7. Transfer to Comply with the Securities Act; Registration Rights.
(a) This Warrant has not been registered under the Securities Act of 1933,
as amended, (the "Act") and has been issued to the Holder for investment and not
with a view to the distribution of either the Warrant or the Warrant Shares.
Neither this Warrant nor any of the Warrant Shares or any other security issued
or issuable upon exercise of this Warrant may be sold, transferred, pledged or
hypothecated in the absence of an effective registration statement under the Act
and applicable state securities laws relating to such security, unless in the
opinion of counsel satisfactory to the Company, such registrations are not
required under the Act. Each certificate for the Warrant, the Warrant Shares and
any other security issued or issuable upon exercise of this Warrant shall
contain a legend on the face thereof, in form and substance satisfactory to
counsel for the Company, setting forth the restrictions on transfer contained in
this Section.
(b) If the Company files a registration statement pursuant to the
Securities Act of 1934 to permit the sale of its common stock (or securities
resulting from a change of the Company's common stock into the same or a
different number of shares of another class or classes of stock or securities of
the Company or another entity or shares of stock of any entity the Company is
merged into) on any public exchange, NASDAQ or the over-the-counter market, the
Company shall include in such registration statement the common stock issuable
upon exercise of this warrant. This provision shall not apply to shares
registered pursuant to any SEC Form S-8 or Form S-4 except as limited by the
Settlement Agreement entered into in connection herewith. The Company's
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obligations under this Section 7 shall terminate when the underlying shares may
be sold pursuant to Rule 144(k) promulgated under the Securities Act of 1933.
8. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage pre-paid. Any such notice shall be deemed given when so
delivered personally, telegraphed, telexed or sent by facsimile transmission,
or, if mailed, two days after the date of deposit in the United States mails, as
follows:
(i) if to the Company, to:
Mobile P.E.T. Systems, Inc.
0000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
ATTN: CEO
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(ii) if to the Holder, to:
c/o Southridge Capital Management
00 Xxxxx Xxxxxx, Xxxxx #00
Xxxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Any party may be notice given in accordance with this Section to the other
parties designate another address or person for receipt of notices hereunder.
9. Supplements and Amendments; Whole Agreement. This Warrant may be
amended or supplemented only by an instrument in writing signed by the parties
hereto. This Warrant contains the full understanding of the parties hereto with
respect to the subject matter hereof and thereof and there are no
representations, warranties, agreements or understandings other than expressly
contained herein and therein.
10. Governing Law. This Warrant shall be deemed to be a contract made
under the laws of the State of California and for all purposes shall be governed
by and construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
11. Descriptive Headings. Descriptive headings of the several Sections of
this Warrant are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Warrant as of the
17/th/ day of May 2001.
Mobile P.E.T. Systems, Inc.,
a Delaware corporation
By: /s/ Xxxx Xxxxx
--------------------------
Name: Xxxx Xxxxx
Title: CEO
Attest:
/s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
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