THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR APPLICABLE STATE SECURITIES LAWS. NEITHER THIS WARRANT NOR ANY OF SUCH
SHARES MAY BE SOLD, ASSIGNED, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE
SECURITIES OR BLUE SKY LAWS OR EXEMPTIONS FROM SUCH REGISTRATION. THIS WARRANT
MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, OR OTHERWISE DISPOSED OF EXCEPT UPON THE
CONDITIONS SPECIFIED IN THIS WARRANT, AND NO SALE, ASSIGNMENT, TRANSFER, OR
OTHER DISPOSITION OF THIS WARRANT SHALL BE VALID OR EFFECTIVE UNLESS AND UNTIL
THERE SHALL HAVE BEEN COMPLIANCE WITH SUCH CONDITIONS.
Dated: Effective as of February 7, 2001
WARRANT
To purchase up to 100,000 shares of Common Stock
PARADIGM MEDICAL INDUSTRIES, INC.
Expiring February 7, 2006
THIS IS TO CERTIFY THAT, for value received, KSH INVESTMENT GROUP, INC.
(the "Holder"), is entitled, subject to certain conditions set forth in Sections
1.01 and 1.02 hereof, to purchase from PARADIGM MEDICAL INDUSTRIES, INC., a
Delaware corporation (the "Company"), at the Company's principal executive
office, at the exercise price of $4.00 per share ("Exercise Price"), up to the
number of shares of Common Stock, $.001, par value per share (the "Shares"), of
the Company shown above, all subject to adjustment and upon the terms and
conditions as hereinafter provided, and is entitled also to exercise the other
appurtenant rights, powers and privileges hereinafter described.
Certain terms used in this Warrant are defined in Article IV hereof.
ARTICLE I
METHOD OF EXERCISE
1.01. Time of Exercise. Subject to the provisions of Sections 1.02 and
1.03 hereof, this Warrant may be exercised at any time and from time to time
after 9:00 a.m. Mountain Standard Time on the first day immediately following
one year from the date first written above and prior to the Expiration Time.
-2-
G:\WAR-207M.PMI.wpd
1.02. Method of Exercise. To exercise this Warrant in whole or in part,
the Holder shall deliver to the Company, at the Company's principal executive
office (a) this Warrant, (b) a written notice of such Holder's election to
exercise this Warrant, which notice shall specify the number of Shares to be
purchased, but in no event less than 1,000 shares, the denominations of the
share certificate or certificates desired and the name or names in which such
certificates are to be registered, and (c) payment of the Exercise Price with
respect to such shares. Such payment may be made, at the option of the Holder,
in cash, by certified or bank cashier's check, money order or wire transfer, in
the manner specified in the next succeeding paragraph, or in any other manner
consented to in writing by the Company, or any combination thereof.
The Company shall, as promptly as practicable after receipt of the
items required by the preceding paragraphs of this Section 1.02, execute and
deliver or cause to be executed and delivered, in accordance with such notice, a
certificate or certificates representing the aggregate number of Shares
specified in such notice. The share certificate or certificates so delivered
shall be in such denominations as shall be specified in such notice and shall be
issued in the name of the Holder or, provided, in an opinion of counsel
reasonably acceptable to the Company, the following is permitted under the
Securities Act and applicable state securities laws, such other name as shall be
designated in such notice. Such certificate or certificates shall be deemed to
have been issued, and such Holder or Holders or any other person so designated
to be named therein shall be deemed for all purposes to have become a Holder of
record of such shares, as of the date the aforementioned notice is received by
the Company. If this Warrant shall have been exercised only in part, the Company
shall, at the time of delivery of the certificate or certificates, deliver to
the Holder a new Warrant evidencing the right to purchase the remaining Shares
called for by this Warrant, which new Warrant shall in all other respects be
identical with this Warrant, or, at the request of the Holder, appropriate
notations may be made on this Warrant which shall then be returned to the
Holder. The Company shall pay all expenses, taxes and other charges payable in
connection with the preparation, issuance and delivery of share certificates and
new Warrants, except that, if share certificates or new Warrants shall be
registered in a name or names other than the name of the Holder, funds
sufficient to pay all transfer taxes, if any, payable as a result of such
transfer shall be paid by the Holder at the time of delivering the
aforementioned notice of exercise or promptly upon receipt of a written request
of the Company for payment.
1.03. Shares To Be Fully Paid and Nonassessable. All Shares issued upon
the exercise of this Warrant shall be validly issued, fully paid and
nonassessable and, if the Shares are then eligible for listing on any national
securities exchanges (as defined in the Exchange Act), or quoted on Nasdaq,
shall be duly listed or quoted thereon or application made therefor, as the case
may be.
1.04. No Fractional Shares To Be Issued. The Company shall not be
required to issue fractions of Shares upon exercise of this Warrant. If any
fractions of a share would, but for this Section, be issuable upon any exercise
of this Warrant, in lieu of such fractional share the Company shall pay to the
holder, in cash, an amount equal to the same fraction of the Closing Price per
Share for the Trading Day immediately prior to the date of such exercise.
1.05. Share Legend. Each certificate for Shares issued upon exercise of
this Warrant, unless at the time of exercise such shares are registered under
the Securities Act, shall bear a legend substantially as follows:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND MAY NOT
BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS, SUPPORTED BY AN OPINION OF COUNSEL, REASONABLY
SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS
NOT REQUIRED.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution pursuant to a registration statement under the
Securities Act) shall also bear such legend unless, in the opinion of counsel
reasonably acceptable to the Company, the securities represented thereby need no
longer be subject to restrictions on resale under the Securities Act.
ARTICLE II
REPLACEMENTS OF WARRANT CERTIFICATES
2.01. Loss, Theft or Destruction of Warrant Certificates. Upon receipt
of evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of any Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity or security satisfactory to the Company,
or, in the case of any such mutilation, upon surrender and cancellation of the
Warrant, the Company will make and deliver, in lieu of such lost, stolen,
destroyed or mutilated Warrant, a new Warrant of like tenor and representing the
right to purchase the same aggregate number of Shares.
2.02. Change of Principal Executive Office. In the event the Company
shall change the address of its principal executive office, the Company shall
give the holder of this Warrant notice of any such change.
ARTICLE III
ANTIDILUTION PROVISIONS
3.01 Adjustments Generally. The Exercise Price and the number of Shares
(or other securities or property) issuable upon exercise of this Warrant shall
be subject to adjustment from time to time upon the occurrence of certain
events, as provided in this Article III.
3.02 Common Stock Reorganization. If the Company shall subdivide its
outstanding shares of Common Stock, $.001 par value per share ("Common Stock"),
into a greater number of shares or consolidate its outstanding shares of Common
Stock into a smaller number of shares (any such event being called a "Common
Stock Reorganization"), then (a) the Exercise Price shall be adjusted, effective
immediately after the record date at which the holders of shares of Common Stock
are determined for purposes of such Common Stock Reorganization, to a price
determined by multiplying the Exercise Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the number of shares
of Common Stock outstanding on such record date before giving effect to such
Common Stock Reorganization and the denominator of which shall be the number of
shares of Common Stock outstanding after giving effect to such Common Stock
Reorganization, and (b) the number of Shares subject to purchase upon exercise
of this Warrant shall be adjusted, effective at such time, to a number
determined by multiplying the number of Shares subject to purchase upon exercise
of this Warrant immediately before such Common Stock Reorganization by a
fraction, the numerator of which shall be the number of shares then outstanding
after giving effect to such Common Stock Reorganization and the denominator of
which shall be the number of shares of Common Stock outstanding immediately
before such Common Stock Reorganization.
3.03 Special Dividends. If the Company shall issue or distribute to all
or substantially all holders of shares of Common Stock evidences of
indebtedness, any other securities of the Company, or any cash, property or
other assets, and if such issuance or distribution does not constitute a cash
dividend or distribution out of surplus or net profits legally available
therefor, or a Common Stock Reorganization (any such nonexcluded event being
herein called a "Special Dividend"), the Exercise Price shall be adjusted,
effective immediately after the record date at which the holders of shares of
Common Stock are determined for purposes of such Special Dividend, to a price
determined by multiplying the Exercise Price then in effect by a fraction, the
numerator of which shall be the Market Price per share of Common Stock on such
record date less the then fair market value (as reasonably determined in good
faith by the Board of Directors of the Company) of the evidences of
indebtedness, securities or property or other assets issued or distributed in
such Special Dividend with respect to one share of Common Stock, and the
denominator of which shall be the Closing Price per share of Common Stock on
such record date.
3.04 Capital Reorganizations. If there shall be any consolidation or
merger to which the Company is a party, other than a consolidation or a merger
in which the Company is a continuing corporation and which does not result in
any reclassification of, or change (other than a Common Stock Reorganization or
a change in par value) in, outstanding shares of Common Stock, or any sale or
conveyance of the property of the Company as an entirety or substantially as an
entirety (any such event being called a "Capital Reorganization"), then
effective upon the effective date of such Capital Reorganization, the Holder
shall have the right to purchase, upon exercise of this Warrant, the kind and
amount of shares of stock and other securities and property (including cash)
which the Holder would have owned or have been entitled to receive after such
Capital Reorganization if this Warrant had been exercised immediately prior to
such Capital Reorganization. As a condition to effecting any Capital
Reorganization, the Company or the successor or surviving corporation, as the
case may be, shall execute and deliver to each Holder an agreement as to the
Holders' rights in accordance with this Section 3.04, providing for subsequent
adjustments as nearly equivalent as may be practicable to the adjustments
provided for in this Article III. The provisions of this Section 3.04 shall
similarly apply to successive Capital Reorganizations.
3.05. Certain Other Events. If any event occurs as to which the
foregoing provisions of this Article III are not strictly applicable or, if
strictly applicable, would not, in the good faith judgment of the Board of
Directors of the Company, fairly protect the purchase rights of the Warrants in
accordance with the essential intent and principles of such provisions, then
such Board shall make such adjustments in the application of such provisions, in
accordance with such essential intent and principles, as shall be reasonably
necessary, in the good faith opinion of such Board, to protect such purchase
rights as aforesaid, but in no event shall any such adjustment have the effect
of increasing the Exercise Price or decreasing the number of Shares subject to
purchase upon exercise of this Warrant.
3.06. Adjustment Rules.
----------------
(a) Any adjustments pursuant to this Article III shall be made
successively whenever an event referred to therein shall occur.
(b) If the Company shall set a record date to determine the
holders of shares of Common Stock for purposes of a Common Stock Reorganization
or Capital Reorganization, and shall legally abandon such action prior to
effecting such action, then no adjustment shall be made pursuant to this Article
III in respect of such action.
(c) All calculations under this Article III shall be made to
the nearest cent or to the nearest one hundredth (1/100th) of a share, as the
case may be. Notwithstanding any provision of this Article III to the contrary,
no adjustment in the Exercise Price shall be made if the amount of such
adjustment would be less than $0.05, but any such amount shall be carried
forward and an adjustment with respect thereto shall be made at the time of and
together with any subsequent adjustment which, together with such amount and any
other amount or amounts so carried forward, shall aggregate $0.05 or more.
(d) In any case in which the provisions of this Article III
shall require that an adjustment shall become effective immediately after a
record date for an event, the Company may defer until the occurrence of such
event (i) issuing to the holder of any Warrant exercised after such record date
and before the occurrence of such event the additional shares of Common Stock
issuable upon such conversion by reason of the adjustment required by such event
over and above the Shares issuable upon such exercise before giving effect to
such adjustment and (ii) paying to such holder any amount of cash in lieu of a
fractional share of Common Stock pursuant to Section 1.04; provided that the
Company upon request shall deliver to such holder a due ▇▇▇▇ or other
appropriate instrument evidencing such holder's rights to receive such
additional shares, and such cash, upon the occurrence of the event requiring
such adjustment.
3.07 Proceedings Prior to Any Action Requiring Adjustment. As a
condition precedent to the taking of any action that would require an adjustment
pursuant to this Article III, the Company shall take any action which may be
necessary in order that the Company may thereafter validly and legally issue as
fully paid and nonassessable all Shares that the Holders are entitled to receive
upon exercise of this Warrant.
3.08 Statement Regarding Adjustment. Whenever the Exercise Price or the
number of shares received upon exercise of the Warrants shall be adjusted as
provided in this Article III, the Company shall forthwith file, at the office of
any transfer agent for the Warrants and at the principal executive office of the
Company, a statement showing in detail the facts requiring such adjustment and
the Exercise Price and the number of shares received upon exercise of the
Warrants that shall be in effect after such adjustment, and the Company shall
also cause a copy of such statement to be sent by mail, first class postage
prepaid, to each Holder, at its address appearing on the Company's records.
Where appropriate, such copy may be given in advance and may be included as part
of a notice required to be mailed under the provisions of this Article III.
Failure to give such notice, or any defect therein, shall not affect the
legality or validity of any such action.
3.09 Notice to Holders. In the event the Company shall propose to take
any action of the type described in this Article III (but only if the action of
the type described in this Article III would result in an adjustment in the
Exercise Price or the number of shares received upon exercise of the Warrants),
or to declare any cash dividends or distribution out of surplus or net profits
legally available therefor, the Company shall give notice to each Holder in the
manner set forth in Section 3.08, which notice shall specify the record date, if
any, with respect to any such action and the approximate date on which such
action is to take place. Such notice shall also set forth such facts with
respect thereto as shall be reasonably necessary to indicate the effect of such
action (to the extent such effect may be known at the date of such notice) on
the Exercise Price and the number, kind or class of shares or other securities
or property which shall be deliverable or purchasable upon the occurrence of
such action or deliverable upon exercise of the Warrants. In the case of any
action that would require the fixing of a record date, such notice shall be
given at least 10 days prior to the date so fixed, and in case of all other
action, such notice shall be given at least 15 days prior to the taking of such
proposed action. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of any such action.
ARTICLE IV
DEFINITIONS
The following terms, as used in this Warrant, have the following
respective meanings:
"Capital Reorganization" shall have the meaning set forth in Section
3.04 hereof.
"Closing Price" on any day means (a) if the Common Stock is listed or
admitted for trading on a national securities exchange, the reported last sales
price or, if no such reported sale occurs on such day, the average of the
closing bid and asked prices on such day, in each case on the principal national
securities exchange on which the Common Stock is listed or admitted to trading,
(b) if the Common Stock is not listed or admitted to trading on any national
securities exchange, the average of the closing bid and asked prices in the
over-the-counter market on such day as reported by Nasdaq or any comparable
system or, if not so reported, as reported by any New York Stock Exchange member
firm selected by the Company for such purpose or (c) if no such quotations are
available on such day, the fair market value of one share of Common Stock on
such day as determined in good faith by the Board of Directors of the Company.
"Common Stock" shall have the meaning set forth in Section 3.02 hereof.
"Common Stock Reorganization" shall have the meaning set forth in
Section 3.02 hereof.
"Company" shall have the meaning set forth in the first paragraph of
this Warrant.
"Demand Registration" shall have the meaning set forth in Section
6.01(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any similar or successor Federal statute, and the rules and regulations of
the Securities and Exchange Commission (or its successor) thereunder, all as the
same shall be in effect at the time.
"Exercise Price" means $4.00 per share.
"Expiration Time" means 5:00 p.m. Mountain Standard Time on February 7,
2006.
"Holder" shall have the meaning set forth in the first paragraph of
this Warrant and "Holders" shall include any and all successors and assigns of
the initial Holder with respect to this Warrant.
"Market Price" on any day means the average of the daily Closing Prices
of a share of Common Stock for the 20 consecutive Trading Days ending on the
most recent Trading Day for which a closing price is available and if the shares
of Common Stock are not then publicly traded Market Price shall be determined in
good faith by the Board of Directors of the Company.
"NASD" means The National Association of Securities Dealers, Inc.
"Nasdaq" means The National Association of Securities Dealers, Inc.
Automated Quotation System.
"Permitted Interruption" shall have the meaning set forth in Section
6.01(e).
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A), as amended or supplemented
by any prospectus supplement, relating to the terms of the offering of any
portion of the Registrable Securities covered by such Registration Statement and
all other amendments and supplements to the Registration Statement or
prospectus, as the case may be, including post-effective amendments, and all
material incorporated or deemed to be incorporated by reference in such
prospectus.
"Registrable Securities" means the Shares issuable upon exercise of
this Warrant.
"Registration Statement" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Warrant, including the Prospectus, amendments and supplements to such
registration statement or the Prospectus, as the case may be, including
post-effective amendments, all exhibits, and all material incorporated or deemed
to be incorporated by reference in such registration statement.
"Securities Act" means the Securities Act of 1933, as amended, and any
similar or successor Federal statute, and the rules and regulations of the
Securities and Exchange Commission (or its successor) thereunder, all as the
same shall be in effect at the time.
"Shares" shall have the meaning set forth in the first paragraph of
this Warrant, subject to adjustment pursuant to Article III.
"Trading Day" means (a) if the Common Stock is listed or admitted to
trading on a national securities exchange, a day on which the principal national
securities exchange on which the Common Stock is listed or admitted to trading
is open for business or (b) if the Common Stock is not so listed or admitted to
trading, a day on which any New York Stock Exchange member firm is open for
business.
"Warrant" and "Warrants" shall mean this warrant and any warrants
issued upon the partial exercise of this warrant.
ARTICLE V
REDEMPTION AND CANCELLATION OF WARRANTS
5.01 Redemption of Warrants. The Warrants are not redeemable by the
Company and the Company has no right to purchase or otherwise acquire the
Warrants.
5.02 Cancellation of Warrants. The Company shall cancel any Warrant
surrendered for transfer, exchange or exercise.
ARTICLE VI
REGISTRATION RIGHTS
6.01 Demand Registration. (a) Subject to the provisions of Section
6.01(b) hereof and during the period commencing on the day immediately following
the date first written above and expiring at the Expiration Time, the Holder may
make a written request to the Company for registration under and in accordance
with the provisions of the Securities Act of all, and not less than all, of the
Registrable Securities held by the Holder(a "Demand Registration"). Except in
the event that the Company is advised by counsel that the filing of a
Registration Statement would not be permitted under the Securities Act due to
the Company's not having current audited financial statements, in which event
within five (5) business days after completion of such audited financial
statements the Company shall file such Registration Statement, the Company will
file as soon as practicable, and in any event within sixty (60) days of receipt
of such request, and to use its best efforts to cause to become effective as
soon as practicable, the Registration Statement, subject to the terms of this
Warrant.
(b) Number of Registrations. The Holder is entitled to one
Demand Registration. The Holder agrees that if the Company determines that there
are material developments which the Company determines require the filing of a
post-effective amendment to the Registration Statement, then the Holder agrees
to refrain from selling any Registrable Securities until the post-effective
amendment is declared effective. The Company agrees to file and attempt to have
declared effective such post-effective amendment as soon as possible. The
Company shall not be deemed to have effected a Demand Registration unless and
until such Demand Registration is declared effective.
(c) Reduction Size of Demand Registrations. If the managing
underwriter or underwriters of a Demand Registration advise the Company in
writing that in its or their opinion the principal amount and/or number of
Registrable Securities proposed to be sold in such Demand Registration exceeds
the principal amount and/or number of Registrable Securities which can be sold
in such offering without an adverse effect on such offering, the Company will
include in such registration only the number of Registrable Securities which, in
the opinion of such underwriter or underwriters, can be sold. The Holder shall
be entitled to an additional Demand Registration hereunder (with all expenses of
registration relating to such additional Demand Registration to be borne by the
Company) on the same terms and conditions as would have applied had such earlier
Demand Registration not been made in the event that all Registrable Securities
requested to be included in the Demand Registration are not so included.
(d) Selection of Underwriters and Counsel. If any Demand
Registration is an underwritten offering with respect to any issue of
Registrable Securities, the Holder will select the investment banker or bankers
and manager or managers to administer the offering and counsel to the Holder;
provided, that such investment bankers and managers be of nationally recognized
standing and reasonably satisfactory to the Company. The Holder shall pay all
underwriting discounts and commissions of such investment banker or bankers and
manager or managers.
(e) Notwithstanding the provisions of Section 6.01(a) hereof,
the Company shall have the right at any time on one occasion in respect of any
Registration Statement to delay the filing of such Registration Statement or to
withdraw such Registration Statement (or notify the Holder not to sell such
Registrable Securities pursuant to such Registration Statement) after the filing
and the effective date thereof (each such delay, withdrawal or notice is
referred to herein as a "Permitted Interruption") for a reasonable period of
time (not to exceed 45 days in any 12-month period in any such case, which may
not thereafter be extended) if, at such time: (i) the Holder is in possession of
material non-public information in respect of the Company; (ii) the Company is
engaged in any active program for repurchase of shares of Common Stock and
furnishes a certificate to that effect to the Holder; or (iii) the Board of
Directors of the Company shall determine in good faith that such offering will
interfere with a pending or contemplated financing, merger, acquisition, sale of
assets, recapitalization or other similar corporate action of the Company and
the Company furnishes a certificate to that effect to the Holder. After such
Permitted Interruption, the Company shall use its best efforts to restore such
Registration or to effect such Registration (as the case may be) within 30 days
without further request from the Holder, unless such Demand Registration request
has been withdrawn by written notice of the Holder.
6.02 Piggyback Registration Rights.
-----------------------------
(a) If the Company at any time or from time to time subsequent
to the date of this Warrant proposes to register any securities under the
Securities Act either for its own account or the account of any selling security
holders (other than pursuant to (i) a registration statement on Forms S-4 or S-8
or any successor or similar forms, (ii) a registration relating solely to a
Commission Rule 145 offering, or (iii) a registration on any form that does not
permit secondary sales), it will give written notice to each of the Holders of
its intention at least ten (10) days in advance of the filing of any
registration statement with respect thereto. Upon the written request of any of
the Holders given within five (5) days after receipt of such notice, the Company
will use its best efforts to include in such registration, and in any
underwriting involved therein, all the Registrable Securities included in such
request.
(b) Upon making a request pursuant to this Section 6.02, the
Holders shall specify the number of shares of Registrable Securities to be
registered on their behalf and the intended method of disposition thereof. The
Company may require the Holders to furnish to the Company such information in
writing regarding themselves and the distribution of Registrable Securities as
the Company may from time to time reasonably request in writing in order to
comply with the Securities Act. The Holders agree to notify the Company as
promptly as practicable of any inaccuracy or change in information they have
previously furnished to the Company.
ARTICLE VII
MISCELLANEOUS
7.01 Notices. All notices, requests and other communications provided
for herein shall be in writing, and shall be deemed to have been made or given
when delivered or mailed, first class, postage prepaid, or sent by telex or
other telegraphic communications equipment. Such notices and communications
shall be addressed:
(a) if to the Company, to
Paradigm Medical Industries, Inc.
1127 West ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer; or
(b) if to the Holder, to
KSH Investment Group, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
7.02 Waivers; Amendments. No failure or delay of the Holder in
exercising any right, power or privilege, hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof, or any abandonment or
discontinuance of steps to enforce such a right, power or privilege, preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies of the Holder are cumulative and not
exclusive of any rights or remedies which it would otherwise have. The
provisions of this Warrant may be amended, modified or waived if, but only if,
such amendment, modification or waiver is in writing and is signed by the
Company and a majority of the Holders; provided that no amendment, modification
or waiver may change the exercise price of the Warrant or the number of Shares
in which this Warrant is exercisable (including without limitation any
adjustments or any provisions with respect to adjustments, the expiration of or
the manner of exercising the Warrants) without the consent in writing of all of
the Holders.
7.03 Governing Law. This Warrant shall be construed in accordance with
and governed by the laws of the State of Utah.
7.04 Survival of Agreements; Representations and Warranties, etc. All
warranties, representations and covenants made by the Company herein or in any
certificate or other instrument delivered by or on behalf of it in connection
herewith shall be considered to have been relied upon by the Holders and shall
survive the issuance and delivery of the Warrants and the Shares, and shall
continue in full force and effect so long as this Warrant is outstanding. All
statements in any such certificate or other instrument shall constitute
representations and warranties hereunder.
7.05 Covenants To Bind Successor and Assigns. All the covenants,
stipulations, promises and agreements in this Warrant contained by or on behalf
of the Company shall bind its successors and assigns, whether or not so
expressed.
7.06 Severability. In case any one or more of the provisions contained
in this Warrant shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired in such
jurisdiction and shall not invalidate or render illegal or unenforceable such
provision in any other jurisdiction.
7.07 Headings. The headings used herein are for convenience of
reference only and shall not be deemed to be a part of this Warrant.
7.08 No Rights as Stockholder. This Warrant shall not entitle the
Holder to any rights as a stockholder of the Company.
7.09 Pronouns. The pronouns "it" and "its" herein shall be deemed to
mean "he" and "his" or "she" and "hers", as the context requires.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
in its corporate name by one of its officers thereunto duly authorized effective
as of the day and year first above written.
PARADIGM MEDICAL INDUSTRIES, INC.
Dated:__________________ By:
------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman and Chief Executive Officer