WARRANT TO PURCHASE COMMON STOCK OF VYCOR MEDICAL, INC.
Warrant to Purchase 160,480 shares
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Of Common Stock (subject to adjustment)
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THIS
WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT
BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN
EXEMPTION FROM SUCH REGISTRATION.
WARRANT
TO PURCHASE COMMON STOCK
OF
VYCOR
MEDICAL, INC.
This
certifies that, for value received, Xxxxxx Xxxxxx and his registered assigns
(“Holder”)
is
entitled, subject to the terms set forth below, to purchase from VYCOR MEDICAL,
INC., a Delaware corporation (the “Company”),
160,480 shares of the Common Stock of the Company, upon surrender hereof, at
the
principal office of the Company referred to below, with the Notice of Exercise
form attached hereto (the “Notice
of
Exercise”)
duly
executed, and simultaneous payment therefor in lawful money of the United States
as hereinafter provided, at the Exercise Price as set forth in Section 2 below.
The number, character and Exercise Price of such shares of Common Stock are
subject to adjustment as provided below. The term “Warrant”
as used
herein shall include this Warrant and any warrants delivered in substitution
or
exchange therefor as provided herein.
1.
Term
of Warrant.
Subject
to the terms and conditions set forth herein, this Warrant shall be exercisable,
in whole or in part, during the term commencing on the date hereof (“Initial
Exercise Date”)
and
ending at 5:00 p.m., Eastern Time, on the five-year anniversary of the Initial
Exercise Date, and shall be void thereafter.
2.
Exercise
Price.
The
Exercise Price at which this Warrant may be exercised shall be $0.24 per share
of Common Stock, as adjusted from time to time pursuant to Section 11
hereof.
3. Exercise
of Warrant.
3.1
Notice
of Exercise.
The
purchase rights represented by this Warrant are exercisable by the holder in
whole or in
part,
but
not for less than 1,000 shares at a time (or such lesser number of shares which
may then constitute the maximum number purchasable; such number being subject
to
adjustment as provided in Section 11 below), at any time, or from time to time,
during the term hereof as described in Section 1 above, by the surrender of
this
Warrant and the Notice of Exercise duly completed and executed on behalf of
the
Holder, at the office of the Company (or such other office or agency of the
Company as it may designate by notice in writing to the Holder at the address
of
the Holder appearing on the books of the Company), upon payment in cash or
by
federal funds wire transfer to the Company of the purchase price of the shares
to be purchased.
3.2
Issuance
of Stock.
This
Warrant shall be deemed to have been exercised immediately prior to the close
of
business on the date of its surrender for exercise as provided above, and the
person entitled to receive the shares of Common Stock issuable upon such
exercise shall be treated for all purposes as the holder of record of such
shares as of the close of business on such date. As promptly as practicable
on
or after such date and in any event within ten (10) days thereafter, the Company
at its expense shall issue and deliver to the person or persons entitled to
receive the same a certificate or certificates for the number of shares issuable
upon such
exercise.
In the event that this Warrant is exercised in part, the Company at its expense
will execute and deliver a new Warrant of like tenor exercisable for the number
of shares for which this Warrant may then be exercised.
4.
No
Fractional
Shares or Scrip.
No
fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant. In lieu of any fractional share to which the
Holder would otherwise be entitled, the Company shall make a cash payment equal
to the Exercise Price multiplied by such fraction.
5.
Replacement
of Warrant.
On
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this warrant and, in the case of loss, theft or
destruction, on delivery of an indemnity agreement reasonably satisfactory
in
form and substance to the Company or, in the case of mutilation, on surrender
and cancellation of this Warrant, the Company at its expense shall execute
and
deliver, in lieu of this Warrant, a new warrant of like tenor and
amount.
6.
Rights
of Shareholders.
Subject
to Sections 9 and 11 of this Warrant, the Holder shall not be entitled to vote
or receive dividends or be deemed the holder of Common Stock or any other
securities of the Company that may at any time be issuable on the exercise
hereof for any purpose, nor shall anything contained herein be construed to
confer
upon the
Holder, as such, any of the rights of a stockholder of the Company or any right
to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action or to receive notice of meetings, or to receive dividends
or
subscription rights or otherwise until the Warrant shall have been exercised
as
provided herein.
7.
Transfer
of Warrant.
7.1
Warrant
Register.
The
Company will maintain a register (the “Warrant
Register”)
containing the names and addresses of the Holder or Holders. Any Holder of
this
Warrant or any portion thereof may change his or her address as shown on the
Warrant Register by written notice to the Company requesting such change. Any
notice or written communication required or permitted to be given to the Holder
may be delivered or given by mail to such Holder as shown on the Warrant
Register and at the address shown on the Warrant Register. Until this Warrant
is
transferred on the Warrant Register of the Company, the Company may treat the
Holder as shown on the Warrant Register as the absolute owner of this Warrant
for all purposes, notwithstanding any notice to the contrary.
7.2
Warrant
Agent.
The
Company may, by written notice to the Holder, appoint an agent for the purpose
of maintaining the Warrant Register referred to in Section 7.1
above,
issuing the Common Stock or other securities then issuable upon the exercise
of
this Warrant, exchanging this Warrant, replacing
this
Warrant, or any or all of the foregoing. Thereafter, any such registration,
issuance, exchange, or replacement, as the case may be, shall be made at the
office of such agent.
7.3
Transferability
and Non-Negotiability
of Warrant.
This
Warrant may not be transferred or assigned in whole or in part without
compliance with all applicable federal and state securities laws by the
transferor and the transferee (including the delivery of investment
representation letters and legal opinions reasonably satisfactory to the
Company, if such are requested by the Company), provided, however, that this
Warrant may not be transferred in part unless such transfer is to a transferee
who pursuant to such transfer receives the right to purchase at least 50,000
shares hereunder. Subject to the provisions of this Warrant with respect to
compliance with the Securities Act of 1933, as amended (the “Act”),
title
to this Warrant may be transferred by endorsement (by the Holder executing
the
Assignment Form attached hereto (the “Assignment
Form”)
and
delivery in the same manner as a negotiable instrument transferable by
endorsement and delivery.
7.4
Exchange
of
Warrant
Upon a Transfer.
On
surrender of this Warrant for exchange, properly endorsed on the Assignment
Form
and subject to the provisions of this Warrant with respect to compliance with
the Act and with the limitations on assignments and transfers and contained
in
this
Section
7, the Company at its expense shall issue to or on the order of the Holder
a new
warrant or warrants of like tenor, in the name of the Holder or as the Holder
(on payment by the Holder of any applicable transfer taxes) may direct, for
the
number of shares issuable upon exercise hereof.
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7.5
Compliance
with Securities Laws.
(a)
The
Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant
and
the shares of Common Stock to be issued upon exercise hereof are being acquired
solely for the Holder’s
own
account and not as a nominee for any other party, and for investment, and that
the Holder will not offer, sell or otherwise dispose of this Warrant or any
shares of Common Stock to be issued upon exercise hereof except under
circumstances that will not result in a violation of the Act or any state
securities laws. Upon exercise of this Warrant, the Holder shall, if requested
by the Company, confirm in writing, in a form satisfactory to the Company,
that
the shares of Common Stock so purchased are being acquired solely for the
Holder’s
own
account and not as a nominee for any other party, for investment, and not with
a
view toward distribution or resale.
(b)
This
Warrant and all shares of Common Stock issued upon exercise hereof shall be
stamped or imprinted with a legend in substantially the following form (in
addition to any legend required by state securities laws):
THE
SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SECURITIES AND ANY
SECURITIES OR SHARES ISSUED HEREUNDER OR THEREUNDER MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SECURITIES
AND
RESTRICTING THEIR TRANSFER OR SALE MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OR RECORD HEREOF TO THE SECRETARY OF THE COMPANY AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY.
8.
Reservation
of Stock.
The
Company covenants that
during
the term this Warrant is exercisable, the Company will reserve from its
authorized and unissued Common Stock a sufficient number of shares to provide
for the issuance of Common Stock upon the exercise of this Warrant and, from
time to time, will take all steps necessary to amend its Articles of
Incorporation (the “Articles”)
to
provide sufficient reserves of shares of Common Stock issuable upon exercise
of
this Warrant. The Company further covenants that all shares that may be issued
upon the exercise of rights represented by this Warrant, upon exercise of the
rights represented by this Warrant and payment of the Exercise Price, all as
set
forth herein, will be free from all taxes, liens and
charges
in respect of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously or otherwise specified herein). The Company agrees
that its issuance of this Warrant shall constitute full authority to its
officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for shares of Common Stock upon
the
exercise of this Warrant.
9.
Notices.
Upon
the
written request of the holder, whenever the Exercise Price or number of shares
purchasable hereunder shall be adjusted pursuant to Section 11 hereof, the
Company shall issue a certificate signed by its Chief Financial Officer setting
forth, in reasonable detail, the event requiring the adjustment, the amount
of
the adjustment, the method by which such adjustment was calculated, and the
Exercise Price and number of shares purchasable hereunder after giving effect
to
such adjustment, and shall cause a copy of such certificate to be mailed (by
first-class mail, postage prepaid) to the Holder of this Warrant. All notices
and requests required under this Warrant shall be in writing and shall be deemed
to
have
been
given
for
all
purposes
(a)
upon
personal delivery, (b) one day after being sent, when sent by professional
overnight courier service from and
to
locations within the continental United States, (c) five days after posting
when
sent by registered or certified mail, or (d) on the date of transmission (if
transmitted during normal business hours otherwise on the next succeeding
business day) when sent by telegram, telegraph, telex or fax, addressed to
the
Holder at its address set forth on the Warrant Register, and addressed to the
Company at Vycor Medical Inc., 00 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000,
Fax: (000) 000 0000. The Holder or the Company may from time
to
time
by
notice in
writing
delivered as provided herein, designate a different mailing address to which
such notices or requests shall thereafter be delivered.
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10. Amendments.
10.1
Amendment.
Any
term
of this Warrant may be amended with the written consent of the Company and
the
Holder. Any amendment effected in accordance with this Section 10 shall be
binding upon the Company and each future holder of this Warrant.
10.2
Waiver.
No
waivers of, or exceptions to, any term, condition or provision of this Warrant,
in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such term, condition or provision.
11. Adjustments.
The
Exercise Price and the number of shares purchasable hereunder are subject
to
adjustment
from time to time as follows:
11.1
Merger,
Sale
of
Assets, etc.
If
at
any
time while this Warrant, or any portion thereof, is
outstanding
and unexpired there shall be (a) a reorganization (other than a combination,
reclassification, exchange or subdivision of shares otherwise provided for
herein), (b) a merger or consolidation of the Company with or into another
corporation in which the Company is not the surviving entity, or a reverse
triangular merger in which the Company is the surviving entity but the shares
of
the Company’s
capital
stock outstanding immediately prior to the merger are converted by virtue of
the
merger into other property, whether in the form of securities, cash, or
otherwise, or (c) a sale or transfer of the Company’s
properties and assets as, or substantially as, an entirety to any other person,
then, as a part of such reorganization, merger, consolidation, sale or transfer,
lawful provision shall be made so that the holder of this Warrant shall
thereafter be entitled to receive upon exercise of this Warrant, during the
period specified herein and upon payment of the Exercise Price then in effect,
the number of shares of stock or other securities or properly of the successor
corporation resulting from such reorganization, merger, consolidation, sale
or
transfer that a holder of the
shares
deliverable upon exercise of this Warrant would have been entitled to receive
in
such reorganization, consolidation, merger, sale or transfer if this Warrant
had
been exercised immediately before such reorganization, merger, consolidation,
sale or transfer, all subject to further adjustment as provided in this Section
11. The foregoing provisions of this Section 11.1 shall similarly apply to
successive reorganizations, consolidations, mergers, sales and transfers and
to
the stock or securities of any other corporation that are at the time receivable
upon the exercise of this Warrant. If the per-share consideration payable to
the
Holder for shares in connection with any such transaction is in a form other
than cash or marketable securities, then the value of such consideration shall
be determined in good faith by the Company’s
Board
of Directors. In all events, appropriate adjustment (as determined in good
faith
by the Company’s
Board
of Directors) shall be made in the application of the provisions of this Warrant
with respect to the rights and interests of the Holder after the
transaction,
to the end that the
provisions
of this Warrant shall be applicable after that event, as near as reasonably
may
be, in relation to any shares or other property deliverable after that event
upon exercise of this Warrant.
11.2
Reclassification,
etc.
If the
Company, at any time while
this
Warrant, or any portion thereof, remains outstanding and unexpired by
reclassification of securities or otherwise, shall change any of the securities
as to which purchase rights under this Warrant exist into the same or a
different number of securities of any other class or classes, this Warrant
shall
thereafter represent the right to acquire
such number
and kind of securities as would have been issuable as the result of such change
with
respect
to the securities that were subject to the purchase rights under this Warrant
immediately prior
to
such
reclassification or other change and the Exercise Price therefor shall be
appropriately adjusted, all subject to further adjustment as provided in this
Section 11.
11.3
Split,
Subdivision
or Combination of Shares.
If the
Company at any time while this warrant, or any portion thereof, remains
outstanding and unexpired shall split, subdivide or combine the securities
as
to
which
purchase rights under this Warrant exist, into a different number of securities
of the same class, the Exercise Price for such securities shall be
proportionately decreased in the
case
of a
split or subdivision or proportionately increased in the case of a
combination.
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11.4 Adjustments
for Dividends in Stock or Other Securities or Property. If
while
this Warrant, or any portion thereof, remains outstanding and unexpired the
holders of the securities as to which purchase rights under this Warrant exist
at the time shall have received, or, on or after the record date fixed for
the
determination of eligible shareholders, shall have become entitled to receive,
without payment therefor, other or additional stock or other securities or
property (other than cash) of the Company by way of dividend, then and in each
case, this Warrant shall represent the right to acquire, in addition to the
number of shares of the security receivable upon exercise of this Warrant,
and
without payment of any additional consideration therefor, the amount of such
other or additional stock or other securities or property (other than cash)
of
the Company that such holder would hold on the date of such exercise had it
been
the holder of record of the security receivable upon exercise of this Warrant
on
the date hereof and had thereafter, during the period from the date hereof
to
and including the date of such exercise, retained such shares and/or all other
additional stock available by it as aforesaid during such period, giving effect
to all
adjustments
called for during such period by the provisions of this Section 11.
11.5
Certificate
as to Adjustments.
Upon
the
occurrence of each adjustment or readjustment pursuant to this Section 11,
the
Company shall, upon the written request, at anytime, of any Holder of this
Warrant, furnish or cause to be furnished to such Holder a like certificate
setting forth: (a) adjustments and
readjustments in accordance with
the
terms hereof; (b) the Exercise Price at the time in effect; and (c) the number
of shares and the amount, if any, of other property that at the time would
be
received
upon the exercise of the Warrant.
12.
Miscellaneous.
(a)
Attorneys’
Fees.
In any
action at law or in equity to enforce any of the provisions or rights under
this
Warrant, the unsuccessful party to such litigation, as determined by the court
in a final judgment or decree, shall pay the successful party all costs,
expenses and reasonable
attorneys’ fees incurred by the successful party (including, without limitation,
costs, expenses and fees on any appeal).
(b)
Governing
Law; Venue.
This
Warrant and the legal relations between the Holder and the Company shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and performed in such State and without regard
to
conflicts of law doctrines of any other State or country. In the event of any
action at law or equity to enforce any of the provisions or rights under this
Agreement, the parties agree that the proper venue for such action is New York
City, New York and that the parties may bring such an action to enforce their
respective rights under this Agreement only in a court located within the
Borough of Manhattan, State of New York. The parties further agree that such
court shall have personal jurisdiction over each
of
the parties to this Agreement.
IN
WITNESS
WHEREOF, VYCOR
MEDICAL, INC. has caused this Warrant to be executed by its officers thereunto
duly authorized.
Dated:
September 1, 2007
VYCOR
MEDICAL, INC.
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By:
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/s/
Xxxxxxx Xxxxxxxx
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Xxxxxxx
Xxxxxxxx
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Its:
CEO
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5
ATTEST:
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By:
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/s/
Xxxxxxx Xxxxxx
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Xxxxxxx
Xxxxxx
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Its:
President
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6
NOTICE
OF EXERCISE
To:
VYCOR MEDICAL, INC.
(1)
The
undersigned hereby elects to purchase shares of Common Stock of VYCOR MEDICAL,
INC., pursuant
to the
terms
of the attached Warrant, and tenders herewith payment of the purchase price
for
such shares in full.
(2)
In
exercising this Warrant, the undersigned hereby confirms and acknowledges that
the shares of Common Stock or the Common Stock are being acquired solely for
the
account of the undersigned and not as a nominee for any other party, and for
investment, and that the undersigned will not offer, sell or otherwise dispose
of any such shares of Common Stock or Common Stock except under circumstances
that will not result in a violation of the Securities Act of 1933, as amended,
or any state securities laws.
(3)
Please
issue a certificate or certificates representing those shares of Common Stock
in
the name of the undersigned or in such other name as is specified
below:
(Name)
(4) Please
issue a new Warrant for the unexercised portion of the attached Warrant in
the name
of
the undersigned or in such other name as is specified below:
(Name)
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(Date)
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(Signature)
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ASSIGNMENT
FORM
FOR
VALUE
RECEIVED, the undersigned registered owner of this Warrant hereby sells, assigns
and transfers unto the Assignee named below all of the rights of the undersigned
under the within Warrant, with respect to the number of shares of Common
Stock
(or
Common Stock) set forth below:
NAME
OF XXXXXXXX
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ADDRESS
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NO.
OF SHARES
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And
does
hereby constitute and appoint
as
Attorney-in-Fact to make such transfer
on the books of VYCOR MEDICAL, INC., maintained for the purpose, with full
power
of substitution in the premises.
The
undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof or conversion thereof are being acquired for investment and
that
the Assignee will not offer, sell or otherwise dispose of this Warrant or any
shares
of
stock to be issued upon exercise hereof or conversion
thereof except under circumstances which will not result in a violation of
the
Securities Act of 1933,
as
amended, or any state securities laws. Further, the Assignee has acknowledged
that upon exercise of this Warrant, the Assignee shall, if requested by the
Company, confirm in writing, in a form satisfactory to the Company, that the
shares of stock so purchased are being acquired for investment and not with
a
view toward distribution or resale.
Dated:
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Signature
of Holder:
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ATTEST:
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Signature
of Assignee
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