EXHIBIT 10.31
______________ , 1999
SURGICAL SAFETY PRODUCTS, INC
Redeemable Common Stock Purchase Warrant
VOID AFTER 5:00 P.M., EASTERN TIME
___________________, 2004
FOR VALUE RECEIVED, Surgical Safety Products, Inc., a New York corporation
(the "Company"), promises to issue in the name of, and sell and deliver to,
__________________, (the "Holder"), or the Holder's registered transferee or
assignee (also the "Holder"), a certificate or certificates for an aggregate of
________ shares (the "Shares") of Common Stock, $0.001 par value per share (the
"Common Stock"), of the Company, at any time on or before the later of 5:00
p.m., Eastern Time, on ___________, 2004 (the "Exercise Period"), upon payment
therefore of $1.00 per Share in lawful funds of the United States of America.
1. Exercise of the Warrant. In case the Holder of this Warrant shall desire
to exercise this Warrant in whole or in part, the Holder shall surrender this
Warrant, with the form of exercise notice on the last page hereof duly executed
by the Holder, to the Company, accompanied by payment of the Exercise Price of
$1.00 per Warrant. This Warrant may be exercised in whole or in part but not for
fractional Shares. In case of the exercise in part only, the Company will
deliver to the Holder a new Warrant of like tenor in the name of the Holder
evidencing the right to purchase the number of Shares as to which this Warrant
has not been exercised.
2. Covenants of the Company. The Company hereby covenants and agrees that
prior to the expiration of this Warrant by exercise or by its terms:
(a) The Company shall at all times reserve and keep available, out
of its authorized and unissued share capital, solely for the purpose of
providing for the exercise, forthwith upon the request of the Holder of the
Warrants then outstanding and in effect, such number of shares of Common Stock,
as shall, from time to time, be sufficient for the exercise of the Warrants. The
Company shall, from time to time, in accordance with the laws of the State of
Florida, increase the authorized amount of its share capital if at any time the
number of shares of Common Stock remaining unissued and unreserved for other
purposes shall not be sufficient to permit the exercise of the Warrants then
outstanding and in effect.
(b) The Company covenants and agrees that all shares that 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.
3. Loss, Theft, Destruction or Mutilation. In case this Warrant shall
become mutilated or defaced or be destroyed, lost or stolen, the Company shall
execute and deliver a new Warrant in exchange for and upon surrender and
cancellation of such mutilated or defaced Warrant or in lieu of and in
substitution for such warrant so destroyed, lost, or stolen, upon the Holder of
such Warrant filing with the Company such evidence satisfactory to it that such
Warrant has been so mutilated, defaced, destroyed, lost or stolen and of the
ownership thereof by the Holder; provided, however, that the Company shall be
entitled, as a condition to the execution and delivery of such new Warrant, to
demand indemnity satisfactory to it and payment of expenses and charges incurred
in connection with the delivery of such new Warrant, and may demand a bond from
the Holder. Any Warrant so surrendered to the Company shall be canceled.
4. Record Owner. At the time of the surrender of this Warrant, together
with the form of subscription properly executed and payment of the Exercise
Price, the person exercising this Warrant shall be deemed to be the Holder of
record of the Common Stock deliverable upon such exercise, in whole or in part,
notwithstanding that the stock transfer books of the Company shall then be
closed or that certificates representing such securities shall not then be
actually delivered to such person.
5. Mailing of Notices, etc. All notices and other communications from the
Company to the Holder of this Warrant shall be mailed by first-class registered
or certified mail, return receipt requested, potage prepaid, to the Holder at
the address set forth in the records of the Company, or to such other address
furnished to the Company in writing from time to time by the Holder of this
Warrant.
6. Registration Under the Securities Act of 1933, as amended. Neither this
Warrant nor the Shares underlying it have been registered under the Securities
Act of 1933, as amended (the "Act"). Unless and until registered under the Act,
this Warrant and all replacement Warrants shall bear the following legend:
This Warrant, and the securities issuable upon the exercise of this
Warrant, have not been registered under the Securities Act of 1933, as
amended (the "Act") or applicable state law and may not be sold,
transferred or otherwise disposed of unless registered under the Act and
any applicable state act or unless the Company is satisfied that this
Warrant and the underling securities may be transferred without
registration under the Act.
The Shares issuable upon exercise of this Warrant shall be Rule 144
restricted shares (the "Restricted Securities"). After issuance of the
Shares, Company agrees to use its best efforts to assist Xxxxxx in
registering the Shares or to register the Shares under the Act subject to
the rules, regulations, and other provisions of said Act.
7. Piggyback Registration.
(a) At any time that the Company proposes to file a Company
registration statement on Form S-1 or other appropriate registration form under
the Act (the "Registrations Statement"), either for its own account or for the
account of a stockholder or stockholders, the Company shall give the Holder
written notice of its intention to do so and of the intended method of sale (the
"Registration Notice") within a reasonable time prior to the anticipated filing
date of the Company's Registration Statement effecting such Company
registration. Holder may request inclusion of any Restricted Securities in such
Registration Statement by delivering to the Company, within ten (10) Business
Days after receipt of the Registration Notice, a written notice (the "Piggyback
Notice") stating the number of Restricted Securities proposed to be included and
that such shares are to be included in any underwriting only on the same terms
and conditions as the shares of Common Stock otherwise being sold through
underwriters under such Company Registration Statement. The Company shall use
its best efforts to cause all Restricted Securities specified in the Piggyback
Notice to be included in the Company Registration Statement and any related
offering, all to the extent requisite to permit the sale by the Holder of its
Restricted Securities in accordance with the method of sale applicable to the
other shares of Common Stock included in such Company Registration Statement;
provided, however, that if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
Company Registration Statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay registration
of Holder's Restricted Securities, the Company may, at its election, give
written notice of such determination to Holder and, thereupon:
(i) in the ease of a determination not to register, shall be
relieved of its obligation to register Holder's Restricted Securities in
connection with such registration (but not from its obligation to pay the
registration expenses in connection therewith), and
(ii) in the case of a delay in registering, shall be permitted
to delay registering Holder's Restricted Securities for the same period as the
delay in registering such other securities.
(b) The Company's obligation to include Restricted Securities in a
Company's Registration Statement pursuant to Section 7(a) shall be subject to
the following limitations:
(i) The Company may elect, at its sole option and for any
reason, not to register Holder's Restricted Shares, provided however, that this
right is limited to one (1) time and relative to one (1) particular Company
Registration Statement.
(ii) The Company shall not be obligated to include any
Restricted Securities in a registration statement filed on Form S-4, Form S-8 or
such other similar successor forms then in effect under the Securities Act.
(iii) If a Company Registration Statement involves an
underwritten offering and the managing underwriter advises the Company in
writing that in its opinion, the number of securities requested to be included
in such Company Registration Statement exceeds the number which can be sold in
such offering without adversely affecting the offering, the Company shall
include in such Company Registration Statement the number of such securities
which the Company is so advised can be sold in such offering without adversely
affecting the offering, determined as follows:
(A) first, the securities proposed by the Company to be sold for it own
account, and
(B) second, any Restricted Securities requested to be included in such
registration and any other securities of the Company in accordance with the
priorities, if and then existing among the holders of such securities pro rata
among the holders thereof requesting such registration on the basis of the
number of shares of such securities requested to be included by such holders.
(iv) The Company shall not be obligated to include Restricted
Securities in more than one (1) Company Registration Statement.
(c) To the extent Holder's Restricted Securities are intended to be
included in a Company Registration Statement, Holder may include any of its
Restricted Securities in such Company Registration Statement pursuant to this
Agreement only if Holder furnishes to the Company in writing, within ten (10)
business days after receipt of a written request therefor, such information
specified in Item 507 of Regulation S-K under the Act or such other information
as the Company may reasonably request for use in connection with the Company
Registration Statement or Prospectus or preliminary Prospectus included therein
and in any application to the NASD. Holder as to which the Company Registration
Statement is being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make all information previously
furnished to the Company by Holder not materially misleading.
8. Antidilution Provision. The Exercise Price in effect from time to time
shall be, subject to adjustment in accordance with the provisions of this
Section 8.
(a) Adjustments for Stock Splits and Combinations. If the Company
shall at any time or from time to time after the date hereof, effect a stock
split of the outstanding Common Stock, the applicable Exercise Price in effect
immediately prior to the stock split shall be proportionately decreased. If the
Company shall at any time or from time to time after the date hereof, combine
the outstanding shares of Common Stock, the applicable Exercise Price in effect
immediately prior to the combination shall be proportionately increased. Any
adjustments under this Section 8(a) shall be effective at the close of business
on the date the stock split or combination occurs.
(b) Adjustments for Certain Dividends and Distributions. If the
Company shall at any time or from time after the date hereof, make or issue or
set a record date for the determination of holders of Common Stock entitled to
receive a dividend or other distribution payable in shares of Common Stock,
then, and in each event, the applicable Exercise Price in effect immediately
prior to such event shall be decreased as of the time
of such issuance or, in the event such a record date shall have been fixed, as
of the close of business on such record date, by multiplying, as applicable, the
applicable Exercise Price then in effect by a fraction;
(i) the numerator of which shall be the total number of shares
of Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date; and
(ii) the denominator of which shall be the total number of
shares of Common Stock issued and outstanding immediately prior to the time of
such issuance or the close of business on such record date plus the number of
shares of Common Stock issuable in payment of such dividend or distribution.
(c) Adjustment for Other Dividends and Distributions. If the Company
shall at any time or from time to time after the date hereof, make or issue or
set a record date for the determination of holders of Common Stock entitled to
receive a dividend or other distribution payable in other than shares of Common
Stock, then, and in each event, an appropriate revision to the Exercise Price
shall be made and provision shall be made (by adjustments of the Exercise Price
or otherwise) so that the holder of this Note shall receive upon conversions
thereof, in addition to the number of shares of Common Stock receivable thereon,
the number of securities of the Company which they would have received had this
Note been converted into Common Stock on the date of such event and had
thereafter, during the period from the date of such event to and including the
date hereof, retained such securities (together with any distributions payable
thereon during such period), giving application to all adjustments called for
during such period under this Section 8(c) with respect to the rights of the
holders of the Warrant.
(d) Adjustments for Reclassification, Exchange or Substitution. If
the Common Stock issuable upon conversion of this Warrant at any time or from
time to time after the date hereof shall be changed into the same or different
number of shares of any class or classes of stock, whether by reclassification,
exchange, substitution or otherwise (other than by way of a stock split or
combination of shares or stock dividends provided for in Sections 8(a), (b) and
(c), or a reorganization, merger, consolidation, or sale of assets provided for
in Section 8(e), then, and in each event, an appropriate revision to the
Exercise Price shall by made and provisions shall be made (by adjustments of the
Exercise Price of otherwise) so that the holder of this Warrant shall have the
right thereafter to convert such Warrant into the kind and amount of shares of
stock and other securities receivable upon reclassification, exchange,
substitution or other change, by holders of the number of shares of Common Stock
into which such Warrant might have been converted immediately prior to such
reclassification, exchange, substitution or other change, all subject to further
adjustment as provided herein.
(e) Adjustments for Reorganization, Merger, Consolidation or Sales
of Assets. If at any time or from time to time after the date hereof there shall
be a capital reorganization of the Company (other than by way of a stock split
or combination of shares or stock dividends or distributions provided for in
Section 8(a), (b), and (c), or a reclassification, exchange or substitution of
shares provided for in Section 8(d), or a merger or consolidation of the Company
with or into another corporation, or the sale of all or substantially all of the
Company's properties or assets to any other person, then as a part of such
reorganization, merger, consolidation, or sale, an appropriate revision to the
Exercise Price shall be made and provision shall be made (by adjustments of the
Exercise Price or otherwise) so that the holder of this Warrant shall have the
right thereafter to convert this Warrant into the kind and amount of shares of
stock and other securities or property of the Company or any successor
corporation resulting from such reorganization, merger, consolidation, or sale,
to which a holder of Common Stock deliverable upon conversion of such shares
would have been entitled upon such reorganization, merger, consolidation, or
sale, to which a holder of Common Stock deliverable upon conversion of such
shares would have been entitled upon such reorganization, merger, consolidation,
or sale. In any such case, appropriate adjustment shall be made in the
application of the provisions of this Section 8(e) with respect to the rights of
the
holders of this Warrant after the reorganization, merger, consolidation, or sale
to the end that the provisions of this Section 8(e) (including any adjustment in
the applicable conversion ratio then in effect and the number of shares of stock
or other securities deliverable upon conversion of this Warrant) shall be
applied after that event in as nearly an equivalent manner as may be
practicable.
9. Laws of the State of Florida. This Warrant shall be governed by,
interpreted under and construed in all respects in accordance with, the laws of
the State of Florida, irrespective of the place of domicile or residence of any
party.
10. Entire Agreement and Modification. The Company and the Holder of this
Warrant hereby represent and warrant that this Warrant is intended to and does
contain and embody all of the understandings and agreements, both written and
oral, of the parties hereto with respect to the subject matter of this Warrant,
and that there exists no oral agreement or understanding, express or implied,
whereby the absolute, final and unconditional character and nature of this
Warrant shall be in any way invalidated, empowered or affected. A modification
or waiver of any of the terms, conditions or provisions of this Warrant shall be
effective only if made in writing and executed with the same formality as this
Warrant.
This Warrant will become wholly void and of no effect and the rights
evidenced hereby will terminate unless exercised in accordance with the terms
and provisions hereof at or before 5:00 p.m., Eastern Time, on the Expiration
Date.
IN WITNESS WHEREOF, the Company, by its duly authorized officer, has
executed this Warrant this ____ day of _____________, 1999.
Attest: Surgical Safety Products, Inc.
____________________________ By: ______________________________
Xxxxx Xxxxx, President
(CORPORATE SEAL)
FORM OF EXERCISE
The undersigned hereby irrevocably elects to exercise the purchase rights
represented by this Warrant for, and to purchase thereunder, _________________
Shares of Common Stock, $0.001 par value per share, of Surgical Safety Products,
Inc., and herewith makes payment of $1.00 per Share, or a total of
$____________________ therefore, and request that such Shares be issued to:
(print name)
---------------------------------
(address)
---------------------------------
(social security number)
Dated:
(signature must conform in all respects to name
of Xxxxxx as specified on the face of this Warrant)
