Exhibit 4.11
WARRANT
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS WARRANT
NOR SUCH SECURITIES MAY BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER
SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
STEREOTAXIS, INC.
COMMON STOCK WARRANT
VOID AFTER __________, 2009
ISSUED: __________, 2004 CSW-<>
1. Warrant; Period of Exercise. Subject to the terms and conditions herein
set forth, <> or its assigns (the "Holder") is hereby entitled to
subscribe for and purchase <> shares of the fully paid and
nonassessable shares of the Common Stock, par value $0.001 per share (the
"Common Stock") of the Company, at a price per share of $2.93 (as the same may
be adjusted pursuant to the terms and conditions set forth herein, the "Warrant
Price"). The Common Stock issuable upon exercise of this Warrant (the "Shares")
shall be entitled to registration rights pursuant to that certain Fourth Amended
and Restated Investor Rights Agreement, dated as of December 17, 2002, among the
Company and certain securityholders of the Company named therein, as amended, as
the same may be hereafter amended, restated or otherwise modified. The Warrants
are exercisable at a price equal to the Warrant Price at any time from and after
__________, 2004 but no later than the earlier of (i) __________, 2009 and (ii)
the date on which the Company consummates a Senior Preferred Qualified IPO, as
defined in Section 4(d)(ii) of Article V of the Company's Amended and Restated
Certificate of Incorporation, provided that if this Warrant has not been
exercised as of the date of any such Senior Preferred Qualified IPO, then the
Holder of this Warrant shall be deemed to have made an election to effect a
cashless exercise as of such date for all Shares issuable hereunder pursuant to
Section 5.B hereof. In the event of such a deemed exercise, the Fair Market
Value shall be equal to the net per share proceeds to the Company of the Common
Stock in such Senior Preferred Qualified IPO, after deduction of underwriting
commissions and discounts.
2. Fractional Shares. No fractional Shares will be issued in connection
with any exercise hereunder. In lieu of any fractional Shares which would
otherwise be issuable, the Company shall pay cash equal to the product of such
fraction multiplied by the Fair Market Value less the exercise price of one
share of the Common Stock on the date of exercise, as determined in good faith
by the Company's Board of Directors.
3. No Stockholder Rights. This Warrant shall not entitle its Holder to any
of the rights of a stockholder of the Company until the Holder has exercised
this Warrant (or shall have been deemed to exercise this Warrant pursuant to
Section 1 hereof).
4. Reservation of Stock. The Company covenants that during the period this
Warrant is exercisable, the Company will reserve from its authorized but
unissued shares of Common Stock, a sufficient number of shares to provide for
the issuance of the Shares upon the exercise of this Warrant. 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 the Shares.
5. Exercise of Warrant.
A. Without limiting Section 5.B below, the purchase right
represented by this Warrant may be exercised by the Holder hereof, in whole or
in part, by the surrender of this Warrant (with the notice of exercise form
attached hereto as EXHIBIT A duly executed) at the principal executive offices
of the Company, and by the payment in full to the Company, by check or other
form of immediately available funds, of an amount equal to the then applicable
Warrant Price per share multiplied by the number of Shares then being purchased.
The person or persons in whose name(s) any certificate(s) representing Shares
shall be issuable upon exercise of this Warrant shall be deemed to have become,
and shall be treated for all purposes as, the record Holder(s) of the Shares
represented thereby (and such Shares shall be deemed to have been issued)
immediately prior to the close of business on the date or dates upon which this
Warrant is exercised. In the event of any exercise of the rights represented by
this Warrant, certificates for the Shares so purchased shall be delivered to the
Holder hereof as promptly as practicable following such exercise, and, unless
this Warrant has been fully exercised or expired, a new Warrant representing the
portion of the Shares, if any, with respect to which this Warrant shall not then
have been exercised shall also be issued to the Holder hereof as promptly as
practicable.
B. Cashless Exercise. Notwithstanding anything to the contrary
contained in this Warrant, this Warrant may be exercised by presentation and
surrender of this Warrant to the Company at its principal executive offices with
a written notice of the Holder's intention to effect a cashless exercise,
including a calculation of the number of Shares to be issued upon such exercise
in accordance with the terms hereof. In the event of a cashless exercise at the
Holder's election (including a deemed election pursuant to Section 1 hereof), in
lieu of paying the Warrant Price in cash, the Holder shall surrender this
Warrant for that number of Shares of Common Stock determined by multiplying the
number of Shares to which it would otherwise be entitled by a fraction, the
numerator of which shall be the difference between the then current Fair Market
Value per share of Common Stock and the then applicable Warrant Price and the
denominator of which shall be the then current Fair Market Value per share of
the Common Stock. The "Fair Market Value" shall mean (1) if the Shares are
traded on an exchange or quoted on the National Association of Securities
Dealers Automated Quotations System ("NASDAQ"), the closing price on the day
before the exercise date, (2) if the Shares are not traded on an exchange or on
the NASDAQ National Market but are traded in the over-the-counter market, the
closing price on the day before the exercise date, or (3) if the Shares are not
traded on an exchange or on the
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NASDAQ National Market or in the over-the-counter market, the Fair Market Value
as determined in good faith by the Board of Directors of the Company.
6. Adjustment of Warrant Price and Number of Shares. The number and kind
of securities purchasable upon the exercise of the Warrant and the Warrant Price
shall be subject to adjustment from time to time upon the occurrence of certain
events, as follows:
A. Reclassification or Merger. In case of any reclassification,
change or conversion of securities of the class issuable upon exercise of this
Warrant (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination),
or in case of any merger of the Company with or into another corporation (other
than a merger with another corporation in which the Company is a continuing
corporation and which does not result in any reclassification or change of
outstanding securities issuable upon exercise of this Warrant), or in case of
any sale of all or substantially all of the assets of the Company, the Company,
or such successor or purchasing corporation, as the case may be, shall execute a
new Warrant providing that the Holder of this Warrant shall have the right to
exercise such new Warrant and upon such exercise to receive, in lieu of each
Share theretofore issuable upon exercise of this Warrant, the kind and amount of
shares of stock, other securities, money and property receivable upon such
reclassification, change or merger by a Holder of one share of stock issuable
upon the exercise hereof. Such new Warrant shall provide for adjustments that
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Section 6. The provisions of this paragraph 6.A shall similarly
apply to successive reclassifications, changes, mergers and transfers.
B. Subdivisions or Combination of Shares. If the Company at any time
while this Warrant remains outstanding and unexpired shall subdivide or combine
its stock, the Warrant Price and the number of Shares issuable upon exercise
hereof shall be proportionately adjusted.
C. Stock Dividends. If the Company at any time while this Warrant is
outstanding and unexpired shall pay a dividend payable in shares of stock
(except any distribution specifically provided for in the foregoing paragraphs
6.A and 6.B), then the Warrant Price shall be adjusted, from and after the date
of determination of stockholders entitled to receive such dividend or
distribution, to that price determined by multiplying the Warrant Price in
effect immediately prior to such date of determination by a fraction (a) the
numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution, assuming that
all convertible securities of the Company have been converted into shares of
Common Stock and (b) the denominator of which shall be the total number of
shares of Common Stock outstanding immediately after such dividend or
distribution, assuming that all convertible securities of the Company have been
converted into shares of Common Stock, and the number of Shares subject to this
Warrant shall be proportionately adjusted.
D. No Impairment. The Company will not, by amendment of its Amended
and Restated Certificate of Incorporation or through any reorganization,
recapitalization, transfer
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of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms to be observed or performed hereunder by the Company, but
will at all times in good faith assist in the carrying out of all the provisions
of this Section 6 and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder of this Warrant against
impairment.
E. Notices of Record Date. In the event of any taking by the Company
of a record of its stockholders for the purpose of determining stockholders who
are entitled to receive payment of any dividend (other than a cash dividend) or
other distribution, any right to subscribe for, purchase or otherwise acquire
any share of any class or any other securities or property, or to receive any
other right, or for the purpose of determining stockholders who are entitled to
vote in connection with any proposed merger or consolidation of the Company with
or into any other corporation, or any proposed sale, lease or conveyance of all
or substantially all of the assets of the Company, or any proposed liquidation,
dissolution or winding up of the Company, the Company shall mail to the
registered Holder, at least twenty (20) days prior to the date specified
therein, a notice specifying the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and the amount and
character of such dividend, distribution or right.
7. Notice of Adjustments. Whenever the Warrant Price shall be adjusted
pursuant to the provisions hereof, the Company shall within thirty (30) days of
such adjustment deliver a certificate signed by an executive officer to the
registered Holder(s) hereof 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 Warrant Price after giving effect to such
adjustment.
8. Compliance with Securities Laws.
A. The Holder represents and agrees that this Warrant (and the
Shares, if the Warrant is exercised), are purchased only for investment, for the
Holder's own account, and without any present intention to sell or distribute
the Warrant or the Shares. The Holder further acknowledges that the Shares will
not be issued pursuant to the exercise of this Warrant unless the exercise of
the Warrant and the issuance and delivery of such Shares shall comply with all
relevant provisions of law, including, without limitation, the Securities Act of
1933, as amended (the "1933 Act"), and other federal and state securities laws
and regulations and the requirements of any stock exchange upon which the
securities may then be listed.
B. The Holder of this Warrant acknowledges and agrees that this
Warrant and the Shares have not been registered under the 1933 Act and
accordingly will not be transferable except as permitted under the various
exemptions contained in the 1933 Act, or upon satisfaction of the registration
and prospectus delivery requirements of the 1933 Act. Therefore, the Warrant and
Shares must be held indefinitely unless they are subsequently registered under
the 1933 Act, or an exemption from such registration is available. The Holder
understands that the certificate evidencing the Shares will be imprinted with a
legend which prohibits the transfer of the Shares unless they are registered or
unless the Company receives an opinion of counsel reasonably
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satisfactory to the Company that such registration is not required. The Holder
is aware of the adoption of Rule 144 by the Securities and Exchange Commission
and that the Company is not now and, at the time such Holder wishes to sell the
Shares, may not be satisfying the current public information requirements of
Rule 144 and, in such case, the Holder would be precluded from selling the
Shares under Rule 144. The Holder understands that a stop transfer instruction
will be in effect with respect to transfer of Shares consistent with the
requirements of applicable securities laws.
C. All Shares issued upon exercise of this Warrant (unless
registered under the 1933 Act) shall be stamped or imprinted with legends in
substantially the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 OR UNDER APPLICABLE STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER SAID LAWS OR AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS OF AN INVESTOR RIGHTS AGREEMENT, AS AMENDED OR RESTATED FROM TIME TO TIME,
BETWEEN THE HOLDER AND THE CORPORATION, A COPY OF WHICH MAY BE OBTAINED FROM THE
SECRETARY OF THE CORPORATION.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS OF A STOCKHOLDERS' AGREEMENT, AS AMENDED OR RESTATED FROM TIME TO TIME,
BETWEEN THE HOLDER AND THE CORPORATION, A COPY OF WHICH MAY BE OBTAINED FROM THE
SECRETARY OF THE CORPORATION."
9. Miscellaneous. This Warrant shall be governed by the internal laws of
the State of Missouri. The headings in this Warrant are for purposes of
convenience of reference only and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be change, waived,
discharged or terminated orally but only by an instrument in writing signed by
the Company and the registered Holder hereof. All notices and other
communications from the Company to the Holder of this Warrant shall be mailed by
first class registered or certified mail, postage prepaid, to the address
furnished to the Company in writing by the last Holder of this Warrant who shall
have furnished an address to the Company in writing.
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This Common Stock Warrant is issued this 28th day of January, 2004.
STEREOTAXIS, INC.
BY: ____________________________
Xxxxx X. Xxxx, President
and Chief Executive Officer
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EXHIBIT A
NOTICE OF EXERCISE
To: Stereotaxis, Inc.
1. The undersigned hereby elects to purchase _______ shares of the Common
Stock of Stereotaxis, Inc. pursuant to the terms of the attached Common Stock
Warrant No CSW-_____, and tenders herewith payment of the purchase price of such
shares in full.
2. Please issue a certificate or certificates representing said shares in
the name of the undersigned or in such other name or names as are specified
below:
Name Address
__________________________________ __________________________________
__________________________________ __________________________________
__________________________________ __________________________________
__________________________________ __________________________________
__________________________________
(Signature)
__________________________________
(Date)
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