Exhibit 4.9
NEITHER THIS WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES LAWS.
THIS WARRANT AND SAID SHARES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND NEITHER THIS WARRANT, SAID SHARES OR
ANY INTEREST THEREIN MAY BE TRANSFERRED, SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT THERETO UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT ANY PROPOSED TRANSFER
OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
Void after 5:00 p.m., Mountain Time
on November 17, 2009.
MERIT MEDICAL SYSTEMS, INC.
COMMON STOCK PURCHASE WARRANT
This
certifies that as of November 17, 2004 (the " Grant
Date "), for value received, MedSource Packaging Concepts LLC,
a Virginia limited liability company (the " Purchaser ") or
registered assigns (the Purchaser or such assignee, as applicable,
being referred to herein as the " Holder "), is hereby
granted this warrant entitling the Holder to purchase 25,742 shares
of Common Stock, no par value (the " Common Stock "), of
Merit Medical Systems, Inc., a Utah corporation (the "
Company ") (this certificate and the warrant evidenced
hereby being, collectively, this " Warrant ") at $10.1275
per share of Common Stock (the " Exercise Price "). The
number of shares of Common Stock to be received upon the exercise
of this Warrant (the " Warrant Shares ") and the Exercise
Price may be adjusted from time to time as hereinafter set forth.
This Warrant is issued pursuant to and is subject to the terms and
conditions of that certain Asset Purchase Agreement, dated as of
the date hereof, between, among others, the Company and the
Purchaser (the " Purchase Agreement "). All terms used but
not defined herein shall have the meaning ascribed thereto in the
Purchase Agreement.
1.
Exercise of Warrant; Escrow of Warrant, Warrant Shares and Other
Proceeds .
(a) Subject
to the provisions of Section 2 below, this Warrant may be
exercised at any time or from time to time on or after the Grant
Date, but in any event no later than 5:00 p.m., Mountain time,
on the fifth anniversary of the Grant Date, or if such date is a
day on which federal or state-chartered banking institutions in
Utah are authorized by law to close, then on the next succeeding
day which shall not be such a day; provided, however, this Warrant
may not be exercised with respect to a partial number of the
Warrant Shares, and upon exercise must be exercised with respect to
all the Warrant Shares issuable in connection with the exercise of
this Warrant as of the Grant Date. Such exercise shall be effective
upon presentation and surrender to the Company at its principal
office or at the office of its stock transfer agent, if any, of
this Warrant with the duly executed Notice of Exercise form set
forth on Exhibit A (attached hereto and made a part
hereof by this reference) (the " Notice of Exercise "). The
Notice of Exercise must be accompanied by payment, in cash or by
certified or official bank check, payable to the order of the
Company, in the amount of the Exercise Price for the number of the
Warrant Shares with respect to which such Notice of Exercise is
being delivered, together with all taxes applicable upon such
exercise and all expenses of the Company, if any, required to be
reimbursed by the Holder pursuant to Section 5(b) below.
The number of Warrant Shares that may be purchased upon exercise of
this Warrant may be adjusted, if at all, in accordance with
Section 7 below. The Company may require the Holder to execute
such further documents and make certain representations and
warranties as
the Company deems necessary to
ensure compliance with exemptions from applicable federal and state
securities laws as required by Section 2 below.
(b) This
Warrant, the Warrant Shares and any other proceeds of the Warrant
are subject to the terms of the Purchase Agreement and a related
Escrow Agreement (the "Escrow Agreement") for a period of
12 months from the date hereof, wherein, among other things,
the Warrant, the Warrant Shares and any proceeds from the Warrant
or the Warrant Shares secure the accuracy of representations,
warranties, covenants and other obligations of Purchaser and are a
source of recovery for breaches and losses related thereto. In the
event that the Holder elects to exercise and receive Warrant
Shares, according to the terms of this Warrant, and/or, if a
registration statement with respect to such shares filed with the
Securities and Exchange Commission has been declared effective, to
sell Warrant Shares according to all applicable laws, rules and
regulations, Holder acknowledges and agrees that all Warrant Shares
issued upon exercise of the Warrant, and all such proceeds received
upon sale of any Warrant Shares, shall be made payable to the
Escrow Agent, and subject to the Escrow Agreement in the same
manner that the Warrant was subject to the Escrow Agreement prior
to the receipt of Warrant Shares and/or proceeds.
2.
Compliance with Securities Laws . This Warrant may not be
exercised by the Holder unless at the time of exercise (i) a
registration statement registering the Warrant Shares upon such
exercise is effective under the Securities Act of 1933, as amended
(and together with the rules and regulations promulgated
thereunder, collectively, the " Securities Act "), or the
Company has received an opinion letter from Holder's counsel
acceptable to the Company that the transaction in which such
Warrant Shares are to be issued is exempted from the application of
the registration requirements of the Securities Act, and
(ii) the Warrant Shares have been registered or qualified
under any applicable state securities laws or the Company has
received an opinion letter from Holder's counsel acceptable to the
Company that an exemption from registration or qualification is
available under such laws.
3.
Stock Fully Paid; Reservation of Shares . All Warrant Shares
that may be issued upon the exercise of this Warrant shall, upon
issuance, be duly authorized, validly issued, fully paid and
nonassessable, and free from all taxes, liens and charges with
respect to the issue thereof. The Company hereby covenants and
agrees that at all times during the period this Warrant is
exercisable it shall reserve from its authorized and unissued
Common Stock for issuance and delivery upon exercise of this
Warrant such number of shares of its Common Stock as shall be
required for issuance and delivery upon exercise of this
Warrant.
4.
Fractional Shares . No fractional shares or stock
representing fractional shares shall be issued upon the exercise of
this Warrant. In lieu of any fractional shares which would
otherwise be issuable, the Company shall, in its sole discretion,
either (i) pay cash equal to the product of such fraction
multiplied by the value of one share of Common Stock on the date of
exercise, as determined in good faith by the Company's Board of
Directors, or (ii) issue the number of Warrant Shares rounded
up to the next largest whole number.
5.
Transfer, Exchange, Assignment or Loss of Warrant or
Certificates .
(a) This
Warrant may not be assigned or transferred except as provided
herein and in accordance with and subject to the provisions of the
Securities Act and any applicable state securities laws. Any
purported transfer or assignment made other than in accordance with
this Section 5 and Section 8 hereof shall be null and
void and of no force and effect.
(b) This
Warrant shall be transferable only upon the receipt of an opinion
of counsel satisfactory to the Company to the effect that
(i) the transferee is a person to whom the Warrant may be
legally transferred without registration under the Securities Act
or any state securities laws; and (ii) such transfer will not
violate any applicable law or governmental rule or regulation
including, without limitation, any applicable federal or state
securities law. Prior to any transfer or
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assignment of this War
