Exhibit 4.3
FIRST AMENDMENT TO WARRANT
AGREEMENT
THIS FIRST AMENDMENT TO WARRANT
AGREEMENT made as of
[
], 2009 (this “ Amendment ”) amends that certain
Warrant Agreement dated January 12, 2009 (the “
Warrant Agreement ”) between ProUroCare Medical Inc.,
a Nevada corporation (the “ Company ”) and
Interwest Transfer Company Inc., a Utah corporation (the “
Warrant Agent ”). Capitalized terms that
are used and not defined in this Amendment shall have the meanings
assigned to them in the Warrant Agreement.
W I T N E S S E T
H:
WHEREAS, the Company is engaged in a tender offer (the
“ Tender Offer ”) to promote the early exercise
of all of the Warrants that are the subject of the Warrant
Agreement, and the terms of the Warrants have been temporarily
modified during the period of such Tender Offer, which, as defined
by the documents relating to the Tender Offer, is the period of
twenty-five (25) business days after September 25, 2009, or
until October 30, 2009 at 1 P.M. Central Daylight Time,
unless earlier withdrawn or otherwise extended by the Company (the
“ Offer Period ”), so that each Warrant holder
who tenders a Warrant for early exercise will receive, in addition
to the shares of Common Stock purchased upon exercise, one new
three-year redeemable warrant to purchase the same number of shares
of Common Stock at an exercise price of $1.30 per share (the
“ Replacement Warrant ”); and
WHEREAS, as a result of the Tender Offer, the Company may
issue and deliver Replacement Warrants to purchase up to 6,108,381
shares of Common Stock to those Warrant holders who tender their
Warrants for early exercise during the Offer Period; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing to so act,
in connection with the issuance, registration, transfer, exchange,
redemption and exercise of the Replacement Warrants; and
WHEREAS, Section 9(h) of the Warrant Agreement
provides that the Warrant Agreement may be amended by the parties
thereto without the consent of any Registered Holder for the
purpose of adding or changing any provisions with respect to
matters arising under the Warrant Agreement as the parties may deem
necessary or desirable and that the parties deem shall not
adversely affect the interest of the Registered Holders;
and
WHEREAS, the parties desire to amend the Warrant
Agreement to expand the scope of the Warrant Agent’s
appointment to include the Replacement Warrants in addition to the
Warrants, and the parties deem that such amendment does not
adversely affect the interest of the Registered Holders.
NOW, THEREFORE,
in consideration of the foregoing
and the mutual agreements herein contained, and intending to be
legally bound hereby, the Company and the Warrant Agent hereby
agree as follows:
1.
Definition of
“Warrants” to Include Replacement Warrants
. The term
“Warrants” as used in the Warrant Agreement shall be
deemed to include the Public Warrants, the Private Warrants and the
Replacement Warrants.
2.
Amendment to
Section 2(d) .
Section 2(d) of the Warrant Agreement shall be deleted in
its entirety and replaced with the following:
“(d)
Detachability of
Warrants . Each
Public Warrant and Private Warrant shall initially be issued
together with one share of Common Stock as a Unit. The share
of Common Stock and Public Warrant or Private Warrant comprising a
Unit shall not be separately transferable before the 30th day
following the date of the prospectus with respect to the
Company’s Public Offering (and the Units will thereafter
continue trading following such separation) (the “
Detachment Date ”). Prior to the Detachment
Date, the Public Warrants and Private Warrants may be transferred
or exchanged only together with the Unit in which such Public
Warrant or Private Unit is included, and only for the purpose of
effecting, or in conjunction with, a transfer or exchange of such
Unit. Furthermore, prior to the Detachment Date, each
transfer of a Unit on the register relating to such Units shall
operate also to transfer the Public Warrant or Private Warrant
included in such Unit.”
3.
Amendment to
Section 3(b) .
Section 3(b) of the Warrant Agreement shall be deleted in
its entirety and replaced with the following:
“(b)
Duration of Warrants
. A Public Warrant or Private
Warrant may be exercised only during the period commencing on the
30th day following the date of the prospectus with respect to the
Company’s Public Offering, and terminating at 5:00 p.m.,
Minneapolis, Minnesota time on the earlier to occur of
(i) January 7, 2014 or (ii) the date fixed for
redemption of the Public Warrants and Private Warrants as provided
in Section 6 of this Warrant Agreement. A Replacement
Warrant may be exercised only during the period commencing on the
closing date of the offering, which shall be a date promptly
following expiration of the Offer Period (the “Closing
Date”), and terminating at 5:00 p.m., M
