Exhibit
10.5
THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY OTHER SECURITIES LAWS, HAVE BEEN TAKEN FOR
INVESTMENT, AND MAY NOT BE SOLD OR TRANSFERRED OR OFFERED FOR SALE
OR TRANSFER UNLESS A REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND OTHER APPLICABLE SECURITIES LAWS WITH RESPECT TO SUCH
SECURITIES IS THEN IN EFFECT, OR IN THE OPINION OF COUNSEL (WHICH
OPINION IS REASONABLY SATISFACTORY TO THE ISSUER OF THESE
SECURITIES), SUCH REGISTRATION UNDER THE SECURITIES ACT AND OTHER
APPLICABLE SECURITIES LAWS IS NOT REQUIRED.
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Date:
April 17, 2008
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Warrant
to Purchase
***3,000,000***
Shares
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GENMED
HOLDING CORP.
(Incorporated
under the laws of the State of Nevada)
WARRANT
FOR THE PURCHASE OF SHARES OF
COMMON
STOCK
Warrant
Price: $0.10 per share, subject to adjustment as provided
below.
THIS
IS TO CERTIFY that, for value received, Willem Blijlevens and
its assigns (collectively, the “Holder”), is
entitled to purchase, subject to the terms and conditions
hereinafter set forth, up to ***3,000,000*** shares of the
common stock, par value $0.001 per share (“Common
Stock”), of GenMed Holding Corp., a Nevada corporation
(the “Company”), and to receive certificate(s) for
the Common Stock so purchased.
1.
Exercise Period and Vesting .
The exercise period is the period beginning on the date of this
Warrant (the “Issuance Date”) and ending at 5:00 p.m.,
Pacific Standard Time, seven years from the Issuance Date (the
“Exercise Period”). This Warrant is vested in full as
of the Issuance Date and is immediately exercisable by Holder. This
Warrant will terminate automatically and immediately upon the
expiration of the Exercise Period. The Issuance Date is April 17,
2008.
2.
Exercise of Warrant; Cashless Exercise .
This Warrant may be exercised, in whole or in part, at any time and
from time to time during the Exercise Period. Such exercise shall
be accomplished by tender to the Company of the purchase price set
forth above as the warrant price (the “Warrant Price”),
either (a) in cash, by wire transfer or by certified check or bank
cashier’s check, payable to the order of the Company, or (b)
by surrendering such number of shares of Common Stock received upon
exercise of this Warrant with a current market price equal to the
Warrant Price (a “Cashless Exercise”), together with
presentation and surrender to the Company of this Warrant with an
executed subscription in substantially the form attached hereto
as
Exhibit A (the
“Subscription”). Upon receipt of the foregoing, the
Company will deliver to the Holder, as promptly as possible, a
certificate or certificates representing the shares of Common Stock
so purchased, registered in the name of the Holder or its
transferee (as permitted under Section 3 below). With respect to
any exercise of this Warrant, the Holder will for all purposes be
deemed to have become the holder of record of the number of shares
of Common Stock purchased hereunder on the date this Warrant, a
properly executed Subscription and payment of the Warrant Price is
received by the Company (the “Exercise Date”),
irrespective of the date of delivery of the certificate evidencing
such shares, except that, if the date of such receipt is a date on
which the stock transfer books of the Company are closed, such
person will be deemed to have become the holder of such shares at
the close of business on the next succeeding date on which the
stock transfer books are open. Fractional shares of Common Stock
will not be issued upon the exercise of this Warrant. In lieu of
any fractional shares that would have been issued but for the
immediately preceding sentence, the Holder will be entitled to
receive cash equal to the current market price of such fraction of
a share of Common Stock on the trading day immediately preceding
the Exercise Date. In the event this Warrant is exercised in part,
the Company shall issue a new Warrant to the Holder covering the
aggregate number of shares of Common Stock as to which this Warrant
remains exercisable for.
If
the Holder elects to conduct a Cashless Exercise, the Company
shall cause to be delivered to the Holder a certificate or
certificates representing the number of shares of Common Stock
computed using the following formula:
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X
= Y
(A-B)
A
Where:
X
=
the
number of shares of Common Stock to be issued to
Holder;
Y
=
the
portion of the Warrant (in number of shares of Common
Stock)
being exercised by Holder (at the date of such
calculation);
A
=
the
fair market value of one share of Common Stock on the
Exercise
Date (as calculated below); and
B
=
Warrant
Price (as adjusted to the date of such
calculation).
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For
purposes of the foregoing calculation, “fair market
value of one share of Common Stock on the Exercise Date”
shall mean: (i) if the principal trading market for such
securities is a national or regional securities exchange, the
closing price on such exchange for the day immediately prior
to such Exercise Date; (ii) if sales prices for shares of
Common Stock are reported by the Nasdaq National Market System
or Nasdaq Small Cap Market (or a similar system then in use),
the last reported sales price for the day immediately prior to
such Exercise Date; or (iii) if neither (i) nor (ii) above are
applicable, and if bid and ask prices for shares of Common
Stock are reported in the over-the-counter market by Nasdaq
(or, if not so reported, by the National Quotation Bureau),
the average of the high bid and low ask prices so reported for
the ten (10) trading days immediately prior to such Exercise
Date. Additionally, in the case of (i) or (ii) above, at the
sole and exclusive election of the Holder, in any of the
foregoing calculations of the “fair market value of one
share of Common Stock on the Exercise Date”, the Holder
may elect to use either: (a) the closing price or last
reported sales price, as the case may be, for the day
immediately prior to the exercise date, OR (b) the arithmetic
mean average of the closing prices or last reported sales
prices, as the case may be, over the last ten (10) business
days. The Holder’s election shall be used in calculating
“the fair market value of one share of Common Stock on
the Exercise Date” in the above calculation.
Notwithstanding (i), (ii), and (iii) above, if there is no
reported closing price, last reported sales price, or bid and
ask prices, as the case may be, for the period in question,
then the current market price shall be determined as of the
latest ten (10) day period prior to such day for which such
closing price, last reported sales price, or bid and ask
prices, as the case may be, are available, unless such
securities have not been traded on an exchange or in the
over-the-counter market for 30 or more days immediately prior
to the day in question, in which case the current market price
shall be determined in good faith by, and reflected in a
formal resolution of, the Board of Directors of the Company.
The Company acknowledges and agrees that this Warrant was
issued on the Issuance Date.
3.
Transferability and Exchange .
(a)
This
Warrant, and the Common Stock issuable upon the exercise
hereof, may not be sold, transferred, pledged or hypothecated
unless the Company shall have been provided with an opinion of
counsel, or other evidence reasonably satisfactory to it, that
such transfer is not in violation of the Securities Act, and
any applicable state securities laws. Subject to the
satisfaction of the aforesaid condition, this Warrant and the
underlying shares of Common Stock shall be transferable from
time to time by the Holder upon written notice to the Company.
If this Warrant is transferred, in whole or in part, the
Company shall, upon surrender of this Warrant to the Company,
deliver to each transferee a Warrant evidencing the rights of
such transferee to purchase the number of shares of Common
Stock that such transferee is entitled to purchase pursuant to
such transfer. The Company may place a legend similar to the
legend at the top of this Warrant on any replacement Warrant
and on each certificate representing shares issuable upon
exercise of this Warrant or any replacement Warrants. Only a
registered Holder may enforce the provisions of this Warrant
against the Company. A transferee of the original registered
Holder becomes a registered Holder only upon delivery to the
Company of the original Warrant and an original Assignment,
substantially in the form set forth in
Exhibit B attached
hereto.
(b)
This
Warrant is exchangeable upon its surrender by the Holder to
the Company for new Warrants of like tenor and date
representing in the aggregate the right to purchase the number
of shares purchasable hereunder, each of such new Warrants to
represent the right to purchase such number of shares as may
be designated by the Holder at the time of such
surrender.
4.
Adjustments to Warrant Price and Number of Shares Subject
to Warrant .
The Warrant Price and the number of shares of Common Stock
purchasable upon the exercise of this Warrant are subject to
adjustment from time to time upon the occurrence of any of the
events specified in this Section 4. For the purpose of this Section
4, “Common Stock” means shares now or hereafter
authorized of any class of common stock of the Company and any
other stock of the Company, however designated, that has the right
to participate in any distribution of the assets or earnings of the
Company without limit as to per share amount (excluding, and
subject to any prior rights of, any class or series of preferred
stock).
(a)
In
case the Company shall (i) pay a dividend or make a
distribution in shares of Common Stock or other securities,
(ii) subdivide its outstanding shares of Common Stock into a
greater number of shares, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares, or (iv) issue
by reclassification of its shares of Common Stock other
securities of the Company, then the Warrant Price in effect at
the time of the record date for such dividend or on the
effective date of such subdivision, combination or
reclassification, and/or the number and kind of securities
issuable on such date, shall be proportionately adjusted so
that the Holder of any Warrant thereafter exercised shall be
entitled to receive the aggregate number and kind of shares of
Common Stock (or such other securities other than Common
Stock) of the Company, at the same aggregate Warrant Price,
that,
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