|
Exhibit 4.3
[FORM OF WARRANT]
STEREOTAXIS, INC.
WARRANT TO PURCHASE COMMON STOCK
Warrant No.:
Number of Shares of Common Stock:
Date of Issuance: December ,
2008 (" Issuance Date ")
Stereotaxis, Inc., a Delaware corporation (the " Company
"), hereby certifies that, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
[Sanderling Venture Partners VI Co-Investment Fund, L.P.]
[Sanderling VI Limited Partnership] [Sanderling VI Beteiligungs
GMBH & Co. KG ] [Sanderling Ventures Management VI][Alafi
Capital Company, LLC], the registered holder hereof or its
permitted assigns (the " Holder "), is entitled, subject to
the terms set forth below, to purchase from the Company, at the
Exercise Price (as defined below) then in effect, upon surrender of
this Warrant to Purchase Common Stock (including any Warrants to
Purchase Common Stock issued in exchange, transfer or replacement
hereof, the " Warrant "), at any time or times on or after
the date immediately after the six month anniversary of the
Issuance Date (the " Initial Exercisability Date ") but not
after 11:59 p.m., New York time, on the Expiration Date (as defined
below),
[ ]
([ ])
1 fully paid
nonassessable shares of Common Stock (as defined below) (the "
Warrant Shares "). This Warrant is one of the Warrants to
purchase Common Stock (the " SPA Warrants ") issued pursuant
to Section 1 of that certain Securities Purchase Agreement,
dated as of December 29, 2008 (the " Subscription Date
"), by and among the Company and the investors (individually, a "
Buyer " and collectively, the " Buyers ") referred to
therein (the " Securities Purchase Agreement "). Except as
otherwise defined herein, capitalized terms in this Warrant shall
have the meanings set forth in Section 16.
1. EXERCISE OF WARRANT .
(a) Mechanics of Exercise . Subject to the terms and
conditions hereof (including, without limitation, the limitations
set forth in Section 1(f)), this Warrant may be exercised by
the Holder at any time or times on or after the Initial
Exercisability Date, in whole or in part, by (i) delivery of a
written notice, in the form attached hereto as Exhibit A
(the " Exercise Notice "), of the Holder’s election to
exercise this Warrant and (ii) (A) payment to the Company of
an amount equal to the applicable Exercise Price multiplied by the
number of Warrant Shares as to which this Warrant is being
exercised (the " Aggregate Exercise Price ") in cash or by
wire transfer of immediately available funds or (B) by
notifying the Company that this Warrant is being exercised pursuant
to a Cashless Exercise (as defined in Section 1(d)). The
Holder shall not be required to deliver the original Warrant in
order to effect an exercise hereunder, but shall deliver the
original
|
1
|
Insert a number of shares equal to
such Holder’s pro rata share of approximately 4,859,504
Common Shares.
|
Warrant within five (5) Business Days after
exercising the Warrant in full. Execution and delivery of the
Exercise Notice with respect to less than all of the Warrant Shares
shall have the same effect as cancellation of the original Warrant
and issuance of a new Warrant evidencing the right to purchase the
remaining number of Warrant Shares. On or before the first
(1 st ) Business Day following the date on which the Company has
received each of the Exercise Notice and the Aggregate Exercise
Price (or notice of a Cashless Exercise) (the " Exercise
Delivery Documents "), the Company shall transmit by facsimile
an acknowledgment of confirmation of receipt of the Exercise
Delivery Documents to the Holder and the Company’s transfer
agent (the " Transfer Agent "). On or before the third
(3 rd ) Trading Day following the date on which the Company has
received all of the Exercise Delivery Documents (the " Share
Delivery Date "), the Company shall (X) provided that the
Transfer Agent is participating in The Depository Trust Company ("
DTC ") Fast Automated Securities Transfer Program, upon the
request of the Holder, credit such aggregate number of Warrant
Shares to which the Holder is entitled pursuant to such exercise to
the Holder’s or its designee’s balance account with DTC
through its Deposit Withdrawal Agent Commission system, or
(Y) if the Transfer Agent is not participating in the DTC Fast
Automated Securities Transfer Program, issue and dispatch by
overnight courier to the address as specified in the Exercise
Notice, a certificate, registered in the Company’s share
register in the name of the Holder or its designee, for the number
of shares of Common Stock to which the Holder is entitled pursuant
to such exercise. Upon delivery of the Exercise Delivery Documents,
the Holder shall be deemed for all corporate purposes to have
become the holder of record of the Warrant Shares with respect to
which this Warrant has been exercised, irrespective of the date
such Warrant Shares are credited to the Holder’s DTC account
or the date of delivery of the certificates evidencing such Warrant
Shares, as the case may be. If this Warrant is submitted in
connection with any exercise pursuant to this Section 1(a) and
the number of Warrant Shares represented by this Warrant submitted
for exercise is greater than the number of Warrant Shares being
acquired upon an exercise, then the Company shall as soon as
practicable and in no event later than three (3) Business Days
after any exercise and at its own expense, issue a new Warrant (in
accordance with Section 7(d)) representing the right to
purchase the number of Warrant Shares issuable immediately prior to
such exercise under this Warrant, less the number of Warrant Shares
with respect to which this Warrant is exercised. No fractional
shares of Common Stock are to be issued upon the exercise of this
Warrant, but rather the number of shares of Common Stock to be
issued shall be rounded up to the nearest whole number. The Company
shall pay any and all taxes which may be payable with respect to
the issuance and delivery of Warrant Shares upon exercise of this
Warrant.
(b) Exercise Price . For purposes of this Warrant, "
Exercise Price " means $4.64, subject to adjustment as
provided herein.
(c) Company’s Failure to Timely Deliver Securities
. If the Company shall fail for any reason or for no reason to
issue to the Holder within three (3) Trading Days of receipt
of the Exercise Delivery Documents, a certificate for the number of
shares of Common Stock to which the Holder is entitled and register
such shares of Common Stock on the Company’s share register
or credit the Holder’s balance account with DTC for the
number of shares of Common Stock to which the Holder is entitled
upon the Holder’s exercise hereunder or pursuant to the
Company’s obligation pursuant to clause
- 2 -
(ii) below, and if on or after such Trading
Day the Holder purchases (in an open market transaction or
otherwise) shares of Common Stock to deliver in satisfaction of a
sale by the Holder of shares of Common Stock issuable upon such
exercise that the Holder anticipated receiving from the Company (a
" Buy-In "), then the Company shall, within three
(3) Business Days after the Holder’s request and in the
Holder’s discretion, either (i) pay cash to the Holder
in an amount equal to the Holder’s total purchase price
(including actual brokerage commissions, if any) for the shares of
Common Stock so purchased (the " Buy-In Price "), at which
point the Company’s obligation to deliver such certificate
(and to issue such Warrant Shares or credit such Holder’s
balance account with DTC) shall terminate, or (ii) promptly
honor its obligation to deliver to the Holder a certificate or
certificates representing such Warrant Shares or credit such
Holder’s balance account with DTC and pay cash to the Holder
in an amount equal to the excess (if any) of the Buy-In Price over
the product of (A) such number of shares of Common Stock,
times (B) the Weighted Average Price on the date of
exercise.
(d) Cashless Exercise . The Holder may, in its sole
discretion (and, notwithstanding anything contained herein to the
contrary, if the Registration Statement (as defined in the
Securities Purchase Agreement) covering the issuance of the Warrant
Shares that are the subject of the Exercise Notice by the Holder
pursuant to the 1933 Act (the " Unavailable Warrant Shares
") is not available for the issuance of such Unavailable Warrant
Shares, the Holder may only) exercise this Warrant in whole or in
part and, in lieu of making the cash payment otherwise contemplated
to be made to the Company upon such exercise in payment of the
Aggregate Exercise Price, elect instead to receive upon such
exercise the "Net Number" of shares of Common Stock determined
according to the following formula (a " Cashless Exercise
"):
| |
|
|
|
|
|
|
| |
|
Net Number =
|
|
(A x B) - (A x C)
|
|
|
| |
|
|
|
B
|
|
|
|
|
| |
|
For purposes of the foregoing formula:
|
|
|
|
A=
|
|
the total number of shares with respect to which
this Warrant is then being exercised.
|
|
|
|
B=
|
|
the Weighted Average Price of the shares of
Common Stock (as reported by Bloomberg) on the date immediately
preceding the date of the Exercise Notice.
|
|
|
|
C=
|
|
the Exercise Price then in effect for the
applicable Warrant Shares at the time of such exercise.
|
(e) Disputes . In the case of a dispute as
to the determination of the Exercise Price or the arithmetic
calculation of the Warrant Shares, the Company shall promptly issue
to the Holder the number of Warrant Shares that are not disputed
and resolve such dispute in accordance with
Section 12.
- 3 -
(f) Limitations on Exercises.
(i) Principal Market Regulation . The Company shall not
be obligated to issue any shares of Common Stock upon exercise of
this Warrant and no Buyer shall be entitled to receive any shares
of Common Stock if and to the extent the issuance of such shares of
Common Stock would breach the Company’s obligations under the
rules or regulations of any applicable Eligible Market, except that
such limitation shall not apply in the event that the Company
(A) obtains the approval of its shareholders as required by
the applicable rules of the Eligible Market for issuances of shares
of Common Stock or (B) obtains a written opinion from outside
counsel to the Company that such approval is not required, which
opinion shall be reasonably satisfactory to the Required
Holders.
(g) Insufficient Authorized Shares . If at any time while
this Warrant remain outstanding the Company does not have a
sufficient number of authorized and unreserved shares of Common
Stock to satisfy its obligation to reserve for issuance upon
exercise of this Warrant at least a number of shares of Common
Stock equal to (the " Required Reserve Amount ") the number
of shares of Common Stock as shall from time to time be necessary
to effect the exercise of all of this Warrant then outstanding (an
" Authorized Share Failure "), then the Company shall
immediately take all action necessary to increase the
Company’s authorized shares of Common Stock to an amount
sufficient to allow the Company to reserve the Required Reserve
Amount for this Warrant then outstanding. Without limiting the
generality of the foregoing sentence, as soon as practicable after
the date of the occurrence of an Authorized Share Failure, but in
no event later than sixty (60) days after the occurrence of
such Authorized Share Failure, the Company shall hold a meeting of
its stockholders for the approval of an increase in the number of
authorized shares of Common Stock. In connection with such meeting,
the Company shall provide each stockholder with a proxy statement
and shall use its best efforts to solicit its stockholders’
approval of such increase in authorized shares of Common Stock and
to cause its board of directors to recommend to the stockholders
that they approve such proposal.
2. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT
SHARES . The Exercise Price and the number of Warrant Shares
shall be adjusted from time to time as follows:
(a) Adjustment upon Subdivision or Combination of Common
Stock . If the Company at any time on or after the Subscription
Date subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its
outstanding shares of Common Stock into a greater number of shares,
the Exercise Price in effect immediately prior to such subdivision
will be proportionately reduced and the number of Warrant Shares
will be proportionately increased. If the Company at any time on or
after the Subscription Date combines (by combination, reverse stock
split or otherwise) one or more classes of its outstanding shares
of Common Stock into a smaller number of shares, the Exercise Price
in effect immediately prior to such combination will be
proportionately increased and the number of Warrant Shares will be
proportionately decreased. Any adjustment under this
Section 2(a) shall become effective at the close of business
on the date the subdivision or combination becomes effective.
- 4 -
(b) Other Events . If any event occurs of
the type contemplated by the provisions of this Section 2 but
not expressly provided for by such provisions (including, without
limitation, the granting of stock appreciation rights, phantom
stock rights or other rights with equity features), then the
Company’s Board of Directors will make an appropriate
adjustment in the Exercise Price and the number of Warrant Shares
so as to protect the rights of the Holder; provided that no such
adjustment pursuant to this Section 2(b) will increase the
Exercise Price or decrease the number of Warrant Shares as
otherwise determined pursuant to this Section 2.
(c) Voluntary Adjustment By Company . The Company may at
any time during the term of this Warrant reduce the then current
Exercise Price to any amount and for any period of time deemed
appropriate by the Board of Directors of the Company.
3. RIGHTS UPON DISTRIBUTION OF ASSETS . If the Company
shall declare or make any dividend or other distribution of its
assets (or rights to acquire its assets) to holders of shares of
Common Stock, by way of return of capital or otherwise (including,
without limitation, any distribution of cash, stock or other
securities, property or options by way of a dividend, spin off,
reclassification, corporate rearrangement, scheme of arrangement or
other similar transaction) (a " Distribution "), at any time
after the issuance of this Warrant, then, in each such case:
(a) any Exercise Price in effect immediately prior to the close
of business on the record date fixed for the determination of
holders of shares of Common Stock entitled to receive the
Distribution shall be reduced, effective as of the close of
business on such record date, to a price determined by multiplying
such Exercise Price by a fraction of which (i) the numerator
shall be the Weighted Average Price of the shares of Common Stock
on the Trading Day immediately preceding such record date minus the
value of the Distribution (as determined in good faith by the
Company’s Board of Directors) applicable to one share of
Common Stock, and (ii) the denominator shall be the Weighted
Average Price of the shares of Common Stock on the Trading Day
immediately preceding such record date; and
(b) in the event that the Distribution is of shares of Common
Stock (or common stock) (" Other Shares of Common Stock ")
of a company whose common shares are traded on a national
securities exchange or a national automated quotation system, then
the Holder may elect to receive a warrant to purchase Other Shares
of Common Stock, the terms of which shall be identical to those of
this Warrant, except that such warrant shall be exercisable into
the number of shares of Other Shares of Common Stock that would
have been payable to the Holder pursuant to the Distribution had
the Holder exercised this Warrant immediately prior to such record
date and with an aggregate exercise price equal to the product of
the amount by which the exercise price of this Warrant was
decreased with respect to the Distribution pursuant to the terms of
the immediately preceding paragraph (a) and the number of
Warrant Shares calculated in accordance with the first part of this
paragraph (b).
- 5 -
4. PURCHASE RIGHTS; FUNDAMENTAL
TRANSACTIONS .
(a) Purchase Rights . In addition to any adjustments
pursuant to Section 2 above, if at any time the Company
grants, issues or sells any Options, Convertible Securities or
rights to purchase stock, warrants, securities or other property
pro rata to the record holders of any class of shares of Common
Stock (the " Purchase Rights "), then the Holder will be
entitled to acquire, upon the terms applicable to such Purchase
Rights, the aggregate Purchase Rights which the Holder could have
acquired if the Holder had held the number of shares of Common
Stock acquirable upon complete exercise of this Warrant (without
regard to any limitations on the exercise of this Warrant)
immediately before the date on which a record is taken for the
grant, issuance or sale of such Purchase Rights, or, if no such
record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the grant, issue or sale
of such Purchase Rights.
(b) Fundamental Transactions . The Company shall not
enter into or be party to a Fundamental Transaction unless the
Successor Entity assumes in writing all
|
