NEITHER THIS WARRANT
NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED
WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION (THE
"COMMISSION") OR THE SECURITIES COMMISSION OF ANY STATE PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER REGULATION D PROMULGATED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON
EXERCISE HEREOF MAY BE SOLD, PLEDGED, TRANSFERRED OR ASSIGNED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES LAWS, OR IN A
TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER THE PROVISIONS
OF THE SECURITIES ACT AND UNDER PROVISIONS OF APPLICABLE STATE
SECURITIES LAWS.
STOCK PURCHASE
WARRANT
To Purchase up to
___________ Shares of Common Stock of
BIOMEDICAL TECHNOLOGY
SOLUTIONS HOLDINGS, INC.
THIS CERTIFIES that, for
value received, ________________, (the "Holder"), is entitled, upon
the terms and subject to the conditions hereinafter set forth, at
any time commencing on or after the date of issuance of this
Warrant (the "Initial Exercise Date") and ending on the close of
business on _________, 20__ (the "Termination Date") but not
thereafter, to subscribe for and purchase from BioMedical
Technology Solutions Holdings, Inc., a Colorado corporation (the
"Company"), up to __________________(_________) shares (the
"Warrant Shares") of Common Stock, $.001 par value per share of the
Company (the "Common Stock"). The purchase price of one share
of Common Stock (the "Exercise Price") under this Warrant shall
initially be $_______. The Exercise Price and the number of
shares for which the Warrant is exercisable shall be subject to
adjustment as provided herein.
1.
Title of
Warrant .
Prior to the expiration hereof and subject to compliance with
applicable laws, this Warrant and all rights hereunder are
transferable, in whole or in part, at the office or agency of the
Company by the holder hereof in person or by duly authorized
attorney, upon surrender of this Warrant together with the
Assignment Form annexed hereto properly endorsed.
2.
Authorization of
Shares .
The Company covenants that all shares of Common Stock which
may be issued upon the exercise of rights represented by this
Warrant will, upon exercise of the rights represented by this
Warrant, be duly authorized, validly issued, fully paid and
nonassessable and free from all taxes, liens and charges in respect
of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously with such issue).
3.
Exercise of
Warrant .
(a) Except as provided in Section 4 herein, exercise of
the purchase rights represented by this Warrant may be made at any
time or times on or after the Initial Exercise Date and before the
close of business on the Termination Date, or such earlier date on
which this Warrant may terminate as provided elsewhere in this
Warrant, by the surrender of this Warrant and the Notice of
Exercise Form annexed hereto duly executed, at the office of the
Company (or such other office or agency of the Company as it may
designate by notice in writing to the registered holder hereof at
the address of such holder appearing on the books of the Company)
and upon payment of the Exercise Price of the shares thereby
purchased in the manner provided for herein, the holder of this
Warrant shall be entitled to receive a certificate for the number
of shares of Common Stock so
1
purchased. Certificates
for shares purchased hereunder shall be delivered to the holder
hereof within three (3) business days after the date on which this
Warrant shall have been exercised as aforesaid. This Warrant shall
be deemed to have been exercised and such certificate or
certificates shall be deemed to have been issued, and Holder or any
other person so designated to be named therein shall be deemed to
have become a holder of record of such shares for all purposes, as
of the date the Warrant has been exercised by payment to the
Company of the Exercise Price and all taxes required to be paid by
Holder, if any, pursuant to Section 5 prior to the issuance of such
shares, have been paid. If this Warrant shall have been
exercised in part, the Company shall, at the time of delivery of
the certificate or certificates representing Warrant Shares,
deliver to Holder a new Warrant evidencing the rights of Holder to
purchase the unpurchased shares of Common Stock called for by this
Warrant, which new Warrant shall in all other respects be identical
with this Warrant.
(b)
Notwithstanding any
other provision hereof, in no event (except (i) as specifically
provided herein as an exception to this provision, or (ii) while
there is outstanding a tender offer for any or all of the shares of
the Company’s Common Stock) shall the Holder be entitled to
exercise any portion of this Warrant, or shall the Company have the
obligation to accept the exercise of such Warrant (and the Company
shall not have the right to pay interest hereon in shares of Common
Stock) to the extent that, after such exercise or issuance of stock
in payment of interest, the sum of (1) the number of shares of
Common Stock beneficially owned by the Holder and its affiliates
(other than shares of Common Stock which may be deemed beneficially
owned through the ownership of the unexercised portion of the
Warrants or other convertible securities or of the unexercised
portion of other options or warrants or other rights to purchase
Common Stock), and (2) the number of shares of Common Stock
issuable upon the exercise of the Warrants with respect to which
the determination of this proviso is being made, would result in
beneficial ownership by the Holder and its affiliates of more than
4.99% of the outstanding shares of Common Stock (after taking into
account the shares to be issued to the Holder upon such
conversion). For purposes of the proviso to the immediately
preceding sentence, beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities Exchange Act of
1934, as amended, except as otherwise provided in clause (1) of
such sentence. The Holder, by its acceptance of this Warrant,
further agrees that if the Holder transfers or assigns any of the
Warrants to a party who or which would not be considered such an
affiliate, such assignment shall be made subject to the
transferee’s or assignee’s specific agreement to be
bound by the provisions of this Section 3(b) as if such transferee
or assignee were the original Holder hereof. Nothing herein
shall preclude the Holder from disposing of a sufficient number of
other shares of Common Stock beneficially owned by the Holder so as
to thereafter permit the continued exercise of this
Warrant.
4.
Manner of
Payment. The exercise price of each
Warrant shall be paid in cash, certified funds or wire transfer at
the time the Warrant is exercised.
5.
No Fractional Shares
or Scrip .
No fractional shares or scrip representing fractional shares
shall be issued upon the exercise of this Warrant. As to any
fraction of a share which Holder would otherwise be entitled to
purchase upon such exercise, the Company shall pay a cash
adjustment in respect of such final fraction in an amount equal to
the proportionate share of the Exercise Price.
6.
Charges, Taxes and
Expenses .
Issuance of certificates for shares of Common Stock upon the
exercise of this Warrant shall be made without charge to the holder
hereof for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificate, all of which taxes and
expenses shall be paid by the Company, and such certificates shall
be issued in the name of the holder of this Warrant or in such name
or names as may be directed by the holder of this Warrant;
provided, however, that in the event certificates for shares of
Common Stock are to be issued in a name other than the name of the
holder of this Warrant, this Warrant when surrendered for exercise
shall be accompanied by an Assignment Form duly executed by the
holder hereof; and provided further, that upon any transfer
involving the issuance or delivery of any certificates for shares
of Common Stock, the Company may require, as a condition thereto,
the payment of a sum sufficient to reimburse it for any transfer
tax incidental thereto.
7.
Closing of
Books .
The Company will not close its shareholder books or records
in any manner which prevents the timely exercise of this
Warrant.
8.
Transfer, Division
and Combination .
(a)
Subject to compliance
with any applicable securities laws (including the provision to the
Company of an opinion of counsel for the assignor of this Warrant),
transfer of this Warrant and all rights hereunder, in whole or in
part, shall be registered on the books of the Company to be
maintained for such purpose, upon surrender of this Warrant at the
principal office of the Company, together with a written assignment
of this Warrant substantially in the form attached hereto duly
executed by Holder or its agent or attorney and funds sufficient to
pay any transfer taxes payable upon the making of such transfer.
Upon such surrender and, if required, such payment, the
Company shall execute and deliver a new Warrant or Warrants in the
name of the assignee or assignees and in the denomination specified
in such instrument of assignment, and shall issue to the assignor a
new Warrant evidencing the portion of this Warrant not so assigned,
and this Warrant shall promptly be cancelled. A Warrant, if
properly assigned, may be exercised by a new Holder for the
purchase of shares of Common Stock without having a new Warrant
issued.
(b)
This Warrant may be
divided or combined with other Warrants upon presentation hereof at
the aforesaid office of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to
be issued, signed by Holder or its agent or attorney. Subject
to compliance with Section 8(a), as to any transfer which may be
involved in such division or combination, the Company shall execute
and deliver a new Warrant or Warrants in exchange for the Warrant
or Warrants to be divided or combined in accordance with such
notice.
(c)
The Company shall
prepare, issue and deliver at its own expense (other than transfer
taxes) the new Warrant or Warrants under this Section 9.
(d)
The Company agrees to
maintain, at its aforesaid office, books for the registration and
the registration of transfer of the Warrants.
9.
No Rights as
Shareholder until Exercise . This Warrant does not
entitle the holder hereof to any voting rights or other rights as a
shareholder of the Company prior to the exercise hereof. Upon
the surrender of this Warrant and the payment of the aggregate
Exercise Price, the Warrant Shares so purchased shall be and be
deemed to be issued to such holder as the record owner of such
shares as of the close of business on the later of the date of such
surrender or payment.
10.
Loss, Theft,
Destruction or Mutilation of Warrant . The Company represents and
warrants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant certificate or any stock certificate relating to the
Warrant Shares, and in case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to it, and upon
surrender and cancellation of such Warrant or stock certificate, if
mutilated, the Company will make and deliver a new Warrant or stock
certificate of like tenor and dated as of such cancellation, in
lieu of such Warrant or stock certificate.
11.
Saturdays, Sundays,
Holidays, etc . If the last or appointed day
for the taking of any action or the expiration of any right
required or granted herein shall be a Saturday, Sunday or a legal
holiday, then such action may be taken or such right may be
exercised on the next succeeding day not a Saturday, Sunday or
legal holiday.
12.
Adjustments of
Exercise Price and Number of Warrant Shares .
(a)
Stock Splits,
etc . The
number and kind of securities purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment from
time to time upon the happening of any of the following. In
case the Company shall (i) pay a dividend in shares of Common Stock
or make a distribution in shares of Common Stock to holders of its
outstanding Common Stock, (ii) subdivide its outstanding shares of
Common Stock into a greater number of shares of Common Stock, (iii)
combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock or (iv) issue any shares of its
capital stock in a reclassification of the Common Stock, then the
number of Warrant Shares purchasable upon exercise of this Warrant
immediately prior thereto shall be adjusted so that the holder of
this Warrant shall be entitled to receive the kind and number of
Warrant Shares or other securities of the Company which he would
have owned or have been entitled to receive had such Warrant been
exercised in advance thereof. Upon each such adjustment of
the kind and number of Warrant Shares or other securities of the
Company which are purchasable hereunder, the holder of this Warrant
shall thereafter be entitled to purchase the number of Warrant
Shares or other securities resulting from such adjustment at an
Exercise Price per such Warrant Share or other security obtained by
multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of Warrant Shares purchasable pursuant
hereto immediately prior to such adjustment and dividing by the
number of Warrant Shares or other securities of the Company
resulting from such adjustment. An adjustment made pursuant
to this paragraph shall become effective immediately after the
effective date of such event retroactive to the record date, if
any, for such event.
(b)
Reorganization,
Reclassification, Merger, Consolidation or Disposition of
Assets .
In case the Company shall
