Attached files
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8-K - FORM 8-K - Foundation Healthcare, Inc. | c16663e8vk.htm |
EX-10.1 - EXHIBIT 10.1 - Foundation Healthcare, Inc. | c16663exv10w1.htm |
Exhibit 10.2
NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR APPLICABLE
STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED
(I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES ACT OR (B) AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS OR BLUE SKY LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY AND ITS TRANSFER AGENT OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER THE SECURITIES ACT.
NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
GRAYMARK HEALTHCARE, INC.
WARRANT TO PURCHASE COMMON STOCK
Warrant No. | Original Issue Date: |
Graymark Healthcare, Inc., an Oklahoma corporation (the Company), hereby certifies that, for
value received, or its permitted registered assigns (the Holder), is entitled to
purchase from the Company up to a total of
shares of common stock, $0.0001 par value per
share (the Common Stock), of the Company (each such share, a Warrant Share and all such shares,
the Warrant Shares) at an exercise price per share equal to $0.45 per share (as adjusted from
time to time as provided in Section 9 herein, the Exercise Price), at any time and from
time to time on or after the date that is six (6) months from the date hereof (the Trigger
Date)and through and including 5:30 P.M., Oklahoma City time, on May 4, 2014 (the Expiration
Date), and subject to the following terms and conditions:
This Warrant (this Warrant) is one of a series of similar warrants issued pursuant to those
certain Subscription Agreements, dated April 30, 2011, by and among the Company and the purchasers
identified therein (collectively, the Subscription Agreement). All such Warrants are referred to
herein, collectively, as the Warrants.
1. Registration of Warrants. The Company shall register this Warrant, upon records to be
maintained by the Company for that purpose (the Warrant Register), in the name of the record
Holder (which shall include the initial Holder or, as the case may be, any registered assignee to
which this Warrant is permissibly assigned hereunder) from time to time. The Company may deem and
treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any
exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice
to the contrary.
2. Registration of Transfers. Subject to compliance with all applicable securities laws,
the Company shall register the transfer of all or any portion of this Warrant in the Warrant
Register, upon surrender of this Warrant, with the Form of Assignment attached as Schedule
2 hereto duly completed and signed, to the Companys transfer agent or to the Company at its
address specified in the Subscription Agreement and (x) delivery, at the request of the Company, of
an opinion of
counsel reasonably satisfactory to the Company to the effect that the transfer of such portion of
this Warrant may be made pursuant to an available exemption from the registration requirements of
the Securities Act and all applicable state securities or blue sky laws and (y) delivery by the
transferee of a written statement to the Company certifying that the transferee is an accredited
investor as defined in Rule 501(a) under the Securities Act and making the representations and
certifications set forth in paragraphs B(2), B(3), B(4), B(7) and B(8) of the Subscription
Agreement, to the Company at its address specified in the Subscription Agreement. Upon any such
registration or transfer, a new warrant to purchase Common Stock in substantially the form of this
Warrant (any such new warrant, a New Warrant) evidencing the portion of this Warrant so
transferred shall be issued to the transferee, and a New Warrant evidencing the remaining portion
of this Warrant not so transferred, if any, shall be issued to the transferring Holder. The
acceptance of the New Warrant by the transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations in respect of the New Warrant that the Holder has
in respect of this Warrant. The Company shall prepare, issue and deliver at its own expense any New
Warrant under this Section 2.
3. Exercise and Duration of Warrants.
(a) All or any part of this Warrant shall be exercisable by the registered Holder in any
manner permitted by Section 8 of this Warrant at any time and from time to time on or after
the Trigger Date and through and including 5:30 P.M. Oklahoma City time, on the Expiration Date.
At 5:30 P.M., Oklahoma City time, on the Expiration Date, the portion of this Warrant not exercised
prior thereto shall be and become void and of no value and this Warrant shall be terminated and no
longer outstanding.
(b) The Holder may exercise this Warrant by delivering to the Company (i) an exercise notice,
in the form attached as Schedule 1 hereto (the Exercise Notice), completed and duly
signed, and (ii) payment of the Exercise Price for the number of Warrant Shares as to which this
Warrant is being exercised (which may take the form of a cashless exercise if so indicated in the
Exercise Notice and if a cashless exercise may occur at such time pursuant to Section 10
below), and the date on which the last of such items is delivered to the Company (as determined in
accordance with the notice provisions hereof) is an Exercise Date. The delivery by (or on behalf
of) the Holder of the Exercise Notice and the applicable Exercise Price as provided above shall
constitute the Holders certification to the Company that its representations contained in Sections
3.2(b), (c) and (d) of the Subscription Agreement are true and correct as of the Exercise Date as
if remade in their entirety (or, in the case of any transferee Holder that is not a party to the
Subscription Agreement, such transferee Holders certification to the Company that such
representations are true and correct as to such assignee Holder as of the Exercise Date). The
Holder shall not be required to deliver the original Warrant in order to effect an exercise
hereunder. Execution and delivery of the Exercise Notice 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.
4. Delivery of Warrant Shares. Upon exercise of this Warrant, the Company shall promptly
issue or cause to be issued and cause to be delivered to or upon the written order of the Holder
and in such name or names as the Holder may designate (provided that, if a registration statement
is not effective and the Holder directs the Company to deliver a certificate for the Warrant Shares
in a name other than that of the Holder or an Affiliate of the Holder, it shall deliver to the
Company on the Exercise Date an opinion of counsel reasonably satisfactory to the Company to the
effect that the issuance of such Warrant Shares in such other name may be made pursuant to an
available exemption from the registration requirements of the Securities Act and all applicable
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state securities or blue sky laws), (i) a certificate for the Warrant Shares issuable upon such
exercise, free of restrictive legends, or (ii) an electronic delivery of the Warrant Shares to the
Holders account at the Depository Trust Company (DTC) or a similar organization, unless in the
case of clause (i) and (ii) a registration statement covering the resale of the Warrant Shares and
naming the Holder as a selling stockholder thereunder is not then effective or the Warrant Shares
are not freely transferable without volume and manner of sale restrictions pursuant to Rule 144
under the Securities Act, in which case such Holder shall receive a certificate for the Warrant
Shares issuable upon such exercise with appropriate restrictive legends. The Holder, or any Person
permissibly so designated by the Holder to receive Warrant Shares, shall be deemed to have become
the holder of record of such Warrant Shares as of the Exercise Date. If the Warrant Shares are to
be issued free of all restrictive legends, the Company shall, upon the written request of the
Holder, use its reasonable best efforts to deliver, or cause to be delivered, Warrant Shares
hereunder electronically through DTC or another established clearing corporation performing similar
functions, if available; provided, that, the Company may, but will not be required to, change its
transfer agent if its current transfer agent cannot deliver Warrant Shares electronically through
such a clearing corporation.
5. Charges, Taxes and Expenses. Issuance and delivery of certificates for shares of Common
Stock upon exercise of this Warrant shall be made without charge to the Holder for any issue or
transfer tax, transfer agent fee or other incidental tax or expense in respect of the issuance of
such certificates, all of which taxes and expenses shall be paid by the Company; provided, however,
that the Company shall not be required to pay any tax that may be payable in respect of any
transfer involved in the registration of any certificates for Warrant Shares or the Warrants in a
name other than that of the Holder or an Affiliate thereof. The Holder shall be responsible for all
other tax liability that may arise as a result of holding or transferring this Warrant or receiving
Warrant Shares upon exercise hereof.
6. Replacement of Warrant. If this Warrant is mutilated, lost, stolen or destroyed, the
Company shall issue or cause to be issued in exchange and substitution for and upon cancellation
hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or destruction (in such case)
and, in each case, a customary and reasonable indemnity and surety bond, if requested by the
Company. Applicants for a New Warrant under such circumstances shall also comply with such other
reasonable regulations and procedures and pay such other reasonable third-party costs as the
Company may prescribe. If a New Warrant is requested as a result of a mutilation of this Warrant,
then the Holder shall deliver such mutilated Warrant to the Company as a condition precedent to the
Companys obligation to issue the New Warrant.
7. Reservation of Warrant Shares. The Company covenants that it will at all times reserve
and keep available out of the aggregate of its authorized but unissued and otherwise unreserved
Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise of this
Warrant as herein provided, the number of Warrant Shares that are initially issuable and
deliverable upon the exercise of this entire Warrant, free from preemptive rights or any other
contingent purchase rights of persons other than the Holder (taking into account the adjustments
and restrictions of Section 8). The Company covenants that all Warrant Shares so issuable
and deliverable shall, upon issuance and the payment of the applicable Exercise Price in accordance
with the terms hereof, be duly and validly authorized, issued and fully paid and nonassessable. The
Company will take all such action as may be reasonably necessary to assure that such shares of
Common Stock may be issued as provided herein without violation of any applicable law or
regulation, or of any requirements of any securities exchange or automated quotation system upon
which the Common Stock may be listed.
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8. Certain Adjustments. The Exercise Price and number of Warrant Shares issuable upon
exercise of this Warrant are subject to adjustment from time to time as set forth in this
Section 8.
(a) Stock Dividends and Splits. If the Company, at any time while this Warrant is
outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a distribution on any
class of capital stock that is payable in shares of Common Stock, (ii) subdivides its outstanding
shares of Common Stock into a larger number of shares, (iii) combines its outstanding shares of
Common Stock into a smaller number of shares or (iv) issues by reclassification of shares of Common
Stock any shares of capital of the Company, then in each such case the Exercise Price shall be
multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately before such event and the denominator of which shall be the number of
shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to
clause (i) of this paragraph shall become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or distribution, and any adjustment
pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the
effective date of such subdivision or combination.
(b) Pro Rata Distributions. If the Company, at any time while this Warrant is
outstanding, distributes to all holders of Common Stock for no consideration (i) evidences of its
indebtedness, (ii) any security (other than a distribution of Common Stock covered by the preceding
paragraph) or (iii) rights or warrants to subscribe for or purchase any security, or (iv) any other
asset (in each case, Distributed Property), then, upon any exercise of this Warrant that occurs
after the record date fixed for determination of stockholders entitled to receive such
distribution, the Holder shall be entitled to receive, in addition to the Warrant Shares otherwise
issuable upon such exercise (if applicable), the Distributed Property that such Holder would have
been entitled to receive in respect of such number of Warrant Shares had the Holder been the record
holder of such Warrant Shares immediately prior to such record date without regard to any
limitation on exercise contained therein.
(c) Number of Warrant Shares. Simultaneously with any adjustment to the Exercise Price
pursuant to paragraph (a) of this Section 8, the number of Warrant Shares that may be
purchased upon exercise of this Warrant shall be increased or decreased proportionately, so that
after such adjustment the aggregate Exercise Price payable hereunder for the increased or decreased
number of Warrant Shares shall be the same as the aggregate Exercise Price in effect immediately
prior to such adjustment.
(d) Calculations. All calculations under this Section 8 shall be made to the
nearest cent or the nearest share, as applicable.
(e) Notice of Adjustments. Upon the occurrence of each adjustment pursuant to this
Section 8, the Company at its expense will, at the written request of the Holder, promptly
compute such adjustment, in good faith, in accordance with the terms of this Warrant and prepare a
certificate setting forth such adjustment, including a statement of the adjusted Exercise Price and
adjusted number or type of Warrant Shares or other securities issuable upon exercise of this
Warrant (as applicable), describing the transactions giving rise to such adjustments and showing in
detail the facts upon which such adjustment is based. Upon written request, the Company will
promptly deliver a copy of each such certificate to the Holder and to the Companys transfer agent.
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9. Payment of Exercise Price. The Holder shall pay the Exercise Price in immediately
available funds; provided, however, that if, on any Exercise Date there is not an effective
registration statement registering, or no current prospectus available for, the resale of the
Warrant Shares by the Holder, then the Holder may, in its sole discretion, satisfy its obligation
to pay the Exercise Price through a cashless exercise, in which event the Company shall issue to
the Holder the number of Warrant Shares determined as follows:
X = Y [(A-B)/A] |
where:
X equals the number of Warrant Shares to be issued to the Holder;
Y equals the total number of Warrant Shares with respect to which this Warrant is being
exercised;
A equals the average of the Closing Sale Prices of the shares of Common Stock (as reported
by Bloomberg Financial Markets) for the five (5) consecutive Trading Days ending on the date
immediately preceding the Exercise Date; and
B equals the Exercise Price then in effect for the applicable Warrant Shares at the time of
such exercise.
For purposes of this Warrant, Closing Sale Price means, for any security as of any date, the last
trade price for such security on the Principal Trading Market for such security, as reported by
Bloomberg Financial Markets, or, if such Principal Trading Market begins to operate on an extended
hours basis and does not designate the last trade price, then the last trade price of such security
prior to 4:00 P.M., New York City time, as reported by Bloomberg Financial Markets, or if the
foregoing do not apply, the last trade price of such security in the over-the-counter market on the
electronic bulletin board for such security as reported by Bloomberg Financial Markets, or, if no
last trade price is reported for such security by Bloomberg Financial Markets, the average of the
bid prices, or the ask prices, respectively, of any market makers for such security as reported in
the pink sheets by Pink Sheets LLC. If the Closing Sale Price cannot be calculated for a
security on a particular date on any of the foregoing bases, the Closing Sale Price of such
security on such date shall be the fair market value as mutually determined by the Company and the
Holder. If the Company and the Holder are unable to agree upon the fair market value of such
security, then the Board of Directors of the Company shall use its good faith judgment to determine
the fair market value. The Board of Directors determination shall be binding upon all parties
absent demonstrable error. All such determinations shall be appropriately adjusted for any stock
dividend, stock split, stock combination or other similar transaction during the applicable
calculation period.
For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and
acknowledged that the Warrant Shares issued in a cashless exercise transaction shall be deemed to
have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to
have commenced, on the date this Warrant was originally issued pursuant to the Subscription
Agreement (provided that the Commission continues to take the position that such treatment is
proper at the time of such exercise).
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10. No Fractional Shares. No fractional Warrant Shares will be issued in connection with
any exercise of this Warrant. In lieu of any fractional shares that would otherwise be issuable,
the
number of Warrant Shares to be issued shall be rounded down to the next whole number and the
Company shall pay the Holder in cash the fair market value (based on the Closing Sale Price) for
any such fractional shares.
11. Notices. Any and all notices or other communications or deliveries hereunder
(including, without limitation, any Exercise Notice) shall be in writing and shall be deemed given
and effective on the earliest of (i) the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number specified in the Subscription Agreement prior to
5:30 P.M., Oklahoma City time, on a Trading Day, (ii) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the facsimile number
specified in the Subscription Agreement on a day that is not a Trading Day or later than 5:30 P.M.,
Oklahoma City time, on any Trading Day, (iii) the Trading Day following the date of mailing, if
sent by nationally recognized overnight courier service specifying next business day delivery, or
(iv) upon actual receipt by the Person to whom such notice is required to be given, if by hand
delivery. The address and facsimile number of a Person for such notices or communications shall be
as set forth in the Subscription Agreement unless changed by such Person by two (2) Trading Days
prior notice to the other Persons in accordance with this Section 11.
12. Warrant Agent. The Company shall serve as warrant agent under this Warrant. Upon thirty
(30) days notice to the Holder, the Company may appoint a new warrant agent. Any corporation into
which the Company or any new warrant agent may be merged or any corporation resulting from any
consolidation to which the Company or any new warrant agent shall be a party or any corporation to
which the Company or any new warrant agent transfers substantially all of its corporate trust or
shareholders services business shall be a successor warrant agent under this Warrant without any
further act. Any such successor warrant agent shall promptly cause notice of its succession as
warrant agent to be mailed (by first class mail, postage prepaid) to the Holder at the Holders
last address as shown on the Warrant Register.
13. Miscellaneous.
(a) No Rights as a Stockholder. The Holder, solely in such Persons
capacity as a holder of this Warrant, shall not be entitled to vote or receive dividends or be
deemed the holder of share capital of the Company for any purpose, nor shall anything contained in
this Warrant be construed to confer upon the Holder, solely in such Persons capacity as the Holder
of this Warrant, any of the rights of a stockholder of the Company or any right to vote, give or
withhold consent to any corporate action (whether any reorganization, issue of stock,
reclassification of stock, consolidation, merger, amalgamation, conveyance or otherwise), receive
notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance
to the Holder of the Warrant Shares which such Person is then entitled to receive upon the due
exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed as
imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or
otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company
or by creditors of the Company.
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(b) Authorized Shares. The Company covenants that during the period the
Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient
number of shares to provide for the issuance of the Warrant Shares upon the exercise of any
purchase rights under this Warrant. The Company further covenants that its issuance of this
Warrant shall constitute full authority to its officers who are charged with the duty of executing
stock certificates to execute and issue the necessary certificates for the Warrant Shares upon the
exercise of the purchase rights under this Warrant. The Company will take all such reasonable
action as may be necessary to assure that such Warrant Shares may be issued as provided herein
without violation of any applicable law or regulation, or of any requirements of the Trading Market
upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may
be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise
of the purchase rights represented by this Warrant, be duly authorized, validly issued, fully paid
and nonassessable and free from all taxes, liens and charges created by the Company in respect of
the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with
such issue).
(c) Successors and Assigns. Subject to the restrictions on transfer set
forth in this Warrant, and compliance with applicable securities laws, this Warrant may be assigned
by the Holder. This Warrant shall be binding on and inure to the benefit of the Company and the
Holder and their respective successors and assigns. Subject to the preceding sentence, nothing in
this Warrant shall be construed to give to any Person other than the Company and the Holder any
legal or equitable right, remedy or cause of action under this Warrant.
(d) Amendment and Waiver. Except as otherwise provided herein, the
provisions of the Warrants may be amended and the Company may take any action herein prohibited, or
omit to perform any act herein required to be performed by it, only if the Company has obtained the
written consent of the Holders of Warrants representing no less than a majority of the Warrant
Shares obtainable upon exercise of the Warrants then outstanding.
(e) Acceptance. Receipt of this Warrant by the Holder shall constitute
acceptance of and agreement to all of the terms and conditions contained herein.
(f) Governing Law; Jurisdiction. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OKLAHOMA WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF. EACH OF THE COMPANY AND THE HOLDER HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN OKLAHOMA CITY, FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION
CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY OF THE
TRANSACTION DOCUMENTS), AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION
OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT.
EACH OF THE COMPANY AND THE HOLDER HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND
CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF
VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PERSON
AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THE SUBSCRIPTION AGREEMENT AND AGREES THAT SUCH
SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING
CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW. EACH OF THE COMPANY AND THE HOLDER HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY.
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(g) Headings. The headings herein are for convenience only, do not constitute a part
of this Warrant and shall not be deemed to limit or affect any of the provisions hereof.
(h) Severability. In case any one or more of the provisions of this Warrant shall be
invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and
provisions of this Warrant shall not in any way be affected or impaired thereby, and the Company
and the Holder will attempt in good faith to agree upon a valid and enforceable provision which
shall be a commercially reasonable substitute therefor, and upon so agreeing, shall incorporate
such substitute provision in this Warrant.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its authorized
officer as of the date first indicated above.
GRAYMARK HEALTHCARE, INC. |
||||
By: | ||||
Name: | Stanton Nelson | |||
Title: | Chief Executive Officer |
SCHEDULE 1
FORM OF EXERCISE NOTICE
[To be executed by the Holder to purchase shares of Common Stock under the Warrant]
Ladies and Gentlemen:
(1) The undersigned is the Holder of Warrant No. (the Warrant) issued by Graymark
Healthcare, Inc., an Oklahoma corporation (the Company). Capitalized terms used herein and not
otherwise defined herein have the respective meanings set forth in the Warrant.
(2) The undersigned hereby exercises its right to purchase Warrant Shares pursuant to
the Warrant.
(3) The Holder intends that payment of the Exercise Price shall be made as (check one):
o Cash Exercise |
|||
o Cashless Exercise under Section 9 of the Warrant |
(4) If the Holder has elected a Cash Exercise, the Holder shall pay the sum of $ in
immediately available funds to the Company in accordance with the terms of the Warrant.
(5) Pursuant to this Exercise Notice, the Company shall deliver to the Holder Warrant Shares
determined in accordance with the terms of the Warrant.
(6) By its delivery of this Exercise Notice, the undersigned represents and warrants to the Company
that in giving effect to the exercise evidenced hereby the Holder will not beneficially own in
excess of the number of shares of Common Stock (as determined in accordance with Section 13(d) of
the Securities Exchange Act of 1934) permitted to be owned under Section 9 of the Warrant
to which this notice relates.
Dated:
_____________________
Name of Holder: |
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By: |
||
Name: |
||
Title: |
||
(Signature must conform in all respects to name of Holder as specified on the face of the Warrant) |
SCHEDULE 2
FORM OF ASSIGNMENT
[To be completed and executed by the Holder only upon transfer of the Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(the Transferee) the right represented by the within Warrant to purchase
shares of Common Stock of Graymark Healthcare, Inc. (the Company) to which the within
Warrant relates and appoints attorney to transfer said right
on the books of the Company with full power of substitution in the premises. In connection
therewith, the undersigned represents, warrants, covenants and agrees to and with the Company that:
(a) | the offer and sale of the Warrant contemplated hereby is being made in compliance with
Section 4(1) of the United States Securities Act of 1933, as amended (the Securities Act) or
another valid exemption from the registration requirements of Section 5 of the Securities Act
and in compliance with all applicable securities laws of the states of the United States; |
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(b) | the undersigned has not offered to sell the Warrant by any form of general solicitation or
general advertising, including, but not limited to, any advertisement, article, notice or
other communication published in any newspaper, magazine or similar media or broadcast over
television or radio, and any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising; |
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(c) | the undersigned has read the Transferees investment letter included herewith, and to its
actual knowledge, the statements made therein are true and correct; and |
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(d) | the undersigned understands that the Company may condition the transfer of the Warrant
contemplated hereby upon the delivery to the Company by the undersigned or the Transferee, as
the case may be, of a written opinion of counsel (which opinion shall be in form, substance
and scope customary for opinions of counsel in comparable transactions) to the effect that
such transfer may be made without registration under the Securities Act and under applicable
securities laws of the states of the United States. |
Dated: ____________________ | ||||
(Signature must conform in all respects to name of holder as specified on the face of the Warrant) | ||||
Address of Transferee | ||||
In the presence of: