exv10w19



 





Exhibit 10.19




WARRANT TO PURCHASE COMMON STOCK 



THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR QUALIFIED UNDER ANY STATE OR
FOREIGN SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT COVERING THIS WARRANT AND/OR SUCH
SECURITIES, OR THE HOLDER RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THE WARRANT AND/OR SUCH
SECURITIES SATISFACTORY TO THE CORPORATION STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR
HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE
SECURITIES ACT AND THE QUALIFICATION REQUIREMENTS UNDER APPLICABLE STATE OR FOREIGN LAW.




TopSpin Medical, Inc.




To: American Friends of Tmura, Inc. (the “Holder”)




Date: January 29th, 2004




COMMON STOCK WARRANT CERTIFICATE – Warrant No. Com-5




to Purchase Shares of Common Stock of




TopSpin Medical, Inc.,




for such consideration as detailed below




VOID AFTER 17:00 p.m. (prevailing Tel Aviv time)

On the last day of the Warrant Period (defined below)



This is to certify that the Holder is entitled to purchase, subject to the provisions of this
Warrant, from TopSpin Medical, Inc. (the “Corporation”) 324,820 shares of Common Stock of the
Corporation par value US$ 0.001 each (“Common Stock”), subject to the terms and conditions set
forth below.





	1.	 	Number of Shares Available for Purchase
	 
	 	 	This Warrant may be exercised to purchase up to three hundred and twenty four thousand eight
hundred and twenty (324,820) shares of Common Stock (the “Warrant Shares”), at an exercise
price per Warrant Share as set forth in Section 2 below.
	 
	2.	 	Exercise Price
	 
	 	 	The exercise price of each Warrant Share is US$0.1886 (eighteen and eighty six hundredth US
cents), subject to adjustments under Section 6 of this Warrant (the “Warrant Price”).
	 
	3.	 	Term
	 
	 	 	The Warrant may be exercised, in whole or in part, during the period (the “Warrant











 



 


- 2 -





	 	 	Period”) beginning on the consummation of an initial public offering of the Corporation’s
securities (the “IPO”) and ending on the date which is ten (10) years following the date of
this Warrant; provided however that in the event of the sale of all or substantially all of
the Corporation’s assets or shares to, or the merger or consolidation of the Corporation
with or into, another person or entity prior to the IPO (“M&A Event”), the Warrant may be
exercised immediately prior to and not later than the consummation of the M&A Event.
	 
	4.	 	Exercise of Warrant
	 
	 	 	This Warrant may be exercised in whole or in part on one or more occasions during the
Warrant Period. The Warrant may be exercised by the surrender of the Warrant to the
Corporation at its principal office together with the Notice of Exercise annexed hereto duly
completed and executed on behalf of the Holder. No fractions of shares will be issued. The
number of Warrant Shares issued shall be rounded to the nearest whole number.






	 	4.1.	 	Exercise for Cash
	 
	 	 	 	To exercise for cash, the Notice of Exercise must be accompanied by payment
in full of the amount of the aggregate Warrant Price of the Warrant Shares being purchased upon such exercise in immediately available funds.
	 
	 	4.2.	 	Net Exercise Election
	 
	 	 	 	In lieu of exercise as provided in Section 4.1 above, the Holder may elect to
exercise all or a portion of this Warrant, without the payment by the Holder
of any additional consideration, by surrendering this Warrant to the
Corporation, into up to the number of Warrant Shares that is obtained under
the following formula:





	 	 	 	 	 	 	 
	 

	 	X =
	 	Y (A-B)	 	 
	 

	 	 	 	 

A
	 	 







	 	 	 	Where:
	 
	 	 	 	X = the number of Warrant Shares to be issued to the Holder pursuant to this
Section 4.2.
	 
	 	 	 	Y = the number of Warrant Shares the Holder elects to exercise.
	 
	 	 	 	A = in the event the net exercise election is made pursuant to this Section
4.2 after the IPO, the fair market value of one Warrant Share, which shall be
the average closing price of one share of Common Stock over the 30 days of
trade prior to the date of exercise, and in the event such net exercise is
made prior to the IPO, the fair market value of one Warrant Share, as
determined in good faith by the Corporation’s Board of Directors, at the time
the net exercise election is made..
	 
	 	 	 	B = the Warrant Price.
	 
	 	 	 	The Corporation will promptly respond in writing to an inquiry by the Holder
as to the then current fair market value of one Warrant Share.
	 
	 	4.3.	 	Issuance of Shares on Exercise 
	 
	 	 	 	The Corporation agrees that the Warrant Shares purchased shall be issued as
soon as practicable after the exercise of the Warrant, and that the Holder
shall be deemed the record owner of such Warrant Shares as of and from the
close










 



- 3 -


	 	 	 	of business on the date on which this Warrant shall be surrendered, together
with payment in full of the Warrant Price as required above. In the event of
a partial exercise, the Corporation shall concurrently issue to the Holder a
replacement Warrant on the same terms and conditions as this Warrant, but
representing the number of Warrant Shares remaining after such partial
exercise.
	 
	 	4.4.	 	Conditional Exercise
	 
	 	 	 	In connection with an M&A Event or IPO of the Corporation’s shares, such
exercise may be made conditional upon the completion of such transaction.






	5.	 	Warrant Confers No Rights of Shareholder
	 
	 	 	Except as otherwise set forth in this Warrant, the Holder shall not have any rights as a
shareholder of the Corporation with regard to the Warrant Shares prior to actual exercise
resulting in the purchase of any Warrant Shares.
	 
	6.	 	Adjustment of Warrant Price and Number of Shares 
	 
	 	 	The number of Warrant Shares purchasable initially upon the exercise of this Warrant and the
Warrant Price shall be subject to adjustment from time to time upon the occurrence of
certain events, as follows:






	 	6.1.	 	Adjustment for Share Splits and Combinations. If the Corporation at
any time or from time to time effects a subdivision of its outstanding shares of Common
Stock, the number of shares of Common Stock issuable upon exercise of this Warrant
immediately before the subdivision shall be proportionately increased, and conversely,
if the Corporation at any time or from time to time combines the outstanding shares of
Common Stock, the number of shares of Common Stock issuable upon exercise of this
Warrant immediately before the combination shall be proportionately decreased. Any
adjustment under this Section 6.1 shall become effective at the close of business on
the date the subdivision or combination becomes effective.
	 
	 	6.2.	 	Adjustment for Certain Dividends and Distributions In the event the
Corporation at any time, or from time to time makes, or fixes a record date for the
determination of holders of shares of Common Stock entitled to receive a dividend or
other distribution payable in additional shares of Common Stock, then and in each such
event the number of shares of Common Stock issuable upon exercise of this Warrant shall
be increased as of the time of such issuance or, in the event such a record date is
fixed, as of the close of business on such record date, by multiplying the number of shares of Common Stock issuable upon exercise of this Warrant by a fraction: (i) the
numerator of which shall be the total number of shares of Common Stock issued and
outstanding immediately prior to the time of such issuance or the close of business on
such record date plus the number of shares of Common Stock issuable in payment of such
dividend or distribution, and (ii) the denominator of which is the total number of shares of Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date; provided, however, that
if such record date is fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed thereof, the number of shares of
Common Stock issuable upon exercise of this Warrant shall be recomputed accordingly as
of the close of business on such record date and thereafter the number of shares










 



- 4 -








	 		 	of Common Stock issuable upon exercise of this Warrant shall be adjusted
pursuant to this Section 6.2 as of the time of actual payment of such
dividends or distributions.
	 
	 	6.3.	 	Adjustment for Reclassification, Exchange and Substitution If the
Common Stock issuable upon the exercise of this Warrant are changed into the same or a
different number of shares of any class or classes of shares, whether by
recapitalization, reclassification or otherwise (other than a subdivision or
combination of shares or shares dividend, provided for elsewhere in this Section), then
and in any such event the Holder shall have the right thereafter to exercise this
Warrant into the kind and amount of shares and other securities receivable upon such
recapitalization, reclassification or other change, by holders of the number of shares
of Common Stock for which this Warrant might have been exercised immediately prior to
such recapitalization, reclassification or change, all subject to further adjustment as
provided herein and under the Corporation’s Certificate of Incorporation and by-laws.
	 
	 	6.4.	 	General Protection. The Corporation will not, by amendment of its
Certificate of Incorporation and by-laws or through any reorganization,
recapitalization or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder, but will at
all times in good faith assist in the carrying out of the provisions hereof and in the
taking of all such actions and making the adjustments necessary hereunder.
	 
	 	6.5.	 	Adjustment of Warrant Price. Upon each adjustment in the number of
shares of Common Stock purchasable hereunder, the Warrant Price shall be
proportionately increased or decreased, as the case may be, in a manner that is the
inverse of the manner in which the number of shares of Common Stock purchasable
hereunder is adjusted.
	 
	 	6.6.	 	Notice of Adjustments. Whenever the Warrant Price or the number of
shares of Common Stock purchasable hereunder shall be adjusted pursuant to Section 6
hereof, the Corporation shall prepare a certificate signed by the chief financial
officer of the Corporation setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment was
calculated, and the Warrant Price and the number of shares of Common Stock purchasable
hereunder after giving effect to such adjustment, and shall cause copies of such
certificate to be mailed (by first class mail, postage prepaid) to the Holder.






	7.	 	Registration Rights
	 
	 	 	The Warrant Shares issued upon exercise of the Warrant shall be entitled to registration
rights as detailed in the Investors’ Rights Agreement, dated December 9, 2002.
	 
	8.	 	Transfer of This Warrant 






	 	8.1.	 	This Warrant may not be sold, transferred, assigned or hypothecated by the
Holder. The Corporation may treat the registered holder of record as the Holder for all
purposes.
	 
	 	8.2.	 	Unless registered, the Warrant Shares issued upon exercise of the Warrant shall
be subject to a stop transfer order and the certificate or certificates










 



- 5 -


	 	 	 	evidencing such Warrant Shares shall bear the following legend:
	 
	 	 	 	“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY
STATE. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SHARES UNDER THE SECURITIES ACT OF 1933 AND SUCH STATE SECURITIES LAWS AS MAY
BE APPLICABLE OR THE DELIVERY TO THE INVESTOR OF AN OPINION OF COUNSEL,
REASONABLY ACCEPTABLE TO IT, TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED
UNDER THE ACT OR SUCH STATE SECURITIES LAWS. THE FOREGOING RESTRICTIONS
TERMINATE WHEN THE SECURITIES MAY BE FREELY TRANSFERRED WITHOUT RESTRICTION
UNDER RULE 144, UNDER THE SECURITIES ACT OF 1933, OR ANY SUCCESSOR THERETO,
AND MAY BE DISREGARDED THEREAFTER.”
	 
	 	8.3.	 	Notwithstanding the aforementioned, the Holder may sell or otherwise dispose of
this Warrant to: (i) a non-profit organization as described in the by-laws of the
Holder; or (ii) to any other transferee pre-approved by the Corporation in writing
which consent will not be unreasonably withheld, provided that the transfer satisfies
the requirements set forth in the legend at the beginning of this Warrant. In the
event that Warrant Shares are issued as a result of the exercise of this Warrant, then
notwithstanding anything herein to the contrary, the transfer of such Warrant Shares
shall be in accordance with the Corporation’s Certificate of Incorporation, by-laws and
applicable stockholders rights agreements, including but not limited to the rights of
first refusal provisions set forth therein.
	 
	 	8.4.	 	In the event that the Corporation receives an offer to effect an M&A, then the
Corporation shall promptly inform the Holder in writing of such offer.






	9.	 	Representations and Warranties
	 
	 	 	The Corporation represents and warrants to the Holder as follows:






	 	9.1.	 	This Warrant has been duly authorized and executed by the Corporation and is a
valid and binding obligation of the Corporation enforceable in accordance with its
terms.
	 
	 	9.2.	 	The Warrant Shares are duly authorized and reserved for issuance by the
Corporation and, when issued in accordance with the terms hereof, will be validly
issued, fully paid and nonassessable and not subject to any preemptive rights.






	10.	 	Notices
	 
	 	 	Any notice or other communication hereunder shall be in writing and shall be deemed to have
been given upon delivery, if personally delivered or five business days after deposit if
deposited in the mail for mailing by certified mail, postage prepaid, and addressed as
follows:










 





- 6 -






If to Holder:



American Friends of Tmura, Inc.

c/o David Lerner, Esq.

Morrison Cohen Singer & Weinstein LLP

750 Lexington Avenue

New York, New York 10022

Fax: 212-735-8708

Attn: Baruch Lipner, Executive Director



If to Corporation:

c/o TopSpin Medical (Israel) Ltd.

2 Yodfat St., North Industrial Zone

Lod 71291 Israel

fax: 08-928-1233

Attn: Eyal Kolka





	 	 	Each of the above addressees may change its address for purposes of this paragraph by giving
to the other addressees notice of such new address in conformance with this paragraph.
	 
	11.	 	Applicable Law; Jurisdiction
	 
	 	 	This Warrant shall be governed by and construed in accordance with the laws of the State of
Delaware, without regard to its conflict of laws rules.
	 
	12.	 	Headings
	 
	 	 	The headings of this Warrant have been inserted as a matter of convenience only and shall
not have any effect thereon.





Topspin Medical, Inc.




	 	 	 	 	 
	By:
	 	/s/ Erez Golan	 	 
	 

	 	 	 	 
	Title:
	 	CEO	 	 
	 

	 	 	 	 











 



- 7 -


NOTICE OF EXERCISE





	 	 	To: Topspin Medical, Inc.
	 
	1.	 	The undersigned hereby elects to purchase _____________ shares of Common Stock of Topspin
Medical, Inc. (the “Warrant Stock”), pursuant to the terms of the attached Warrant, and
tenders herewith payment of the purchase price for such shares in full.
	 
	2.	 	In exercising this Warrant, the undersigned hereby confirms and acknowledges that (i) the
shares of Warrant Stock are being acquired solely for the account of the undersigned and not
as a nominee for any other party, or for investment, and not with a view to, or intention of,
or otherwise for resale in connection with, any distribution; (ii) neither the offer or sale
of the Warrant Stock, nor the Warrant Stock itself, have been registered under the Securities
Act of 1933, as amended, (the “Act”), or registered or qualified under the applicable
securities laws of any state or other jurisdiction, and that the Warrant Stock is being sold
to the undersigned by reason of and in reliance upon a specific exemption from the
registration provisions of the Act, pursuant to Section 4(2) and Regulation D thereof, and
exemptions from registration or qualification provisions of such applicable state or other
jurisdiction securities laws which depend upon, among other things, the bona fide nature of
the investment intent as expressed herein and the truth and accuracy of the representations
and warranties of the undersigned set forth herein; (iii) and that the undersigned will not
offer, sell or otherwise dispose of any such shares of Warrant Stock except under
circumstances that will not result in a violation of the Act or any state securities laws and
that the certificates representing the Warrant Stock shall bear a legend noting such
restrictions; (iv) it was not formed for the specific purpose of acquiring the Warrant or
Warrant Stock; and (v) it is an accredited investor as such term is defined under Rule 501(a)
of the Act.
	 
	3.	 	Please issue a certificate representing said shares of Warrant Stock in the name of the
undersigned.
	 
	4.	 	Please issue a new Warrant for the unexercised portion of the attached Warrant in the name of
the undersigned.





	 	 	 	 	 
	 

	 	 	 	 
	(Date)

	 	(Print Name)	 	 






	 	 	 	 	 
	 

	 	 

(Signature)