Exhibit 4.9


 


RESERVATION AGREEMENT


 


THIS AGREEMENT
is made as of the 4th day of August, 2003, by and among Hypertension
Diagnostics, Inc., a Minnesota corporation (the “Company”), Kenneth W. Brimmer
(“Brimmer”), Charles F. Chesney (“Chesney”), Jay N. Cohn (“Cohn”), Greg H.
Guettler (“Guettler”) and James S. Murphy (“Murphy”) (collectively, the
“Insiders”).


 


WHEREAS, the
Company’s Articles of Incorporation currently provide that the Company has
25,000,000 shares of common stock authorized;


 


WHEREAS, the
Insiders collectively own and control options (the “Insider Options”) to
purchase a total of 1,768,737 shares of the Company’s common stock, all of
which have been reserved for issuance from the Company’s authorized but
unissued shares;


 


WHEREAS, as of
the date hereof, the Company currently has:


a.               10,381,257
shares of common stock issued and outstanding;


b.              under
its 1995 and 1998 Stock Option Plans (collectively, the “Plan Options”),
178,700 shares reserved but unissued and 1,423,880 shares of common stock reserved
for issuance upon exercise of options granted under the Stock Option Plans
(including 1,169,480 shares of common stock reserved for issuance upon exercise
of the Insider Options);


c.               1,091,257
shares reserved for options outside the plans (includes 599,257 shares reserved
for issuance upon exercise of Insider Options) (the “Non-Plan Options”);


d.              1,270,278
shares of common stock reserved for exercise of warrants outstanding, including
453,018 shares reserved for exercise of the Company’s Redeemable Class B
Warrants (the “Current Outstanding Warrants”);


e.               3,238,767
shares required for issuance in full satisfaction of the Company’s 8%
Convertible Notes due March 27, 2005; and


f.                 after
deduction of the above from the total number of shares of common stock
authorized, authorized shares remaining available for issuance of 9,363,298;


 


WHEREAS, the
Company’s Board of Directors has approved the offer and sale (the “Offering”)
of a minimum of $1,300,000 and a maximum of $2,300,000 of units, each
consisting of one share of the Company’s Series A Convertible Preferred Stock
(the “Preferred Stock”), 15.903 shares of the Company’s common stock and a
series of six (6) Purchase Warrants, three (3) of which entitle the holder to
acquire Series A Preferred Stock and three (3) of which entitle the holder to
acquire common stock, as described in the Company’s Confidential Private
Placement Memorandum dated August 4, 2003 (the “Memorandum”), which, if issued
immediately prior to the execution of this Agreement, would exceed the total
number of authorized shares of common stock available for issuance;


 


WHEREAS,
because the Insiders would benefit from the Offering, each of the Insiders is
willing to make the authorized shares of common stock issuable upon exercise of
their respective Insider Options available for offer and sale pursuant to the
Memorandum and to forebear from exercise of the same; and


 


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WHEREAS,
pursuant to the transactions contemplated by the Memorandum, the Company will
submit to its shareholders a proposal to approve an amendment to the Company’s
Articles of Incorporation to increase the number of authorized shares of common
stock to at least 150,000,000 shares (or such other number as may be sufficient
to allow for the reservation for issuance of all shares of common stock
underlying each outstanding security convertible or exercisable for, or
exchangeable into, common stock).


 


NOW,
THEREFORE, in consideration of the foregoing recitals, in consideration of the
mutual promises and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound hereby, the parties agree as follows:


 


1.             The Insiders each covenant and
agree: (a) to make the shares of common stock underlying the Insider Options
available for offer, sale and issuance in the Offering; (b) to release the
Company with respect to any claim, cause of action, damage or loss related to
the lack of shares of common stock reserved for exercise of the Insider Options
and further agree that they shall not take any action, legal or equitable,
against the Company for any breach of any provision of any document(s) and
agreement(s) relating to the Insider Options relating to the lack of shares of
common stock reserved for exercise of the Insider Options; (c) to forbear from
any exercise, or demand for issuance of common stock upon exercise of, the
Insider Options until after the termination of this Agreement as provided
below; and (d) that the document(s) and agreement(s) evidencing the Insider
Options are each hereby amended to include each of the agreements of the
Insiders made in this paragraph.


 


2.             The Company hereby covenants and
agrees to hold a meeting of the holders of its voting securities (the
“Meeting”) and solicit proxies for the use at the Meeting for the purpose of
allowing the holders of the Company’s voting securities to approve an amendment
to the Company’s Articles of Incorporation to increase the authorized number of
shares of common stock, $.01 par value, to at least 150,000,000 shares (or such
other number as may be sufficient to allow for the reservation for issuance of
all shares of common stock underlying each outstanding security convertible or
exercisable for, or exchangeable into, common stock) (the “Proposal”).  The Company may put forth any other proposal
at the Meeting as it deems advisable, provided that such other proposal is not
incompatible with the Proposal.  The
Company shall recommend approval of the Proposal to the holders of its voting
securities.  The Company shall use its
commercially reasonable best efforts to cause the Proposal to be duly and
properly approved no later than one hundred and twenty (120) days after the
final closing of the Offering.  Upon
approval of the Proposal, the Company shall take all corporate action as is
necessary for the due reservation of the shares of common stock underlying the
Insider Options.


 


3.             This Agreement shall be binding on
each of the parties hereto and their respective heirs, successors and assigns.


 


4.             This Agreement shall be governed by
and construed in accordance with the laws of the State of Minnesota without
regard to the conflicts of law provisions thereof.


 


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5.             Subject to applicable law, this
Agreement may be amended, modified or supplemented only by written agreement
signed by all of the parties hereto.


 


6.             This Agreement shall terminate and
be of no further force or effect upon the earlier of: (a) approval of the
Proposal or (b) termination of the Offering without obtaining the Minimum, as
described in the Memorandum.


 


7.             The Company, Brimmer, Chesney,
Cohn, Guettler and Murphy hereby expressly agree that the subscribers to the
securities of the Offering are third party beneficiaries of this Agreement and
are able to enforce its terms.


 


8.             This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which, taken together, shall constitute one and the same agreement.


 


[signatures next page]


 


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IN WITNESS
WHEREOF, the parties have executed and entered into this Agreement as of the
day and year first above written.


 


	
   

  	
  HYPERTENSION
  DIAGNOSTICS, INC.

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its  

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Kenneth W.
  Brimmer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Charles F.
  Chesney

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Jay N. Cohn

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Greg H.
  Guettler

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  James S.
  Murphy

  



 


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