COMMON STOCK PURCHASE WARRANT To Purchase ______ Shares of Common Stock of
Exhibit
4.3
NEITHER
THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
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 AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR REASONABLY ACCEPTABLE TO THE COMPANY TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
Warrant
No. ______
COMMON
STOCK PURCHASE WARRANT
To
Purchase ______ Shares of Common Stock of
THIS
COMMON STOCK PURCHASE WARRANT (this “Warrant”) CERTIFIES that, for
value received, _____________ (the “Holder”), is entitled, upon
the terms and subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after the date of issuance of this
Warrant (the “Initial Exercise
Date”) and on or prior to the five-year anniversary of the Effective Date
(as defined below) (the “Termination Date”) but not
thereafter, to subscribe for and purchase from HemoBioTech, Inc., a Delaware
corporation (the “Company”), up to ______ shares
(the “Warrant Shares”)
of Common Stock, par value $0.001 per share, of the Company (the “Common Stock”). The purchase
price of one share of Common Stock (the “Exercise Price”) under this
Warrant shall be $____1 subject to adjustment thereunder.
In
addition to the terms defined elsewhere in this Warrant the following
capitalized terms shall have the following meanings:
“Business Day” means any day
other than a Saturday, Sunday or legal holiday in the State of
Texas.
“Effective Date” means the date
on which the SEC declares effective a Registration Statement registering for
resale the Warrant Shares of the Holder.
“Person” means an individual or
corporation, partnership, trust, incorporated or
unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or any other entity of any
kind.
1 150% of
per-Unit purchase price.
“Registration Statement” means
a registration statement filed by the Company with the Securities and Exchange
Commission (“SEC”) for a
public offering and sale of securities of the Company (other than a registration
statement on Form S-8 or Form S-4, or their successors, or any other form for a
limited purpose, or any registration statement covering only securities proposed
to be issued in exchange for securities or assets of another
corporation).
“Subscription Agreement” means
that certain Subscription Agreement entered into between the original Holder of
this Warrant and HemoBioTech, Inc., which provided for, among other things, the
original purchase of this Warrant from HemoBioTech, Inc.
“Trading Day” means (i) a day
on which the Common Stock is traded or quoted on a Trading Market, or (ii) if
the Common Stock is not traded or quoted on a Trading Market, a day on which the
Common Stock is quoted in the over-the-counter market as reported by the
National Quotation Bureau Incorporated (or any similar organization or agency
succeeding to its functions of reporting price); provided, that in the event
that the Common Stock is not traded or quoted as set forth in (i), and (ii)
hereof, that Trading Day shall mean a Business Day.
“Trading Market” means the
following markets or exchanges on which the
Common
Stock is listed or quoted for trading on the date in question: the NASDAQ
Capital Market, the American Stock Exchange, the New York Stock Exchange, the
NASDAQ Global Market or the OTC Bulletin Board.
1. Title to Warrant.
Prior to the Termination Date and subject to compliance with applicable laws and
Section 7 of
this Warrant, this Warrant and all rights here under are transferable, in whole
or in part, at the office or agency of the Company by the Holder in person or by
duly authorized attorney, upon surrender of this Warrant together with the
Assignment Form annexed hereto properly endorsed. The transferee shall sign an
investment letter in form and substance reasonably satisfactory to the
Company.
2. Authorization of
Shares. 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 such purchase rights in accordance with the terms and conditions of
this Warrant, including, without limitation, payment of the Exercise Price, 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) 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 on or before the Termination Date by delivery to the
Company of a duly executed facsimile copy of the Notice of Exercise Form annexed
hereto, 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 at the
address of such Holder appearing on the books of the Company); provided,
however, the Holder shall also have surrendered this Warrant to the Company and
the Company shall have received payment of the aggregate Exercise Price of the
Warrant Shares thereby purchased by wire transfer or cashier’s check drawn on a
United States bank. Certificates for shares purchased hereunder shall be
delivered to the Holder promptly following the latest to occur of delivery to
the Company of the Notice of
Exercise
Form, surrender of this Warrant and payment of the aggregate Exercise Price as
set forth above. This Warrant shall be deemed to have been exercised and the
Warrant Shares (to which the exercise relates) 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 of the latest to occur of (i) delivery to the Company of the Notice
of Exercise Form, (ii) surrender of this Warrant and (iii) payment of the
aggregate Exercise Price as set forth above and all taxes required to be paid by
the Holder, if any, pursuant to Section 5 (“Exercise Date”).
(b) 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 Warrant Shares called for by this Warrant, which new Warrant shall
in all other respects be identical with this Warrant.
(c) Subject
to the provisions of this Section 3, if there
is (i) an effective Registration Statement registering the resale of the Warrant
Shares by the Holder, and (ii) the weighted average of the closing market share
price of the Common Stock during a period of twenty (20) consecutive Trading
Days (the “Measurement
Period,” which period shall not have commenced until after such
Registration Statement shall have been declared effective by the SEC) equals or
exceeds $___2 (the “Threshold
Price”) (subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the Common
Stock that occur after the date of the Subscription Agreement), then the Company
may, within fifteen (15) Trading Days of such period or event, call for
cancellation of all or any portion of this Warrant for which a Notice of
Exercise has not yet been delivered (such right, a “Call”). To
exercise
this
right, the Company must deliver to the Holder an irrevocable written notice (a
“Call Notice”),
indicating therein the unexercised portion of this Warrant to which such notice
applies. Deposit of such Call Notice with a recognized courier service, a
recognized overnight delivery service or with the U.S. Postal Service in
accordance with Section 17(d) within the above fifteen (15) Trading Day period
shall be considered a timely Call.
If the
conditions set forth above for such Call are satisfied, from the period from the
date of the Call Notice through and including the Call Date (as defined below),
then any portion of this Warrant subject to such Call Notice for which a Notice
of Exercise and applicable aggregate Exercise Price shall not have been received
from and after the date of the Call Notice will be cancelled at 6:30 p.m.
(Eastern Time) on the thirtieth (30th)
calendar day after the date the Call Notice is sent to the Holder (such date,
the “Call Date”). Any
unexercised portion of this Warrant to which the Call Notice does not pertain
will be unaffected by such Call Notice. In furtherance thereof, the Company
covenants and agrees that it will honor all Notices of Exercise with respect to
Warrant
2 185% of
the per-Unit purchase price.
Shares
subject to a Call Notice that are tendered, with the applicable aggregate
Exercise Price, from the time of delivery of the Call Notice through 6:30 p.m.
(Eastern Time) on the Call Date. The parties agree that any Notice of Exercise
delivered following a Call Notice shall first reduce to zero the number of
Warrant Shares subject to such Call Notice
prior to
reducing the remaining Warrant Shares available for purchase under this Warrant.
For example, if (x) this Warrant then permits the Holder to acquire 100 Warrant
Shares, (y) a Call Notice pertains to 75 Warrant Shares, and (z) prior to 6:30
p.m. (Eastern Time) on the Call Date the Holder tenders a Notice of Exercise in
respect of 50 Warrant Shares, then (1) on the Call Date the right under this
Warrant to acquire 25 Warrant Shares will be automatically cancelled, (2) the
Company, in the time and manner required under this Warrant, will have issued
and delivered to the Holder 50 Warrant Shares in respect of the exercise
following receipt of the Call Notice, and (3) the Holder may, until the
Termination Date, exercise this Warrant for 25 Warrant Shares (subject to
adjustment as herein provided and subject to subsequent Call Notices). Subject
again to the provisions of this Section 3(c), the
Company may deliver subsequent Call Notices for any portion of this Warrant for
which the Holder shall not have delivered a Notice of Exercise. The Company’s
right to Call the Warrant shall be exercised ratably among all holders of
warrants issued pursuant to Subscription Agreements entered into as part of the
same financing.
(d) If
as of one (1) year following the Initial Exercise Date, there is
not
a
Registration Statement permitting the resale of all of the Warrant Shares
issuable under this Warrant at the time a Notice of Exercise Form is delivered
to the Company (either due to the inability of the Company to either
have the SEC declare such Registration Statement effective on or prior to such
date or to maintain the effectiveness of such Registration Statement for the
duration of the period prescribed in the Registration Statement), the Holder may
initiate a cashless exercise (a “Cashless Exercise”), as
hereinafter provided. The Holder may effect a Cashless Exercise by surrendering
this Warrant to the Company and noting on the Notice of Exercise Form that the
Holder wishes to effect a Cashless Exercise, upon which the Company shall issue
to the Holder
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the
number of Warrant Shares determined as
follows:
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X =
Y x (A-B)/A
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where:
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X =
the number of Warrant Shares to be issued to the
Holder;
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Y = the number of Warrant Shares with
respect to which this Warrant is
being exercised;
A = the Market Price (as defined in
Section 2.3 below) as of the Exercise
Date; and
B = the Exercise Price.
For purposes of Rule 144 under the
Securities Act, it is intended 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 required by Rule 144 shall
be deemed to have been commenced, on the date this
Warrant
was originally issued by the Company.
4. 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
the 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 such fraction multiplied by the Exercise Price.
5. Charges, Taxes and
Expenses. Issuance of certificates for Warrant Shares shall be made
without charge to the Holder 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 or in such name or names as may be directed by the
Holder; provided, however, that in the event certificates for Warrant Shares are
to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached
hereto duly executed by the Holder; and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax
incidental thereto.
6. Closing of Books. The
Company will not close its stockholder books or records in any manner which
prevents the timely exercise of this Warrant, pursuant to the terms
hereof.
7. Transfer,
Division and Combination.
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(a)
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Subject
to compliance with any applicable securities laws and the conditions set
forth in Sections 1 and 7(e) hereof and in the Subscription Agreement,
this Warrant and all rights hereunder are transferable, in whole or in
part, 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 the 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 or
denominations 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.
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(b)
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This
Warrant may be divided or combined with other Warrants (if such other
Warrants are upon the same terms, other than number of Warrant Shares, as
this Warrant) 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 the Holder
or its agent or attorney. Subject to compliance with Section 7(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.
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(c)
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The
Company shall prepare, issue and deliver at its own expense (other than
transfer taxes) the new Warrant or Warrants under this Section
7.
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(d)
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The
Company agrees to maintain, at its aforesaid office, books for the
registration and the registration of transfer of the
Warrants.
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(e)
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If,
at the time of the surrender of this Warrant in connection with any
transfer of this Warrant, the transfer of this Warrant shall not be
registered pursuant to an effective Registration Statement and under
applicable state securities or blue sky laws, the Company may require, as
a condition of allowing such transfer (i) that the Holder or transferee of
this Warrant, as the case may be, furnish to the Company a written opinion
of counsel reasonably acceptable to the Company (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 state
securities or blue sky laws, (ii) that the holder or transferee execute
and deliver to the Company an investment letter in form and substance
acceptable to the Company and (iii) that the transferee be an “accredited
investor” as defined in Rule 501 promulgated under the Securities Act or a
qualified institutional buyer as defined in Rule 144A(a) under the
Securities Act.
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8.
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No Rights as
Shareholder until Exercise. This Warrant does not entitle the
Holder to any voting rights or other rights as a shareholder of the
Company prior to the exercise hereof. Upon the exercise of this Warrant,
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 Exercise Date with respect to such
exercise.
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9. Loss, Theft, Destruction or
Mutilation of Warrant. The Company
covenants
that upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it,
and upon surrender and cancellation of such Warrant, if mutilated, the Company
will make and deliver a new Warrant of like tenor and dated as of such
cancellation, in lieu of such Warrant.
10. Business Days. If the
last or appointed day for the taking of any action or the expiration of any
right required or granted herein shall not be a Business Day, then such action
may be taken or such right may be exercised on the next succeeding Business
Day.
11. Adjustments of Exercise
Price and Number of Warrant Shares; 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, (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 shall be entitled
to receive the kind and number of Warrant Shares or other securities of the
Company which it 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 shall thereafter be
entitled to purchase the number of Warrant Shares or other securities resulting
from such adjustment at an Exercise Price per 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 that are purchasable
pursuant hereto immediately after 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. For example,
if the Company declared a 1- for-4 reverse stock split and 400 Warrant Shares
were purchasable hereunder, then immediately after such 1-for-4 reverse stock
split the Warrant Shares purchasable hereunder would become 100 and the Exercise
Price would become $____3 per share. Such Exercise Price is obtained by
multiplying the current $____ Exercise Price by 400 Warrant Shares purchasable
under this example and dividing the product by 100 Warrant Shares purchasable
after the 1-for-4 reverse stock split.
12. Reorganization,
Reclassification, Merger, Consolidation or Disposition of Assets. In case
the Company shall reorganize its capital, reclassify its capital stock,
consolidate or merge with or into another corporation (where the Company is not
the surviving corporation or where there is a change in or distribution with
respect to the Common Stock of the Company), or sell, transfer or otherwise
dispose all or substantially all of its property, assets or business to another
corporation and, pursuant to the terms of such reorganization, reclassification,
merger, consolidation or disposition of assets, shares of common stock of the
successor or acquiring corporation, or any cash, shares of stock or other
securities or property of any nature whatsoever (including warrants or other
subscription or purchase rights) in addition to or in lieu of common stock of
the successor or acquiring corporation (“Other Property”), are to be received by
or distributed to the holders of Common Stock of the Company, then the Holder
shall have the right thereafter to receive, upon exercise of this Warrant, the
number of shares of common stock of the successor or acquiring corporation or of
the Company, if it is the surviving corporation, and Other Property receivable
upon or as a result of such reorganization, reclassification, merger,
consolidation or disposition of assets by a Holder of the number of shares of
Common Stock for which this Warrant is exercisable immediately prior to such
event. In case of any such reorganization, reclassification, merger,
consolidation or disposition of assets (“Extraordinary Transaction”), the
successor or acquiring corporation (if other than the Company) shall expressly
assume the due and punctual observance and performance of each and every
covenant and condition of this Warrant to be performed and observed by the
Company and all the obligations and liabilities hereunder, subject to such
modifications as may be deemed appropriate (as determined in good faith by
resolution of the Board of Directors of the Company) in order to provide for
adjustments of Warrant Shares for which this Warrant is exercisable which shall
be as nearly equivalent as practicable to the adjustments provided for in this
Section 12. As soon as commercially practicable following the Extraordinary
Transaction, the successor or acquiring corporation (if other than the Company),
shall deliver to Holder a new warrant in replacement of this Warrant consistent
with the provisions referenced in the immediately preceding sentence against
receipt by such successor or acquiring corporation of the original of this
Warrant. For purposes of this Section 12, “common stock of the successor or
acquiring corporation” shall 3 Exercise Price multiplied by 4. include stock of
such corporation of any class which is not preferred as to dividends or assets
over any other class of stock of such corporation and which is not subject to
redemption and shall also include any evidences of indebtedness, shares of stock
or other securities which are convertible into or exchangeable for any such
stock, either immediately or upon the arrival of a specified date or the
happening of a specified event and any warrants or other rights to subscribe for
or purchase any such stock. The foregoing provisions of this Section 12 shall
similarly apply to successive reorganizations, reclassifications, mergers,
consolidations or disposition of assets.
13. Voluntary Adjustment by the
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.
14. Notice of Adjustment.
Whenever the number of Warrant Shares or number or kind of securities or other
property purchasable upon the exercise of this Warrant or the Exercise Price is
adjusted, as herein provided, the Company shall give notice thereof to the
Holder, which notice shall state the number of Warrant Shares (and other
securities or property) purchasable upon the exercise of this Warrant and the
Exercise Price of such Warrant Shares (and other securities or property) after
such adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth the computation by which such adjustment was
made.
15. Notice
of Corporate Action. If at any time:
(a) the
Company shall take a record of the holders of its Common Stock for the purpose
of entitling them to receive a dividend or other distribution, or any right to
subscribe for or purchase any evidences of its indebtedness, any shares of stock
of any class or any other securities or property, or to receive any other right,
or
(b) there
shall be any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any consolidation or
merger of the Company with (other than a consolidation or merger in which the
Company is the surviving corporation), or any sale, transfer or other
disposition of all or substantially all the property, assets or business of the
Company to, another corporation, or
(c) there
shall be a voluntary or involuntary dissolution, liquidation or winding up of
the Company;
then, in
any one or more of such cases, the Company shall give to Holder (i) at least
fifteen (15) days’ prior written notice of the date on which a record date shall
be selected for such dividend, distribution or right or for determining rights
to vote in respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, liquidation or winding up, and (ii)
in the case of any such reorganization, reclassification, merger, consolidation,
sale, transfer, disposition, dissolution, liquidation or winding up, at least
fifteen (15) days’ prior written notice of the date when the same shall take
place.
Such
notice in accordance with the foregoing clause also shall specify (i) the date
on which any such record is to be taken for the purpose of such dividend,
distribution or right, the date on which the holders of Common Stock shall be
entitled to any such dividend, distribution or right, and the amount and
character thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up is to take place and the time, if any
such time is to be fixed, as of which the holders of Common Stock shall be
entitled to exchange their Warrant Shares for securities or other property
deliverable upon such disposition, dissolution, liquidation or winding up. Each
such written notice shall be sufficiently given if addressed to Holder at the
last address of ▇▇▇▇▇▇ appearing on the books of the Company and delivered in
accordance with Section 17(d).
16. 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 “Required Minimum”). If, on any
date, the number of authorized but unissued (and otherwise unreserved) shares of
Common Stock is less than the Required Minimum on such date, then the Board of
Directors of the Company shall use commercially reasonable efforts to amend the
Company’s certificate or articles of incorporation to increase the number of
authorized but unissued shares of Common Stock to at least the number of shares
of Common Stock that would result from the full exercise of the Warrant Shares
at such time, as soon as possible and in any event not later than the 75th day
after such date. 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.
Except and to the extent as waived or
consented to by the Holder, the Company shall not by any action, including,
without limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant. Without limiting
the generality of the foregoing, the Company will (a) not increase the par value
of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (b) take all such action as may
be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable Warrant Shares upon the exercise of this
Warrant, and (c) use commercially reasonable efforts to obtain all such
authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof as may be necessary to enable the Company to perform its
obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant
Shares for which this Warrant is exercisable or in the Exercise Price, the
Company shall
obtain
all such authorizations or exemptions thereof, or consents thereto, as may be
necessary from any public regulatory body or bodies having jurisdiction
thereof.
17. Miscellaneous.
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(a)
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Governing
Law. This Warrant shall be governed by and construed in accordance with
the internal laws of the State of Delaware without regard to the conflicts
of law principles thereof. The parties hereto hereby irrevocably agree
that any suit or proceeding arising directly and/or indirectly pursuant to
or under this Warrant, shall be brought solely in a federal or state court
located in the State of Delaware. By its execution hereof, the parties
hereby covenant and irrevocably submit to the in personam jurisdiction
of the federal and state courts located in the State of Delaware and agree
that any process in any such action may be served upon any of them
personally, or by certified mail or registered mail upon them or their
agent, return receipt requested, with the same full force and effect as if
personally served upon them in the State of Delaware. The parties hereto
waive any claim that any such jurisdiction is not a convenient forum for
any such suit or proceeding and any defense or lack of in personam jurisdiction
with respect thereto.
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(b)
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Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise
of this Warrant, if not registered, will have restrictions upon resale
imposed by state and federal securities
laws.
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(c)
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Nonwaiver and
Attorneys’ Fees. No course of dealing or any delay or failure to
exercise any right hereunder on the part of Holder shall operate as a
waiver of such right or otherwise prejudice Holder’s rights, powers or
remedies,
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notwithstanding
the fact that all rights hereunder terminate on the Termination Date. If any
action, suit, arbitration or other proceeding for the enforcement of this
Warrant is brought with respect to or because of an alleged dispute, breach,
default or misrepresentation in connection with any of the provisions hereof,
the successful or prevailing party shall be entitled to recover reasonable
attorneys’ fees and other costs incurred in that proceeding, in addition to any
other relief to which it or he may be entitled.
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(d)
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Notices. All
notices that are required or may be given pursuant to this Warrant must be
in writing and delivered personally, by a recognized courier service, by a
recognized overnight delivery service, or by registered or certified mail,
postage prepaid, to the parties at the following addresses (or to the
attention of such other Person or such other address as any party may
provide to the other parties by notice in accordance with this
section):
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If to the Holder:
[Address and Telephone]
If to the Company:
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▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
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Suite
1040 - West
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Dallas,
Texas 75244
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Attention:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to:
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▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, LLP
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Met
Life Building
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▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
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New
York, New York 10166
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Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
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Any such
notice or other communication will be deemed to have been given
and received (whether actually received or not) on the day it is
personally delivered or delivered by courier or overnight delivery service or,
if mailed, when actually received.
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(e)
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Remedies.
Holder, in addition to being entitled to exercise all rights granted by
law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by it of the provisions of this Warrant and hereby
agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
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(f)
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Successors and
Assigns. Subject to applicable securities laws, this Warrant and
the rights and obligations evidenced hereby shall inure to the benefit of
and be binding upon the successors of the Company and the successors and
permitted assigns of Holder. The provisions of this Warrant are intended
to be for the benefit of all Holders from time to time of this Warrant and
shall be enforceable by any such
Holder.
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(g)
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Amendment. This
Warrant may be modified or amended only with the written consent of the
Company and the Holder. Waiver of any provision of this Warrant shall be
in writing.
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(h)
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Severability.
Wherever possible, each provision of this Warrant shall be
interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the
remainder of such provisions or the remaining provisions of this
Warrant.
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(i)
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Headings. The
headings used in this Warrant are for the convenience of reference only
and shall not, for any purpose, be deemed a part of this
Warrant.
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********************
IN WITNESS WHEREOF, the Company has
caused this Warrant to be executed by its officer thereunto duly
authorized.
Dated:
___________, 2007
By:__________________________________
▇▇. ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Ph.D., Chief Executive Officer
NOTICE
OF EXERCISE
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(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the
Company pursuant to the terms of the attached Warrant (only if exercised
in full), and tenders herewith payment of the exercise price in full,
together with all applicable transfer taxes, if
any.
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(2) Payment
shall take the form of lawful money of the United
States.
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(3)
Please issue a certificate or certificates representing said Warrant
Shares in the name of the undersigned or in such other name as is
specified below:
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____________________
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The
Warrant Shares shall be delivered to the
following
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____________________
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____________________
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____________________
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(4)
Accredited Investor. The undersigned is an “accredited investor” as
defined in Regulation D under the Securities Act of 1933, as
amended.
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[PURCHASER]
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By:
______________________________
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Name:
Title:
Dated:
________________________
ASSIGNMENT
FORM
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(To
assign the foregoing warrant,
execute
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this
form and supply required
information.
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Do
not use this form to exercise the
warrant.)
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FOR
VALUE RECEIVED, the foregoing Warrant and all rights
evidenced
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thereby
are hereby assigned to
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_______________________________________________
whose address is
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_________________________________________________________________.
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Dated:
______________, _______
Holder’s
Signature: _____________________________
Holder’s
Address: _____________________________
_____________________________
Signature
Guaranteed: ___________________________________________
NOTE: The
signature to this Assignment Form must correspond with the name as it appears on
the face of the Warrant, without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing
Warrant.