VOID AFTER 5:00 P.M., NEW YORK, NEW YORK LOCAL TIME ON MAY 19,
2010
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE HEREOF (COLLECTIVELY THE "SECURITIES") HAVE BEEN
ACQUIRED FOR INVESTMENT ONLY AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, (THE "ACT") OR ANY STATE
SECURITIES LAW, AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO DIASENSE, INC. THAT AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY
AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
DIASENSE, INC.
AMENDED AND RESTATED COMMON STOCK PURCHASE WARRANT CERTIFICATE
TO PURCHASE SHARES OF COMMON STOCK
Certificate No. XW-002
November 11, 2005
This amended and restated warrant certificate (as amended,
the "Warrant Certificate") amends and restates that certain
warrant certificate issued on May 19th, 2005 (the "Original
Certificate"). The Original Certificate is hereby cancelled and
replaced by this Warrant Certificate. This Warrant Certificate
certifies that Xxxxxxx Xxxxxxxx an individual residing at 00
Xxxxxx Xxxxxx, Xxxxxxx, XX 00000 is the registered Holder (the
"Holder") of four million (4,000,000) Common Stock Purchase
Warrants (the "Warrants") to purchase shares of the common stock,
$.01 par value (the "Common Stock") of DIASENSE, INC., a
Pennsylvania corporation (the "Company"). These Warrants are
being issued in connection with a certain consulting agreement
between the Company and the Holder dated as of May 19, 2005 and
amended on November 11, 2005 (as amended, the "Consulting
Agreement").
This Warrant Certificate is subject to the following terms
and conditions:
1. EXERCISE OF WARRANT.
(A) Each Warrant enables the Holder, subject to the provisions
of this Warrant Certificate to purchase from the Company at any
time and from time to time commencing on the date hereof (the
"Initial Exercise Date") through and including 5:00 p.m., New
York local time on MAY 19, 2010 (the "Expiration Date") one (1)
fully paid and non-assessable share of Common Stock ("Shares")
upon due presentation and surrender of this Warrant Certificate
accompanied by payment of the purchase price of $0.01 per Share
(the "Exercise Price"), in accordance with the vesting provisions
set forth in subsection (B) hereof. Payment of the Exercise Price
shall be made in lawful money of the United States of America by
certified check payable to the Company at its principal office at
0000 Xxxxxxx Xxxx Xxxx, Xxxx. 0000; Xxxxxxxxxx, XX 00000. As
hereinafter provided, the Exercise Price and number of Shares
purchasable upon the exercise of the Warrants are subject to
modification or adjustment upon the happening of certain events.
(B) This Warrant Certificate is exercisable by the Holder in
person or by attorney duly authorized in writing at the principal
office of the Company in the following amounts:
1) 100,000 Warrants are exercisable at any time on or after the
Initial Exercise Date and until the Expiration Date;
2) 150,000 Warrants are exercisable at such time as phase 1 of
the development of the non-invasive glucose sensor is completed
and until the Expiration Date, provided the Holder is providing
services to the Company under the Consulting Agreement.
3) 250,000 Warrants are exercisable at such time as phase 2 of
the development of the non-invasive glucose sensor is completed
and until the Expiration Date, provided the Holder is providing
services to the Company under the Consulting Agreement.
4) 727,000 Warrants are exercisable at such time as a working
prototype of the non-invasive glucose sensor is complete and
functional and until the Expiration Date, provided the Holder is
providing services to the Company under the Consulting Agreement.
5) 2,773,000 Warrants are exercisable at such
time the non-invasive glucose sensor is approved by the U.S. Food
and Drug Administration or other regulatory body and until the
Expiration Date, provided the Holder is providing services to the
Company under the Consulting Agreement.
Notwithstanding the above, all Warrants represented by this
Warrant Certificate shall become exercisable at such time of (a)
a change of control of the Company after the date hereof or (b)
the sale or license of the non-invasive glucose sensor
intellectual property.
2. EXCHANGE, FRACTIONAL SHARES, TRANSFER.
(A) Upon surrender to the Company, this Warrant Certificate may
be exchanged for another Warrant Certificate or Warrant
Certificates evidencing a like aggregate number of Warrants. If
this Warrant Certificate shall be exercised in part, the Holder
shall be entitled to receive upon surrender hereof another
Warrant Certificate or Warrant Certificates evidencing the number
of Warrants not exercised;
(B) Anything herein to the contrary notwithstanding, in no event
shall the Company be obligated to issue Warrant Certificates
evidencing other than a whole number of Warrants or issue
certificates evidencing other than a whole number of Shares upon
the exercise of this Warrant Certificate; provided, however, that
the Company shall pay with respect to any such fraction of a
Share an amount of cash based upon the current Market Price (or
book value, if there shall be no Market Price) for Shares
purchasable upon exercise hereof, as determined in accordance
with the following sentence. Market Price for the purpose of this
Section 2(B) shall mean (i) the closing sale price, for sixty
(60) consecutive business days of the Common Stock as reported by
the National Association of Securities Dealers, Inc. Automated
Quotation System or (ii) the last reported sale price, for sixty
(60) consecutive business days on the primary exchange on which
the Common Stock is traded, if the Common Stock is traded on a
national securities exchange;
(C) the Company may deem and treat the person in whose name this
Warrant Certificate is registered as the absolute true and lawful
owner hereof for all purposes whatsoever; and
(D) This Warrant Certificate is not transferable except in
accordance with Section 9 hereof.
3. RIGHTS OF A HOLDER. No Holder shall be deemed to be the
Holder of Common Stock or any other securities of the Company
that may at any time be issuable on the exercise hereof for any
purpose nor shall anything contained herein be construed to
confer upon the Holder any of the rights of a shareholder of the
Company or any right to vote for the election of directors or
upon any matter submitted to shareholders at any meeting thereof
or to give or withhold consent to any corporate action (whether
upon any reorganization, issuance of stock, reclassification or
conversion of stock, change of par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings or to
receive dividends or subscription rights or otherwise until a
Warrant shall have been exercised and the Common Stock
purchasable upon the exercise thereof shall have become issuable.
4. REGISTRATION. The Company shall maintain books for the
registration of Warrants. The Company shall issue and register
the Warrants in the name(s) of the Holder(s). The Warrants shall
be signed manually by the Chairman, Chief Executive Officer,
President or any Vice President on the one hand, and another
officer of the Company on the other hand. Warrants may be
exchanged at the option of the Holder, when surrendered at the
office of the Company, for another Warrant, or other Warrants of
different denominations, of like tenor and representing in the
aggregate the right to purchase a like number of Shares. Subject
to the terms of this Warrant Certificate, upon such surrender and
payment of the Exercise Price at any time after the Initial
Exercise Date, the Company shall issue and deliver with all
reasonable dispatch to or upon the written order of the Holder of
such Warrants and in such name or names as such Holder may
designate, a certificate or certificates for the number of full
Shares so purchased upon the exercise of such Warrants. Such
certificate or certificates shall be deemed to have been issued
and any person so designated to be named therein shall be deemed
to have become the Holder of record of such Shares as of the date
of the surrender of such Warrants and payment of the Exercise
Price; provided, however, that if, at the date of surrender and
payment, the transfer books of the Common Stock shall be closed,
the certificates for the Shares shall be issuable as of the date
on which such books shall be opened and until such date the
Company shall be under no duty to deliver any certificate for
such Shares; provided, further, however, that such transfer
books, unless otherwise required by law or by applicable rule of
any national securities exchange, shall not be closed at any one
time for a period longer than 20 days.
5. STAMP TAX. The Company will pay any documentary stamp taxes
attributable; to the initial issuance of the Shares issuable upon
the exercise of the Warrants; provided, however, that the Company
shall not be required to pay any tax or taxes which may be
payable in respect of any transfer involved in the issuance or
delivery of any certificates for Shares in a name other than that
of the Holder in respect of which such Shares are issued, and in
such case the Company shall not be required to issue or deliver
any certificate for Shares or any Warrant until the person
requesting the same has paid to the Company the amount of such
tax or has established to the Company's satisfaction that such
tax has been paid.
6. LOST, STOLEN OR MUTILATED CERTIFICATES. In case this Warrant
Certificate shall be mutilated, lost, stolen or destroyed, the
Company may, in its discretion, issue and deliver in exchange and
substitution for and upon cancellation of the mutilated Warrant
Certificate, or in lieu of and substitution for the lost, stolen
or destroyed Warrant Certificate, a new Warrant Certificate of
like tenor representing an equivalent right or interest, but only
upon receipt of evidence satisfactory to the Company of such
loss, theft or destruction and an indemnity, if requested, also
satisfactory to it.
7. RESERVED SHARES. The Company warrants that there have been
reserved, and covenants that at all times in the future, it shall
keep reserved, out of the authorized and unissued Common Stock,
such number of Shares sufficient to provide for the exercise of
the rights of purchase represented by this Warrant Certificate.
The Company agrees that all Shares issuable upon exercise of the
Warrants shall be, at the time of delivery of the certificates
for such Shares, validly issued and outstanding, fully paid and
non-assessable and that the issuance of such Shares will not give
rise to preemptive rights in favor of existing stockholders.
8. DIVIDENDS RECLASSIFICATIONS, ETC.
(A) Dividends; Reclassifications, etc. In the event that the
Company shall, at any time prior to the exercise of this Warrant:
(i) declare or pay to the holders of the Common Stock a dividend
payable in any kind of shares of stock of the Company; or (ii)
change or divide or otherwise reclassify its Common Stock into
the same or a different number of shares with or without par
value, or in shares of any class or classes; or (iii) transfer
its property as an entirety or substantially as an entirety to
any other company; (iv) merge with or consolidate with or into
any other corporation or entity; or (v) make any distribution of
its assets to holders of its Common Stock as a liquidation or
partial liquidation dividend or by way of return of capital;
then, upon the subsequent exercise of this Warrant, the Holder
shall receive, in addition to or in substitution for the shares
of Common Stock to which it would otherwise be entitled upon such
exercise, such additional shares of stock or scrip of the
Company, or such reclassified shares of stock of the Company, or
such shares of the securities or property of the Company
resulting from such transfer, or such assets of the Company,
which it would have been entitled to receive had it exercised
this Warrant prior to the happening of any of the foregoing
events.
(B) Notice of Certain Transactions. If, at any time while this
Warrant is outstanding, the Company shall pay any dividend
payable in cash or in Common Stock, shall offer to the holders of
its Common Stock for subscription or purchase by them any shares
of stock of any class or any other rights, or shall enter into an
agreement to merge or consolidate with another corporation, the
Company shall cause notice thereof to be mailed to the registered
holder of this Warrant at its address appearing on the
registration books of the Company, at least 10 days prior to the
record date as of which holders of Common Stock shall participate
in such dividend, distribution or subscription or other rights or
at least 10 days prior to the effective date of the merger or
consolidation. Failure to give notice as required by this
Section, or any defect therein, shall not affect the legality or
validity of any dividend, distribution or subscription or other
right.
(C) Carry Forwards. Anything in this Section 8 to the contrary
notwithstanding, no adjustment in the Exercise Price shall be
required unless such adjustment would require an increase or
decrease of at least 10o in such Exercise Price; provided,
however, that any adjustments which by reason of this Subsection
(C) are not required to be made shall be carried forward and
taken into account in making subsequent adjustments. All
calculations under this Section 8 shall be made to the nearest
cent or to the nearest tenth of a share, as the case may be.
(D) Notice of Adjustments. Upon any adjustment of the Exercise
Price, then and in each such case the Company shall promptly
deliver a notice to the registered Holder of this Warrant, which
notice shall state the Exercise Price resulting from such
adjustment and the increase or decrease, if any, in the number of
Shares purchasable at such price upon the exercise hereof,
setting forth in reasonable detail the method of calculation and
the facts upon which such calculation is based.
9. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933.
(A) The Holder of this Warrant Certificate, and each transferee
of any Shares, by his acceptance thereof, agrees that (a) no
public distribution of Shares will be made in violation of the
Act, and (b) during such period as the delivery of a prospectus
with respect to Shares may be required by the Act, no public
distribution of Shares will be made in a manner or on terms
different from those set forth in, or without delivery of, a
prospectus then meeting the requirements of Section 10 of the Act
and in compliance with applicable state securities laws. The
Holder of this Warrant Certificate and each transferee hereof
further agrees that if any distribution of any of the Warrants or
Shares is proposed to be made by them otherwise than by delivery
of a prospectus meeting the requirements of Section 10 of the
Act, such action shall be taken only after submission to the
Company of an opinion of counsel, reasonably satisfactory in form
and substance to the Company's counsel, to the effect that the
proposed distribution will not be in violation of the Act or of
applicable state law. Furthermore, it shall be a condition to the
transfer of the Warrants that any transferee thereof deliver to
the Company his written agreement to accept and be bound by all
of the terms and conditions contained in this Warrant
Certificate.
(B) The Shares issued on exercise of this Warrant may not be
sold or otherwise disposed of except as follows:
1) To a person who, in the opinion of counsel for the Holder
reasonably acceptable to the Company, is a person to whom Shares
may legally be transferred without registration and without the
delivery of a current prospectus under the Act with respect
thereto and then only against receipt of an agreement of such
person to comply with the provisions of this Section 10 with
respect to any resale or other disposition of such securities,
which agreement shall be satisfactory in form and substance to
the Company and its counsel; provided that the foregoing shall
not apply to any such Warrant, Shares as to which such Holder
shall have received an opinion letter from counsel to the Company
as to the exemption thereof from the registration under the Act
pursuant to Rule 144(k) under the Act; or
2) To any person upon delivery of a prospectus then meeting the
requirements of the Act relating to such securities and the
offering thereof for such sale or disposition.
(C) Each certificate for Shares issued upon exercise of this
Warrant shall bear a legend relating to the non-registered status
of such Shares under the Act, unless at the time of exercise of
this Warrant such Shares are subject to a currently effective
registration statement under the Act.
10. MISCELLANEOUS.
(A) Law to Govern. This Warrant shall be governed by and
construed in accordance with the substantive laws of the State of
Pennsylvania, without giving effect to conflict of laws
principles.
(B) Entire Agreement. This Warrant Certificate constitutes and
expresses the entire understanding between the parties hereto
with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements and understandings,
inducements or conditions whether express or implied, oral or
written. Neither this Warrant Certificate nor any portion or
provision hereof may be changed, waived or amended orally or in
any manner other than by an agreement in writing signed by the
Holder and the Company.
(C) Notices. Except as otherwise provided in this
Warrant Certificate, all notices, requests, demands and other
communications required or permitted under this Warrant
Certificate or by law shall be in writing and shall be deemed to
have been duly given, made and received only when delivered
against receipt or when deposited in the United States mails,
certified or registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Company: DIASENSE, INC.
0000 Xxxxxxx Xxxx Xxxx, Xxxx. 0000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
With a copy to: Xxxxxx X. XxXxxxx, Esq.
Xxxx Xxxxx LLP
000 Xxxxxxxxx Xxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
If to Holder: to the address set forth on Page 1.
(D) SEVERABILITY. If any provision of this Warrant
Certificate is prohibited by or is unlawful or unenforceable
under any applicable law of any jurisdiction, such provision
shall, as to such jurisdiction be in effect to the extent of such
prohibition without invalidating the remaining provisions hereof;
provided, however, that any such prohibition in any jurisdiction
shall not invalidate such provision in any other jurisdiction;
and provided, further that where the provisions of any such
applicable law may be waived, that they hereby are waived by the
Company and the Holder to the full extent permitted by law and to
the extent that this Warrant Certificate shall be deemed to be a
valid and binding agreement in accordance with its terms.
IN WITNESS WHEREOF, DIASENSE, INC., has caused this Warrant
to be signed by its duly authorized officers under its corporate
seal as of this 11th day of November 2005.
DIASENSE INC.
By: \s\ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
[Corporate Seal]
ATTEST:
By: \s\ Xxxxxx X. XxXxxxxx
Name: Xxxxxx XxXxxxxx
Title: Secretary
PURCHASE FORM
To: DIASENSE INC.
0000 Xxxxxxx Xxxx Xxxx, Xxxx. 0000
Xxxxxxxxxx, XX 00000
Date:_________________________
The undersigned hereby irrevocably elects to exercise the
attached Warrant Certificate, Certificate No. XW-002, to the
extent of Shares of Common Stock, $.0l par
value per share of DIASENSE INC., and hereby makes payment of $
in payment of the aggregate exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name:
(Please typewrite or print in block letters)
Address:
Social Security Number or Tax I.D. Number of Holder
Dated:
IMPORTANT-READ CAREFULLY Sign Here______________________
The signature(s) to this
Purchase Form must
correspond with the name(s)
as written upon the face of
the Warrant Certificate(s) in
every particular without alter- ______________________
ation or enlargement (PERSON(S) EXECUTING THIS
or any change whatever. Signature POWER SIGN(S) HERE)
guarantee should be made by a
member or member organization of
the New York Stock Exchange, SIGNATURE GUARANTEED
members of other Exchanges having
signatures on file with the Company's
transfer agent or by a commercial bank or
trust company having its principal office
or correspondent in the City of New York
belonging to the Medallian Stamp Program.
