EXHIBIT 10.3
APPLIED DNA SCIENCES, INC.
Applied DNA Sciences, Inc., a Nevada corporation (the "Company"), hereby
certifies that, for value received, _________________________ (the "Warrant
Holder," which term includes its successors and registered assigns) is entitled
to purchase an aggregate of _________ shares of common stock, par value $0.001
per share, of the Company (the "Common Stock") at an exercise price of $0.50 per
share (the "Exercise Price") per share.
1. Exercise of Warrant. This Warrant may be exercised in whole or in part
at any time or from time to time during the four year period commencing on May
___, 2007 and expiring at 5:00 p.m., New York City time, on May ____, 2011 (the
"Exercise Term"), or if such day is a day on which banking institutions in the
State of New York are authorized by law to close, then on the next succeeding
day which shall not be such a day, as follows:
(a) by presentation and surrender of this Warrant evidencing the
Warrant to be exercised to the Company at its principal office or at the
office of its stock transfer agent, if any, with the Exercise Form annexed
hereto duly executed, and payment of the Exercise Price; or
(b) by presentation and surrender of this Warrant evidencing the
Warrant to be exercised to the Company at its principal office or at the
office of its stock transfer agent, if any, with the Exercise Form annexed
hereto duly executed, in which event the Company shall issue to the
Warrant Holder the number of shares of Common Stock underlying this
Warrant (the "Warrant Shares") determined based on the following formula:
X = Y*(A-B)/A
where:
X means the number of Warrant Shares to be issued to the Warrant
Holder.
Y means the number of Warrant Shares with respect to which this Warrant is
being exercised.
A means the fair market value of one share of Common Stock as determined
in accordance with the provisions of this Section.
B means the Exercise Price.
The "fair market value" of one share of Common Stock means the
average of the closing bid prices of the Common Stock on The Over The
Counter Bulletin Board on trading days during the 12 months immediately
preceding the effective date of exercise of the Warrant and, if there is
no active public market for the Common Stock, the fair market value shall
be the price determined in good faith by the Board of Directors of the
Company.
If any Warrant should be exercised in part only, the Company shall, upon
surrender of this Warrant for cancellation and presentment of the Exercise Form,
execute and deliver new a Warrant or Warrants, as the case may be, evidencing
the rights of the Warrant Holder thereof to purchase the balance of the shares
purchasable thereunder.
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Upon receipt by the Company of this Warrant at its office, or by the stock
transfer agent of the Company at its office, in proper form for exercise
together with the payment of the Exercise Price, unless this Warrant is being
exercised pursuant to the cashless exercise option, in which case no payment is
required, the Warrant Holder shall be deemed to be the holder of record of the
Warrant Shares, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such Warrant Shares shall
not then be actually delivered to the Warrant Holder. Certificates for the
Warrant Shares shall be delivered to the Warrant Holder within a reasonable time
following the exercise of this Warrant in accordance with the foregoing.
2. Alternative Exercise Provisions. Anything contained herein to the
contrary notwithstanding, subject to compliance by the Warrant Holder with the
restrictions on offer and sale referred to in Section 11 hereof, the Warrant
Holder, at its option, may exercise this Warrant, in whole or in part, during
the Exercise Term by delivering to the Company a confirmation slip issued by a
brokerage firm that is a member of the National Association of Securities
Dealers, Inc. or the equivalent governing body for broker-dealers in other
nations, with respect to the sale of those number of Warrant Shares for which
this Warrant is being exercised, together with the payment of the Exercise
Price, unless this Warrant is being exercised pursuant to the cashless exercise
option, in which case no payment is required, and, in such case, the Company
shall deliver certificates representing such Warrant Shares on settlement date
at the office of the Company's stock transfer agent.
3. Reservation and Listing of Shares. The Company hereby agrees that at
all times there shall be reserved for issuance and delivery upon exercise of
this Warrant, such number of shares of its Common Stock as shall be required for
issuance and delivery upon exercise of this Warrant. As long as this Warrant is
outstanding, the Company shall use its best efforts to cause all shares of
Common Stock issuable upon the exercise of this Warrant to be listed on The Over
The Counter Bulletin Board or on NASDAQ or a national securities exchange, if
such shares of Common Stock, as a class, are theretofore so listed.
4. Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. Any
fraction of a share called for upon any exercise hereof shall be canceled. The
Warrant Holder, by his acceptance hereof, expressly waives any right to receive
any fractional share of stock or fractional Warrant upon exercise of this
Warrant.
5. Exchange, Transfer, Assignment or Loss of Warrant. This Warrant are
exchangeable, without expense, at the option of the Warrant Holder, upon
presentation and surrender of this Warrant evidencing such Warrants to the
Company at its office or at the office of its stock transfer agent, if any, for
other Warrants of different denominations entitling the Warrant Holder thereof
to purchase in the aggregate the same number of shares of Common Stock as are
purchasable thereunder at the same respective Exercise Price. Subject to Section
11 hereof, upon surrender of this Warrant to the Company at its principal office
or at the office of its stock transfer agent, if any, with a duly executed
assignment form and funds sufficient to pay the applicable transfer tax, if any,
the Company shall, without charge, execute and deliver new Warrant(s) in the
name of the assignee named in such instrument of assignment and the original
Warrant shall promptly be canceled. This Warrant may be divided or combined with
other Warrants which carry the same rights upon presentation of this Warrant at
the office of the Company or at the office of its stock transfer
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agent, if any, together with a written notice signed by the Warrant Holder
hereof specifying the names and denominations in which new Warrants are to be
issued. Upon receipt by the Company of evidence satisfactory to it of the loss,
theft, destruction or mutilation of this Warrant, and, in the case of loss,
theft or destruction, of reasonably satisfactory indemnification, and upon
surrender and cancellation of this Warrant, if mutilated, the Company will
execute and deliver new Warrants of like tenor and date.
6. Rights of the Warrant Holder. The Warrant Holder shall not, by virtue
hereof, be entitled to any rights of a share holder of the Company until
exercise of any Warrants.
7. Adjustments of Purchase Price and Number of Shares.
(a) Subdivision and Combination. If the Company shall at any time
subdivide or combine the outstanding shares of Common Stock by way of
stock split, reverse stock split or the like, the Exercise Price shall
forthwith be proportionately increased or decreased.
(b) Adjustment in Number of Shares. Upon each adjustment of the
Exercise Price pursuant to the provisions of paragraph 7(a), the number of
shares of Common Stock issuable upon the exercise of this Warrant shall be
adjusted to the nearest full share of Common Stock by multiplying a number
equal to the Exercise Price in effect immediately prior to such adjustment
by the number of shares of Common Stock issuable upon exercise of this
Warrant immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.
(c) Reclassification, Consolidation, Merger, etc. In case of any
reclassification or change of the outstanding shares of Common Stock
(other than a change in par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination), or in the case
of any consolidation of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger in which the
Company is the surviving corporation and which does not result in any
reclassification or change of the outstanding shares of Common Stock,
except a change as a result of a subdivision or combination of such shares
or a change in par value, as aforesaid), or in the case of a sale or
conveyance to another corporation of all or a substantial part of the
property of the Company, the Warrant Holder shall thereafter have the
right to purchase the kind and number of shares of stock and other
securities and property receivable upon such reclassification, change,
consolidation, merger, sale or conveyance as if the Warrant Holder were
the owner of the shares of Common Stock underlying this Warrant
immediately prior to any such events at a price equal to the product of
(x) the number of shares issuable upon exercise of this Warrant and (y)
the Exercise Price in effect immediately prior to the record date for such
reclassification, change, consolidation, merger, sale or conveyance as if
such Warrant Holder had exercised this Warrant.
(d) Dividends and Other Distributions with Respect to Outstanding
Securities. In the event that the Company shall at any time prior to the
exercise of all Warrants declare a dividend (other than a dividend
consisting solely of shares of Common Stock or a cash dividend or
distribution payable out of current or retained earnings) or otherwise
distribute to the holders of its Common Stock any monies, assets,
property, rights, evidences of indebtedness, securities (other than shares
of Common Stock), whether issued by the Company or by another person or
entity, or any other thing of value, the Warrant
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Holder of the unexercised Warrants shall thereafter be entitled, in
addition to the shares of Common Stock or other securities receivable upon
the exercise thereof, to receive, upon the exercise of such Warrants, the
same monies, property, assets, rights, evidences of indebtedness,
securities or any other thing of value that they would have been entitled
to receive at the time of such dividend or distribution. At the time of
any such dividend or distribution, the Company shall make appropriate
reserves to ensure the timely performance of the provisions of this
Subsection 7(e).
(e) Warrant After Adjustment. Irrespective of any change pursuant to
this Section 7 in the Exercise Price or in the number, kind or class of
shares or other securities or other property obtainable upon exercise of
this Warrant, this Warrant may continue to express as the Exercise Price
and as the number of shares obtainable upon exercise, the same price and
number of shares as are stated herein.
(f) Statement of Calculation. Whenever the Exercise Price shall be
adjusted pursuant to the provisions of this Section 7, the Company shall
forthwith file at its principal office, a statement signed by an executive
officer of the Company specifying the adjusted Exercise Price determined
as above provided in such section. Such statement shall show in reasonable
detail the method of calculation of such adjustment and the facts
requiring the adjustment and upon which the calculation is based. The
Company shall forthwith cause a notice setting forth the adjusted Exercise
Price to be sent by certified mail, return receipt requested, postage
prepaid, to the Warrant Holder.
8. Redemption Rights. This Warrant may be redeemed at the option of the
Company at a redemption price equal to $0.001 upon the earlier of (i) the date
three years from the date hereof and (ii) the date a registration statement for
the resale of the Common Stock has been declared or remains effective by the
U.S. Securities and Exchange Commission (the "SEC"), and the Common Stock has
traded on The Over the Counter Bulletin Board at or above $1.00 per share for 20
consecutive trading days. The Company may exercise this right of redemption by
written notice to the Warrant Holder together with payment of the redemption
price.
9. Definition of "Common Stock". For the purpose of this Warrant, the term
"Common Stock" shall mean, in addition to the class of stock designated as the
Common Stock, $.001 par value, of the Company on the date hereof, any class of
stock resulting from successive changes or reclassifications of the Common Stock
consisting solely of changes in par value, or from par value to no par value, or
from no par value to par value. If at any time, as a result of an adjustment
made pursuant to one or more of the provisions of Section 7 hereof, the shares
of stock or other securities or property obtainable upon exercise of this
Warrant shall include securities of the Company other than shares of Common
Stock or securities of another corporation, then thereafter the amount of such
other securities so obtainable shall be subject to adjustment from time to time
in a manner and upon terms as nearly equivalent as practicable to the provisions
with respect to Common Stock contained in Section 7 hereof and all other
provisions of this Warrant with respect to Common Stock shall apply on like
terms to any such other shares or other securities.
10. Reserved.
11. Restrictions on Offer and Sale. THE OFFER AND SALE OF THE SECURITIES
REPRESENTED HEREBY HAVE NOT BEEN REGISTERED WITH OR
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APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION
OR ANY SECURITIES COMMISSION OR REGULATORY AUTHORITY AND ARE BEING OFFERED
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT.
THE SALE, ASSIGNMENT, CONVEYANCE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE
SECURITIES REPRESENTED BY THIS WARRANT TO U.S. PERSONS, AS DEFINED IN RULE
902(k) OF REGULATION S PROMULGATED UNDER THE ACT, IS PROHIBITED EXCEPT (1) IN
ACCORDANCE WITH THE PROVISIONS OF REGULATION S AS PROMULGATED UNDER THE
SECURITIES ACT; (2) PURSUANT TO REGISTRATION UNDER THE ACT; OR (3) PURSUANT TO
AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE ACT, AND ANY CERTIFICATE
REPRESENTING WARRANT SHARES SHALL BEAR A LEGEND TO SUCH EFFECT.
12. Notices to Warrant Holders. Nothing contained in this Warrant shall be
construed as conferring upon the Warrant Holder the right to vote or to consent
or to receive notice as a share holder in respect of any meetings of share
holders for the election of directors or any other matter, or as having any
rights whatsoever as a share holder of the Company. If, however, at any time
prior to the expiration of this Warrant and its exercise, any of the following
events shall occur:
(a) The Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings,
as indicated by the accounting treatment of such dividend or distribution
on the books of the Company; or
(b) The Company shall offer to all the holders of its Common Stock
any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the
Company, or any warrant, right or option to subscribe therefor; or
(c) A dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business shall be proposed;
or
(d) There shall be any capital reorganization or reclassification of
the capital stock of the Company, or consolidation or merger of the
Company with another entity; then, in anyone or more of said events, the
Company shall give written notice of such event at least fifteen (15) days
prior to the date fixed as a record date or the date of closing the
transfer books for the determination of the share holders entitled to such
dividend, distribution, convertible or exchangeable securities or
subscription rights, warrants or options, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall
specify such record date or the date of closing the transfer books, as the
case may be. Failure to give such notice or any defect therein shall not
affect the validity of any action taken in connection with the declaration
or payment of any such dividend or distribution, or the issuance of any
convertible or exchangeable securities or subscription rights, warrants or
options, or any proposed dissolution, liquidation, winding up or sale.
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13. Notices.
(a) All communications under this Warrant shall be in writing and
shall be mailed by certified mail, postage prepaid, return receipt
requested, or telecopied with confirmation of receipt or delivered by hand
or by overnight delivery service:
If to the Company at: Applied DNA Sciences, Inc.
Attn: Xxx Xxxxxxx, Chief Executive Officer
00 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxx Xxxx 00000
If to the Warrant Holder, to the address of such Warrant Holder as it
appears in the stock or warrant ledger of the Company.
(b) Any notice so addressed, when mailed by registered or certified
mail shall be deemed to be given three days after so mailed, when
telecopied shall be deemed to be given when transmitted, or when delivered
by hand or overnight shall be deemed to be given when hand delivered or on
the day following deposit with the overnight delivery service.
14. Successors. All the covenants and provisions of this Warrant by or for
the benefit of the Warrant Holder shall inure to the benefit of his successors
and assigns hereunder.
15. Termination. This Warrant will terminate on the earlier of (a) the
expiration date of this Warrant or (b) the date this Warrant has been exercised.
16. Governing Law. This Warrant shall be deemed to be made under the laws
of the State of New York and for all purposes shall be construed in accordance
with the laws of said State, excluding choice of law principles thereof.
17. Entire Agreement, Amendment, Waiver. This Warrant and all attachments
hereto and all incorporation by references set forth herein, set forth the
entire agreement and understanding between the parties as to the subject matter
hereof and merges and supersedes all prior discussions, agreements and
understandings of any and every nature among them. This Warrant may be amended,
the Company may take any action herein prohibited or omit to take any action
herein required to be performed by it, and any breach of any covenant,
agreement, warranty or representation may be waived, only if the Company has
obtained the written consent or waiver of the Warrant Holder. No course of
dealing between or among any persons having any interest in this Warrant will be
deemed effective to modify, amend or discharge any part of this Warrant or any
rights or obligations of any person under or by reason of this Warrant.
THIS SPACE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the undersigned has executed this Warrant as of this
_____ day of May, 2006.
APPLIED DNA SCIENCES, INC.
By:
--------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
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APPLIED DNA SCIENCES, INC.
WARRANT EXERCISE FORM
(To be executed upon exercise Warrant)
The undersigned, the record holder of this Warrant, hereby irrevocably
elects to exercise the right, represented by this Warrant, to purchase ___ of
the Warrant Shares.
The undersigned requests that a certificate for the Warrant Shares being
purchased be registered in the name of ______________ and that such certificate
be delivered to __________.
Dated:
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(Signature)
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(Printed Name)
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