WARRANT TO PURCHASE SHARES OF COMMON STOCK ISSUE DATE: September 28, 2006
Exhibit 10.2
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR ANY STATE SECURITIES
LAWS, AND ARE “RESTRICTED SECURITIES” AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. THE
SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, OR OTHERWISE TRANSFERRED UNLESS AND UNTIL REGISTERED
UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR UPON RECEIPT BY THE COMPANY OF AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
Warrant No. 092806-A
WARRANT TO PURCHASE SHARES OF COMMON STOCK
ISSUE DATE: September 28, 2006
This certifies that Xxxxx X. Xxxxxxxxx, M.D., an individual resident of New York State (or any
valid transferee thereof, the “Holder”), for value received, is entitled to purchase from CytoCore,
Inc., a Delaware corporation with its principal business office located at 000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 (together with its successors and assigns, the
“Company”), subject to the terms and conditions set forth below, at any time or from time to time
on and after the Issue Date as set forth above and before 3:00 p.m. (Eastern Daylight Time) on
September 28, 2011 (the “Expiration Date”), Four Million (4,000,000) shares of common stock,
$0.001 par value per share, of the Company (“Common Stock), at a price of Twenty Cents ($0.20) per
share. The shares purchasable upon exercise of this Warrant, and the purchase price per share, each
as adjusted from time to time pursuant to the provisions of this Warrant, are hereinafter referred
to as the “Warrant Shares” and the “Purchase Price,” respectively.
1. Exercise of the Warrant
(a) Exercise. The Holder may, at the Holder’s option, elect to exercise this Warrant, in whole
or in part, at any time or from time to time on or after the Issue Date and Vesting Date but prior
to 3:00 p.m. (Eastern Daylight Time) on the Expiration Date, by surrendering this Warrant, with the
purchase form appended hereto as Exhibit I duly executed by or on behalf of the Holder, at the
principal office of the Company, or at such other office or agency as the Company may designate,
accompanied by payment in full, in lawful money of the United States, of the Purchase Price payable
in respect of the number of Warrant Shares purchased upon such exercise. In no event shall any such
exercise be for fewer than 10,000 Warrant Shares unless fewer than an aggregate of 10,000 Warrant
Shares are then purchasable under all outstanding Warrants held by the Holder. Payment of the
aggregate Purchase Price may be made in cash, certified or bank check, or wire transfer of
immediately available funds.
(b) Exercise Date and Status as Holder of Shares. Each exercise of this
Warrant shall be deemed to have been effected immediately prior to the close of business
on the
day on which this Warrant shall have been surrendered to the Company as provided in Subsection l(a)
above (the “Exercise Date”). At such time, the person or persons in whose name or names any
certificates for Warrant Shares shall be issuable upon such exercise as provided in Subsection l(c)
below shall be deemed to have become the holder or holders of record of the Warrant Shares
represented by such certificates.
(c) Issuance of Certificates. As soon as practicable after the exercise of this Warrant in
whole or in part, and in any event within 10 business days thereafter, the Company, at its
expense, will cause to be issued in the name of, and delivered to, the Holder, or as the Holder
(upon payment by the Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of full Warrant Shares to
which the Holder shall be entitled upon such exercise plus, in lieu of any fractional share to
which the Holder would otherwise be entitled, cash in an amount determined pursuant to Section 3
hereof; and
(ii) in case such exercise is in part only, a new warrant or warrants (dated the date
hereof) of like tenor, calling in the aggregate on the face or faces thereof for the number of
Warrant Shares equal (without giving effect to any adjustment therein) to the number of such shares called for on the face of this Warrant minus the number of Warrant Shares for which this
Warrant was so exercised.
(d) Warrant Shares. The Warrant Shares issued upon any such exercise of
this Warrant shall be validly issued, fully paid and non-assessable.
(e) Vesting Date. The Warrants Shares shall fully and irrevocably vest on January
1,2007. The Warrant Shares are not exercisable before the Vesting Date.
2. Adjustments.
(a) Adjustment for Stock Splits and Combinations. If the Company shall at any time or from
time to time after the Issue Date (or, if this Warrant was issued upon partial exercise of, or in
replacement of, another warrant of like tenor, then the date on which such original warrant was
first issued) (either such date being referred to as the “Original Issue Date”) effect a
subdivision of the outstanding Common Stock, the Purchase Price then in effect immediately before
that subdivision shall be proportionately decreased. If the Company shall at any time or from time
to time after the Original Issue Date combine the outstanding shares of Common Stock, the Purchase
Price then in effect immediately before the combination shall be proportionately increased. Any
adjustment under this Subsection 2(a) shall become effective at the close of business on the date
the subdivision or combination becomes effective.
(b) Adjustment for Certain Dividends and Distributions. In the event the Company at any time
or from time to time after the Original Issue Date shall make or issue, or fix a record date for
the determination of holders of Common Stock entitled to receive, a dividend or other distribution
payable in shares of Common Stock, then and in each such event the Purchase Price then in effect
immediately before such event shall be decreased as of the time of such issuance or, in the event
such a record date shall have been fixed, as of the close of business on such record date, by
multiplying the Purchase Price then in effect by a fraction:
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(1) 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, and
(2) the denominator 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;
provided, however, that if such record date shall have been fixed and such dividend is not fully
paid or if such distribution is not fully made on the date fixed therefor, the Purchase Price shall
be recomputed accordingly as of the close of business on such record date and thereafter the
Purchase Price shall be adjusted pursuant to this Subsection 2(b) as of the time of actual payment
of such dividends or distributions.
(c) Adjustment in Number of Warrant Shares. When any adjustment is required to be made to the
Purchase Price pursuant to Subsections 2(a) or 2(b), the number of Warrant Shares purchasable upon
the exercise of this Warrant shall be changed to the number determined by dividing (i) an amount
equal to the number of shares issuable upon the exercise of this Warrant immediately prior to such
adjustment, multiplied by the Purchase Price in effect immediately prior to such adjustment, by
(ii) the Purchase Price in effect immediately after such adjustment.
(d) Adjustment for Reorganization. If there shall occur any reorganization, recapitalization,
reclassification, consolidation or merger involving the Company in which the Common Stock is
converted into or exchanged for securities, cash or other property (other than a transaction
covered by Subsections 2(a) or 2(b)) (collectively, a “Reorganization”), then, following such
Reorganization, the Holder shall receive upon exercise hereof the kind and amount of securities,
cash or other property which the Holder would have been entitled to receive pursuant to such
Reorganization if such exercise had taken place immediately prior to such Reorganization. In any
such case, appropriate adjustment (as determined in good faith by the Board) shall be made in the
application of the provisions set forth herein with respect to the rights and interests thereafter
of the Holder, to the end that the provisions set forth in this Section 2 (including provisions
with respect to changes in and other adjustments of the Purchase
Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any
securities, cash or other property thereafter deliverable upon the exercise of this Warrant.
(e) No Adjustments in Certain Cases. No adjustment in the number of Warrant Shares purchasable
pursuant to this Warrant shall be required unless the adjustment would require an increase or
decrease of at least one percent (1.0%) in the number of Warrant Shares then purchasable upon the
exercise of this Warrant. Except as provided in this Section 2, no other adjustments in
the number, kind or price of shares constituting Warrant Shares shall be made during the term, or
upon the exercise, of this Warrant. Further, no adjustments shall be made pursuant to this Section
2 hereof in connection with the grant or exercise of presently authorized or outstanding options to
purchase, or the issuance of shares of Common Stock under, the Company’s director or employee
benefit, option and incentive plans.
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(f) Treasury Stock. For purposes of this Section 2, shares of Common Stock owned
or held at any relevant time by, or for the account of, the Company, in its treasury or otherwise,
shall not be deemed to be outstanding for purposes of the calculations and adjustments herein
described.
3. Fractional Shares. The Company shall not be required upon the exercise of this
Warrant to issue any fractional shares, but shall pay in cash to the Holder an amount equal to such
fraction multiplied by the fair market value per share of Common Stock, as determined by the Board
of Directors in good faith.
4. Investment Representations. The initial Holder represents and warrants to the Company as
follows:
(a) Investment. The Holder is acquiring this Warrant, and (if and when such Holder exercises
this Warrant) will acquire the Warrant Shares, for such Holder’s own account for investment and not
with a view to, or for sale in connection with, any distribution thereof, nor with any present
intention of distributing or selling the same; and the Holder has no present or contemplated
agreement, undertaking, arrangement, obligation, indebtedness or commitment providing for the
disposition thereof.
(b) Accredited Investor. The Holder is an “accredited investor” as defined in Rule 501(a)
under the Act.
(c) Experience. The Holder has made such inquiry concerning the Company and its business and
personnel as the Holder has deemed appropriate; and the Holder has sufficient knowledge and
experience in finance and business that the Holder is capable of evaluating the risks and merits of
an investment in the Company.
5. Transfers, etc.
(a) This Warrant and the Warrant Shares shall not be offered, sold or transferred unless
either (i) they first shall have been registered under the Act and any
applicable state securities laws, or (ii) the Company first shall have been furnished with an
opinion of legal counsel, satisfactory to the Company, to the effect that such offer, sale or
transfer is exempt from the registration requirements of the Act and any applicable state
securities laws.
(b) Each Warrant and certificate representing Warrant Shares shall bear a legend substantially
in the following form:
“The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or any state
securities laws, and may not be offered, sold or otherwise transferred,
pledged or hypothecated unless and until such securities are registered
under such act and applicable state securities laws or an opinion of
counsel reasonably satisfactory to the Company is obtained to the effect
that such registration is not required.”
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The foregoing legend shall be removed from the certificates representing any Warrant Shares,
at the request of the holder thereof, at such time as they become eligible for resale pursuant to
Rule 144 under the Act.
(c) The Company will maintain a register containing the name and address of the Holder of this
Warrant. The Holder may change the Holder’s address as shown on the warrant register by written
notice to the Company requesting such change.
(d) Subject to the provisions of clauses (a) and (b) of this Section 5, this
Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of this
Warrant with a properly executed assignment (in the form of Exhibit II hereto) at the principal
office of the Company (or, if another office or agency has been designated by the Company for such
purpose, then at such other office or agency). Upon the presentation and surrender of such items to
the Company, the Company shall execute and deliver to the transferee or transferees of this
Warrant a new Warrant or Warrants, in the name of the transferee or transferees named in the
assignment, and this Warrant shall at that time be canceled to the extent transferred.
6. No Impairment; Adjustment of Par Value
(a) The Company will not, by amendment of its charter 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,
but will at all times in good faith assist in the carrying out of all such terms and in the taking
of all such action as may be necessary or appropriate in order to protect the rights of the Holder
against impairment.
(b) Before taking any action that would cause an adjustment reducing the Purchase
Price per share below the then par value of the shares of Warrant Shares
issuable upon exercise of the Warrant, the Company will take any corporate action that may be
necessary in order that the Company may validly and legally issue fully paid and non-assessable
shares of such Warrant Shares at such adjusted price.
7. Record Date, etc. In the event:
(a) the Company shall take a record of the holders of its Common Stock (or other stock or
securities at the time deliverable upon the exercise of this Warrant) for the purpose of entitling
or enabling them to receive any dividend or other distribution, or to receive any right to
subscribe for or purchase any shares of stock of any class or any other securities, or to receive
any other right; or
(b) of any capital reorganization of the Company, any reclassification of the Common Stock of
the Company, any consolidation or merger of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the surviving entity and its Common Stock is
not converted into or exchanged for any other securities or property), or any transfer of all or
substantially all of the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company,
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then, and in each such case, the Company will send or cause to be sent to the Holder a
notice specifying, as the case may be, (i) the record date for such dividend, distribution or
right, and the amount and character of such dividend, distribution or right, or (ii) the
effective date on which such reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation or winding-up is to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other stock or securities at the
time deliverable upon the exercise of this Warrant) shall be entitled to exchange their shares
of Common Stock (or such other stock or securities) for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation or winding-up. Such notice shall be sent at least 10 days prior to the
record date or effective date, for the event specified in such notice.
8. Reservation of Stock. The Company will at all times reserve and keep available, solely
for issuance and delivery upon the exercise of this Warrant, such number of Warrant Shares and
other securities, cash and/or property as from time to time shall be issuable upon the exercise
of this Warrant.
9. Exchange or Replacement of Warrants
(a) Upon the surrender by the Holder of this Warrant, properly endorsed, to the Company at
the principal office of the Company, the Company will, subject to the provisions of Section 5
hereof, issue and deliver to or upon the order of the Holder, at the Company’s expense, a new
Warrant or Warrants of like tenor, in the
name of the Holder or as the Holder (upon payment by the Holder of any applicable transfer
taxes) may direct, calling in the aggregate on the face or faces thereof for the number of
shares of Common Stock (or other securities, cash and/or property) then issuable upon exercise
of this Warrant.
(b) Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and (in the case of loss, theft or destruction) upon
delivery of an indemnity agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and cancellation of
this Warrant, the Company will issue, in lieu thereof, a new Warrant of like tenor.
10. Notices. All notices and other communications from the Company to the Holder in
connection herewith shall be mailed by certified or registered mail, postage prepaid, or sent
via a reputable nationwide overnight courier service guaranteeing next business day delivery,
to the address last furnished to the Company in writing by the Holder. All notices and other
communications from the Holder to the Company in connection herewith shall be mailed by
certified or registered mail, postage prepaid, or sent via a reputable nationwide overnight
courier service guaranteeing next business day delivery, to the Company at its principal office
set forth above. If the Company should at any time change the location of its principal office
to a place other than as set forth above, it shall give prompt written notice to the Holder and
thereafter all references in this Warrant to the location of its principal office at the
particular time shall be as so specified in such notice. All such notices and communications
shall be deemed delivered (a) three business days after being sent by certified or registered
mail, return receipt requested, postage prepaid, or (b) one business day after being sent via a
reputable nationwide overnight courier service guaranteeing next business day delivery.
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11. No Rights as Stockholder; No Liability. No provision of this Warrant shall be
construed as conferring upon the Holder hereof the right to vote, consent, receive dividends or
receive notice as a stockholder in respect of meetings of stockholders for the election of
directors of the Company or any other matter whatsoever as a stockholder of the Company. In the
absence of affirmative action by the Holder hereof to purchase shares of Common Stock, no provision
hereof shall give rise to any liability of such Holder for the purchase price or as a stockholder
of the Company, whether such liability is asserted by the Company or by creditors of the Company.
12. Payment of Taxes. The Company will pay all documentary stamp taxes, if any,
attributable to the initial issuance of this Warrant or the shares of Common Stock comprising the
Warrant Shares; provided, however, the Company shall not be required to pay any tax that may be
payable in respect of any transfer of this Warrant or Warrant Shares.
13. Amendment or Waiver. Any term of this Warrant may be amended or waived only by
an instrument in writing signed by the party against which enforcement of the
change or waiver is sought. No waivers of any term, condition or provision of this Warrant, in
any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver
of any such term, condition or provision or any other term, condition or provision hereof.
14. Section Headings. The section headings in this Warrant are for the convenience
of the parties only and in no way alter, modify, amend, limit or restrict the contractual
obligations of the parties.
15. Severability. If any provision of this Warrant shall be held invalid, illegal
or unenforceable, such invalidity, illegality or unenforceability shall not affect any other
provision of this Warrant and, to this end, the provisions hereof are severable.
16. Assignment. This Warrant shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, personal representatives, successors and permitted
assigns.
17. Governing Law. This Warrant will be governed by and construed in accordance with the
internal laws of the State of Delaware (without reference to the conflicts of law provisions
thereof).
18. Signatures. This Warrant may be executed in one or more counterparts by facsimile
signature.
(Signature appears on next page).
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EFFECTIVE as of the Issue Date indicated above.
CYTOCORE, INC. | ||||
By: | /s/ Xxxxxx X. XxXxxxxxxx, Xx. | |||
Xxxxxx X. XxXxxxxxxx, Xx. | ||||
Title: Chief Financial Officer |
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