THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW, AND MAY NOT BE OFFERED FOR SALE, SOLD OR
TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS SHALL BE EFFECTIVE WITH RESPECT THERETO, OR AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER. SUBJECT TO COMPLIANCE
WITH THE REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS, THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT MAY
BE PLEDGED OR HYPOTHECATED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR
OTHER LOAN SECURED BY THIS WARRANT OR ANY OF THE SECURITIES ISSUABLE UPON
EXERCISE OF THIS WARRANT.
WARRANT
TO PURCHASE COMMON STOCK
OF
VYTERIS HOLDINGS (NEVADA), INC.
Issue Date: August 19, 2005 Warrant No. __
THIS CERTIFIES that _____________________ or any subsequent holder hereof
(the "Holder"), has the right to purchase from VYTERIS HOLDINGS (NEVADA), INC.,
a Nevada corporation (the "Company"), up to ______________ fully paid and
nonassessable shares of the Company's common stock, par value $0.001 per share
(the "Common Stock"), subject to adjustment as provided herein, at a price per
share equal to the Exercise Price (as defined below), at any time and from time
to time beginning on the date on which this Warrant is issued (the "Issue Date")
and ending at 5:00 p.m., eastern time, on the seventh (7th) anniversary of the
Issue Date or, if such day is not a Business Day, on the next succeeding
Business Day (the "Expiration Date"). This Warrant is issued pursuant to a
Securities Purchase Agreement, dated as of August 19, 2005 (the "Securities
Purchase Agreement"). Capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Securities Purchase
Agreement and the Debenture.
1. Exercise.
(a) Right to Exercise; Exercise Price. The Holder shall have the right to
exercise this Warrant at any time and from time to time during the period
beginning on the Issue Date and ending on the Expiration Date as to all or any
part of the shares of Common Stock covered hereby (the "Warrant Shares"). The
"Exercise Price" for each Warrant Share purchased by the Holder upon the
exercise of this Warrant shall be equal to $2.88, subject to adjustment for the
events specified in Section 6 below.
(b) Exercise Notice. In order to exercise this Warrant, the Holder shall
(i) send by facsimile transmission, at any time prior to 5:00 p.m., eastern
time, on the Business Day on which the Holder wishes to effect such exercise
(the "Exercise Date"), to the Company an executed copy of the notice of exercise
in the form attached hereto as Exhibit A (the "Exercise Notice"), (ii) deliver
the original Warrant and, in the case of a Cash Exercise (as defined below), the
Exercise Price to the Company. The Exercise Notice shall also state the name or
names in which the Warrant Shares issuable on such exercise shall be issued. In
the case of a dispute as to the calculation of the Exercise Price or the number
of Warrant Shares issuable hereunder (including, without limitation, the
calculation of any adjustment pursuant to Section 6 below), the Company shall
promptly issue to the Holder the number of Warrant Shares that are not disputed
and shall submit the disputed calculations to a certified public accounting firm
of national recognition (other than the Company's independent accountants)
within two (2) Business Days following the date on which the Exercise Notice is
delivered to the Company. The Company shall cause such accountant to calculate
the Exercise Price and/or the number of Warrant Shares issuable hereunder and to
notify the Company and the Holder of the results in writing no later than three
(3) Business Days following the day on which such accountant received the
disputed calculations (the "Dispute Procedure"). Such accountant's calculation
shall be deemed conclusive absent manifest error. The fees of any such
accountant shall be borne by the party whose calculations were most at variance
with those of such accountant.
(c) Holder of Record. The Holder shall, for all purposes, be deemed to have
become the holder of record of the Warrant Shares specified in an Exercise
Notice on the Exercise Date specified therein, irrespective of the date of
delivery of such Warrant Shares. Except as specifically provided herein, nothing
in this Warrant shall be construed as conferring upon the Holder hereof any
rights as a stockholder of the Company prior to the Exercise Date.
(d) Cancellation of Warrant. This Warrant shall be canceled upon its
exercise and, if this Warrant is exercised in part, the Company shall, at the
time that it delivers Warrant Shares to the Holder pursuant to such exercise as
provided herein, issue a new warrant, and deliver to the Holder a certificate
representing such new warrant, with terms identical in all respects to this
Warrant (except that such new warrant shall be exercisable into the number of
shares of Common Stock with respect to which this Warrant shall remain
unexercised); provided, however, that the Holder shall be entitled to exercise
all or any portion of such new warrant at any time following the time at which
this Warrant is exercised, regardless of whether the Company has actually issued
such new warrant or delivered to the Holder a certificate therefor.
2
2. Delivery of Warrant Shares Upon Exercise. Upon receipt of an Exercise
Notice pursuant to paragraph 1 above, the Company shall, (A) in the case of a
Cash Exercise (as defined below) no later than the close of business on the
later to occur of (i) the third (3rd) Business Day following the Exercise Date
set forth in such Exercise Notice and (ii) the date on which the Company has
received payment of the Exercise Price, (B) in the case of a Cashless Exercise
(as defined below), no later than the close of business on the third (3rd)
Business Day following the Exercise Date set forth in such Exercise Notice, and
(C) with respect to Warrant Shares that are the subject of a Dispute Procedure,
the close of business on the third (3rd) Business Day following the
determination made pursuant to paragraph 1(b) (each of the dates specified in
(A), (B) or (C) being referred to as a "Delivery Date"), issue and deliver or
cause to be delivered to the Holder the number of Warrant Shares as shall be
determined as provided herein. The Company shall effect delivery of Warrant
Shares to the Holder by, as long as the Transfer Agent participates in the
Depository Trust Company ("DTC") Fast Automated Securities Transfer program
("FAST"), crediting the account of the Holder or its nominee at DTC (as
specified in the applicable Exercise Notice) with the number of Warrant Shares
required to be delivered, no later than the close of business on such Delivery
Date. In the event that the Transfer Agent is not a participant in FAST, or if
the Warrant Shares are not otherwise eligible for delivery through FAST, or if
the Holder so specifies in an Exercise Notice or otherwise in writing on or
before the Exercise Date, the Company shall effect delivery of Warrant Shares by
delivering to the Holder or its nominee physical certificates representing such
Warrant Shares, no later than the close of business on such Delivery Date.
3. Failure to Deliver Warrant Shares.
(a) In the event that the Company fails for any reason (other than as a
result of the Holder's failure, in the case of a Cash Exercise (as defined
below), to pay the aggregate Exercise Price for the Warrant Shares being
purchased) to deliver to the Holder the number of Warrant Shares specified in
the applicable Exercise Notice on or before the Delivery Date therefor (an
"Exercise Default"), and such default continues for five (5) Business Days
following delivery of a written notice of such default by the Holder to the
Company, the Company shall pay to the Holder payments ("Exercise Default
Payments") in the amount of (i) (N/365) multiplied by (ii) the aggregate
Exercise Price of the Warrant Shares which are the subject of such Exercise
Default multiplied by (iii) the lower of twelve percent (12%) and the maximum
rate permitted by applicable law or by the applicable rules or regulations of
any Governmental Agency (the "Default Interest Rate"), where "N" equals the
number of days elapsed between the original Delivery Date of such Warrant Shares
and the date on which all of such Warrant Shares are issued and delivered to the
Holder. Cash amounts payable hereunder shall be paid on or before the fifth
(5th) Business Day of each calendar month following the calendar month in which
such amount has accrued.
(b) The Holder's rights and remedies hereunder are cumulative, and no right
or remedy is exclusive of any other. In addition to the amounts specified
herein, the Holder shall have the right to pursue all other remedies available
to it at law or in equity (including, without limitation, a decree of specific
performance and/or injunctive relief). Nothing herein shall limit the Holder's
right to pursue actual damages for the Company's failure to issue and deliver
Warrant Shares on the applicable Delivery Date (including, without limitation,
damages relating
3
to any purchase of Common Stock by the Holder to make delivery on a sale
effected in anticipation of receiving Warrant Shares upon exercise, such damages
to be in an amount equal to (A) the aggregate amount paid by the Holder for the
Common Stock so purchased minus (B) the aggregate amount of net proceeds, if
any, received by the Holder from the sale of the Warrant Shares issued by the
Company pursuant to such exercise).
4. Exercise Limitations. In no event shall the Holder be permitted to
exercise this Warrant, or part thereof, if, upon such exercise, the number of
shares of Common Stock beneficially owned by the Holder (other than shares which
would otherwise be deemed beneficially owned except for being subject to a
limitation on exercise or exercise analogous to the limitation contained in this
paragraph 4), would exceed 4.99% of the number of shares of Common Stock then
issued and outstanding. As used herein, beneficial ownership shall be determined
in accordance with Section 13(d) of the Exchange Act. To the extent that the
limitation contained in this paragraph 4 applies, the submission of an Exercise
Notice by the Holder shall be deemed to be the Holder's representation that this
Warrant is exercisable pursuant to the terms hereof and the Company shall be
entitled to rely on such representation without making any further inquiry as to
whether this Section 4 applies. Nothing contained herein shall be deemed to
restrict the right of a Holder to exercise this Warrant, or part thereof, at
such time as such exercise will not violate the provisions of this Section 4.
This Section 4 may not be amended unless such amendment is agreed to in writing
by the Holder and approved by the holders of a majority of the Common Stock then
outstanding; provided, however, that the Holder shall have the right to waive
the provisions of this Section 4 upon prior written notice to the Company
following the announcement of a Major Transaction (as defined below), or
otherwise upon sixty (60) days' prior written notice to the Company.
5. Payment of the Exercise Price; Cashless Exercise. The Holder may pay the
Exercise Price in either of the following forms or, at the election of Holder, a
combination thereof:
(a) through a cash exercise (a "Cash Exercise") by delivering immediately
available funds, or
(b) if, following the one-year anniversary of the Issue Date, an effective
Registration Statement is not available for the resale of all of the Warrant
Shares issuable hereunder at the time an Exercise Notice is delivered to the
Company, or if the Company otherwise consents in writing, through a cashless
exercise (a "Cashless Exercise"). The Holder may effect a Cashless Exercise by
surrendering this Warrant to the Company and noting on the Exercise Notice that
the Holder wishes to effect a Cashless Exercise, upon which the Company shall
issue to the Holder a number of Warrant Shares determined as follows:
X = Y x (A-B)/A
where: X = the number of Warrant Shares to be issued to the Holder;
Y = the number of Warrant Shares with respect to which this Warrant
is being exercised;
4
A = the Market Price as of the Exercise Date; and
B = the Exercise Price.
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 Issue Date. For purposes hereof, (A)
"Market Price" means, as of a particular date, the average of the Closing Bid
Prices for the Common Stock occurring during the ten (10) Trading Day period
ending on (and including) the Trading Day immediately preceding such date, and
(B) "Closing Bid Price" means, with respect to the Common Stock as of any
Trading Day, the Closing Bid Price on such date for the Common Stock on the
Principal Market as reported by Bloomberg Financial Markets ("Bloomberg"), or if
the Principal Market begins to operate on an extended hours basis, and does not
designate the Closing Bid Price, then the last price at 4:00 p.m. (eastern
time), as reported by Bloomberg, or if the foregoing do not apply, the last
Closing Bid Price of the Common Stock in the over-the-counter market on the
electronic bulletin board for such security as reported by Bloomberg, or, if no
Closing Bid Price is reported for such security by Bloomberg, the last closing
trade price for such security as reported by Bloomberg, or, if no last closing
trade price is reported for such security by Bloomberg, the average of the
prices of any market makers for such security as reported in the "pink sheets"
by Pink Sheets LLC (formerly the National Quotation Bureau, Inc.). If the
Closing Bid Price cannot be calculated for the Common Stock on such date on any
of the foregoing bases, then the Company shall submit such calculation to an
independent investment banking firm of national reputation and reasonably
acceptable to the Holder, and shall cause such investment banking firm to
perform such determination and notify the Company and the Holder of the results
of determination no later than two (2) Business Days from the time such
calculation was submitted to it by the Company. Such investment banking firm's
determination shall be deemed conclusive absent manifest error. All such
determinations shall be appropriately adjusted for any stock dividend, stock
split or other similar transaction during such period.
6. Anti-Dilution Adjustments; Distributions; Other Events. The Exercise
Price and the number of Warrant Shares issuable hereunder shall be subject to
adjustment from time to time as provided in this Section 6.
(a) Subdivision or Combination of Common Stock. If the Company, at any time
after the Issue Date, subdivides (by any stock split, stock dividend,
recapitalization, reorganization, reclassification or otherwise) its shares of
Common Stock into a greater number of shares, then after the date of record for
effecting such subdivision, the Exercise Price in effect immediately prior to
such subdivision will be proportionately reduced. If the Company, at any time
after the Issue Date, combines (by reverse stock split, recapitalization,
reorganization, reclassification or otherwise) its shares of Common Stock into a
smaller number of shares, then, after the date of record for effecting such
combination, the Exercise Price in effect immediately prior to such combination
will be proportionally increased.
(b) Distributions. If the Company shall declare or make any distribution of
its assets
5
(or rights to acquire its assets) to holders of Common Stock (including without
limitation any dividend or distribution to the Company's stockholders in cash or
shares (or rights to acquire shares) of capital stock of a subsidiary) (a
"Distribution"), the Company shall deliver written notice of such Distribution
(a "Distribution Notice") to the Holder at least ten (10) Business Days prior to
the earlier to occur of (i) the record date for determining stockholders
entitled to such Distribution (the "Record Date") and (ii) the date on which
such Distribution is made (the "Distribution Date"). In the Distribution Notice
to the Holder, the Company shall indicate whether the Company has elected (A)
upon any exercise of this Warrant on or after the Record Date, to deliver to the
Holder on the Distribution Date (for any exercise effected on or prior to the
Distribution Date) or the applicable Delivery Date (for any exercise effected
after the Distribution Date), the amount of such assets which would have been
payable to the Holder with respect to the shares of Common Stock issuable upon
such exercise (without giving effect to any limitations on such exercise
contained in this Warrant) had the Holder been the holder of such shares of
Common Stock on the Record Date or (B) upon any exercise of this Warrant on or
after the Record Date, to reduce the Exercise Price applicable to such exercise
by reducing the Exercise Price in effect on the Business Day immediately
preceding the Record Date by an amount equal to the fair market value of the
assets to be distributed divided by the number of shares of Common Stock as to
which such Distribution is to be made, such fair market value to be reasonably
determined in good faith by the independent members of the Board of Directors of
the Company. If the Company does not notify the Holder of its election pursuant
to the preceding sentence on or prior to the Determination Date, the Company
shall be deemed to have elected clause (A) of the preceding sentence.
(c) Dilutive Issuances.
(i) Adjustment Upon Dilutive Issuance. If, at any time after the Issue
Date, the Company issues or sells, or in accordance with subparagraph (iii) of
this paragraph 6(c), is deemed to have issued or sold, any shares of Common
Stock for no consideration or for a consideration per share less than the
Exercise Price on the date of such issuance or sale (or deemed issuance or sale)
(a "Dilutive Issuance"), then the Exercise Price shall be adjusted as follows:
(A) if such Dilutive Issuance occurs prior to the Weighted Average
Trigger Date, then effective immediately upon such Dilutive Issuance,
the Exercise Price shall be adjusted so as to equal the consideration
received or receivable by the Company (on a per share basis) for the
additional shares of Common Stock so issued, sold or deemed issued or
sold in such Dilutive Issuance (which, in the case of a deemed
issuance or sale, shall be calculated in accordance with subparagraph
6(c)(iii) below).
(B) if such Dilutive Issuance occurs on or after the Weighted
Average Trigger Date, then effective immediately upon the Dilutive
Issuance, the Exercise Price shall be adjusted so as to equal an
amount determined by multiplying such Exercise Price by the following
fraction:
N + N
0 1
---------
N + N
0 2
6
where:
N = the number of shares of Common Stock outstanding immediately
0 prior to such Dilutive Issuance (without taking into account
any Convertible Securities or Purchase Rights, including the
Debentures and Warrants);
N = the number of shares of Common Stock which the aggregate
1 consideration, if any, received or receivable by the Company for
the total number of such additional shares of Common Stock so
issued, sold or deemed issued or sold in such Dilutive Issuance
(which, in the case of a deemed issuance or sale, shall be
calculated in accordance with subparagraph 6(c)(iii) below) would
purchase at the Exercise Price in effect immediately prior to
such Dilutive Issuance; and
N = the number of such additional shares of Common Stock so issued,
2 sold or deemed issued or sold in such Dilutive Issuance.
Notwithstanding the foregoing, no adjustment shall be made pursuant
hereto if such adjustment would result in an increase in the Exercise Price.
(ii) Adjustment Upon Below Market Issuance. If, at any time after the
Issue Date, the Company issues or sells, or in accordance with subparagraph
(iii) of this paragraph 6(c), is deemed to have issued or sold, any shares of
Common Stock for no consideration or for a consideration per share less than the
Market Price on the date of such issuance or sale (or deemed issuance or sale)
(a "Below Market Issuance"), then the Exercise Price shall be adjusted so as to
equal an amount determined by multiplying such Exercise Price by the following
fraction:
N + N
0 1
---------
N + N
0 2
where:
N = the number of shares of Common Stock outstanding immediately
0 prior to the issuance, sale or deemed issuance or sale of such
additional shares of Common Stock in such Below Market Issuance
(without taking into account any shares of Common Stock issuable
upon exercise, exchange or exercise of any Debentures or
Warrants);
N = the number of shares of Common Stock which the aggregate
1 consideration, if any, received or receivable by the Company for
the total number of such additional shares of Common Stock so
issued, sold or deemed issued or sold in such Below Market
7
Issuance (which, in the case of a deemed issuance or sale, shall
be calculated in accordance with subparagraph 6(c)(iii) below)
would purchase at the Market Price in effect on the date of such
Below Market Issuance; and
N = the number of such additional shares of Common Stock so issued,
2 sold or deemed issued or sold in such Below Market Issuance.
Notwithstanding the foregoing, no adjustment shall be made pursuant to
this paragraph 6(c)(ii) if such adjustment would result in an increase in
the Exercise Price or if such adjustment would lead to a higher exercise
price than an adjustment pursuant to paragraph 6(c)(i), in which case the
provisions of paragraph 6(c)(i) shall apply.
(iii) Effect On Exercise Price Of Certain Events. For purposes of
determining the adjusted Exercise Price under subparagraph (i) or (ii) of this
paragraph 6(c), the following will be applicable:
(A) Issuance Of Purchase Rights. If, at any time after the Issue
Date, the Company issues or sells any Purchase Rights, whether or not
immediately exercisable, and the price per share for which Common Stock is
issuable upon the exercise of such Purchase Rights (or the price of any
exercise of Convertible Securities that may be acquired under such Purchase
Rights, if applicable) is less than the Market Price in effect on the date
of issuance or sale of such Purchase Rights, then the maximum total number
of shares of Common Stock issuable upon the exercise of all such Purchase
Rights (assuming full exercise, exercise or exchange of Convertible
Securities, if applicable) shall, as of the date of the issuance or sale of
such Purchase Rights, be deemed to be outstanding and to have been issued
and sold by the Company for such price per share. If the Purchase Rights so
issued are not Variable Rate Securities, then for purposes of the preceding
sentence, the "price per share for which Common Stock is issuable upon the
exercise of such Purchase Rights" shall be determined by dividing (x) the
total amount, if any, received or receivable by the Company as
consideration for the issuance or sale of all such Purchase Rights, plus
the minimum aggregate amount of additional consideration, if any, payable
to the Company upon the exercise of all such Purchase Rights, plus, in the
case of Convertible Securities issuable upon the exercise of such Purchase
Rights, the minimum aggregate amount of additional consideration payable
upon the exercise, exercise or exchange thereof (determined in accordance
with the calculation method set forth in subparagraph (iii)(B) below) at
the time such Convertible Securities first become convertible, exercisable
or exchangeable, by (y) the maximum total number of shares of Common Stock
issuable upon the exercise of all such Purchase Rights (assuming full
exercise, exercise or exchange of Convertible Securities, if applicable).
No further adjustment to the Exercise Price shall be made upon the actual
issuance of such Common Stock upon the exercise of such Purchase Rights or
upon the exercise, exercise or exchange of Convertible Securities issuable
upon exercise of such Purchase Rights. To the extent that shares of Common
Stock or Convertible Securities are not delivered pursuant to such Purchase
Rights, upon the expiration or termination of such Purchase Rights, the
Exercise Price shall be readjusted to the Exercise Price that would then be
in effect had the adjustments made upon the issuance of such Purchase
8
Rights been made on the basis of delivery of only the number of shares of
Common Stock actually delivered.
(B) Issuance Of Convertible Securities. If, at any time after
the Issue Date, the Company issues or sells any Convertible Securities,
whether or not immediately convertible, exercisable or exchangeable, and
the price per share for which Common Stock is issuable upon such exercise,
exercise or exchange is less than the Market Price in effect on the date of
issuance or sale of such Convertible Securities, then the maximum total
number of shares of Common Stock issuable upon the exercise, exercise or
exchange of all such Convertible Securities shall, as of the date of the
issuance or sale of such Convertible Securities, be deemed to be
outstanding and to have been issued and sold by the Company for such price
per share. If the Convertible Securities so issued or sold are not Variable
Rate Securities, then for the purposes of the immediately preceding
sentence, the "price per share for which Common Stock is issuable upon such
exercise, exercise or exchange" shall be determined by dividing (x) the
total amount, if any, received or receivable by the Company as
consideration for the issuance or sale of all such Convertible Securities,
plus the minimum aggregate amount of additional consideration, if any,
payable to the Company upon the exercise, exercise or exchange thereof
(determined in accordance with the calculation method set forth in this
subparagraph (iii)(B)) at the time such Convertible Securities first become
convertible, exercisable or exchangeable, by (y) the maximum total number
of shares of Common Stock issuable upon the exercise, exercise or exchange
of all such Convertible Securities. No further adjustment to the Exercise
Price shall be made upon the actual issuance of such Common Stock upon
conversion, exercise or exchange of such Convertible Securities. To the
extent that shares of Common Stock are not delivered pursuant to conversion
of such Convertible Securities, upon the expiration or termination of the
right to convert such Convertible Securities into Common Stock, the
Exercise Price shall be readjusted to the Exercise Price that would then be
in effect had the adjustments made upon the issuance of such Convertible
Securities been made on the basis of delivery of only the number of shares
of Common Stock actually delivered.
(C) Issuance of Variable Rate Securities. If any Purchase Rights
or Convertible Securities, including Convertible Securities issuable on
exercise of Purchase Rights, constitute Variable Rate Securities, then for
purposes of the first sentence of subparagraphs (iii) (A) and (iii)(B) of
this paragraph 6(c), the "price per share for which Common Stock is
issuable upon such exercise, exercise or exchange" shall be deemed to be
the lowest price per share which would be applicable (assuming all holding
period and other conditions to any discounts contained in such Variable
Rate Security have been satisfied) if the exercise price of such Variable
Rate Security on the date of issuance or sale thereof were seventy-five
percent (75%) of the actual exercise price on such date (the "Assumed
Variable Market Price"), and, further, if such Variable Rate Security at
any time or times thereafter is exercised, purchased or converted at a
price lower that the Assumed Variable Market Price, the Exercise Price in
effect at such time shall be readjusted to equal the Exercise Price
existing at the time of such exercise, purchase or conversion. To the
extent that shares of Common Stock are not delivered pursuant to the
exercise, purchase, or exercise of such Variable Rate Securities, upon the
expiration or termination of the right to exercise, purchase or convert
such Variable Rate Securities
9
into Common Stock, the Exercise Price shall be readjusted to the Exercise
Price that would then be in effect had the adjustments made upon the
issuance of such Variable Rate Securities been made on the basis of
delivery of only the number of shares of Common Stock actually delivered.
(D) Change In Option Price Or Exercise Rate. If, following an
adjustment to the Exercise Price upon the issuance of Purchase Rights or
Convertible Securities pursuant to a Below Market Issuance, there is a
change at any time in (x) the amount of additional consideration payable to
the Company upon the exercise of any Purchase Rights; (y) the amount of
additional consideration, if any, payable to the Company upon the exercise,
exercise or exchange of any Convertible Securities; or (z) formula for
determining the number of shares issuable under a Variable Rate Security
(in each such case, other than under or by reason of provisions designed to
protect against dilution), then in any such case, the Exercise Price in
effect at the time of such change shall be readjusted to the Exercise Price
which would have been in effect at such time had such Purchase Rights or
Convertible Securities still outstanding provided for such changed
additional consideration or changed exercise, exercise or exchange rate, as
the case may be, at the time initially issued or sold.
(E) Calculation Of Consideration Received. If any Common Stock,
Purchase Rights or Convertible Securities are issued or sold for cash, the
consideration received therefor will be the amount received by the Company
therefor. In case any Common Stock, Purchase Rights or Convertible
Securities are issued or sold for a consideration part or all of which
shall be other than cash, including in the case of a strategic or similar
arrangement in which the other entity will provide services to the Company,
purchase services from the Company or otherwise provide intangible
consideration to the Company, the amount of the consideration other than
cash received by the Company (including the net present value of the
consideration expected by the Company for the provided or purchased
services) shall be the fair market value of such consideration, except
where such consideration consists of securities, in which case the amount
of consideration received by the Company will be the average of the last
sale prices thereof on the principal market for such securities during the
period of ten Trading Days immediately preceding the date of receipt. In
case any Common Stock, Purchase Rights or Convertible Securities are issued
in connection with any merger or consolidation in which the Company is the
surviving corporation, the amount of consideration therefor will be deemed
to be the fair market value of such portion of the net assets and business
of the non-surviving corporation as is attributable to such Common Stock,
Purchase Rights or Convertible Securities, as the case may be.
Notwithstanding anything else herein to the contrary, if Common Stock,
Purchase Rights or Convertible Securities are issued or sold in conjunction
with each other as part of a single transaction or in a series of related
transactions, the Holder may elect to determine the amount of consideration
deemed to be received by the Company therefor by deducting the fair value
of any type of securities (the "Disregarded Securities") issued or sold in
such transaction or series of transactions. If the holder makes an election
pursuant to the immediately preceding sentence, no adjustment to the
Exercise Price shall be made pursuant to this paragraph 6(c) for the
issuance of the Disregarded Securities or upon any exercise, exercise or
exchange thereof. The independent members of the Company's
10
Board of Directors shall calculate reasonably and in good faith, using
standard commercial valuation methods appropriate for valuing such assets,
the fair market value of any consideration other than cash or securities.
(F) Issuances Pursuant To Existing Securities. If the Company
issues (or becomes obligated to issue) shares of Common Stock pursuant to
any antidilution or similar adjustments (other than as a result of stock
splits, stock dividends and the like) contained in any Convertible
Securities or Purchase Rights outstanding as of the date hereof but not
included in the Disclosure Schedule to the Securities Purchase Agreement,
then all shares of Common Stock so issued shall be deemed to have been
issued for no consideration. If the Company issues (or becomes obligated to
issue) shares of Common Stock pursuant to any antidilution or similar
adjustments contained in any Convertible Securities or Purchase Rights
disclosed in a schedule to the Securities Purchase Agreement as a result of
the issuance of the Debentures or Warrants and the number of shares that
the Company issues (or is obligated to issue) as a result of such initial
issuance exceeds the amount specified in such schedule, such excess shares
shall be deemed to have been issued for no consideration.
(iv) Exceptions To Adjustment Of Exercise Price. Notwithstanding the
foregoing, no adjustment to the Exercise Price shall be made pursuant to this
paragraph 6(c) upon the issuance of any Excluded Securities. For purposes
hereof, "Excluded Securities" means (I) securities purchased under the
Securities Purchase Agreement (including all securities issued to any finder or
broker for facilitating the purchase of the Debentures and the Warrants); (II)
securities issued upon exercise of the Debentures or Warrants; (III) shares of
Common Stock issuable or issued to (x) employees or directors from time to time
either directly or upon the exercise of options, in such case granted or to be
granted in the discretion of the Board of Directors (or a duly authorized
committee thereof) pursuant to one or more stock option plans or restricted
stock plans in effect as of the Closing Date or adopted after the Closing Date
by the Board of Directors (or a duly authorized committee thereof) or by the
Company's shareholders, or (y) vendors, either directly or pursuant to warrants
to purchase Common Stock that are outstanding on the date hereof or issued
hereafter, provided such issuances are approved by the Board of Directors (or a
duly authorized committee thereof) or by the Company's shareholders; (IV) any
borrowings, direct or indirect, from financial institutions by the Company that
are approved by the Board of Directors, including any type of loan or payment
evidenced by any type of Debt instrument, provided the value of the equity
portion of any such borrowings, including warrants, options or other rights to
purchase capital stock and other interests convertible into capital stock of the
Company, does not exceed ten percent (10%) of such borrowing (or, in the case of
a borrowing under the existing working capital facility provided by Xxxxxxx
Xxxxx and the Related Parties, does not exceed forty percent (40%) of such
borrowing); (V) shares of Common Stock issued in connection with any stock
split, stock dividend or recapitalization of the Company; (VI) shares of Common
Stock issued in connection with the acquisition by the Company of any
corporation or other entity occurring after the Initial Effective Date; (VII)
shares of Common Stock issued in connection with any Convertible Securities or
Purchase Rights outstanding on the date hereof; (VIII) shares of Common Stock
issued to Persons with whom the Company is entering into a joint venture,
strategic alliance or other commercial relationship in connection with the
operation of the Company's business and not in connection with a transaction the
primary purpose of which is to raise equity capital, (IX) shares
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of Common Stock issued pursuant to a registered public offering underwritten on
a best efforts basis by Xxxxxxx Xxxxx or a nationally-recognized investment bank
with net proceeds to the Company of at least fifteen million dollars
($15,000,000), and (X) the Additional Registrable Securities (as defined in the
Registration Rights Agreement).
(d) Major Transactions. In the event of a merger, consolidation, business
combination, tender offer, exchange of shares, recapitalization, reorganization,
redemption or other similar event, as a result of which shares of Common Stock
shall be changed into the same or a different number of shares of the same or
another class or classes of stock or securities or other assets of the Company
or another entity or the Company shall sell all or substantially all of its
assets (each of the foregoing being a "Major Transaction"), the Company will
give the Holder at least ten (10) Trading Days' written notice prior to the
earlier of (I) the closing or effectiveness of such Major Transaction and (II)
the record date for the receipt of such shares of stock or securities or other
assets, and the Holder shall be permitted to either (i) where the consideration
received by the Company or its stockholders consists (in whole or in part) of
cash, require the Company to repurchase this Warrant for an amount to the value
of this Warrant calculated pursuant to the Black-Scholes pricing model or (ii)
exercise this Warrant in whole or in part at any time prior to the record date
for the receipt of such consideration and shall be entitled to receive, for each
share of Common Stock issuable to the Holder upon such exercise, the same per
share consideration payable to the other holders of Common Stock in connection
with such Major Transaction. If and to the extent that the Holder retains this
Warrant or any portion hereof following such record date, the Company will cause
the surviving or, in the event of a sale of assets, purchasing entity, as a
condition precedent to such Major Transaction, to assume the obligations of the
Company with respect to this Warrant, with such adjustments to the Exercise
Price and the securities covered hereby as may be necessary in order to preserve
the economic benefits of this Warrant to the Holder.
(e) Notice Of Adjustments. Upon the occurrence of one or more adjustments
or readjustments of the Exercise Price pursuant to this paragraph 6 or any
change in the number or type of stock, securities and/or other property issuable
upon exercise of this Warrant, the Company, at its expense, shall promptly
compute such adjustment or readjustment or change and prepare and furnish to the
Holder a certificate setting forth such adjustment or readjustment or change and
showing in detail the facts upon which such adjustment or readjustment or change
is based. The Company shall, upon the written request at any time of the Holder,
furnish to the Holder a like certificate setting forth (i) such adjustment or
readjustment or change, (ii) the Exercise Price at the time in effect and (iii)
the number of shares of Common Stock and the amount, if any, of other securities
or property which at the time would be received upon exercise of this Warrant.
(f) Adjustments; Additional Shares, Securities or Assets. In the event that
at any time, as a result of an adjustment made pursuant to this paragraph 6, the
Holder of this Warrant shall, upon exercise of this Warrant, become entitled to
receive securities or assets (other than Common Stock) then, wherever
appropriate, all references herein to shares of Common Stock shall be deemed to
refer to and include such shares and/or other securities or assets; and
thereafter the number of such shares and/or other securities or assets shall be
subject to adjustment from time to time in a manner and upon terms as nearly
equivalent as practicable to the provisions of this paragraph 6. Any adjustment
made herein that results in a decrease in the
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Exercise Price shall also effect a proportional increase in the number of shares
of Common Stock into which this Warrant is exercisable.
7. Fractional Interests.
No fractional shares or scrip representing fractional shares shall be
issuable upon the exercise of this Warrant. If, on exercise of this Warrant, the
Holder hereof would be entitled to a fractional share of Common Stock or a right
to acquire a fractional share of Common Stock, the Company shall, in lieu of
issuing any such fractional share, pay to the Holder an amount in cash equal to
the product resulting from multiplying such fraction by the Market Price as of
the Exercise Date.
8. Transfer of this Warrant.
The Holder may sell, transfer, assign, pledge or otherwise dispose of
this Warrant, in whole or in part, as long as such sale or other disposition is
made pursuant to an effective registration statement or an exemption from the
registration requirements of the Securities Act, and applicable state securities
laws, and is otherwise made in accordance with the applicable provisions of the
Securities Purchase Agreement. Upon such transfer or other disposition, the
Holder shall deliver this Warrant to the Company together with a written notice
to the Company, substantially in the form of the Transfer Notice attached hereto
as Exhibit B (the "Transfer Notice"), indicating the person or persons to whom
this Warrant shall be transferred and, if less than all of this Warrant is
transferred, the number of Warrant Shares to be covered by the part of this
Warrant to be transferred to each such person. Within ten (10) Business Days of
receiving a Transfer Notice and the original of this Warrant, the Company shall
deliver to the each transferee designated by the Holder a Warrant or Warrants of
like tenor and terms for the appropriate number of Warrant Shares and, if less
than all this Warrant is transferred, shall deliver to the Holder a Warrant for
the remaining number of Warrant Shares.
9. Benefits of this Warrant.
This Warrant shall be for the sole and exclusive benefit of the Holder
of this Warrant and nothing in this Warrant shall be construed to confer upon
any person other than the Holder of this Warrant any legal or equitable right,
remedy or claim hereunder.
10. Loss, theft, destruction or mutilation of Warrant.
Upon receipt by the Company of evidence of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of loss, theft or
destruction) of indemnity reasonably satisfactory to the Company, and upon
surrender of this Warrant, if mutilated, the Company shall execute and deliver a
new Warrant of like tenor and date in replacement for the lost, stolen,
destroyed or mutilated Warrant.
11. Notice or Demands.
Any notice, demand or request required or permitted to be given by the
Company
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or the Holder pursuant to the terms of this Warrant shall be in writing and
shall be deemed delivered (i) when delivered personally or by verifiable
facsimile transmission, unless such delivery is made on a day that is not a
Business Day, in which case such delivery will be deemed to be made on the next
succeeding Business Day and (ii) on the next Business Day after timely delivery
to an overnight courier, addressed as follows:
If to the Company:
Vyteris Holdings (Nevada), Inc.
00-00 Xxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Attn: Chief Financial Officer
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Tel: 000-000-0000
Fax: 000-000-0000
and if to the Holder, to such address as shall be designated by the Holder in
writing to the Company.
12. Taxes.
The issue of stock certificates on exercises of this Warrant shall be
made without charge to the exercising Holder for any tax in respect of the issue
thereof. The Company shall not, however, be required to pay any tax which may be
payable in respect of any transfer involved in the issue and delivery of stock
in any name other than that of the Holder of any Warrant exercised, and the
Company shall not be required to issue or deliver any such stock certificate
unless and until the person or persons requesting the issue thereof shall have
paid to the Company the amount of such tax or shall have established to the
reasonable satisfaction of the Company that such tax has been paid.
13. Applicable Law.
This Warrant is issued under and shall for all purposes be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within the State of New York.
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14. Amendments.
No amendment, modification or other change to, or waiver of any
provision of, this Warrant may be made unless such amendment, modification or
change is set forth in writing and is signed by the Company and the Holder.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the Company has duly executed and delivered this
Warrant as of the Issue Date.
VYTERIS HOLDINGS (NEVADA), INC.
By:
---------------------------
Name:
Title:
16
EXHIBIT A to WARRANT
EXERCISE NOTICE
The undersigned Holder hereby irrevocably exercises the right to purchase
___________ of the shares of Common Stock ("Warrant Shares") of VYTERIS HOLDINGS
(NEVADA), INC. evidenced by the attached Warrant (the "Warrant"). Capitalized
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Warrant.
1. Form of Exercise Price. The Holder intends that payment of the Exercise
Price shall be made as:
______ a Cash Exercise with respect to __________ Warrant Shares; and/or
______ a Cashless Exercise with respect to _________________ Warrant
Shares, as permitted by Section 5(b) of the attached Warrant.
2. Payment of Exercise Price. In the event that the Holder has elected a
Cash Exercise with respect to some or all of the Warrant Shares to be issued
pursuant hereto, the Holder shall pay the sum of $________________ to the
Company in accordance with the terms of the Warrant.
Date:
------------------------------
------------------------------------
Name of Registered Holder
By:
--------------------------------
Name:
Title:
By tendering this Exercise Notice, the Holder represents to the Company
that it is an "accredited investor" as that term is defined in Rule 501 of
Regulation D, and that it is acquiring the Warrants Shares solely for its own
account, and not with a present view to the public resale or distribution of all
or any part thereof, except pursuant to sales that are registered under the
Securities Act or are exempt from the registration requirements of the
Securities Act; provided, however, that, in making such representation, the
Holder does not agree to hold the Warrants Shares for any minimum or specific
term and reserves the right to sell, transfer or otherwise dispose of the
Warrants Shares at any time in accordance with the provisions of the Warrant and
with Federal and state securities laws applicable to such sale, transfer or
disposition.
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EXHIBIT B to WARRANT
TRANSFER NOTICE
FOR VALUE RECEIVED, the undersigned Holder of the attached Warrant hereby sells,
assigns and transfers unto the person or persons named below the right to
purchase shares of the Common Stock of VYTERIS HOLDINGS (NEVADA), INC. evidenced
by the attached Warrant. By signing this Transfer Notice, the transferee agrees
to be legally bound by the terms of the attached Warrant and of the related
Securities Purchase Agreement and Registration Rights Agreement applicable to an
Investor.
Date:
------------------------------
-----------------------------------
Name of Registered Holder
By:
--------------------------------
Name:
Title:
Accepted and Agreed:
------------------------------------
Transferee Name
By:
--------------------------------
Name:
Title:
Address:
------------------------------------
------------------------------------
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