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AMENDMENT NO. 7 TO WARRANT AND PUT OPTION AGREEMENT
This AMENDMENT NO. 7 (the "Seventh Amendment ") to the WARRANT AND PUT
OPTION AGREEMENT (the "Agreement") originally dated as of November 30, 2006, by
and between Xxxxxxxxx Xxxxxxxxxx-Buitoni (the "Lead Investor"), and Xenomics,
Inc. (the "Company"), as amended August 29, 2007, October 30, 2007, February 25,
2008, April 11, 2008, May 15, 2008 and May 30, 2008 is dated as of June 12,
2008.
WITNESSETH:
WHEREAS, on November 30, 2006, the Lead Investor and the Company entered
into the Agreement and amended such Agreement on August 29, 2007, October 30,
2007, February 25, 2008, April 11, 2008, May 15, 2008 and May 30, 2008; and
WHEREAS, the Lead Investor and the Company desire to amend Section 3(b) of
such Agreement in order to preserve the Company's right to exercise the Maximum
Put Amount until September 1, 2008.
NOW, THEREFORE, in consideration of and for the mutual promises and
covenants contained herein, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the Agreement is hereby amended as
follows:
1. The second sentence of the definition of "Maximum Put Amount" in Section
3(b)(i) is hereby replaced in its entirety with "In no event shall the Maximum
Put Amount exceed $1,150,000 for the Units or $.55 per Share."
2. Section 3(b)(ii) shall be replaced in its entirety with the following:
"Since the Financing Condition has not been met, at the Company's sole
discretion, upon written notice from the Company on or before September 1,
2008, by September 2, 2008 (the "Put Closing Date"), the Lead Investor
shall purchase the number of Units specified in such notice up to the
Maximum Put Amount divided by the applicable Exercise Price, i.e. $.55 per
share. On the Put Closing Date, the Lead Investor shall surrender this
Warrant and the full Exercise Price of the Units specified in the Notice in
immediately available funds against the Company's delivery of Lead
Investor's Securities. If less than all of the Additional Shares which may
then be acquired on the exercise of this Warrant are specified in the
Notice, the Company shall cancel this Warrant and issue and deliver to the
Lead Investor a new Warrant for the Lead Investor's Additional Shares
remaining."
3. The Company and the Lead Investor acknowledge that the Lead Investor's
Warrants under Paragraph 1 of the Agreement shall be terminated other than the
Lead Investor's option to purchase the Additional Shares underlying the Units
referred to in Paragraphs 1 and 2 herein and other than the Warrants underlying
the Maximum Put Option, which the Company may "put" to the Lead Investor
pursuant to Paragraphs 1 and 2 hereof.
4. (A) This Seventh Amendment shall be construed and interpreted in
accordance with the laws of the State of New York without giving effect to the
conflict of laws rules thereof or the actual domiciles of the parties.
(B) Except as amended hereby, the terms and provisions of the Agreement
shall remain in full force and effect, and the Agreement and Amendments Nos. 1,
2, 3, 4, 5 and 6 are in all respects ratified and confirmed. This Seventh
Amendment replaces and substitutes for the Sixth Amendment dated as of May 30,
2008. On and after the date of this Seventh Amendment, each reference in the
Amendment to the "Agreement," "hereinafter," "herein," "hereunder," "hereof," or
words of like import shall mean and be a reference to the Agreement as amended
by this Seventh Amendment. Capitalized terms not otherwise defined herein are
given the meaning ascribed to them as set forth in the Agreement.
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(C) This Seventh Amendment may be executed in one or more counterparts,
each of which shall be deemed an original and all of which taken together shall
constitute a single Amendment.
5. Copies of all notices to the Company pursuant to Paragraph 14 of the
Agreement shall also be sent to: Xxxxxxx, Xxxxxxxxx LLP, 0 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Xxx X. Xxxxx, Esq.
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IN WITNESS WHEREOF, the parties hereto have executed this Seventh Amendment as
of the date stated above.
LEAD INVESTOR
By: /s/ Xxxxxxxxx Xxxxxxxxxx-Buitoni
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Xxxxxxxxx Xxxxxxxxxx-Buitoni
XENOMICS, INC.
By: /s/ Xxxxxxxxx Xxxxxxxxxx-Buitoni
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Name: Xxxxxxxxx Xxxxxxxxxx-Buitoni
Title: Executive Chairman
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