THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS EXERCISE ARE SUBJECT TO THE RESTRICTIONS ON
Exhibit
4.3
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE
ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER SET FORTH IN
SECTION 5 OF THIS WARRANT
Warrant
No.
_________ Number
of Shares:
____________
(subject
to adjustment)
Date
of Issuance: __________________, 2008
Common Stock Purchase
Warrant (Void after __________, 2013)
VeruTEK
Technologies, Inc., a Nevada corporation (the "Company"), for value received,
hereby certifies that ____________________, or its permitted registered assigns
(the "Registered Holder"), is entitled, subject to the terms and conditions set
forth below, to purchase from the Company, at any time or from time to time on
or after the date of issuance and on or before 5:00 p.m. (Eastern Time) on
_____________, 2013 the number of shares of common stock, $.001 par value per
share, of the Company ("Common Stock"), set forth above (subject to adjustment
as set forth herein) at a purchase price of $1.30 per share. The
shares purchasable upon exercise of this Warrant, and the purchase price per
share therefor, 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.
(a) Method of
Exercise. The Registered Holder may, at its option, elect to
exercise this Warrant, in whole or in part (but not for less than 5,000 Warrant
Shares at any time) and at any time or from time to time, by surrendering this
Warrant, with the purchase form appended hereto as Exhibit I duly
executed by or on behalf of the Registered Holder, at the principal office of
the Company, or at such other office or agency as the Company may designate, as
follows:
1
(i) Exercise for
Cash. 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.
(ii) Cashless
Exercise. This Warrant may also be exercised by means of a
“cashless exercise” in which the Holder shall be entitled to receive a
certificate for the number of Warrant Shares equal to the quotient obtained by
dividing [(A-B) (X)] by (A), where:
(A) = the
VWAP (as defined below) on the Trading Day immediately preceding the date of
such election;
(B) = the
Purchase Price of this Warrant, as adjusted; and
(X) = the
number of Warrant Shares issuable upon exercise of this Warrant in accordance
with the terms of this Warrant by means of a cash exercise rather than a
cashless exercise.
“VWAP” means, for any
date, the price determined by the first of the following clauses that applies:
(a) if the Common Stock is then listed or quoted on a trading market, the daily
volume weighted average price of the Common Stock for such date (or the nearest
preceding date) on the trading market on which the Common Stock is then listed
or quoted for trading as reported by Bloomberg Financial L.P. (based on a
Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City
time); (b) if the Common Stock is then listed or quoted on the OTC
Bulletin Board, the daily volume weighted average price of the Common Stock for
such date (or the nearest preceding date) on the OTC Bulletin Board; (c) if the
Common Stock is not then quoted for trading on the OTC Bulletin Board and if
prices for the Common Stock are then reported in the “Pink Sheets” published by
Pink Sheets, LLC (or a similar organization or agency succeeding to its
functions of reporting prices), the most recent price per share of the Common
Stock so reported; or (d) in all other cases, the fair market value of a
share of Common Stock as determined by an independent appraiser selected in good
faith by the Holder and reasonably acceptable to the Company.
(b) Exercise
Date. 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 1(a) (the "Exercise Date"). At such time, certificates for
Warrant Shares shall be issuable in the name of the Registered Holder upon such
exercise as provided in subsection 1(c) below and such Registered Holder shall
be deemed to have become the holder 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 20 business days
thereafter, the Company, at its expense, will cause to be issued in the name of,
and delivered to, the Registered Holder, or as the Registered Holder (upon
payment by the Registered Holder of any applicable transfer taxes) may direct in
connection with the transfer of this Warrant in accordance with the provisions
of Section 5 hereof:
(i) a
certificate or certificates for the number of whole Warrant Shares to which the
Registered Holder shall be entitled upon such exercise plus, in lieu of any
fractional share to which the Registered Holder would otherwise be entitled,
cash in an amount determined pursuant to Section 3 hereof; and
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(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.
2. Adjustments.
(a) Adjustment for Stock
Splits and
Combinations. If the Company shall at any time or from time to
time after the date on which this Warrant was first issued (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 paragraph 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 additional 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:
(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 paragraph
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 in
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.
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(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 Registered Holder shall receive upon exercise hereof the kind and amount of
securities, cash or other property which the Registered 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 of Directors of
the Company) shall be made in the application of the provisions set forth herein
with respect to the rights and interests thereafter of the Registered 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) Certificate as to
Adjustments. Upon the occurrence of each adjustment or
readjustment of the Purchase Price pursuant to this Section 2, the Company at
its expense shall, as promptly as reasonably practicable thereafter, compute
such adjustment or readjustment in accordance with the terms hereof and furnish
to the Registered Holder a certificate setting forth such adjustment or
readjustment (including the kind and amount of securities, cash or other
property for which this Warrant shall be exercisable and the Purchase Price) and
showing in detail the facts upon which such adjustment or readjustment is
based. The Company shall, as promptly as reasonably practicable after
the reasonable written request at any time of the Registered Holder, furnish or
cause to be furnished to the Registered Holder a certificate setting forth (i)
the Purchase Price then in effect and (ii) the number of shares of Common Stock
and the amount, if any, of other securities, cash or property which then would
be received upon the exercise of this Warrant.
3. Fractional
Shares. The Company shall not be required upon the exercise of
this Warrant to issue any fractional shares, but shall pay the value thereof (as
determined in good faith by the Board of Directors of the Company) to the
Registered Holder in cash.
4. Investment
Representations. By its acceptance hereof (and upon its
exercise hereof), the Registered Holder shall be deemed to represent and warrant
to the Company as follows:
(a) Investment. It
is acquiring the Warrant, and (if and when it exercises this Warrant) it will
acquire the Warrant Shares, for its 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 Registered Holder
has no present or contemplated agreement, undertaking, arrangement, obligation,
indebtedness or commitment providing for the disposition thereof.
(b) Accredited
Investor. The Registered Holder is an "accredited investor" as
defined in Rule 501(a) under the Securities Act of 1933, as amended (the
"Act").
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(c) Experience; Investment
Risk. The Registered Holder has made such inquiry concerning
the Company and its business and personnel as it has deemed appropriate; and the
Registered Holder has sufficient knowledge and experience in finance and
business, including without limitation, with regard to investment in non-listed
and non-registered securities, that it is capable of evaluating the risks and
merits of its investment in the Company, has evaluated the merits and risks of
such an investment, and recognizes the highly speculative nature of this
investment. The Registered Holder recognizes that the exercise of the
Warrants and the purchase of Warrant Shares involves a high degree of risk in
that (i) the Company will need additional capital but has no assurance of
additional necessary capital; (ii) an investment in the Company is highly
speculative and only investors who can afford the loss of their entire
investment should consider investing in the Company; (iii) an investor may
not be able to liquidate his or her investment; (iv) transferability of the
Warrant Shares is extremely limited; (v) an investor could sustain the loss
of his or her entire investment; and (vi) the Company is and will be
subject to numerous other risks and uncertainties, including without limitation,
significant and material risks relating to the Company’s business, and the
industries and markets in which the Company will compete and other matters
described in the Company’s reports filed with the United States Securities and
Exchange Commission.
5.Transfers,
etc.
(a) This
Warrant and the Warrant Shares shall not be sold or transferred unless either
(i) they first shall have been registered under the Act, or (ii) the Company
first shall have been furnished with an opinion of legal counsel, reasonably
satisfactory to the Company, in all respects, to the effect that such sale or
transfer is exempt from the registration requirements of the
Act. Notwithstanding the foregoing, no registration or opinion of
counsel shall be required for a transfer (without consideration and not in
satisfaction of any existing or contemplated legal obligation) by a Registered
Holder which is an entity to a wholly owned subsidiary of such entity, by a
Registered Holder which is a partnership to a partner of such partnership or to
the estate of any such partner, or by a Registered Holder which is a limited
liability company to a member of such limited liability company or to the estate
of any such member. As a condition to any transfer of this Warrant,
the transferee of this Warrant shall agree in writing to be subject to the terms
of this Warrant.
(b) Each
certificate representing Warrant Shares shall bear a legend substantially in the
following form:
"The
shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended. The shares have been acquired for
investment and may not be offered, sold or otherwise transferred in the absence
of an effective registration statement with respect to the shares or an
exemption from the registration requirements of said Act that is then applicable
to the shares, as to which a prior opinion of counsel may be required by the
issuer or the transfer agent."
By its acceptance hereof,
the Registered Holder is deemed to agree and acknowledge that the Company
is under no obligation to register the Warrant Shares under the Act or any other
applicable securities laws
(c) The
Company will maintain a register containing the name and address of the
Registered Holder of this Warrant. The Registered Holder may change
its address as shown on the warrant register by written notice to the Company
requesting such change.
5
(d) Subject
to the provisions of Section 5 hereof, this Warrant and all rights hereunder are
transferable, in whole or in part (but not for less than 5,000 Warrant Shares at
any time to any single transferee), 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).
6. No
Impairment. 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 reasonably necessary or
appropriate in order to protect the rights of the Registered Holder against
impairment.
7. Notices of 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,
then, and
in each such case, the Company will send or cause to be sent to the Registered
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.
6
9. Exchange or Replacement of
Warrants.
(a) Upon the
surrender by the Registered Holder, properly endorsed, to the Company at the
principal office of the Company of this Warrant, the Company will, subject to
the provisions of Section 5 hereof, issue and deliver to or upon the order of
the Registered Holder, at the Company's expense, a new Warrant or Warrants of
like tenor, in the name of the Registered Holder or as the Registered Holder
(upon payment by the Registered Holder of any applicable transfer taxes) may
direct in connection with the transfer of this Warrant in accordance with the
provisions of Section 5 hereof, 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 acceptable to the Company
(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. Agreement in Connection with
Public Offering. By its acceptance hereof, the Registered
Holder is deemed to agree, in connection with any public offering of the
Company's securities pursuant to a registration statement under the Act, (i) not
to sell, make short sale of, loan, grant any options for the purchase of, or
otherwise dispose of any shares of Common
Stock held by the Registered Holder (other than any shares included in
the offering) without the prior written consent of the Company or the
underwriters managing such initial underwritten public offering of the Company's
securities for a period of 214 days from the effective date of such registration
statement, and (ii) to execute any agreement reflecting clause (i) above as may
be requested by the Company or the managing underwriters at the time of such
offering.
11. Notices. All
notices and other communications from the Company to the Registered 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 Registered Holder in accordance with this
Section 11. All notices and other communications from the
Registered 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 below. If the Company
should at any time change the location of its principal office to a place other
than as set forth below, it shall give prompt written notice to the Registered
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
(i) two business days after being sent by certified or
registered mail, return receipt requested, postage prepaid, or (ii) one
business day after being sent via a reputable nationwide overnight courier
service guaranteeing next business day delivery.
7
12. No Rights as
Stockholder. Until the exercise of this Warrant, the
Registered Holder agrees, by its acceptance hereof, that it shall not
have or exercise any rights by virtue hereof as a stockholder of the
Company. Notwithstanding the foregoing, in the event (i) the Company
effects a split of the Common Stock by means of a stock dividend and the
Purchase Price of and the number of Warrant Shares are adjusted as of the date
of the distribution of the dividend (rather than as of the record date for such
dividend), and (ii) the Registered Holder exercises this Warrant between the
record date and the distribution date for such stock dividend, the Registered
Holder shall be entitled to receive, on the distribution date, the stock
dividend with respect to the shares of Common Stock acquired upon such exercise,
notwithstanding the fact that such shares were not outstanding as of the close
of business on the record date for such stock dividend.
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.
14. Section
Headings. The section headings in this Warrant are for the
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties.
15. Governing
Law. This Warrant will be governed by and construed in
accordance with the internal laws of the State of Nevada (without reference to
the conflicts of law provisions thereof).
16. Interpretation. As
the context requires, all terms used herein in the singular shall extend to and
include the plural, all terms used in the plural shall extend to and include the
singular, and all terms used in either gender or the neuter shall extend to the
other gender or be neutral. All pronouns contained herein, and any
variations thereof, shall be deemed to refer to the masculine, feminine or
neutral, singular or plural, as the identity of the parties hereto may
require.
17. Facsimile This
Warrant may be executed by facsimile signature.
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EXECUTED
as of the Date of Issuance indicated above.
| VeruTEK Technologies, Inc. | |||
|
|
By:
|
/s/ | |
| Name | |||
| Title | |||
9
PURCHASE
FORM
To:_________________ Dated:_________________
(1) The
undersigned, pursuant to the provisions set forth in the attached Warrant (No.
_____), hereby elects to purchase __________ shares of the Common Stock of
VeruTEK Technologies, Inc., a Nevada corporation, covered by such Warrant, and
tenders herewith payment of the exercise price in full, as applicable, together
with all applicable transfer taxes, if any.
(2) Payment
shall take the form of (check applicable box):
[ ] in lawful money of the
United States; or
[ ] the
cancellation of such number of Warrant Shares as is necessary, in accordance
with the formula set forth in subsection 1(a)(ii), to exercise this Warrant with
respect to the maximum number of Warrant Shares purchasable pursuant to the
cashless exercise procedure set forth in subsection 1(a)(ii).
Signature: :_________________
Address::
_________________
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EXHIBIT
II
ASSIGNMENT
FORM
FOR VALUE
RECEIVED, _______________________________________________, the undersigned
assignor, hereby sells, assigns and transfers all of the rights of
the undersigned assignor under the attached Warrant (No. ______) with respect to
the number of shares of Common Stock of VeruTEK Technologies, Inc., a Nevada
corporation (the “Company”), covered thereby set forth below, unto:
Name of
Assignee::_________________
Address
:_________________
No. of Shares
:_________________
__________
Attached
hereto is an opinion of counsel that the assignment does not violate or is
exempt from, any federal and state securities laws. The Company
may, in its sole discretion, decide whether such opinion is satisfactory, and
Assignee and Assignor agree to any reasonable delay in transfer caused by such
evaluation. The undersigned assignee represents that this Warrant and
the Warrant Shares to be issued upon exercise hereof are being acquired by such
assignee for investment and that such assignee will not offer, sell or otherwise
dispose of this Warrant or any Warrant Shares to be issued upon exercise hereof,
except under circumstances which will not result in a violation of the
Securities Act of 1933, as amended, or any applicable state securities
laws. Further, the undersigned assignee acknowledges that it agrees
to be subject to all of the terms of the Warrant as a “Registered Holder” and
that upon exercise of the Warrant, such assignee shall, if requested by the
Company, confirm in writing, in a form satisfactory to the Company, that the
Warrant Shares purchased are being acquired for investment and not with a view
toward distribution or resale in violation of applicable securities
laws.
ASSIGNEE: ASSIGNOR:
Dated::_________________ Dated: :_________________
Signature: :_________________
Signature: :_________________
Signature
Guaranteed:
:_________________
Signature Guaranteed: :_________________
By: :_________________ By:
:_________________
The
signatures should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee medallion program) pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
11
