AMENDMENT NO. 5 TO WARRANT AND PUT OPTION AGREEMENT
This AMENDMENT NO. 5 (the "Fifth Amendment ") to the WARRANT AND PUT OPTION
AGREEMENT (the "Agreement") originally dated as of November 30, 2006, by and
between Gian Xxxxx Xxxxxxxxxx-Buitoni (the "Lead Investor"), and Xenomics, Inc.
(the "Company"), as amended August 29, 2007, October 30, 2007, February 25,
2008, and April 11, 2008, is dated as of May 15, 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 and April 11, 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 June 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. 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 June 1, 2008,
by June 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."
2. 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 Paragraph 1 herein and other than the Warrants underlying the
Maximum Put Option, which the Company may "put" to the Lead Investor pursuant to
Paragraph 1 hereof.
3. (A) This Fifth 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 and 4 are in all respects ratified and confirmed. This
Fifth Amendment replaces and substitutes for the Fourth Amendment dated as of
April 11, 2008. On and after the date of this Fifth 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 Fifth Amendment. Capitalized terms not otherwise defined
herein are given the meaning ascribed to them as set forth in the Agreement.
(C) This Fifth 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.
4. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Fifth Amendment as of
the date stated above.
LEAD INVESTOR
By:
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Gian Xxxxx Xxxxxxxxxx-Buitoni
XENOMICS, INC.
By:
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Name: Gian Xxxxx Xxxxxxxxxx-Buitoni
Title: Executive Chairman
