Exhibit 4.4
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT") OR ANY OTHER APPLICABLE STATE SECURITIES
LAWS. NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE
HEREOF MAY BE SOLD, PLEDGED, TRANSFERRED, ENCUMBERED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR IN A TRANSACTION WHICH IS EXEMPT
FROM REGISTRATION UNDER THE PROVISIONS OF THE SECURITIES ACT OR ANY
APPLICABLE STATE LAWS. THIS WARRANT MAY NOT BE EXERCISED BY OR ON
BEHALF OF A UNITED STATES PERSON UNLESS REGISTERED UNDER THE
SECURITIES ACT OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
STOCK PURCHASE WARRANT
To Purchase up to 500,000 Shares of Common Stock of
BIOPHAN TECHNOLOGIES, INC.
THIS CERTIFIES that, for value received, Biomed Solutions, LLC and
its assigns (the "Holder") is entitled, upon the terms and subject to
the limitations on exercise and the conditions hereinafter set forth,
at any time during the Exercise Period (as hereinafter defined), at the
Exercise Price (as hereinafter defined), to subscribe for and purchase
from Biophan Technologies, Inc., a corporation incorporated in the
State of Nevada (the "Company"), up to 500,000 shares (the "Warrant
Shares") of Common Stock, $.005 par value, of the Company (the "Common
Stock"). The Exercise Price and the number of shares for which the
Warrant is exercisable shall be subject to adjustment as provided
herein.
1. Exercise Period. This Warrant shall be exercisable (the
"Exercise Period") commencing on the date hereof and terminating at
5:00 p.m. New York time on November 7, 2007.
2. Exercise Price. Subject to adjustment as provided herein,
the per share price at which this Warrant may be exercised (the
"Exercise Price") shall be $.50 per share.
3. Title to Warrant. During the Exercise Period and subject to
compliance with applicable laws, this Warrant and all rights hereunder
are transferable, in whole or in part, at the office or agency of the
Company by the holder hereof in person or by duly authorized attorney,
upon surrender of this Warrant together with the Assignment Form
annexed hereto properly endorsed.
4. Authorization of Shares. The Company covenants that all
shares of Common Stock which may be issued upon the exercise of the
purchase rights represented by this Warrant will, upon exercise of the
purchase rights represented by this Warrant, be duly authorized,
validly issued, fully paid and nonassessable and free from all taxes,
liens and charges in respect of the issue thereof (other than taxes in
respect of any transfer occurring contemporaneously with such issue).
5. Registration Rights. The Warrant Shares shall be registered
under the Securities Act, to the extent provided in the Registration
Rights Agreement of even date herewith, by and between the Company and
the Holder of this Warrant.
6. Exercise of Warrant.
(a) purchase rights represented by this Warrant may be
made at any time or times during the Exercise Period, by the surrender
of this Warrant and the Notice of Exercise Form annexed hereto duly
executed, at the office of the Company (or such other office or agency
of the Company as it may designate by notice in writing to the
registered holder hereof at the address of such holder appearing on the
books of the Company) and upon payment of the Exercise Price of the
shares thereby purchased by wire transfer or cashier's check drawn on a
United States bank, the holder of this Warrant shall be entitled to
receive a certificate for the number of shares of Common Stock so
purchased. Certificates for shares purchased hereunder shall be
delivered to the holder hereof within five Trading Days after the date
on which this Warrant shall have been exercised as aforesaid. This
Warrant shall be deemed to have been exercised and such certificate or
certificates shall be deemed to have been issued, and Holder or any
other person so designated to be named therein shall be deemed to have
become a holder of record of such shares for all purposes, as of the
date the Warrant has been exercised by payment to the Company of the
Exercise Price and all taxes required to be paid by Holder, if any,
pursuant to Section 8 prior to the issuance of such shares, have been
paid.
(b) If this Warrant shall have been exercised in part, the
Company shall, at the time of delivery of the certificate or
certificates representing Warrant Shares, deliver to Holder a new
Warrant evidencing the rights of Holder to purchase the unpurchased
shares of Common Stock called for by this Warrant, which new Warrant
shall in all other respects be identical with this Warrant.
7. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of
this Warrant. As to any fraction of a share that Holder would
otherwise be entitled to purchase upon such exercise, the Company shall
pay a cash adjustment in respect of such final fraction in an amount
equal to such fraction multiplied by the Exercise Price.
8. Charges, Taxes and Expenses. Issuance of certificates for
shares of Common Stock upon the exercise of this Warrant shall be made
without charge to the holder hereof for any issue or transfer tax or
other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be paid by the
Company, and such certificates shall be issued in the name of the
holder of this Warrant or in such name or names as may be directed by
the holder of this Warrant; provided, however, that in the event
certificates for shares of Common Stock are to be issued in a name
other than the name of the holder of this Warrant, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form
attached hereto duly executed by the holder hereof; and the Company may
require, as a condition thereto, the payment of a sum sufficient to
reimburse it for any transfer tax incidental thereto.
9. Closing of Books. The Company will not close its stockholder
books or records in any manner which prevents the timely exercise of
this Warrant.
Transfer, Division and Combination.
(a) Subject to compliance with any applicable securities
laws, transfer of this Warrant and all rights hereunder, in whole or in
part, shall be registered on the books of the Company to be maintained
for such purpose, upon surrender of this Warrant at the principal
office of the Company, together with a written assignment of this
Warrant substantially in the form attached hereto duly executed by
Holder or its agent or attorney and funds sufficient to pay any
transfer taxes payable upon the making of such transfer. In the event
that the Holder wishes to transfer a portion of this Warrant, the
Holder shall transfer at least 50,000 shares underlying this Warrant to
any such transferee. Upon such surrender and, if required, such
payment, the Company shall execute and deliver a new Warrant or
Warrants in the name of the assignee or assignees and in the
denomination or denominations specified in such instrument of
assignment, and shall issue to the assignor a new Warrant evidencing
the portion of this Warrant not so assigned, and this Warrant shall
promptly be cancelled. A Warrant, if properly assigned, may be
exercised by a new holder for the purchase of shares of Common Stock
without having a new Warrant issued.
(b) This Warrant may be divided or combined with other
Warrants upon presentation hereof at the aforesaid office of the
Company, together with a written notice specifying the names and
denominations in which new Warrants are to be issued, signed by Holder
or its agent or attorney. Subject to compliance with Section 10(a), as
to any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in
exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice.
(c) The Company shall prepare, issue and deliver at its
own expense (other than transfer taxes) the new Warrant or Warrants
under this Section 10.
(d) The Company agrees to maintain, at its aforesaid
office, books for the registration and the registration of transfer of
the Warrants.
11. No Rights as Shareholder until Exercise. This Warrant does
not entitle the holder hereof to any voting rights or other rights as a
shareholder of the Company prior to the exercise hereof. Upon the
surrender of this Warrant and the payment of the aggregate Exercise
Price, the Warrant Shares so purchased shall be and be deemed to be
issued to such holder as the record owner of such shares as of the
close of business on the later of the date of such surrender or
payment.
12. Loss, Theft, Destruction or Mutilation of Warrant. The
Company covenants that upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant certificate or any stock certificate
relating to the Warrant Shares, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it
(which may include the posting of any bond), and upon surrender and
cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of
like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
13. Saturdays, Sundays, Holidays, etc. If the last or appointed
day for the taking of any action or the expiration of any right
required or granted herein shall be a Saturday, Sunday or a legal
holiday, then such action may be taken or such right may be exercised
on the next succeeding day not a Saturday, Sunday or legal holiday.
14. Adjustments of Exercise Price and Number of Warrant Shares.
The number and kind of securities purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment from time
to time upon the happening of any of the following. In case the
Company shall (a) pay a dividend in shares of Common Stock or make a
distribution in shares of Common Stock to holders of its outstanding
Common Stock, (b) subdivide its outstanding shares of Common Stock into
a greater number of shares of Common Stock, (c) combine its outstanding
shares of Common Stock into a smaller number of shares of Common Stock,
or (d) issue any shares of its capital stock in a reclassification of
the Common Stock, then the number of Warrant Shares purchasable upon
exercise of this Warrant immediately prior thereto shall be adjusted so
that the holder of this Warrant shall be entitled to receive the kind
and number of Warrant Shares or other securities of the Company which
he would have owned or have been entitled to receive had such Warrant
been exercised in advance thereof. Upon each such adjustment of the
kind and number of Warrant Shares or other securities of the Company
which are purchasable hereunder, the holder of this Warrant shall
thereafter be entitled to purchase the number of Warrant Shares or other
securities resulting from such adjustment at an Exercise Price per
Warrant Share or other security obtained by multiplying the Exercise
Price in effect immediately prior to such adjustment by the number of
Warrant Shares purchasable pursuant hereto immediately prior to such
adjustment and dividing by the number of Warrant Shares or other
securities of the Company resulting from such adjustment. An adjustment
made pursuant to this paragraph shall become effective immediately
after the effective date of such event retroactive to the record date,
if any, for such event.
15. Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets. In case the Company shall reorganize its
capital, reclassify its capital stock, consolidate or merge with or
into another corporation (where the Company is not the surviving
corporation or where there is a change in or distribution with respect
to the Common Stock of the Company), or sell, transfer or otherwise
dispose of all or substantially all its property, assets or business to
another corporation and, pursuant to the terms of such reorganization,
reclassification, merger, consolidation or disposition of assets,
shares of common stock of the successor or acquiring corporation, or
any cash, shares of stock or other securities or property of any nature
whatsoever (including warrants or other subscription or purchase
rights) in addition to or in lieu of common stock of the successor or
acquiring corporation ("Other Property"), are to be received by or
distributed to the holders of Common Stock of the Company, then Holder
shall have the right thereafter to receive, upon exercise of this
Warrant, the number of shares of common stock of the successor or
acquiring corporation or of the Company, if it is the surviving
corporation, and Other Property receivable upon or as a result of such
reorganization, reclassification, merger, consolidation or disposition
of assets by a holder of the number of shares of Common Stock for which
this Warrant is exercisable immediately prior to such event. In case
of any such reorganization, reclassification, merger, consolidation or
disposition of assets, the successor or acquiring corporation (if other
than the Company) shall expressly assume the due and punctual
observance and performance of each and every covenant and condition of
this Warrant to be performed and observed by the Company and all the
obligations and liabilities hereunder, subject to such modifications as
may be deemed appropriate (as determined in good faith by resolution of
the Board of Directors of the Company) in order to provide for
adjustments of shares of Common Stock for which this Warrant is
exercisable which shall be as nearly equivalent as practicable to the
adjustments provided for in this Section 15. For purposes of this
Section 15, "common stock of the successor or acquiring corporation"
shall include stock of such corporation of any class which is not
preferred as to dividends or assets over any other class of stock of
such corporation and which is not subject to redemption and shall also
include any evidences of indebtedness, shares of stock or other
securities which are convertible into or exchangeable for any such
stock, either immediately or upon the arrival of a specified date or
the happening of a specified event and any warrants or other rights to
subscribe for or purchase any such stock. The foregoing provisions of
this Section 15 shall similarly apply to successive reorganizations,
reclassifications, mergers, consolidations or disposition of assets.
16. Notice of Adjustment. Whenever the number of Warrant Shares
or number or kind of securities or other property purchasable upon the
exercise of this Warrant or the Exercise Price is adjusted, as herein
provided, the Company shall promptly mail by registered or certified
mail, return receipt requested, to the holder of this Warrant notice of
such adjustment or adjustments setting forth the number of Warrant
Shares (and other securities or property) purchasable upon the exercise
of this Warrant and the Exercise Price of such Warrant Shares (and
other securities or property) after such adjustment, setting forth a
brief statement of the facts requiring such adjustment and setting
forth the computation by which such adjustment was made. Such notice,
in the absence of manifest error, shall be conclusive evidence of the
correctness of such adjustment.
17. Notice of Corporate Action. If at any time:
(a) the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend or
other distribution, or any right to subscribe for or purchase any
evidences of its indebtedness, any shares of stock of any class or any
other securities or property, or to receive any other right, or
(b) there shall be any capital reorganization of the
Company, any reclassification or recapitalization of the capital stock
of the Company or any consolidation or merger of the Company with, or
any sale, transfer or other disposition of all or substantially all the
property, assets or business of the Company to, another corporation or,
(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to
Holder (i) at least 10 days' prior written notice of the date on which
a record date shall be selected for such dividend, distribution or
right and (ii) in the case of any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up, at least 10 days' prior written
notice of the date when the same shall take place. Such notice in
accordance with the foregoing clause also shall specify (1) the date on
which any such record is to be taken for the purpose of such dividend,
distribution or right, the date on which the holders of Common Stock
shall be entitled to any such dividend, distribution or right, and the
amount and character thereof, and (2) the date on which any such
reorganization, reclassification, merger, consolidation, sale,
transfer, disposition, dissolution, liquidation or winding up is to
take place and the time, if any such time is to be fixed, as of which
the holders of Common Stock shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable upon such
disposition, dissolution, liquidation or winding up. Each such written
notice shall be sufficiently given if addressed to Holder at the last
address of Holder appearing on the books of the Company and delivered
in accordance with Section 19(d).
18. Authorized Shares. The Company covenants that during the
period the Warrant is outstanding, it will reserve from its authorized
and unissued Common Stock a sufficient number of shares to provide for
the issuance of the Warrant Shares upon the exercise of any purchase
rights under this Warrant. The Company further covenants that its
issuance of this Warrant shall constitute full authority to its
officers who are charged with the duty of executing stock certificates
to execute and issue the necessary certificates for the Warrant Shares
upon the exercise of the purchase rights under this Warrant. The
Company will take all such reasonable action as may be necessary to
assure that such Warrant Shares may be issued as provided herein
without violation of any applicable law or regulation, or of any
requirements of the Principal Market upon which the Common Stock may
be listed.
The Company shall not by any action, including, without limitation,
amending its articles of incorporation 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 actions as may be necessary or
appropriate to protect the rights of Holder against impairment.
Without limiting the generality of the foregoing, the Company will (a)
not increase the par value of any shares of Common Stock receivable
upon the exercise of this Warrant above the amount payable therefor
upon such exercise immediately prior to such increase in par value, (b)
take all such action as may be necessary or appropriate in order that
the Company may validly and legally issue fully paid and nonassessable
shares of Common Stock upon the exercise of this Warrant, and (c) use
commercially reasonable efforts to obtain all such authorizations,
exemptions or consents from any public regulatory body having
jurisdiction thereof as may be necessary to enable the Company to
perform its obligations under this Warrant.
Before taking any action which would result in an adjustment in the
number of shares of Common Stock for which this Warrant is exercisable
or in the Exercise Price, the Company shall obtain all such
authorizations or exemptions thereof, or consents thereto, as may be
necessary from any public regulatory body or bodies having jurisdiction
thereof.
Miscellaneous.
(a) Jurisdiction. This Warrant shall be binding upon any
successors or assigns of the Company. This Warrant shall constitute a
contract under the laws of New York, without regard to its conflict of
law, principles or rules, and be subject to arbitration pursuant to the
terms set forth in the Purchase Agreement.
(b) Restrictions. The holder hereof acknowledges that the
Warrant Shares acquired upon the exercise of this Warrant, if not
registered, will have restrictions upon resale imposed by state and
federal securities laws.
(c) Nonwaiver. No course of dealing or any delay or
failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice Holder's
rights, powers or remedies, notwithstanding all rights hereunder
terminate on the Termination Date.
(d) Notices. Any notice, request or other document
required or permitted to be given or delivered to the holder hereof by
the Company shall be delivered in accordance with the notice provisions
of the Purchase Agreement.
(e) Limitation of Liability. No provision hereof, in the
absence of affirmative action by Holder to purchase shares of Common
Stock, and no enumeration herein of the rights or privileges of Holder
hereof, shall give rise to any liability of Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether
such liability is asserted by the Company or by creditors of the
Company.
(f) Remedies. Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant.
(g) Successors and Assigns. Subject to applicable
securities laws, this Warrant and the rights and obligations evidenced
hereby shall inure to the benefit of and be binding upon the successors
of the Company and the successors and permitted assigns of Holder. The
provisions of this Warrant are intended to be for the benefit of all
Holders from time to time of this Warrant and shall be enforceable by
any such Holder or holder of Warrant Shares.
(h) Amendment. This Warrant may be modified or amended or
the provisions hereof waived with the written consent of the Company
and the Holder.
(i) Severability. Wherever possible, each provision of
this Warrant shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Warrant shall
be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
(j) Headings. The headings used in this Warrant are for
the convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed by its officer thereunto duly authorized.
Dated: November 11, 2002
BIOPHAN TECHNOLOGIES, INC.
By:___________________________________
Xxxxxx X. Xxxx, Chief Financial
Officer
AGREED TO AND ACCEPTED BY:
Biomed Solutions, LLC
By:______________________________
Xxxxxxx X. Xxxxxx, Manager
NOTICE OF EXERCISE
To: Biophan Technologies, Inc.
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
(1) The undersigned hereby elects to purchase ________ shares
of Common Stock (the "Common Stock") of Biophan Technologies, Inc.
pursuant to the terms of the attached Warrant, and tenders herewith
payment of the exercise price in full, together with all applicable
transfer taxes, if any.
(2) Please issue a certificate or certificates representing
said shares of Common Stock in the name of the undersigned or in such
other name as is specified below:
______________________________
(Name)
______________________________
(Address)
______________________________
Dated:
Biomed Solutions, LLC
By:___________________
Signature
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights
evidenced thereby are hereby assigned to
_______________________________________________ whose address is
_______________________________________________________________.
_______________________________________________________________
Dated: ______________, _______
Holder's Signature:_____________________________
Holder's Address:_____________________________
_____________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the
name as it appears on the face of the Warrant, without alteration or
enlargement or any change whatsoever, and must be guaranteed by a bank
or trust company. Officers of corporations and those acting in a
fiduciary or other representative capacity should file proper evidence
of authority to assign the foregoing Warrant.
