EXHIBIT 4.1
WARRANT NO. 59
THIS WARRANT AND THE UNDERLYING SHARES OF COMMON STOCK HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
OTHER SECURITIES LAWS, HAVE BEEN TAKEN FOR INVESTMENT, AND MAY NOT BE SOLD OR
TRANSFERRED OR OFFERED FOR SALE OR TRANSFER UNLESS A REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND OTHER APPLICABLE SECURITIES LAWS WITH RESPECT TO
SUCH SECURITIES IS THEN IN EFFECT, OR IN THE OPINION OF COUNSEL TO THE ISSUER OF
THESE SECURITIES, SUCH REGISTRATION UNDER THE SECURITIES ACT AND OTHER
APPLICABLE SECURITIES LAWS IS NOT REQUIRED.
Date: JANUARY 20, 2006
FORM OF
WARRANT FOR THE PURCHASE OF SHARES OF
COMMON STOCK OF CYGENE LABORATORIES, INC.
THIS IS TO CERTIFY that, for value received, XXXXX XXX XXXXXXXX, his
successors and assigns (collectively, the "Holder"), is entitled to purchase,
subject to the terms and conditions hereinafter set forth, 650,000 shares of
CyGene Laboratories, Inc.'s, a Delaware corporation (the "Company") common
stock, $0.001 par value per share ("Common Stock"), and to receive certificates
for the Common Stock so purchased. The exercise price of the warrant is $0.50,
subject to adjustment as provided below.
1. EXERCISE PERIOD AND VESTING. This Warrant shall fully vest and
become exercisable by the Holder upon the earlier of (i) the effective date of
the Company's registration statement with the Securities and Exchange Commission
covering the shares of Common Stock underlying this Warrant or (ii) one year
from the issuance of this Warrant, with such exercise period ending at 5:00
p.m., New York, New York time, FIVE YEARS thereafter (the "Exercise Period").
This Warrant will terminate automatically and immediately upon the expiration of
the Exercise Period.
2. EXERCISE OF WARRANT; CASHLESS EXERCISE. This Warrant may be
exercised, in whole or in part, at any time and from time to time during the
Exercise Period. Such exercise shall be accomplished by tender to the Company of
the purchase price set forth above as the warrant price (the "Warrant Price"),
either (a) in cash, by wire transfer or by certified check or bank cashier's
check, payable to the order of the Company, or (b) by surrendering such number
of shares of Common Stock received upon exercise of this Warrant with a current
market price equal to the Warrant Price (a "Cashless Exercise"), together with
presentation and surrender to the Company of this Warrant with an executed
subscription in substantially the form attached hereto as Exhibit A (the
"Subscription"). Upon receipt of the foregoing, the Company will deliver to the
Holder, as promptly as possible, a certificate or certificates representing the
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WARRANT NO. 59
shares of Common Stock so purchased, registered in the name of the Holder or its
transferee (as permitted under Section 3 below). With respect to any exercise of
this Warrant, the Holder will for all purposes be deemed to have become the
holder of record of the number of shares of Common Stock purchased hereunder on
the date a properly executed Subscription and payment of the Warrant Price is
received by the Company (the "Exercise Date"), irrespective of the date of
delivery of the certificate evidencing such shares, except that, if the date of
such receipt is a date on which the stock transfer books of the Company are
closed, such person will be deemed to have become the holder of such shares at
the close of business on the next succeeding date on which the stock transfer
books are open. Fractional shares of Common Stock will not be issued upon the
exercise of this Warrant. In lieu of any fractional shares that would have been
issued but for the immediately preceding sentence, the Holder will be entitled
to receive cash equal to the Current Market Price of such fraction of a share of
Common Stock on the trading day immediately preceding the Exercise Date. In the
event this Warrant is exercised in part, the Company shall issue a new Warrant
to the Holder covering the aggregate number of shares of Common Stock as to
which this Warrant remains exercisable for.
If the Holder elects to conduct a Cashless Exercise, the Company shall
cause to be delivered to the Holder a certificate or certificates representing
the number of shares of Common Stock computed using the following formula:
X = Y (A-B)
-----
A
Where:
X = the number of shares of Common Stock to be issued
to Holder;
Y = the portion of the Warrant (in number of shares
of Common Stock) being exercised by Holder (at the
date of such calculation);
A = the fair market value of one share of Common
Stock on the Exercise Date (as calculated below);
and
B = Warrant Price (as adjusted to the date of such
calculation).
For purposes of the foregoing calculation, "fair market value of one
share of Common Stock on the Exercise Date" shall mean: (i) if the principal
trading market for such securities is a national securities exchange, the Nasdaq
National Market System, Nasdaq Small Cap Market or the Over-the-Counter Bulletin
Board ("OTCBB") (or a similar system then in use), the average last reported
sales price on the principal market for the 10 trading days immediately prior to
such Exercise Date; or (ii) if (i) is not applicable, and if bid and ask prices
for shares of Common Stock are reported by the principal trading market or the
National Quotation Bureau, the average of the high bid and low ask prices so
reported for the 10 trading days immediately prior to such Exercise Date.
Notwithstanding the foregoing, if there is no last reported sales price or bid
and ask prices, as the case may be, for the period in question, then the fair
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WARRANT NO. 59
market value of one share of Common Stock on the Exercise Date shall be
determined as of the latest 10 day period prior to such day for which such last
reported sales price or bid and ask prices, as the case may be, are available,
unless such securities have not been traded on an exchange or in the
over-the-counter market for 30 or more days immediately prior to the day in
question, in which case the Current Market Price shall be determined in good
faith by, and reflected in a formal resolution of, the board of directors of the
Company. The Company acknowledges and agrees that this Warrant was issued on the
Issuance Date.
3. TRANSFERABILITY AND EXCHANGE.
(a) This Warrant, and the Common Stock issuable upon the
exercise hereof, may not be sold, transferred, pledged or hypothecated unless
the Company shall have been provided with an opinion of the Company's counsel
that such transfer is not in violation of the Securities Act of 1933, and any
applicable state securities laws. Subject to the satisfaction of the aforesaid
condition, this Warrant and the underlying shares of Common Stock shall be
transferable from time to time by the Holder upon written notice to the Company.
If this Warrant is transferred, in whole or in part, the Company shall, upon
surrender of this Warrant to the Company, deliver to each transferee a Warrant
evidencing the rights of such transferee to purchase the number of shares of
Common Stock that such transferee is entitled to purchase pursuant to such
transfer. The Company may place a legend similar to the legend at the top of
this Warrant on any replacement Warrant and on each certificate representing
shares issuable upon exercise of this Warrant or any replacement Warrants. Only
a registered Holder may enforce the provisions of this Warrant against the
Company. A transferee of the original registered Holder becomes a registered
Holder only upon delivery to the Company of the original Warrant and an original
Assignment, substantially in the form set forth in Exhibit B attached hereto.
(b) This Warrant is exchangeable upon its surrender by the
Holder to the Company for new Warrants of like tenor and date representing in
the aggregate the right to purchase the number of shares purchasable hereunder,
each of such new Warrants to represent the right to purchase such number of
shares as may be designated by the Holder at the time of such surrender.
4. ADJUSTMENTS TO WARRANT PRICE AND NUMBER OF SHARES SUBJECT TO
WARRANT. The Warrant Price and the number of shares of Common Stock purchasable
upon the exercise of this Warrant are subject to adjustment from time to time
upon the occurrence of any of the events specified in this Section 4. For the
purpose of this Section 4, "Common Stock" means shares now or hereafter
authorized of any class of common stock of the Company and any other stock of
the Company, however designated, that has the right to participate in any
distribution of the assets or earnings of the Company without limit as to per
share amount (excluding, and subject to any prior rights of, any class or series
of preferred stock).
(a) In case the Company shall (i) pay a dividend or make a
distribution in shares of Common Stock to holders of shares of Common Stock,
(ii) split, subdivide its outstanding shares of Common Stock into a greater
number of shares, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares, or (iv) issue by reclassification of its shares of
Common Stock other securities of the Company, then the Warrant Price in effect
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WARRANT NO. 59
at the time of the record date for such dividend or on the effective date of
such split, subdivision, combination or reclassification, and/or the number and
kind of securities issuable on such date, shall be proportionately adjusted so
that the Holder of the Warrant thereafter exercised shall be entitled to receive
the aggregate number and kind of shares of Common Stock (or such other
securities other than Common Stock) of the Company, at the same aggregate
Warrant Price, that, if such Warrant had been exercised immediately prior to
such date, the Holder would have owned upon such exercise and been entitled to
receive by virtue of such dividend, distribution, split, subdivision,
combination or reclassification. Such adjustment shall be made successively
whenever any event listed above shall occur.
(b) In case the Company shall fix a record date for the making
of a distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the surviving corporation) of cash, evidences of indebtedness or
assets, or subscription rights or warrants, the Warrant Price to be in effect
after such record date shall be determined by multiplying the Warrant Price in
effect immediately prior to such record date by a fraction, the numerator of
which shall be the Current Market Price per share of Common Stock on such record
date, less the amount of cash so to be distributed or the fair market value (as
determined in good faith by, and reflected in a formal resolution of, the board
of directors of the Company) of the portion of the assets or evidences of
indebtedness so to be distributed, or of such subscription rights or warrants,
applicable to one share of Common Stock, and the denominator of which shall be
the Current Market Price, as defined, per share of Common Stock. Such adjustment
shall be made successively whenever such a record date is fixed; and in the
event that such distribution is not so made, the Warrant Price shall again be
adjusted to be the Warrant Price which would then be in effect if such record
date had not been fixed.
(c) For purposes of this Warrant "Current Market Price" shall
mean: (i) if the principal trading market for such securities is a national
securities exchange, the Nasdaq Stock Market or the Over-the-Counter Bulletin
Board ("OTCBB") (or a similar system then in use), the last reported sales or
closing price on the principal market; or (ii) if (i) is not applicable, and if
bid and asked prices for shares of Common Stock are reported by the National
Quotation Bureau, Inc., the average of the high bid and low asked prices.
Notwithstanding the foregoing, if there is no last reported sales or closing
price or bid and asked prices, as the case may be, for the period in question,
then the "Current Market Price" shall be determined in good faith by, and
reflected in a formal resolution of, the board of directors of the Company.
(d) Notwithstanding any provision herein to the contrary, no
adjustment in the Warrant Price shall be required unless such adjustment would
require an increase or decrease of at least 1% in the Warrant Price; provided,
however, that any adjustments which by reason of this subsection (d) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 4 shall be made to
the nearest cent or the nearest one-hundredth of a share, as the case may be.
(e) In the event that at any time, as a result of an
adjustment made pursuant to Section 4(a) above, the Holder of any Warrant
thereafter exercised shall become entitled to receive any shares of capital
stock of the Company other than shares of Common Stock, thereafter the number of
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WARRANT NO. 59
such other shares so receivable upon exercise of any Warrant shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the shares of Common Stock
contained in this Section 4, and the other provisions of this Warrant shall
apply on like terms to any such other shares.
(f) If the Company merges or consolidates into or with another
corporation or entity, or if another corporation or entity merges into or with
the Company (excluding such a merger in which the Company is the surviving or
continuing corporation and which does not result in any reclassification,
conversion, exchange, or cancellation of the outstanding shares of Common
Stock), or if all or substantially all of the assets or business of the Company
are sold or transferred to another corporation, entity, or person, then, as a
condition to such consolidation, merger, or sale (any "Transaction"), lawful and
adequate provision shall be made whereby the Holder shall have the right from
and after the Transaction to receive, upon exercise of this Warrant and upon the
terms and conditions specified herein and in lieu of the shares of the Common
Stock that would have been issuable if this Warrant had been exercised
immediately before the Transaction, such shares of stock, securities, or assets
as the Holder would have owned immediately after the Transaction if the Holder
had exercised this Warrant immediately before the effective date of the
Transaction.
(g) In case any event shall occur as to which the other
provisions of this Section 4 are not strictly applicable but the failure to make
any adjustment would not fairly protect the purchase rights represented by this
Warrant in accordance with the essential intent and principles hereof, then, in
each such case, the Company shall effect such adjustment, on a basis consistent
with the essential intent and principles established in this Section 4, as may
be necessary to preserve, without dilution, the purchase rights represented by
this Warrant.
5. REGISTRATION RIGHTS. The Holder shall be entitled to the benefits as
provided in the Registration Rights Agreement, which is attached hereto as
Exhibit C.
6. RESERVATION OF SHARES. The Company agrees at all times to reserve
and hold available out of its authorized but unissued shares of Common Stock the
number of shares of Common Stock issuable upon the full exercise of this
Warrant. The Company further covenants and agrees that all shares of Common
Stock that may be delivered upon the exercise of this Warrant will, upon
delivery, be fully paid and nonassessable and free from all taxes, liens and
charges with respect to the purchase thereof hereunder.
7. NOTICES TO HOLDER. Upon any adjustment of the Warrant Price (or
number of shares of Common Stock purchasable upon the exercise of this Warrant)
pursuant to Section 4, the Company shall promptly thereafter cause to be given
to the Holder written notice of such adjustment. Such notice shall include the
Warrant Price (and/or the number of shares of Common Stock purchasable upon the
exercise of this Warrant) after such adjustment, and shall set forth in
reasonable detail the Company's method of calculation and the facts upon which
such calculations were based. Where appropriate, such notice shall be given in
advance and included as a part of any notice required to be given under the
other provisions of this Section 7.
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WARRANT NO. 59
In the event of (a) any fixing by the Company of a record date with
respect to the holders of any class of securities of the Company for the purpose
of determining which of such holders are entitled to dividends or other
distributions, or any rights to subscribe for, purchase or otherwise acquire any
shares of capital stock of any class or any other securities or property, or to
receive any other right, (b) any capital reorganization of the Company, or
reclassification or recapitalization of the capital stock of the Company or any
transfer of all or substantially all of the assets or business of the Company
to, or consolidation or merger of the Company with or into, any other entity or
person, or (c) any voluntary or involuntary dissolution or winding up of the
Company, then and in each such event the Company will give the Holder a written
notice specifying, as the case may be (i) the record date for the purpose of
such dividend, distribution, or right, and stating the amount and character of
such dividend, distribution, or right; or (ii) the date on which any such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, conveyance, 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 capital stock or securities receivable upon the exercise of this
Warrant) shall be entitled to exchange their shares of Common Stock (or such
other stock securities) for securities or other property deliverable upon such
event. Any such notice shall be given at least 10 days prior to the earliest
date therein specified.
8. NO RIGHTS AS A STOCKHOLDER. This Warrant does not entitle the Holder
to any voting rights or other rights as a stockholder of the Company, nor to any
other rights whatsoever except the rights herein set forth.
The Company shall comply with the reporting requirements of Sections 13
and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") for so
long as and to the extent that such requirements apply to the Company.
The Company shall not, by amendment of its Certificate of Incorporation
or through any reorganization, transfer of assets, consolidation, merger,
dissolution, issuance 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. Without limiting the generality of the foregoing, the Company (a) will
at all times reserve and keep available, solely for issuance and delivery upon
exercise of this Warrant, shares of Common Stock issuable from time to time upon
exercise of this Warrant, (b) will not increase the par value of any shares of
Common Stock receivable upon exercise of this Warrant above the amount payable
therefor upon such exercise, and (c) will take all such actions as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and nonassessable stock.
9. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Company, the Holder and their respective successors
and permitted assigns.
10. NOTICES. The Company agrees to maintain a ledger of the ownership
of this Warrant (the "Ledger"). Any notice hereunder shall be given by Federal
Express or other overnight delivery service, or registered or certified mail if
to the Company, at its principal executive office and, if to the Holder, to its
address shown in the Ledger of the Company; provided, however, that either the
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WARRANT NO. 59
Company or the Holder may at any time on three days written notice to the other
designate or substitute another address where notice is to be given. Notice
shall be deemed given and received after a Federal Express or other overnight
delivery service is delivered to the carrier or a certified or registered
letter, properly addressed with postage prepaid, is deposited in the U.S. mail.
11. SEVERABILITY. Every provision of this Warrant is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the remainder of this
Warrant.
12. GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to the
principles of choice of laws thereof.
13. ATTORNEYS' FEES. In any action or proceeding brought to enforce any
provision of this Warrant, the prevailing party shall be entitled to recover
reasonable attorneys' fees in addition to its costs and expenses and any other
available remedies.
14. ENTIRE AGREEMENT. This Warrant (including the Exhibits attached
hereto) constitutes the entire understanding between the Company and the Holder
with respect to the subject matter hereof, and supersedes all prior
negotiations, discussions, agreements and understandings relating to such
subject matter.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
duly authorized officer as of the date first set forth above.
CyGene Laboratories, Inc.
By:
-----------------------
Xxxxxx Xxxxxx
Chief Executive Officer
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WARRANT NO. 59
Exhibit A
SUBSCRIPTION FORM
(To be Executed by the Holder to Exercise the Rights To Purchase Common Stock
Evidenced by the Within Warrant)
The undersigned hereby irrevocably subscribes for _______ shares of the
Common Stock (the "Stock") of CyGene Laboratories, Inc. (the "Company") pursuant
to and in accordance with the terms and conditions of the attached Warrant (the
"Warrant"), and hereby makes payment of $_______ therefor by [tendering cash,
wire transferring or delivering a certified check or bank cashier's check,
payable to the order of the Company] [surrendering _______ shares of Common
Stock received upon exercise of the Warrant, which shares have a current market
price equal to such payment as required in Section 2 of the Warrant]. The
undersigned requests that a certificate for the Stock be issued in the name of
the undersigned and be delivered to the undersigned at the address stated below.
If the Stock is not all of the shares purchasable pursuant to the Warrant, the
undersigned requests that a new Warrant of like tenor for the balance of the
remaining shares purchasable thereunder be delivered to the undersigned at the
address stated below.
In connection with the issuance of the Stock, I hereby represent to the
Company that I am acquiring the Stock for my own account for investment and not
with a view to, or for resale in connection with, a distribution of the shares
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act").
I understand that if at this time the Stock has not been registered
under the Securities Act, I must hold such Stock indefinitely unless the Stock
is subsequently registered and qualified under the Securities Act or is exempt
from such registration and qualification. I shall make no transfer or
disposition of the Stock unless (a) such transfer or disposition can be made
without registration under the Securities Act by reason of a specific exemption
from such registration and such qualification, or (b) a registration statement
has been filed pursuant to the Securities Act and has been declared effective
with respect to such disposition. I agree that each certificate representing the
Stock delivered to me shall bear substantially the same as set forth on the
front page of the Warrant.
I further agree that the Company may place stop transfer orders with
its transfer agent same effect as the above legend. The legend and stop transfer
notice referred to above shall be removed only upon my furnishing to the Company
of an opinion of counsel (reasonably satisfactory to the Company) to the effect
that such legend may be removed.
Date:_______________________________ Signed: ______________________________
Print Name:___________________________
Address:______________________________
A-1
WARRANT NO. 59
Exhibit B
ASSIGNMENT
(To be Executed by the Holder to Effect Transfer of the Attached Warrant)
For Value Received __________________________ hereby sells, assigns and
transfers to _________________________ the Warrant attached hereto and the
rights represented thereby to purchase _________ shares of Common Stock in
accordance with the terms and conditions hereof, and does hereby irrevocably
constitute and appoint ___________________________ as attorney to transfer such
Warrant on the books of the Company with full power of substitution.
Dated:________________________ Signed: _____________________________
Please print or typewrite Please insert Social Security
name and address of or other Tax Identification
assignee: Number of Assignee:
B-1
WARRANT NO. 59
Exhibit C
EXECUTED REGISTRATION RIGHTS AGREEMENT
(To be attached.)
C-1
