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AMENDMENT NO. 6 TO WARRANT AND PUT OPTION AGREEMENT
This AMENDMENT NO. 6 (the "Sixth 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, and May 15, 2008 is dated May 30, 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 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 June 16, 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 16,
2008, by June 17, 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 Sixth 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 and 5 are in all respects ratified and confirmed. This Sixth Amendment
replaces and substitutes for the Fifth Amendment dated as of May 15, 2008. On
and after the date of this Sixth 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
Sixth 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 Sixth 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Sixth Amendment as of
the date stated above.
LEAD INVESTOR
By: /s/ Gian Xxxxx Xxxxxxxxxx-Buitoni
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Gian Xxxxx Xxxxxxxxxx-Buitoni
XENOMICS, INC.
By: /s/ Gian Xxxxx Xxxxxxxxxx-Buitoni
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Name: Gian Xxxxx Xxxxxxxxxx-Buitoni
Title: Executive Chairman
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