Exhibit 99.3
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS, SUPPORTED BY AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO
THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
BOSTON LIFE SCIENCES, INC.
Form of Warrant to Purchase
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Common Stock
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No. BLSI - [INSERT NUMBER] [INSERT NUMBER] Shares
FOR VALUE RECEIVED, BOSTON LIFE SCIENCES, INC., a Delaware corporation (the
"Company"), hereby certifies that [INSERT NAME], or its permitted assigns, is
entitled to purchase from the Company, at any time or from time to time,
commencing on March 11, 2002 (the "Initial Exercise Date"), [INSERT NUMBER]
fully paid and non-assessable shares of the Common Stock, $.01 par value per
share, of the Company. This Warrant shall expire at 5:00 P.M., New York City
time, on March 11, 2007 (the "Termination Date"), and is exercisable for [INSERT
NUMBER] fully paid and non-assessable shares of the Common Stock, $.01 par
value per share, of the Company for an aggregate purchase price of [INSERT
NUMBER] computed on the basis of $2.75 per share. Hereinafter, (i) said Common
Stock, together with any other equity securities which may be issued by the
Company with respect thereto or in substitution therefor, is referred to as the
"Common Stock", (ii) the shares of Common Stock purchasable hereunder or under
any other Warrant (as hereinafter defined) are referred to as the "Warrant
Shares", (iii) the aggregate purchase price payable for the Warrant Shares
hereunder is referred to as the "Aggregate Warrant Price", (iv) the price
payable for each of the Warrant Shares hereunder is referred to as the "Per
Share Warrant Price", (v) this Warrant and all warrants hereafter issued in
exchange or substitution for this Warrant are referred to as the "Warrants" and
(vi) the holder of this Warrant is referred to as the "Holder" and the holder
of this Warrant and all other Warrants or Warrant Shares issued upon the
exercise of any Warrant are referred to as the "Holders"). The Aggregate
Warrant Price is not subject to adjustment. The Per Share Warrant Price is
subject to adjustment as hereinafter provided; in the event of any such
adjustment, the number of Warrant Shares shall be adjusted by dividing the
Aggregate Warrant Price by the Per Share Warrant Price in effect immediately
after such adjustment.
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1. Exercise of Warrant
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(a) This Warrant may be exercised, in whole at any time or in
part from time to time, commencing on the Initial Exercise Date and prior to
5:00 P.M., New York City time, on the Termination Date, by the Holder by the
surrender the original copy of this Warrant (with the election to exercise form
at the end hereof fully completed and duly executed) to the Company at the
address set forth in Subsection 9(a) hereof (an "Exercise"), together with
proper payment of the Aggregate Warrant Price, or the proportionate part
thereof if this Warrant is exercised in part. Payment for the Warrant Shares
shall be made by certified or official bank check payable to the order of the
Company.
(b) Upon each Exercise of the Holder's rights to purchase
Warrant Shares, the Holder shall be deemed to be the holder of record of the
Warrant Shares issuable upon such Exercise, notwithstanding that the transfer
books of the Company shall then be closed or certificates representing such
Warrant Shares shall not then have been actually delivered to the Holder. If
this Warrant is exercised in part, this Warrant must be exercised for a number
of whole shares of Common Stock and the Holder is entitled to receive a new
Warrant covering the Warrant Shares which have not been exercised and setting
forth the proportionate part of the Aggregate Warrant Price applicable to such
Warrant Shares. Upon surrender of this Warrant, the Company will (i) issue a
certificate or certificates in the name of the Holder for the largest number of
whole shares of Common Stock to which the Holder shall be entitled and, if this
Warrant is exercised in whole, in lieu of any fractional shares of Common Stock
to which the Holder shall be entitled, pay to the Holder cash in an amount
equal to the fair value of such fractional shares (determined in such
reasonable manner as the Company shall determine), and (ii) deliver the other
securities and properties receivable upon the Exercise of this Warrant, if any,
or the proportionate part thereof if this Warrant is exercised in part,
pursuant to the provisions of this Warrant.
2. Reservation of Warrant Shares; Listing. The Company agrees that,
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prior to the expiration of this Warrant, the Company will at all times (a)
have authorized and in reserve, and will keep available, solely for issuance or
delivery upon the Exercise of this Warrant, the maximum amount of shares of
Common Stock and other securities and properties as from time to time shall be
receivable upon the Exercise of this Warrant, free and clear of all
restrictions on sale or transfer, except for the restrictions on sale or
transfer set forth in the Securities Act of 1933, as amended (the "Act"), and
restrictions created by or on behalf of the Holder, and free and clear of all
preemptive rights and rights of first refusal; and (b) cause the Warrant Shares
to be listed on the securities exchange, quotation market or over-the-counter
bulletin board on which the Common Stock is then listed.
3. Adjustments.
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(a) In case the Company shall hereafter (i) pay a dividend or
make a distribution on its capital stock in shares of Common Stock, (ii)
subdivide its outstanding shares of Common Stock into a great number of shares,
(iii) combine its outstanding shares of Common Stock into a smaller number of
shares or (iv) issue by reclassification of its Common Stock any shares of
capital stock of the Company, the Per Share Warrant Price shall be adjusted to
be equal to a fraction, the numerator of which shall be the Aggregate Warrant
Price and the denominator of which shall be the number of shares of Common
Stock and/or other capital stock of the Company which he would have owned
immediately following such action had such Warrant been exercised immediately
prior thereto. An adjustment made pursuant to this subsection shall become
effective immediately after the record date in the case of a dividend or
distribution and
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shall become effective immediately after the effective date in the case of a
subdivision, combination or reclassification.
(b) If the Company at any time or from time to time makes, or
fixes a record date for the determination of holders of Common Stock entitled
to receive, a dividend or other distribution payable in securities of the
Company other than shares of Common Stock, in each such event provision shall
be made so that the Holder receives upon Exercise of this Warrant, in addition
to the number of shares of Common Stock receivable thereupon, the amount of
other securities of the Company which the Holder would have received had this
Warrant been exercised on the date of such event and had the Holder thereafter,
during the period from the date of such event to and including the Exercise
date, retained such securities receivable by the Holder as aforesaid during
such period, subject to all other adjustments called for during such period
under this Section 3 with respect to the rights of the Holder or with respect
to such other securities by their terms.
(c) In case of any capital reorganization, reclassification or
similar transaction (except a transaction provided for in Section 3(a)), any
consolidation or merger to which the Company is a party, any sale or conveyance
to another entity of the property of the Company as an entirety or
substantially as an entirety for consideration consisting primarily of
securities, or any statutory exchange of securities with another corporation
(including any exchange effected in connection with a merger of a third
corporation into the Company), the Holder shall have the right thereafter to
receive on the Exercise of this Warrant the kind and maximum amount of
securities, cash or other property which the Holder would have owned or have
been entitled to receive immediately after such transaction had this Warrant
been exercised immediately prior to the effective date of such transaction and
in any such case, if necessary, appropriate adjustment shall be made in the
application of the provisions set forth in this Section 3 with respect to the
rights and interests thereafter of the Holder of this Warrant to the end that
the provisions set forth in this Section 3 shall thereafter correspondingly be
made applicable, as nearly as may reasonably be, in relation to any shares or
other securities or property thereafter deliverable on the Exercise of this
Warrant. The above provisions of this subsection shall similarly apply to
successive transactions of the type described in this subsection. The issuer
of any shares of stock or other securities or property thereafter deliverable
on the Exercise of this Warrant shall be responsible for all of the agreements
and obligations of the Company hereunder, and the Company shall ensure that
such issuer executes an agreement with the Holder providing that the Holder has
the rights thereafter to receive upon Exercise of this Warrant such shares,
securities or property.
(d) No adjustment in the Per Share Warrant Price shall be
required unless such adjustment would require an increase or decrease of at
least $0.05 per share of Common Stock; provided, however, that any adjustments
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which by reason of this subsection are not required to be made shall be carried
forward and taken into account in any subsequent adjustment; provided, further,
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however, that adjustments shall be required and made in accordance with the
provisions of this Section 3 (other than this subsection) not later than such
times as may be required in order to preserve the tax-free nature of a
distribution to the Holder of this Warrant or the Holder of Common Stock
issuable upon the Exercise hereof. All calculations under this Section 3 shall
be made to the nearest cent or to the nearest 1/100th of a share, as the case
may be.
(e) Upon the occurrence of each adjustment or readjustment of
the Per Share Warrant Price pursuant to this Section 3, the Company, at its
expense, promptly shall compute such adjustment or readjustment in accordance
with the terms hereof and prepare and furnish
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to the Holder a certificate executed by an officer of the Company setting forth
such adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Company shall, upon the written
request at any time of the Holder, furnish or cause to be furnished to the
Holder a like certificate setting forth (i) such adjustments and readjustments,
(ii) the Per Share Warrant Price at the time in effect, and (iii) the number of
shares of Common Stock and the amount, if any, of other property which at the
time would be received upon Exercise of this Warrant.
(f) In case at any time the Company shall propose to:
(i) pay any dividend or make any distribution on
shares of Common Stock in shares of Common Stock or make any other
distribution (other than regularly scheduled cash dividends which are not
in a greater amount per share than the most recent such cash dividend) to
all holders of Common Stock;
(ii) issue any rights, warrants, or other
securities to all holders of Common Stock entitling them to purchase any
additional shares of Common Stock or any other rights, warrants, or other
securities;
(iii) effect any transaction described in described
in Section 3(c) hereof;
(iv) effect any liquidation, dissolution, or
winding-up of the Company;
(v) take any other action which would cause an
adjustment to the Per Share Warrant Price;
then, and in any one or more of such cases, the Company
shall give written notice thereof, to the Holder at the Holder's address as it
shall appear on the books of the Company, at least 15 days prior to (i) the
date as of which the holders of record of shares of Common Stock to be entitled
to receive any such dividend, distribution, rights, warrants, or other
securities are to be determined, (ii) the date on which any such transaction
described in Section 3(c), liquidation, dissolution, or winding-up is expected
to become effective, and the date as of which it is expected that holders of
record of shares of Common Stock shall be entitled to exchange their shares for
securities or other property, if any, deliverable upon such transaction,
liquidation, dissolution, or winding-up, or (iii) the date of such other action
which would require an adjustment to the Per Share Warrant Price.
(g) If, as a result of an adjustment made pursuant to this
Section 3, the Holder of any Warrant thereafter surrendered for Exercise shall
become entitled to receive shares of two or more classes of capital stock or
shares of Common Stock and other capital stock of the Company, the Board of
Directors (whose determination shall be conclusive and shall be described in a
written notice to the Holder of any Warrant promptly after such adjustment)
shall determine the allocation of the adjusted Per Share Warrant Price between
or among shares or such classes of capital stock or shares of Common Stock and
other capital stock.
4. Fully Paid Stock; Taxes. The Company covenants that all shares of
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Common Stock are validly authorized and, if and when this Warrant is exercised
in whole or in part in accordance with the terms hereof, the shares of Common
Stock issued upon such Exercise, upon receipt by the Company of the full Per
Share Warrant Price therefor, shall be validly issued, fully
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paid, nonassessable, and will not be issued in violation of any preemptive
rights or other rights of stockholders, and the Company will take all such
actions as may be necessary to assure that the par value or stated value, if
any, per share of the Common Stock is at all times equal to or less than the
then Per Share Warrant Price. The Company further covenants and agrees that it
will pay, when due and payable, any and all Federal and State stamp, original
issue or similar taxes which may be payable in respect of the issue of any
Warrant Share or any certificate thereof.
5. Registration Under Securities Act of 1933. The Holder is entitled
-----------------------------------------
to the benefit of certain registration rights with respect to the Warrant
Shares, as provided in the Registration Rights Agreement, dated as of March 8,
2002, between the Company, the Holder and the other parties thereto
("Registration Rights Agreement").
6. Limited Transferability. The Holder acknowledges that it has been
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advised by the Company that neither this Warrant nor the Warrant Shares have
been registered under the Act, that this Warrant is being or has been issued
and the Warrant Shares may be issued on the basis of the statutory exemption
provided by Section 4(2) of the Act or Regulation D promulgated thereunder, or
both, relating to transactions by an issuer not involving any public offering.
The Holder acknowledges that it has been informed by the Company of, or is
otherwise familiar with, the nature of the limitations imposed by the Act and
the rules and regulations thereunder on the transfer of securities, as well as
the similar restrictions of applicable state law. In particular, the Holder
agrees that no sale, assignment or transfer of this Warrant or the Warrant
Shares issuable upon Exercise hereof shall be valid or effective, and the
Company shall not be required to give any effect to any such sale, assignment
or transfer, unless (i) the sale, assignment or transfer of this Warrant or
such Warrant Shares is registered under the Act, it being understood that
neither this Warrant nor such Warrant Shares are currently registered for sale
and that the Company has no obligation or intention to so register this Warrant
and no obligation to register such Warrant Shares except as specifically
provided in the Registration Rights Agreement, or (ii) this Warrant or such
Warrant Shares are sold, assigned or transferred in accordance with all the
requirements and limitations of Rule 144 under the Act, as supported by an
opinion of counsel to the Holder, reasonably satisfactory to the Company and
its counsel, it being understood that Rule 144 is not available at the time of
the original issuance of this Warrant for the sale of this Warrant or such
Warrant Shares and that there can be no assurance that Rule 144 sales will be
available at any subsequent time, or (iii) such sale, assignment, or transfer
is otherwise exempt from registration under the Act, as supported by an opinion
of counsel to the Holder, reasonably satisfactory to the Company and its
counsel. The Company may treat the registered Holder of this Warrant as he or
it appears on the Company's books at any time as the Holder for all purposes.
All warrants issued upon the transfer or assignment of this Warrant will be
dated the same date as this Warrant, and all rights of the holder thereof shall
be identical to those of the Holder. This Warrant may be exchanged, at the
option of the Holder thereof, for another Warrant, or other Warrants of
different denominations, of like tenor and representing in the aggregate the
right to purchase a like number of Warrant Shares (or portions thereof), upon
surrender to the Company.
7. Loss, Etc., of Warrant. Upon receipt of evidence satisfactory to
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the Company of the loss, theft, destruction or mutilation of this Warrant, and
of indemnity reasonably satisfactory to the Company, if lost, stolen or
destroyed, and upon surrender and cancellation of this Warrant, if mutilated,
the Company shall execute and deliver to the Holder a new Warrant of like date,
tenor and denomination.
8. Warrant Holder Not Stockholder. Except as otherwise provided
------------------------------
herein, this Warrant does not confer upon the Holder any right to vote or to
consent to or receive notice as a
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stockholder of the Company, as such, in respect of any matters whatsoever, or
any other rights or liabilities as a stockholder, prior to the Exercise hereof.
9. Communication. No notice or other communication under this Warrant
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shall be effective unless in writing; such notice shall be deemed given on the
same day if sent by hand; after three (3) business days (Saturdays, Sundays and
bank or other public holidays excluded) if sent by certified mail, return
receipt requested; after one day if sent by reputable overnight courier
service; and if sent by telex upon receipt of the answer back signal; or if by
facsimile upon receipt of the confirmation slip showing completion of the
transmission, addressed as follows:
(a) to the Company, at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx,
XX 00000 or other address as the Company has designated in writing to the
Holder, or
(b) to the Holder, at [INSERT ADDRESS]or other such address as
the Holder has designated in writing to the Company.
10. Headings. The headings in this Warrant have been inserted as a
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matter of convenience and shall not affect the construction hereof.
11. Applicable Law. This Warrant shall be construed in accordance with
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the laws of the Commonwealth of Massachusetts applicable to contracts made and
performed within such Commonwealth, without regard to principles governing
conflicts of law.
12. Legend. Unless registered, the Warrant Shares issued upon Exercise
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of this Warrant shall be subject to a stop transfer order and the certificate
or certificates evidencing such Warrant Shares shall bear substantially the
following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE STATE SECURITIES
LAWS, SUPPORTED BY AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE
COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED."
13. Consent to Jurisdiction. The parties hereto irrevocably consent to
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the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts
and of any federal court located in such Commonwealth in connection with any
action or proceeding arising out of or relating to this Warrant, any document
or instrument delivered pursuant to, in connection with or simultaneously with
this Warrant, or a breach of this Warrant or any such document or instrument.
In any such action or proceeding, each party hereto waives personal service of
any summons, complaint or other process and agrees that service thereof may be
made in accordance with Section 9(a). Within 30 days after such service, or
such other time as may be mutually agreed upon in writing by the attorneys for
the parties to such action or proceeding, the party so served shall appear or
answer such summons, complaint or other process.
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14. Miscellaneous.
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(a) No course of dealing and no delay or omission on the part
of the Holder in exercising any right or remedy shall operate as a waiver
thereof or otherwise prejudice the Holder's rights, powers or remedies. No
right, power or remedy conferred by this Warrant upon the Holder shall be
exclusive of any other right, power or remedy referred to herein or now or
hereafter available at law, in equity, by statute or otherwise, and all such
remedies may be exercised singly or concurrently.
(b) This Warrant may be amended only by a written instrument
executed by the Company and the Holder hereof. Any amendment shall be endorsed
upon this Warrant, and all future Holders shall be bound thereby.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
President and attested to by its Secretary.
BOSTON LIFE SCIENCES, INC.
By: /s/ S. Xxxxx Xxxxxxx
----------------------
Name: S. Xxxxx Xxxxxxx
Title: President
ATTEST:
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Secretary
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To: Boston Life Sciences, Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
ELECTION TO EXERCISE
The undersigned hereby exercises his or its rights to
purchase _______Warrant Shares covered by the within Warrant, and tenders
payment herewith in the aggregate amount of $ _______ by certified or official
bank check in accordance with the terms thereof, and requests that certificates
for such securities be issued in the name of, and delivered to:
________________________________________________________________
________________________________________________________________
________________________________________________________________
(Print Name, Address and Social Security
or Tax Identification Number)
and, if such number of Warrant Shares shall not be all the Warrant Shares
covered by the within Warrant, that a new Warrant for the balance of the
Warrant Shares covered by the within Warrant be registered in the name of, and
delivered to, the undersigned at the address stated below.
________________________________________________________________
________________________________________________________________
________________________________________________________________
(Print Name, Address and Social Security
or Tax Identification Number)
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In connection with such exercise, the undersigned hereby represents and
warrants to, and agrees with, the Company, as of the date hereof that the
undersigned is an "Accredited Investor" as that term is defined in Rule 501(a)
of Regulation D promulgated under the Securities Act of 1933, as amended.
Dated:_________________
Name:_________________
(Print)
Address:____________________________________________________________
______________________
(Signature)
______________________
(Signature Guarantee)
______________________
(Signature Guarantee)
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ASSIGNMENT
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FOR VALUE RECEIVED, ____________ hereby sells, assigns and
transfers unto ______________________the within Warrant and all rights
evidenced thereby, and does irrevocably constitute and appoint
____________________________, attorney, to transfer said Warrant on the books
of Boston Life Sciences, Inc.
Dated:__________________ Signature:__________________
Address: __________________
__________________
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PARTIAL ASSIGNMENT
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FOR VALUE RECEIVED, ________________ hereby assigns and transfers
unto ________________________ the right to purchase ___________ shares of the
Common Stock, par value $.01 per share, of Boston Life Sciences, Inc. covered
by the within Warrant, and a proportionate part of said Warrant and the rights
evidenced thereby, and does irrevocably constitute. and appoint
____________________________, attorney, to transfer that part of said Warrant
on the books of Boston Life Sciences, Inc.
Dated:__________________ Signature:__________________
Address: __________________
__________________
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