Exhibit 4.5
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN SECURED BY SUCH SECURITIES.
COMMON STOCK PURCHASE WARRANT
To Purchase 167,776 Shares of Common Stock
of
PURE Bioscience
THIS COMMON STOCK PURCHASE WARRANT CERTIFIES that, for value received,
Taglich Brothers, Inc. (the "Holder"), is entitled, upon the terms and subject
to the limitations on exercise and the conditions hereinafter set forth, at any
time on or after October 19, 2007 (the "Initial Exercise Date"), and on or prior
to the close of business on October 19, 2012 (the "Termination Date"), but not
thereafter, to subscribe for and purchase from PURE Bioscience, a corporation
incorporated in the State of California (the "Company"), up to 167,776 shares
(the "Warrant Shares") of Common Stock of the Company (the "Common Stock"). The
initial purchase price of one share of Common Stock under this Warrant shall be
$8.60 (the "Initial Exercise Price"), subject to adjustment herein. The Initial
Exercise Price and the number of Warrant Shares for which the Warrant is
exercisable shall be subject to adjustment as provided herein. Capitalized terms
used and not otherwise defined herein shall have the meanings set forth in that
certain Unit Purchase Agreement, dated October 19, 2007, between the Company and
the purchasers signatory thereto (as amended or supplemented from time to time,
the "Purchase Agreement").
1. Title to Warrant. Prior to the Termination Date and subject to
compliance with applicable laws and Section 7 of this Warrant, this Warrant and
all rights hereunder are transferable, in whole or in part, at the office or
agency of the Company by the Holder in person or by duly authorized attorney,
upon surrender of this Warrant together with the Assignment Form annexed hereto
properly endorsed. The transferee shall sign an investment letter in form and
substance reasonably satisfactory to the Company.
2. Authorization of Shares. The Company covenants that all Warrant Shares 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).
3. Exercise of Warrant.
(a) Except as provided in Section 4 of this Warrant, exercise of the
purchase rights represented by this Warrant, in whole or in part, may be
made at any time or times on or after the Initial Exercise Date and on or
before the Termination Date 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 at the address of such Holder
appearing on the books of the Company) and upon payment of the Exercise
Price (as defined below) for the number of Warrant Shares with respect to
which this Warrant is then being exercised, payable at the Holder's
election (i) by certified or official bank check or by wire transfer to an
account designated by the Company, (ii) by "cashless exercise" by surrender
to the Company for cancellation of a portion of this Warrant representing
that number of unissued Warrant Shares which is equal to the quotient
obtained by dividing (A) the product obtained by multiplying the Exercise
Price by the number of Warrant Shares being purchased upon such exercise by
(B) the Per Share Market Value as of the date of such exercise, or (iii) by
a combination of the foregoing methods of payment selected by the Holder.
In any case where the consideration payable upon such exercise is being
paid in whole or in part pursuant to the provisions of clause (ii) of this
Section 3(a), such exercise shall be accompanied by written notice from the
Holder of this Warrant specifying the manner of payment thereof and
containing a calculation showing the number of Warrant Shares with respect
to which rights are being surrendered thereunder and the net number of
shares to be issued after giving effect to such surrender. "Per Share
Market Value" means on any particular date (A) the closing price per share
of the Common Stock on such date on the OTC Bulletin Board or another
registered national stock exchange on which the Common Stock is then
listed, or if there is no such price on such date, then the closing price
on such exchange or quotation system on the date nearest preceding such
date, or (B) if the Common Stock is not then reported by the OTC Bulletin
Board or the Pink Sheets LLC (or any similar organization or agency
succeeding to its functions of reporting prices), then the average of the
"Pink Sheet" quotes for the relevant conversion period, as determined in
good faith by the Holder, or (C) if the Common Stock is not then publicly
traded, the fair market value of a share of Common Stock as determined by
an Independent Appraiser selected in good faith by the Holder; provided,
however, that the Company, after receipt of the determination by such
Independent Appraiser, shall have the right to select an additional
Independent Appraiser, in which case, the fair market value shall be equal
to the average of the determinations by each such Independent Appraiser;
and provided, further that all determinations of the Per Share Market Value
shall be appropriately adjusted for any stock dividends, stock splits or
other similar transactions during such period. The determination of fair
market value by an Independent Appraiser shall be based upon the fair
market value of the Company determined on a going concern basis as between
a willing buyer and a willing seller and taking into account all relevant
factors determinative of value, and shall be final and binding on all
parties. In determining the fair market value of any shares of Common
Stock, no consideration shall be given to any restrictions on transfer of
the Common Stock imposed by agreement or by Federal or state securities
laws, or to the existence or absence of, or any limitations on, voting
rights. "Independent Appraiser" means a nationally recognized or major
regional investment banking firm or firm of independent certified public
accountants of recognized standing (which may be the firm that regularly
examines the financial statements of the Company) that is regularly engaged
in the business of appraising the capital stock or assets of corporations
or other entities as going concerns, and which is not affiliated with
either the Company or the Holder.
(b) Upon payment of the Exercise Price pursuant to Section 3(a) of
this Warrant, the Holder shall be entitled to receive a certificate for the
number of Warrant Shares so purchased. Certificates for shares purchased
hereunder shall be delivered to the Holder within five (5) 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 the
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 the Holder, if any,
pursuant to Section 5 of this Warrant, prior to the issuance of such
shares. "Trading Day" means (i) a day on which the Common ------------
Stock is traded on the OTC Bulletin Board, or (ii) if the Common Stock is
not listed on the OTC Bulletin Board, a day on which the Common Stock is
traded on any other registered national stock exchange, or (iii) if the
Common Stock is not traded on the OTC Bulletin Board or any other
registered national stock exchange, a day on which the Common Stock is
quoted in the over-the-counter market as reported by the Pink Sheets LLC
(or any similar organization or agency succeeding its functions of
reporting prices); provided, however, that in the event that the Common
Stock is not listed or quoted as set forth in (i), (ii) and (ii) of this
Section 3(b), then Trading Day shall mean any day except Saturday, Sunday
and any day which shall be a legal holiday or a day on which banking
institutions in the State of New York are authorized or required by law or
other government action to close.
(c) If the Company fails to deliver to the Holder a certificate or
certificates representing the Warrant Shares pursuant to Section 3(b) of
this Warrant by the close of business on the fifth Trading Day after the
date of exercise, then the Holder will have the right to rescind such
exercise. In addition, if the Company fails to deliver to the Holder a
certificate or certificates representing the Warrant Shares pursuant to an
exercise by the close of business on the fifth Trading Day after the date
of exercise, and if after such fifth Trading Day the Holder is required by
its broker to purchase (in an open market transaction or otherwise) shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the
Warrant Shares which the Holder anticipated receiving upon such exercise (a
"Buy-In"), then the Company shall (i) pay in cash to the Holder the amount
by which (x) the Holder's total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (A) the number of Warrant Shares
that the Company was required to deliver to the Holder in connection with
the exercise at issue times (B) the price at which the sell order giving
rise to such purchase obligation was executed, and (ii) at the option of
the Holder, either reinstate the portion of the Warrant and equivalent
number of Warrant Shares for which such exercise was not honored or deliver
to the Holder the number of shares of Common Stock that would have been
issued had the Company timely complied with its exercise and delivery
obligations hereunder. For example, if the Holder purchases Common Stock
having a total purchase price of $11,000 to cover a Buy-In with respect to
an attempted exercise of Warrant Shares with an aggregate sale price giving
rise to such purchase obligation of $10,000, under clause (i) of the
immediately preceding sentence the Company shall be required to pay the
Holder $1,000. The Holder shall provide the Company written notice
indicating the amounts payable to the Holder in respect of the Buy-In,
together with applicable confirmations and other evidence reasonably
requested by the Company. Nothing herein shall limit a Holder's right to
pursue any other remedies available to it hereunder, at law or in equity
including, without limitation, a decree of specific performance and/or
injunctive relief with respect to the Company's failure to timely deliver
certificates representing Warrant Shares upon exercise of this Warrant as
required pursuant to the terms hereof.
(d) 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 the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant Shares called
for by this Warrant, which new Warrant shall in all other respects be
identical with this Warrant.
4. 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 which the 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.
5. Charges, Taxes and Expenses. Issuance of certificates for Warrant Shares
shall be made without charge to the Holder 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 or in such name or names as may be
directed by the Holder; provided, however, that in the event certificates for
Warrant Shares are to be issued in a name other than the name of the Holder,
this Warrant when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the Holder; and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it
for any transfer tax incidental thereto.
6. Closing of Books. The Company will not close its stockholder books or
records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
7. Transfer, Division and Combination.
(a) Subject to compliance with any applicable securities laws and the
conditions set forth in Section 7(e) of this Warrant, this Warrant and all
rights hereunder are transferable, in whole or in part, 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 the Holder or its agent or attorney and funds
sufficient to pay any transfer taxes payable upon the making of such
transfer. 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 Warrant Shares 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 the Holder or its agent or attorney. Subject to
compliance with Section 7(a) of this Warrant, 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
7.
(d) The Company agrees to maintain, at its aforesaid office, books for
the registration and the registration of transfer of the Warrants.
(e) If, at the time of the surrender of this Warrant in connection
with any transfer of this Warrant, the transfer of this Warrant shall not
be registered pursuant to an effective registration statement under the
Securities Act and under applicable state securities or blue sky laws, the
Company may require, as a condition of allowing such transfer (i) that the
Holder or transferee of this Warrant, as the case may be, furnish to the
Company a written opinion of counsel (which opinion shall be in form,
substance and scope customary for opinions of counsel in comparable
transactions) to the effect that such transfer may be made without
registration under the Securities Act and under applicable state securities
or blue sky laws, (ii) that the Holder or transferee execute and deliver to
the Company an investment letter in form and substance acceptable to the
Company and (iii) that the transferee be an "accredited investor" as
defined in Rule 501(a) promulgated under the Securities Act.
8. No Rights as Shareholder until Exercise. This Warrant does not entitle
the Holder 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 (or by means of a cashless exercise), 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. Notwithstanding the foregoing, in the
event the Company grants rights to all shareholders to purchase Common Stock,
the Holder shall have the same rights as if this Warrant had been exercised
immediately prior to such grant.
9. 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 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, in
the case of the Warrant, shall not 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.
10. 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.
11. Adjustments of Exercise Price and Number of Warrant Shares. The initial
purchase price of one share of Common Stock under this Warrant shall be $8.60
(the "Initial Exercise Price"). The number and kind of securities purchasable
upon the exercise of this Warrant and the Initial Exercise Price shall be
adjusted as provided for in this Section 11 (the Initial Exercise Price, and the
Initial Exercise Price as thereafter then adjusted, shall be referred to herein
as the "Exercise Price") and the Exercise Price from time to time shall be
further adjusted as provided for in this Section 11. Upon each such adjustment
of the kind and number of Warrant Shares or other securities of the Company
which are purchasable hereunder, the Holder 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 that are purchasable pursuant hereto immediately after such
adjustment. Upon each adjustment of the Exercise Price, the Holder shall
thereafter be entitled to receive upon exercise of this Warrant, at the Exercise
Price resulting from such adjustment, the number of Warrant Shares obtained by
(i) multiplying the Exercise Price effect immediately prior to such adjustment
by the number of Warrant Shares purchasable hereunder immediately prior to such
adjustment, and (ii) dividing the product thereof by the Exercise Price
resulting from such adjustment. An adjustment made pursuant to this Section 11
shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event. This Warrant need not be
changed because of any adjustment made pursuant to this Section 11. The Exercise
Price shall be adjusted as follows:
(a) In the case of any amendment to the Articles of Incorporation of
the Company to change the rights, privileges, restrictions or conditions in
respect to the Common Stock or division of the Common Stock, this Warrant
shall be adjusted so as to provide that upon exercise thereof, the Holder
shall receive, in lieu of each Common Stock theretofore issuable upon such
exercise, the kind and amount of shares, other securities, money and
property receivable upon such change or division by the Holder issuable
upon such exercise had the exercise occurred immediately prior to such
designation, change or division. This Warrant shall be deemed thereafter to
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 11. The
provisions of this Section 11(a) shall apply in the same manner to
successive reclassifications, changes, consolidations and mergers.
(b) If the Company shall at any time subdivide its outstanding shares
of Common Stock into a greater number of shares of Common Stock, or declare
a dividend or make any other distribution upon the Common Stock payable in
shares of Common Stock, the Exercise Price in effect immediately prior to
such subdivision or dividend or other distribution shall be proportionately
reduced, and conversely, in case the outstanding shares of Common Stock
shall be combined into a smaller number of shares of Common Stock, the
Exercise Price in effect immediately prior to such combination shall be
proportionately increased.
(c) If the Company shall (i) pay a dividend in shares of Common Stock
or make a distribution in shares of Common Stock to holders of its
outstanding Common Stock, (ii) 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 of Common Stock, or (iv)
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
shall be entitled to receive the kind and number of Warrant Shares or other
securities of the Company which it would have owned or have been entitled
to receive had such Warrant been exercised in advance thereof.
No fractional shares of Common Stock shall be issued in connection with any
exercise of this Warrant, but in lieu of such fractional shares, the Company
shall make a cash payment therefor equal in amount to the product of the
applicable fraction multiplied by the Exercise Price then in effect.
12. 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 of 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 the 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, and, in any such case, appropriate provisions
shall be made with respect to the rights and interests of the Holder to the end
that the provisions hereof (including, without limitation, provisions for
adjustments of the Exercise Price and of the number of Warrant Shares) shall
thereafter be applicable, as nearly as may be, in relation to any shares of
stock, securities, other evidence of equity ownership or assets thereafter
deliverable upon the exercise hereof (including an immediate adjustment, by
reason of such reorganization, reclassification, merger, consolidation or
disposition of assets, of the Exercise Price to the value for the Common Stock
reflected by the terms of such reorganization, reclassification, merger,
consolidation or disposition of assets if the value so reflected is less than
the Exercise Price in effect immediately prior to such reorganization,
reclassification, merger, consolidation or disposition of assets). Subject to
the terms of this Warrant, in the event of a reorganization, reclassification,
merger or consolidation of the Company with or into another corporation or other
entity as a result of which the number of shares of common stock of the
surviving corporation or other entity issuable to holders of Common Stock of the
Company is greater or lesser than the number of shares of Common Stock of the
Company outstanding immediately prior to such reorganization, reclassification,
merger or consolidation, then the Exercise Price in effect immediately prior to
such reorganization, reclassification, merger or consolidation shall be adjusted
in the same manner as though there were a subdivision or combination of the
outstanding shares of Common Stock of the Company. The Company shall not effect
any such reorganization, reclassification, merger, consolidation or disposition
of assets, unless, prior to the consummation thereof, the successor corporation
(if other than the Company) resulting from such reorganization,
reclassification, merger or consolidation or the corporation purchasing such
assets shall assume, by written instrument executed and mailed or delivered to
the Holder, the obligation to deliver to the Holder such shares of stock,
securities, other evidence of equity ownership or assets as, in accordance with
the foregoing provisions, the Holder may be entitled to receive or otherwise
acquire. If a purchase, tender or exchange offer is made to and accepted by the
holders of more than fifty percent (50%) of the outstanding shares of Common
Stock of the Company, the Company shall not effect any reorganization,
reclassification, merger, consolidation or disposition of assets with the person
having made such offer or with any affiliate of such person, unless prior to the
consummation of such reorganization, reclassification, merger, consolidation or
disposition of assets, the Holder shall have been given a reasonable opportunity
to then elect to receive upon the exercise of this Warrant the amount of stock,
securities, other evidence of equity ownership or assets then issuable with
respect to the number of shares of Common Stock in accordance with such offer.
The foregoing provisions of this Section 12 shall similarly apply to successive
reorganizations, reclassifications, mergers, consolidations or disposition of
assets.
13. 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
give notice thereof to the Holder, which notice shall state 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.
14. 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 20 calendar days' prior written notice of the date on which a record date
shall be selected for such dividend, distribution or right or for determining
rights to vote in respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, liquidation or winding up, and (ii)
in the case of any such reorganization, reclassification, merger, consolidation,
sale, transfer, disposition, dissolution, liquidation or winding up, at least 20
calendar days' prior written notice of the date when the same shall take place.
Such notice in accordance with the foregoing clause also shall specify (i) 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 (ii) 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 Warrant Shares 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 Xxxxxx appearing on the books of the Company and delivered in
accordance with Section 18(d).
15. 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 or transfer of
the Warrant Shares upon the exercise of any purchase rights under this Warrant
and will procure at its expense upon such reservation of shares the listing
thereof (subject to issuance or notice of issuance) on all stock exchanges on
which the Common Stock is then listed or inter-dealer trading systems on which
the Common Stock is then traded. 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 Trading Market upon which the Common Stock may be listed or inter-dealer
trading systems on which the Common Stock is then traded.
Except and to the extent as waived or consented to by the Holder, the
Company shall not by any action, including, without limitation, amending its
certificate 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 as set forth in this
Warrant against impairment. Without limiting the generality of the foregoing,
the Company will (a) not increase the par value of any Warrant Shares 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
Warrant Shares 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 Warrant Shares 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.
16. Registration Rights. The Warrant Shares shall be entitled to the
registration rights and piggy-back registration rights as set forth more fully
in that certain Placement Agreement, dated October 19, 2007, between the Company
and the Holder. Such registration rights and piggy-back registration rights are
incorporated herein by this reference as if such provisions had been set forth
herein in full.
17. Timely Reports. The Company agrees to use its best efforts to file
timely all reports required to be filed pursuant to Sections 13 or 15 of the
Securities Exchange Act of 1934, as amended, and to provide such information as
will permit the Holder to sell this Warrant or any Warrant Shares in accordance
with Rule 144 under the Securities Act.
18. Miscellaneous.
(a) Jurisdiction. All questions concerning the construction, validity,
enforcement and interpretation of this Warrant shall be determined in
accordance with the provisions of the Purchase Agreement.
(b) Restrictions. The Holder 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 and Expenses. 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 Xxxxxx's rights, powers or
remedies, notwithstanding all rights hereunder terminate on the Termination
Date. If the Company willfully and knowingly fails to comply with any
provision of this Warrant, which results in any material damages to the
Holder, the Company shall pay to Holder such amounts as shall be sufficient
to cover any costs and expenses including, but not limited to, reasonable
attorneys' fees, including those of appellate proceedings, incurred by
Holder in collecting any amounts due pursuant hereto or in otherwise
enforcing any of its rights, powers or remedies hereunder.
(d) Notices. Any notice, request or other document required or
permitted to be given or delivered to the Holder by the Company shall be
delivered in accordance with the notice provisions of the Purchase
Agreement; provided upon any permitted assignment of this Warrant, the
assignee shall promptly provide the Company with its contact information.
(e) Limitation of Liability. No provision hereof, in the absence of
any affirmative action by Holder to exercise this Warrant or purchase
Warrant Shares, and no enumeration herein of the rights or privileges of
Holder, 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. The Company agrees
that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and
hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
(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: October 19, 2007
PURE Bioscience
By:/s/ XXXXXXX X. XXXXX
-----------------------
Name: XXXXXXX X. XXXXX
Title: PRESIDENT
NOTICE OF EXERCISE
To: PURE Bioscience
(1) The undersigned hereby elects to purchase ________ Warrant Shares
of PURE Bioscience pursuant to the terms of the attached Warrant, and tenders
herewith payment of the applicable exercise price in full, together with all
applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ] the cancellation of such number of Warrant Shares
as is necessary, in accordance Section 3(a) of the
attached Warrant, to exercise this Warrant with
respect to the number of Warrant Shares listed above.
(3) Please issue a certificate or certificates representing said Warrant
Shares in the name of the undersigned or in such other name as is specified
below:
_____________________________________
The Warrant Shares shall be delivered to the following:
_____________________________________
_____________________________________
_____________________________________
(4) Accredited Investor. The undersigned is an "accredited investor"
as defined in Regulation D promulgated under the Securities Act of 1933, as
amended.
[PURCHASER]
By: ______________________________
Name:
Title:
Dated: ________________________
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.
