EXHIBIT 4.3
FORM COMMON STOCK PURCHASE WARRANT.
COMMON STOCK PURCHASE
WARRANT
THE SECURITIES REPRESENTED BY THIS CERTIFICATE, THE COMMON STOCK
ISSUABLE UPON EXERCISE HEREOF, AND ANY INTEREST THEREIN MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO (i) A REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (ii) AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT.
THE TRANSFER OF THIS WARRANT
IS RESTRICTED AS DESCRIBED HEREIN
VOID AFTER 5:00 P.M., NEW YORK TIME,
ON FEBRUARY __, 2010
XECHEM INTERNATIONAL, INC.
Warrant for the Purchase
of
_________ Shares of Common Stock
No.
THIS CERTIFIES that, for value received, __________ (the "Holder") is
entitled to subscribe for and purchase from Xechem International, Inc., a
Delaware corporation (the "Company"), upon the terms and subject to the
conditions set forth herein, at any time or from time to time, on or after
February __, 2005, and before 5:00 P.M., New York time, on February __, 2010
(the "Exercise Period"), _____________________________________ (________) shares
of the Company's Common Stock, par value $.00001 per share (the "Common Stock"),
subject to adjustment as provided herein (the "Warrant Shares"), at a price of $
0.015 per share, subject to adjustment as provided herein (the "Exercise
Price").
This Warrant may not be sold or otherwise disposed of without the
Company's prior written consent. No transfer of this Warrant or the Warrant
Shares will be permitted unless a registration statement under the Securities
Act of 1933, as amended (the "Act"), is in effect as to that transfer or, in the
opinion of counsel reasonably satisfactory to the Company, registration under
the Act is not necessary for that transfer to comply with the Act. The term the
"Holder" as used herein shall include any transferee to whom this Warrant has
been transferred in accordance with the above.
This Warrant may be exercised during the Exercise Period, as to the whole
or any lesser number of whole Warrant Shares, by the surrender of this Warrant
(with the Form of Election to Exercise at the end hereof duly completed and
executed) to the Company at 000 Xxxxxx Xxxxxx, Xxxxxxxx 000-X, Xxx Xxxxxxxxx, XX
00000, Attention: Xxxxxx Xxxxxx, CEO, or at such other place as may be
designated in writing by the Company, together with a certified or bank
cashier's check payable to the order of the Company in an amount equal to the
Exercise Price multiplied by the number of Warrant Shares for which this Warrant
is being exercised. This Warrant may also be exercised at any such time by means
of a "cashless exercise" in which the Holder shall be entitled to receive a
certificate for the number of Warrant Shares equal to the quotient obtained by
dividing [(A-B) (X)] by (A), where:
(A) = the closing sale price for the Common Stock on any national
securities exchange on which the Common Stock is listed for trading
or, if not so listed, on the Nasdaq National Market or any other
Nasdaq market to which the Common Stock is admitted for trading or,
if not so admitted, on the over-the-counter Bulletin Board on the
trading day immediately preceding the date of such election;
(B) = the Exercise Price of the Warrants, as adjusted; and
(X) = the number of Warrant Shares issuable upon exercise of the
Warrants in accordance with the terms of this Warrant.
1. 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. As soon as
practicable after each such exercise of this Warrant, the Company shall issue
and deliver to the Holder a certificate or certificates for the Warrant Shares
issuable upon such exercise, registered in the name of the Holder. If this
Warrant should be exercised in part only, the Company shall, upon surrender of
this Warrant for cancellation, execute and deliver a new Warrant evidencing the
right of the Holder to purchase the balance of the Warrant Shares (or portions
thereof) subject to purchase hereunder.
2. Any Warrants issued upon the transfer or exercise in part of this
Warrant shall be numbered and shall be registered in a warrant register (the
"Warrant Register") as they are issued. The Company shall be entitled to treat
the registered holder of any Warrant on the Warrant Register as the owner in
fact thereof for all purposes and shall not be bound to recognize any equitable
or other claim to or interest in such Warrant on the part of any other person,
and shall not be liable for any registration or transfer of Warrants which are
registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with the actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration or transfer, or
with the knowledge of such facts that its participation therein amounts to bad
faith. This Warrant shall be transferable on the books of the Company only upon
delivery hereof with the Form of Assignment at the end hereof duly completed and
executed by the Holder or by his or its duly authorized attorney or
representative, or accompanied by proper evidence of succession, assignment, or
authority to transfer. In all cases of transfer by an attorney, executor,
administrator, guardian or other legal representative, duly authenticated
evidence of his or its authority shall be produced. Upon any registration of
transfer, the Company shall deliver a new Warrant or Warrants to the person
entitled thereto. 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 or its
duly authorized agent. Notwithstanding the foregoing, the Company shall have no
obligation to cause this Warrant to be transferred on its books to any person
if, in the opinion of counsel to the Company, such transfer does not comply with
the provisions of the Act and the rules and regulations thereunder.
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3. The Company shall at all times during the Exercise Period reserve and
keep available out of its authorized and unissued Common Stock, solely for the
purpose of providing for the exercise of the Warrants, such number of shares of
Common Stock as shall, from time to time, be sufficient therefor. The Company
covenants that all Warrant Shares, upon receipt by the Company of the full
payment therefor, shall be validly issued, fully paid, nonassessable, and free
of preemptive rights.
4. Subject to the provisions of this Section 4, the Exercise Price in
effect from time to time shall be subject to adjustment, as follows:
(a) In case the Company shall at any time after the date the
Warrants were first issued 1. declare a dividend on the outstanding Common
Stock payable in shares of its capital stock, 2. subdivide the outstanding
Common Stock, or 3. combine the outstanding Common Stock into a smaller
number of shares, then, in each case, the Exercise Price in effect, and
the number of shares of Common Stock issuable upon exercise of the
Warrants outstanding, at the time of the record date for such dividend or
of the effective date of such subdivision or combination, shall be
proportionately adjusted so that the holders of the Warrants after such
time shall be entitled to receive the aggregate number and kind of shares,
for the same aggregate Exercise Price as in effect immediately prior to
such dividend, subdivision or combination, which, if such Warrants had
been exercised immediately prior to such time, such holders would have
owned upon such exercise and been entitled to receive by virtue of such
dividend, subdivision, or combination. Such adjustment shall be made
successively whenever any event listed above shall occur.
(b) All calculations under this Section 4 shall be made to the
nearest one-hundredth of a cent or to the nearest one-thousandth of a
share, as the case may be; provided, however that, no adjustment in the
Exercise Price shall be required if such adjustment is less than $.0001;
and provided, further, that any adjustments which by reason of this
Section 4 are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. The Company shall not be
required to issue fractions of shares of Common Stock or other capital
stock of the Company upon the exercise of this Warrant. If any fraction of
a share would be issuable on the exercise of this Warrant (or specified
portions thereof), the Company shall purchase such fraction for an amount
in cash equal to the same fraction of the fair market value of such share
of Common Stock on the date of exercise of this Warrant.
(c) In any case in which this Section 4 shall require that an
adjustment in the Exercise Price be made effective as of a record date for
a specified event (an "Event"), the Company may elect to defer, until the
occurrence of such Event, issuing to the Holder, if the Holder exercised
this Warrant after such record date, the shares of Common Stock, if any,
issuable upon such exercise over and above the number of Warrant Shares,
if any, issuable upon such exercise on the basis of the Exercise Price in
effect prior to such adjustment; provided, however, that the Company shall
deliver to the Holder a due bill or other appropriate instrument
evidencing the Holder's right to receive such additional shares upon the
occurrence of the Event requiring such adjustment.
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(d) Whenever there shall be an adjustment as provided in this
Section 4, the Company shall within 15 days thereafter cause written
notice thereof to be sent by registered mail, postage prepaid, to the
Holder, at its address as it shall appear in the Warrant Register, which
notice shall be accompanied by an officer's certificate setting forth the
number of Warrant Shares issuable hereunder and the Exercise Price after
such adjustment and setting forth a brief statement of the facts requiring
such adjustment and the computation thereof, which officer's certificate
shall be conclusive evidence of the correctness of any such adjustment
absent manifest error.
(e) If and whenever, on or after the date of this Warrant, the
Company shall issue, sell or grant shares of Common Stock, or in
accordance with clause (f) below is deemed to have issued, sold or granted
shares of its Common Stock, for consideration per share therefor of less
than the Exercise Price (the "Dilutive Price" and each such occurrence,
hereinafter referred to as a "Dilutive Event"), then forthwith upon the
occurrence of any such Dilutive Event, the Exercise Price shall be reduced
to that amount calculated by multiplying the Exercise Price in effect
immediately before such adjustment by a fraction (A) the numerator of
which is (i) the number of shares of Common Stock outstanding immediately
prior to the Dilutive Event plus (ii) the number of shares of Common Stock
issued as part of the Dilutive Event multiplied by a fraction the
numerator of which is the Dilutive Price and the denominator of which is
the Exercise Price and (B) the Denominator of which is the number of
shares of Common Stock outstanding immediately following the Dilutive
Event. The number of Warrant Shares subject to this Warrant shall
thereupon be adjusted by multiplying the number of Warrant Shares subject
to this Warrant immediately prior to the Dilutive Event by a fraction (X)
the numerator of which is the Exercise Price immediately prior to the
Dilutive Event and (Y) the denominator of which is the Exercise Price
immediately after the adjustment set forth in this paragraph.
(f) For purposes of determining the adjusted Exercise Price pursuant
to clause (e) above, the following events shall be deemed to be an
issuance and sale of shares of Common Stock by the Company:
(i) Issuance of Rights or Options. If:
(A) the Company, during the Exercise Period, in any
manner, hereafter grants any rights or options to subscribe
for, or to purchase, shares of Common Stock, or any securities
convertible into or exchangeable for any shares of Common
Stock in the Company (such rights or options referred to
herein as "Options" and such convertible or exchangeable
securities referred to herein as "Convertible Securities");
and
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(B) the price per unit of the shares of Common Stock
issuable upon the exercise of such Options or upon conversion
or exchange of such Convertible Securities is less than the
Exercise Price in effect immediately prior to the time of the
granting of such Options, then the shares of Common Stock
issuable upon the exercise of such Options or upon conversion
or exchange of such Convertible Securities will be deemed to
have been issued and sold by the Company for such lesser Price
Per Unit. For the purposes of this clause (f) the "Price Per
Unit" is determined by dividing: (X) the total amount, if any,
received by the Company as consideration for the granting of
such Options, plus the minimum aggregate amount of additional
consideration payable to the Company upon exercise of all such
Options, plus in the case of such Options which relate to
Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable to the Company upon
the issuance or sale of such Convertible Securities and the
conversion or exchange thereof, by (Y) the total maximum
number of shares of Common Stock issuable upon the exercise of
such Options or upon the conversion or exchange of all such
Convertible Securities issuable upon the exercise of such
Options. No further adjustment of the Exercise Price will be
made when Convertible Securities are actually issued upon the
exercise of such Options or when shares of Common Stock are
actually issued upon the exercise of such Options or the
conversion or exchange of such Convertible Securities.
(ii) Calculation of Consideration Received. If any shares of
Common Stock, Options or Convertible Securities are issued or sold
or deemed to have been issued or sold for cash, the consideration
received therefor or the Price Per Unit, as the case may be, will be
deemed to be the net amount received or to be received,
respectively, by the Company therefor. In case any shares of Common
Stock, Options or Convertible Securities are issued or sold for a
consideration other than cash, the amount of the consideration other
than cash received by the Company or the non cash portion of the
Price Per Unit, as the case may be, will be the fair market value of
such consideration received or to be received, respectively, by the
Company. If any shares of Common Stock, Options or Convertible
Securities are issued in connection with any merger in which the
Company is the surviving Company, the amount of consideration
therefor will be deemed to be the fair value of such portion of the
net assets and business of the non surviving Company as is
attributable to such shares of Common Stock, Options or Convertible
Securities, as the case may be. The fair value of any consideration
other than cash and marketable securities will be determined jointly
by the Company and the Holder. If such parties are unable to reach
agreement within a reasonable period of time, the fair value of such
consideration will be determined by an independent appraiser jointly
selected by the Company and the Holder.
(iii) Integrated Transactions. In case any Option is issued in
connection with the issuance or sale of other securities of the
Company, together comprising one integrated transaction in which no
specific consideration is allocated to such Option by the parties
thereto, the Option will be deemed to have been issued for a
consideration of $0.0001.
(iv) Record Date. If the Company takes a record of the holders
of capital stock for the purpose of entitling them: (i) to receive a
dividend or other distribution payable in shares of capital stock in
the Company, Options or Convertible Securities; or (ii) to subscribe
for or purchase shares of capital stock in the Company, Options or
Convertible Securities, then such record date will be deemed to be
the date of the issuance or sale of the shares of capital stock
deemed to have been issued or sold upon the declaration of such
dividend or upon the making of such other distribution or the date
of the granting of such right of subscription or purchase, as the
case may be.
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5. In case of any consolidation with or merger of the Company with or into
another corporation (other than a merger or consolidation in which the Company
is the surviving or continuing corporation), or in case of any sale, lease, or
conveyance to another corporation of the property and assets of any nature of
the Company as an entirety or substantially as an entirety (such actions being
hereinafter collectively referred to as "Reorganizations"), there shall
thereafter be deliverable upon exercise of this Warrant (in lieu of the number
of shares of Common Stock theretofore deliverable) the kind and amount of shares
of stock or other securities or property receivable upon such Reorganization by
a holder of the number of shares of Common Stock, for which this Warrant might
have been exercised immediately prior to such Reorganization. In case of any
Reorganization, appropriate adjustment, as determined in good faith by the Board
of Directors of the Company, shall be made in the application of the provisions
herein set forth with respect to the rights and interests of the Holder so that
the provisions set forth herein shall thereafter be applicable, as nearly as
possible, in relation to any shares or other property thereafter deliverable
upon exercise of this Warrant. Any such adjustment shall be made by and set
forth in a supplemental agreement between the Company, or any successor thereto,
and the Holder and shall for all purposes hereof conclusively be deemed to be an
appropriate adjustment. The Company shall not effect any such Reorganization
unless upon or prior to the consummation thereof the successor corporation, or
if the Company shall be the surviving corporation in any such Reorganization and
is not the issuer of the shares of stock or other securities or property to be
delivered to holders of shares of the Common Stock outstanding at the effective
time thereof, then such issuer, shall assume by written instrument the
obligation to deliver to the Holder such shares of stock, securities, cash or
other property as the Holder shall be entitled to purchase in accordance with
the foregoing provisions.
In case of any reclassification or change of the shares of Common Stock
issuable upon exercise of this Warrant (other than a change in par value or from
no par value to a specified par value, or as a result of a subdivision or
combination of the outstanding shares of Common Stock, but including any change
of the shares of Common Stock into two or more classes or series of shares), or
in case of any consolidation or merger of another corporation into the Company
in which the Company is the continuing corporation and in which there is a
reclassification or change (including a change to the right to receive cash or
other property) of the shares of Common Stock (other than a change in par value,
or from no par value to a specified par value, or as a result of a subdivision
or combination of the outstanding shares of Common Stock, but including any
change of the shares into two or more classes or series of shares), the Holder
shall have the right thereafter to receive upon exercise of this Warrant solely
the kind and amount of shares of stock and other securities, property, cash, or
any combination thereof receivable upon such reclassification, change,
consolidation, or merger by a holder of the number of shares of Common Stock for
which this Warrant might have been exercised immediately prior to such
reclassification, change, consolidation, or merger. Thereafter, appropriate
provision shall be made for adjustments which shall be as nearly equivalent as
practicable to the adjustments in Section 4.
The above provisions of this Section 5 shall similarly apply to successive
reclassifications and changes of shares of Common Stock and to successive
consolidations, mergers, sales, leases, or conveyances.
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6. Upon thirty (30) days' prior written notice to the Holder, which notice
may be given by the Company only if within the preceding sixty (60) days the
Common Stock has had a closing sale price for twenty (20) consecutive trading
days of $0.06 or more on any national securities exchange on which the Common
Stock is listed or, if not so listed, on the Nasdaq National Market or any other
Nasdaq market to which the Common Stock is admitted for trading or, if not so
admitted for trading, on the over-the-counter Bulletin Board, the Company may
call this Warrant for a price equal to the par value of the Warrant Shares
issuable upon exercise of this Warrant. The date set for such purchase of this
Warrant in the notice given by the Company in accordance with the preceding
sentence is herein referred to as the "Call Date." Notwithstanding any such call
notice, the Holder shall continue to have the right to exercise this Warrant as
provided above until the Call Date.
7. In case at any time the Company shall propose:
(a) to 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; or
(b) to 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; or
(c) to effect any reclassification or change of outstanding shares
of Common Stock, or any consolidation, merger, sale, lease, or conveyance
of property, described in Section 5; or
(d) to effect any liquidation, dissolution or winding-up of the
Company;
then, and in any one or more of such cases, the Company shall give written
notice thereof, by registered mail, postage prepaid, to the Holder at the
Holder's address as it shall appear in the Warrant Register, mailed at least 10
days prior to 1. 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 or 2. the date on which any
such reclassification, change of outstanding shares of Common Stock,
consolidation, merger, sale, lease, conveyance of property, 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 reclassification, change of outstanding shards,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up.
8. The issuance of any shares or other securities upon the exercise of
this Warrant and the delivery of certificates or other instruments representing
such shares or other securities shall be made without charge to the Holder for
any tax or other charge in respect of such issuance. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of any certificate in a name other
than that of the Holder and the Company shall not be required to issue or
deliver any such certificate unless and until the person or persons requesting
the issue thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
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9. The Warrant Shares issued upon exercise of the Warrant shall be subject
to a stop transfer order. The certificate or certificates evidencing such
Warrant Shares shall bear the following legend unless the Warrant Shares are
registered pursuant to the Act:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), and may
not be transferred unless a registration statement under the Act is
in effect as to that transfer or, in the opinion of counsel
reasonably satisfactory to the Company, registration under the Act
is not necessary for that transfer to comply with the Act."
10. Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of any Warrant (and upon surrender of any
Warrant if mutilated), and upon reimbursement of the Company's reasonable
incidental expenses, the Company shall execute and deliver to the Holder thereof
a new Warrant of like date, tenor and denomination.
11. The Holder of any Warrant shall not have, solely on account of such
status, any rights of a stockholder of the Company, either at law or in equity,
or to any notice of meetings of stockholders or of any other proceedings of the
Company, except as provided in this Warrant.
12. This Warrant shall be governed by and construed in accordance with the
law of the State of Delaware applicable to agreements made and to be performed
in such State.
Dated: February __, 2005
XECHEM INTERNATIONAL, INC.
By:_________________________
Name: Xxxxxx Xxxxxx
Title: CEO
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FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
attached Warrant).
FOR VALUE RECEIVED, ___________ hereby sells, assigns and transfers unto:
Name:_____________________________________________________
Address:__________________________________________________
__________________________________________________
__________________________________________________
Social Security or Tax Identification Number
____________________________________________
a Warrant to purchase ______ shares of Common Stock, $.00001 par value per
share, of Xechem International, Inc. (the "Company"), together with all right,
title, and interest therein, and does hereby irrevocably constitute and appoint
_______________ attorney to transfer such Warrant on the books of the Company,
with full power of substitution.
Dated: ___________________
Name:____________________________________
Address:_________________________________
_________________________________
_________________________________
Social Security or Tax Identification Number
____________________________________________
Signature:
NOTE: The above signature should correspond
exactly with the name on the first page of
this Warrant.
FORM OF ELECTION TO EXERCISE
To: Xechem International, Inc.
000 Xxxxxx Xxxxxx, Xxxxxxxx X-000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, CEO
The undersigned hereby exercises his or its rights to purchase ________
Warrant Shares covered by the within Warrant [by cashless exercise/and tenders
payment herewith in the amount of $_______] in accordance with the terms
thereof, and requests that certificates for such securities be issued in the
name of, and delivered to:
Name:________________________________________________________
Address:_____________________________________________________
_____________________________________________________
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.
Dated:___________________
Name:_______________________________________
Address:____________________________________
____________________________________
____________________________________
Social Security or Tax Identification Number
____________________________________________
Signature:__________________________________
NOTE: The above signature should correspond
exactly with the name on the first page of
this Warrant or with the name of the
assignee appearing in the Form of
Assignment.
