WARRANT AGREEMENT
Exhibit
10.132
WARRANT
NUMBER ____
THE
SECURITIES REPRESENTED HEREBY AND THE SECURITIES WHICH MAY BE ISSUED UPON
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AND
HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION
WITH,
THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OF 1933.
WARRANT
AGREEMENT (this “Warrant”),
dated
as of _______ __, 2007, by and between Vyteris, Inc., a Nevada corporation
(the
“Company”),
and
______________________ (the “Warrant
Holder”).
W
I T N E
S S E T H
WHEREAS,
the parties have entered into that certain Subscription Agreement, dated as
of
_____________, 2007, by and between the Company and the Warrant Holder (the
“Subscription
Agreement”);
and
WHEREAS,
pursuant to the Subscription Agreement, the Company has agreed to issue to
the
Warrant Holder a warrant (the “Warrant”)
to
purchase __________ shares of the Company’s common stock, par value $.001 per
share (the “Common
Stock”),
subject to the terms set forth herein.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
promises contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree
as
follows:
1. Warrant;
Call.
(a) The
Company hereby grants to the Warrant Holder, subject to the terms set forth
herein, the right to purchase at any time during the term commencing on the
date
hereof and ending at 5:30 p.m., New York time, on the third (3rd) anniversary
of
the date hereof (the “Expiration
Date”)
__________ shares of Common Stock (the “Shares”),
at an
initial exercise price of US $3.00 per share, subject to adjustment as provided
in Section 3 hereof (as in effect from time to time, the “Exercise
Price”).
(b) Notwithstanding
anything herein to the contrary, if the closing bid price of the Common Stock
equals or exceeds US $4.00 per share for twenty (20) consecutive trading days,
which period shall have commenced only after the Effective Date (such period
the
“Threshold
Period”),
the
Company may, within two (2) Trading Days after the end of any such Threshold
Period, deliver a written notice to the Warrant Holder to cause the Warrant
Holder to exercise this Warrant in its entirety within five (5) trading days,
after which date this Warrant shall immediately expire and be of no further
force and effect.
2. Exercise
of Warrant.
2.1 Exercise.
This
Warrant may be exercised by the Warrant Holder, in whole or in part, by
delivering the Notice of Exercise purchase form, attached as Exhibit
A
hereto
(the “Notice
of Exercise”),
duly
executed by the Warrant Holder to the Company at its principal office, or at
such other office as the Company may designate, accompanied by payment, in
cash
or by wire transfer or check payable to the order of the Company, of the amount
obtained by multiplying the number of Shares designated in the Notice of
Exercise by the Exercise Price (the “Purchase
Price”).
2.2 Issuance
of Certificates.
As soon
as practicable after the exercise of this Warrant (in whole or in part) in
accordance with Section
2.1
hereof,
the Company, at its expense, shall cause to be issued in the name of and
delivered to the Warrant Holder (i) a certificate or certificates for the number
of fully paid and non-assessable Shares to which the Warrant Holder shall be
entitled upon such exercise and (if applicable) (ii) a new warrant agreement
of
like tenor to purchase all of the Shares that may be purchased pursuant to
the
portion, if any, of this Warrant not exercised by the Warrant Holder. The
Warrant Holder shall for all purposes be deemed to have become the holder of
record of such Shares on the date on which the Notice of Exercise and payment
of
the Purchase Price in accordance with Section
2.1,
hereof
were delivered and made, respectively, irrespective of the date of delivery
of
such certificate or certificates, except that if the date of such delivery,
notice and payment is a date when the stock transfer books of the Company are
closed, such person shall be deemed to have become the holder of record of
such
Shares at the close of business on the next succeeding date on which the stock
transfer books are open.
3. Adjustments.
3.1 Stock
Splits, Stock Dividends and Combinations.
If the
Company at any time subdivides the outstanding shares of the Common Stock or
issues a stock dividend (in Common Stock) on the outstanding shares of the
Common Stock, the Exercise Price in effect immediately prior to such subdivision
or the issuance of such stock dividend shall be proportionately decreased,
and
the number of Shares subject hereto shall be proportionately increased, and
if
the Company at any time combines (by reverse stock split or otherwise) the
outstanding shares of Common Stock, the Exercise Price in effect immediately
prior to such combination shall be proportionately increased, and the number
of
Shares subject hereto shall be proportionately decreased, effective at the
close
of business on the date of such subdivision, stock dividend or combination,
as
the case may be.
3.2 Merger
or Consolidation.
In the
case of any consolidation of the Company with, or merger of the Company with
or
into another entity (other than a consolidation or merger which does not result
in any reclassification or change of the outstanding capital stock of the
Company), the entity formed by such consolidation or merger shall execute and
deliver to the Warrant Holder a supplemental warrant agreement providing that
the Warrant Holder shall have the right thereafter (until the expiration of
such
Warrant) to receive, upon exercise of such Warrant, the kind and amount of
shares of capital stock and other securities and property receivable upon such
consolidation or merger by a holder of the number of Shares for which such
Warrant might have been exercised immediately prior to such consolidation or
merger. Such supplemental warrant agreement shall provide for adjustments which
shall be identical to the adjustments provided in Section
3
hereof.
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3.3 Certificate
as to Adjustments.
Upon
the occurrence of each adjustment or readjustment of the Exercise Price pursuant
to this Section
3,
the
Company, at its expense, shall promptly compute such adjustment or readjustment
of the Exercise Price in accordance with the terms hereof and furnish to each
Holder of a Warrant a certificate setting forth such adjustment or readjustment
and showing in detail the facts upon which such adjustment or readjustment
is
based, including a statement of (i) the Exercise Price in effect immediately
prior to such adjustment or readjustment and (ii) the number of shares of Common
Stock and the amount, if any, of other securities or property that at the time
would be received upon the exercise of this Warrant. The Company shall, upon
the
written request at any time of any Holder of a Warrant, furnish or cause to
be
furnished to such Holder a like certificate setting forth (x) all adjustments
and readjustments of the Exercise Price since the Original Issue Date and (y)
the Exercise Price then in effect.
4. Transfers.
4.1 General.
Warrant
Holder hereby acknowledges and agrees that the sale, transfer, assignment or
pledge of this Warrant and the Shares shall be governed by the Subscription
Agreement.
4.2 Warrant
Register.
The
Company will maintain a register containing the names and addresses of the
Warrant Holders of this Warrant. Until any transfer of this Warrant is reflected
in the warrant register, the Company may treat the Warrant Holder as the
absolute owner hereof for all purposes. Any Warrant Holder may change such
Warrant Holder’s address as shown on the warrant register by written notice to
the Company requesting such change.
5. No
Fractional Shares.
Any
adjustment in the number of Shares purchasable hereunder shall be rounded to
the
nearest whole share.
6. Covenants
as to the Shares.
The
Company covenants and agrees that the Shares issuable upon exercise of this
Warrant, will, upon issuance in accordance with the terms hereof, be duly and
validly issued and outstanding, fully paid and nonassessable, with no personal
liability attaching to the ownership thereof, and free from all taxes, liens
and
charges with respect to the issuance thereof imposed by or through the Company;
provided,
however,
that
the Company shall not be required to pay any tax that may be payable in respect
of any transfer involved in the issuance and delivery of any certificates in
respect of such shares in a name other than that of the Warrant Holder and
the
Company shall not be required to issue or deliver such certificates unless
or
until the person(s) requesting the issuance thereof shall have paid to the
Company the amount of such tax or it shall be established to the satisfaction
of
the Company that such tax has been paid. The Company further covenants and
agrees that the Company will at all times have authorized and reserved, free
from preemptive rights imposed by or through the Company, a sufficient number
of
shares of Common Stock to provide for the exercise of the rights represented
under this Warrant.
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7. Legend.
Any
certificate evidencing the Shares issuable upon exercise hereof will bear the
legend set forth in the Subscription Agreement.
8. Dividends
and Other Distributions.
In the
event that the Company shall, at any time prior to the exercise of all Warrants,
declare a dividend (other than a dividend consisting solely of shares of Common
Stock) or otherwise distribute to its stockholders any assets, properties,
rights, evidence of indebtedness, securities (other than shares of Common
Stock), whether issued by the Company or by another person, or any other thing
of value, the Company shall give the Warrant Holder ten (10) calendar days’
prior written notice of such proposed dividend or distribution.
9. Miscellaneous.
9.1 Waivers
and Amendments.
This
Warrant or any provisions hereof may be changed, waived, discharged or
terminated only by a statement in writing signed by the Company and by Warrant
Holders holding a majority of the then outstanding Warrants.
9.2 Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be governed by and construed and enforced in accordance
with the internal laws of the State of New Jersey, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Warrant (whether brought against a party
hereto or its respective affiliates, directors, officers, shareholders,
employees or agents) shall be commenced exclusively in the state and federal
courts sitting in the County of Bergen, State of New Jersey. Each party hereto
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the County of Bergen, State of New Jersey for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect
to
the enforcement of this Warrant), and hereby irrevocably waives, and agrees
not
to assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court. Each party hereto hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by delivering a copy thereof
via
overnight delivery (with evidence of delivery) to such party at the address
in
effect for notices to it under this Warrant and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives,
to
the fullest extent permitted by applicable law, any and all right to trial
by
jury in any legal proceeding arising out of or relating to this Warrant or
the
transactions contemplated hereby. If either party shall commence an action
or
proceeding to enforce any provisions of this Warrant, then the prevailing party
in such action or proceeding shall be reimbursed by the other party for its
attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
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9.3 Notices.
All
notices and other communications hereunder shall be made in accordance with
the
Subscription Agreement.
9.4 Headings.
The
headings in this Warrant are for convenience of reference only, and shall not
limit or otherwise affect the terms hereof.
9.5 Closing
of Books.
The
Company will at no time close its transfer books against the transfer of any
Shares issued or issuable upon the exercise of this Warrant in a manner that
interferes with the timely exercise of this Warrant.
9.6 No
Rights or Liabilities as a Stockholder.
This
Warrant shall not entitle the Warrant Holder hereof to any voting rights or
other rights as a stockholder of the Company with respect to the Shares prior
to
the exercise of this Warrant. No provision of this Warrant, in the absence
of
affirmative action by the Warrant Holder to purchase the Shares, and no mere
enumeration herein of the rights or privileges of the Warrant Holder, shall
give
rise to any liability of such Holder for the Exercise Price or as a stockholder
of the Company, whether such liability is asserted by the Company or by
creditors of the Company.
9.7 Successors.
All the
covenants and provisions of this Warrant shall be binding upon and inure to
the
benefit of the parties hereto and their respective successors and permitted
assigns and transferees.
9.8 Severability.
If any
provision of this Warrant shall be held to be invalid and unenforceable, such
invalidity or unenforceability shall not affect any other provision of this
Warrant.
IN
WITNESS WHEREOF, the Company has executed this Warrant on the date first above
written.
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Vyteris,
Inc.
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By:
__________________________
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Name:
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Title:
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EXHIBIT
A
NOTICE
OF EXERCISE
(To
be
signed only on exercise of Warrant)
Dated:________________________
| To: |
VYTERIS,
INC.
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The
undersigned, pursuant to the provisions set forth in the attached
Warrant
Agreement, hereby irrevocably elects
to:
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purchase
_____ shares of Common Stock covered by such Warrant Agreement and herewith
makes a cash payment of US$_____________, representing the full purchase price
for such shares at the price per share provided for in such Warrant
Agreement.
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Please
issue a certificate or certificates representing such shares of
Common
Stock in the name of the undersigned or in such other name as is
specified
below.
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Signature:___________________________________
Name
(print):_________________________________
Title
(if
applicable):____________________________
Company
(if applicable):________________________
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