Contract
Exhibit 4.1
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION, AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS 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.
WARRANT TO PURCHASE COMMON STOCK
Warrant No.
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Original Issue Date: | |
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Echo Therapeutics, Inc., a Delaware corporation (the “Company”), hereby certifies that, for value
received, [ ] (the “Holder”) is entitled to purchase from the Company up to a total
of [ ( )] shares of common stock, $0.01 par value per share (the “Common
Stock”), of the Company (each such share, a “Warrant Share” and all such shares, the “Warrant
Shares”) at an exercise price per Warrant Share equal to $.75 (as adjusted from time to time as
provided in Section 9 herein, the “Exercise Price”), at any time until, and from time to time after
the date hereof (the “Trigger Date”) to and including, 5:30 P.M., New York City time, on February
28, 2014 (the “Expiration Date”), and subject to the following terms and conditions:
1. Recital. This Warrant (this “Warrant”) is one of a series of similar warrants issued
pursuant to that certain Amended and Restated Stock and Warrant Purchase Agreement, dated April 2,
2009, by and among the Company and the Purchasers identified therein (the “Agreement”). All such
warrants are referred to herein, collectively, as the “Warrants.”
2. Definitions. In addition to the terms defined elsewhere in this Warrant, capitalized
terms that are not otherwise defined herein shall have the meanings given to such terms in the
Agreement.
3. Registration of Warrants. The Company shall register this Warrant, upon records to be
maintained by the Company for that purpose (the “Warrant Register”), in the name of the record
Holder from time to time. The Company may deem and treat the registered Holder of this Warrant as
the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
4. Exercise and Duration of Warrant.
(a) All or any part of this Warrant shall be exercisable by the registered Holder in any
manner permitted by Section 10 of this Warrant at any time until, and from time to time on or
after the Trigger Date to and including, 5:30 P.M. New York City time, on the Expiration Date.
At 5:30 P.M., New York City time, on the Expiration Date, the portion of this Warrant not exercised
prior thereto shall be and become void and of no value and this Warrant shall be terminated and no
longer outstanding.
(b) The Holder may exercise this Warrant by delivering to the Company (i) an exercise notice,
in the form attached as Schedule 1 hereto (the “Exercise Notice”), completed and duly
signed, and (ii) payment of the Exercise Price for the number of Warrant Shares as to which this
Warrant is being exercised (which may take the form of a “cashless exercise” if so indicated in the
Exercise Notice and if a “cashless exercise” may occur at such time pursuant to Section 10 below).
The date such items are delivered to the Company (as determined in accordance with the notice
provisions hereof) is an “Exercise Date.” The delivery by (or on behalf of) the Holder of the
Exercise Notice and the applicable Exercise Price as provided above shall constitute the Holder’s
certification to the Company that its representations contained in Section 2.1(c), (d) and (e) of
the Agreement are true and correct as of the Exercise Date as if remade in their entirety. The
Holder shall not be required to deliver the original Warrant in order to effect an exercise
hereunder, but if it is not so delivered then such exercise shall constitute an agreement by the
Holder to deliver the original Warrant to the Company as soon as practicable thereafter. Execution
and delivery of the Exercise Notice shall have the same effect as cancellation of the original
Warrant and issuance of a new Warrant evidencing the right to purchase the remaining number of
Warrant Shares.
5. Delivery of Warrant Shares.
(a) Upon exercise of this Warrant, the Company shall promptly (but in no event later than five
(5) Trading Days after the Exercise Date) issue or cause to be issued and cause to be delivered to
or upon the written order of the Holder and in such name or names as the Holder may designate (i) a
certificate for the Warrant Shares issuable upon such exercise, free of restrictive legends, or
(ii) an electronic delivery of the Warrant Shares to the Holder’s account at the Depository Trust
Company or a similar organization, unless in the case of clause (i) and (ii) a registration
statement covering the resale of the Warrant Shares and naming the Holder as a selling stockholder
thereunder is not then effective or the Warrant Shares are not freely transferable without
restriction (including requirement for current public information pursuant to Rule 144(c)) under
Rule 144 by Holders who are not affiliates of the Company, in which case such Holder shall receive
a certificate for the Warrant Shares issuable upon such exercise with appropriate restrictive
legends. The Holder, or any Person permissibly so designated by the Holder to receive Warrant
Shares, shall be deemed to have become the holder of record of such Warrant Shares as of the
Exercise Date. If the Warrant Shares are to be issued free of all restrictive legends, the Company
shall, upon the written request of the Holder, use its reasonable best efforts to deliver, or cause
to be delivered, Warrant Shares hereunder electronically through the Depository Trust Company or
another established clearing corporation performing similar functions, if available; provided,
that, the Company may, but will not be required to, change its transfer agent if its current
transfer agent cannot deliver Warrant Shares electronically through such a clearing corporation.
(b) If by the close of the fifth Trading Day after delivery of an Exercise Notice and the
payment of the aggregate exercise price in any manner permitted by Section 10 of this Warrant, the
Company fails to deliver to the Holder a certificate representing the required number of Warrant
Shares in the manner required pursuant to Section 5(a), and if after such fifth Trading Day and
prior to the receipt of such Warrant Shares, the Holder purchases (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-
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In”), then the Company shall, within five (5) Trading Days after the Holder’s request and in
the Holder’s sole discretion, either (1) pay in cash to the Holder an amount equal to the Holder’s
total purchase price (including brokerage commissions, if any) for the shares of Common Stock so
purchased (the “Buy-In Price”), at which point the Company’s obligation to deliver such certificate
(and to issue such Warrant Shares) shall terminate or (2) promptly honor its obligation to deliver
to the Holder a certificate or certificates representing such Warrant Shares and pay cash to the
Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such
number of Warrant Shares, times (B) the closing bid price of a share of Common Stock on the
Exercise Date.
(c) To the extent permitted by law, the Company’s obligations to issue and deliver Warrant
Shares in accordance with the terms hereof are absolute and unconditional, irrespective of any
action or inaction by the Holder to enforce the same, any waiver or consent with respect to any
provision hereof, the recovery of any judgment against any Person or any action to enforce the
same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged
breach by the Holder or any other Person of any obligation to the Company or any violation or
alleged violation of law by the Holder or any other Person, and irrespective of any other
circumstance that might otherwise limit such obligation of the Company to the Holder in connection
with the issuance of Warrant Shares. Nothing herein shall limit the 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 shares of Common Stock upon exercise of the Warrant as
required pursuant to the terms hereof.
6. Charges, Taxes and Expenses. Issuance and delivery of certificates for Warrant Shares
upon exercise of this Warrant shall be made without charge to the Holder for any issue or transfer
tax, transfer agent fee or other incidental tax or expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by 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 registration of any certificates for Warrant Shares or the Warrants in a name other
than that of the Holder or an Affiliate thereof. The Holder shall be responsible for all other tax
liability that may arise as a result of holding or transferring this Warrant or receiving Warrant
Shares upon exercise hereof.
7. Replacement of Warrant. If this Warrant is mutilated, lost, stolen or destroyed, the
Company shall issue or cause to be issued in exchange and substitution for and upon cancellation
hereof, or in lieu of and substitution for this Warrant, a new Warrant, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or destruction (in such case)
and, in each case, a customary and reasonable indemnity and surety bond, if requested by the
Company. Applicants for a new Warrant under such circumstances shall also comply with such other
reasonable regulations and procedures and pay such other reasonable third-party costs as the
Company may prescribe. If a new Warrant is requested as a result of a mutilation of this Warrant,
then the Holder shall deliver such mutilated Warrant to the Company as a condition precedent to the
Company’s obligation to issue the new Warrant.
8. Reservation of Warrant Shares. The Company covenants that it will at all times reserve
and keep available out of the aggregate of its authorized but unissued and otherwise unreserved
Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise of this
Warrant as herein provided, 110% of the number of Warrant Shares that are then issuable and
deliverable upon the exercise of this entire Warrant, free from preemptive rights or any other
contingent purchase rights of persons other than the Holder (taking into account the adjustments
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and restrictions of Section 9). The Company covenants that all Warrant Shares so issuable and
deliverable shall, upon issuance and the payment of the applicable Exercise Price in accordance
with the terms hereof, be duly and validly authorized, issued and fully paid and nonassessable. The
Company will take all such action as may be reasonably necessary to assure that such shares of
Common Stock may be issued as provided herein without violation of any applicable law or
regulation, or of any requirements of any securities exchange or automated quotation service upon
which the Common Stock may be listed or quoted from time to time.
9. Certain Adjustments. The Exercise Price and number of Warrant Shares issuable upon
exercise of this Warrant are subject to adjustment from time to time as set forth in this Section
9.
(a) Stock Dividends and Splits. If the Company, at any time while this Warrant is
outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a distribution on any
class of capital stock that is payable in shares of Common Stock, (ii) subdivides its outstanding
shares of Common Stock into a larger number of shares, or (iii) combines its outstanding shares of
Common Stock into a smaller number of shares, then in each such case the Exercise Price shall be
multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately before such event and the denominator of which shall be the number of
shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to
clause (i) of this paragraph shall become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or distribution, and any adjustment
pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the
effective date of such subdivision or combination.
(b) Pro Rata Distributions. If the Company, at any time while this Warrant is
outstanding, distributes to all holders of Common Stock for no consideration (i) evidences of its
indebtedness, (ii) any security (other than a distribution of Common Stock covered by the preceding
paragraph) or (iii) rights or warrants to subscribe for or purchase any security, or (iv) any other
asset (in each case, “Distributed Property”), then, upon any exercise of this Warrant that occurs
after the record date fixed for determination of stockholders entitled to receive such
distribution, the Holder shall be entitled to receive, in addition to the Warrant Shares otherwise
issuable upon such exercise (if applicable), the Distributed Property that such Holder would have
been entitled to receive in respect of such number of Warrant Shares had the Holder been the record
holder of such Warrant Shares immediately prior to such record date without regard to any
limitation on exercise contained therein.
(c) Fundamental Transactions. If, at any time while this Warrant is outstanding
(i) the Company effects (A) any merger of the Company with (but not into) another Person, in which
stockholders of the Company immediately prior to such transaction own less than a majority of the
outstanding stock of the surviving entity, or (B) any merger or consolidation of the Company into
another Person, (ii) the Company effects any sale of all or substantially all of its assets in one
or a series of related transactions, (iii) any tender offer or exchange offer approved or
authorized by the Company’s Board of Directors is completed pursuant to which holders of at least a
majority of the outstanding Common Stock tender or exchange their shares for other securities, cash
or property, or (iv) the Company effects any reclassification of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively converted into or exchanged for
other securities, cash or property (other than as a result of a subdivision or combination of
shares of Common Stock covered by Section 9(a) above) (in any such case, a “Fundamental
Transaction”), then the Holder shall have the right thereafter to receive, upon exercise of this
Warrant, the same amount and kind of securities, cash
or property as it would have been entitled to receive upon the occurrence of such Fundamental
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Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of the
number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any
limitations on exercise contained herein (the “Alternate Consideration”), and the Holder shall no
longer have the right to receive Warrant Shares upon exercise of this Warrant. The Company shall
not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation
thereof, any successor to the Company, surviving entity or the corporation purchasing or otherwise
acquiring such assets or other appropriate corporation or Person shall assume the obligation to
deliver to the Holder, such Alternate Consideration as, in accordance with the foregoing
provisions, the Holder may be entitled to receive, and the other obligations under this Warrant.
The provisions of this paragraph (c) shall similarly apply to subsequent transactions analogous of
a Fundamental Transaction type.
(d) Number of Warrant Shares. Simultaneously with any adjustment to the Exercise Price
pursuant to paragraph (a) of this Section 9, the number of Warrant Shares that may be purchased
upon exercise of this Warrant shall be increased or decreased proportionately, so that after such
adjustment the aggregate Exercise Price payable hereunder for the increased or decreased number of
Warrant Shares shall be the same as the aggregate Exercise Price in effect immediately prior to
such adjustment.
(e) Calculations. All calculations under this Section 9 shall be made to the nearest
cent or the nearest 1/100th of a share, as applicable. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by or for the account of the
Company, and the disposition of any such shares shall be considered an issue or sale of Common
Stock.
(f) Notice of Adjustments. Upon the occurrence of each adjustment pursuant to this
Section 9, the Company at its expense will, at the written request of the Holder, promptly compute
such adjustment, in good faith, in accordance with the terms of this Warrant and prepare a
certificate setting forth such adjustment, including a statement of the adjusted Exercise Price and
adjusted number or type of Warrant Shares or other securities issuable upon exercise of this
Warrant (as applicable), describing the transactions giving rise to such adjustments and showing in
reasonable detail the facts upon which such adjustment is based. Upon written request, the Company
will promptly deliver a copy of each such certificate to the Holder and to the Company’s transfer
agent.
(g) Notice of Corporate Events. If, while this Warrant is outstanding, the Company (i)
declares a dividend or any other distribution of cash, securities or other property in respect of
its Common Stock, including, without limitation, any granting of rights or warrants to subscribe
for or purchase any capital stock of the Company or any Subsidiary, (ii) authorizes or approves,
enters into any agreement contemplating or solicits stockholder approval for any Fundamental
Transaction or (iii) authorizes the voluntary dissolution, liquidation or winding up of the affairs
of the Company, then, except if such notice and the contents thereof shall be deemed to constitute
material non-public information, the Company shall deliver to the Holder a notice describing the
material terms and conditions of such transaction at least ten (10) business days prior to the
applicable record or effective date on which a Person would need to hold Common Stock in order to
participate in or vote with respect to such transaction; provided, however, that the failure to
deliver such notice or any defect therein shall not affect the validity of the corporate action
required to be described in such notice.
10. Payment of Exercise Price. The Holder shall pay the Exercise Price in immediately
available funds; provided, however, that if, on any Exercise Date that is more than six (6) months
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after the Trigger Date there is not an effective registration statement registering, or no current
prospectus available for, the resale of the Warrant Shares by the Holder pursuant to the Securities
Act of 1933, as amended (the “Securities Act”), then the Holder may, in its sole discretion,
satisfy its obligation to pay the Exercise Price through a “cashless exercise”, in which event the
Company shall issue to the Holder the number of Warrant Shares determined as follows:
X = Y [(A-B)/A]
where:
X = the number of Warrant Shares to be issued to the Holder.
Y = the total number of Warrant Shares with respect to which this Warrant is
being exercised.
A = the average of the Closing Sale Prices of a share of Common Stock (as
reported by Bloomberg Financial Markets) for the five (5) Trading Days ending on
the date immediately preceding the Exercise Date.
B = the Exercise Price then in effect for the applicable Warrant Shares at the
time of such exercise.
For purposes of this Warrant, “Closing Sale Price” means, for any security as of any date, the last
trade price for such security on the principal securities exchange or trading market for such
security, as reported by Bloomberg Financial Markets, or, if such exchange or trading market begins
to operate on an extended hours basis and does not designate the last trade price, then the last
trade price of such security prior to 4:00 P.M., New York City time, as reported by Bloomberg
Financial Markets, or if the foregoing do not apply, the last trade price of such security in the
over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg
Financial Markets, or, if no last trade price is reported for such security by Bloomberg Financial
Markets, the average of the bid prices, or the ask prices, respectively, of any market makers for
such security as reported in the “pink sheets” by Pink Sheets LLC. If the Closing Sale Price
cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing
Sale Price of such security on such date shall be the fair market value as mutually determined by
the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market
value of such security, then the Board of Directors of the Company shall use its good faith
judgment to determine the fair market value. The Board of Directors’ determination shall be
binding upon all parties absent demonstrable error. All such determinations shall be appropriately
adjusted for any stock dividend, stock split, stock combination or other similar transaction during
the applicable calculation period.
For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and
acknowledged that the Warrant Shares issued in a cashless exercise transaction shall be deemed to
have been acquired by the original Holder, and the holding period for the Warrant Shares shall be
deemed to have commenced as to such original Holder, on the date this Warrant was originally issued
pursuant to the Agreement (provided that the Commission continues to take the position that such
treatment is proper at the time of such exercise).
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11. Redemption.
(a) Beginning six (6) months after the date hereof, on the Redemption Date (as defined below),
the Company may cause this Warrant to be redeemed in whole, but not in part, at a price equal to
$0.01 multiplied by the number of Warrant Shares underlying this Warrant by providing ten (10)
Trading Days’ prior written notice of such redemption; provided, that, it is understood and agreed
that during such ten Trading Day period, the Holder may exercise its rights to exercise this
Warrant in whole or in part; and provided, further, that no redemption shall hereunder occur unless
(i) the Equity Conditions with respect to the Warrant Shares are satisfied (or waived in writing by
the Holder) on the Redemption Date, (ii) the Holder would otherwise be permitted to exercise this
Warrant in full under Section 12 hereof and (iii) on the calendar date the notice of redemption is
transmitted (whether before or after 5:00 P.M. New York City time on such date), the Per Share
Market Value exceeds two hundred percent (200%) of the then-applicable Warrant Price. As used
herein, a “Redemption Date” shall be a date selected by the Company following the satisfaction of
the Equity Conditions on which (i) the Per Share Market Value has exceeded two hundred percent
(200%) of the then-applicable Warrant Price for ten (10) Trading Days out of a period of fifteen
(15) consecutive Trading Days (the “Determination Period”) and (ii) the average daily trading
volume for the Common Stock on the principal trading market where the Common Stock is listed or
traded as reported by Bloomberg Financial Markets (or a comparable reporting service of national
reputation selected by the Company and reasonably acceptable to the holder hereof if Bloomberg
Financial Markets is not then reporting closing sales prices of such security) for the
Determination Period is at least 50,000 shares of Common Stock.
(b) For the purposes of this Section 11, “Equity Conditions” means (i) there is an effective
Registration Statement pursuant to which the Holder is permitted to utilize the prospectus
thereunder to resell all of the shares issuable pursuant to this Warrant (and the Company believes,
in good faith, that such effectiveness will continue uninterrupted for the foreseeable future), or
(ii) the Holder is able to resell the shares issuable pursuant to this Warrant pursuant to Rule
144, without compliance with any of the conditions of such rule (including volume limitations or
availability of current public information with respect to the Company) and the Company believes,
in good faith, that the availability of Rule 144 for such sales will continue uninterrupted for the
foreseeable future.
(c) For the purposes of this Section 11, “Per Share Market Value” means on any particular date
(i) the last trading price on the principal trading market where the Common Stock is listed or
traded as reported by Bloomberg Financial Markets (or a comparable reporting service of national
reputation selected by the Company and reasonably acceptable to the holder hereof if Bloomberg
Financial Markets is not then reporting closing sales prices of such security), or (ii) if the
foregoing does not apply, the last reported sales price of such security on a national exchange or
in the over-the-counter market on the electronic bulletin board for the Common Stock as reported by
Bloomberg, or, if no such price is reported for such security by Bloomberg, the average of the bid
prices of all market makers for such security as reported in the “pink sheets” by the National
Quotation Bureau, Inc., in each case for such date or, if such date was not a Trading Day for such
security, on the next preceding date which was a Trading Day, or (iii) if the Common Stock is not
then publicly traded the fair market value of a share of Common Stock on such date as determined by
the Board in good faith; provided, however, that a majority of the Holders of the
Warrants, after receipt of the determination by the Board, shall have the right to select, jointly
with the Company, an independent appraiser, in which case, the fair market value shall be the
determination by such independent appraiser; and provided, further that all
determinations of the Per Share Market Value shall be appropriately adjusted for any stock
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dividends, stock splits or other similar transactions during the period between the date as of
which such market value was required to be determined and the date it is finally determined. The
determination of fair market value 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.
12. Limitations on Exercise.
(a) Notwithstanding anything to the contrary set forth in this Warrant, at no time may a
Holder of this Warrant exercise this Warrant if the number of Warrant Shares to be issued pursuant
to such exercise would exceed, when aggregated with all other shares of Common Stock owned by such
Holder at such time, the number of shares of Common Stock which would result in such Holder
beneficially owning (as determined in accordance with Section 13(d) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), and the rules thereunder) in excess of 4.99% of all of
the Common Stock outstanding at such time; provided, however, that upon a Holder of
this Warrant providing the Company with sixty-one (61) days notice (the “Waiver Notice”) that such
Holder would like to waive this Section 12(a) with regard to any or all Warrant Shares issuable
upon exercise of this Warrant, this Section 12(a) will be of no force or effect with regard to all
or a portion of the Warrant Shares referenced in the Waiver Notice; provided, further, that this
Section 12(a) shall be of no further force or effect during the sixty-one (61) days immediately
preceding the expiration of the term of this Warrant.
(b) Notwithstanding anything to the contrary set forth in this Warrant, at no time may a
Holder of this Warrant exercise this Warrant if the number of Warrant Shares to be issued pursuant
to such exercise would exceed, when aggregated with all other shares of Common Stock owned by such
Holder at such time, the number of shares of Common Stock which would result in such Holder
beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and the
rules thereunder) in excess of 9.99% of all of the Common Stock outstanding at such time; provided,
however, that upon a Holder of this Warrant providing the Company with a Waiver Notice with regard
to this Section 12(b), this Section 12(b) will be of no force or effect with regard to all or a
portion of the Warrant Shares referenced in such Waiver Notice; provided, further, that this
Section 12(b) shall be of no further force or effect during the sixty-one (61) days immediately
preceding the expiration of the term of this Warrant.
13. No Fractional Warrant Shares. No fractional Warrant Shares will be issued in connection
with any exercise of this Warrant. In lieu of any fractional shares that would otherwise be
issuable, the number of Warrant Shares to be issued shall be rounded down to the next whole number
and the Company shall pay the Holder in cash the fair market value (based on the Closing Sale
Price) for any such fractional Warrant Shares.
14. Notices. Any and all notices or other communications or deliveries hereunder
(including, without limitation, any Exercise Notice or Waiver Notice) shall be in writing and shall
be deemed given and effective on the earliest of (i) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified in the Agreement prior
to 5:30 P.M., New York City time, on a Trading Day, (ii) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the facsimile number
specified in the Agreement on a day that is not a Trading Day or later than 5:30 P.M., New York
City time, on
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any Trading Day, (iii) the Trading Day following the date of mailing, if sent by nationally
recognized overnight courier service specifying next business day delivery, or (iv) upon actual
receipt by the party to whom such notice is required to be given, if by hand delivery. The address
and facsimile number of a party for such notices or communications shall be as set forth in the
Agreement unless changed by such party by two (2) Trading Days’ prior notice to the other party in
accordance with this Section 14.
15. Warrant Agent. The Company shall serve as warrant agent under this Warrant. Upon thirty
(30) days’ notice to the Holder, the Company may appoint a new warrant agent. Any corporation into
which the Company or any new warrant agent may be merged or any corporation resulting from any
consolidation to which the Company or any new warrant agent shall be a party or any corporation to
which the Company or any new warrant agent transfers substantially all of its corporate trust or
shareholders services business shall be a successor warrant agent under this Warrant without any
further act. Any such successor warrant agent shall promptly cause notice of its succession as
warrant agent to be mailed (by first class mail, postage prepaid) to the Holder at the Holder’s
last address as shown on the Warrant Register.
16. Miscellaneous.
(a) No Rights as a Stockholder. The Holder, solely in such Person’s capacity as a
holder of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder
of share capital of the Company for any purpose, nor shall anything contained in this Warrant be
construed to confer upon the Holder, solely in such Person’s capacity as the Holder of this
Warrant, any of the rights of a stockholder of the Company or any right to vote, give or withhold
consent to any corporate action (whether any reorganization, issue of stock, reclassification of
stock, consolidation, merger, amalgamation, conveyance or otherwise), receive notice of meetings,
receive dividends or subscription rights, or otherwise, prior to the issuance to the Holder of the
Warrant Shares which such Person is then entitled to receive upon the due exercise of this Warrant.
In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on
the Holder to purchase any securities, whether such liabilities are asserted by the Company or by
creditors of the Company.
(b) Successors and Assigns. This Warrant may not be assigned by the Company or the
Holder without the written consent of the other party, except to a successor in the event of a
Fundamental Transaction. This Warrant shall be binding on and inure to the benefit of the parties
hereto and their respective successors and assigns. Subject to the preceding sentence, nothing in
this Warrant shall be construed to give to any Person other than the Company and the Holder any
legal or equitable right, remedy or cause of action under this Warrant. This Warrant may be amended
only in writing signed by the Company and the Holder, or their successors and assigns.
(c) Amendment and Waiver. Except as otherwise provided herein, the provisions of the
Warrant may be amended and the Company may take any action herein prohibited, or omit to perform
any act herein required to be performed by it, only if the Company has obtained the written consent
of the Holders of Warrants representing a majority of the Warrant Shares obtainable upon exercise
of the Warrants then outstanding.
(d) Acceptance. Receipt of this Warrant by the Holder shall constitute acceptance of
and agreement to all of the terms and conditions contained herein.
(e) Governing Law; Jurisdiction. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY,
ENFORCEMENT AND INTERPRETATION OF THIS
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WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAW THEREOF. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND
FEDERAL COURTS SITTING IN THE STATE OF NEW YORK, 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 ANY OF THE TRANSACTION DOCUMENTS), 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 HEREBY IRREVOCABLY WAIVES
PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH
EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THE AGREEMENT
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 HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY.
(f) Headings. The headings herein are for convenience only, do not constitute a part
of this Warrant and shall not be deemed to limit or affect any of the provisions hereof.
(g) Severability. In case any one or more of the provisions of this Warrant shall be
invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and
provisions of this Warrant shall not in any way be affected or impaired thereby, and the parties
will attempt in good faith to agree upon a valid and enforceable provision which shall be a
commercially reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Warrant.
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10
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its authorized
officer as of the date first indicated above.
| ECHO THERAPEUTICS, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
SCHEDULE 1
FORM OF EXERCISE NOTICE
(To be executed by the Holder to purchase shares of Common Stock under the foregoing Warrant)
Ladies and Gentlemen:
(1) The undersigned is the Holder of Warrant No. (the “Warrant”) issued by Echo
Therapeutics, Inc., a Delaware corporation (the “Company”). Capitalized terms used herein and not
otherwise defined herein have the respective meanings set forth in the Warrant.
(2) The undersigned hereby exercises its right to purchase Warrant Shares pursuant to
the Warrant.
(3) The Holder intends that payment of the Exercise Price shall be made as (check one):
o Cash Exercise
o “Cashless Exercise” under Section 10
(4) If
the Holder has elected a Cash Exercise, the Holder shall pay the sum of $___ in
immediately available funds to the Company in accordance with the terms of the Warrant.
(5) Pursuant to this Exercise Notice, the Company shall deliver to the Holder Warrant Shares
determined in accordance with the terms of the Warrant.
(6) By its delivery of this Exercise Notice, the undersigned represents and warrants to the Company
that in giving effect to the exercise evidenced hereby the Holder will not beneficially own in
excess of the number of shares of Common Stock (as determined in accordance with Section 13(d) of
the Securities Exchange Act of 1934) permitted to be owned under Section 12 of the Warrant to which
this notice relates.
Dated: ,
Name
of Holder:
|
|
By: |
| Name: |
| Title: |
(Signature must conform in all respects to name of Holder as specified on the face of the Warrant)
