EXHIBIT 10.1
APPLIED DNA SCIENCES, INC.
Applied DNA Sciences, Inc., a Nevada corporation (the "Company"), hereby
certifies that, for value received, _________________________ (the "Warrant
Holder," which term includes its successors and registered assigns) is entitled
to purchase an aggregate of __________________ shares of common stock, par value
$0.001 per share, of the Company (the "Common Stock") at an exercise price of
$0.09 per share (the "Exercise Price").
1. (a) Exercise of Warrant. This Warrant may be exercised in whole or in
part at any time or from time to time during the period commencing on _________
_, 200_ and expiring at 5:00 p.m., New York City time, on August 31, 2011 (the
"Exercise Term"), or if such day is a day on which banking institutions in the
State of New York are authorized by law to close, then on the next succeeding
day which shall not be such a day, by presentation and surrender of the Warrant
Certificate evidencing the Warrant to be exercised to the Company at its
principal office or at the office of its stock transfer agent, if any, with the
Exercise Form annexed hereto duly executed and accompanied by payment of the
Exercise Price for the number of shares specified in such form. If any Warrant
should be exercised in part only, the Company shall, upon surrender of this
Warrant for cancellation and presentment of the Exercise Form, execute and
deliver new a Warrant Certificate or Certificates, as the case may be,
evidencing the rights of the Warrant Holder thereof to purchase the balance of
the shares purchasable thereunder. Upon receipt by the Company of a Warrant
Certificate at its office, or by the stock transfer agent of the Company at its
office, in proper form for exercise and accompanied by the appropriate payment
for the shares of Common Stock underlying this Warrant (the "Warrant Shares"),
the Warrant Holder shall be deemed to be the Warrant Holder of record of such
Warrant Shares, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such Warrant Shares shall
not then be actually delivered to the Warrant Holder. Certificates for the
Warrant Shares shall be delivered to the Warrant Holder within a reasonable time
following the exercise of this Warrant in accordance with the foregoing.
(b) Cashless Exercise. At the option of the Warrant Holder, the Warrant
Holder may exercise this Warrant, without a cash payment of the Exercise Price,
through a reduction in the number of shares of Common Stock issuable upon the
exercise of this Warrant. Such reduction may be effected by designating that the
number of the shares of Common Stock issuable to the Warrant Holder upon such
exercise shall be reduced by the number of shares having an aggregate Fair
Market Value as of the date of exercise equal to the amount of the aggregate
Exercise Price for such exercise as to the number of shares to be issued to the
Warrant holder upon such exercise. For purposes of this Warrant, the "Fair
Market Value" of any Common Stock on any date in question shall be the closing
sale price of the Common Stock on the principal stock exchange or stock market
on which the Common Stock is traded on the Business Day immediately preceding
such date (or if there is not trading on such date, on the next preceding
business day on which there was trading in the Common Stock), as quoted in The
Wall Street Journal. If the Common Stock is not listed or qualified for trading
on a stock exchange or stock market at such time, then the Fair Market Value
shall be determined in good faith by the Board of Directors of the Company. In
connection with any cashless exercise, no cash or other consideration will be
paid by the Warrant Holder in connection with such exercise other than the
surrender of the Warrant itself, and no commission or other remuneration will be
paid or given by the Warrant Holder or the Company in connection with such
exercise.
2. Alternative Exercise Provisions. Anything contained herein to the
contrary notwithstanding, provided that the shares underlying this Warrant have
been registered, the Warrant Holder, at his option, may exercise this Warrant,
in whole or in part, during the Exercise Term by delivering to the Company a
confirmation slip issued by a brokerage firm that is a member of the National
Association of Securities Dealers, Inc. with respect to the sale of those number
of Warrant Shares for which this Warrant is being exercised, and, in such case,
the Company shall deliver certificates representing such Warrant Shares on
settlement date at the office of the Company's stock transfer agent against
payment for such Warrant Shares by such brokerage firm or its clearing broker,
made payable to the Company or made payable to the order of the Warrant Holder
and endorsed by the Warrant Holder to the Company.
3. Reservation and Listing of Shares. The Company hereby agrees that at all
times there shall be reserved for issuance and delivery upon exercise of this
Warrant, such number of shares of its Common Stock as shall be required for
issuance and delivery upon exercise of this Warrant. As long as this Warrant
shall be outstanding, the Company shall use its best efforts to cause all shares
of Common Stock issuable upon the exercise of this Warrant to be listed on the
Over The Counter Bulletin Board or on Nasdaq or a national securities exchange,
if such shares of Common Stock, as a class, are theretofore so listed.
4. Fractional Shares. No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of this Warrant. Any fraction of a
share called for upon any exercise hereof shall be canceled. The Warrant Holder,
by his acceptance hereof, expressly waives any right to receive any fractional
share of stock or fractional Warrant upon exercise of this Warrant.
5. Exchange. Transfer. Assignment or Loss of Warrant. This Warrant is
exchangeable, without expense, at the option of the Warrant Holder, upon
presentation and surrender of this Warrant to the Company at its office or at
the office of its stock transfer agent, if any, for other Warrants of different
denominations entitling the Warrant Holder thereof to purchase in the aggregate
the same number of shares of Common Stock as are purchasable thereunder at the
same respective Exercise Price. Subject to Section 10 hereof, upon surrender of
this Warrant to the Company at its principal office or at the office of its
stock transfer agent, if any, with a duly executed Assignment Form which is
annexed hereto and funds sufficient to pay the applicable transfer tax, if any,
the Company shall, without charge, execute and deliver a new Warrant in the name
of the assignee named in such instrument of assignment and the original Warrant
Certificate shall promptly be canceled. This Warrant may be divided or combined
with other Warrants which carry the same rights upon presentation of the Warrant
Certificate evidencing such Warrants at the office of the Company or at the
office of its stock transfer agent, if any, together with a written notice
signed by the Warrant Holder hereof specifying the names and denominations in
which new Warrant is to be issued. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and, in the case of loss, theft or destruction, of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will execute and deliver a new Warrant of
like tenor and date.
6. Rights of the Warrant Holder. The Warrant Holder shall not, by virtue
hereof, be entitled to any rights of a shareholder of the Company until exercise
of any Warrants.
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7. Adjustments of Purchase Price and Number of Shares.
(a) Subdivision and Combination. If the Company shall at any time
subdivide or combine the outstanding shares of Common Stock by way of stock
split, reverse stock split or the like, the Exercise Prices shall forthwith be
proportionately increased or decreased.
(b) Adjustment in Number of Shares. Upon each adjustment of the Exercise
Price pursuant to the provisions of Section 7(a), the number of Shares issuable
upon the exercise of each Warrant shall be adjusted to the nearest full Share by
multiplying a number equal to the Exercise Price in effect immediately prior to
such adjustment by the number of Shares issuable upon exercise of this Warrant
immediately prior to such adjustment and dividing the product so obtained by the
adjusted Exercise Price.
(c) Reclassification, Consolidation, Merger, etc. In case of any
reclassification or change of the outstanding shares of Common Stock (other than
a change in par value to no par value, or from no par value to par value, or as
a result of a subdivision or combination), or in the case of any consolidation
of the Company with, or merger of the Company into, another corporation (other
than a consolidation or merger in which the Company is the surviving corporation
and which does not result in any reclassification or change of the outstanding
shares of Common Stock, except a change as a result of a subdivision or
combination of such shares or a change in par value, as aforesaid), or in the
case of a sale or conveyance to another corporation of all or a substantial part
of the property of the Company, the Warrant Holder shall thereafter have the
right to purchase the kind and number of shares of stock and other securities
and property receivable upon such reclassification, change, consolidation,
merger, sale or conveyance as if the Warrant Holder were the owner of the shares
of Common Stock underlying this Warrant immediately prior to any such events at
a price equal to the product of (x) the number of shares issuable upon exercise
of this Warrant and (y) the Exercise Price in effect immediately prior to the
record date for such reclassification, change, consolidation, merger, sale or
conveyance as if such Warrant Holder had exercised this Warrant.
(d) Dividends and Other Distributions with Respect to Outstanding
Securities. 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 a cash dividend or distribution payable out
of current or retained earnings) or otherwise distribute to its shareholders any
monies, assets, property, rights, evidences of indebtedness, securities (other
than shares of Common Stock), whether issued by the Company or by another person
or entity, or any other thing of value, the Warrant Holder of the unexercised
Warrants shall thereafter be entitled, in addition to the shares of Common Stock
or other securities receivable upon the exercise thereof, to receive, upon the
exercise of such Warrants, the same monies, property, assets, rights, evidences
of indebtedness, securities or any other thing of value that they would have
been entitled to receive at the time of such dividend or distribution. At the
time of any such dividend or distribution, the Company shall make appropriate
reserves to ensure the timely performance of the provisions of this Section
7(d).
(e) Warrant Certificate After Adjustment. Irrespective of any change
pursuant to this Section 7 in the Exercise Price or in the number, kind or class
of shares or other securities or other property obtainable upon exercise of this
Warrant, this Warrant may continue
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to express as the Exercise Price and as the number of shares obtainable upon
exercise, the same price and number of shares as are stated herein.
(f) Statement of Calculation. Whenever the Exercise Price shall be
adjusted pursuant to the provisions of this Section 7, the Company shall
forthwith file at its principal office, a statement signed by an executive
officer of the Company specifying the adjusted Exercise Price determined as
above provided in such section. Such statement shall show in reasonable detail
the method of calculation of such adjustment and the facts requiring the
adjustment and upon which the calculation is based. The Company shall forthwith
cause a notice setting forth the adjusted Exercise Price to be sent by certified
mail, return receipt requested, postage prepaid, to the Warrant Holder.
8. Definition of "Common Stock." For the purpose of this Warrant, the term
"Common Stock" shall mean, in addition to the class of stock designated as the
Common Stock, $.001 par value, of the Company on the date hereof, any class of
stock resulting from successive changes or reclassifications of the Common Stock
consisting solely of changes in par value, or from par value to no par value, or
from no par value to par value. If at any time, as a result of an adjustment
made pursuant to one or more of the provisions of Section 7 hereof, the shares
of stock or other securities or property obtainable upon exercise of this
Warrant shall include securities of the Company other than shares of Common
Stock or securities of another corporation, then thereafter the amount of such
other securities so obtainable shall be subject to adjustment from time to time
in a manner and upon terms as nearly equivalent as practicable to the provisions
with respect to Common Stock contained in Section 7 hereof and all other
provisions of this Warrant with respect to Common Stock shall apply on like
terms to any such other shares or other securities.
9. Registration Under the Securities Act of 1933. The holders of Warrant
Shares issueable upon exercise of this Warrant shall have unlimited piggyback
registration rights in any registration statement filed by the Company. The
foregoing registration obligation of the Company may be set forth in a
registration rights agreement, the terms of which when executed, shall be
incorporated by reference into this Warrant as if such terms are set forth at
length herein.
10. Transfer to Comply with the Act. Neither Warrants nor the Warrant
Shares nor any other security issued or issuable upon exercise of this Warrant
may be sold or otherwise disposed of except as follows:
(a) to a person who, in the opinion of counsel for the Company, is a
person to whom this Warrant or Warrant Shares may legally be transferred without
registration and without the delivery of a current prospectus under the
Securities Act of 1933, as amended (the "Act"), with respect thereto and then
only against receipt of a letter from such person in which such person
represents that he is acquiring this Warrant or Warrant Shares for his own
account for investment purposes and not with a view to distribution and provides
any other information and representations required by the Company, and in which
such person agrees to comply with the provisions of this Section 10 with respect
to any resale or other disposition of such securities; or
(b) to any person upon delivery of a prospectus then meeting the
requirements of the Act relating to such securities and the offering thereof for
such sale or disposition.
11. Notices to Warrant Holders. Nothing contained in this Agreement shall
be construed as conferring upon the Warrant Holder the right to vote or to
consent or to receive notice as a shareholder in respect of any meetings of
shareholders for the election of directors or any other matter, or as having any
rights whatsoever as a shareholder of the Company. If, however, at any time
prior to the expiration of this Warrant and their exercise, any of the following
events shall occur:
(a) The Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) The Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible into
or exchangeable for shares of capital stock of the Company, or any warrant,
right or option to subscribe therefor; or
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(c) A dissolution, liquidation or winding up of the Company (other than
in connection with a consolidation or merger) or a sale of all or substantially
all of its property, assets and business shall be proposed; or
(d) There shall be any capital reorganization or reclassification of the
capital stock of the Company, or consolidation or merger of the Company with
another entity, then, in anyone or more of said events, the Company shall give
written notice of such event at least fifteen (15) days prior to the date fixed
as a record date or the date of closing the transfer books for the determination
of the shareholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, warrants or options, or entitled
to vote on such proposed dissolution, liquidation, winding up or sale. Such
notice shall specify such record date or the date of closing the transfer books,
as the case may be. Failure to give such notice or any defect therein shall not
affect the validity of any action taken in connection with the declaration or
payment of any such dividend or distribution, or the issuance of any convertible
or exchangeable securities or subscription rights, warrants or options, or any
proposed dissolution, liquidation, winding up or sale.
12. Notices.
(a) All communications under this Agreement shall be in writing and
shall be mailed by certified mail, postage prepaid, return receipt requested, or
telecopied with confirmation of receipt or delivered by hand or by overnight
delivery service:
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If to the Company, at: Applied DNA Sciences, Inc.
00 Xxxxxx Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn: President
If to the Warrant Holder, to the address of such Warrant Holder as it
appears in the stock or warrant ledger of the Company.
(b) Any notice so addressed, when mailed by registered or certified mail
shall be deemed to be given three days after so mailed, when telecopied shall be
deemed to be given when transmitted, or when delivered by hand or overnight
shall be deemed to be given when hand delivered or on the day following deposit
with the overnight delivery service.
13. Successors. All the covenants and provisions of this Warrant by or for
the benefit of the Warrant Holder shall inure to the benefit of his successors
and assigns hereunder.
14. Termination. This Warrant will terminate on the earlier of (a) the
expiration date of this Warrant or (b) the date all of this Warrant shall have
been exercised.
15. Governing Law. This Warrant shall be deemed to be made under the laws
of the State of New York and for all purposes shall be construed in accordance
with the laws of said State, excluding choice of law principles thereof.
16. Entire Agreement, Amendment, Waiver. This Warrant and all attachments
hereto and all incorporation by references set forth herein, set forth the
entire agreement and understanding between the parties as to the subject matter
hereof and merges and supersedes all prior discussions, agreements and
understandings of any and every nature among them. This Warrant may be amended,
the Company may take any action herein prohibited or omit to take any action
herein required to be performed by it, and any breach of any covenant,
agreement, warranty or representation may be waived, only if the Company has
obtained the written consent or waiver of the Warrant Holder. No course of
dealing between or among any persons having any interest in this Warrant will be
deemed effective to modify, amend or discharge any part of this Warrant or any
rights or obligations of any person under or by reason of this Warrant.
THIS SPACE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the undersigned has executed this Warrant as of this
1st day of September, 2006.
APPLIED DNA SCIENCES, INC.
By:
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Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
Attest:
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APPLIED DNA SCIENCES, INC.
WARRANT EXERCISE FORM
(To be executed upon exercise Warrant)
The undersigned, the record holder of this Warrant, hereby irrevocably
elects to exercise the right, represented by this Warrant, to purchase ___ of
the Warrant Shares.
The undersigned requests that a certificate for the Warrant Shares being
purchased be registered in the name of ______________ and that such certificate
be delivered to __________.
Dated: _____________
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(Signature)
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(Printed Name)
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