WARRANT TO PURCHASE COMMON STOCK OF NEURO-HITECH, INC.
THIS
WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
OR UNDER THE SECURITIES LAWS OF ANY APPLICABLE STATES. THESE SECURITIES ARE
SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED
OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS
SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS
INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES
MAY
REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER
TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
WARRANT
TO PURCHASE COMMON STOCK
OF
|
Warrant
No. _____
|
Issued
on December 14, 2007
|
|
Void
after December 14, 2012
|
|
This
certifies that in connection with the Purchase Agreement (as defined below),
[_______] (the “Investor”)
is
entitled, subject to the terms and conditions of this Warrant, to purchase
from
Neuro-Hitech, Inc., a Delaware corporation (the “Company”),
at
any time prior to Expiration Date up to [•] shares of the Company’s Common
Stock, $0.001 par value per share (the “Common
Stock”)
at a
price per share equal to the Warrant Price (as defined below), upon surrender
of
this Warrant at the principal offices of the Company, together with a duly
executed subscription form in the form attached hereto as Exhibit
1
and
simultaneous payment of the full Warrant Price for the shares of Common Stock
so
purchased in lawful money of the United States, or as otherwise provided herein.
The Warrant Price and the number and character of shares of Common Stock
purchasable under this Warrant are subject to adjustment as provided
herein.
This
Warrant is issued pursuant to the Stock and Warrant Purchase Agreement of even
date herewith, by and among the Company and each person identified as an
Investor on the signature pages thereto (the “Purchase
Agreement”),
and
is subject to the provisions set forth therein.
1.
DEFINITIONS.
The
following definitions shall apply for purposes of this Warrant:
1.1“Company”
means
the “Company”
as
defined above and includes any corporation which shall succeed to or assume
the
obligations of the Company under this Warrant.
1.2
[Intentionally Omitted]
1
1.3“Expiration
Date”
means
December 14, 2012.
1.4“Fair
Market Value”
on
any
day shall mean the
average of the high and low prices of publicly traded shares of Common Stock,
rounded to the nearest cent, on the principal national securities exchange
on
which shares of Common Stock are listed (if the shares of Common Stock are
so
listed), or on the NASDAQ Capital Market (if the shares of Stock are regularly
quoted on the NASDAQ Capital Market), or, if not so listed or regularly quoted,
the mean between the closing bid and asked prices of publicly traded shares
of
Common Stock in the over-the-counter market, or, if such bid and asked prices
shall not be available, as reported by any nationally recognized quotation
service selected by the Company, or as determined by the Board of Directors
in a
manner consistent with the provisions of the Internal Revenue Code, as
amended.
1.5“Holder”
means
any person who shall at the time be the registered holder of this
Warrant.
1.6“Warrant”
means
this Warrant and any warrant(s) delivered in substitution or exchange therefor,
as provided herein.
1.7“Warrant
Price”
means,
$7.00 per share unless this Warrant is exercised prior to the later of
(i) April 30, 2008 or (ii) thirty days after a registration statement
registering the Warrant Shares is declared effective by the Securities and
Exchange Commission (“SEC”),
in
which case the Warrant Price means $5.00 per share, and in each case as adjusted
pursuant to the provisions of Section 4.
1.8“Warrant
Shares”
means
shares of Common Stock issuable upon exercise of the Warrant.
2.
EXERCISE.
2.1
Timing
and Method of Exercise.
Subject
to the terms and conditions of this Warrant, the Holder may exercise this
Warrant on any business day before the Expiration Date for up to _______________
shares of Common Stock, by surrendering this Warrant at the principal offices
of
the Company, with the subscription form attached hereto duly executed by the
Holder, and payment of an amount equal to the product obtained by multiplying
(i) the number of shares of Common Stock to be purchased by the Holder by (ii)
the Warrant Price therefor, if applicable, as determined in accordance with
the
terms hereof.
2.2
Form
of Payment.
Except
as provided in Section 2.1(b) above, payment may be made by (i) a check payable
to the Company’s order, (ii) wire transfer of funds to the Company, or (iii) any
combination of the foregoing.
2.3
No
Fractional Shares.
No
fractional shares may be issued upon any exercise of this Warrant, and any
fractions shall be rounded down to the nearest whole number of shares. If upon
any exercise of this Warrant a fraction of a share results, the Company will
pay
the cash value of any such fractional share, calculated on the basis of the
difference between the Fair Market Value and the Warrant Price.
2
2.4
Restrictions
on Exercise.
This
Warrant may not be exercised if the issuance of the Warrant Shares upon such
exercise would constitute a violation of any applicable federal or state
securities laws or other laws or regulations. As a condition to the exercise
of
this Warrant, the Holder shall execute the subscription form attached hereto
as
Exhibit
1,
confirming and acknowledging that the representations and warranties made by
the
Holder in the “Qualification Questionnaire” described in Section 1.1 of the
Purchase Agreement are true and correct as of the date of exercise.
3.
ISSUANCE
OF STOCK.
This
Warrant shall be deemed to have been exercised immediately prior to the close
of
business on the date of its surrender for exercise as provided above, and the
person entitled to receive the shares of common stock issuable upon such
exercise shall be treated for all purposes as the holder of record of such
shares as of the close of business on such date. As soon as practicable on
or
after such date, the Company shall issue and deliver to the person or persons
entitled to receive the same a certificate or certificates for the number of
whole shares of Warrant Shares issuable upon such exercise.
4.
ADJUSTMENT
PROVISIONS.
The
number and character of shares of common stock issuable upon exercise of this
Warrant (or any shares of stock or other securities or property at the time
receivable or issuable upon exercise of this Warrant) and the Warrant Price
therefor, are subject to adjustment upon the occurrence of the following events
between the date this Warrant is issued and the date it is
exercised:
4.1
Adjustment
for Stock Splits and Stock Dividends.
The
Warrant Price of this Warrant and the number of Warrant Shares issuable upon
exercise of this Warrant (or any shares of stock or other securities at the
time
issuable upon exercise of this Warrant) shall each be proportionally adjusted
to
reflect any stock dividend, stock split or reverse stock split, or other similar
event affecting the number of outstanding shares of Common Stock (or such other
stock or securities).
4.2
Adjustment
for Other Dividends and Distributions.
In case
the Company shall make or issue, or shall fix a record date for the
determination of eligible holders entitled to receive, a dividend or other
distribution payable respect to the Common Stock that is payable in (a)
securities of the Company (other than issuances with respect to which adjustment
is made under Sections 4.1 or 4.3) or (b) assets (other than cash dividends
paid
or payable solely out of retained earnings), then, and in each such case, the
Holder, upon exercise of this Warrant at any time after the consummation,
effective date or record date of such event, shall receive, in addition to
the
shares of Common Stock issuable upon such exercise prior to such date, the
securities or such other assets of the Company to which the Holder would have
been entitled upon such date if the Holder had exercised this Warrant
immediately prior thereto (all subject to further adjustment as provided in
this
Warrant).
4.3
Adjustment
for Reorganization, Consolidation, Merger.
In case
of any recapitalization or reorganization of the Company after the date of
this
Warrant, or in case, after such date, the Company shall consolidate with or
merge into another corporation, then, and in each such case, the Holder, upon
the exercise of this Warrant (as provided in Section 2), at any time after
the
consummation of such recapitalization, reorganization, consolidation or merger,
shall be entitled to receive, in lieu of the stock or other securities and
property receivable upon the exercise of this Warrant prior to such
consummation, the stock or other securities or property to which the Holder
would have been entitled upon the consummation of such recapitalization,
reorganization, consolidation or merger if the Holder had exercised this Warrant
immediately prior thereto, all subject to further adjustment as provided in
this
Warrant, and the successor or purchasing corporation in such reorganization,
consolidation or merger (if other than the Company) shall duly execute and
deliver to the Holder a supplement hereto acknowledging such corporation’s
obligations under this Warrant; and in each such case, the terms of this Warrant
shall be applicable to the shares of stock or other securities or property
receivable upon the exercise of this Warrant after the consummation of such
reorganization, consolidation or merger.
3
4.4
Conversion
of Stock.
In case
all the authorized Common Stock of the Company is converted, pursuant to the
Company’s certificate of incorporation, into other securities or property of the
Company, or the Common Stock otherwise ceases to exist, then, in such case,
the
Holder, upon exercise of this Warrant at any time after the date on which the
Common Stock is so converted or ceases to exist (the “Termination
Date”),
shall
receive, in lieu of the number of shares of Common Stock that would have been
issuable upon such exercise immediately prior to the Termination Date (the
“Former
Number of Shares of Common Stock”),
the
stock and other securities and property which the Holder would have been
entitled to receive upon the Termination Date if the Holder had exercised this
Warrant with respect to the Former Number of Shares of Common Stock immediately
prior to the Termination Date (all subject to further adjustment as provided
in
this Warrant).
4.5
Adjustments
Due to Issuances of Common Stock.
(a) Except
as
otherwise provided in Sections 4.1, 4.2, 4.3 and 4.4, if and whenever on or
after the date of issuance of this Warrant, the Company issues or sells, or
is
deemed to have issued or sold, any shares of Common Stock for no consideration
or for consideration per share less than a price equal to the Warrant Price
in
effect immediately prior to such issuance or sale, then immediately after such
issuance or sale, the Warrant Price then in effect shall be reduced to an amount
equal to the product of (x) the Warrant Price in effect immediately prior to
such issuance or sale and (y) quotient obtained by dividing (I) the sum of
(a)
the number of shares of Common Stock Deemed Outstanding (as defined below)
immediately prior to such issuance or sale and (b) the quotient determined
by
dividing (i) the consideration, if any, received by the Company upon such
issuance or sale by (ii) the Warrant Price by (II) the number of shares of
Common Stock Deemed Outstanding immediately after such issuance or sale.
Upon
each
such adjustment of the Warrant Price hereunder, the number of shares of Common
Stock acquirable upon exercise of this Warrant shall be adjusted to the number
of shares determined by multiplying the Warrant Price in effect immediately
prior to such adjustment by the number of shares of Common Stock acquirable
upon
exercise of this Warrant immediately prior to such adjustment and dividing
the
product thereof by the Warrant Price resulting from such adjustment.
“Common
Stock Deemed Outstanding”
means
the number of shares of Common Stock actually outstanding (not including shares
of Common Stock held in the treasury of the Company), plus (A) in case of any
adjustment required by Section 4.6 resulting from the issuance of any Options
(as defined below), the maximum total number of shares of Common Stock issuable
upon the exercise of the Options for which the adjustment is required (including
any Common Stock issuable upon the conversion of Convertible Securities (as
defined below) issuable upon the exercise of such Options), and (B) in the
case
of any adjustment required by Section 4.6 resulting from the issuance of any
Convertible Securities, the maximum total number of shares of Common Stock
issuable upon the exercise, conversion or exchange of the Convertible Securities
for which the adjustment is required, as of the date of issuance of such
Convertible Securities, if any. To the extent that shares of Common Stock are
issued for cash, the per share price at which such shares were issued shall
be
equal to the quotient determined by dividing the cash proceeds received by
the
Company without deduction for any underwriting discounts or commissions by
the
total number of shares issued in such issuance. To the extent that shares of
Common Stock are issued for consideration other than cash, the per share price
at which such shares were issued shall be equal to the quotient determined
by
dividing the fair value of the consideration received by the Company in exchange
for such shares (as determined in good faith by the Company’s Board of
Directors) by the total number of shares issued in such issuance.
4
4.6 Effect
on Warrant Price of Certain Events.
For
purposes of determining the Warrant Price pursuant to Section 4 hereof, the
following shall be applicable:
(a) Issuance
of Options.
If the
Company in any manner grants any rights, warrants or options to subscribe for
or
purchase Common Stock or Convertible Securities (excluding options granted
in
connection with one or more employee benefit plans approved by the Company's
Board of Directors, pursuant to which the Company's securities may be issued
to
any employee, officer, director, consultant or other service provider of the
Company or any subsidiary (the “Approved
Stock Plans”))
(“Options”)
and
the lowest price per share for which one share of Common Stock is issuable
upon
the exercise of such Options is less than the Warrant Price, then such share
of
Common Stock shall be deemed to be outstanding and to have been issued and
sold
by the Company at the time of the granting or sale of such Option for such
price
per share. For purposes of this Section 4.6(a), the “lowest price per share for
which one share of Common Stock is issuable upon exercise of any such Option”
shall be equal to the sum of the lowest amounts of consideration (if any)
received by the Company with respect to any one share of Common Stock upon
the
granting or sale of the Option, upon exercise of the Option and upon conversion
or exchange of any Convertible Security issuable upon exercise of such Option.
No further adjustment of the Warrant Price shall be made upon the actual
issuance of such Common Stock or of such Convertible Securities upon the
exercise of such Options or upon the actual issuance of such Common Stock upon
conversion or exchange of such Convertible Securities. Upon the expiration
or
termination of any unexercised Option, such Warrant Price shall be readjusted
to
such amount as would have been obtained had the adjustment made upon the
granting or issuance of such Option been made based upon the issuance of only
the number of shares of Common Stock actually issued on exercise of such Option.
Notwithstanding the foregoing, no adjustment shall be made pursuant to this
Section 4.6(a) to the extent that such adjustment is based solely on the fact
that the Convertible Securities issuable upon exercise of such Option are
convertible into or exchangeable for Common Stock at a price which varies with
the market price of the Common Stock.
(b) Issuance
of Convertible Securities.
If the
Company in any manner issues or sells any stock or securities (other than
Options) directly or indirectly convertible into or exchangeable for Common
Stock (“Convertible
Securities”)
and
the lowest price per share for which one share of Common Stock is issuable
upon
the conversion or exchange thereof is less than the Warrant Price, then such
share of Common Stock shall be deemed to be outstanding and to have been issued
and sold by the Company at the time of the granting or sale of such Convertible
Securities for such price per share. For purposes of this Section 4.6(b), the
“lowest price per share for which one share of Common Stock is issuable upon
conversion or exchange” shall be equal to the sum of the lowest amounts of
consideration (if any) received by the Company with respect to any one share
of
Common Stock upon the conversion or exchange of such Convertible Securities,
and
if any such issuance or sale of such Convertible Securities is made upon
exercise of any Options for which adjustment of the Warrant Price has been
or
are to be made pursuant to other provisions of this Section 4, no further
adjustment of the Warrant Price shall be made by reason of such issuance or
sale. Upon the expiration of any rights of conversion or exchange under such
Convertible Securities, such Warrant Price shall be readjusted to such amount
as
would have obtained had the adjustment made upon the granting or issuance of
such Convertible Securities been made based upon the issuance of only the number
of shares of Common Stock actually issued on conversion of such Convertible
Securities. Notwithstanding the foregoing, no adjustment shall be made pursuant
to this Section 4.6(b) to the extent that such adjustment is based solely on
the
fact that such Convertible Securities are convertible into or exchangeable
for
Common Stock at a price which varies with the market price of the Common
Stock.
5
(c) Change
in Option Price or Rate of Conversion.
If the
purchase price provided for in any Options, the additional consideration, if
any, payable upon the issuance, conversion or exchange of any Convertible
Securities, or the rate at which any Convertible Securities are convertible
into
or exchangeable for Common Stock changes at any time, the Warrant Price in
effect at the time of such change shall be adjusted to the Warrant Price which
would have been in effect at such time had such Options or Convertible
Securities provided for such changed purchase price, additional consideration
or
changed conversion rate, as the case may be, at the time initially granted,
issued or sold and the number of shares of Common Stock acquirable hereunder
shall be correspondingly readjusted. For purposes of this Section 4.6(c), if
the
terms of any Option or Convertible Security that was outstanding as of the
date
of issuance of this Warrant are changed in the manner described in the
immediately preceding sentence, then such Option or Convertible Security and
the
Common Stock deemed issuable upon exercise, conversion or exchange thereof
shall
be deemed to have been issued as of the date of such change.
4.7
Notice
of Adjustments.
The
Company shall promptly give written notice of each adjustment or readjustment
of
the Warrant Price or the number of shares of Common Stock or other securities
issuable upon exercise of this Warrant. The notice shall describe the adjustment
or readjustment and show in reasonable detail the facts on which the adjustment
or readjustment is based.
4.8
No
Change Necessary.
The
form of this Warrant need not be changed because of any adjustment in the
Warrant Price or in the number of shares of Common Stock issuable upon its
exercise.
4.9
Reservation
of Stock.
The
Company shall at all times reserve and keep available, solely for the issuance
and delivery upon the exercise of this Warrant, such shares of Common Stock
and
other stock, securities and property, as from time to time shall be issuable
upon the exercise of this Warrant. If at any time the number of shares of Common
Stock or other securities issuable upon exercise of this Warrant shall not
be
sufficient to effect the exercise of this Warrant, the Company will take such
corporate action as may, in the opinion of its counsel, be necessary to increase
its authorized but unissued shares of Common Stock or other securities issuable
upon exercise of this Warrant as shall be sufficient for such purpose. All
shares of Common Stock issued upon exercise of the Warrant shall be validly
issued, fully paid and nonassessable.
6
4.10 Limitation
of Adjustments.
Notwithstanding
the foregoing, under no circumstances will the effective Warrant Price, as
the
case may be, be reduced pursuant to Section 4.5 hereof below $0.001 per share
(as may be adjusted pursuant to Sections 4.1, 4.2, 4.3 and 4.4 hereof).
Notwithstanding
anything to the contrary herein, in no event shall an adjustment pursuant to
Section 4.5 or Section 4.6 to this Warrant and the other warrants issued
pursuant to the Purchase Agreement (together with this Warrant, the “Warrants”)
result in the Warrants being exercisable for a number of shares of Common Stock,
when combined with the shares of Common Stock issued pursuant to the Purchase
Agreement, in excess of the number of shares of Common Stock permitted to be
issued pursuant to the 20% limitation in Rule 4350(i) of the Nasdaq Stock
Market, Inc. without the prior approval of the Company’s stockholders. The
foregoing limitation on the number of shares of Common Stock for which the
Warrants are exercisable prior to such stockholder approval shall be applied
pro
rata among the outstanding Warrants. If the exercise of one or more Warrants
would result in the issuance of shares of Common Stock requiring such
stockholder approval, the Company shall use reasonable commercial efforts to
obtain such approval as is necessary to permit such issuance.
5.
REDEMPTION.
5.1
At any
time after the later of (i) the date which is twenty-four (24) months from
the
date hereof and (ii) the date when there is a currently effective registration
statement registering the resale of the Warrant Shares as contemplated by the
Registration Rights Agreement dated as of the date hereof executed by the
Company and the Holder (the “Registration
Rights Agreement”
and
such registration statement, the “Registration
Statement”)
and
prior to the exercise of this Warrant:
(a) This
Warrant may be redeemed, at the option of the Company, on a date fixed by the
Company for redemption (the “Redemption
Date”),
which
Redemption Date shall not be less than twenty (20) days after the mailing of
the
notice of redemption referred to below, at a redemption price of $0.01 per
Warrant, provided the Market Price (as defined below) of the Common Stock
issuable upon exercise of this Warrant shall exceed 150% of the Warrant Price
for a period of twenty (20) out of thirty (30) consecutive trading days ending
no more than fifteen (15) days prior to the date of the notice of redemption.
Notwithstanding the foregoing, the Company’s right to redeem this Warrant shall
be ineffective if at any time during the period between the time the Company
provides notice of redemption and prior to the Redemption Date, the Registration
Statement ceases to remain effective.
(b) If
the
conditions set forth in Section 5.1(a) are met, and the Company elects to
exercise its right to redeem this Warrant, it shall mail a notice of redemption
to the registered Holder of this Warrant, via facsimile, nationally recognized
courier or first class mail, postage prepaid, not later than the twentieth
(20th)
day
before the Redemption Date, at such last address as shall appear on the records
maintained by the Company.
7
(c) The
notice of redemption shall specify (i) the redemption price, (ii) the Redemption
Date and (iii) that the right to exercise this Warrant shall terminate at 5:00
P.M. (New York time) on the business day immediately preceding the Redemption
Date. No failure to mail such notice nor any defect therein or in the mailing
thereof shall affect the validity of the proceedings for such redemption except
as to a registered Holder (A) to whom notice was not mailed or (B) whose notice
was defective. An affidavit of the Secretary of the Company that notice of
redemption has been mailed shall, in the absence of fraud, be prima facie
evidence of the facts stated therein.
(d) Any
right
to exercise this Warrant shall terminate at 5:00 P.M. (New York City time)
on
the business day immediately preceding the Redemption Date. On and after the
Redemption Date, Holder of this Warrant shall have no further rights except
to
receive, upon surrender of this Warrant, the redemption price.
(e) The
term
“Market
Price”
means
the closing sale price of one share of the Company’s Common Stock on the NASDAQ
Capital Market or other national securities exchange on which the shares are
then listed or, if the Company’s Common Stock is not then traded on the NASDAQ
Capital Market, the closing bid price on any national securities exchange or
automated quotation system on which shares of the Company’s Common Stock are
then quoted.
▇.▇▇
RIGHTS OR LIABILITIES AS STOCKHOLDER.
This
Warrant does not by itself entitle the Holder to any voting rights or other
rights as a stockholder of the Company. In the absence of affirmative action
by
the Holder to purchase Common Stock by exercise of this Warrant, no provisions
of this Warrant, and no enumeration herein of the rights or privileges of the
Holder, shall cause the Holder to be a stockholder of the Company for any
purpose.
7.
NO
IMPAIRMENT.
The
Company will not, by amendment of its certificate of incorporation or bylaws,
or
through reorganization, consolidation, merger, dissolution, issue or sale of
securities, sale of assets or any other voluntary action, willfully avoid or
seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such
terms
and in the taking of all such action as may be necessary or appropriate in
order
to protect the rights of the holder against wrongful impairment. Without
limiting the generality of the foregoing, the Company will take all such action
as may be necessary or appropriate in order that the Company may duly and
validly issue fully paid and nonassessable shares of Common Stock upon the
exercise of this Warrant.
8.
TRANSFER.
Neither
this Warrant nor any rights hereunder may be assigned, conveyed or transferred,
in whole or in part, without the Company’s prior written consent, which the
Company may withhold in its sole discretion. The rights and obligations of
the
Company and the Holder under this Warrant shall be binding upon and benefit
their respective permitted successors, assigns, heirs, administrators and
transferees.
8
9.
GOVERNING
LAW.
The
internal laws of the State of Delaware (irrespective of its choice of law
principles) will govern the validity of this Warrant, the construction of its
terms, and the interpretation and enforcement of the rights and duties of the
parties hereto.
10.
HEADINGS.
The
headings and captions used in this Warrant are used only for convenience and
are
not to be considered in construing or interpreting this Warrant. All references
in this Warrant to sections and exhibits shall, unless otherwise provided,
refer
to sections hereof and exhibits attached hereto, all of which exhibits are
incorporated herein by this reference.
11.
NOTICES.
Any
notice or other communication required or permitted to be given under this
Warrant will be in writing, will be delivered personally or by registered or
certified mail, postage prepaid and will be deemed given upon delivery, if
delivered personally, or three days after deposit in the mails, if mailed,
to
the address indicated for the Holder on the signature page to this Warrant,
or
in the case of the Company, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attn: Chief Financial Officer, or at such other address as any party or the
Company may designate by giving ten (10) days’ advance written notice to all
other parties.
12.
AMENDMENT;
WAIVER.
This
Warrant may be amended and provisions may be waived by the Company and the
Holders entitled upon exercise to receive at least two thirds of the shares
of
Common Stock underlying the warrants issued pursuant to the Purchase Agreement.
Any amendment or waiver effected in accordance with this Section shall be
binding upon the Holder and each future holder of such securities, and the
Company.
13.
SEVERABILITY.
If any
provision of this Warrant, or the application thereof, will for any reason
and
to any extent be invalid or unenforceable, the remainder of this Warrant and
application of such provision to other persons or circumstances will be
interpreted so as reasonably to effect the intent of the parties hereto. The
parties further agree to replace such void or unenforceable provision of this
Agreement with a valid and enforceable provision that will achieve, to the
extent possible, the economic, business and other purposes of the void or
unenforceable provision.
14.
TERMS
BINDING.
By
acceptance of this Warrant, the Holder accepts and agrees to be bound by all
the
terms and conditions of this Warrant.
[Signature
Page Follows]
9
IN
WITNESS WHEREOF,
the
parties hereto have executed this Warrant as of the date first above
written.
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THE
COMPANY:
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By:
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Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇
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||
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Title:
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Chief
Financial Officer
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HOLDER:
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By:
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Name:
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Title:
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10
EXHIBIT
1
FORM
OF SUBSCRIPTION
(To
be
signed only upon exercise of Warrant)
(1) The
undersigned Holder hereby elects to purchase ____________ shares of Common
Stock
of Neuro-Hitech, Inc. (the “Warrant
Shares”),
pursuant to the terms of the attached Warrant, and tenders herewith payment
of
the purchase price for such shares in full.
(2) In
exercising the Warrant, the undersigned Holder hereby confirms and acknowledges
that the following representations are true and correct as of this
date.
a. Purchase
Entirely for Own Account.
The
Warrant and the Common Stock issuable upon exercise of the Warrant are being
acquired by ▇▇▇▇▇▇ for investment for ▇▇▇▇▇▇’s own account, not as a nominee or
agent, and not with a view to the resale or distribution in violation of law
of
any part thereof, and that ▇▇▇▇▇▇ has no present intention of selling, granting
any participation in or otherwise distributing the same. Holder further
represent that he does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the securities issued
or
issuable hereunder.
b. Disclosure
of Information.
▇▇▇▇▇▇
believes it has received all the information it considers necessary or
appropriate for deciding whether to purchase the securities issued or issuable
hereunder. Holder further represents that it has had an opportunity to ask
questions and receive answers from the Company regarding the terms and
conditions of the offering of the securities and the business, properties,
prospects and financial condition of the Company.
c. Investment
Experience.
Holder
is an investor in securities of early stage companies and acknowledges that
it
is able to fend for itself, can bear the economic risk of its investment, and
has such knowledge and experience in financial or business matters that it
is
capable of evaluating the merits and risks of the investment in the
securities.
d. Accredited
Investor.
Holder
is an “accredited investor” within the meaning of SEC Rule 501 of Regulation D
promulgated under the Securities Act, as presently in effect.
e. Restricted
Securities.
Holder
understands that the securities it is receiving are characterized as “restricted
securities” under the federal securities laws inasmuch as they are being
acquired from the Company in a transaction not involving a public offering
and
that under such laws and applicable regulations such securities may be resold
without registration under the Securities Act only in certain limited
circumstances. In the absence of an effective registration statement covering
the securities (or the shares issuable on exercise of the Warrant) or an
available exemption from registration under the Securities Act, the securities
(and any Common Stock issued on exercise thereof) must be held indefinitely.
In
this connection, ▇▇▇▇▇▇ represents that it is familiar with SEC Rule 144, as
presently if effect, and understands the resale limitations imposed thereby
and
by the Securities Act, including without limitation the Rule 144 condition
that
current information about the Company be available to the public.
f. Tax
Advisors.
▇▇▇▇▇▇
has reviewed with ▇▇▇▇▇▇’s own tax advisors the federal, state and local tax
consequences of this investment. Holder is relying solely on such advisors
and
not on any statements or representations of the Company or any of its agents
as
to Holder’s tax liability and understands that Holder (and not the Company)
shall be responsible for Holder’s own tax liability that may arise as a result
of this investment.
(3) Please
issue a certificate or certificates representing such Warrant Shares in the
name
specified below:
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(Name)
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(Address)
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(City,
State, Zip Code)
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(Federal
Tax Identification Number)
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(Date)
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[Signature
Page Follows]
IN
WITNESS WHEREOF,
the
Holder has executed this subscription as of the date above written.
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HOLDER:
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[____________________]
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By:
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Name:
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Title:
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