Exhibit 4.4
FORM OF WARRANT
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR ANY OTHER APPLICABLE STATE SECURITIES LAWS. NEITHER THIS WARRANT NOR THE
SHARES ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD, PLEDGED, TRANSFERRED,
ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR IN A TRANSACTION WHICH IS EXEMPT FROM
REGISTRATION UNDER THE PROVISIONS OF THE SECURITIES ACT OR ANY APPLICABLE STATE
LAWS. THIS WARRANT MAY NOT BE EXERCISED BY OR ON BEHALF OF A UNITED STATES
PERSON UNLESS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE.
Agreement and Warrant to Purchase ____________ Common Shares
of
BIOPHAN TECHNOLOGIES, INC.
This certifies that, for value received, __________________, the
registered holder hereof, or his assigns (the "Warrantholder") is entitled to
purchase from Biophan Technologies, Inc., a Nevada corporation with its
principal office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (the "Company") _________________ shares of common stock of the Company
(the "Shares") at or before 5:00 p.m. Eastern Standard Time on July 30, 2007 at
the purchase price per share of $1.00 (the "Warrant Price"), subject to the
following terms and conditions. The number of Shares purchasable upon exercise
of this Warrant and the Warrant Price per Share shall be subject to adjustment
from time to time as set forth herein.
1. Exercise. This Warrant may be exercised in whole or in part by presentation
of this Warrant with the Purchase Form as attached hereto duly completed and
executed, together with payment of the Warrant Price at the principal office of
the Company. Payment of the Warrant Price may be made in cash, by wire transfer
or by check. Upon surrender of the Warrant and payment of such Warrant Price as
aforesaid, the Company shall issue and cause to be delivered with all reasonable
dispatch to or upon the written order of the Warrantholder and in such name or
names as the Warrantholder may designate a certificate or certificates for the
number of full Shares so purchased upon the exercise of the Warrant, together
with Fractional Warrants, as provided in Section 8 hereof, in respect of any
fractional Shares otherwise issuable upon such surrender. Such certificate or
certificates shall be deemed to have been issued and any person so designated to
be named therein shall be deemed to have become a holder of record of such
Shares as of the date of the surrender of the Warrant and the payment of the
Warrant Price, as aforesaid, notwithstanding that the certificates representing
the Shares shall not actually have been delivered or that the stock transfer
books of the Company shall then be closed. The Warrant shall be exercisable, at
the election of the Warrantholder, either in full or from time to time in part
and, in the event that a certificate evidencing the Warrant is exercised in
respect of less than all of the Shares specified therein at any time prior to
the Termination Date, a new certificate evidencing the remaining Warrant will be
issued by the Company.
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2. Reservation of Shares. There has been reserved, and the Company shall at all
times keep reserved so long as the Warrant remains outstanding, out of its
authorized Common Shares, such number of Shares as shall be subject to purchase
under the Warrant. Every transfer agent for the Common Shares and other
securities of the Company issuable upon the exercise of the Warrant will be
irrevocably authorized and directed at all times to reserve such number of
authorized Shares and other securities as shall be requisite for such purpose.
The Company will keep a copy of this Warrant on file with every transfer agent
for the Common Shares and other securities of the Company issuable upon the
exercise of the Warrant. The Company will supply such transfer agent with duly
executed stock and other certificates for such purpose.
3. Further Obligations of Company. The Company covenants and agrees that all
Shares which may be delivered upon exercise of this Warrant shall, upon
delivery, be fully paid and non-assessable, and be free from all taxes, liens
and charges with respect to the purchase thereof hereunder, and without limiting
the generality of the foregoing, the Company covenants and agrees that it shall
from time to time take all such action as may be necessary to assure that the
par value per share of the Common Shares is at all times equal to or less than
the then current Warrant Price per share of the Common Shares issuable pursuant
to this Warrant.
4. Registration and Transfer. The Warrant shall be registered on the books of
the Company when issued and shall be transferable only on the books of the
Company maintained at its principal office in Rochester, New York, or wherever
its principal executive offices may then be located, upon delivery thereof duly
endorsed by the Warrantholder or its duly authorized attorney or representative,
or accompanied by proper evidence of succession, assignment or authority to
transfer. Upon any registration or transfer, the Company shall execute and
deliver a new Warrant to the person entitled thereto. Notwithstanding any other
provision hereof, this Warrant may not be transferred to any person other than
an affiliate of Warrantholder without the express written consent of the
Company.
5. Exchange of Warrant Certificate. This Warrant certificate may be exchanged
for another certificate or certificates entitling the Warrantholder to purchase
a like aggregate number of Shares as the certificate or certificates surrendered
then entitled the Warrantholder to purchase. The Warrantholder desiring to
exchange a Warrant certificate shall make such request in writing delivered to
the Company, and shall surrender, properly endorsed, the certificate evidencing
the Warrant to be so exchanged. Thereupon, the Company shall execute and deliver
to the person entitled thereto a new Warrant certificate as so requested.
6. Adjustment of Warrant Price and Number of Shares.
6.1. General. The number of Shares purchasable upon the exercise of the
Warrant and the Warrant Price shall be subject to adjustment from time to
time upon the happening of certain events, as follows:
6.1.1. In case the Company shall, with regard to its Common Shares
(or securities convertible into or exchangeable for Common Shares)
(a) pay a dividend in Common Shares or make a distribution in Common
Shares, (b) subdivide its outstanding Common Shares into a greater
number of Shares, (c) combine its outstanding Common Shares into a
smaller number of Common Shares, or (d) issue by reclassification of
its Common Shares other securities of the Company, the number of
Shares purchasable upon exercise of the Warrant immediately prior
thereto shall be adjusted so that the Warrantholder shall be
entitled to receive the kind and number of Shares or other
securities of the Company which it would have owned or would have
been entitled to receive after the happening of any of the events
described above, had the Warrant been exercised immediately prior to
the happening of such event or any record date with respect thereto.
Any adjustment made pursuant to this subsection shall become
effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
6.1.2. In case the Company shall fix a record date for the issuance
of rights or warrants to all holders of Common Shares entitling them
for a period expiring within forty-five (45) calendar days (after
such record date) to subscribe for or purchase Common Shares at a
price per share of Common Shares less than the Closing Price per
share of Common Shares on such record date, the Warrant Price to be
in effect after such record date shall be determined by multiplying
the Warrant Price in effect immediately prior to such record date by
a fraction, of which the numerator shall be the number of shares of
Common Shares outstanding on such record date plus the number of
shares of Common Shares which the aggregate offering price of the
total number of shares of Common Shares so to be offered would
purchase at such Closing Price and of which the denominator shall be
the number of shares of Common Shares outstanding on such record
date plus the number of additional shares of Common Shares to be
offered for subscription or purchase. Shares of Common Shares owned
by or held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. Such
adjustments shall be made successively whenever such record date is
fixed; and in the event that such rights or warrants are not so
issued, the Warrant Price shall again be adjusted to be the Warrant
Price which would then be in effect if such record date had not been
fixed.
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6.1.3. In case the Company shall fix a record date for the making of
a distribution to all holders of Common Shares (including any
distribution made in connection with a consolidation or merger in
which the Company is the continuing corporation) of evidence of
indebtedness or assets (other than cash dividends or cash
distributions payable out of consolidated earnings or earned surplus
or dividends payable in Common Shares) or subscription rights or
warrants (excluding those referred to in Section 6.1.2), the Warrant
Price to be in effect after such record date shall be determined by
multiplying the Warrant Price in effect immediately prior to such
record date by a fraction of which the numerator shall be the
Closing Price per shares of Common Shares on such record date, less
the fair market value (as determined by the Board of Directors of
the Company, whose determination shall be conclusive absent manifest
error) of the portion of the assets or evidences of indebtedness so
to be distributed or of such subscription rights or warrants
applicable to one share of Common Shares and of which the
denominator shall be the Closing Price per share of Common Shares.
Such adjustments shall be made successively whenever such a record
date is fixed; and in the event that such distribution is not so
made, the Warrant Price shall again be adjusted to be the Warrant
Price which would then be in effect if such record date had not been
fixed.
6.1.4. No adjustment in the number of Shares purchasable hereunder
shall be required unless such adjustment would require an increase
or decrease of at least one percent in the aggregate number of
Shares then purchasable upon the exercise of the Warrant; provided
however, that any adjustments which by reason of this Section 6.1.4
are not required to be made immediately shall be carried forward and
taken into account in any subsequent adjustment.
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6.1.5. Whenever the number of Shares purchasable upon the exercise
of the Warrant is adjusted as herein provided, the Warrant Price
payable upon exercise of the Warrant shall be adjusted by
multiplying such Warrant Price immediately prior to such adjustment
by a fraction, of which the numerator shall be the number of Shares
purchasable upon the exercise of the Warrant immediately prior to
such adjustment, and of which the denominator shall be the number of
shares so purchasable immediately thereafter. Whenever the Warrant
Price is adjusted as herein provided, the number of Shares
purchasable upon the exercise of the Warrant shall be adjusted so
that thereafter the Warrant shall evidence the right to purchase, at
the adjusted Warrant Price, that number of Shares obtained by
multiplying the number of Shares converted by the Warrant Price in
effect immediately prior to such adjustment and dividing the product
so obtained by the Warrant Price in effect immediately after such
adjustment.
6.1.6. Whenever the number of Shares purchasable upon the exercise
of this Warrant or the Warrant Price is adjusted as herein provided,
the Company shall cause to be promptly mailed to the Warrantholder
in accordance with the provisions of Section 10 hereof, notice of
such adjustment or adjustments and a certificate of a firm of
independent public accountants selected by the Board of Directors of
the Company (who may be the regular accountants employed by the
Company) setting forth the number of Shares purchasable upon the
exercise of the Warrant and the Warrant Price after such adjustment,
a brief statement of the facts requiring such adjustment, and the
computation by which such adjustment was made.
6.1.7. For the purpose of this Section 6.1, the term "Common Shares"
shall mean (a) the class of shares designated as (or convertible or
exercisable for) the Common Shares of the Company at the date of
this Agreement, or (b) any other class of shares resulting from
successive changes or reclassifications of such Common Shares
including changes in par value, or from par value to no par value,
or from no par value to par value. In the event that at any time, as
a result of an adjustment made pursuant to this Section 7, the
Warrantholder shall become entitled to purchase any shares of the
Company other than Common Shares, thereafter the number of such
other shares so purchasable upon exercise of the Warrant and the
Warrant Price of such shares shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Shares contained
in this Section 6.
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6.2. No Adjustment of Dividends. Except as provided in Section 6.1, no
adjustment in respect of regular cash dividends shall be made during the
term of the Warrant or upon the exercise of the Warrant.
6.3. Preservation of Purchase Rights upon Reorganization,
Reclassification, Consolidation, Merger, etc. In case of any capital
reorganization or reclassification of the Common Shares of the Company, or
in case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale or conveyance to another
person of the property, assets or business of the Company as an entirety
or substantially as an entirety, the Company or such successor or
purchaser, as the case may be, shall execute with the Warrantholder an
agreement that the Warrantholder shall have the right thereafter upon
payment of the Warrant Price in effect immediately prior to such action to
purchase upon exercise of the Warrant the kind and amount of shares and
other securities and property which it would have owned or have been
entitled to receive after the happening of such reorganization or
reclassification, consolidation, merger, sale or conveyance had the
Warrant been exercised immediately prior to such action. In the event of a
merger described in Section 368(a)(2)(E) of the Internal Revenue Code of
1986, as amended, in which the Company is the surviving corporation, the
right to purchase Shares under the Warrant shall terminate on the date of
such merger and thereupon the Warrant shall become null and void but only
if the controlling corporation shall agree to substitute for the Warrant
its warrant which entitles the holder thereof to purchase upon its
exercise the kind and amount of shares and other securities and property
which it would have owned or had been entitled to receive had the Warrant
been exercised immediately prior to such merger. The adjustments required
by this Section 6.3 shall be effected in a manner which shall be as nearly
equivalent as may be practicable to the adjustments provided for elsewhere
in this Section 6. The provisions of this Section 6.3 shall similarly
apply to successive consolidations, mergers, sales or conveyances.
6.4. Statement on Warrants. Irrespective of any adjustments in the Warrant
Price or the number or kind of Shares purchasable upon the exercise of the
Warrant, the Warrant certificate or certificates theretofore or thereafter
issued may continue to express the same price and number and kind of
Shares as are stated in this initially issued Warrant.
7. Fractional Shares. The Company shall not be required to issue fractional
Shares on the exercise of the Warrant. If any fraction of a Share would, except
for the provisions of this Section 7, be issuable on the exercise of the Warrant
(or specified portion thereof), the Company shall issue to the Warrantholder a
fractional Warrant entitling Warrantholder, upon surrender with other fractional
Warrants aggregating one or more full Shares, to purchase such full Shares. If
fractional Warrants do not aggregate a full Share, their value (over and above
their exercise price) shall be paid in full in cash upon exercise to the
exercising Warrantholder.
8. No Rights as Shareholder; Notices to Warrantholder. Nothing contained in this
Agreement or in any of the Warrants shall be construed as conferring upon the
Warrantholder or its transferees any rights as a shareholder of the Company,
including the right to vote, receive dividends, or consent as a shareholder in
respect of any meeting of shareholders for the election of directors of the
Company or any other matter. However, the Company shall be required to give
notice in writing to the Warrantholder of any meeting of shareholders of the
Company or any proposed consent of the shareholders as provided in Section 9
hereof at least twenty (20) 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 any relevant dividend, distribution, subscription rights or other
rights or for the determination of shareholders entitled to vote at any such
meeting or as to which any consent is requested. Such notice shall specify such
record date or the date of closing the transfer books, as the case may be.
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9. Notices. Any notice pursuant to this Agreement by the Company or by the
Warrantholder shall be in writing and shall be deemed to have been duly given if
delivered by hand or if mailed by certified mail, return receipt requested,
postage prepaid, addressed as follows:
9.1. If to the Warrantholder - addressed to ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
9.2. If to the Company - addressed to Biophan Technologies, Inc., ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇, Secretary, or to such other addresses as any such party
may designate by notice to the other party.
Notices shall be deemed given at the time they are delivered personally or
three (3) days after they are mailed in the manner set forth above.
10. Successors. All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Warrantholder shall bind and inure to the benefit
of their respective successors and assigns hereunder.
11. Merger or Consolidation of the Company. The Company will not merge or
consolidate with or into any other corporation or sell all or substantially all
of its property to another person, unless the provisions of Section 6.3 are
complied with.
12. Applicable Law. This Agreement shall be deemed to be a contract 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 applicable to contracts made and to be
performed entirely within such State.
13. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
14. Headings. The headings in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officers and the corporate seal hereunto fixed.
BIOPHAN TECHNOLOGIES, INC.
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇, CFO
AGREED TO AND ACCEPTED BY:
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PURCHASE FORM
To: Biophan Technologies, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(1) The undersigned hereby elects to purchase ________ shares of Common Stock
(the "Common Stock") of Biophan Technologies, Inc. pursuant to the terms of the
attached Warrant, and tenders herewith payment of the exercise price in full,
together with all applicable transfer taxes, if any.
(2) _Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
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(Name)
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(Address)
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Dated:
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Signature
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ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby
are hereby assigned to
whose address is
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Dated: ______________, _______
Holder's Signature: _____________________________
Holder's Address:_____________________________
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Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in an fiduciary or other representative
capacity should file proper evidence of authority to assign the foregoing
Warrant.
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