CLASS D WARRANT TO PURCHASE SHARES OF COMMON STOCK OF CYTOMEDIX, INC. Expires April 12, 2011
Exhibit
4.1
THIS
CLASS D WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(“SECURITIES ACT”) OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER
APPLICABLE STATE SECURITIES LAWS OR CYTOMEDIX, INC. SHALL HAVE RECEIVED AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO CYTOMEDIX, INC. THAT REGISTRATION
OF SUCH SECURITIES UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
CLASS
D WARRANT TO PURCHASE
SHARES
OF COMMON STOCK
OF
CYTOMEDIX,
INC.
Expires
April 12, 2011
| No.: W-D-06-______________ |
Number
of Shares:
___________
|
Date
of Issuance: April 12, 2006
THIS
IS
TO CERTIFY THAT, for value received, ______________________, or its assigns,
(“Holder”), is entitled to purchase from Cytomedix, Inc., a Delaware corporation
(“Company”), ______________________ (__________________) shares of the Company’s
common stock, par value $.0001 per share (“Common Stock”), on the terms and
conditions hereinafter set forth.
▇. ▇▇▇▇▇
of Warrant
1.1 Grant
and Vesting.
The
Company hereby grants to the Holder Class D Warrants (“Warrants”) to purchase up
to ________________ (______) shares of Common Stock at a purchase price equal
to
$3.50 per share of Common Stock (“Exercise Price”). The Warrants shall vest as
to all shares of Common Stock immediately. The shares of Common Stock for which
the Warrants may be exercised are referred to as the “Warrant Shares.”
1.2 Exercise
Period.
The
Warrants shall be exercisable commencing on the date of original issuance of
the
Warrants (“Exercisability Date”) and continue to be exercisable for the period
(“Exercise Period”) until 5:00 p.m., eastern time, on April 12, 2011, from the
date of issuance of the Warrants.
1.3 Shares
To Be Issued; Reservation of Shares.
The
Company covenants and agrees that (a) all of the securities issuable upon the
exercise of the Warrants in accordance with the terms hereof will, upon issuance
in accordance with the terms hereof and payment of the Exercise Price therefor,
be duly authorized, validly issued and outstanding, fully paid and
non-assessable, and free from all taxes, liens and charges with respect to
the
issuance thereof and (b) the Company will cause during the Exercise Period,
there to be authorized and reserved a sufficient number of securities to provide
for the exercise of the Warrants in full.
II. Adjustments
to Warrants
2.1 Stock
Splits and Combinations.
If the
Company shall combine all of its outstanding shares of Common Stock into a
smaller number of shares, the number of Warrant Shares shall be proportionately
decreased and the Exercise Price in effect immediately prior to such combination
shall be proportionately increased, as of the effective date of such
combination, as follows: (a) the number of Warrant Shares purchasable
immediately prior to the effective date of such combination shall be adjusted
so
that the Holder of the Warrants, if exercised on or after that date, shall
be
entitled to receive the number and kind of Warrant Shares which the Holder
of
the Warrants would have owned and been entitled to receive as a result of the
combination had the Warrants been exercised immediately prior to that date,
and
(b) the Exercise Price in effect immediately prior to such adjustment shall
be
adjusted by multiplying such Exercise Price by a fraction, the numerator of
which is the aggregate number of shares of Common Stock purchasable upon
exercise of the Warrants immediately prior to such adjustment, and the
denominator of which is the aggregate number of shares of Common Stock
purchasable upon exercise of this Warrants immediately thereafter. If the
Company shall subdivide all of its outstanding shares of Common Stock, the
number of Warrant Shares shall be proportionally increased and the Exercise
Price in effect prior to such subdivision shall be proportionately decreased,
as
of the effective date of such subdivision, as follows: (a) the number of Warrant
Shares purchasable upon the exercise of the Warrants immediately prior to the
effective date of such subdivision, shall be adjusted so that the Holder of
the
Warrants, if exercised on or after that date, shall be entitled to receive
the
number and kind of Warrant Shares which the Holder of the Warrants would have
owned and been entitled to receive as a result of the subdivision had the
Warrants been exercised immediately prior to that date, and (b) the Exercise
Price in effect immediately prior to such adjustment shall be adjusted by
multiplying the Exercise Price by a fraction, the numerator of which is the
aggregate number of shares of Common Stock purchasable upon exercise of the
Warrants immediately prior to such adjustment, and the denominator of which
is
the aggregate number of shares of Common Stock purchasable upon exercise of
the
Warrants immediately thereafter.
2.2 Stock
Dividends and Distributions.
If the
Company shall fix a record date for the holders of its Common Stock entitled
to
receive a dividend or other distribution payable in additional shares of Common
Stock, then the number of Warrant Shares shall be proportionately increased
and
the Exercise Price in effect prior to the time of such issuance or the close
of
business on such record date shall be proportionately decreased, as of the
time
of such issuance, or in the event such record date is fixed, as of the close
of
business on such record date, as follows: (a) the number of Warrant Shares
purchasable immediately prior to the time of such issuance or the close of
business on such record date shall be adjusted so that the Holder of the
Warrants, if exercised after that date, shall be entitled to receive the number
and kind of Warrant Shares which the Holder of the Warrants would have owned
and
been entitled to receive as a result of the dividend or distribution had the
Warrants been exercised immediately prior to that date, and (b) the Exercise
Price in effect immediately prior to such adjustment shall be adjusted by
multiplying such Exercise Price by a fraction, the numerator of which is the
aggregate number of shares of Common Stock purchasable upon exercise of the
Warrants immediately prior to such adjustment, and the denominator of which
is
the aggregate number of shares of Common Stock purchasable upon exercise of
the
Warrants immediately thereafter.
2.3 Other
Dividends and Distributions.
If the
Company shall fix a record date for the holders of Common Stock entitled to
receive a dividend or other distribution payable in securities of the Company
other than shares of Common Stock, then lawful and adequate provision shall
be
made so that the Holder of the Warrants shall be entitled to receive upon
exercise of the Warrants, for the applicable exercise price in effect prior
thereto, in addition to the number of Warrant Shares immediately theretofore
issuable upon exercise of the Warrants, the kind and number of securities of
the
Company which the Holder would have owned and been entitled to receive had
the
Warrants been exercised immediately prior to that date.
2.4 Reclassification,
Exchange and Substitution.
If
the
Common Stock is changed into the same or a different number of shares of any
class or classes of stock, whether by recapitalization, reclassification or
otherwise (other than by a subdivision or combination of shares or stock
dividend or a reorganization, merger, consolidation or sale of assets provided
for elsewhere in this Article II), then the Holder of the Warrants shall be
entitled to receive upon exercise of the Warrants, in lieu of the Warrant Shares
immediately theretofore issuable upon exercise of the Warrants, for the
aggregate exercise price in effect prior thereto, the kind and amount of stock
and other securities and property receivable upon such recapitalization,
reclassification or other change, by the holders of the number of shares of
Common Stock for which the Warrants could have been exercised immediately prior
to such recapitalization, reclassification or other change (in any event,
subject to further anti-dilution protection as provided in this Article
II).
2.5 Reorganizations,
Mergers. Consolidations or Sales of Assets.
If any
of the following transactions (each, a “Special Transaction”) shall become
effective: (a) a capital reorganization, share exchange or exchange offer (other
than a recapitalization, subdivision, combination, reclassification or exchange
of shares provided for elsewhere in this Article II), (b) a consolidation or
merger of the Company with and into another entity, or (c) a sale or conveyance
of all or substantially all of the Company’s assets, then as a condition of any
Special Transaction, lawful and adequate provision shall be made so that the
Holder of the Warrants shall thereafter have the right to purchase and receive
upon exercise of the Warrants, in lieu of the Warrant Shares immediately
theretofore issuable upon exercise of the Warrants, for the applicable exercise
price in effect immediately prior to such event, such shares of stock, other
securities, cash or other assets as may be issued or payable in and pursuant
to
the terms of such Special Transaction to the holders of shares for which the
Warrants could have been exercised immediately prior to such Special
Transaction. In connection with any Special Transaction, appropriate provision
shall be made with respect to the rights and interests of the Holder of the
Warrants to the end that the provisions of the Warrants (including, without
limitation, provisions for adjustment of the applicable exercise price and
the
number of Warrant Shares issuable upon the exercise of this Warrant), shall
thereafter be applicable, as nearly as may be practicable, to any shares of
stock, other securities, cash or other assets thereafter deliverable upon the
exercise of the Warrants. The Company shall not effect any Special Transaction
unless prior to, or simultaneously with, the closing thereof; the successor
entity and the issuer of the securities into which the Warrants are exercisable
(if other than the Company), resulting from such Special Transaction, shall
assume by a written instrument executed and mailed by certified mail or
delivered to the Holder of the Warrants at the address of the Holder appearing
on the books of the Company, the obligation of the Company or such successor
corporation to deliver to the Holder such shares of stock, securities, cash
or
other assets, as in accordance with the foregoing provisions, which the Holder
shall have the right to purchase.
2.6 Notice.
Whenever
the Warrants or the number of Warrant Shares are to be adjusted as provided
herein, the Company shall forthwith, as soon as reasonably practicable, cause
to
be sent to the Holder a notice stating in reasonable detail the relevant facts
and any resulting adjustments and the calculation thereof.
2.7 Fractional
Interests.
The
Company shall not be required to issue fractions of shares of Common Stock
upon
the exercise of the Warrants. If any fraction of a share of Common Stock would
be issuable upon the exercise of the Warrants, the Company shall, upon such
issuance, purchase such fraction for an amount in cash equal to the current
value of such fraction, computed on the basis of the last reported closing
price
of the Common Stock on the securities exchange or quotation system on which
the
shares of Common Stock are then listed or traded, as the case may be, if any,
on
the last business day prior to the date of exercise upon which such a sale
shall
have been effected, or, if the Common Stock is not so listed or traded on an
exchange or quotation system, as the Board of Directors of the Company may
in
good faith determine.
2.8 Effect
of Alternate Securities.
If at
any time, as a result of an adjustment made pursuant to this Article II, the
Holder of the Warrants shall thereafter become entitled to receive any
securities of the Company other than shares of Common Stock, then the number
of
such other securities receivable upon exercise of the Warrants shall be subject
to adjustment from time to time on terms as nearly equivalent as practicable
to
the provisions with respect to shares of Common Stock contained in this Article
II.
2.9 Successive
Application.
The
provisions of this Article II shall apply from time to time to successive events
covered by this Article II. Upon the occurrence of any event contemplated by
this Article II, all references to Common Stock, to the Company and to other
defined terms shall be equitably adjusted to protect the interests of the
Holder.
2.10 Other
Notices.
In case
at any time:
(i) the
Company shall declare any dividend upon the Common Stock payable in shares
of
stock of any class or make any other distribution (including dividends or
distributions payable in cash out of retained earnings) to the holders of the
Common Stock;
(ii) the
Company shall offer for subscription pro rata to the holders of the Common
Stock
any additional shares of stock of any class or other rights;
(iii) there
shall be any capital reorganization of the Company, or reclassification of
the
Common Stock, or consolidation or merger of the Company with or into, or sale
of
all or substantially all its assets to, another corporation or entity;
or
(iv) there
shall be a voluntary or involuntary dissolution, liquidation or winding-up
of
the Company.
Then,
in
each such case, the Company shall give to the Holder of the Warrants (a) notice
of the date on which the books of the Company shall close or a record shall
be
taken for determining the holders of Common Stock entitled to receive any such
dividend, distribution, or subscription rights or for determining the holders
of
Common Stock entitled to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up and (b) in the case of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding-up, notice
of
the date (or, if not then known, a reasonable approximation thereof by the
Company) when the same shall take place. Such notice shall also specify the
date
on which the holders of Common Stock shall be entitled to receive such dividend,
distribution, or subscription rights or to exchange their Common Stock for
stock
or other securities or property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding-up, as the case may be. Such notice shall be given at least twenty
(20)
business days prior to the record date or the date on which the Company’s books
are closed in respect thereto. Failure to give any such notice or any defect
therein shall not affect the validity of the proceedings referred to in clauses
(i), (ii), (iii) and (iv) above.
2.11 Adjustments
to Exercise Price.
Notwithstanding
anything herein, no adjustment to the Exercise Price shall be made with respect
to the issuance of securities by the Company.
III. Exercise
3.1 Exercise
of Warrants.
(a) The
Holder may exercise the Warrants by (i) surrendering this Warrant with the
form
of exercise notice attached hereto duly executed by the Holder, and (ii) making
payment to the Company of the aggregate Exercise Price for the applicable
Warrant Shares in cash, by certified check or wire transfer of immediately
available funds to an account designated by the Company. Upon any partial
exercise of this Warrant, the Company, at its expense, shall promptly issue
to
the Holder for its surrendered Warrant a replacement Warrant identical in all
respects to this Warrant, except that the number of Warrant Shares shall be
reduced accordingly.
(b) Notwithstanding
anything in this Warrant to the contrary, in no event shall the Holder of the
Warrants be entitled to exercise the Warrants (or portions thereof) if the
sum
of (i) the number of shares of Common Stock beneficially owned by the holder
and
its affiliates (other than shares of Common Stock which may be deemed
beneficially owned through the ownership of the unexercised Warrants and the
unexercised or unconverted portion of any other securities of the Company),
and
(ii) the number of shares of Common Stock issuable upon exercise of the Warrants
(or portions thereof) with respect to which the determination described herein
is being made, would at the time of exercise result in beneficial ownership
by
the Holder and its affiliates of more than 9.9% of the outstanding shares of
Common Stock. For purposes of the immediately preceding sentence, beneficial
ownership shall be determined in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended, and Regulation 13D-G thereunder.
(c) Each
person in whose name any Warrant Share certificate is issued upon exercise
of
the Warrants shall for all purposes been deemed to have become the holder of
record of the Warrant Shares for which the Warrants were exercised as of the
date of exercise. Certificates for the Warrant Shares so purchased, representing
the aggregate number of shares specified in the Exercise Agreement, shall be
delivered to the holder hereof within a reasonable time after the Warrants
shall
have been so exercised. The certificates so delivered shall be in such
denominations as may be requested by the holder hereof and shall be registered
in the name of such holder or such other name as shall be designated by such
holder. If the Warrants shall have been exercised only in part, then, unless
the
Warrants have expired, the Company shall, at its expense, at the time of
delivery of such certificates, deliver to the holder a new Warrant representing
the number of Warrants which have not been exercised.
3.2 Issuance
of Warrant Shares.
The
Warrant Shares purchased shall be issued to the Holder exercising the Warrants
as of the close of business on the business day on which all actions and
payments required to be taken or made by the Holder hereunder shall have been
so
taken or made. Certificates for the Warrant Shares so purchased shall be
delivered to the Holder as soon as reasonably practicable after the Warrants
are
so exercised.
IV. Call
Commencing
upon the effective date of a registration statement under the Securities Act,
providing for the resale of the Warrant Shares (“Registration Statement”), the
Company may call up to one hundred percent (100%) of this Warrant if the last
reported closing price of the Common Stock on the securities exchange of
quotation system on which the Common Stock is then listed or traded has been
greater than $4.50 (as may be adjusted for any stock splits or combinations
of
the Common Stock) for a period of at least ten (10) consecutive trading days
prior to the date of delivery of the Call Notice (a “Call Notice Period”) by
providing the Holder of this Warrant written notice pursuant to Section 9.11
(the “Call Notice”); provided,
that
(a) the
Registration Statement is then in effect, (b) trading in the Common Stock shall
not have been suspended by the Securities and Exchange commission or the
securities exchange or quotation system on which the Common Stock is then listed
or traded. The rights and privileges granted pursuant to this Warrant with
respect to the shares of Warrant Stock subject to the Call Notice (the “Called
Warrant Shares”) shall expire on the twentieth (20th)
day
after the Holder receives the Call Notice (the “Early Termination Date”). If
this Warrant is not exercised with respect to such Called Warrant Shares, the
Issuer shall remit to the Holder of this Warrant (a) $.01 per Called Warrant
Share and (b) a new Warrant representing the number of shares of Warrant Stock,
if any, which shall not have been subject to the call Notice upon the Holder
tendering to the Issuer the applicable Warrant certificate. The Call Notice
shall be deemed received by the Holder on the date actually received, but not
later than three (3) business days after the Call Notice was properly posted
or
given to such express delivery service in accordance with Section 9.11. If
made
by telex, telecopy or other facsimile transmission in accordance with Section
9.11, the Call Notice shall be deemed to have been made and received at the
time
of dispatch.
V. Rights
of the Holder
5.1 No
Rights or Liabilities as Shareholder.
Except
as provided herein, the Holder shall not, solely by virtue of the Warrants
and
prior to the issuance of the Warrant Shares upon due exercise hereof, be
entitled to any rights as a shareholder of the Company. No provision of this
Warrant, in the absence of affirmative action by the Holder hereof to purchase
Warrant Shares, and no mere enumeration herein of the rights or privileges
of
the Holder hereof, shall give rise to any liability of such Holder for the
Exercise Price or as a shareholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company.
5.2 Certain
Covenants.
The
Company will (a) take all such action as may be necessary or appropriate in
order that the Warrant Shares will, upon issuance in accordance with the terms
hereof and the payment of the Exercise Price therefor, be duly authorized,
validly issued and outstanding, fully paid and non-assessable and (b) use its
reasonable efforts to obtain all such authorizations, exemptions or consents
from any public regulatory body having jurisdiction thereof as may be necessary
to enable the Company to perform its obligations under this Warrant. The Company
will not, by amendment of its charter or through any reorganization, transfer
of
assets, consolidation, merger, dissolution, issue or sale of securities, or
any
other voluntary action, avoid or seek to avoid the observance or performance
of
any of the terms to be observed or performed by it hereunder, but will at all
times in good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such action as may reasonably be requested
by
the Holder of this Warrant in order to protect the exercise privilege of the
Holder of the Warrants against dilution or other impairment, consistent with
the
tenor and purpose of this Warrant. Without limiting the generality of the
foregoing, the Company (i) will not increase the par value of any shares of
Common Stock receivable upon the exercise of the Warrants above the Exercise
Price then in effect, and (ii) will take all such actions as may be necessary
or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of Common Stock upon the exercise of the Warrants
in
accordance with the terms hereof and payment of the Exercise Price
therefor.
VI.
Loss
Upon
receipt by the Company of evidence reasonably satisfactory to it of the loss,
theft, destruction or mutilation of this Warrant, and (in the case of loss,
theft or destruction) reasonably satisfactory indemnification, and upon
surrender and cancellation of the Warrant, if mutilated, the Company shall
immediately execute and deliver a new Warrant of like tenor and
date.
VII. Legend
On Warrant Shares
7.1 Legend.
The
certificates representing the Warrant Shares shall bear a legend substantially
similar to the following:
THE
SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF
1933 OR THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN
RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT
OF 1933 AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE SECURITIES ACT OF 1933 AND SUCH LAWS PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM.
VIII. Registration
Rights
The
Holder shall be entitled to registration rights pursuant to the terms of that
certain Registration Rights Agreement between the Company and the signatories
thereto (the “Registration Rights Agreement”) of even date
herewith.
IX. Miscellaneous
9.1 Representations
of the Company.
The
Company represents and warrants to the Holder as follows:
(a) The
execution and delivery of the Warrants and the performance by the Company of
its
obligations hereunder have been duly authorized by all necessary corporate
action on part of the Company in accordance with its corporate organizational
documents.
(b) This
Warrant has been duly executed and delivered by the Company and constitutes
the
legal, valid, binding and enforceable obligation of the Company, enforceable
in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
or
similar laws relating to, or affecting generally, the enforcement of creditors’
rights and remedies or by other equitable principles of general
application.
(c) Upon
issuance thereof in accordance with the terms hereof and payment of the Exercise
Price therefor, all of the Warrant Shares will, upon issuance, be duly
authorized, validly issued and outstanding, fully paid and non-assessable,
and
free from all taxes, liens and charges with respect to the issuance
thereof.
(d) Except
for filings under applicable state and federal securities laws, the Company
has
obtained all such authorizations, exemptions or consents from any public
regulatory body having jurisdiction thereof as may be necessary to enable the
Company to perform its obligations hereunder.
9.2 Assignment.
The
rights, obligations and duties of the Company hereunder shall not be assignable
or otherwise transferable by the Company. The Warrants and the rights granted
to
the Holder hereof are transferable by the Holder, in whole or in part, upon
surrender of this Warrant, together with a properly executed assignment in
the
form attached hereto, at the office or agency of the Company.
If,
at
the time of the surrender of this Warrant in connection with any exercise,
transfer, or exchange of the Warrants, the Warrants (or, in the case of any
exercise, the Warrant Shares issuable hereunder), are not registered under
the
Securities Act and under applicable state securities or blue sky laws, the
Company may require, as a condition of allowing such exercise, transfer, or
exchange, (i) that the Holder or transferee of this Warrant, as the case may
be,
furnish to the Company a written opinion of counsel, which opinion and counsel
are acceptable to the Company, to the effect that such exercise, transfer,
or
exchange may be made without registration under said Act and under applicable
state securities or blue sky laws, (ii) that the holder or transferee execute
and deliver to the Company an investment letter in form and substance acceptable
to the Company and (iii) that the transferee be an “accredited investor” as
defined in Rule 501(a) of Regulation D promulgated under the Securities Act;
provided that no such opinion, letter or status as an “accredited investor”
shall be required in connection with a transfer pursuant to Rule 144 under
the
Securities Act. The first Holder of the Warrants, by taking and holding the
same, represents to the Company that such Holder is acquiring the Warrants
for
investment and not with a view to the distribution thereof.
9.3 Modification.
No term
or provision contained herein may be modified, amended or waived except by
written agreement or consent signed by the party to be bound
thereby.
9.4 Binding
Effect and Benefit.
The
Warrants shall inure to the benefit of, and shall be binding upon, the parties
hereto, their heirs, executors, administrators, personal representatives,
successors in interest and permitted assigns.
9.5 Further
Assurances.
Company
agrees that from time to time hereafter, upon request, it will, at its sole
expense, execute, acknowledge and deliver such other instruments and documents
and take such further action as may be reasonably necessary to carry out the
intent of the Warrants.
9.6 Governing
Law: Waiver of Jury Trial.
THIS
WARRANT SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES
HERETO DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS
OF LAW PROVISIONS) OF THE STATE OF DELAWARE. AS PART OF THE CONSIDERATION FOR
NEW VALUE THIS DAY RECEIVED, THE COMPANY, AND THROUGH ITS RECEIPT OF THIS
WARRANT THE HOLDER, HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION OF ANY STATE
OR
FEDERAL COURT LOCATED IN ▇▇▇▇▇▇▇▇▇▇ COUNTY, MARYLAND. EACH OF THE COMPANY AND
THE HOLDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
SUIT OR PROCEEDING ARISING OUT OF OR RELATED TO THE WARRANTS. THE COMPANY WAIVES
ANY OBJECTION WHICH THE COMPANY MAY HAVE BASED ON LACK OF JURISDICTION OR
IMPROPER VENUE OR FORUM
NON CONVENIENS
TO ANY
SUIT OR PROCEEDING INSTITUTED BY THE HOLDER UNDER THE WARRANTS IN ANY STATE
OR
FEDERAL COURT LOCATED IN ▇▇▇▇▇▇▇▇▇▇ COUNTY, MARYLAND AND CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE
COURT.
9.7 Incorporation
by Reference.
All
exhibits and documents
referred to in this Warrant shall be deemed incorporated herein by any reference
thereto as if fully set out.
9.8 Counterparts.
This
Warrant may be executed in one or more counterparts (all counterparts together
reflecting the signature of all parties) each of which shall be deemed an
original, and all of which together shall constitute one and the same
instrument.
9.9 Survival
of Agreements.
All
agreements, covenants, representations and warranties contained herein or made
in writing by or on behalf of the Company in connection with the transactions
contemplated hereby shall survive the execution and delivery of this
Warrant.
9.10 Headings
and Captions.
Subject
headings and captions are included for convenience purposes only and shall
not
affect the interpretation of this Warrant.
9.11 Notice.
All
notices, requests, demands and other communications permitted or required
hereunder shall be in writing, and either (i) delivered in person, (ii) sent
by
express mail or other overnight delivery service providing receipt of delivery,
(iii) mailed by certified or registered mail, postage prepaid, return receipt
requested or (iv) sent by telex, telegraph or other facsimile transmission
as
follows:
If
to
Company addressed or delivered in person to:
Cytomedix,
Inc.
Attn:
Chief Financial Officer
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If
to the
Holder, addressed or delivered in person to:
_________________________
_________________________
_________________________
or
to
such other address as either party may designate by notice in accordance with
this Section.
Any
such
notice or communication, if given or made by prepaid, registered or certified
mail or by recorded express delivery, shall be deemed to have been made when
actually received, but not later than three (3) business days after the same
was
properly posted or given to such express delivery service and if made properly
by telex, telecopy or other facsimile transmission such notice or communication
shall be deemed to have been made at the time of dispatch.
9.12 Severability.
If any
portion of this Warrant is held invalid, illegal or unenforceable, such
determination shall not impair the enforceability of the remaining terms and
provisions herein, which may remain effective, and to this end this Warrant
is
declared to be severable.
9.13 Waiver.
No
waiver
of a default, breach or other violation of any provision of this Warrant shall
operate or be construed as a waiver of any subsequent default, breach or other
violation or limit or restrict any right or remedy otherwise available. No
delay
or omission on the part of the Holder to exercise any right or power arising
by
reason of a default shall impair any such right or power or prevent its exercise
at any time during the continuance thereof
9.14 Gender
and Pronouns.
Throughout this Warrant, the masculine shall include the feminine and neuter
and
the singular shall include the plural and vice versa as the context
requires.
9.15 Entire
Agreement.
This
Warrant constitutes
the entire agreement of the parties with respect to the subject matter contained
herein, and supersedes any and all other prior agreements, oral or written,
with
respect to the subject matter contained herein.
9.16 Remedies.
The
Company acknowledges that a breach by it of its obligations hereunder will
cause
irreparable harm to the Holder, by vitiating the intent and purpose of the
transaction contemplated hereby. Accordingly, the Company acknowledges that
the
remedy at law for a breach of its obligations under this Warrant will be
inadequate and agrees, in the event of a breach or threatened breach by the
Company of the provisions of this Warrant, that the Holder shall be entitled,
in
addition to all other available remedies at law or in equity, to an injunction
or injunctions restraining, preventing or curing any breach of this Warrant
and
to enforce specifically the terms and provisions thereof, without the necessity
of showing economic loss and without any bond or other security being
required.
IN
WITNESS WHEREOF, the
Company has caused this Warrant to be duly executed and delivered as of the
_________day of _______________, 2006.
| CYTOMEDIX, INC. | ||
| |
|
|
| By: | ||
|
▇▇▇▇▇▇ ▇▇▇▇▇▇ |
||
| Chief Financial Officer | ||
CLASS
D WARRANT
EXERCISE/ASSIGNMENT
FORM
1. CYTOMEDIX,
INC.
The
undersigned _______________, pursuant to the provisions of the within Warrant,
hereby elects to purchase _____ shares of Common Stock of Cytomedix, Inc.
covered by the within Warrant.
Dated:
__________________
Signature______________________
| Address | |
| ___________________________ | |
| ___________________________ |
Number
of
shares of Common Stock beneficially owned or deemed beneficially owned by the
Holder on the date of Exercise: _________________________
ASSIGNMENT
FOR
VALUE
RECEIVED, _________________ hereby sells, assigns and transfers unto
__________________ the within Warrant and all rights evidenced thereby and
does
irrevocably constitute and appoint _____________, attorney, to transfer the
said
Warrant on the books of the within named corporation.
Dated:
_________________
Signature___________________________
| Address | |
| ___________________________ | |
| ___________________________ |
PARTIAL
ASSIGNMENT
FOR
VALUE
RECEIVED, _________________ hereby sells, assigns and transfers unto
__________________ the right to purchase _________ shares of Warrant Stock
evidenced by the within Warrant together with all rights therein, and does
irrevocably constitute and appoint ___________________, attorney, to transfer
that part of the said Warrant on the books of the within named
corporation.
Dated:
_________________
Signature___________________________
| Address | |
| ___________________________ | |
| ___________________________ |
FOR
USE BY THE ISSUER ONLY:
This
Warrant No. W-___ canceled (or transferred or exchanged) this _____ day of
___________, _____, shares of Common Stock issued therefor in the name of
_______________, Warrant No. W-_____ issued for ____ shares of Common Stock
in
the name of _______________.