NEPHROS, INC. Warrant for the Purchase of Shares of Common Stock
Exhibit
4.3
NEITHER
THIS WARRANT NOR THE SECURITIES FOR WHICH IT IS EXERCISABLE HAVE BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH SECURITIES UNDER THE
SECURITIES ACT OR AN EXEMPTION FROM THE SECURITIES ACT. ANY SUCH TRANSFER MAY
ALSO BE SUBJECT TO COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS AND THE
LAWS
OF OTHER APPLICABLE JURISDICTIONS.
NEPHROS,
INC.
Warrant
for the Purchase of Shares of
Common
Stock
| No. L-1 |
January
18,
2006
|
FOR
VALUE
RECEIVED, NEPHROS, INC., a Delaware corporation (the “Company”),
hereby certifies that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq., as Court-appointed Receiver for
Lancer Offshore, Inc., or
his
registered assigns (the “Holder”)
is
entitled to purchase from the Company, subject to the provisions of this Warrant
(the “Warrant”),
at
any time on or after the date hereof (the “Initial
Exercise Date”),
and
prior to 12:01 A.M., New York City time, on January 18, 2009 (the “Termination
Date”),
21,308 fully
paid and non-assessable shares of the Common Stock, $.001 par value, of the
Company (“Common Stock”), at an exercise price of $1.50 per share of Common
Stock for an aggregate exercise price of thirty-one thousand nine hundred
sixty-two dollars ($31,962.00) (the aggregate purchase price payable for the
Warrant Shares hereunder is hereinafter sometimes referred to as the
“Aggregate
Exercise Price”).
The
number of shares of Common Stock to be received upon exercise of this Warrant
and the price to be paid for each share of Common Stock are subject to possible
adjustment from time to time as hereinafter set forth. The shares of Common
Stock or other securities or property deliverable upon such exercise as adjusted
from time to time is hereinafter sometimes referred to as the “Warrant
Shares.”
The
exercise price of a share of Common Stock in effect at any time and as adjusted
from time to time is hereinafter sometimes referred to as the “Per
Share Exercise Price.”
The
Per
Share Exercise Price is subject to adjustment as hereinafter provided; in the
event of any such adjustment, the number of Warrant Shares shall also be
adjusted, by dividing the Aggregate Exercise Price by the Per Share Exercise
Price in effect immediately after such adjustment. The Aggregate Exercise Price
is not subject to adjustment except to the extent of any partial exercise of
this Warrant.
1. Exercise
of Warrant.
(a) This
Warrant may be exercised in whole or in part, at any time by its holder
commencing on the Initial Exercise Date and prior to the Termination Date by
presentation and surrender of this Warrant, together with the duly executed
subscription form attached at the end hereof, at the address set forth in
Subsection 8(a) hereof, together with payment, by certified or official bank
check or wire transfer payable to the order of the Company, of the Aggregate
Exercise Price or the proportionate part thereof if exercised in
part.
(b) If
this
Warrant is exercised in part only, the Company shall, upon presentation of
this
Warrant upon such exercise, execute and deliver (along with the certificate
for
the Warrant Shares purchased) a new Warrant evidencing the rights of the Holder
hereof to purchase the balance of the Warrant Shares purchasable hereunder
upon
the same terms and conditions as herein set forth. Upon proper exercise of
this
Warrant, the Company promptly shall deliver certificates for the Warrant Shares
to the Holder duly legended as authorized by the subscription form. No
fractional shares or scrip representing fractional shares shall be issued upon
exercise of this Warrant; provided
that the
Company shall pay to the Holder of the Warrant cash in lieu of such fractional
shares.
(c) The
certificates representing the Warrant Shares shall bear the following
legend:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED
OR HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO SUCH SECURITIES UNDER THE SECURITIES ACT
OR
AN EXEMPTION FROM THE SECURITIES ACT. ANY SUCH TRANSFER MAY ALSO BE SUBJECT
TO
COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS AND THE LAWS OF OTHER
APPLICABLE JURISDICTIONS.
2. Reservation
of Warrant Shares; Fully Paid Shares; Taxes.
The
Company hereby represents that it has, and until expiration of this Warrant
agrees that it shall, reserve for issuance or delivery upon exercise of this
Warrant, such number of shares of the Common Stock as shall be required for
issuance and/or delivery upon exercise of this Warrant in full, and agrees
that
all Warrant Shares so issued and/or delivered will be validly issued, fully
paid
and non-assessable, and further agrees to pay all taxes (other than income
taxes) and charges that may be imposed upon such issuance and/or delivery.
The
Company shall not, however, be required to pay any tax which may be payable
in
respect of any transfer involved in the issue or delivery of Common Stock (or
other securities or assets) in a name other than that in which the Warrants
so
exercised were registered, and no such issue or delivery shall be made unless
and until the person requesting such issue has paid to the Company the amount
of
such tax or has established, to the satisfaction of the Company, that such
tax
has been paid.
3. Protection
Against Dilution.
(a) In
case
the Company shall hereafter (i) pay a dividend or make a distribution on its
capital stock in shares of Common Stock, (ii) subdivide its outstanding shares
of Common Stock into a greater number of shares, (iii) combine its outstanding
shares of Common Stock into a smaller number of shares or (iv) issue by
reclassification of its Common Stock any shares of capital stock of the Company
(each of (i) through (iv) an “Action”), the Per Share Exercise Price shall be
adjusted to be equal to a fraction, the numerator of which shall be the
Aggregate Exercise Price and the denominator of which shall be the number of
shares of Common Stock or other capital stock of the Company that the Holder
would have held (solely as a result of the exercise of this Warrant and the
operation of such Action) immediately following such Action if this Warrant
had
been exercised immediately prior to such Action. An adjustment made pursuant
to
this Subsection 3(b) shall become effective immediately after the record date
in
the case of a dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision, combination or
reclassification.
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(b) In
the
event of any capital reorganization or reclassification not otherwise covered
in
this Section 3, or any consolidation or merger to which the Company is a party
other than a merger or consolidation in which the Company is the continuing
corporation, or in case of any sale or conveyance to another entity of the
property of the Company as an entirety or substantially as an entirety, or
in
the case of any statutory exchange of securities with another corporation
(including any exchange effected in connection with a merger of a third
corporation into the Company), the Holder of this Warrant shall have the right
thereafter to receive on the exercise of this Warrant the kind and amount of
securities, cash or other property which the Holder would have owned or have
been entitled to receive immediately after such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance
had this Warrant been exercised immediately prior to the effective date of
such
reorganization, reclassification, consolidation, merger, statutory exchange,
sale or conveyance and in any such case, if necessary, appropriate adjustment
shall be made in the application of the provisions set forth in this Section
3
with respect to the rights and interests thereafter of the Holder of this
Warrant to the end that the provisions set forth in this Section 3 shall
thereafter correspondingly be made applicable, as nearly as may reasonably
be,
in relation to any shares of stock or other securities or property thereafter
deliverable on the exercise of this Warrant. The above provisions of this
Subsection 3(b) shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, statutory exchanges, sales or
conveyances.
(c) Whenever
the Per Share Exercise Price payable upon exercise of this Warrant is adjusted
pursuant to this Section 3, the number of shares of Common Stock underlying
this
Warrant shall simultaneously be adjusted to equal the number obtained by
dividing the Aggregate Exercise Price (as the same shall be reduced to the
extent of any partial exercise of this Warrant) by the adjusted Per Share
Exercise Price.
(d) If,
as a
result of an adjustment made pursuant to this Section 3, the Holder shall become
entitled to receive, upon exercise of the Warrant, shares of two or more classes
of capital stock or shares of Common Stock and other capital stock of the
Company, the Board of Directors (whose determination shall be conclusive) shall
determine the allocation of the adjusted Per Share Exercise Price between or
among shares or such classes of capital stock or shares of Common Stock and
other capital stock.
4. Limited
Transferability.
This
Warrant may not be sold, transferred, assigned or hypothecated by the Holder
except in compliance with the provisions of the Act and the applicable state
securities “blue sky” laws, and is so transferable only upon the books of the
Company which it shall cause to be maintained for such purpose. The Company
may
treat the registered Holder of this Warrant as he or it appears on the Company’s
books at any time as the Holder for all purposes.
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5. Loss,
etc., of Warrant.
Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant, and of indemnity reasonably satisfactory to
the
Company (which may include a bond), if lost, stolen or destroyed, and upon
surrender and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver to the Holder a new Warrant of like date, tenor and
denomination.
6. Investment
Intent.
(a) The
Holder represents, by accepting this Warrant, that it understands that this
Warrant and any securities obtainable upon exercise of this Warrant have not
been registered for sale under Federal or state securities laws and are being
offered and sold to the Holder pursuant to one or more exemptions from the
registration requirements of such securities laws. The Holder is an “accredited
investor” within the meaning of Regulation D under the Securities Act of 1933,
as amended (the “Act”). In the absence of an effective registration of such
securities or an exemption therefrom, any certificates for such securities
shall
bear the legend set forth on the first page hereof. The Holder understands
that
it must bear the economic risk of its investment in this Warrant and any
securities obtainable upon exercise of this Warrant for an indefinite period
of
time, as this Warrant and such securities have not been registered under Federal
or state securities laws and therefore cannot be sold unless subsequently
registered under such laws, unless as exemption from such registration is
available.
(b) The
Holder, by its acceptance of its Warrant, represents to the Company that it
is
acquiring this Warrant and will acquire any securities obtainable upon exercise
of this Warrant for its own account for investment and not with a view to,
or
for sale in connection with, any distribution thereof in violation of the Act.
The Holder agrees that this Warrant and any such securities will not be sold
or
otherwise transferred unless (i) a registration statement with respect to such
transfer is effective under the Act and any applicable state securities laws
or
(ii) such sale or transfer is made pursuant to one or more exemptions from
the
Act.
7. Status
of Holder.
This
Warrant does not confer upon the Holder any right to vote or to consent to
or
receive notice as a stockholder of the Company, as such, in respect of any
matters whatsoever, or any other rights or liabilities as a stockholder, prior
to the exercise hereof.
8. Notices.
No
notice or other communication under this Warrant shall be effective unless,
but
any notice or other communication shall be effective and shall be deemed to
have
been given if, the same is in writing and is mailed by first-class mail, postage
prepaid, addressed to:
(a) the
Company c/o Audubon Business and Technology Center, Columbia-Presbyterian
Medical Center, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
President, or such other address as the Company has designated by notice to
the
Holder; or
4
(b) the
Holder ▇/▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇▇ Financial Center, ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: President, or such other
address as the Holder has designated by notice to the Company.
9. Headings.
The
headings of this Warrant have been inserted as a matter of convenience and
shall
not affect the construction hereof.
10. Applicable
Law.
This
Warrant shall be governed by and construed in accordance with the law of the
State of New York without giving effect to principles of conflicts of law
thereof.
11. Amendments. This
Warrant may be amended only by mutual written agreement of the Company and
the
Holder, and the Company may take any action herein prohibited or omit to take
any action herein required to be performed by it, and any breach of any
covenant, agreement, warranty or representation may be waived, only if the
Company has obtained the written consent or waiver of the Holder.
[Signature
page follows immediately]
5
IN
WITNESS WHEREOF, the undersigned, acting for and on behalf of the Company,
has
executed this Warrant as of the date first written above.
NEPHROS,
INC.
By: _________________________
|
Name:
|
|
Title:
|
6
SUBSCRIPTION
The
undersigned, ____________________________, pursuant to the provisions of the
foregoing Warrant, hereby elects to exercise the within Warrant to the extent
of
purchasing _____________________ shares of Common Stock thereunder and hereby
makes payment of $_______________ by certified or official bank check in payment
of the exercise price therefor.
| Dated:_______________ |
Signature:_____________________________
|
| Address:_______________________________ |
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ASSIGNMENT
FOR
VALUE
RECEIVED _______________________________________ hereby sells, assigns and
transfers unto _____________________________________ the foregoing Warrant
and
all rights evidenced thereby, and does irrevocably constitute and appoint
_____________________________, attorney, to transfer said Warrant on the books
of Nephros, Inc.
| Dated:_______________ |
Signature:_____________________________
|
| Address:_______________________________ |
PARTIAL
ASSIGNMENT
FOR
VALUE
RECEIVED __________________________ hereby assigns and transfers unto
_________________________ the right to purchase __________ shares of the Common
Stock, $.001 par value per share, of Nephros, Inc. covered by the foregoing
Warrant, and a proportionate part of said Warrant and the rights evidenced
thereby, and does irrevocably constitute and appoint __________________________,
attorney, to transfer that part of said Warrant on the books of Nephros,
Inc.
| Dated:_______________ |
Signature:_____________________________
|
| Address:_______________________________ |
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