EXHIBIT 4.4
No sale, offer to sell or transfer of the securities represented by this warrant
or any interest therein shall be made unless a registration statement under the
Federal Securities Act of 1933, as amended, with respect to such transaction is
then in effect, or the issuer has received an opinion of counsel satisfactory to
it that such transfer does not require registration under that Act.
This Warrant will be void after 5:00 p.m. New York time on ___ ___,
200__ (i.e. five years from the first closing date of the Offering).
COMMON STOCK PURCHASE WARRANT
WARRANT NO. ___
To Subscribe for and Purchase Shares of
ISOLAGEN, INC.
(Transferability Restricted as Provided in Paragraph 2 Below)
THIS CERTIFIES THAT, for value received, FORDHAM FINANCIAL
MANAGEMENT, INC., or registered assigns, is entitled to subscribe for and
purchase from Isolagen, Inc., a corporation incorporated under the laws of the
State of Delaware (the "Company") _______ fully paid and non-assessable shares
of Common Stock of the Company at the "Warrant Price" as hereinafter defined and
during the period hereinafter set forth, subject, however, to the provisions and
upon the terms and conditions hereinafter set forth. This Warrant is one of an
issue of the Company's Common Stock purchase warrants (herein called the
"Warrants"), identical in all respects except as to the names of the holders
thereof and the number of Common Shares purchasable thereunder and issued
pursuant to the Placement Agent Agreement.
1. As used herein:
(a) "Common Stock" or "Common Shares" shall initially
refer to the Company's Common Stock, $0.001 par value, per share as more fully
set forth in Section 5 hereof.
(b) "Warrant Price" shall be $_______ which is subject to
adjustment pursuant to Section 4 hereof.
(c) "Placement Agent" shall refer to FORDHAM FINANCIAL
MANAGEMENT, INC.
(d) "Placement Agent Agreement" shall refer to the
Placement Agent Agreement dated _________ between the Company and the Placement
Agent.
(e) "Warrants" shall refer to Warrants to purchase Common
Shares issued to the Placement Agent or its designees by the Company pursuant to
the Placement Agent Agreement, as such may be adjusted from time to time
pursuant to the terms of Section 4 and including any Warrants represented by any
certificate issued from time to time in connection with the transfer, partial
exercise, exchange of any Warrants or in connection with a lost, stolen,
mutilated or destroyed Warrant certificate, if any, or to reflect an adjusted
number of Common Shares.
(f) "Underlying Securities" shall refer to and include
the Common Stock issuable or issued upon exercise of the Warrants.
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(g) "Holders" shall mean the registered holder of such
Warrants or any issued Underlying Securities.
(h) "Memorandum" shall mean the Company's Confidential
Private Placement Memorandum dated ________, as amended and supplemented, which
is being used (or was used) in connection with the private offering of _________
pursuant to the Placement Agent Agreement.
(i) "Placement Agent Securities" shall refer and mean the
warrants and shares of Common Stock issued and/or issuable upon exercise of the
Warrants.
(j) "Offering" means the private offering of ___________
in accordance with the Memorandum.
(k) "Series ____ Preferred Stock" means the Company's
Series ___ Convertible Preferred Stock, par value $0.001 per share.
2. The purchase rights represented by this Warrant may be
exercised by the holder hereof, in whole or in part at any time, and from time
to time, during the period commencing ________ (the "Commencement Date") until
_______ (the "Expiration Date"), by the presentation of this Warrant, with the
purchase form attached duly executed, at the Company's office (or such office or
agency of the Company as it may designate in writing to the Holder hereof by
notice pursuant to Section 14 hereof), and upon payment by the Holder to the
Company in cash, or by certified check or bank draft of the Warrant Price for
the Common Shares. At the option of the Holder of this Warrant, the Warrant
Price may be paid through a cashless exercise of this Warrant. The purchase
price of the Common Shares issuable pursuant to the Warrants, shall be payable
in cash, by certified bank check and/or in lieu of cash, a warrant holder may
exercise its Warrants through a cashless exercise. In this respect, at any time
prior to the Expiration Date, the Holder may, at its option, exchange the
Warrants, in whole or in part, into the number of fully paid and non-assessable
Common Shares determined in accordance with this Section 2, by surrendering the
Warrants which shall represent the right to subscribe for and acquire the number
of Common Shares (rounded to the next highest integer) equal to (A) the number
of Common Shares specified by the Holder in its purchase form (the "Total Share
Number") less (B) the number of Warrant Shares equal to the quotient obtained by
dividing (i) the product of the Total Share Number and the Warrant Price as of
the date hereof (i.e. $_____ per share) per share by (ii) the Market Price of a
share of Common Stock. The Market Price of any shares of Common Stock to
purchase shares so surrendered shall be based upon the value of the Common Stock
at the close of business on the day before exercise based upon the following:
(i) if the shares of Common Stock are not listed and traded upon a recognized
securities exchange and there is no report of stock prices with respect to the
shares of Common Stock published by a recognized stock quotation service, on the
basis of the most recent purchases and sales of the shares of Common Stock by
the Company in arms-length transactions; or (ii) if the shares of Common Stock
are not then listed and traded upon a recognized securities exchange or quoted
on the NASDAQ Stock Market, and there are reports of stock prices by a
recognized quotation service, upon the basis of the last reported sale or
transaction price of such stock as reported by a recognized quotation service,
or, if there is no last reported sale or transaction price on the day before
exercise, then upon the basis of the mean of the last reported closing bid and
closing asked prices for such stock on the date nearest preceding that day; or
(iii) if the shares of Common Stock shall be then listed and traded upon a
recognized securities exchange or quoted on the NASDAQ Stock Market, upon the
basis of the last reported sale or transaction price at which shares of Common
Stock were traded on such recognized securities exchange or NASDAQ Stock Market
or, if the shares of Common Stock were not traded on the day before exercise,
upon the basis of the last reported sale or transaction price on the date
nearest preceding that date. In the event the Company is acquired for either
stock, notes, securities, cash or any combination thereof, the holders of the
Warrants shall have the option to use the buyout price as the value of the
Common stock. All documentation and procedures to be followed in connection with
such "cashless exercise" shall be approved in advance by the Company, which
approval shall be expeditiously provided and not unreasonably withheld. The
Company agrees that the Holder hereof shall be deemed the record owner of such
Common Shares as of the close of business on the date on which this Warrant
shall have been presented and payment made for such Common Shares as aforesaid.
Certificates for the Common Shares so purchased shall be delivered to the Holder
hereof within a reasonable time, not exceeding five (5) days, after the rights
represented by this Warrant shall have been so exercised. If this Warrant shall
be exercised in part only, the Company shall, upon surrender of this Warrant for
cancellation, deliver a new Warrant evidencing the rights of the Holder hereof
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to purchase the balance of the Common Shares which such Holder is entitled to
purchase hereunder. Exercise in full of the rights represented by this Warrant
shall not extinguish the registration rights granted under Section 9 hereof and
Section 2 of the Placement Agent Agreement.
3. Subject to the provisions of Section 8 hereof, (i) this
Warrant is exchangeable at the option of the Holder at the aforesaid office of
the Company for other Warrants of different denominations entitling the Holder
thereof to purchase in the aggregate the same number of Common Shares as are
purchasable hereunder; and (ii) this Warrant may be divided or combined with
other Warrants which carry the same rights, in either case, upon presentation
hereof at the aforesaid office of the Company together with a written notice,
signed by the Holder hereof, specifying the names and denominations in which new
Warrants are to be issued, and the payment of any transfer tax due in connection
therewith.
4. Subject and pursuant to the provisions of this Section 4, the
Warrant Price and number of Common Shares subject to this Warrant shall be
subject to adjustment from time to time as set forth hereinafter in this Section
4.
(a) In case the Company shall sell or issue either any of
its Common Shares or any rights, options, warrants or obligations or securities
containing the right to subscribe for or purchase any Common Shares ("Options")
or exchangeable for or convertible into Common Shares ("Convertible
Securities"), at a price per share, as determined pursuant to Section 4(b), less
than the Warrant Price then in effect on the date of such sale or issuance, then
the number of Common Shares purchasable upon exercise of this Warrant shall be
determined by multiplying the number of Common Shares theretofore purchasable
upon exercise of this Warrant by a fraction, (a) the numerator of which shall be
the number of Common Shares outstanding on the date of issuance of such Common
Shares, Options or Convertible Securities and (b) the denominator of which shall
be the number of Common Shares outstanding on the date prior to the date of
issuance of such Common Shares or Convertible Securities plus the number of
Common Shares which the aggregate consideration received by the Company upon
such issuance would purchase on such date at the Warrant Price then in effect.
(b) The following provisions, in addition to other
provisions of this Section 4, shall be applicable in determining any adjustment
under Section 4(a):
(1) In case of the issuance or sale of Common
Shares part or all of which shall be for cash, the cash consideration received
by the Company therefor shall be deemed to be the amount of cash proceeds of
such sale of shares less any compensation paid or discount allowed in the sale,
underwriting or purchase thereof by underwriters or dealers or others performing
similar services or any expenses incurred in connection therewith, plus the
amounts, if any, determined as provided in Section 4(b)(2).
(2) In case of the issuance or sale of Common
Shares wholly or partly for a consideration other than cash, the amount of the
consideration other than cash received by the Company for such shares shall be
deemed to be the fair value of such consideration as determined by a resolution
adopted by the Board of Directors of the Company acting in good faith, less any
compensation paid or incurred by the Company for any Underwriting of, or
otherwise in connection with such issuance, provided, however, the amount of
such consideration other than cash shall in no event exceed the cost thereof as
recorded on the books of the Company. In case of the issuance or sale of Common
Shares (otherwise than upon conversion or exchange) together with other stock or
securities or other assets of the Company for a consideration which is received
for both such Common Shares and other securities or assets, the Board of
Directors of the Company acting in good faith shall determine what part of the
consideration so received is to be deemed to be the consideration for the
issuance of such Common Shares, less any compensation paid or incurred by the
Company for any underwriting of, or otherwise in connection with such issuance,
provided, however, the amount of such consideration other than cash shall in no
event exceed the cost thereof as recorded on the books of the Company. In case
at any time the Company shall declare a dividend or make any other distribution
upon any stock of the Company payable in Common Stock, then such common stock
issuable in payment of such dividend or distribution shall be deemed to have
been issued or sold without consideration.
(3) The price per share of any Common Shares
sold or issued by the Company (other than pursuant to Options or Convertible
Securities) shall be equal to a price calculated by dividing (A) the amount of
the
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consideration received by the Company, as determined pursuant to Sections
4(b)(1) and 4(b)(2), upon such sale of issuance by (B) the number of Common
Shares sold or issued.
(4) In case the Company shall at any time after
the date hereof issue any Options or Convertible Securities the following
provisions shall apply in making any adjustment pursuant to this Section 4:
(i) The price per share for which
Common Stock is issuable upon the exercise of the Options or upon conversion or
exchange of the Convertible Securities shall be determined by dividing (A) the
total amount, if any, received or receivable by the Company as consideration for
the issuance of such Options or Convertible Securities, plus the minimum
aggregate amount of additional consideration, if any, payable to the Company
upon the exercise of such Options or the conversion or exchange of such
Convertible Securities, by (B) the aggregate maximum number of shares of Common
Stock issuable upon the exercise of such Option or upon the conversion or
exchange of such Convertible Securities.
(ii) In determining the price per share
for which Common Stock is issuable upon exercise of the Options or conversion or
exchange of the Convertible Securities as set forth in Section 4(b)(4)(i) and in
computing any adjustment pursuant to Section 4(a): (A) the aggregate maximum
number of shares of Common Stock issuable upon the exercise of such Convertible
Securities shall be considered to be outstanding at the time such Options or
Convertible Securities were issued and to have been issued for such price per
share as determined pursuant to Section 4(b)(4)(i) and (B) the consideration for
the issuance of such Options or Convertible Securities and the amount of
additional consideration payable to the Company upon exercise of such Options or
upon the conversion or exchange of such Convertible Securities shall be
determined in the same manner as the consideration received upon the issuance or
sale of Common Shares as provided in Sections 4(b)(1) and 4(b)(2).
(iii) On the expiration of such Options
or the termination of any right to convert or exchange any Convertible
Securities, the number of Common Shares subject to this Warrant shall forthwith
be readjusted to such number of Common Shares as would have obtained had the
adjustments made upon the issuance of such Options or Convertible Securities
been made upon the basis of the delivery of only the number of shares of Common
Stock actually delivered upon the exercise of such Options or upon conversion or
exchange of such Convertible Securities.
(iv) If the minimum purchase price per
share of Common Stock provided for in any Option or the rate at which any
Convertible Securities are convertible into or exchangeable for Common Stock
shall change or a different purchase price or rate shall become effective at any
time or from time to time (other than pursuant to any anti-dilution provisions
of such Options or Convertible Securities) then, upon such change becoming
effective, the number of Common Shares subject to this Warrant shall forthwith
be increased or decreased to such number of shares as would have been obtained
had the adjustments made upon the granting or issuance of such Options or
Convertible Securities been made upon the basis of (l) the issuance of the
number of shares of Common Stock theretofore actually delivered upon the
exercise of such Options or upon the conversion or exchange of such Convertible
Securities, and the total consideration received therefor, and (2) the granting
or issuance at the time of such change of any such Options or Convertible
Securities then still outstanding for the consideration, if any, received by the
Company therefor and to be received on the basis of such changed price or rate
of exchange or conversion.
(5) Except as otherwise specifically provided
herein the date of issuance or sale of Common Stock shall be deemed to be the
date the Company is legally obligated to issue such Common Shares, or pursuant
to paragraph 4(b)(4), the date the Company is legally obligated to issue any
Option or Convertible Security. In case at any time the Company shall take a
record date for the purpose of determining the Holders of Common Stock entitled
(i) to receive a dividend or other distribution payable in Common Stock or in
Options or Convertible Securities or (ii) to subscribe for or purchase Common
Stock, Options or Convertible Securities then such record date shall be deemed
to be the date of issue or sale of the Common Shares, Options or Convertible
Securities deemed to have been issued or sold upon the declaration of such
dividend or the making of such distribution or the granting of such right of
subscription or purchase, as the case may be.
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(6) The number of shares of Common Stock
outstanding at any given time shall not include treasury shares and the
disposition of any such treasury shares shall be considered an issue or sale of
Common Stock for the purposes of this Section 4.
(7) Anything hereinabove to the contrary
notwithstanding, no adjustment shall be made pursuant to Section 4(a) to the
Warrant Price, or to the number of Underlying Securities upon:
(i) The issuance or sale by the Company
of any Common Shares, shares of Series B Preferred Stock (or Common Shares
issuable upon conversion of such Series B Preferred Stock), Options or
Convertible Securities pursuant to (A) the Warrants, (B) the Offering, (C) the
Placement Agent Agreement, (D) dividends on shares of Series A or Series B
Preferred Stock payable in shares of Series A or Series B Preferred Stock
(including the issuance of shares of Common Stock issuable upon the conversion
of such Series A or Series B Preferred Stock), (E) the conversion or exchange of
any security which is outstanding on any closing date of the Offering which is
convertible or exchangable into shares of Common Stock, (F) the exercise of any
right, warrant or option which is outstanding on any closing date of the
Offering or (G) the Stock Option Plans of the Company and its Subsidiaries as
described in the Memorandum.
(ii) The issuance or sale of Common
Shares pursuant to the exercise of Options or conversion or exchange of
Convertible Securities hereinafter issued for which an adjustment has been made
(or was not required to be made) pursuant to the provisions of Section 4 hereof.
(iii) The increase in the number of
Common Shares subject to any Option or Convertible Security referred to in
subsections (i) and (ii) hereof pursuant to the provisions of such Option or
Convertible Securities designed to protect against dilution.
(c) If the Company shall at any time subdivide its
outstanding Common Shares by recapitalization, reclassification or split-up
thereof, the number of Common Shares subject to this Warrant immediately prior
to such subdivision shall be proportionately increased, and if the Company shall
at any time combine the outstanding Common Shares by recapitalization,
reclassification or combination thereof, the number of Common Shares subject to
this Warrant immediately prior to such combination shall be proportionately
decreased. Any such adjustment to the Warrant Price pursuant to this Section
shall become effective at the close of business on the record date for such
recapitalization, reclassification, subdivision or combination.
(d) If the Company after the date hereof shall distribute
to all of the holders of its Common Shares any securities or other assets (other
than a distribution of Common Shares or a cash distribution made as a dividend
payable out of earnings or out of any earned surplus legally available for
dividends under the laws of the State of Delaware), the Board of Directors of
the Company shall be required to make such equitable adjustment in the Warrant
Price in effect immediately prior to the record date of such distribution as may
be necessary to preserve to the Holder of this Warrant rights substantially
proportionate to those enjoyed hereunder by such Holder immediately prior to the
happening of such distribution. Any such adjustment made in good faith by the
Board of Directors shall be final and binding upon the Holders and shall become
effective as of the record date for such distribution.
(e) No adjustment in the number of Common Shares subject
to this Warrant shall be required under this Section 4 hereof unless such
adjustment would require an increase or decrease in such number of shares of at
least 1% of the then adjusted number of Common Shares issuable upon exercise of
this Warrant, provided, however, that any adjustments which by reason of the
foregoing are not required at the time to be made shall be carried forward and
taken into account and included in determining the amount of any subsequent
adjustment; and provided further, however, that in case the Company shall at any
time subdivide or combine the outstanding Common Shares or issue any additional
Common Shares as a dividend, said percentage shall forthwith be proportionately
increased in the case of a combination or decreased in the case of a subdivision
or dividend of Common Shares so as to appropriately reflect the same. If the
Company shall make a record of the Holders of its Common Shares for the purpose
of entitling them to receive any dividend or distribution and legally abandon
its plan to pay or deliver such dividend or distribution then no adjustment in
the number of Common Shares subject to the Warrant shall be required by reason
of the making of such record.
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(f) Whenever the number of Common Shares purchasable upon
the exercise of this Warrant is adjusted, as provided in Section 4, the Warrant
Price shall be adjusted (to the nearest one tenth of a cent by multiplying such
Warrant Price immediately prior to such adjustment by a fraction, the numerator
of which shall be the number of Common Shares purchasable upon the exercise of
this Warrant immediately prior to such adjustment, and the denominator of which
shall be the number of Common Shares so purchasable immediately thereafter.
(g) In case of any reclassification of the outstanding
Common Shares (other than a change covered by Section 4(c) hereof or which
solely affects the par value of such Common Shares) or in the case of any merger
or consolidation of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the continuing corporation and
which does not result in any reclassification or capital reorganization of the
outstanding Common Shares), or in the case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as an
entirety in connection with which the Company is dissolved, the Holder of this
Warrant shall have the right thereafter (until the expiration of the right of
exercise of this Warrant) to receive upon the exercise hereof, for the same
aggregate Warrant Price payable hereunder immediately prior to such event, the
kind and amount of shares of stock or other securities or property receivable
upon such reclassification, capital reorganization, merger or consolidation, or
upon the dissolution following any sale or other transfer, by a Holder of the
number of Common Shares of the Company obtainable upon the exercise of this
Warrant immediately prior to such event; and if any reclassification also
results in a change in Common Shares covered by Section 4(c), the such
adjustment shall be made pursuant to both this Section 4(g) and Section 4(c).
The provisions of this Section 4(g) shall similarly apply to successive
re-classifications, or capital reorganizations, mergers or consolidations, sales
or other transfers.
If the Company after the date hereof shall issue or agree to issue the
Common Shares, Options or Convertible Securities, other than as described in
this Section 4, and such issuance or agreement would materially affect the
rights of the Holder of this Warrant, the Warrant Price and the number of Common
Shares obtainable upon exercise of this Warrant shall be adjusted in such
manner, if any, and at such time, as the Board of Directors of the Company, in
good faith, may determine to be equitable in the circumstances. The minutes or
unanimous consent approving such action shall set forth the Board's
determination as to whether an adjustment is warranted and the manner of such
adjustment. In the absence of such determination, any Holder may request in
writing that the Board make such determination. Any such determination made in
good faith by the directors shall be final and binding upon the Holders. If the
Board fails, however, to make such determination within sixty (60) days after
such request, such failure shall be deemed a determination that an adjustment is
required.
(h) (1) Upon occurrence of each event requiring
an adjustment of the Warrant Price and of the number of Common Shares obtainable
upon exercise of this Warrant in accordance with, and as required by, the terms
of this Section 4, the Company shall forthwith employ a firm of certified public
accountants (who may be the regular accountants for the Company) who shall
compute the adjusted Warrant Price and the adjusted number of Common Shares
purchasable at such adjusted Warrant Price by reason of such event in accordance
with the provisions of this Section 4. The Company shall mail forthwith to the
Holder of this Warrant a copy of such computation which shall be conclusive and
shall be binding upon such Holder unless contested by such Holder by written
notice to the Company within thirty (30) days after receipt thereof by such
Holder.
(2) In case the Company after the date hereof
shall propose (i) to pay any dividend payable in stock to the Holders of its
Common Shares or to make any other distribution (other than cash dividends) to
the Holders of its Common Shares rights to subscribe to or purchase any
additional shares of any class or any other rights or options, or (iii) to
effect any reclassification of Common Shares (other than a reclassification
involving merely the subdivision or combination of outstanding Common Shares) or
(iv) any capital reorganization or any consolidation or merger, or any sale,
transfer or other disposition of its property, assets and business substantially
as an entirety, or the liquidation, dissolution or winding up of the Company,
then in each such case, the Company shall obtain the computation described in
Section 4(h)(1) hereof and if an adjustment to the Warrant Price is required
under this Section 4, the Company shall notify the registered Holder of this
Warrant of such proposed action, which shall specify the record date for any
such action or if no record date is established with respect thereto, the date
on which such action shall occur or commence, or the date of participation
therein by the Holders of Common Shares if any such date is to be fixed, and
shall also set forth such facts with respect thereto as shall be reasonably
necessary to indicate the effect of such action on
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the Warrant Price and the number, or kind, or class of shares or other
securities or property obtainable upon exercise of this Warrant after giving
affect to any adjustment which will be required as a result of such action. Such
notice shall be given at least twenty (20) days prior to the record date for
determining Holders of the Common Shares for purposes of any such action, and in
the case of any action for which a record date is not established then such
notice shall be mailed at least twenty (20) days prior to the taking of such
proposed action.
(3) Failure to file any certificate or notice or
to mail any notice, or any defect in any certificate or notice, or any defect in
any certificate or notice, pursuant to this Section 4(h), shall not effect the
legality or validity of the adjustment in the Warrant Price or in the number, or
kind, or class or shares or other securities or property obtainable upon
exercise of this Warrant or of any transaction giving rise thereto.
(i) The Company shall not be required to issue fractional
Common Shares upon any exercise of this Warrant. As to any final fraction of a
Common Share which the Holder of this Warrant would otherwise be entitled to
purchase upon such exercise, the Company shall pay the Holder the cash
equivalent of such fraction of a Common Share.
(j) Irrespective of any adjustments pursuant to this
Section 4 in the Warrant Price or in the number, or kind, or class of shares or
other securities or other property obtainable upon exercise of this Warrant,
this Warrant may continue to express the Warrant Price and the number of Common
Shares obtainable upon exercise at the same price and number of Common Shares as
are stated herein.
5. For the purposes of this Warrant, the terms "Common Shares" or
"Common Stock" or "Warrant Shares" shall mean (i) the class of stock designated
as the common stock, $0.001 par value, of the Company on the date set forth on
the first page hereof or (ii) any other class of stock resulting from successive
changes or re-classifications of such Common Stock consisting solely of changes
in par value, or from no par value to par value, or from par value to no par
value. If at any time, as a result of an adjustment made pursuant to Section 4,
the securities or other property obtainable upon exercise of this Warrant shall
include shares or other securities of the Company other than Common Shares or
securities of another corporation or other property, thereafter, the number of
such other shares or other securities or property so obtainable 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 Common Shares contained in
Section 4 and all other provisions of this Warrant with respect to Common Shares
shall apply on like terms to any such other shares or other securities or
property. Subject to the foregoing, and unless the context requires otherwise,
all references herein to Common Shares shall, in the event of an adjustment
pursuant to Section 4, be deemed to refer also to any other securities or
property then obtainable as a result of such adjustments.
6. The Company covenants and agrees that:
(a) During the period within which the rights represented
by the Warrant may be exercised, the Company shall, at all times, reserve and
keep available out of its authorized capital stock, solely for the purposes of
issuance upon exercise of this Warrant, such number of its Common Shares as
shall be issuable upon the exercise of this Warrant; and if at any time the
number of authorized Common Shares shall not be sufficient to effect the
exercise of this Warrant, the Company will take such corporate action as may be
necessary to increase its authorized but unissued Common Shares to such number
of shares as shall be sufficient for such purpose; the Company shall have
analogous obligations with respect to any other securities or property issuable
upon exercise of this Warrant;
(b) All Common Shares which may be issued upon exercise
of the rights represented by this Warrant will, upon issuance be validly issued,
fully paid, nonassessable and free from all taxes, liens and charges with
respect to the issuance thereof; and
(c) All original issue taxes payable in respect of the
issuance of Common Shares upon the exercise of the rights represented by this
Warrant shall be borne by the Company but in no event shall the Company be
responsible or liable for income taxes or transfer taxes upon the transfer of
any Warrants.
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7. Until exercised, this Warrant shall not entitle the Holder
hereof to any voting rights or other rights as a stockholder of the Company,
except that the Holder of this Warrant shall be deemed to be a stockholder of
this Company for the purpose of bringing suit on the ground that the issuance of
shares of stock of the Company is improper under the Delaware General
Corporation Law.
8. In no event shall this Warrant be sold, transferred, assigned
or hypothecated except in conformity with the applicable provisions of the
Securities Act of 1933, as amended and as then in force (the "Act"), or any
similar Federal statute then in force, and all applicable "Blue Sky" laws.
9. The Holder of this Warrant, by acceptance hereof, agrees that,
prior to the disposition of this Warrant or of any Common Shares theretofore
purchased upon the exercise hereof, under circumstances that might require
registration of such securities under the Act, or any similar Federal statute
then in force, such Holder will give written notice to the Company expressing
such Holder's intention of effecting such disposition, and describing briefly
such Holder's intention as to the disposition to be made of this Warrant and/or
the securities theretofore issued upon exercise hereof. Promptly upon receiving
such notice, the Company shall present copies thereof to its counsel and the
provisions of the following subdivisions shall apply:
(a) If, in the opinion of such counsel, the proposed
disposition does not require registration under the Act or qualification
pursuant to Regulation A promulgated under the Act, or any similar Federal
statute then in force, of this Warrant and/or the securities issuable or issued
upon the exercise of this Warrant, the Company shall, as promptly as
practicable, notify the Holder hereof of such opinion, whereupon such Holder
shall be entitled to dispose of this Warrant and/or such Common Shares
theretofore issued upon the exercise hereof, all in accordance with the terms of
the notice delivered by such Holder to the Company.
(b) If, in the opinion of either such counsel, such
proposed disposition requires such registration or qualification under the Act,
or similar Federal statute then in effect, of this Warrant and/or the Common
Shares issuable or issued upon the exercise of this Warrant, the Company shall
promptly give written notice to all then Holders of the Warrants, at the
respective addresses thereof shown on the books of the Company.
The last paragraph of Section 2 of the Placement Agent
Agreement provides for the following registration rights:
"Commencing on the initial closing date of this Offering and expiring
five years thereafter, in the event that the Company should file a Registration
Statement with the Commission pursuant to the Act, the Company, at its own
expense, will offer to the holders of the Placement Agent securities the
opportunity to register the underlying Common Stock for resale to the public.
This paragraph is not applicable to a Registration Statement filed by the
Company with the SEC on Form S-8 or any other inappropriate form. The piggy-back
registration rights described in this paragraph shall be on two occasions
only."
10. The Company agrees to indemnify and hold harmless the holder
of this Warrant, or of Underlying Securities issuable or issued upon the
exercise hereof, from and against any claims and liabilities caused by any
untrue statement of a material fact, or omission to state a material fact
required to be stated, in any such registration statement, prospectus,
notification or offering circular under Regulation A, except insofar as such
claims or liabilities are caused by any such untrue statement or omission based
on information furnished in writing to the Company by such holder, or by any
other such holder affiliated with the holder who seeks indemnification, as to
which the holder hereof, by acceptance hereof, agrees to indemnify and hold
harmless the Company.
11. If this Warrant, or any of the Underlying Securities issuable
pursuant hereto, require qualification or registration with, or approval of, any
governmental official or authority (other than registration under the Act, or
any similar Federal statute at the time in force), before such shares may be
issued on the exercise hereof, the Company, at its expense, will take all
requisite action in connection with such qualification, and will use its best
efforts to cause such securities to be duly registered or approved, as may be
required.
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12. This Warrant is exchangeable, upon its surrender by the
registered holder at such office or agency of the Company as may be designated
by the Company, for new Warrants of like tenor, representing, in the aggregate,
the right to subscribe for and purchase the number of Common Shares that may be
subscribed for and purchased hereunder, each of such new Warrants to represent
the right to subscribe for and purchase such number of Common Shares as shall be
designated by the registered holder at the time of such surrender. Upon receipt
of evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant, and, in the case of any such loss, theft or
destruction, upon delivery of a bond of indemnity satisfactory to the Company,
or in the case of such mutilation, upon surrender or cancellation of this
Warrant, the Company will issue to the registered holder a new Warrant of like
tenor, in lieu of this Warrant, representing the right to subscribe for and
purchase the number of Common Shares that may be subscribed for and purchased
hereunder. Nothing herein is intended to authorize the transfer of this Warrant
except as permitted by applicable law.
13. Every Holder hereof, by accepting the same, agrees with any
subsequent Holder hereof and with the Company that this Warrant and all rights
hereunder are issued and shall be held subject to all of the terms, conditions,
limitations and provisions set forth in this Warrant, and further agrees that
the Company and its transfer agent may deem and treat the registered Holder of
this Warrant as the absolute owner hereof for all purposes and shall not be
affected by any notice to the contrary.
14. All notices required hereunder shall be given by first-class
mail, postage prepaid; if given by the holder hereof, addressed to the Company
at 2500 Wilcrest, 5th Floor, Houston, Texas 77042 or such other address as the
Company may designate in writing to the holder hereof; and if given by the
Company, addressed to the holder at the address of the holder shown on the books
of the Company.
15. The Company will not merge or consolidate with or into any
other corporation, or sell or otherwise transfer its property assets and
business substantially as an entirety to another corporation, unless the
corporation resulting from such merger or consolidation (if not the Company), or
such transferee corporation, as the case may be, shall expressly assume, by
supplemental agreement satisfactory in form to the Placement Agent, the due and
punctual performance and observance of each and even covenant and condition of
this Warrant to be performed and observed by the Company.
16. The validity, construction and enforcement of this Warrant
shall be governed by the laws of the State of New York and jurisdiction is
hereby vested in the Courts of said State in the event of the institution of any
legal action under this Warrant.
IN WITNESS WHEREOF, ISOLAGEN, INC. has caused this Warrant to be signed
by its duly authorized officers under its corporate seal, to be dated ____ __,
2003.
ISOLAGEN, INC.
By: ______________________
Michael Macaluso
Chief Executive Officer
Witness:
_____________________
Jeffrey W. Tomz
Chief Financial Officer and Secretary
(Corporate Seal)
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PURCHASE FORM
To Be Executed
Upon Exercise of Warrant, except for Cashless Exercise
The undersigned hereby exercises the right to purchase _______ Common Shares
evidenced by the within Warrant, according to the terms and conditions thereof,
and herewith makes payment of the purchase price in full. The undersigned
requests that certificates for such shares shall be issued in the name set forth
below.
Dated:________ , 200__
Signature
___________________________
Print Name of Signatory
Name to whom certificates are to
be issued if different from above
Address:
_________________________________
_________________________________
_________________________________
_________________________________
Social Security No.
or other identifying number
If said number of shares shall not be all the shares purchasable under
the within Warrant, the undersigned requests that a new Warrant for the
unexercised portion shall be registered in the name of :
_________________________________
(Please Print)
Address:
_________________________________
_________________________________
_________________________________
Social Security No.
or other identifying number
_________________________________
Signature
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PURCHASE FORM
To Be Executed Upon
Cashless Exercise of this Warrant
The undersigned hereby exercises the right to purchase _______ Common
Shares evidenced by the within Warrant No. __ according to the terms and
conditions thereof and the undersigned hereby submits warrants to purchase
________ Common Shares as evidenced by the within Warrant No. ___ to be in full
payment of the _______ Common Shares exercised and purchased herein. The
undersigned represents that certificates for such purchased shares shall be
issued in the name set forth below:
Dated:___________, 200__
Signature
___________________________
Print Name of Signatory
Name to whom certificates are to
be issued if different from above
Address:
_________________________________
_________________________________
_________________________________
_________________________________
Social Security No.
or other identifying number
If said number of shares shall not be all the shares purchasable under
the within Warrant, the undersigned requests that a new Warrant for the
unexercised portion shall be registered in the name of :
_________________________________
(Please Print)
Address:
_________________________________
_________________________________
_________________________________
Social Security No.
or other identifying number
_________________________________
Signature
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED , hereby
sells assigns and transfers to , Soc. Sec. No.
[ ] the within Warrant, together with all rights, title and interest
therein, and does hereby irrevocably constitute and appoint attorney to
transfer such Warrant on the register of the within named Company, with full
power of substitution.
_______________________________
Signature
Dated: ___________________, 200__
Signature Guaranteed:
_______________________
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