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4.1
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Form of
Warrant dated December of 2008
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STOCK PURCHASE WARRANT
NEITHER THIS
WARRANT NOR ANY SECURITIES ON EXERCISE HEREOF HAS BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF REGISTRATION UNDER SUCH
ACT AND APPLICABLE LAWS, OR THE AVAILABILITY OF AN EXEMPTION FROM
SUCH REGISTRATION, OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT LEGALLY
REQUIRED.
STOCK
PURCHASE WARRANT
This Stock Purchase Warrant (this “
Warrant ”), dated _____________________,
is issued to _________________________ (the “ Holder
”), by OxySure Systems, Inc., a Delaware corporation (the
“ Company ”).
1. Purchase of
Shares . Subject to the terms and conditions
hereinafter set forth, the Holder is entitled, upon surrender of
this Warrant at the principal office of the Company (or at such
other place as the Company shall notify the holder hereof in
writing), to purchase from the Company fully paid and
non-assessable shares of Common Stock, par value $_0.0001____ per
share (the “ Common Stock ”), of the Company (as
adjusted pursuant to Section 7 hereof, the “
Shares ”) for the purchase price specified in
Section 2 below.
2. Purchase
Price . The purchase price for the Shares is
$_______ per share. Such price shall be subject
to adjustment pursuant to Section 7 hereof (such price, as
adjusted from time to time, is herein referred to as the “
Warrant Price ”).
3. Exercise
Period . This Warrant is exercisable in whole or in
part at any time from the date hereof through
________________.
4. Transfer of
Warrant. Transfer of this Warrant to a third party
shall be effected by execution and delivery of the Notice of
Assignment attached hereto as Exhibit A and surrender of this
Warrant for registration of transfer of this Warrant at the primary
executive office of the Company, together with funds sufficient to
pay any applicable transfer tax. Upon receipt of the
duly executed Notice of Assignment and the necessary transfer tax
funds, if any, the Company, at its expense, shall execute and
deliver, in the name of the designated transferee or transferees,
one or more new Warrants representing the right to purchase a like
aggregate number of shares of Common Stock.
5. Method of
Exercise . While this Warrant remains outstanding
and exercisable in accordance with Section 3 above, the
Holder may exercise, in whole or in part, the purchase rights
evidenced hereby. Such exercise shall be effected
by:
(a) surrender of this
Warrant, together with a duly executed copy of the form of Exercise
Notice attached hereto, to the Secretary of the Company at its
principal offices, and the payment to the Company of an amount
equal to the aggregate purchase price for the number of Shares
being purchased, which shall be a whole number of shares;
or
(b) if the Common
Stock is publicly traded as of such date, the instruction to retain
that whole number of Shares having a value equal to the aggregate
exercise price of the Shares as to which this Warrant is being
exercised and to issue to the Holder the remainder of such Shares
computed using the following formula:
X
= the
number of shares of Common Stock to be issued to the
Holder.
Y= he number of
shares of Common Stock as to which this Warrant is being
exercised.
A
= the
fair market value of one share of Common Stock.
As used herein, the “fair market value of
one share of Common Stock” shall mean:
(1) Except
in the circumstances described in clause (2) hereof, the price per
share of the Common Stock determined in good faith by the Board of
Directors of the Company; or
(2) If
such exercise is in conjunction with a merger, acquisition or other
consolidation pursuant to which the Company is not the surviving
entity, the value received by the holders of the Common Stock
pursuant to such transaction for each share.
6. Certificates
for Shares; Partial Exercise of Warrants .
(a) Upon the exercise
of the purchase rights evidenced by this Warrant, one or more
certificates for the number of Shares so purchased shall be issued
as soon as practicable thereafter, and in any event within thirty
(30) days of the delivery of the Exercise Notice.
(b) If this Warrant is
surrendered for partial exercise, the Company shall execute and
deliver to the Holder of the Warrant, without charge to the Holder,
a new Warrant exercisable for an aggregate number of shares of
Common Stock equal to the unexercised portion of the surrendered
Warrant.
7. Reservation of
Shares . The Company covenants that it will at all
times keep available such number of authorized shares of its Common
Stock, free from all preemptive rights with respect thereto, which
will be sufficient to permit the exercise of this Warrant for the
full number of Shares specified herein. The Company
further covenants that such Shares, when issued pursuant to the
exercise of this Warrant, will be duly and validly issued, fully
paid and non-assessable and free from all taxes, liens and charges
with respect to the issuance thereof.
8. Adjustment of
Warrant Price and Number of Shares . The number and
kind of securities purchasable upon exercise of this Warrant and
the Warrant Price shall be subject to adjustment from time to time
as follows:
(a) Stock
Dividends, Subdivisions, Combinations and Other Issuances
. If the Company shall at any time prior to the
expiration of this W
