Exhibit 10.4
NEITHER THIS SECURITY NOR THE
SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ SECURITIES ACT ”), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS WARRANT MAY
NOT BE EXERCISED BY OR ON BEHALF OF ANY U.S. PERSON UNLESS
REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE.
COMMON STOCK PURCHASE
WARRANT
To Purchase
Shares of Common Stock of
SYNTHETIC BLOOD INTERNATIONAL,
INC.
THIS COMMON STOCK PURCHASE WARRANT
(the “ Warrant ”) CERTIFIES that, for value
received, FIONA International S.A., (the “ Holder
”), is entitled, upon the terms and subject to the
limitations on exercise and the conditions hereinafter set forth,
at any time on or prior to
(the “ Terminatior Date ”) but not thereafter,
to subscribe for and purchase from Synthetic Blood International,
Inc., a New Jersey corporation (the “ Company
”), up to
shares (the “ Warrant Shares ”) of Common Stock,
par value $0.01 per share, of the Company (the “ Common
Stock ”). The purchase price of one share of Common Stock
(the “ Exercise Price ”) under this Warrant is
$0.247. The Exercise Price and the number of Warrant Shares for
which the Warrant is exercisable shall be subject to adjustment as
provided herein.
1. Title to Warrant . Prior
to the Termination Date and subject to compliance with applicable
laws and Section 7 of this Warrant, this Warrant and all
rights hereunder are transferable, in whole or in part, at the
office or agency of the Company by the Holder in person or by duly
authorized attorney, upon surrender of this Warrant together with
the Assignment Form annexed hereto properly endorsed.
Notwithstanding the foregoing, all subsequent offers and sales of
this Warrant shall be made in compliance with Regulation S and/or
pursuant to registration of the Warrant under the Securities Act or
pursuant to an exemption from registration under the Securities
Act. Unless registered for sale under the Securities Act, this
Warrant can not be resold to U.S. Persons or within the United
States and otherwise in compliance with Rule 904 of Regulations
S.
2. Authorization of Shares .
The Company covenants that all Warrant Shares that may be issued
upon the exercise of the purchase rights represented by this
Warrant will, upon exercise of the purchase rights represented by
this Warrant, be duly authorized, validly issued, fully paid and
nonassessable and free from all taxes, liens and charges in respect
of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously with such issue).
3. Exercise of Warrant
.
(a) Exercise of the purchase rights
represented by this Warrant may be made at any time or times on or
before the Termination Date by delivery to the Company of a duly
executed facsimile copy of the Notice of Exercise Form annexed
hereto (or such other office or agency of the Company as it may
designate by notice in writing to the registered Holder at the
address of such Holder appearing on the books of the Company);
provided, however, said exercise will be void and of no effect if
the Holder does not surrender this Warrant to the Company and the
Company does not receive payment of the aggregate Exercise Price of
the shares purchased by wire transfer or cashier’s check
drawn on a United States bank on or before the fifth day following
the date notice of exercise is delivered to the Company.
Certificates for shares purchased hereunder shall be issued to the
Holder within three business days from the delivery to the Company
of the notice of exercise, surrender of this Warrant and payment of
the aggregate Exercise Price as set forth above. This Warrant shall
be deemed to have been exercised on the date the Exercise Price is
received by the Company. The Warrant Shares shall be deemed to have
been issued, and Holder or any other person so designated to
be
named therein shall be deemed to have become a
holder of record of such shares for all purposes, as of the date
the Warrant has been exercised by payment to the Company of the
Exercise Price and all taxes required to be paid by the Holder, if
any, pursuant to Section 5 prior to the issuance of such
shares, have been paid.
(b) If this Warrant shall have been
exercised in part, the Company shall, at the time of delivery of
the certificate or certificates representing Warrant Shares,
deliver to Holder a new Warrant evidencing the rights of Holder to
purchase the unpurchased Warrant Shares called for by this Warrant,
which new Warrant shall in all other respects be identical with
this Warrant.
(c) Notwithstanding the foregoing,
this Warrant can not be exercised within the United States and the
Warrant Shares can not be delivered within the United States upon
exercise, other than in a transaction deemed by the Company to meet
the definition of an “offshore transaction” pursuant to
Rule 902(h) of Regulation S adopted under the Securities Act,
unless the transaction is registered under the Securities Act or an
exemption from such registration requirement is
available.
4. No Fractional Shares or
Scrip . No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of this Warrant. As to any
fraction of a share which Holder would otherwise be entitled to
purchase upon such exercise, the Company shall pay a cash
adjustment in respect of such final fraction in an amount equal to
such fraction multiplied by the Exercise Price.
5. Charges, Taxes and
Expenses . Issuance of certificates for Warrant Shares shall be
made without charge to the Holder for any issue or transfer tax or
other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be paid by the
Company, and such certificates shall be issued in the name of the
Holder or in such name or names as may be directed by the Holder;
provided , however , that in the event certificates
for Warrant Shares are to be issued in a name other than the name
of the Holder, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by
the Holder; and the Company may require, as a condition thereto,
the payment of a sum sufficient to reimburse it for any transfer
tax incidental thereto.
6. Closing of Books . The
Company will not close its stockholder books or records in any
manner which prevents the timely exercise of this Warrant, pursuant
to the terms hereof.
7. Transfer, Division and
Combination .
(a) Subject to compliance with any
applicable securities laws and the conditions set forth in Sections
1 and 7(e) hereof, this Warrant and all rights hereunder are
transferable, in whole or in part, upon surrender of this Warrant
at the principal office of the Company, together with a written
assignment of this Warrant substantially in the form attached
hereto duly executed by the Holder or its agent or attorney and
funds sufficient to pay any transfer taxes payable upon the making
of such transfer. Upon such surrender and, if required, such
payment, the Company shall execute and deliver a new Warrant or
Warrants in the name of the assignee or assignees and in the
denomination or denominations specified in such instrument of
assignment, and shall issue to the assignor a new Warrant
evidencing the portion of this Warrant not so assigned, and this
Warrant shall promptly be cancelled. A Warrant, if properly
assigned, may be exercised by a new holder for the purchase of
Warrant Shares without having a new Warrant issued.
(b) This Warrant may be divided or
combined with other Warrants upon presentation hereof at the
aforesaid office of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to
be issued, signed by the Holder or its agent or attorney. Subject
to compliance with Section 7(a), as to any transfer which may
be involved in such division or combination, the Company shall
execute and deliver a new Warrant or Warrants in exchange for the
Warrant or Warrants to be divided or combined in accordance with
such notice.
(c) The Company shall prepare, issue
and deliver at its own expense (other than transfer taxes) the new
Warrant or Warrants under this Section 7.
2
(d) The Company agrees to maintain,
at its aforesaid office, books for the registration and the
registration of transfer of the Warrants.
(e) In connection with any transfer
of this Warrant the Company may require, as a condition of allowing
such transfer (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 shall be in form, substance and scope
customary for opinions of counsel in comparable transactions) to
the effect that such transfer may be made without registration
under the Securities Act and under applicable state securities or
blue sky laws, and (ii) that the holder or transferee execute
and deliver to the Company a representation letter regarding
compliance with the Securities Act in form and substance acceptable
to the Company.
8. No Rights as Shareholder until
Exercise . This Warrant does not entitle the Holder to any
voting rights or other rights as a shareholder of the Company prior
to the exercise hereof. Upon the surrender of this Warrant and the
payment of the aggregate Exercise Price, the Warrant Shares so
purchased shall be and be deemed to be issued to such Holder as the
record owner of such shares as of the close of business or the
later of the date of such surrender or payment.
9. Loss, Theft, Destruction or
Mutilation of Warrant . The Company covenants that upon receipt
by the Company of evidence reasonably satisfactory to it of the
loss, theft, destruction or mutilation of this Warrant or any stock
certificate relating to the Warrant Shares, and in case of loss,
theft or destruction, of indemnity or security reasonably
satisfactory to it (which, in the case of the Warrant, shall not
include the posting of any bond), and upon surrender and
cancellation of such Warrant or stock certificate, if mutilated,
the Company will make and deliver a new Warrant or stock
certificate of like tenor and dated as of such cancellation, in
lieu of such Warrant or stock certificate.
10. Saturdays, Sundays, Holidays,
etc . If the last or appointed day for the taking of any action
or the expiration of any right required or granted herein shall be
a Saturday, Sunday or a legal holiday in the United States, then
such action may be taken or such right may be exercised on the next
succeeding day not a Saturday, Sunday or legal holiday.
11. Adjustments of Exercise Price
and Number of Warrant Shares .
(a) Stock Splits, etc . The
number and kind of securities purchasable upon
