Exhibit
10.4
THIS WARRANT AND ANY SHARES ISSUABLE
UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT OR AN OPINION OF COUNSEL OR OTHER EVIDENCE
ACCEPTABLE TO THE CORPORATION THAT SUCH REGISTRATION IS NOT
REQUIRED.
DUSKA THERAPEUTICS, INC
WARRANT AGREEMENT
VOID AFTER 5:00 P.M. NEW YORK TIME, SEPTEMBER
30, 2015
Issue Date: October 1,
2008
1. Basic
Terms . This Warrant Agreement (the
“Warrant”) certifies that, for value received, the
registered holder specified below or its registered assigns
(“Holder”) is the owner of a warrant of Duska
Therapeutics, Inc., a Nevada corporation having its principal place
of business at 470 Nautilus Street, Suite 300, La Jolla, CA 92037
(the “Corporation”), subject to adjustments as provided
herein, to purchase up to 562,276 shares of the Common Stock, $.01
par value, of the Corporation (the “Common Stock”) from
the Corporation at the price per share shown below (the
“Exercise Price”), of which 140,569 shall vest
immediately and the remainder shall vest pro rata on a monthly
basis over the thirty six month period beginning on the issue date,
unless terminated in accordance with the provisions of Section 16
hereof.
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Exercise Price per share:
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Except as specifically provided otherwise, all
references in this Warrant to the Exercise Price and the number of
shares of Common Stock purchasable hereunder shall be to the
Exercise Price and number of shares after any adjustments are made
thereto pursuant to this Warrant.
2.
Corporation’s Representations/Covenants
. The Corporation represents and covenants that the
shares of Common Stock issuable upon the exercise of this Warrant
shall at delivery be fully paid and non-assessable and free from
taxes, liens, encumbrances and charges with respect to their
purchase. The Corporation shall take any necessary actions to
assure that the par value per share of the Common Stock is at all
times equal to or less than the then current Exercise Price per
share of Common Stock issuable pursuant to this
Warrant. The Corporation shall at all times reserve and
hold available sufficient shares of Common Stock to satisfy all
conversion and purchase rights of outstanding convertible
securities, options and warrants of the Corporation, including this
Warrant.
3. Method of
Exercise; Fractional Shares . This Warrant is
exercisable, in whole or in part, with respect to the portion that
has vested by surrendering this Warrant, on any business day during
the period (the “Exercise Period”) beginning the
business day after the vesting date and ending at 5:00 p.m. (New
York time) on September 30, 2015. This Warrant may not be exercised
for fewer than 5,000 shares per exercise, as adjusted to reflect
stock dividends, stock splits, and other comparable changes, or if
it would cause the Holder to beneficially own more than 4.99% of
the outstanding Common Stock of the Company (unless the Holder
gives at least 90 days written notice to the Corporation that it
does not wish to be governed by the 4.99%
limitation). To exercise this Warrant, the Holder shall
surrender this Warrant, or a portion thereof at the principal
office of the Corporation or that of the duly authorized and acting
transfer agent for its Common Stock, together with the executed
exercise form (substantially in the form of that attached hereto)
and together with (i) payment for the Common Stock purchased under
this Warrant or (ii) notice of a cashless exercise in which case
the Company shall, without any payment on the part of the Holder,
deliver to the Holder the number of shares of Common Stock equal to
the difference between (x) the number of shares of Common
Stock being exercised and (y) the result derived from
the (I) product of the warrant price and the number of shares of
Common Stock being exercised divided by (II) the per share market
price on the Common Stock. The principal office of the
Corporation is located at the address specified on the signature
page of this Warrant; provided, however, that the Corporation may
change its principal office upon notice to the
Holder. Payment shall be made by check payable to the
order of the Corporation or by wire transfer. This
Warrant is not exercisable with respect to a fraction of a share of
Common Stock. In lieu of issuing a fraction of a share
remaining after exercise of this Warrant as to all full shares
covered by this Warrant, the Corporation shall either at its option
(a) pay for the fractional share cash equal to the same fraction at
the fair market price for such share; or (b) issue scrip for the
fraction in the registered or bearer form which shall entitle the
Holder to receive a certificate for a full share of Common Stock on
surrender of scrip aggregating a full share.
4. Dissolution,
Liquidation and Adjustments . In case of the
voluntary or involuntary dissolution, liquidation or winding up of
the Corporation (other than in connection with a reorganization,
consolidation, merger, or other transaction) is at any time
proposed, the Corporation shall give at least thirty days prior
written notice to the Holder. Such notice shall
contain: (a) the date on which the transaction is to
take place; (b) the record date (which shall be at least thirty
(30) days after the giving of the notice) as of which holders of
Common Stock will be entitled to receive distributions as a result
of the transaction;
(c) a brief description of the transaction, (d)
a brief description of the distributions to be made to holders of
Common Stock as a result of the transaction; and (e) an estimate of
the fair value of the distributions. On the date of the
transaction, if it actually occurs, this Warrant and all rights
under this Warrant shall terminate. If the Corporation
with respect to the Common Stock pays a dividend in shares of
Common Stock or securities convertible into shares of Common Stock,
subdivides outstanding shares of Common Stock, combines outstanding
shares of Common Stock into smaller number of shares or issues by
reclassification of common stock any shares of capital stock of the
Corporation then the exercise price in effect shall be adjusted
such that the holder shall be entitles to receive the number and
kind of shares of Common Stock or other capital stock of the
Corporation that it would have owned immediately after the
happening of any of these events described above as if this Warrant
had converted immediately prior to the happening of such
event.
5. Rights of
Holder . The Corporation shall deliver to the Holder
all notices
