THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION, AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS.
WARRANT TO PURCHASE COMMON
STOCK
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Warrant
No. A1-6
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Original Issue Date:
October 31, 2008
Expiration Date: October 1, 2013
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Echo
Therapeutics, Inc., a Delaware corporation (the “
Company ”), hereby certifies that, for value received,
Platinum Long Term Growth VII, LLC (the “ Holder
”) is entitled to purchase from the Company up to a total of
seventy thousand (70,000) shares of common stock, $0.01 par value
per share (the “ Common Stock ”), of the Company
(each such share, a “ Warrant Share ” and all
such shares, the “ Warrant Shares ”) at an
exercise price per Warrant Share equal to $1.50 (as adjusted from
time to time as provided in Section 9 herein, the “
Exercise Price ”), at any time until, and from time to
time after the date hereof (the “ Trigger Date
”) to and including, 5:30 P.M., New York City time, on
October 1, 2013 (the “ Expiration Date ”),
and subject to the following terms and conditions:
1.
Recital . This Warrant (this “ Warrant ”)
is one of a series of similar warrants issued pursuant to that
certain Stock and Warrant Purchase Agreement, dated
October 28, 2008, by and among the Company and the Purchasers
identified therein (the “ Agreement ”). All such
warrants are referred to herein, collectively, as the “
Warrants .”
2.
Definitions . In addition to the terms defined elsewhere in
this Warrant, capitalized terms that are not otherwise defined
herein shall have the meanings given to such terms in the
Agreement.
3.
Registration of Warrants . The Company shall register this
Warrant, upon records to be maintained by the Company for that
purpose (the “ Warrant Register ”), in the name
of the record Holder from time to time. The Company may deem and
treat the registered Holder of this Warrant as the absolute owner
hereof for the purpose of any exercise hereof or any distribution
to the Holder, and for all other purposes, absent actual notice to
the contrary.
4. Exercise
and Duration of Warrant .
(a) All or
any part of this Warrant shall be exercisable by the registered
Holder in any manner permitted by Section 10 of this Warrant
at any time until, and from time to time on or after the Trigger
Date to and including, 5:30 P.M. New York City time, on the
Expiration Date. At 5:30 P.M., New York City time, on the
Expiration Date, the portion of this Warrant not exercised prior
thereto shall be and become void and of no value and this Warrant
shall be terminated and no longer outstanding.
(b) The
Holder may exercise this Warrant by delivering to the Company
(i) an exercise notice, in the form attached as
Schedule 1 hereto (the “ Exercise Notice
”), completed and duly signed, and (ii) payment of the
Exercise Price for the number of Warrant Shares as to which this
Warrant is being exercised (which may take the form of a
“cashless exercise” if so indicated in the Exercise
Notice and if a “cashless exercise” may occur at such
time pursuant to Section 10 below). The date such items are
delivered to the Company (as determined in accordance with the
notice provisions hereof) is an “ Exercise Date
.” The delivery by (or on behalf of) the Holder of the
Exercise Notice and the applicable Exercise Price as provided above
shall constitute the Holder’s certification to the Company
that its representations contained in Section 2.1(c),
(d) and (e) of the Agreement are true and correct as of
the Exercise Date as if remade in their entirety. The Holder shall
not be required to deliver the original Warrant in order to effect
an exercise hereunder, but if it is not so delivered then such
exercise shall constitute an agreement by the Holder to deliver the
original Warrant to the Company as soon as practicable thereafter.
Execution and delivery of the Exercise Notice shall have the same
effect as cancellation of the original Warrant and issuance of a
new Warrant evidencing the right to purchase the remaining number
of Warrant Shares.
5. Delivery
of Warrant Shares .
(a) Upon
exercise of this Warrant, the Company shall promptly (but in no
event later than five (5) Trading Days after the Exercise
Date) issue or cause to be issued and cause to be delivered to or
upon the written order of the Holder and in such name or names as
the Holder may designate (i) a certificate for the Warrant
Shares issuable upon such exercise, free of restrictive legends, or
(ii) an electronic delivery of the Warrant Shares to the
Holder’s account at the Depository Trust Company or a similar
organization, unless in the case of clause (i) and (ii) a
registration statement covering the resale of the Warrant Shares
and naming the Holder as a selling stockholder thereunder is not
then effective or the Warrant Shares are not freely transferable
without restriction (including requirement for current public
information pursuant to Rule 144(c)) under Rule 144 by
Holders who are not affiliates of the Company, in which case such
Holder shall receive a certificate for the Warrant Shares issuable
upon such exercise with appropriate restrictive legends. The
Holder, or any Person permissibly so designated by the Holder to
receive Warrant Shares, shall be deemed to have become the holder
of record of such Warrant Shares as of the Exercise Date. If the
Warrant Shares are to be issued free of all restrictive legends,
the Company shall, upon the written request of the Holder, use its
reasonable best efforts to deliver, or cause to be delivered,
Warrant Shares hereunder electronically through the Depository
Trust Company or another established clearing corporation
performing similar functions, if available; provided, that, the
Company may, but will not be required to, change its transfer agent
if its current transfer agent cannot deliver Warrant Shares
electronically through such a clearing corporation.
(b) If by the
close of the fifth Trading Day after delivery of an Exercise Notice
and the payment of the aggregate exercise price in any manner
permitted by Section 10 of this Warrant, the Company fails to
deliver to the Holder a certificate representing the required
number of Warrant Shares in the manner required pursuant to
Section 5(a), and if after such fifth Trading Day and prior to
the receipt of such Warrant Shares, the Holder purchases (in an
open market transaction or otherwise) shares of Common Stock to
deliver in satisfaction of a sale by the Holder of the Warrant
Shares which the Holder anticipated receiving upon such exercise (a
“ Buy-In ”), then the Company shall, within five
(5) Trading Days after the Holder’s request and in the
Holder’s sole discretion, either (1) pay in cash to the
Holder an amount equal to the Holder’s total purchase price
(including brokerage commissions, if any) for the shares of Common
Stock so
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purchased (the
“ Buy-In Price ”), at which point the
Company’s obligation to deliver such certificate (and to
issue such Warrant Shares) shall terminate or (2) promptly
honor its obligation to deliver to the Holder a certificate or
certificates representing such Warrant Shares and pay cash to the
Holder in an amount equal to the excess (if any) of the Buy-In
Price over the product of (A) such number of Warrant Shares,
times (B) the closing bid price of a share of Common Stock on
the Exercise Date.
(c) To the
extent permitted by law, the Company’s obligations to issue
and deliver Warrant Shares in accordance with the terms hereof are
absolute and unconditional, irrespective of any action or inaction
by the Holder to enforce the same, any waiver or consent with
respect to any provision hereof, the recovery of any judgment
against any Person or any action to enforce the same, or any
setoff, counterclaim, recoupment, limitation or termination, or any
breach or alleged breach by the Holder or any other Person of any
obligation to the Company or any violation or alleged violation of
law by the Holder or any other Person, and irrespective of any
other circumstance that might otherwise limit such obligation of
the Company to the Holder in connection with the issuance of
Warrant Shares. Nothing herein shall limit the Holder’s right
to pursue any other remedies available to it hereunder, at law or
in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the
Company’s failure to timely deliver certificates representing
shares of Common Stock upon exercise of the Warrant as required
pursuant to the terms hereof.
6. Charges,
Taxes and Expenses . Issuance and delivery of certificates for
Warrant Shares upon exercise of this Warrant shall be made without
charge to the Holder for any issue or transfer tax, transfer agent
fee or other incidental tax or expense in respect of the issuance
of such certificates, all of which taxes and expenses shall be paid
by the Company; provided, however , that the Company shall
not be required to pay any tax that may be payable in respect of
any transfer involved in the registration of any certificates for
Warrant Shares or the Warrants in a name other than that of the
Holder or an Affiliate thereof. The Holder shall be responsible for
all other tax liability that may arise as a result of holding or
transferring this Warrant or receiving Warrant Shares upon exercise
hereof.
7.
Replacement of Warrant . If this Warrant is mutilated, lost,
stolen or destroyed, the Company shall issue or cause to be issued
in exchange and substitution for and upon cancellation hereof, or
in lieu of and substitution for this Warrant, a new Warrant, but
only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction (in such case) and, in
each case, a customary and reasonable indemnity and surety bond, if
requested by the Company. Applicants for a new Warrant under such
circumstances shall also comply with such other reasonable
regulations and procedures and pay such other reasonable
third-party costs as the Company may prescribe. If a new Warrant is
requested as a result of a mutilation of this Warrant, then the
Holder shall deliver such mutilated Warrant to the Company as a
condition precedent to the Company’s obligation to issue the
new Warrant.
8.
Reservation of Warrant Shares . The Company covenants that
it will at all times reserve and keep available out of the
aggregate of its authorized but unissued and otherwise unreserved
Common Stock, solely for the purpose of enabling it to issue
Warrant Shares upon exercise of this Warrant as herein provided,
110% of the number of Warrant Shares that are then issuable and
deliverable upon the exercise of this entire Warrant, free from
preemptive rights or any other contingent purchase rights of
persons other than the Holder (taking into account the adjustments
and restrictions of Section 9). The Company covenants that all
Warrant Shares so issuable and deliverable shall, upon issuance and
the payment of the applicable Exercise Price in accordance with the
terms hereof, be duly and validly authorized, issued and fully paid
and nonassessable.
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The Company
will take all such action as may be reasonably necessary to assure
that such shares of Common Stock may be issued as provided herein
without violation of any applicable law or regulation, or of any
requirements of any securities exchange or automated quotation
service upon which the Common Stock may be listed or quoted from
time to time.
9. Certain
Adjustments . The Exercise Price and number of Warrant Shares
issuable upon exercise of this Warrant are subject to adjustment
from time to time as set forth in this Section 9.
(a) Stock
Dividends and Splits . If the Company, at any time while this
Warrant is outstanding, (i) pays a stock dividend on its
Common Stock or otherwise makes a distribution on any class of
capital stock that is payable in shares of Common Stock,
(ii) subdivides its outstanding shares of Common Stock into a
larger number of shares, or (iii) combines its outstanding
shares of Common Stock into a smaller number of shares, then in
each such case the Exercise Price shall be multiplied by a
fraction, the numerator of which shall be the number of shares of
Common Stock outstanding immediately before such event and the
denominator of which shall be the number of shares of Common Stock
outstanding immediately after such event. Any adjustment made
pursuant to clause (i) of this paragraph shall become
effective immediately after the record date for the determination
of stockholders entitled to receive such dividend or distribution,
and any adjustment pursuant to clause (ii) or (iii) of
this paragraph shall become effective immediately after the
effective date of such subdivision or combination.
(b) Pro
Rata Distributions . If the Company, at any time while this
Warrant is outstanding, distributes to all holders of Common Stock
for no consideration (i) evidences of its indebtedness,
(ii) any security (other than a distribution of Common Stock
covered by the preceding paragraph) or (iii) rights or
warrants to subscribe for or purchase any security, or
(iv) any other asset (in each case, “ Distributed
Property ”), then, upon any exercise of this Warrant that
occurs after the record date fixed for determination of
stockholders entitled to receive such distribution, the Holder
shall be entitled to receive, in addition to the Warrant Shares
otherwise issuable upon such exercise (if applicable), the
Distributed Property that such Holder would have been entitled to
receive in respect of such number of Warrant Shares had the Holder
been the record holder of such Warrant Shares immediately prior to
such record date without regard to any limitation on exercise
contained therein.
(c)
Fundamental Transactions . If, at any time while this
Warrant is outstanding (i) the Company effects (A) any
merger of the Company with (but not into) another Person, in which
stockholders of the Company immediately prior to such transaction
own less than a majority of the outstanding stock of the surviving
entity, or (B) any merger or consolidation of the Company into
another Person, (ii) the Company effects any sale of all or
substantially all of its assets in one or a series of related
transactions, (iii) any tender offer or exchange offer
approved or authorized by the Company’s Board of Directors is
completed pursuant to which holders of at least a majority of the
outstanding Common Stock tender or exchange their shares for other
securities, cash or property, or (iv) the Company effects any
reclassification of the Common Stock or any compulsory share
exchange pursuant to which the Common Stock is effectively
converted into or exchanged for other securities, cash or property
(other than as a result of a subdivision or combination of shares
of Common Stock covered by Section 9(a) above) (in any such case, a
“ Fundamental Transaction ”), then the Holder
shall have the right thereafter to receive, upon exercise of this
Warrant, the same amount and kind of securities, cash or property
as it would have been entitled to receive upon the occurrence of
such Fundamental T
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