Exhibit
4.2
FORM OF
WARRANT
Warrant No.
____
______ __,
2008
THIS WARRANT
AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE FEDERAL SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), OR UNDER THE PROVISIONS OF ANY
APPLICABLE STATE SECURITIES LAWS. THIS WARRANT AND ANY
OF SUCH SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
REGISTRATION UNDER SAID ACT AND ALL OTHER APPLICABLE SECURITIES
LAWS UNLESS AN EXEMPTION FROM REGISTRATION IS
AVAILABLE.
WARRANT TO PURCHASE SHARES
OF
COMMON STOCK OF OMNIMMUNE
HOLDINGS INC.
1.
Grant of Warrant. Omnimmune Holdings, Inc., a
Delaware corporation (the “Company”), hereby agrees
that [__________________] (the “Holder”) is entitled,
subject to the provisions of this Warrant, to purchase from the
Company, up to [____] ([______]) shares of fully paid and
non-assessable shares of Common Stock (the “Warrant
Stock”) at a price as provided in Section 4 below (the
“Exercise Price”). The term “Holder” as
used herein shall include any transferee to whom this Warrant has
been transferred in accordance with this Warrant.
The term
“Common Stock” means the Common Stock, $0.0001 value
per share, of the Company as constituted on the date hereof,
together with any other equity securities that may be issued by the
Company in substitution therefor. The number of shares
of Common Stock to be received upon the exercise of this Warrant
may be adjusted from time to time as hereinafter set
forth. The term “Company” means and includes
the Company as well as any successor corporation resulting from the
merger or consolidation of such corporation with another
corporation.
2.
Exercise of Warrant. Subject to the limitations
set forth in Section 7, this Warrant may be exercised, as to the
whole or any lesser number of whole shares of Warrant Stock, at any
time during the period commencing six (6) months after the issue
date set forth herein above, and expiring at 5:00 p.m., Houston,
Texas time, upon and coincident with the fifth (5
th ) anniversary of the date of issuance (such date
referred to herein as the “Expiration Date”).
This Warrant shall expire if not properly exercised
in full by the Expiration Date.
The Holder may
exercise this Warrant by presentation and surrender of this Warrant
to the Company prior to the Expiration Date at its principal office
in Houston, Texas, or at the office of its stock transfer agent, if
any, with the Warrant Exercise Form attached hereto duly executed
and accompanied by payment (either in cash or by certified or
official bank check, payable to the order of the Company) of the
aggregate Exercise Price for the number of shares of Warrant Stock
specified in such form.
Upon receipt by
the Company of this Warrant, together with payment in the amount of
the Exercise Price, at its principal office in Houston, Texas, or
by the stock transfer agent of the Company at such agent’s
office, in proper form for exercise, the Holder shall be deemed to
be the holder of record of the shares of Common Stock issuable upon
such exercise, notwithstanding that the stock transfer books of the
Company shall then be closed or that certificates representing such
shares of Common Stock shall not then be actually delivered to the
Holder.
As soon as
practicable after each such exercise of this Warrant, the Company
shall issue and deliver to the Holder a certificate or certificates
for the Warrant Stock issuable upon such exercise, registered in
the name of the Holder. If this Warrant should be
exercised in part only, the Company shall, upon surrender of this
Warrant for cancellation, execute and deliver a new Warrant
evidencing the right of the Holder to purchase the balance of the
Warrant Stock subject to purchase hereunder.
3.
Transfer of Warrant. Any Warrants issued upon
the transfer or exercise in part of this Warrant shall be numbered
and shall be registered in a warrant register (the “Warrant
Register”) as they are issued. The Company shall
be entitled to treat the registered holder of any Warrant on the
Warrant Register as the owner in fact thereof for all purposes and
shall not be bound to recognize any equitable or other claim to or
interest in such Warrant on the part of any other
person. This Warrant shall be transferable on the books
of the Company only upon delivery hereof with the Form of
Assignment at the attached duly completed and executed by the
Holder or by his or its duly authorized attorney or representative,
or accompanied by proper evidence of succession, assignment or
authority to transfer. In all cases of transfer by an
attorney, executor, administrator, guardian or other legal
representative, duly authenticated evidence of his or its authority
shall be produced. Upon any registration of transfer,
the Company shall deliver a new Warrant to the person entitled
thereto. This Warrant may be exchanged, at the option of
the Holder hereof, for another Warrant, or other Warrants of
different denominations, of like tenor and representing in the
aggregate the right to purchase a like number of shares of Warrant
Stock, upon surrender to the Company or its duly authorized agent.
Notwithstanding the foregoing, the Company shall have no obligation
to cause this Warrant to be transferred on its books to any person,
or Warrant Stock to be issued, if, in the opinion of counsel to the
Company, such transfer or issuance does not comply with the
provisions of the Act and the rules and regulations thereunder, and
any applicable state securities laws (“Blue Sky
Laws”).
4.
Exercise Price. Subject to adjustment as set
forth in Section 6 hereof, the exercise price per share of Warrant
Stock (the “Exercise Price”) shall be $5.00.
5.
Reservation of Shares. The Company will at all
times reserve for issuance and delivery all shares of Common Stock
issuable upon exercise of this Warrant. All such shares
shall be duly authorized and, if issued in compliance with the
terms of this Agreement, shall be validly issued, fully paid and
non-assessable. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of
this Warrant. In lieu of any fractional shares or scrip,
the Company shall pay the Holder an amount equal to the applicable
Exercise Price multiplied by such fraction of a share otherwise
called for upon any exercise of this Warrant.
(a)
Capital Adjustments . In case the Company shall
at any time after the date this Warrant is issued: (i) declare a
dividend on the outstanding Common Stock payable in shares of its
capital stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a smaller number of
shares, then, in each case, the Exercise Price in effect, and the
number of shares of Warrant Stock, at the time of the record date
for such dividend or of the effective date of such subdivision or
combination, shall be proportionately adjusted so that the holders
of the Warrant shall be entitled to receive the aggregate number
and kind of shares, for the same aggregate Exercise Price as in
effect immediately prior to such dividend, subdivision or
combination, which, if such Warrants had been exercised immediately
prior to such time, such holders would have owned upon such
exercise and been entitled to receive by virtue of such dividend,
subdivision, or combination. Such adjustment shall be
made successively whenever any event listed above shall
occur. Any adjustment under this paragraph shall become
effective at the close of business on the date the dividend,
subdivision or combination becomes effective.
(b) Mergers,
Consolidations or Sale of Assets . If the Company is
a party to a reorganization (other than as provided for herein), or
a merger or consolidation with or into another corporation, or the
sale of the Company
