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Exhibit 4.3
NEITHER THIS WARRANT NOR THE SECURITIES FOR WHICH IT IS EXERCISABLE
HAVE BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH
SECURITIES UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE
SECURITIES ACT. ANY SUCH TRANSFER MAY ALSO BE SUBJECT TO COMPLIANCE
WITH APPLICABLE STATE SECURITIES LAWS AND THE LAWS OF OTHER
APPLICABLE JURISDICTIONS.
NEPHROS, INC.
Warrant for the Purchase of Shares of
Common Stock
FOR
VALUE RECEIVED, NEPHROS, INC., a Delaware corporation (the
“
Company ”),
hereby certifies that Marty Steinberg, Esq., as Court-appointed
Receiver for Lancer Offshore, Inc.,
or
his registered assigns (the “
Holder ”)
is entitled to purchase from the Company, subject to the provisions
of this Warrant (the “
Warrant ”),
at any time on or after the date hereof (the
“Initial Exercise Date” ),
and prior to 12:01 A.M., New York City time, on January 18, 2009
(the “
Termination Date ”),
21,308
fully
paid and non-assessable shares of the Common Stock, $.001 par
value, of the Company (“Common Stock”), at an exercise
price of $1.50 per share of Common Stock for an aggregate exercise
price of thirty-one thousand nine hundred sixty-two dollars
($31,962.00) (the aggregate purchase price payable for the Warrant
Shares hereunder is hereinafter sometimes referred to as the
“
Aggregate Exercise Price ”).
The number of shares of Common Stock to be received upon exercise
of this Warrant and the price to be paid for each share of Common
Stock are subject to possible adjustment from time to time as
hereinafter set forth. The shares of Common Stock or other
securities or property deliverable upon such exercise as adjusted
from time to time is hereinafter sometimes referred to as
the
“Warrant Shares.” The
exercise price of a share of Common Stock in effect at any time and
as adjusted from time to time is hereinafter sometimes referred to
as the “
Per Share Exercise Price. ”
The Per Share Exercise Price is subject to adjustment as
hereinafter provided; in the event of any such adjustment, the
number of Warrant Shares shall also be adjusted, by dividing the
Aggregate Exercise Price by the Per Share Exercise Price in effect
immediately after such adjustment. The Aggregate Exercise Price is
not subject to adjustment except to the extent of any partial
exercise of this Warrant.
1.
Exercise of Warrant .
(a)
This
Warrant may be exercised in whole or in part, at any time by
its holder commencing on the Initial Exercise Date and prior
to the Termination Date by presentation and surrender of this
Warrant, together with the duly executed subscription form
attached at the end hereof, at the address set forth in
Subsection 8(a) hereof, together with payment, by certified or
official bank check or wire transfer payable to the order of
the Company, of the Aggregate Exercise Price or the
proportionate part thereof if exercised in part.
(b)
If
this Warrant is exercised in part only, the Company shall,
upon presentation of this Warrant upon such exercise, execute
and deliver (along with the certificate for the Warrant Shares
purchased) a new Warrant evidencing the rights of the Holder
hereof to purchase the balance of the Warrant Shares
purchasable hereunder upon the same terms and conditions as
herein set forth. Upon proper exercise of this Warrant, the
Company promptly shall deliver certificates for the Warrant
Shares to the Holder duly legended as authorized by the
subscription form. No fractional shares or scrip representing
fractional shares shall be issued upon exercise of this
Warrant;
provided that
the Company shall pay to the Holder of the Warrant cash in lieu of
such fractional shares.
(c)
The
certificates representing the Warrant Shares shall bear the
following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE
SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH SECURITIES
UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE SECURITIES ACT.
ANY SUCH TRANSFER MAY ALSO BE SUBJECT TO COMPLIANCE WITH APPLICABLE
STATE SECURITIES LAWS AND THE LAWS OF OTHER APPLICABLE
JURISDICTIONS.
2.
Reservation of Warrant Shares; Fully Paid Shares;
Taxes .
The Company hereby represents that it has, and until expiration of
this Warrant agrees that it shall, reserve for issuance or delivery
upon exercise of this Warrant, such number of shares of the Common
Stock as shall be required for issuance and/or delivery upon
exercise of this Warrant in full, and agrees that all Warrant
Shares so issued and/or delivered will be validly issued, fully
paid and non-assessable, and further agrees to pay all taxes (other
than income taxes) and charges that may be imposed upon such
issuance and/or delivery. The Company shall not, however, be
required to pay any tax which may be payable in respect of any
transfer involved in the issue or delivery of Common Stock (or
other securities or assets) in a name other than that in which the
Warrants so exercised were registered, and no such issue or
delivery shall be made unless and until the person requesting such
issue has paid to the Company the amount of such tax or has
established, to the satisfaction of the Company, that such tax has
been paid.
3.
Protection Against Dilution .
(a)
In
case the Company shall hereafter (i) pay a dividend or make a
distribution on its capital stock in shares of Common Stock,
(ii) subdivide its outstanding shares of Common Stock into a
greater number of shares, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares or (iv) issue
by reclassification of its Common Stock any shares of capital
stock of the Company (each of (i) through (iv) an
“Action”), the Per Share Exercise Price shall be
adjusted to be equal to a fraction, the numerator of which
shall be the Aggregate Exercise Price and the denominator of
which shal
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