Exhibit 4.1
THIS WARRANT AND THE UNDERLYING 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 UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE
SECURITIES LAWS 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 AND IN COMPLIANCE WITH APPLICABLE STATE SECURITIES
LAWS OR BLUE SKY LAWS.
REGENERX BIOPHARMACEUTICALS,
INC.
WARRANT TO PURCHASE COMMON
STOCK
December ,
2008
Void After December 31,
2011
THIS CERTIFIES THAT, for value
received,
,
or permitted registered assigns (the
“Holder” ), is entitled to subscribe for
and purchase at the Exercise Price (defined below) from REGENERX
BIOPHARMACEUTICALS, Inc., a Delaware corporation (the
“Company” ) up to
( )
shares of the common stock of the Company, par value $0.001 per
share (the “Common Stock” ).
This Warrant has been issued pursuant to that certain Securities
Purchase Agreement between the Company and the Holder dated as of
the date hereof (the “ Purchase Agreement
” ).
1.
DEFINITIONS.
Capitalized terms used herein but
not otherwise defined herein shall have their respective meanings
as set forth in the Purchase Agreement. As used herein,
the following terms shall have the following respective
meanings:
(a)
“Business
Day” means a day, other than a Saturday or Sunday, on which
banks in New York City are open for the general transaction of
business.
(b)
“Exercise
Period” shall mean the period commencing with the date hereof
and ending at 5:30 p.m. New York City time on
December 31, 2011.
(c)
“Exercise
Price” shall mean $1.74 per share, subject to adjustment
pursuant to Section 5 below.
(d)
“Exercise
Date” shall have the meaning set forth in
Section 3.1(b) hereof.
(e)
“Exercise
Shares” shall mean the shares of Common Stock issuable upon
exercise of this Warrant.
(f)
“Expiration
Date” shall mean 5:30 p.m. New York City time on
December 31, 2011.
(g)
“Trading
Day” shall mean (i) any day on which the Common Stock is
listed or quoted and traded on its primary Trading Market,
(ii) if the Common Stock is not then listed or quoted and
traded on any Trading Market, then a day on which trading occurs on
the OTC Bulletin Board (or any successor thereto), or (iii) if
trading does not occur on the OTC Bulletin Board (or any successor
thereto), any Business Day.
(h)
“Trading
Market” means whichever of the New York Stock Exchange, the
American Stock Exchange, the NASDAQ Global Select Market, the
NASDAQ Global Market, the NASDAQ Capital Market or the OTC Bulletin
Board on which the Common Stock is listed or quoted for trading on
the date in question.
2.
Reserved.
3.
EXERCISE OF WARRANT.
3.1.
Exercise of Warrant.
(a)
The rights
represented by this Warrant may be exercised in whole or in part at
any time during the Exercise Period upon (i) delivery of an
executed Notice of Exercise in the form attached hereto to the
Company at its address set forth on the signature page hereto
(or at such other address as it may designate by notice in writing
to the Holder), (ii) surrender of this Warrant and
(iii) payment of the Exercise Price for the number of Exercise
Shares as to which this Warrant is being exercised. 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 4.2(b), (c) and
(d) of the Purchase Agreement are true and correct as of the
Exercise Date as if remade in their entirety (or, in the case of
any transferee Holder that is not a party to the Purchase
Agreement, such transferee Holder’s certification to the
Company that such representations are true and correct as to such
assignee Holder as of the Exercise Date).
(b)
With respect to
each exercise of this Warrant pursuant to
Section 3.1(a) above, the Exercise Date shall be deemed
to be the date the Exercise Price is received by the Company.
The Exercise 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 Exercise Date. The person in whose name any
certificate or certificates for Exercise Shares are to be issued
upon exercise of this Warrant shall be deemed to have become the
holder of record of such shares on the Exercise Date, irrespective
of the date of delivery of such certificate or certificates, except
that, if the date of such surrender and payment is a date when the
stock transfer books of the Company are closed, such person shall
be deemed to have become the holder of such shares at the close of
business on the next succeeding date on which the stock transfer
books are open.
2
(c)
Certificates for
shares purchased hereunder shall be transmitted by the transfer
agent of the Company to the Holder by crediting the account of the
Holder’s prime broker with the Depository Trust Company
through its Deposit Withdrawal Agent Commission system if the
Company is a participant in such system, and otherwise by physical
delivery to the address specified by the Holder in the Notice of
Exercise 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.
3.2.
Issuance of New
Warrants. Upon any partial exercise of
this Warrant, the Company, at its expense, will forthwith and, in
any event within five business days, issue and deliver to the
Holder a new warrant or warrants of like tenor, registered in the
name of the Holder, exercisable, in the aggregate, for the balance
of the number of shares of Common Stock remaining available for
purchase under the Warrant.
3.3.
Payment of Taxes and
Expenses. The Company shall pay any
recording, filing, stamp or similar tax which may be payable in
respect of any transfer involved in the issuance of, and the
preparation and delivery of certificates (if applicable)
representing, (i) any Exercise Shares purchased upon exercise
of this Warrant and/or (ii) new or replacement warrants in the
Holder’s name or the name of any transferee of all or any
portion of this Warrant.
4.
COVENANTS OF THE
COMPANY.
4.1.
Covenants as to Exercise
Shares. The Company covenants and
agrees that all Exercise Shares that may be issued upon the
exercise of the rights represented by this Warrant will, upon
issuance, be validly issued and outstanding, fully paid and
nonassessable, and free from all taxes, liens and charges with
respect to the issuance thereof. The Company further
covenants and agrees that the Company will at all times during the
Exercise Period, have authorized and reserved, free from preemptive
rights, a sufficient number of shares of Common Stock to provide
for the exercise of the rights represented by this
Warrant. If at any time during the Exercise Period the
number of authorized but unissued shares of Common Stock shall not
be sufficient to permit exercise of this Warrant, the Company will
take such corporate action as may, in the opinion of its counsel,
be necessary to increase its authorized but unissued shares of
Common Stock to such number of shares as shall be sufficient for
such purposes.
4.2.
No Impairment.
Except to the
extent as waived or consented to by the Holder, the Company will
not, by amendment of its Certificate of Incorporation or through
any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary
act
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