EXHIBIT 10.2
WARRANT
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. THEY MAY NOT
BE SOLD OR OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF A REGISTRATION STATEMENT AS TO THE WARRANT AND THE SHARES OF
COMMON STOCK UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS
SOLD PURSUANT TO RULE 144 OF SAID ACT.
SPECTRX, INC.
COMMON STOCK WARRANT
400,000 shares of Common Stock
No. BL-08-4
April 10, 2008
SPECTRX, INC., a Delaware corporation (the
"Company"), for value received, hereby certifies that Dolores
Maloof, or its registered assigns (the "Holder") is entitled,
subject to the provisions hereof, to purchase from the Company, at
any time or from time to time during the Exercise Period (as
defined below), 400,000 duly authorized, validly issued, fully paid
and nonassessable shares of Common Stock (defined below) of the
Company (the "Warrant Shares") at a purchase price of $0.65 per
share (the "Warrant Price"), all subject to the terms, conditions
and adjustments set forth below in this warrant (this warrant, and
any new warrant issued pursuant to the terms hereof, being referred
to herein as "Warrant"). This Warrant is issued pursuant to the
Amended Promissory Note dated April 2, 2008 entered into by the
Company and the Holder and reissued as a an Amended Promissory
Note, dated April 10, 2008. This Warrant will reset at the same
price as the Company's conversion price of the existing Series A
Preferred stock and/or the 13% Senior Convertible Notes that are
currently outstanding.
1.
Exercise of Warrant .
1.1
Manner of Exercise . This Warrant may be exercised by the
Holder, in whole or in part, during normal business hours on any
Business Day by delivering at the principal executive office of the
Company the Warrant and a subscription notice in the form of
Schedule I duly executed by such Holder accompanied by
payment in cash or by certified or official bank check payable to
the order of the Company or by wire transfer in the amount obtained
by multiplying (a) the number of Warrant Shares designated in
such subscription by (b) the Warrant Price. This Warrant may
also be exercised cashless.
1.2
When Exercise Effective . Each exercise of this Warrant
shall be deemed to have been effected immediately prior to the
close of business on the Business Day on which this Warrant shall
have been surrendered to the Company as provided in
Section 1.1. At such time, the Person or Persons in whose name
or names any certificate or certificates for Warrant Shares shall
be issuable upon such exercise as provided in Section 1.3
shall be deemed to have become the stockholder(s) of record
thereof.
1.3
Delivery of Stock Certificates, etc . As soon as practicable
after the exercise of this Warrant, in whole or in part, and in any
event within five (5) Business Days thereafter, the Company at its
expense will cause to be issued to and delivered or registered in
the name of the Holder hereof or, subject to Section 3, as
such Holder (upon payment by such Holder of any applicable transfer
taxes) may direct, the number of duly authorized, validly issued,
fully paid and nonassessable Warrant Shares to which such Holder
shall be entitled upon such exercise plus, in lieu of any
fractional share to which such Holder would otherwise be entitled,
cash in an amount equal to the same fraction of the Market Price
per share on the Business Day next preceding the date of such
exercise. If the Company's transfer agent is participating in the
Depository Trust Company ("DTC") Fast Automated Securities Transfer
program, and so long as certificates issued pursuant the exercise
hereof do not bear a legend and the Holder is not obligated to
return such certificate for the placement of a legend thereon, the
Company shall cause its transfer agent to electronically transmit
the Warrant Shares so purchased to the Holder by crediting the
account of the Holder with DTC through its Deposit Withdrawal Agent
Commission system ("DTC Transfer"). If the aforementioned
conditions to a DTC Transfer are not satisfied, the Company shall
deliver to the Holder physical certificates representing the
Warrant Shares so purchased. Further, the Holder may instruct the
Company to deliver to the Holder physical certificates representing
the Warrant Shares so purchased in lieu of delivering such shares
by way of DTC Transfer. Any certificates so delivered shall be in
such denominations as may be reasonably requested by the Holder
hereof, shall be registered in the name of such Holder and shall
bear a restrictive legend. If this Warrant shall have been
exercised only in part, then the Company shall, at its expense, at
the time of delivery of such certificates, deliver to the Holder a
new Warrant or Warrants of like tenor, calling in the aggregate on
the face or faces thereof for issuance of the number of Warrant
Shares equal (without giving effect to any adjustment therein) to
the number of such shares called for on the face of this Warrant
minus the number of such shares so designated by such Holder upon
such exercise as provided in Section 1.1.
1.4
Representations of the Company . The Company represents,
warrants and acknowledges to the Holder that:
(a)
it is a corporation duly formed and validly existing in the State
of Delaware;
(b)
it will at all times reserve and keep available, solely for
issuance and delivery upon the exercise of this Warrant, the number
of Warrant Shares (or Other Securities) from time to time issuable
upon the exercise of the Warrant at the time outstanding. All such
securities shall be duly authorized and, when issued upon such
exercise, shall be validly issued and, in the case of shares, fully
paid and nonassessable with no liability on the part of the holders
thereof.
(c)
this Warrant has been duly authorized and approved by all requisite
action of the Company, and constitutes a valid and binding
agreement of the Company; and
(d)
when issued in accordance with the terms of this Warrant, the
Warrant Shares will be duly authorized and validly issued, fully
paid and nonassessable.
2.
Warrant Adjustments .
2.1
Reclassification, Exchange, and Substitution . If the
Warrant Shares shall be changed into the same or a different number
of shares of the same or any other class or classes of stock or
other securities of the Company, including any such
reclassification in connection with a consolidation or merger in
which the Company is the surviving entity, whether by capital
reorganization, reclassification, or otherwise (other than a
subdivision or combination of shares provided for above), the
Holder shall, on its exercise, be entitled to receive the kind and
number of shares of Common Stock or Other Securities which the
Holder would have owned or been entitled to receive had such
Warrant been exercised in full immediately prior to the happening
of such reclassification, exchange or substitution for the same
aggregate consideration. If the Company shall at any time change
its Common Stock or Other Securities, as the case may be, into the
same or a different number of shares of the same or any other class
or classes of stock or Other Securities, as the case may be, the
Warrant Price then in effect immediately before that
reclassification, exchange or substitution shall be adjusted by
multiplying the Warrant Price by a fraction, the numerator of which
shall be the number of shares of Common Stock or Other Securities,
as the case may be, purchasable upon the exercise of this Warrant
immediately prior to such adjustment and the denominator of which
shall be the number of shares of Common Stock or Other Securities,
as the case may be, purchasable immediately thereafter. An
adjustment made pursuant to this Section 2.1 shall become effective
immediately after the effective date of such event. Such adjustment
shall be made successively whenever such an event occurs.
2.2
Reorganization, Mergers or Consolidations . In the event of
a reorganization, merger or consolidation of the Company with or
into another entity, then, as part of such reorganization, merger
or consolidation, lawful provision shall be made so that the Holder
shall thereafter be entitled to receive upon exercise of this
Warrant, at any time prior to the end of the Exercise Period and
upon payment of the Warrant Price then in effect, the number of
shares of Common Stock or Other Securities or property of the
Company, or of the successor corporation resulting from such merger
or consolidation, to which the Holder would have been entitled in
such reorganization, merger, or consolidation if this Warrant had
been exercised immediately before that reorganization, merger or
consolidation. In any such case, appropriate adjustment (as
determined in good faith by the Company's Board of Directors) shall
be made in the application of the provisions of this Warrant with
respect to the rights and interests of the Holder after the
reorganization, merger or consolidation to the end that the
provisions of this Warrant (including adjustment of the Warrant
Price then in effect and number of shar
|
