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Exhibit 10.44
NEITHER
THIS SECURITY NOR THE SECURITY INTO WHICH THIS SECURITY IS
EXERCISABLE HAVE 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, 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
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED
BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH
EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE
TO THE COMPANY.
Warrant
No. W-July07-02
Void
after 5:00 p.m., Eastern Standard Time on July 20,
2012
UNIT
PURCHASE WARRANT
DRTATTOFF,
LLC ,
a California limited liability company (the “
Company ”),
hereby certifies that, for value received ,
Ian
Kirby, located at 560 N. Kings Road #3, West Hollywood, CA
90048
(the
“
Warrant Holder ”)
is the owner of the number of unit purchase warrants
(“
Warrants ”)
which entitles the holder thereof to purchase, at any time during
the period commencing on the Commencement Date (as defined herein)
and ending on the Expiration Date (as defined herein), Five Hundred
and Fifty six (556) fully paid and non-assessable units of
Membership Interest (as defined in the Company's Operating
Agreement dated as of July 5, 2005, as amended to date (the
"Operating Agreement")) in the Company (each a "Unit"), each
representing a Percentage Interest (as defined in the Operating
Agreement) equal to 0.0009890% on a fully-diluted basis as of the
date hereof at a purchase price equal to the Exercise Price (as
defined below) in lawful money of the United States of America in
cash, subject to adjustment as hereinafter provided. Each Unit
shall include the right to receive allocations of Net Profits and
Net Losses and distributions from the Company. For the avoidance of
doubt, the securities which the Warrant Holder is permitted to
purchase hereunder (whether prior to or after adjustment of the
Warrant Units or securities to which this Warrant applies) shall be
equal to .5499% of the total equity securities of the Company on a
fully-diluted basis as of the date hereof.
1.
WARRANT; EXERCISE PRICE .
1.1
This
Warrant is issued pursuant to a Subscription Agreement dated
as of the date hereof, by and among the Company and the
Warrant Holder (the “
Subscription Agreement ”).
1.2
Each
Warrant shall entitle the Warrant Holder to purchase one Unit
(individually, a “
Warrant Unit ”
severally, the “
Warrant Units ”).
Each Warrant Unit shall provide the holder of such Unit with a
capital account balance equal to the exercise price paid for such
Warrant Unit.
1.3
The
purchase price payable upon exercise of each Warrant (the
“
Exercise Price ”)
shall be (i) in the event that the Company completes a merger of
the Company with and into Lifesciences Opportunities, Inc. (the
"Merger"), (A) the actual exercise price for a Warrant issued in
the Company's next equity financing (whether completed before,
after or contemporaneously with the Merger), subject to any
adjustments pursuant to Section 8 to make such Warrant equivalent
to the Warrants hereunder, (B) if no Warrant is offered in the next
equity financing (whether completed before, after or
contemporaneously with the Merger), then in such event only, the
purchase price per security which the Warrant Holder is entitled to
purchase upon the exercise of this Warrant will be equal to the
actual purchase price paid for each such security in the next
equity financing, or (C) if no such financing is completed by the
Company after the Merger, then the purchase price per security
which the Warrant Holder is entitled to purchase shall be equal to
(1) the Exercise Price identified in (ii) below (as adjusted by the
provisions of Article 8), divided by (2) the number of shares or
other securities issuable or exchangeable for each Warrant through
the Merger) or (ii) if the Warrant is exercised prior to the
Merger, then the exercise price shall be $92.72 per Unit, subject
to any adjustments pursuant to Section 8. Notwithstanding the
foregoing, the Exercise Price and number of Warrant Units
purchasable pursuant to each Warrant are subject to adjustment as
provided in Section 8.
2.
EXERCISE OF WARRANT; EXPIRATION DATE .
2.1
This
Warrant is exercisable at any time and from time to time
commencing the date hereof (“
Commencement Date ”)
and ending at 5:00 p.m., Eastern Time on June 15, 2012 (the
“
Expiration Date ”),
in whole or from time to time in part, at the option of the Warrant
Holder, upon surrender of this Warrant to the Company together with
a duly completed Notice of Exercise in the form attached hereto and
payment of an amount equal to the then applicable Exercise Price
multiplied by the number of Warrant Units then being purchased upon
such exercise.
2.2
Each
exercise of this Warrant shall be deemed to have been effected
immediately prior to the close of business on the day on which
this Warrant shall have been surrendered to the Company as
provided in Section 2.1. At such time, the person or persons
in whose name or names any certificates for Warrant Units
shall be issuable upon such exercise as provided in Section
2.3 below shall be deemed to have become the holder or holders
of record of the Warrant Units represented by such
certificates.
2.3
Within
three business days after the exercise of the purchase right
represented by this Warrant, the Company at its expense will
use its reasonable best efforts to cause to be issued in the
name of, and delivered to, the Warrant Holder, or, subject to
the terms and conditions hereof, to such other individual or
entity as such Warrant Holder (upon payment by such Warrant
Holder of any applicable transfer taxes) may
direct:
(a)
a
certificate or certificates for the number of full Warrant
Units to which such Warrant Holder shall be entitled upon such
exercise , and
(b)
in
case such exercise is in part only, a new Warrant or Warrants
(dated the date hereof) of like tenor, stating on the face or
faces thereof the number of Units currently stated on the face
of this Warrant minus the number of such Units purchased by
the Warrant Holder upon such exercise as provided in Section
2.2 (in each case prior to any adjustments made thereto
pursuant to the provisions of this Warrant).
3.
REGISTRATION AND TRANSFER ON COMPANY BOOKS .
3.1
The
Company (or an agent of the Company) will maintain a register
containing the names and addresses of the Warrant Holders. Any
Warrant Holder may change its, his or her address as shown on
the warrant register by written notice to the Company
requesting such change.
3.2
The
Company shall register upon its books any transfer of a
Warrant upon surrender of same as provided in Section
5.
4.
RESERVATION OF UNITS .
The Company will at all times reserve and keep available, solely
for issuance and delivery upon the exercise of this Warrant, such
Warrant Units and other stock, securities and property, as from
time to time shall be issuable upon the exercise of this
Warrant. As
long as the Warrant shall be outstanding, the Company shall use its
commercially reasonable efforts to cause all Warrant Units issuable
upon exercise of the Warrants to be listed (subject to official
notice of issuance) on each Exchange (or, if applicable on Nasdaq,
NASD OTC Bulletin Board or Pink Sheets, LLC or any successor
electronic quotation service and trading market) on which the
Company's Membership Interests are then listed and/or quoted, if
any.
5.
EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OR MUTILATION OF
WARRANTS .
This Warrant is exchangeable, without expense, at the option of the
Warrant Holder, upon presentation and surrender hereof to the
Company for other warrants of different denominations entitling the
holder thereof to purchase in the aggregate the same number of
Units purchasable hereunder. Subject to the terms of Sections 6 and
7, upon surrender of this Warrant to the Company at its principal
office or at the office of its transfer agent, if any, with the
Assignment Form annexed hereto duly executed and funds sufficient
to pay any transfer tax, the Company shall, without charge, execute
and deliver a new Warrant in the name of the assignee named in such
instrument of assignment and this Warrant shall be promptly
canceled. Subject to the terms of Sections 6 and 7, this Warrant
may be divided or combined with other warrants which carry the same
rights upon presentation hereof at the principal office of the
Company together with a written notice specifying the names and
denominations in which new Warrants are to be issued and signed by
the Warrant Holder hereof. The term “Warrant” as used
herein includes any Warrants into which this Warrant may be divided
or exchanged. Upon receipt by the Company of reasonable evidence of
the ownership of and the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, of
indemnity reasonably satisfactory to the Company, or, in the case
of mutilation, upon surrender and cancellation of the mutilated
Warrant, the Company shall execute and deliver in lieu thereof a
new Warrant of like tenor and date representing an equal number of
Warrants.
6.
LIMITATION ON EXERCISE AND SALES .
(a)
Each
holder of this Warrant acknowledges that this Warrant and the
Warrant Units have not been registered under the Securities
Act, as of the date of issuance hereof. This Warrant only may
be transferred in compliance with this Section 6 and Section
7. The Company shall be under no obligation to issue the Units
covered by such exercise unless and until the Warrant Holder
shall have executed the form of exercise annexed hereto that
states that at the time of such exercise that it is then an
“accredited investor” within the meaning of Rule
501 of Regulation D, is acquiring such Units for its own
account, and will not transfer the Warrant Units unless
pursuant to an effective and current registration statement
under the Securities Act or an exemption from the registration
requirements of the Securities Act and any other applicable
restrictions, in which event the Warrant Holder shall be bound
by the provisions of a legend or legends to such effect that
shall be endorsed upon the certificate(s) representing the
Warrant Units issued pursuant to such exercise. In such event,
the Warrant Units issued upon exercise hereof shall be
imprinted with a legend in substantially the form provided in
Section 7(b).
(b)
Warrant
Holder represents and warrants that it is acquiring this
Warrant for its own account, for purposes of investment, and
not with a view to, or for sale in connection with, any
distribution thereof within the meaning of the Securities Act
and the rules and regulations promulgated thereunder. Warrant
Holder represents, warrants and agrees that it will not sell,
exercise, transfer or otherwise dispose of this Warrant (or
any interest therein) or any of the Units purchasable upon
exercise hereof, except pursuant to (i) an effective
registration statement under the Securities Act and applicable
state securities laws or (ii) an opinion of counsel,
satisfactory to Company, that an exemption from registration
under the Securities Act and such laws is available. Warrant
Holder further acknowledges and agrees that Company is not
required, legally or contractually, so to register or qualify
the Warrant or such Units or to take any action to make such
an exemption available. Warrant Holder understands that
Company will be relying upon the truth and accuracy of the
representations and warranties contained in this Section 6 in
issuing this Warrant and such Units without first registering
the issuance thereof under the Securities Act or qualifying or
registering the issuance thereof under any state securities
laws that may be applicable.
(c)
Warrant
Holder acknowledges that (i) there is not now, and there may
not be in the future, any public market for the Warrant, (ii)
although there currently is not a public trading market for
the Units, there can be no assurance that any such market will
be created and sustained, and (iii) there can be no assurance
that Warrant Holder will be able to liquidate its investment
in Company. Warrant Holder represents and warrants that it is
familiar with a
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