THIS WARRANT
AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), 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 AND IN THE CASE OF A
TRANSACTION EXEMPT FROM REGISTRATION, UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT
SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES
ACT AND SUCH OTHER APPLICABLE LAWS.
MARSHALL EDWARDS, INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
FOR VALUE
RECEIVED, MARSHALL EDWARDS, INC., a Delaware corporation (the
“Company”), hereby certifies that JOHN O’CONNOR
(the “Holder”) is entitled, subject to the provisions
of this Warrant, to purchase from the Company, up to 46,083 fully
paid and non-assessable shares of Common Stock at a price of $2.17
per share (the “Exercise Price”).
The term
“Common Stock” means the Common Stock, par value
$.00000002 per share, of the Company. 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 shares
of Common Stock deliverable upon such exercise, and as adjusted
from time to time, are hereinafter referred to as “Warrant
Shares.” The term “Company” means and includes
the corporation named above as well as (i) any immediate or
more remote successor corporation resulting from the merger or
consolidation of such corporation (or any immediate or more remote
successor corporation of such corporation) with another
corporation, or (ii) any corporation to which such corporation
(or any immediate or more remote successor corporation of such
corporation) has transferred its property or assets as an entirety
or substantially as an entirety.
Upon receipt by
the Company of evidence reasonably satisfactory to it of the loss,
theft, destruction or mutilation of this Warrant, and (in the case
of loss, theft or destruction) of reasonably satisfactory
indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Company shall execute and deliver a new
Warrant of like tenor and date. Any such new Warrant executed and
delivered shall constitute an additional contractual obligation on
the part of the Company, whether or not this Warrant so lost,
stolen, destroyed or mutilated shall be at any time enforceable by
anyone.
The Holder agrees
with the Company that this Warrant is issued, and all the rights
hereunder shall be held subject to, all of the conditions,
limitations and provisions set forth herein.
1. CASH
EXERCISE OF WARRANT . This Warrant may be exercised, in whole
or in part, at any time, or from time to time during the period
commencing the date hereof and expiring 5:00 p.m. Eastern Time on
July 30, 2013 (the “Expiration Date”), by
presentation and surrender of this Warrant to the Company at its
principal office 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 Exercise Price for the number of shares of Common
Stock specified in such form and instruments of transfer, if
appropriate, duly executed by the Holder or his or her duly
authorized attorney. 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 of like terms
evidencing the rights of the Holder thereof to purchase the balance
of the shares of Common Stock purchasable hereunder. Upon receipt
by the Company of this Warrant, together with the Exercise Price,
at its 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. The Holder shall pay any
and all documentary stamp or similar issue or transfer taxes
payable in respect of the issue or delivery of shares of Common
Stock on exercise of this Warrant.
2.
RESERVATION OF SHARES . The Company will at all times
reserve for issuance and delivery upon exercise of this Warrant all
shares of Common Stock or other shares of capital stock of the
Company from time to time issuable upon exercise of this Warrant.
All such shares shall be duly authorized and, when issued upon such
exercise, shall be validly issued, fully paid and non-assessable
and free of all preemptive rights.
3.
SETTLEMENT OF SHARES . In no event shall the Company be
liable for, or the Holder be entitled to receive, (a) physical
settlement in Warrant Shares unless the conditions and requirements
set forth herein have been satisfied or (b) any net-cash
settlement or other consideration in lieu of physical settlement in
Warrant Shares.
4. EXCHANGE,
TRANSFER, ASSIGNMENT OR LOSS OF WARRANT . This Warrant is
exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof to the Company, for other
Warrants of different denominations, entitling the Holder or
Holders thereof to purchase in the aggregate the same number of
shares of Common Stock purchasable hereunder. Upon surrender of
this Warrant to the Company with an Assignment Form annexed hereto
duly executed and funds sufficient to pay any transfer tax, subject
to the provisions of Sections 7 and 11 hereof, the Company
shall, without charge, execute and deliver a new Warrant in the
name of the assignee named in such instrument of assignment (and in
the event of a partial transfer, a new Warrant to the Holder for
the portion of such Warrant not transferred) and this Warrant shall
promptly be cancelled. This Warrant may be divided or combined with
other Warrants that carry the same rights upon presentation hereof
at
2
the 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 Holder hereof.
5. RIGHTS
OF THE HOLDER . The Holder shall not, by virtue hereof, be
entitled to any rights of a shareholder in the Company, either at
law or in equity, and the rights of the Holder are limited to those
expressed in this Warrant.
6.
ANTI-DILUTION PROVISIONS .
6.1
Adjustment of Exercise Price In Connection With
Recapitalization, Reorganization, Consolidation, Merger, Etc .
In case (i) the outstanding shares of the Common Stock shall
be subdivided into a greater number of shares, (ii) a dividend
or other distribution in Common Stock shall be paid in respect of
Common Stock, (iii) the outstanding shares of Common Stock
shall be combined into a smaller number of shares thereof, or
(iv) any shares of the Company’s capital stock are
issued by reclassification of the Common Stock (including any
reclassification upon a consolidation
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