Exhibit
4.1
THE
WARRANT REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE. NEITHER THE
WARRANT NOR SUCH SECURITIES MAY BE SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED WITHOUT SUCH REGISTRATION, EXCEPT UPON
DELIVERY TO THE COMPANY OF SUCH EVIDENCE AS MAY BE SATISFACTORY TO
COUNSEL FOR THE COMPANY TO THE EFFECT THAT ANY SUCH TRANSFER IS NOT
IN VIOLATION OF THE SECURITIES ACT OF 1933 OR APPLICABLE STATE
SECURITIES LAWS OR ANY RULE OR REGULATION PROMULGATED
THEREUNDER.
AVAX
TECHNOLOGIES, INC.
Warrant for the
Purchase
of Shares of Common
Stock
, 2008
Holder:
Holder’s Address:
FOR
VALUE RECEIVED, AVAX
TECHNOLOGIES, INC., a Delaware corporation (the “
Company ”), hereby certifies that the
above-named holder (the “ Holder ”),
its designee or its permitted assigns is entitled to purchase from
the Company, at any time or from time to time commencing on the
date hereof and prior to 5:00 P.M., New York City time, October 24,
2013, up to [____] fully paid and
non-assessable shares of common stock (subject to adjustment),
$.004 par value per share, of the Company for $0.10 per share
(subject to adjustment) at an aggregate purchase price of $[_____]
. This Warrant, all similar Warrants issued by the Company in
October 2008 pursuant to the Convertible Note and Warrant Purchase
Agreement dated as of October 24, 2008 (the
“Agreement”), and all Warrants hereafter issued in
exchange or substitution for this Warrant or similar Warrants are
referred to as the “ Warrants; ”
common stock, $.004 par value per share, of the Company, is
referred to as the “ Common Stock; ”
the shares of the Common Stock purchasable hereunder are referred
to as the “ Warrant Shares; ” the
aggregate purchase price payable for the Warrant Shares purchasable
hereunder is referred to as the “ Aggregate Warrant
Price; ” the price payable (initially $0.10 per
share, subject to adjustment) for each of the Warrant Shares is
referred to as the “ Per Share Warrant
Price; ” and the holder of this Warrant is referred
to as the “ Holder. ” The Aggregate
Warrant Price is not subject to adjustment.
1.
Exercise of Warrant . (a) This Warrant may be exercised in whole at
any time, or in part from time to time, commencing on the date
hereof and prior to 5:00 P.M., New York City time, on October 24,
2013, by the Holder by the surrender of this Warrant (with the
subscription form at the end hereof duly executed) at the address
set forth in Section 9(a), together with proper payment of the
Aggregate Warrant Price, or the proportionate part thereof if this
Warrant is exercised in part, with payment for the Warrant Shares
made by certified or official bank check payable to the order of
the Company.
(b) If this
Warrant is exercised in part, this Warrant must be exercised for a
number of whole shares of the Common Stock, and the Holder is
entitled to receive a new Warrant covering the Warrant Shares that
have not been exercised and setting forth the proportionate part of
the Aggregate Warrant Price applicable to such Warrant
Shares.
(c) Upon
surrender of this Warrant, the Company will (i) issue a certificate
or certificates in the name of the Holder for the number of whole
shares of the Common Stock to which the Holder is entitled and, if
this Warrant is exercised in whole, in lieu of any fractional share
of the Common Stock to which the Holder may be entitled, pay to the
Holder cash in an amount equal to the fair value of the fractional
share (determined in such reasonable manner as the Board of
Directors of the Company determines), and (ii) to the extent
applicable, deliver the other securities and properties receivable
upon the exercise of this Warrant, or the proportionate part
thereof if this Warrant is exercised in part, pursuant to the
provisions of this Warrant.
2.
Reservation of Warrant Shares; Listing .
The Company agrees that, prior to
the expiration of this Warrant, the Company shall at all times (i)
have authorized and in reserve, and shall keep available, solely
for issuance and delivery upon the exercise of this Warrant, the
shares of the Common Stock and other securities and properties as
from time to time shall be receivable upon the exercise of this
Warrant, free and clear of all restrictions on sale or transfer,
other than under United States federal or state securities laws,
and free and clear of all preemptive rights and rights of first
refusal and (ii) use its best efforts to keep the Warrant Shares
authorized for listing on the Over the Counter Bulletin Board
(“OTC”), or any national securities exchange on which
the Company’s Common Stock is traded.
3.
Protection Against Dilution . (a) If the Company hereafter (i) pays a
dividend or makes a distribution on its Common Stock in shares of
Common Stock, (ii) subdivides its outstanding shares of Common
Stock into a greater number of shares, (iii) combines its
outstanding shares of Common Stock into a smaller number of shares
or (iv) issues by reclassification of its Common Stock any shares
of capital stock of the Company, then (x) the Per Share Warrant
Price (but not the Aggregate Warrant Price) and (y) the number of
Warrant Shares issuable hereunder (collectively the
“Exercise Terms” ) shall be adjusted
so that the Holder upon the exercise hereof will be entitled to
receive the number of shares of Common Stock or other capital stock
of the Company that the Holder would have owned immediately
following such action had the Warrant been exercised immediately
prior thereto. An adjustment made pursuant to this Section 3(a)
will become effective immediately after the record date in the case
of a dividend or distribution and will become effective immediately
after the effective date in the case of a subdivision, combination
or reclassification. If the Board of Directors of the Company
declares any dividend or distribution or resolve to take any action
referred to in this Section 3(a ) , it shall
provide written notice thereof to the Holders not less than 10 days
prior to the record date fixed for determining the stockholders
entitled to participate therein.
(b) In the case
of any capital reorganization or reclassification, or any
consolidation or merger to which the Company is a party, other than
a merger or consolidation in which the Company is the continuing
corporation, or in the case of any sale or conveyance to another
entity of the property of the Company as an entirety or
substantially as an entirety, or in the case of any statutory
exchange of securities with another corporation (including any
exchange effected in connection with a merger of a third
corporation into the Company), the Holder will have the right
thereafter to receive on the exercise of the Warrant the kind and
amount of securities, cash or other property that the Holder would
have owned or have been entitled to receive immediately after such
reorganization, reclassification, consolidation, merger, statutory
exchange, sale or conveyance had the Warrant been exercised
immediately prior to the effective date of the reorganization,
reclassification, consolidation, merger, statutory exchange, sale
or conveyance and in any such case, if necessary, appropriate
adjustment shall be made in the application of the provisions set
forth in this Section 3 with respect to the rights and interests
thereafter of the Holder to the end that the provisions set forth
in this Section 3 shall thereafter correspondingly be made
applicable, as nearly as may reasonably be, in relation to any
shares of stock or other securities thereafter deliverable on the
exercise of the Warrant. Notice of any such reorganization,
reclassification, consolidation, merger, exchange, sale or
conveyance shall be mailed to the Holders not less than 30 days
prior to such event. The above provisions of this Section 3(b)
shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, statutory exchanges,
sales or conveyances. The Company shall require the issuer of any
shares of stock or other securities or property thereafter
deliverable on the exercise of the Warrants to be responsible for
all of the agreements and obligations of the Company
hereunder.
(c) If the
Company issues rights, options, warrants or convertible securities
to all holders of its Common Stock, without any charge to or
consideration from such holders, entitling them to subscribe for or
purchase Common Stock at a price per share that is lower at the
record date mentioned below than the closing bid price (as defined
below) for the trading day immediately prior to such record date
(the “Current Market Price” ), then
the Per Share Warrant Price shall be determined by multiplying the
Per Share Warrant Price then in effect by a fraction, of which the
numerator is the number of shares of Common Stock outstanding
immediately prior to the issuance of such rights, options, warrants
or convertible securities plus the number of additional shares of
Common Stock offered for subscription or purchase, and of which the
denominator is the number of shares of Common Stock outstanding
immediately prior to the issuance of such rights, options, warrants
or convertible securities plus the number of shares which the
aggregate offering price of the total number of shares offered
would purchase at such Current Market Price. Such adjustment shall
be made whenever such rights, options, warrants or convertible
securities are issued, and shall become effective immediately and
retroactive to the record date for the determination of
stockhold
