Unassociated Document


    Exhibit
      4.1

    COMMON
      STOCK PURCHASE WARRANT

     

    THE
      WARRANT EVIDENCED OR CONSTITUTED HEREBY, AND ALL SHARES OF COMMON STOCK
      DELIVERABLE UPON EXERCISE HEREUNDER, HAVE BEEN AND WILL BE ISSUED WITHOUT
      REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT") AND MAY
      NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED WITHOUT
      REGISTRATION UNDER THE ACT UNLESS EITHER (A) THE COMPANY HAS RECEIVED AN OPINION
      OF COUNSEL, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, TO
      THE
      EFFECT THAT REGISTRATION IS NOT REQUIRED IN CONNECTION WITH SUCH DISPOSITION
      OR
      (B) THE SALE OF SUCH SECURITIES IS MADE PURSUANT TO SECURITIES AND EXCHANGE
      COMMISSION RULE 144. 

     

    
      	Date: November 13, 2007	
              NO.
                111307

            


    

            

    WARRANT
      TO PURCHASE COMMON STOCK

     

    OF

     

    CYBERKINETICS
      NEUROTECHNOLOGY SYSTEMS, INC.

     

    (Subject
      to Adjustment)

     

    THIS
      CERTIFIES THAT, for value received, NeuroMetrix, Inc. ("Holder"), is entitled,
      subject to the terms and conditions of this Common Stock Purchase Warrant (this
      "Warrant"), at any time or from time to time after the date hereof (the
      "Effective Date"), to purchase up to Two Million Seven Hundred Seventeen
      Thousand Three Hundred Ninety-One (2,717,391) shares (the "Warrant Shares")
      of
      Common Stock (as defined below), from Cyberkinetics Neurotechnology Systems,
      Inc., a Delaware corporation (the "Company"), at an exercise price per share
      equal to $.46 (the "Purchase Price). This Warrant shall expire at 5:00 p.m.
      Eastern Time on that date which is sixty (60) months from the date of this
      Warrant (the "Expiration Date"). Both the number of shares of Common Stock
      purchasable upon exercise of this Warrant and the Purchase Price are subject
      to
      adjustment and change as provided herein. This Warrant is issued in connection
      with that certain Joint Venture and Strategic Investment Agreement (the
      "Investment Agreement") executed by and between the Company and Holder and
      Holder is required under the terms and conditions thereof to exercise this
      Warrant in full under certain circumstances specified therein. 

     

    1.  CERTAIN
      DEFINITIONS. As used in this Warrant the following terms shall have the
      following respective meanings: 

     

    "1933
      Act" shall mean the Securities Act of 1933, as amended. 

     

    "Common
      Stock" shall mean the common stock of the Company, par value $0.001 per share,
      and any other securities at any time receivable or issuable upon exercise of
      this Warrant. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    "Fair
      Market Value" or "FMV" of a share of Common Stock as of a particular date shall
      mean: 

     

    (a)  If
      traded
      on a securities exchange, the Fair Market Value shall be deemed to be the
      average of the closing prices of the Common Stock of the Company on such
      exchange over the five (5) business days ending immediately prior to the
      applicable date of valuation; 

     

    (b)  If
      actively traded over-the-counter, the Fair Market Value shall be deemed to
      be
      the average of the closing bid prices over the 30-day period ending immediately
      prior to the applicable date of valuation; and 

     

    (c)  If
      there
      is no active public market, the Fair Market Value shall be the value as
      determined in good faith by the Company's Board of Directors upon a review
      of
      relevant factors, including due consideration of the Holders' determination
      of
      the value of the Company. 

     

    "SEC"
      shall mean the Securities and Exchange Commission. 

     

    2.  EXERCISE
      OF WARRANT

     

    2.1.  Exercise,
      Payment.
      Subject
      to compliance with the terms and conditions of this Warrant and applicable
      securities laws, this Warrant may be exercised, in whole or in part (except
      that
      it may not be exercised in part in connection with an exercise by NURO that
      is
      required under the terms of the Investment Agreement) at any time or from time
      to time, on or before the Expiration Date by (i) the delivery (including,
      without limitation, delivery by facsimile) of the form of Notice of Exercise
      attached hereto as Exhibit 1 (the "Notice of Exercise"), duly executed by the
      Holder, at the address of the Company as set forth herein, and (ii) surrendering
      this Warrant at the address of the Company and providing payment, by check
      or by
      wire transfer, of an amount equal to the product obtained by multiplying the
      number of shares of Common Stock being purchased upon such exercise by the
      then
      effective Purchase Price (the "Exercise Amount"); provided, however, with
      respect to any voluntary or mandatory exercise of this Warrant after December
      31, 2008, the Holder may elect, by written notice to the Company on the Notice
      of Exercise duly executed by the Holder, to receive a number of Warrant Shares,
      determined in accordance with the formula set forth below (the “Election”), in
      which event the Company shall issue to the Holder a number of Warrant Shares
      computed using the following formula:

     

    X=
      Y(A-B)/A

     

    Where
      X =
      The number of Warrant Shares to be issued to the Holder upon an
      Election.

     

    Y
      = The
      number of Warrant Shares in respect of which this Warrant is being exercised
      as
      adjusted to the date of the Election.

     

    A
      = The
      FMV of one Warrant Share on the date that the relevant Notice of Exercise is
      received by the Company.

     

    B
      = The
      Purchase Price (as adjusted to the date of the Election) in accordance with
      Section 4 hereof.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    2.2.  Common
      Stock Certificates; Fractional Shares.
      Following he Company's receipt of a Notice of Exercise, the Company will use
      commercially reasonable efforts to cause the delivery within three (3) Trading
      Days of such receipt, to the person or persons entitled to receive the same,
      a
      certificate or certificates for the number of whole shares of Common Stock
      issuable upon such exercise. The Company shall register the number of shares
      of
      Common Stock issuable upon exercise on the share register of the Company. No
      fractional shares or scrip representing fractional shares of Common Stock shall
      be issued upon an exercise of this Warrant. 

     

    2.3.  Partial
      Exercise: Effective Date of Exercise.
      In case
      of any partial exercise of this Warrant, the Holder and the Company shall cancel
      this Warrant upon surrender hereof and shall execute and deliver a new Common
      Stock Purchase Warrant of like tenor and date for the balance of the shares
      of
      Common Stock purchasable hereunder. This Warrant shall be deemed to have been
      exercised immediately prior to the close of business on the date of its
      surrender for exercise as provided above. The Company acknowledges that the
      person entitled to receive the shares of Common Stock issuable upon exercise
      of
      this Warrant shall be treated for all purposes as the holder of record of such
      shares as of the close of business on the date the Holder is deemed to have
      exercised this Warrant. 

     

    3.  TAXES.
      The Company shall pay all taxes and other governmental charges that may be
      imposed in respect of the delivery of shares upon exercise of this Warrant;
      provided, however, that the Company shall not be required to pay any tax or
      other charge imposed in connection with any transfer involved in the delivery
      of
      any certificate for shares of Common Stock in any name other than that of the
      Holder of this Warrant, and in such case the Company shall not be required
      to
      deliver any stock certificate until such tax or other charge has been paid,
      or
      it has been established to the Company's reasonable satisfaction that no tax
      or
      other charge is due. 

     

    4.  ADJUSTMENT
      OF PURCHASE PRICE AND NUMBER OF COMMON STOCK. The number of shares of Common
      Stock deliverable upon exercise of this Warrant (or any shares of stock or
      other
      securities or property receivable upon exercise of this Warrant) and the
      Purchase Price are subject to adjustment upon occurrence of the following
      events: 

     

    4.1.  Adjustment
      for Stock Splits. Stock Subdivisions or Combinations of Shares of Common
      Stock.
      The
      Purchase Price of this Warrant shall be proportionally decreased and the number
      of shares of Common Stock deliverable upon exercise of this Warrant (or any
      shares of stock or other securities at the time deliverable upon exercise of
      this Warrant) shall be proportionally increased to reflect any stock split
      or
      subdivision of the Company's Common Stock. The Purchase Price of this Warrant
      shall be proportionally increased and the number of shares of Common Stock
      deliverable upon exercise of this Warrant (or any shares of stock or other
      securities at the time deliverable upon exercise of this Warrant) shall be
      proportionally decreased to reflect any combination of the Company's Common
      Stock. 

     

    4.2.  Adjustment
      for Dividends or Distributions of Stock or Other Securities or
      Property.
      If the
      Company shall make or issue, or shall fix a record date for the determination
      of
      eligible holders entitled to receive, a dividend or other distribution with
      respect to the Common Stock (or any shares of stock or other securities at
      the
      time issuable upon exercise of the Warrant) payable in (a) securities of
      the Company or (b) assets (excluding cash dividends paid or payable solely
      out of retained earnings), then, in each such case, the Holder of this Warrant
      on exercise hereof at any time after the consummation, effective date or record
      date of such dividend or other distribution, shall receive, in addition to
      the
      shares of Common Stock (or such other stock or securities) issuable on such
      exercise, and without the payment of additional consideration therefor, the
      securities or such other assets of the Company to which such Holder would have
      been entitled upon such date if such Holder had exercised this Warrant on the
      date hereof and had thereafter, during the period from the date hereof to and
      including the date of such exercise, retained such shares and/or all other
      additional stock available by it as aforesaid during such period giving effect
      to all adjustments called for by this Section 4. 

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    4.3.  Reclassification.
      If the
      Company, by reclassification of securities or otherwise, shall change any of
      the
      securities as to which purchase rights under this Warrant exist into the same
      or
      a different number of securities of any other class or classes, this Warrant
      shall thereafter represent the right to acquire such number and kind of
      securities as would have been issuable as the result of such change `with
      respect to the securities that were subject to the purchase rights under this
      Warrant immediately prior to such reclassification or other change and the
      Purchase Price therefore shall be appropriately adjusted, all subject to further
      adjustment as provided in this Section 4. No adjustment shall be made pursuant
      to this Section 4.3 upon any conversion or redemption of the Common Stock which
      is the subject of Section 4.5. 

     

    4.4.  Adjustment
      for Capital Reorganization. Merger or Consolidation.
      In case
      of any capital reorganization of the capital stock of the Company (other than
      a
      combination, reclassification, exchange or subdivision of shares otherwise
      provided for herein), or any merger or consolidation of the Company with or
      into
      another corporation, or the sale of all or substantially all the assets of
      the
      Company then, and in each such case, as a part of such reorganization, merger,
      consolidation, sale or transfer, lawful provision shall be made so that the
      Holder of this Warrant shall thereafter be entitled to receive upon exercise
      of
      this Warrant (in all cases without regard to any limitations on the exercise
      of
      this Warrant), during the period specified herein and upon payment of the
      Purchase Price then in effect, the number of shares of stock or other securities
      or property of the successor corporation resulting from such reorganization,
      merger, consolidation, sale or transfer that a holder of the shares deliverable
      upon exercise of this Warrant would have been entitled to receive in such
      reorganization, consolidation, merger, sale or transfer if this Warrant had
      been
      exercised immediately before such reorganization, merger, consolidation, sale
      or
      transfer, all subject to further adjustment as provided in this Section 4.
      The
      foregoing provisions of this Section 4.4 shall similarly apply to successive
      reorganizations, consolidations, mergers, sales and transfers and to the stock
      or securities of any other corporation that are at the time receivable upon
      the
      exercise of this Warrant. If the per-share consideration payable to the Holder
      hereof for shares in connection with any such transaction is in a form other
      than cash or marketable securities, then the value of such consideration shall
      be determined in good faith by the Company's Board of Directors. In all events,
      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 transaction,
      to
      the end that the provisions of this Warrant shall be applicable after that
      event, as near as reasonably may be, in relation to any shares or other property
      deliverable after that event upon exercise of this Warrant. 

     

    4.5.  Conversion
      of Common Stock.
      If all
      or any portion of the authorized and outstanding shares of Common Stock of
      the
      Company are redeemed or converted or reclassified into other securities or
      property pursuant to the Company's Certificate of Incorporation or otherwise,
      or
      the Common Stock otherwise ceases to exist, then, in such case, the Holder
      of
      this Warrant, upon exercise hereof at any time after the date on which the
      Common Stock is so redeemed or converted, reclassified or ceases to exist (the
      "Termination Date"), shall receive, in lieu of the number of shares of Common
      Stock that would have been deliverable upon such exercise immediately prior
      to
      the Termination Date, the securities or property that would have been received
      if this Warrant had been exercised in full and the Common Stock received
      thereupon had been simultaneously converted immediately prior to the Termination
      Date, all subject to further adjustment as provided in this Warrant.
      Additionally, the Purchase Price shall be immediately adjusted to equal the
      quotient obtained by dividing (x) the aggregate Purchase Price of the maximum
      number of shares of Common Stock for which this Warrant was exercisable
      immediately prior to the Termination Date by (y) the number of securities of
      the
      Company for which this Warrant is exercisable immediately after the Termination
      Date, all subject to further adjustment as provided herein.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    5.  LOSS
      OR
      MUTILATION. Upon receipt of evidence reasonably satisfactory the Company of
      the
      ownership of and the loss, theft, destruction or mutilation of this Warrant,
      and
      of indemnity reasonably satisfactory to it, and (in the case of mutilation)
      upon
      surrender and cancellation of this Warrant, the Company will cause to be
      executed and delivered in lieu thereof a new Warrant of like tenor as the lost,
      stolen, destroyed or mutilated Warrant. 

     

    6.  REPRESENTATION.
      The Company hereby covenants that all shares issuable upon exercise of this
      Warrant, when delivered upon such exercise, shall be free and clear of all
      liens, security interests, charges and other encumbrances or restrictions on
      sale and free and clear of all preemptive rights, except encumbrances or
      restrictions arising under federal or state securities laws. Further, the
      Company hereby covenants to reserve such number of authorized but unissued
      shares of Common Stock for issuance upon exercise of this Warrant. 

     

    7.  REGISTRATION.
      The Company has agreed to register the Warrant Shares under certain terms and
      conditions pursuant to the Registration Rights Agreement dated as of the hereof
      by and between the Company and Holder. 

     

    8.  RESTRICTIONS
      ON TRANSFER. 

     

    8.1.  The
      Holder, by acceptance hereof, agrees that, absent an effective registration
      statement filed with the SEC under the 1933 Act, covering the disposition or
      sale of this Warrant or the Common Stock issued or issuable upon exercise hereof
      or the Common Stock issuable upon conversion thereof, as the case may be, and
      registration or qualification under applicable state securities laws, such
      Holder will not sell, transfer, pledge, or hypothecate any or all such Warrants
      or Common Stock, as the case may be, unless either (i) the Company has received
      an opinion of counsel, in form and substance reasonably satisfactory to the
      Company, to the effect that such registration is not required in connection
      with
      such disposition or (ii) the sale of such securities is made pursuant to SEC
      Rule 144 or pursuant to some other applicable exemption from registration.
      

     

    8.2.  This
      Warrant and all rights hereunder may be transferred by the Holder upon delivery
      of the form of Assignment attached hereto as Exhibit 2 (the "Assignment"),
      duly
      executed by the Holder, surrender of this Warrant properly endorsed at the
      address of the Company set forth herein and payment of any necessary transfer
      tax or other governmental charge imposed upon such transfer. Upon any partial
      transfer, the Holder and Company will cause to be issued and delivered to the
      Holder a new Warrant or Warrants with respect to the portion of this Warrant
      not
      so transferred. Each taker and holder of this Warrant, by taking or holding
      the
      same, consents and agrees that when this Warrant shall have been so endorsed,
      the person in possession of this Warrant may be treated by the Company, and
      all
      other persons dealing with this Warrant, as the absolute owner hereof for any
      purpose and as the person entitled to exercise the rights represented hereby,
      any notice to the contrary notwithstanding; provided, however that until a
      transfer of this Warrant is duly registered on the books of the Company, the
      Company may treat the Holder hereof as the owner for all purposes.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    9.  COMPLIANCE
      WITH SECURITIES LAWS. By acceptance of this Warrant, the Holder hereby
      represents, warrants and covenants that he/she/it is an "accredited investor"
      as
      that term is defined under Rule 501 of Regulation D, that any shares of stock
      purchased upon exercise of this Warrant or acquired upon conversion thereof
      shall be acquired for investment only and not with a view to, or for sale in
      connection with, any distribution thereof, that the Holder has had such
      opportunity as such Holder has deemed adequate to obtain from representatives
      of
      the Company such information as is necessary to permit the Holder to evaluate
      the merits and risks of its investment in the Company; that the Holder is able
      to bear the economic risk of holding such shares as may be acquired pursuant
      to
      the exercise of this Warrant for an indefinite period; that the Holder
      understands that the shares of stock acquired pursuant to the exercise of this
      Warrant or acquired upon conversion thereof may not be registered under the
      1933
      Act (unless otherwise required pursuant to exercise by the Holder of the
      registration rights, if any, previously granted to the Holder) and will be
      "restricted securities" within the meaning of Rule 144 under the 1933 Act and
      that the exemption from registration under Rule 144 will not be available for
      at
      least one year from the date of exercise of this Warrant, unless net exercised
      (in which case the holding period shall start earlier), and even then will
      not
      be available unless a public market then exists for the stock, adequate
      information concerning the Company is then available to the public, and other
      terms and conditions of Rule 144 are complied with; and that all stock
      certificates representing shares of stock issued to the Holder upon exercise
      of
      this Warrant or upon conversion of such shares may have affixed thereto a legend
      substantially in the following form: 

     

    THE
      SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
      ACT
      OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE.
      THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE
      AND
      MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND ANY
      APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
      THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
      FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER
      OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
      SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE
      IS
      IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.


     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    10.  NO
      RIGHTS
      OR LIABILITIES AS STOCKHOLDERS. This Warrant shall not entitle the Holder to
      any
      voting rights or other rights as a stockholder of the Company. In the absence
      of
      affirmative action by such Holder to purchase Common Stock by exercise of this
      Warrant, no provisions of this Warrant, and no enumeration herein of the rights
      or privileges of the Holder hereof shall cause such Holder hereof to be a
      stockholder of the Company for any purpose. 

     

    11.  NOTICES.
      All notices and other communications required or permitted hereunder shall
      be in
      writing and shall be mailed by registered or certified mail, postage prepaid,
      return receipt requested, or by telecopier, or by email or otherwise delivered
      by hand or by messenger, addressed or telecopied to the person to whom such
      notice or communication is being given at its address set forth after its
      signature hereto. In order to be effective, a copy of any notice or
      communication sent by telecopier or email must be sent by registered or
      certified mail, postage prepaid, return receipt requested, or delivered
      personally to the person to whom such notice or communication is being at its
      address set forth after its signature hereto with copies to (a) Goodwin Procter
      LLP, Exchange Place, Boston, Massachusetts 02109, Attn: H. David Henken and
      Daniel P. Adams and (b) Ice Miller LLP, One American Square, Suite 3100,
      Indianapolis, Indiana 46282, Attn: John R. Thornburgh and Kristine C. Danz.
      If
      notice is provided by mail, notice shall be deemed to be given five (5) business
      days after proper deposit with the United States mail or nationally recognized
      overnight courier, or immediately upon personally delivery thereof, to person
      to
      whom such notice or communication is being at such address. If notice is
      provided by telecopier, notice shall be deemed to be given upon confirmation
      by
      the telecopier machine of the receipt of such notice at the telecopier number
      provided above. If notice is provided by email, notice shall be deemed to be
      given upon confirmation by the sender's email program of the receipt of such
      notice at the email address provided after the signature of the person to whom
      such notice or communication is being. The addresses set forth after the
      signatures hereto may be changed by written notice complying with the terms
      of
      this Section 11. 

     

    12.  HEADINGS.
      The headings in this Warrant are for purposes of convenience in reference only,
      and shall not be deemed to constitute a part hereof. 

     

    13.  GOVERNING
      LAW. This Warrant shall be construed and enforced in accordance with, and
      governed by, the laws of the Commonwealth of Massachusetts. 

     

    14.  NOTICES
      OF RECORD DATE. In case the Company shall take a record of the holders of its
      Common Stock (or other stock or securities at the time receivable upon the
      exercise of this Warrant), for the purpose: 

     

    (a)  of
      entitling them to receive any dividend or other distribution, or any right
      to
      subscribe for or purchase any shares of stock of any class or any other
      securities or to receive any other right; or 

     

    (b)  of
      any
      consolidation or merger of the Company with or into another corporation, any
      capital reorganization of the Company, any reclassification of the capital
      stock
      of the Company, or any conveyance of all or substantially all of the assets
      of
      the Company to another corporation in which holders of the Company's stock
      are
      to receive stock, securities or property of another corporation; or


     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    (c)  of
      any
      voluntary dissolution, liquidation or winding-up of the Company; or


     

    (d)  of
      any
      redemption of any outstanding capital stock of the Company; then, and in each
      such case, the
      Company will mail or cause to be mailed to the Holder of this Warrant a notice
      specifying, as the case may be, (i) the date on which a record is to be
      taken for the purpose of such dividend, distribution or right, or (ii) the
      date on which such reorganization, reclassification, consolidation, merger,
      conveyance, dissolution, liquidation, winding-up, redemption or conversion
      is to
      take place, and the time, if any is to be fixed, as of which the holders of
      record of Common Stock (or such stock or securities as at the time are
      receivable upon the exercise of this Warrant) shall be entitled to exchange
      their shares of Common Stock (or such other stock or securities) for securities
      or other property deliverable upon such reorganization, reclassification,
      consolidation, merger, conveyance, dissolution, liquidation or winding-up.
      Such
      notice shall be delivered at least thirty (30) days prior to the date of the
      proposed action therein specified. 

     

    15.  SEVERABILITY.
      If any term, provision, covenant or restriction of this Warrant is held by
      a
      court of competent jurisdiction to be invalid, void or unenforceable, the
      remainder of the terms, provisions, covenants and restrictions of this Warrant
      shall remain in full force and effect and shall in no way be affected, impaired
      or invalidated. 

     

    16.  SATURDAYS,
      SUNDAYS AND HOLIDAYS. If the Expiration Date falls on a Saturday, Sunday or
      legal holiday, the Expiration Date shall automatically be extended until 5:00
      p.m. on the next business day. 

     

    17.  REMEDIES.
      In addition to being entitled to exercise all rights provided herein or granted
      by law, including recovery of damages, the Holder and the Company will be
      entitled to specific performance hereunder. The parties agree that monetary
      damages alone may not be adequate compensation for any loss incurred by reason
      of any breach of obligations hereunder and agrees to waive in any action for
      specific performance of any such obligation the defense that remedy at law
      would
      be adequate.

     

    [SIGNATURE
      PAGE FOLLOWS]

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    IN
      WITNESS WHEREOF, the parties hereto have executed this Warrant as of this
      13th
      day of
      November, 2007. 

     

    
 

     

    CYBERKINETICS
      NEUROTECHNOLOGY

    SYSTEMS,
      INC.

    


    


    By:
      /s/
      Timothy R.
      Surgenor                                          


    Name:
      Timothy R. Surgenor 

    Title:
      President and Chief Executive Officer 

    


    Address
      for Notices: 

    


    100
      Foxborough Boulevard, Suite 240 

    Foxborough,
      Massachusetts 02035 

    Facsimile:
      (508) 549-9985

    


    With
      a
      copy to: 

    


    Ice
      Miller LLP

    One
      American Square, Suite 3100

    Indianapolis,
      Indiana 46202-0200

    Facsimile:
      (317) 236-2219

    Attn:
      John R. Thornburgh and Kristine C. Danz

    


    NEUROMETRIX,
      INC.

    


    


    By:
      /s/
      Shai N.
      Gozani                                                     


    Name:
      Shai N. Gozani, M.D., Ph.D. 

    Title:
      President and Chief Executive Officer 

    


    Address
      for Notices: 

    


    62
      Fourth
      Avenue 

    Waltham,
      Massachusetts 02451 

    Facsimile:
      (781)
      890-1556

    


    With
      a
      copy to: 

    


    Goodwin
      Procter LLP

    Exchange
      Place 

    Boston,
      Massachusetts 02109

    Facsimile:
      (617) 523-1231

    Attn:
      H.
      David Henken and Daniel P. Adams

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
      1

     

    NOTICE
      OF
      EXERCISE

     

    (To
      be
      executed upon exercise of Warrant)

     

    WARRANT
      NO. ___________________

     

    The
      undersigned hereby irrevocably elects to exercise the right of purchase
      represented by the within Warrant Certificate for, and to purchase thereunder,
      securities of Cyberkinetics Neurotechnology Systems, Inc., as provided for
      therein, and (check the applicable box):

     

    □
      Tenders
      herewith payment of the exercise price in full in the form of cash or a
      certified or official bank check in same-day funds in the amount of
      $____________ for _________ such securities; or 

     

    □
      Pursuant
      to the cashless exercise feature set forth in Section 2.11 

     

    Please
      issue a certificate or certificates for such securities in the name of, and
      pay
      any cash for any fractional share to (please print name, address and social
      security number): 

     

    


     

    Name:________________________
      

     

    Address:
      ________________________ 

     

    Signature:
      ________________________ 

     

    Note:
      The
      above signature should correspond exactly with the name on the first page of
      this Warrant Certificate or with the name of the assignee appearing in the
      assignment form below. 

     

    If
      said
      number of shares shall not be all the shares purchasable under the within
      Warrant Certificate, a new Warrant Certificate is to be issued in the name
      of
      said undersigned for the balance remaining of the shares purchasable thereunder
      rounded up to the next higher whole number of shares. 

     

     

      
        

      

    

    
      
        1 Available
          only for voluntary or mandatory exercises of this Warrant after December
          31,
          2008.

      

    

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
      2

     

    ASSIGNMENT

     

    (TO
      BE
      EXECUTED ONLY UPON ASSIGNMENT OF WARRANT CERTIFICATE) WARRANT
      NO.-___

     

    For
      value
      received, hereby sells, assigns and transfers unto ________________________
      the
      within Warrant Certificate, together with all right, title and interest therein,
      and does hereby irrevocably constitute and appoint
      ______________________________ attorney, to transfer said Warrant Certificate
      on
      the books of the within-named Company with respect to the number of Warrants
      set
      forth below, with full power of substitution in the premises: 

     

    
      	
              NAMES(s)
                OF ASSIGNEE(s)

            	 	
              ADDRESS(es)
                OF ASSIGNEE(s)

            	 	
              #
                OF WARRANTS

            
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 


    

    


     

    And
      if
      said number of Warrants shall not be all the Warrants represented by the Warrant
      Certificate, a new Warrant Certificate is to be issued in the name of said
      undersigned for the balance remaining of the Warrants registered by said Warrant
      Certificate. 

     

    Dated:____________________________,
      20__ 

     

    Signature:______________________________
      

     

    Notice:
      The signature to the foregoing Assignment must correspond to the name as written
      upon the face of this security in every particular, without alteration or any
      change whatsoever; signature(s) must be guaranteed by an eligible guarantor
      institution (banks, stock brokers, savings and loan associations and credit
      unions with membership in an approved signature guarantee medallion program)
      pursuant to Securities and Exchange Commission Rule l7Ad-15.

     

    
      
        
        

      

      
        11