f8k100808ex10ii_duska.htm


     

     

    Exhibit
10.2

    


    THIS
WARRANT AND ANY SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OFFERED FOR SALE IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT OR AN OPINION OF COUNSEL OR
OTHER EVIDENCE ACCEPTABLE TO THE CORPORATION THAT SUCH REGISTRATION IS NOT
REQUIRED.

    


    DUSKA
THERAPEUTICS, INC

    WARRANT
AGREEMENT

    


    VOID
AFTER 5:00 P.M. NEW YORK TIME, SEPTEMBER 30, 2015

    


    Issue
Date:  October 1, 2008

    


     

    1. Basic
Terms.  This Warrant Agreement (the “Warrant”) certifies that,
for value received, the registered holder specified below or its registered
assigns (“Holder”) is the owner of a warrant of Duska Therapeutics, Inc., a
Nevada
corporation having its principal place of business at 470 Nautilus Street, Suite
300, La Jolla, CA 92037 (the “Corporation”), subject to adjustments as
provided herein, to purchase up to 1,124,551 shares of the Common Stock, $.01
par value, of the Corporation (the “Common Stock”) from the Corporation at the
price per share shown below (the “Exercise Price”),  of which 281,138
shall vest immediately and the remainder shall vest pro rata on a monthly basis
over the  thirty six month period beginning on the issue date , unless
terminated in accordance with the provisions of Section 16 hereof.

     

    
      	
              Holder:

            	
              Jonathan
      Stamler

            
	
              Exercise
      Price per share:

            	
              $.50

            


    

    


    Except as
specifically provided otherwise, all references in this Warrant to the Exercise
Price and the number of shares of Common Stock purchasable hereunder shall be to
the Exercise Price and number of shares after any adjustments are made thereto
pursuant to this Warrant.

    


    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    2. Corporation’s
Representations/Covenants.  The Corporation represents and
covenants that the shares of Common Stock issuable upon the exercise of this
Warrant shall at delivery be fully paid and non-assessable and free from taxes,
liens, encumbrances and charges with respect to their purchase. The Corporation
shall take any necessary actions to assure that the par value per share of the
Common Stock is at all times equal to or less than the then current Exercise
Price per share of Common Stock issuable pursuant to this
Warrant.  The Corporation shall at all times reserve and hold
available sufficient shares of Common Stock to satisfy all conversion and
purchase rights of outstanding convertible securities, options and warrants of
the Corporation, including this Warrant.

     

    3. Method of Exercise;
Fractional Shares.  This Warrant is exercisable, in whole or in
part, with respect to the portion that has vested by surrendering this Warrant,
on any business day during the period (the “Exercise Period”) beginning the
business day after the vesting date and ending at 5:00 p.m. (New York time) on
September 30, 2015. This Warrant may not be
exercised for fewer than 5,000 shares per exercise, as adjusted to reflect stock
dividends, stock splits, and other comparable changes, or if it would cause the
Holder to beneficially own more than 4.99% of the outstanding Common Stock of
the Company (unless the Holder gives at least 90 days written notice to the
Corporation that it does not wish to be governed by the 4.99%
limitation).  To exercise this Warrant, the Holder shall surrender
this Warrant or a portion thereof, at the principal office of the Corporation or
that of the duly authorized and acting transfer agent for its Common Stock,
together with the executed exercise form (substantially in the form of that
attached hereto) and together with (i)
payment for the Common Stock purchased under this Warrant or (ii) notice of a cashless exercise in which case the
Company shall, without any payment on the part of the Holder, deliver to the
Holder the number of shares of Common Stock equal to the difference between (x)
the number of shares of Common Stock  being exercised and (y) the
result derived from the (I) product of the warrant price and the number of
shares of Common Stock being exercised divided by (II) the per share market
price on the Common Stock.  The principal office of the
Corporation is located at the address specified on the signature page of this
Warrant; provided, however, that the Corporation may change its principal office
upon notice to the Holder.  Payment shall be made by check payable to
the order of the Corporation or by wire transfer.  This Warrant is not
exercisable with respect to a fraction of a share of Common Stock.  In
lieu of issuing a fraction of a share remaining after exercise of this Warrant
as to all full shares covered by this Warrant, the Corporation shall either at
its option (a) pay for the fractional share cash equal to the same fraction at
the fair market price for such share; or (b) issue scrip for the fraction in the
registered or bearer form which shall entitle the Holder to receive a
certificate for a full share of Common Stock on surrender of scrip aggregating a
full share.

     

    4. Dissolution,
Liquidation and Adjustments. In case of the
voluntary or involuntary dissolution, liquidation or winding up of the
Corporation (other than in connection with a reorganization, consolidation,
merger, or other transaction) is at any time proposed, the Corporation shall
give at least thirty days prior written notice to the Holder.  Such
notice shall contain:  (a) the date on which the transaction is to
take place; (b) the record date (which shall be at least thirty (30) days after
the giving of the notice) as of which holders of Common Stock will be entitled
to receive distributions as a result of the transaction; 

     

     

    
      
        
        

      

      
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    (c) a
brief description of the transaction, (d) a brief description of the
distributions to be made to holders of Common Stock as a result of the
transaction; and (e) an estimate of the fair value of the distributions. On the date of the transaction, if it actually occurs,
this Warrant and all rights under this Warrant shall terminate.  If
the Corporation with respect to the Common Stock pays a dividend in shares of
Common Stock or securities convertible into shares of Common Stock, subdivides
outstanding shares of Common Stock, combines outstanding shares of Common Stock
into smaller number of shares or issues by reclassification of common stock any
shares of capital stock of the Corporation then the exercise price in effect
shall be adjusted such that the holder shall be entitles to receive the number
and kind of shares of Common Stock or other capital stock of the Corporation
that it would have owned immediately after the happening of any of these events
described above as if this Warrant had converted immediately prior to the
happening of such event.

     

    5. Rights of
Holder.  The Corporation shall deliver to the Holder all
notices and other information provided to its holders of shares of Common Stock
or other securities which may be issuable hereunder concurrently with the
delivery of such information to the holders.  This Warrant does not
entitle the Holder to any voting rights or, except for the foregoing notice
provisions, any other rights as a shareholder of the Corporation.  No
dividends are payable or will accrue on this Warrant or the shares of Common
Stock purchasable under this Warrant until, and except to the extent that, this
Warrant is exercised.  Upon the surrender of this Warrant and payment
of the Exercise Price as provided above, the person or entity entitled to
receive the shares of Common Stock issuable upon such exercise shall be treated
for all purposes as the record holder of such shares as of the close of business
on the date of the surrender of this Warrant for exercise as provided
above.  Upon the exercise of this Warrant, the Holder shall have all
of the rights of a shareholder in the Corporation.

     

    6. Exchange for Other
Denominations. This Warrant is exchangeable, on its surrender by the
Holder to the Corporation, for a new Warrant of like tenor and date representing
in the aggregate the right to purchase the balance of the number of shares
purchasable under this Warrant in denominations and subject to restrictions on
transfer contained herein, in the names designated by the Holder at the time of
surrender.

     

    7. Substitution.  Upon
receipt by the Corporation of evidence satisfactory (in the exercise of
reasonable discretion) to it of the ownership of and the loss, theft or
destruction or mutilation of the Warrant, and (in the case or loss, theft or
destruction) of indemnity satisfactory (in the exercise of reasonable
discretion) to it, and (in the case of mutilation) upon the surrender and
cancellation thereof, the Corporation will issue and deliver, in lieu thereof, a
new Warrant of like tenor.

     

    8. Restrictions on Transfer;
Registration Rights. (a) Neither this Warrant nor the shares of Common
Stock issuable on exercise of this Warrant have been registered under the
Securities Act or any other securities laws (the “Acts”).  Neither
this Warrant nor the shares of Common Stock purchasable hereunder may be sold,
transferred, pledged or hypothecated in the absence of (a) an effective
registration statement for this Warrant or Common Stock purchasable hereunder,
as applicable, under the Acts, or 

     

     

    
      
        
        

      

      
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    (b) an
opinion of counsel reasonably satisfactory to the Corporation that registration
is not required under such Acts.  If the Holder seeks an opinion as to
transfer without registration from Holder’s counsel, the Corporation shall
provide such factual information to Holder’s counsel as Holder’s counsel
reasonably requests for the purpose of rendering such opinion.  Each
certificate evidencing shares of Common Stock purchased hereunder will bear a
legend describing the restrictions on transfer contained in this paragraph
unless, in the opinion of counsel reasonably acceptable to the Corporation, the
shares need no longer to be subject to the transfer restrictions.

    


    (b)  Piggyback
Registration.  If at any time or from time to time, the
Corporation shall determine to register all of its securities not previously
registered which are outstanding on the date hereof,  for
the  account  of
a  security  holder  other  than  a
registration  relating solely to employee  benefit plans,
the Corporation  will:

    


    (i)  promptly
give  to the holder written  notice thereof ;
and

    


    (ii)  include in
such  registration  (and any related qualification under
blue sky laws or other compliance),  and in any underwriting involved
therein, all the Common Stock  specified in a written request or
requests made within  twenty (20) days after  receipt of
such written  notice from Corporation by the holder

    


      
(A)            If
the Securities and Exchange Commission (“SEC”) issues a comment letter with
respect to the offering limiting the total number of shares which may be
registered without it being deemed to be a primary offering, the number of
shares of common stock to be registered for holder shall be reduced pro rata
with all other selling stockholders.

    


    (B)           
If the registration for which Corporation gives notice is a registered public
offering involving an underwriting, the Corporation shall so advise the holder
as a part of the written notice given pursuant to paragraph (b)
above.  In such event, the right of the holder to registration
pursuant to this Agreement shall be conditioned upon the inclusion of the holder
shares in the underwriting to the extent provided herein and to the extent
permitted by the underwriter, in its sole discretion.  The holder
shall enter into an underwriting agreement in customary form with the
representa­tive of the underwriter or underwriters selected by the
Corporation.

    


    (C)           
The Corporation shall use commercially reasonable efforts to maintain the
effectiveness of a registration statement (on Form S-1 or Form S-3) until the
earlier of (i) the sale of all the shares held by the holder or (ii) 12 months
from the effective date of the registration statement.

    


    (D)          
The Corporation shall not be obligated to register any securities of the holder
if the shares may be sold, at the time of registration pursuant to Rule 144 of
the Securities Act of 1933.

     

     

    
      
        
        

      

      
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    9. Transfer.  Except
as otherwise provided in this Warrant, this Warrant is transferable only on the
books of the Corporation by the Holder in person or by attorney, on surrender of
this Warrant, properly endorsed.

     

    10. Recognition of
Holder.  Prior to due presentment for registration of transfer
of this Warrant, the Corporation shall treat the Holder as the person
exclusively entitled to receive notices and otherwise to exercise rights under
this Warrant.  All notices required or permitted to be given to the
Holder shall be in writing and shall be given by first class mail, postage
prepaid, addressed to the Holder at the address of the Holder appearing in the
records of the Corporation.

     

    11. Payment of
Taxes.  The Corporation shall pay all taxes and other
governmental charges, other than applicable income taxes, that may be imposed
with respect to the issuance of shares of Common Stock pursuant to the exercise
of this Warrant.

     

    12. Headings.  The
headings in this Warrant are for purposes of convenience in reference only,
shall not be deemed to constitute a part of this Warrant and shall not affect
the meaning or construction of any of the provisions of this
Warrant.

     

    13. Miscellaneous.  This
Warrant may not be changed, waived, discharged or terminated except by an
instrument in writing signed by the Corporation and the Holder.  This
Warrant shall inure to the benefit of and shall be binding upon the successors
and assigns of the Corporation.

     

    14. Governing
Law.  This Warrant shall be governed by and construed in
accordance with the laws of the State of Nevada without giving effect to its
principles governing conflicts of law.

     

    15. Assignment.  This
Warrant may not be assigned by the Holder without the consent of the
Corporation, except that the Holder may assign this Warrant without the
Corporation’s consent if such assignment is to the Holder’s heirs, spouse or
entities controlled by the Holder.

     

    16. Termination.If
Jonathan Stamler’s engagement as a consultant to the Corporation is terminated
by the Corporation for cause or if he terminates his engagement as a consultant
for any reason, the portion of this warrant originally issued to him by the
Corporation that has vested may be exercised, in Holder’s sole and absolute
discretion, within 90 days of such termination and after such 90 days shall be
null and void and the portion that has not vested at the time of such
termination shall be null and void. If Jonathan Stamler is terminated as a
consultant by the Corporation without cause, then the warrants originally issued
to him shall immediately vest in full so long as the Corporation is actively
engaged in the development of heart failure drugs using the intellectual
property licensed from Duke University and Johns Hopkins University pursuant to
the terms of the License Agreement dated as of May 28, 2008, or the Corporation
is actively engaged in the development of any technology in which Jonathan
Stamler is a named inventor (including technology licensed from Duke University,
Johns Hopkins University, The University of Miami or Jonathan Stamler).


     

     

     

     

    
      
        
        

      

      
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    If at the
time of such termination by the Corporation without cause, the Corporation is no
longer engaged in the development of heart failure drugs using the intellectual
property licensed from Duke University and Johns Hopkins University or other
drugs in which Jonathan Stamler is a named inventor then the unvested portion of
the warrant shall not vest.

     

     

    
       

      
        	 	DUSKA THERAPEUTICS,
      INC.
	 	 	 
	 	By:	 
	 	 	James S.
    Kuo
	 	 	Chief Executive
      Officer


      

       

      

 

      
        
          
          

        

        
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    DUSKA
THERAPEUTICS, INC.

    Form
of Transfer

     

     

    (To be
executed by the Holder to transfer the Warrant)

     

     

    For value
received the undersigned registered holder of the attached Warrant hereby sells,
assigns, and transfers the Warrant to the Assignee(s) named below:

     

    
       

      
        	
                Names
      of

                Assignee

              	
                Address

              	
                Taxpayer
      ID No.

              	
                Number
      of shares

                subject
      

                to transferred
      Warrant

              
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 


      

       

    

     

    The
undersigned registered holder further irrevocably appoints ____________________
_______________________________ attorney (with full power of substitution) to
transfer this Warrant as aforesaid on the books of the Corporation.

     

     

    
       

      
        	Date:	 	 	 
	 	 	 	Signature
	 	 	 	 


      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      



     

     

    DUSKA
THERAPEUTICS, INC.

    Exercise
Form

     

    (To be
executed by the Holder to purchase

    Common
Stock pursuant to the Warrant)

     

     

        The undersigned
holder of the attached Warrant hereby: (1) irrevocably elects to exercise
purchase rights represented by such Warrant for, and to purchase, ___________
shares of Common Stock of Duska Therapeutics, Inc, a Nevada corporation, and
encloses a check or has wired payment of $________________ therefor; (2)
requests that a certificate for the shares be issued in the name of the
undersigned; and (3) if such number of shares is not all of the shares
purchasable under this Warrant, that a new Warrant of like tenor for the balance
of the remaining shares purchasable under this Warrant be
issued.

     

     

    
      
        	Date:	 	 	 
	 	 	 	Signature