ttrx10q20090630ex10-2.htm


    
      

      

    

    Exhibit 10.2

    


    NEITHER
THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR
QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS AND MAY ONLY BE ACQUIRED FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF.  THIS WARRANT AND THE SECURITIES ISSUABLE UPON
THE EXERCISE OF THIS WARRANT, IF ANY, MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED
OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO SUCH
SECURITIES UNDER THE ACT AND QUALIFICATION UNDER APPLICABLE STATE LAW WITHOUT AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
AND QUALIFICATION ARE NOT REQUIRED UNDER THE ACT OR RECEIPT OF A NO-ACTION
LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION.

     

     

    [Date]

     

    TETRAGENEX
PHARMACEUTICALS, INC.

     

    Warrant for the Purchase of
Shares of Common Stock

     

    For value
received, this warrant (the “Warrant”) is hereby issued by
Tetragenex Pharmaceuticals, Inc., a Delaware corporation (the “Company”), to [ _ ] (the “Holder”).  Subject
to the provisions of this Warrant, the Company hereby grants to the Holder the
right to purchase [ _
] (___) fully paid and non-assessable shares of the Company’s Common
Stock, at the lower of (i) $0.40, or (ii) the price at which any warrants are
exercisable in the Company’s next equity financing which results in proceeds to
the Company equal to or greater than $100,000 (the “Exercise Price”).

     

    The term
“Common Stock” means the
common stock, par value $0.001 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
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.        
    Exercise of
Warrant.  Subject to the terms and conditions set forth herein,
this Warrant may be exercised in whole or in part, pursuant to the procedures
provided below, at any time on or before 5:00 p.m., New York time, on the day
occurring five (5) years from the date hereof (the “Expiration Date”) or, if such
day is a day on which banking institutions in New York are authorized by law to
close, then on the next succeeding day that shall not be such a
day.  The Warrant shall only be exercisable on a cash
basis.  To exercise this Warrant the Holder shall present and
surrender this Warrant to the Company at its principal office, with the Warrant
Exercise Form attached hereto duly executed by the Holder and accompanied by
payment in cash, wire transfer or by check, payable to the order of the Company,
of the aggregate Exercise Price for the total aggregate number of Warrant Shares
for which this Warrant is exercised.  Upon receipt by the Company of
this Warrant, together with the executed Warrant Exercise Form and payment of
the Exercise Price for the Warrant Shares to be acquired, in proper form for
exercise, and subject to the Holder’s compliance with all material requirements
of this Warrant for the exercise hereof, the Company shall issue and deliver to
the Holder one or more certificates representing such Warrant Shares and Holder
shall be deemed to be the holder of record of such Warrant Shares; provided, however, that no
exercise of this Warrant shall be effective, and the Company shall have no
obligation to issue any such Warrant Shares to the Holder upon any attempted
exercise of this Warrant, unless the Holder shall have first delivered to the
Company, in form and substance reasonably satisfactory to the Company,
appropriate representations so as to provide the Company reasonable assurances
that the securities issuable upon exercise may be issued without violation of
the registration requirements of the Act and applicable state securities laws,
including without limitation representations that the Holder is familiar with
the Company and its business and financial condition and has had an opportunity
to ask questions and receive documents relating thereto to his or her reasonable
satisfaction.

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

     

     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 from time to
time receivable 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.      
     Fractional
Shares.  No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of this Warrant, but the Company shall
pay the Holder an amount equal to the fair market value of such fractional share
of Common Stock in lieu of each fraction of a share otherwise called for upon
any exercise of this Warrant; provided, however, that in the event that there is
no fair market value of the Company’s Common Stock, any such amount to be paid
to the Holder as a fractional share shall be determined by the Company’s Board
of Directors.

     

     4.       
    Assignment or Loss of
Warrant.  Subject to the transfer restrictions herein
(including Section 8), upon surrender of this Warrant to the Company or at the
office of its stock 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 promptly
be canceled.  Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction, or mutilation of this
Warrant, and of reasonably satisfactory indemnification by the Holder, and upon
surrender and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver a replacement Warrant of like tenor and date.

     

    5.  
         Rights of the
Holder.  Prior to exercise of the Warrant in accordance with
the terms hereof, the Holder shall not, by virtue hereof, be entitled to any
rights of a stockholder in the Company, either at law or in equity, and the
rights of the Holder are limited to those expressed in this
Warrant.

    


    
      
        
           


        

        
          -2-

          
            

          

        

        
           


        

      

    

     

     6. 
          Adjustments.

     

     6.1           Adjustment for
Recapitalization.  If the Company shall at any time after the
date hereof subdivide its outstanding shares of Common Stock by
recapitalization, reclassification, or split-up thereof, the number of shares of
Common Stock subject to this Warrant immediately prior to such subdivision shall
be proportionately increased, and if the Company shall at any time after the
date hereof combine the outstanding shares of Common Stock by recapitalization,
reclassification, or combination thereof, the number of shares of Common Stock
subject to this Warrant immediately prior to such combination shall be
proportionately decreased.  Any such adjustment and adjustment to the
Exercise Price pursuant to this Section 6.1 shall be effective at the close
of business on the effective date of such subdivision or
combination.

     

    Whenever
the number of shares of Common Stock purchasable upon the exercise of this
Warrant is adjusted, as provided in this Section 6.1, the Exercise Price
shall be adjusted to the nearest cent by multiplying such Exercise Price
immediately prior to such adjustment by a fraction (x) the numerator of which
shall be the number of shares of Common Stock purchasable upon the exercise
immediately prior to such adjustment, and (y) the denominator of which shall be
the number of shares of Common Stock so purchasable immediately
thereafter.

     

     6.2           Adjustment for
Reorganization, Consolidation, Merger.  In case of any
reorganization of the Company after the date hereof or in case after such date
the Company shall consolidate with or merge into another corporation or convey
all or substantially all of its assets to another corporation, then, and in each
such case, the Holder of this Warrant upon the exercise thereof as provided in
Section 1 at any time after the consummation of such reorganization,
consolidation, merger, or conveyance, shall be entitled to receive, in lieu of
the securities and property receivable upon the exercise of this Warrant prior
to such consummation, the securities or property to which such Holder would have
been entitled upon such consummation if such Holder had exercised this Warrant
immediately prior thereto; in each such case, the terms of this Warrant shall be
applicable to the securities or property receivable upon the exercise of this
Warrant after such consummation.

     

     6.3           Certificate as to
Adjustments.  The adjustments provided in this Section 6
shall be interpreted and applied by the Company in such a fashion so as to
reasonably preserve the applicability and benefits of this Warrant (but not to
increase or diminish the benefits hereunder).  In each case of an
adjustment in the number of shares of Common Stock receivable on the exercise of
the Warrant, the Company at its expense will promptly compute such adjustment in
accordance with the terms of the Warrant and prepare a certificate executed by
two executive officers of the Company setting forth such adjustment and showing
in detail the facts upon which such adjustment is based. The Company will
forthwith mail a copy of each such certificate to each Holder.

     

    6.4           Notices of Record Date,
Etc.  In the event that:

    


    
      
        
           


        

        
          -3-

          
            

          

        

        
           


        

      

    

     

     (a)           the
Company authorizes the granting to any holder of Common Stock the right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities; or

     

     (b)           the
Company authorizes any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance of all
or substantially all of the assets of the Company to another corporation or
entity; or

     

     (c)           the
Company authorizes any voluntary or involuntary dissolution, liquidation, or
winding up of the Company,

     

    then, and
in each such case, the Company shall mail or cause to be mailed to the holder of
this Warrant at the time outstanding a notice specifying, as the case may be,
(i) the date on which a record is to be taken for the purpose of such right, and
stating the amount and character of such right, or (ii) the date on which such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation, or winding up is to take place, and the time, if any
is to be fixed, as to which the holders of record of Common Stock shall be
entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation, or winding up.  Such
notice shall be mailed at least twenty (20) days prior to the date therein
specified.

     

     6.5           No
Impairment.  The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Section 6 and in
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holder of this Warrant against
impairment.

     

     7.         
  Transfer
to Comply with the Securities Act.  This Warrant and any
Warrant Shares may not be sold, transferred, pledged, hypothecated or otherwise
disposed of except as follows:  (a) to a person who, in the opinion of
counsel to the Company, is a person to whom this Warrant or the Warrant Shares
may legally be transferred without registration and without the delivery of a
current prospectus under the Securities Act with respect thereto and then only
against receipt of an agreement of such person to comply with the provisions of
this Section 7 with respect to any resale or other disposition of such
securities; or (b) to any person upon delivery of a prospectus then meeting the
requirements of the Securities Act relating to such securities and the offering
thereof for such sale or disposition, and thereafter to all successive
assignees.

     

     8.     
      Legend.  Unless
the shares of Warrant Shares have been registered under the Securities Act, upon
exercise of any of the Warrants and the issuance of any of the shares of Warrant
Shares, all certificates representing shares shall bear on the face thereof
substantially the following legend:

     

    The
securities represented by this certificate have not been registered under the
Securities Act of 1933, as amended, and may not be sold, offered for sale,
assigned, transferred or otherwise disposed of, unless registered pursuant to
the provisions of that Act or unless an opinion of counsel to the Corporation is
obtained stating that such disposition is in compliance with an available
exemption from such registration.

    


    
      
        
           


        

        
          -4-

          
            

          

        

        
           


        

      

    

     

     9.     
      Notices. All notices
required hereunder shall be in writing and shall be deemed given when
telegraphed, delivered personally or within two days after mailing when mailed
by certified or registered mail, return receipt requested, to the Company or the
Holder, as the case may be, for whom such notice is intended, if to the Holder,
at the address of such party shown on the books of the Company, or if to the
Company, at the address set forth on the signature page hereof, Attn: President,
or at such other address of which the Company or the Holder has been advised by
notice hereunder.

     

     10.           Applicable
Law.  The Warrant is issued under and shall for all purposes be
governed by and construed in accordance with the laws of the State of New York,
without regard to the conflict of laws provisions of such State.

     

    12.           Registration
Rights.  The Holder shall be entitled to certain piggyback
registration rights with respect to the registration of the Warrant Shares and
may request that the Company include such Warrant Shares in its next
registration statement filed with the United States Securities and Exchange
Commission.

    


    
      
        
           


        

        
          -5-

          
            

          

        

        
           


        

      

    

    


    IN
WITNESS WHEREOF, the Company has caused this Warrant to be signed on its behalf,
in its corporate name, by its duly authorized officer, all as of the day and
year first above written.

     

    


     

    


    


    
      
        	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:
      Martin F. Schacker

              
	 
      	 
      	
                Title:  Co-Chief
      Executive Officer

              


      

    

    


    


    
      
        
           


        

        
          
          

          
            

          

        

        
           


        

      

    

    


    WARRANT
EXERCISE FORM

     

    The
undersigned hereby irrevocably elects to (i) exercise the within Warrant to
purchase __________ shares of the Common Stock of TETRAGENEX PHARMACEUTICALS,
INC., a Delaware corporation, pursuant to the provisions of Section 1 of the
attached Warrant, and hereby makes payment of $__________ in payment therefore.
The undersigned’s execution of this form constitutes the undersigned’s agreement
to all the terms of the Warrant and to comply therewith.

     

    


     

    
      
        
          
            	 
      	 
      
	 
      	
                    Signature

                  
	 
      	
                    Print
      Name:

                  
	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	
                    Signature,
      if jointly held

                  
	 	 
	 
      	
                    Print
      Name:

                  
	 
      	 
      
	 
      	 
      
	 
      	
                    Date

                  


          

        

      

    

    


     

    


     

    


    
      
        
           


        

        
          
          

          
            

          

        

        
           


        

      

    

    


    ASSIGNMENT
FORM

     

     

    FOR VALUE
RECEIVED_____________________________ (“Assignor”) hereby sells, assigns, and
transfers unto _______________________________ (“Assignee”) all of Assignor’s
right, title and interest in, to and under this Warrant issued by TETRAGENEX
PHARMACEUTICALS, INC. dated ______________.

    


     

    DATED:                                                                      
    

     

    
      
        
          
            
              	 
      	
                      ASSIGNOR:

                    
	 	 
	 
      	 
      
	 
      	 
      
	 
      	
                      Signature

                    
	 
      	
                      Print
      Name:

                    
	 	 
	 
      	 
      
	 
      	 
      
	 
      	
                      Signature,
      if jointly held

                    
	 
      	
                      Print
      Name:

                    
	 	 
	 
      	 
      
	 
      	
                      ASSIGNEE:

                    


            

             

          

        

      

    

    
      The
undersigned agrees to all of the terms of the Warrant and to comply
therewith.

    

     

    


     

    
      
        
          	 
      	 
      
	 
      	
                  Signature

                
	 
      	
                  Print
      Name:

                
	 
      	 
      
	 	 
	 
      	 
      
	 
      	
                  Signature,
      if jointly held

                
	 
      	
                  Print
      Name: