exv10w45



 





EXHIBIT 10.45

PF-8014



THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR ANY STATE
SECURITIES LAWS, AND ARE “RESTRICTED SECURITIES” AS THAT TERM IS DEFINED IN RULE 144 UNDER THE
ACT. THE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, OR OTHERWISE TRANSFERRED UNLESS AND
UNTIL REGISTERED UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR UPON RECEIPT BY
THE COMPANY OF AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.




Warrant
No. 092806-B




WARRANT TO PURCHASE SHARES OF COMMON STOCK




ISSUE DATE: September 28, 2006




     This
certifies that Robert F. McCullough, Jr., an individual resident of the State of
California (or any valid transferee thereof, the “Holder”),
for value received, is entitled to
purchase from CytoCore, Inc., a Delaware corporation with its principal business office located at
414 North Orleans Street, Suite 502, Chicago, Illinois 60610 (together with its successors and
assigns, the “Company”), subject to the terms and conditions set forth below, at any time or from
time to time on and after the Issue Date as set forth above and before 3:00 p.m. (Eastern
Daylight Time) on September 28, 2009 (the “Expiration Date”), Four Million (4,000,000) Shares of
common Stock, $0.001 par value per share, of the Company (“Common Stock”), at a price of
Twelve and Three Quarter Cents ($0.1275) per share. The shares purchasable upon exercise of this
Warrant, and the purchase price per share, each as adjusted from time to time pursuant to the
provisions of this Warrant, are hereinafter referred to as the “Warrant Shares” and the ‘“Purchase
Price,” respectively.



     1.     Exercise of the Warrant.



          (a) Exercise. The Holder may, at the Holder’s option, elect to exercise this
Warrant, in whole or in part, at any time or from time to time on or after the Issue Date and
Vesting Date but prior to 3:00 p.m. (Eastern Daylight Time) on the Expiration Date, by
surrendering this Warrant, with the purchase form appended hereto as
Exhibit I duly executed
by or on behalf of the Holder, at the principal office of the Company, or at such other office
or agency as the Company may designate, accompanied by payment in full, in lawful money of the
United States, of the Purchase Price payable in respect of the number of Warrant Shares
purchased upon such exercise. In no event shall any such exercise be for fewer than 10,000
Warrant Shares unless fewer than an aggregate of 10,000 Warrant Shares are then purchasable
under all outstanding Warrants held by the Holder. Payment of the aggregate Purchase Price may
be made in cash, certified or bank check, or wire transfer of immediately available funds.




 









 








          (b)
Exercise Date and Status as Holder of Shares. Each exercise of this
Warrant shall be deemed to have been effected immediately prior to the close of
business on the
day on which this Warrant shall have been surrendered to the Company as provided
in Subsection 1(a) above (the “Exercise Date”). At such time, the person or persons
in whose name
or names any certificates for Warrant Shares shall be issuable upon such exercise
as provided in
Subsection l(c) below shall be deemed to have become the holder or holders of
record of the
Warrant Shares represented by such certificates.




          (c) Issuance of Certificates. As soon as practicable after the exercise of this
Warrant in whole or in part, and in any event within 10 business days thereafter,
the Company, at
its expense, will cause to be issued in the name of, and delivered to, the
Holder, or as the Holder
(upon payment by the Holder of any applicable transfer taxes) may direct:




               (i) a certificate or certificates for the number of full Warrant Shares to
which the Holder shall be entitled upon such exercise plus, in lieu of any
fractional share to which the Holder would otherwise be entitled, cash in an
amount determined pursuant to Section 3 hereof; and



               (ii) in case such exercise is in part only, a new warrant or warrants (dated
the date hereof) of like tenor, calling in the aggregate on the face or faces
thereof for the number of Warrant Shares equal (without giving effect to any
adjustment therein) to the number of such shares called for on the face of this
Warrant minus the number of Warrant Shares for which this Warrant was so
exercised.



          (d) Warrant Shares. The Warrant Shares issued upon any such exercise of
this Warrant shall be validly issued, fully paid and non-assessable.




          (e) Vesting Date. The Warrants Shares shall fully and irrevocably vest on
January 1, 2007. The Warrant Shares are not exerciseable before the Vesting Date.




     2.     Adjustments.



          (a) Adjustment for Stock Splits and Combinations. If the Company shall at any
time or from time to time after the Issue Date (or, if this Warrant was issued
upon partial exercise of, or in replacement of, another warrant of like tenor,
then the date on which such original warrant was first issued) (either such date
being referred to as the “Original Issue Date”) effect a subdivision of the
outstanding Common Stock, the Purchase Price then in effect immediately before
that subdivision shall be proportionately decreased. If the Company shall at any
time or from time to time after the Original Issue Date combine the
outstanding shares of Common Stock, the Purchase Price then in effect immediately before the
combination shall be proportionately increased. Any adjustment under this
Subsection 2(a) shall become effective at the close of business on the date the
subdivision or combination becomes effective.




          (b) Adjustment for Certain Dividends and Distributions. In the event the
Company at any time or from time to time after the Original Issue Date shall make or issue, or
fix a record date for the determination of holders of Common Stock entitled to receive, a
dividend or other distribution payable in shares of Common Stock, then and in each such event
the Purchase Price then in effect immediately before such event shall be decreased as of the
time




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of such issuance or, in the event such a record date shall have been fixed, as of the
close of business on such record date, by multiplying the Purchase Price then in effect by
a fraction:




               (1) the numerator of which shall be the total number of shares
of Common Stock issued and outstanding immediately prior to the time of such issuance or the
close of business on such record date, and



               (2) the denominator of which shall be the total number of shares
of Common Stock issued and outstanding immediately prior to the time of such issuance
or the close of business on such record date plus the number of shares of Common Stock
issuable in payment of such dividend or distribution;


provided, however, that if such record date shall have been fixed and such dividend is not
fully paid or if such distribution is not fully made on the date fixed therefor, the Purchase
Price shall be recomputed accordingly as of the close of business on such record date and
thereafter the Purchase Price shall be adjusted pursuant to this Subsection 2(b) as of the
time of actual payment of such dividends or distributions.




          (c) Adjustment in Number of Warrant Shares. When any adjustment is
required to be made to the Purchase Price pursuant to Subsections 2(a) or 2(b), the
number of
Warrant Shares purchasable upon the exercise of this Warrant shall be changed to the
number
determined by dividing (i) an amount equal to the number of shares issuable upon the
exercise of
this Warrant immediately prior to such adjustment, multiplied by the Purchase Price in
effect
immediately prior to such adjustment, by (ii) the Purchase Price in effect immediately
after such adjustment.




          (d) Adjustment for Reorganization. If there shall occur any reorganization,
recapitalization, reclassification, consolidation or merger involving the Company in
which the
Common Stock is converted into or exchanged for securities, cash or other property (other
than a
transaction covered by Subsections 2(a) or 2(b)) (collectively, a
“Reorganization”), then,
following such Reorganization, the Holder shall receive upon exercise hereof the kind and
amount of securities, cash or other property which the Holder would have been entitled to
receive pursuant to such Reorganization if such exercise had taken place immediately
prior to
such Reorganization. In any such case, appropriate adjustment (as determined in good
faith by
the Board) shall be made in the application of the provisions set forth herein with
respect to the
rights and interests thereafter of the Holder, to the end that the provisions set forth
in this Section
2 (including provisions with respect to changes in and other adjustments of the Purchase
Price)
shall thereafter be applicable, as nearly as reasonably may be, in relation to any
securities, cash
or other property thereafter deliverable upon the exercise of this Warrant.




          (e) No Adjustments in Certain Cases. No adjustment in the number of
Warrant Shares purchasable pursuant to this Warrant shall be required unless the adjustment
would require an increase or decrease of at least one percent (1.0%) in the number of Warrant
Shares then purchasable upon the exercise of this Warrant. Except as provided in this
Section 2, no other adjustments in the number, kind or price of shares constituting Warrant
Shares shall be made during the term, or upon the exercise, of this Warrant, Further, no
adjustments shall be made pursuant to this Section 2 hereof in connection with the grant or
exercise of presently




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authorized or outstanding options to purchase, or the issuance of shares of Common
Stock under, the Company’s director or employee benefit, option and incentive plans.




          (f) Treasury Stock. For purposes of this Section 2, shares of Common Stock owned
or held at any relevant time by, or for the account of, the Company, in its treasury or
otherwise, shall not be deemed to be outstanding for purposes of the calculations and
adjustments herein described.




     3.     Fractional Shares. The Company shall not be required upon the exercise of this
Warrant to issue any fractional shares, but shall pay in cash to the Holder an amount
equal to
such fraction multiplied by the fair market value per share of Common Stock, as
determined by
the Board of Directors in good faith.



     4.     Investment Representations. The initial Holder represents and warrants to the
Company as follows:



          (a) Investment. The Holder is acquiring this Warrant, and (if and when such
Holder exercises this Warrant) will acquire the Warrant Shares, for such Holder’s own
account
for investment and not with a view to, or for sale in connection with, any distribution
thereof, nor
with any present intention of distributing or selling the same; and the Holder has no
present or
contemplated agreement, undertaking, arrangement, obligation, indebtedness or
commitment
providing for the disposition thereof.




          (b) Accredited Investor. The Holder is an “accredited investor” as defined in
Rule 501(a) under the Act.




          (c)
Experience. The Holder has made such inquiry concerning the Company
and its business and personnel as the Holder has deemed appropriate; and the Holder has
sufficient knowledge and experience in finance and business that the Holder is capable of
evaluating the risks and merits of an investment in the Company.




     5.     Transfers, etc.



          (a) This Warrant and the Warrant Shares shall not be offered, sold or
transferred unless either (i) they first shall have been registered under the Act and any
applicable
state securities laws, or (ii) the Company first shall have been furnished with an
opinion of legal
counsel, satisfactory to the Company, to the effect that such offer, sale or transfer is
exempt from
the registration requirements of the Act and any applicable state securities laws.




          (b) Each Warrant and certificate representing Warrant Shares shall bear a
legend substantially in the following form:





“The securities represented by this certificate have not been
registered under the Securities Act of 1933. as amended, or any state
securities laws, and may not be offered, sold or otherwise
transferred, pledged or hypothecated unless and until such securities
are registered under such act and applicable state securities laws or
an opinion of counsel reasonably



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satisfactory to the Company is obtained to the effect that such
registration is not required.”



     The foregoing legend shall be removed from the certificates representing any Warrant
Shares, at the request of the holder thereof, at such time as they become eligible for resale
pursuant to Rule 144 under the Act.



          (c) The Company will maintain a register containing the name and address of
the Holder of this Warrant, The Holder may change the Holder’s address as shown on the
warrant register by written notice to the Company requesting such
change.




          (d) Subject to the provisions of clauses (a) and (b) of this Section 5, this
Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of
this
Warrant with a properly executed assignment (in the form of
Exhibit II hereto) at the
principal
office of the Company (or, if another office or agency has been designated by the Company
for
such purpose, then at such other office or agency). Upon the presentation and surrender
of such
items to the Company, the Company shall execute and deliver to the transferee or
transferees of
this Warrant a new Warrant or Warrants, in the name of the transferee or transferees
named in
the assignment, and this Warrant shall at that time be canceled to the extent
transferred.




     6.     No Impairment; Adjustment of Par Value.



          (a) The Company will not, by amendment of its charter or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or
any other voluntary action, avoid or seek to avoid the observance or performance of any of the
terms of this Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Holder against impairment.




          (b) Before taking any action that would cause an adjustment reducing the
Purchase Price per share below the then par value of the shares of Warrant Shares
issuable upon
exercise of the Warrant, the Company will take any corporate action that may be necessary
in
order that the Company may validly and legally issue fully paid and non-assessable shares
of
such Warrant Shares at such adjusted price.




     7.     Record Date, etc. In the event:



          (a) the Company shall take a record of the holders of its Common Stock (or
other stock or securities at the time deliverable upon the exercise of this Warrant) for
the purpose
of entitling or enabling them to receive any dividend or other distribution, or to
receive 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 capital reorganization of the Company, any reclassification of the
Common Stock of the Company, any consolidation or merger of the Company with or into
another corporation (other than a consolidation or merger in which the Company is the
surviving
entity and its Common Stock is not converted into or exchanged for any other securities
or
property), or any transfer of all or substantially all of the assets of the Company; or




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



then, and in each such case, the Company will send or cause to be sent to the Holder a notice
specifying, as the case may be, (i) the record date for such dividend, distribution or right, and
the amount and character of such dividend, distribution or right, or (ii) the effective date on
which such reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up 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 other stock or securities at the time deliverable 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, transfer, dissolution, liquidation or winding-up. Such
notice shall be sent at least 10 days prior to the record date or effective date for the event
specified in such notice.




     8.     Reservation of Stock. The Company will at all times reserve and keep available,
solely for issuance and delivery upon the exercise of this Warrant, such number of Warrant
Shares and other securities, cash and/or property as from time to time shall be issuable upon the
exercise of this Warrant.



     9.     Exchange or Replacement of Warrants.



          (a) Upon the surrender by the Holder of this Warrant, properly endorsed, to
the Company at the principal office of the Company, the Company will, subject to the
provisions
of Section 5 hereof, issue and deliver to or upon the order of the Holder, at the Company’s
expense, a new Warrant or Warrants of like tenor, in the name of the Holder or as the Holder
(upon payment by the Holder of any applicable transfer taxes) may direct, calling in the
aggregate on the face or faces thereof for the number of shares of Common Stock (or other
securities, cash and/or property) then issuable upon exercise of this Warrant.




          (b) Upon receipt of evidence reasonably satisfactory to the Company of the
loss, theft, destruction or mutilation of this Warrant and (in the case of loss, theft or
destruction)
upon delivery of an indemnity agreement (with surety if reasonably required) in an amount
reasonably satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new Warrant of like
tenor.




     10.     Notices. All notices and other communications from the Company to the Holder
in connection herewith shall be mailed by certified or registered mail, postage prepaid, or
sent
via a reputable nationwide overnight courier service guaranteeing next business day delivery,
to
the address last furnished to the Company in writing by the Holder. All notices and other
communications from the Holder to the Company in connection herewith shall be mailed by
certified or registered mail, postage prepaid, or sent via a reputable nationwide overnight
courier
service guaranteeing next business day delivery, to the Company at its principal office set
forth
above. If the Company should at any time change the location of its principal office to a
place
other than as set forth above, it shall give prompt written notice to the Holder and
thereafter all
references in this Warrant to the location of its principal office at the particular time
shall be as
so specified in such notice. All such notices and communications shall be deemed delivered (a)
three business days after being sent by certified or registered mail,
return receipt requested,



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postage prepaid, or (b) one business day after being sent via a reputable nationwide
overnight courier service guaranteeing next business day delivery.




     11.     No Rights as Stockholder; No Liability. No provision of this Warrant shall be construed as
conferring upon the Holder hereof the right to vote, consent, receive dividends or receive notice
as a stockholder in respect of meetings of stockholders for the election of directors of the
Company or any other matter whatsoever as a stockholder of the Company. In the absence of
affirmative action by the Holder hereof to purchase shares of Common Stock, no provision hereof
shall give rise to any liability of such Holder for the purchase price or as a stockholder of the
Company, whether such liability is asserted by the Company or by creditors of the Company.



     12.     Payment of Taxes. The Company will pay all documentary stamp taxes, if any, attributable
to the initial issuance of this Warrant or the shares of Common Stock comprising the Warrant
Shares; provided, however, the Company shall not be required to pay any tax that may be payable in
respect of any transfer of this Warrant or Warrant Shares.



     13.     Amendment or Waiver. Any term of this Warrant may be amended or waived
only by an instrument in writing signed by the party against which enforcement of the change
or
waiver is sought. No waivers of any term, condition or provision of this Warrant, in any one
or
more instances, shall be deemed to be, or construed as, a further or continuing waiver of any
such term, condition or provision or any other term, condition or provision hereof.



     14.     Section Headings. The section headings in this Warrant are for the convenience
of the parties only and in no way alter, modify, amend, limit or restrict the
contractual
obligations of the parties.



     15.     Severability. If any provision of this Warrant shall be held invalid, illegal or
unenforceable, such invalidity, illegality or unenforceability shall not affect any other
provision
of this Warrant and, to this end, the provisions hereof are severable.



     16.     Assignment. This Warrant shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, personal representatives, successors and permitted
assigns.



     17.     Governing Law. This Warrant will be governed by and construed in accordance
with the internal laws of the State of Delaware (without reference to the conflicts of law
provisions thereof).



     18.     Signatures. This Warrant may be executed in one or more counterparts by
facsimile signature.



(Signature appears on next page).




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                         EFFECTIVE as of the Issue Date indicated above.



	 	 	 	 	 
	 	CYTOCORE, INC.

 	 
	 	By:  	/s/ David Weissberg
 	 
	 	 	David Weissberg, M.D.      	 
	 	 	Title:  	Chief Executive Officer 	 
	 




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EXHIBIT I




PURCHASE FORM




			
	 	 	 
	To:                                        
	 	Dated:                                        






     The undersigned, pursuant to the provisions set forth in the attached Warrant (No.                    ),
hereby elects to purchase
                     shares of the Common Stock of CytoCore, Inc. by such
Warrant.



     The undersigned herewith makes payment of the full Purchase Price for such shares at
the
price per share provided for in such Warrant. Such payment shall be in the aggregate amount of
$                     in cash, certified or bank check, or wire transfer of immediately available funds.



	 	 	 	 	 	 	 
	 

	 	Signature:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Address:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 






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\




EXHIBIT II




ASSIGNMENT FORM




     FOR
VALUE RECEIVED,
                                                             hereby
sells, assigns and transfers all of the rights of the undersigned under the attached Warrant
(No.                    ) with respect to the number of shares of Common Stock of CytoCore, Inc. covered thereby
set forth below, unto:



					
	 	 	 	 	 
	Name of Assignee
	 	Address
	 	No. of Shares






	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 	 	Signature:	 	 
	 

	 	 

	 	 	 	 	 	 

	Signature Guaranteed:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 	 	 	 	 





The signature should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program) pursuant to Rule 17A under the Securities Exchange Act of 1934, as
amended.





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