exv10w46



 




Exhibit 10.46





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-C




WARRANT TO PURCHASE SHARES OF COMMON STOCK




ISSUE DATE: September 28, 2006




     This certifies that Alexander M. Milley, an individual resident of Massachusetts (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, 2011 (the “Expiration Date”), Six Hundred and Twenty Five Thousand (625,000) shares
of common Stock, $0.001 par value per share, of the Company (“Common Stock”), at a price of Twenty
Cents ($0.20) 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 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.




     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 lime 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 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:




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                    (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 dale 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 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.




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



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     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




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




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



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     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/ Robert F. McCullough, Jr.
 	 
	 	 	Robert F. McCullough, Jr.             	 
	 	 	Title:  	Chief Financial 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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