STOCKPURCHASE WARRANT Date of Issuance:________, 2009 Certificate No.__ ToPurchase _______ Shares of CommonStock of DAISANALYTIC CORPORATION

EXHIBIT 4.1

THIS WARRANT, AND ANY SHARES OF COMMON STOCK ACQUIRED UPON THE EXERCISE OF THIS WARRANT, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR ANY OTHER SECURITIES LAWS.THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND NEITHER THIS WARRANT NOR ANY OF SUCH SHARES MAY BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OF THEM UNDER THE ACT AND ANY OTHER APPLICABLE SECURITIES LAW, OR RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO THE COMPANY THAT SUCH SALE OR TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE ACT AND ALL OTHER APPLICABLE SECURITIES LAWS. NEITHER THIS WARRANT NOR ANY OF SUCH SHARES MAY BE TRANSFERRED EXCEPT UPON THE CONDITIONS SPECIFIED IN THIS WARRANT, AND NO TRANSFER OF THIS WARRANT OR ANY OF SUCH SHARES SHALL BE VALID OR EFFECTIVE UNLESS AND UNTIL SUCH CONDITIONS SHALL HAVE BEEN COMPLIED WITH.  THE TRANSFERABILITY OF THIS WARRANT AND THE UNDERLYING SHARES ARE SUBJECT TO THE TRANSFER RESTRICTIONS SET FORTH HEREIN.

 

STOCK PURCHASE WARRANT

 

Date of Issuance:  ________, 2009

Certificate No.__

To Purchase _______ Shares of

Common Stock of

DAIS ANALYTIC CORPORATION

THIS CERTIFIES THAT, for value received, the receipt and sufficiency of which is hereby acknowledged:

Subject to the conditions set forth herein, _____________________(“Holder”), or its permitted assigns, is entitled to subscribe for and purchase from Dais Analytic Corporation, a New York corporation (the “Company”), at any time or from time to time after the date hereof and continuing during the period of exercise set forth in paragraph 3 hereof, a total of _____________________________(________) fully paid and non-assessable shares of the Company’s  Common Stock, par value $0.01 per share (the “Common Stock”), at an exercise price of Twenty Six Cents (US $.26) per share (the “Exercise Price”), subject to adjustment from time to time pursuant to the provisions of paragraph 5 hereof.  The term “Warrant(s),” as used herein, shall mean this Warrant of even date herewith, including all amendments to any such Warrants and all warrants issued in exchange, transfer or replacement thereof.  The term “Warrant Shares,” as used herein, refers to the shares of Common Stock purchased or purchasable upon the exercise of this Warrant.

This Warrant is subject to the following provisions, terms and conditions:

1.           Definitions.  For the purpose of the Warrants, the following terms, whether or not capitalized or underlined in the text of this Warrant, shall have the following meanings:

 

“Commission” shall mean the U.S. Securities and Exchange Commission or any other governmental authority at the time administering the Securities Act.

 

“Common Stock” shall mean the common stock, par value $0.01 per share, of the Company.

 

“Company” shall have the meaning specified in the introduction to this Warrant.

 

“Exercise Agreement” shall have the meaning specified in paragraph 2 hereof.

 

“Exercise Price” shall have the meaning specified in the introduction to this Warrant.

 

“Securities Act” shall mean the Securities Act of 1933, as amended, as any similar or successor federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time.  Reference to a particular section of the Securities Act shall include a reference to the comparable section, if any, of any such similar or successor federal statute.

 

 “Warrant Shares” shall have the meaning specified in the introduction to this Warrant.

 

“Warrant(s)” shall have the meaning specified in the introduction to this Warrant.

 

2.           Manner of Exercise; Issuance of Certificates; Payment for Shares; No Fractional Shares.  The rights represented by this Warrant may be exercised by the Holder hereof, in whole or in part, by the surrender of this Warrant, together with a completed Exercise Agreement in the form attached hereto (“Exercise Agreement”), during normal business hours on any business day at the principal office of the Company (or such other office or agency of the Company as it may designate by notice in writing to the Holder hereof at the address of such Holder appearing on the books of the Company) at any time during the period set forth in paragraph 3 hereof and upon payment to the Company by certified check or wire transfer in an amount equal to the product obtained by multiplying the Exercise Price by the number of Warrant Shares to be purchased in connection with such exercise together with all taxes associated with the issue, exercise and receipt of Warrant Shares.  The Company agrees that the shares so purchased shall be and are deemed to be issued to the Holder hereof as the record owner of such shares as of the close of business on the day upon which all of the foregoing requirements have been met.

 

Certificates for the Warrant Shares so purchased shall be delivered to the Holder hereof within a reasonable time after the rights represented by this Warrant shall have been so exercised.  The stock certificate or certificates so delivered shall be registered in the name of said Holder.  If this Warrant shall have been exercised only in part, then, unless this Warrant has expired, the Company shall, at its expense, at the time of delivery of said stock certificates(s), deliver to said Holder a new Warrant representing the right to purchase the remaining number of shares of Common Stock with respect to which this Warrant shall not then have been exercised.

 

This Warrant shall be exercisable only for a whole number of Warrant Shares.  No fractions of shares of Common Stock, or scrip for any such fractions of shares, shall be issued upon the exercise of this Warrant.

 

3.           Period of Exercise.  This Warrant is exercisable at any time or from time to time during the period beginning on the Issuance Date and ending five years thereafter (“Term”). Notwithstanding any provision of this Warrant to the contrary, if the Per Share Market Value of the Common Stock, is One Dollar and Fifty Cents ($1.50) per share or greater for ten (10) consecutive trading days (subject to adjustment to reflect stock splits, stock dividends, recapitalizations and the like), the Company may require Holder to exercise the Warrant and purchase all Warrant Shares at the exercise price set forth above within ten (10) business days of Company issuing notice to Holder or the Warrant will automatically terminate. For purposes hereof, "Per Share Market Value" means on any particular date (a) the last closing bid price per share of the Common Stock on such date on the OTC Bulletin Board or another registered national stock exchange on which the Common Stock is then listed, or if there is no such price on such date, then the closing bid price on such exchange or quotation system on the date nearest preceding such date, or (b) if the Common Stock is not listed then on the OTC Bulletin Board or any registered national stock exchange, the last closing bid price for a share of Common Stock in the over-the-counter market, as reported by the OTC Bulletin Board or in the National Quotation Bureau Incorporated or similar organization or agency succeeding to its functions of reporting prices) at the close of business on such date, or (c) if the Common Stock is not then reported by the OTC Bulletin Board or the National Quotation Bureau Incorporated (or similar organization or agency succeeding to its functions of reporting prices), then the "Pink Sheet" quotes for the applicable trading days preceding such date of determination or (d) if the Common Stock is not then publicly traded the fair market value of a share of Common Stock as determined by an independent appraiser selected by Company and reasonably acceptable to Holder.

 

4.           Shares to be Fully Paid; Reservations of Shares.  The Company covenants and agrees that all Warrant Shares will be duly authorized and validly issued and upon issuance in accordance with the terms and conditions hereof, will be fully paid and non-assessable. The Company further covenants and agrees that during the period within which the rights represented by this Warrant may be exercised, the Company will at all times have authorized, and reserved for the purpose of issue upon exercise of the subscription rights evidenced by this Warrant a sufficient number of shares of Common Stock to provide for the exercise of the rights represented by this Warrant.

 

5.           Adjustment.  If prior to the expiration date, the Company shall pay a stock dividend upon, or subdivide, split-up, reverse split, reclassify or combine its shares of Common Stock or if such stock shall be made exchangeable for other stock of the Company or if the Company shall effect a capital reorganization or reclassification of the capital stock or consolidate or merge the Company with another entity or sell substantially all of its assets to another entity in such a way that the holders of the Common Stock shall be entitled to receive stock, securities, or assets with respect to or in exchange for Common Stock then the Company shall appropriately adjust the number, class and/or exercise price of the Stock subject to the outstanding Warrant to reflect the change in Common Stock. All affected terms and conditions of the Warrant shall also be appropriately adjusted. If, as a result of any adjustment under this section the Warrant Holder shall become entitled to a fractional share of Stock, the Holder shall have the right to purchase only the adjusted full number of shares of Stock and no payment or other adjustment will be made in respect to the fractional shares of Stock so disregarded. The determination of the Company’s Board of Directors regarding any adjustment will be final and conclusive. The Holder of the Warrant shall be given prompt notice of any adjustment of the number of shares issuable on exercise of the Warrant or any adjustment of the exercise price of the Warrant as well as the taking of any of the foregoing corporate actions.

 

6.           Restrictions.  All stock certificates representing shares of stock issued to Holder upon exercise of this Warrant may have affixed thereto a legend substantially in the following:

 

7.           Agreement of the Company.   The Company will not, through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, seek to avoid the observance of this Warrant.

 

8.           No Rights or Liabilities as a Shareholder.  This Warrant shall not entitle the holder hereof to any voting rights or any other rights as a shareholder of the Company.  No provision of this Warrant, in the absence of affirmative action by the holder hereof to purchase Warrant Shares, and no mere enumeration herein of the rights or privileges of the holder hereof, shall give rise to any liability of such holder for the Exercise Price or as a shareholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.

 

9.           No Net Cash Settlement Value.  In no event will the Company be required to net cash settle an exercise of a Warrant.

 

10.         Transfer and Exchange.

 

(a)           Transfer of Warrant. Subject to compliance with applicable federal and state securities laws and the terms and conditions of this Agreement, Holder shall have the right from time to time, subject to approval of the Company which shall not be unreasonably withheld, to transfer or sell this Warrant to one or more third parties (a “Third Party Transferee”); provided, however, no Third Party Transferee shall be a Competitor (as determined in the sole discretion of the Board of Directors of Company) of the Company and no such transfer of any nature to a Third Party Transferee shall be permitted prior to second anniversary date of this Warrant. Any Third Party Transferee shall agree in writing to be bound as a holder to the terms and conditions of this Agreement.

 

(b)            Replacement of Warrant.  Upon receipt of written notice from the holder hereof or other evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of any such loss, theft or destruction, upon deliver of an indemnity agreement, or other indemnity reasonably satisfactory to the Company, or, in the case of any such mutilation, upon surrender and cancellation of such Warrant, the Company will execute and deliver, in lieu thereof, a new Warrant of like tenor.

 

(c)           Cancellation; Payment of Expenses.  Upon the surrender of this Warrant in connection with any transfer or replacement as provided in this paragraph 9, this Warrant shall be promptly canceled by the Company.

 

11.           Notices.  All notices and other communications required or permitted hereunder shall be in writing, and shall be deemed to have been delivered on the date delivered by hand, telegram, facsimile or by similar means, on the first (1st) day following the day when sent by recognized courier or overnight delivery service (fees prepaid), or on the fifth (5th) day following the day when deposited in the mail, registered or certified (postage prepaid), addressed: (i) if to the Holder hereof or any other holder of any Warrants, at the registered address of the Holder hereof or such other holder as set forth in the register kept by the Company at its principal office with respect to the Warrants, or to such other address as the Holder hereof or such other holder may have designated to the Company in writing, and (ii) if to the Company, at 11552 Prosperous Drive, Odessa, Florida 33556, Attention: Timothy Tangredi or addresses as the Company may designated in writing to the Holder hereof or any other holder of any of the Warrants at the time outstanding.

 

12.           Governing Law.  This Warrant shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the State of New York, without regard to principles of conflicts of laws. Any legal action or proceeding with respect to this Warrant shall be brought in the courts of the State of New York or of the United States of America sitting in New York.  The Company and by taking this Warrant, the Holder hereby irrevocably waive, in connection with any such action or proceeding, any objection, including, without limitation, any objection to the laying of venue or based on the grounds of forum non conveniens, which they may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions.

 

(a)           Amendments.  This Warrant and any provision hereof may be changed, waived, discharged or terminated, but only by an instrument in writing signed by the party (or any predecessor in interest thereof) against whom enforcement of the same is sought.

 

(b)           Descriptive Headings.  The descriptive headings of the several paragraphs of this Warrant are inserted for purposes of reference only, and shall not affect the meaning or construction of any of the provisions hereof.

 

(c)           Severability. It is expressly agreed that if any provision of this Warrant shall be determined by a court of competent jurisdiction to be void and of no effect, the provision of this Warrant shall be deemed amended to modify or delete, as necessary, the offending provision, and this Warrant as so amended or modified shall not be rendered unenforceable or impaired but shall remain in force to the fullest extent possible in keeping with the intentions of the parties.

 

(d)           Waiver. The waiver of the Company of any provision of this Warrant shall not operate as or be construed to be a subsequent waiver of the same provision or waiver of any other provision of this Warrant.

 

(f)           Interpretation. All decisions or interpretations of the Board of Directors of the Company with respect to any question arising under this option shall be binding, conclusive and final.

           IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly authorized officer this ___ day of _______, 2009.

 

DAIS ANALYTIC CORPORATION By:_____________________________ Name: __________________________ Title:   __________________________

 

 

[DATE]

 

To: Dais Analytic Corporation

Attention: Timothy Tangredi

The undersigned, pursuant to the provisions set forth in the attached Warrant, hereby agrees to subscribe for and purchase _______ shares of $.01 par value Common Stock covered by such Warrant, and makes payment herewith in full therefore at the price per share provided by such Warrant in cash.  The undersigned is acquiring such shares for the purpose of investment and not with a view to or for sale in connection with any distribution thereof.

 

Signature:                                                                                 Name:                                                                                         On behalf of:                                                                             Its:                                                                                               Address: