Amendment No. 5 to Warrant and Put Option Agreement between Gian Luigi Longinotti-Buitoni and Xenomics, Inc.

Summary

This amendment updates the Warrant and Put Option Agreement between Gian Luigi Longinotti-Buitoni and Xenomics, Inc. It extends the Company's right to require the Lead Investor to purchase certain securities until June 1, 2008, and clarifies the process for exercising this right. The amendment also confirms the termination of certain warrants except for those specifically referenced. All other terms of the original agreement remain in effect. The amendment is governed by New York law and replaces the previous (fourth) amendment.

EX-4.1 2 q00699_ex4-1.txt AMENDMENT NO. 5 TO WARRANT AND PUT OPTION AGREEMENT This AMENDMENT NO. 5 (the "Fifth Amendment ") to the WARRANT AND PUT OPTION AGREEMENT (the "Agreement") originally dated as of November 30, 2006, by and between Gian Luigi Longinotti-Buitoni (the "Lead Investor"), and Xenomics, Inc. (the "Company"), as amended August 29, 2007, October 30, 2007, February 25, 2008, and April 11, 2008, is dated as of May 15, 2008. WITNESSETH: WHEREAS, on November 30, 2006, the Lead Investor and the Company entered into the Agreement and amended such Agreement on August 29, 2007, October 30, 2007, February 25, 2008 and April 11, 2008; and WHEREAS, the Lead Investor and the Company desire to amend Section 3(b) of such Agreement in order to preserve the Company's right to exercise the Maximum Put Amount until June 1, 2008. NOW, THEREFORE, in consideration of and for the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Agreement is hereby amended as follows: 1. Section 3(b)(ii) shall be replaced in its entirety with the following: "Since the Financing Condition has not been met, at the Company's sole discretion, upon written notice from the Company on or before June 1, 2008, by June 2, 2008 (the "Put Closing Date"), the Lead Investor shall purchase the number of Units specified in such notice up to the Maximum Put Amount divided by the applicable Exercise Price, i.e. $.55 per share. On the Put Closing Date, the Lead Investor shall surrender this Warrant and the full Exercise Price of the Units specified in the Notice in immediately available funds against the Company's delivery of Lead Investor's Securities. If less than all of the Additional Shares which may then be acquired on the exercise of this Warrant are specified in the Notice, the Company shall cancel this Warrant and issue and deliver to the Lead Investor a new Warrant for the Lead Investor's Additional Shares remaining." 2. The Company and the Lead Investor acknowledge that the Lead Investor's Warrants under Paragraph 1 of the Agreement shall be terminated other than the Lead Investor's option to purchase the Additional Shares underlying the Units referred to in Paragraph 1 herein and other than the Warrants underlying the Maximum Put Option, which the Company may "put" to the Lead Investor pursuant to Paragraph 1 hereof. 3. (A) This Fifth Amendment shall be construed and interpreted in accordance with the laws of the State of New York without giving effect to the conflict of laws rules thereof or the actual domiciles of the parties. (B) Except as amended hereby, the terms and provisions of the Agreement shall remain in full force and effect, and the Agreement and Amendments Nos. 1, 2, 3 and 4 are in all respects ratified and confirmed. This Fifth Amendment replaces and substitutes for the Fourth Amendment dated as of April 11, 2008. On and after the date of this Fifth Amendment, each reference in the Amendment to the "Agreement," "hereinafter," "herein," "hereunder," "hereof," or words of like import shall mean and be a reference to the Agreement as amended by this Fifth Amendment. Capitalized terms not otherwise defined herein are given the meaning ascribed to them as set forth in the Agreement. (C) This Fifth Amendment may be executed in one or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute a single Amendment. 4. Copies of all notices to the Company pursuant to Paragraph 14 of the Agreement shall also be sent to: Herrick, Feinstein LLP, 2 Park Avenue, New York, New York 10016, Attn: Ted D. Rosen, Esq. IN WITNESS WHEREOF, the parties hereto have executed this Fifth Amendment as of the date stated above. LEAD INVESTOR By: -------------------------------------- Gian Luigi Longinotti-Buitoni XENOMICS, INC. By: -------------------------------------- Name: Gian Luigi Longinotti-Buitoni Title: Executive Chairman