Contract
Exhibit
10.2
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
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. THIS WARRANT AND THE COMMON
STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS
TO THIS WARRANT UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO NANOVIRICIDES, INC., THAT SUCH
REGISTRATION IS NOT REQUIRED.
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June
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Warrant
No.:_____
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COMMON
STOCK PURCHASE WARRANT
Right to
Purchase ______ Shares of Common Stock of
NANOVIRICIDES,
INC., a corporation organized under the laws
of the State of Nevada (the “Company”), hereby certifies that, for value
received, _____________________________________, or its successors or assigns
(the “Holder”) is entitled to purchase from the Company upon the due exercise
hereof, and subject to the terms and conditions herein, from the date of issue
of this warrant (the “Warrant”) until the third anniversary of the issuance
hereof (the "Expiration Date"), all or any part of __________ fully paid and
non-assessable shares of common stock, no par value per share (the "Common
Stock") of the Company, upon surrender hereof, with the exercise form annexed
hereto duly completed and executed, at the office of the Company and upon
simultaneous payment therefore in cash or by certified or official bank check,
payable to the order of the Company, at a per share exercise price
(“Exercise Price”) of Two Dollars ($2.00), subject to adjustment as provided
herein.
1. Restriction on
Transfer. No resale of the Warrant or of any of the shares of
Common Stock underlying the exercise of the Warrant (the “Underlying Stock”)
will be made unless such resale is registered pursuant to a registration
statement filed by the Company with the Securities and Exchange Commission (the
"Commission") or an exemption from registration under the Securities Act of
1933, as amended (the "Securities Act"). By acceptance of this agreement, the
Holder agrees, for itself and all subsequent holders, that prior to making any
disposition of the Warrant or of any Underlying Stock, the Holder shall give
written notice to the Company describing briefly the proposed disposition; and
no such disposition shall be made unless and until (i) the Company has notified
the Holder that, in the opinion of counsel satisfactory to it, no registration
or other action under the Securities Act is required with respect to such
disposition (which opinion may be conditioned upon the transferee's assuming the
Holder's obligation hereunder); or (ii) a registration statement under the
Securities Act has been filed by the Company and declared effective by the
Commission or other such similar action has been taken.
2. Expiration of
Warrant. Unless this Warrant and the Exercise Price are
tendered as herein provided before the close of business on the Expiration Date,
this Warrant will become wholly void and all rights and obligations set forth
herein shall expire and terminate.
3. Partial
Exercise. If this Warrant is exercised for less than all the
shares that may be purchased upon the exercise hereof, the Warrant shall be
surrendered by the Holder and replaced with a new warrant of like tender in the
name of the Holder providing for the right to purchase the number of shares of
Underlying Stock as to which this Warrant has not yet been
exercised.
4. Adjustments. The
Exercise Price and the number of shares of Underlying Stock of the Company
issuable pursuant to such exercise is subject to adjustment as
follows:
(a) In
case the Company shall at any time declare a stock dividend or stock split on
the outstanding shares of Common Stock in shares of its Common Stock, then the
Exercise Price and number of shares of Underlying Stock shall be proportionately
adjusted so that the holder of any Warrant exercised after such time shall be
entitled to receive the aggregate number and kind of shares which if such
Warrant had been exercised immediately prior to such time, he or she would have
owned upon such exercise and been entitled to receive by virtue of such
dividend.
(b) In
case the Company shall at any time subdivide or combine the outstanding shares
of the Common Stock, the Exercise Price, initial or adjusted, in effect
immediately prior to such subdivision or combination shall forthwith be
proportionately decreased in the case of subdivision or increased in the case of
combination.
(c) In
case of any capital reorganization, sale of substantially all the assets of the
Company, or any reclassification of the shares of Common Stock of the Company,
or in case of any consolidation with or merger of the Company into or with
another corporation, then as a part of such reorganization sale
reclassification, consolidation or merger, as the case may be, provision shall
be made so that the registered owner of the Warrant evidenced hereby shall have
the right thereafter to receive upon the exercise thereof the kind and amount of
shares of stock or other securities or property which he would have been
entitled to receive if immediately prior to such reorganization,
reclassification, consolidation or merger, he had held the number of shares of
Underlying Stock which were then issuable upon the exercise of the Warrant
evidenced hereby, to the end that the provisions set forth (including provisions
with respect to adjustments of the Exercise Price) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any shares of stock
or other property thereafter deliverable upon the exercise of such
Warrants.
(d) If
the Company at any time makes any spin-off, split-off, or distribution of assets
upon or with respect to its Common Stock, as a liquidating or partial
liquidating dividend, spin-off, or by way of return of capital, or other than as
dividend payable out of earnings or any surplus legally available for dividends,
the Holder then outstanding shall, upon the exercise of the Warrant, receive, in
addition to the shares of Common Stock then issuable on exercise of the Warrant,
the amount of such assets (or, at the option of the Company, a sum equal to the
value thereof at the time of the distributions) which would have been payable to
such holder had he or she exercised the Warrant immediately prior to the record
date for such distribution.
(e) When
any adjustment is required to be made to the Exercise Price, the number of
shares of Common Stock issuable shall be determined as provided for in paragraph
(f) hereof. No fractional shares of Common Stock shall be issued upon the
exercise of the Warrant. The Company shall round all fractional
shares to the next whole share.
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(f) Whenever
the Exercise Price is adjusted as provided above, the number of shares of
Underlying Stock immediately prior to such adjustment shall be increased,
effective simultaneously with such adjustment, by a number of shares of Common
Stock computed by multiplying such number of shares of Common Stock by a
fraction, the numerator of which is the Exercise Price in effect immediately
prior to such adjustment and the denominator of which is the Exercise Price in
effect upon such adjustment, and the number of shares of Underlying Stock
arrived at by making said computation shall be added to the number of shares of
Underlying Stock immediately prior to such adjustment. The total number of
shares arrived at by making the computation provided for in the immediately
preceding sentence shall thereupon be the number of shares of Common Stock
issuable upon exercise or the Warrant and the Company shall forthwith determine
the new Exercise Price.
5. Delivery of Underlying
Stock. As soon as practicable after the exercise hereof, the
Company shall deliver a certificate or certificates for the number of full
shares of Underlying Stock, all of which shall be fully paid and nonassessable,
to the person or persons entitled to receive the same provided no sale, offer to
sell or transfer of the Underlying Stock or of this Warrant, or of any shares or
other securities issued in exchange for or in respect of such shares, shall be
made unless a registration statement under the Act, with respect to such shares,
is in effect or an exemption from the registration requirements of such Act is
applicable to such shares.
6. Condition of Exercise of
Warrant.
(a) Unless
exercised pursuant to an effective registration statement under the Securities
Act which includes the Underlying Stock, it shall be a condition to any exercise
of this Warrant that the Company shall have received, at the time of such
exercise, a representation in writing from the recipient in the form attached
hereto as Exhibit A-1, that the Shares being issued upon exercise, are being
acquired for investment and not with a view to any sale or distribution
thereof.
(b) Each
certificate evidencing the Underlying Stock issued upon exercise of this
Warrant, shall be stamped or imprinted with 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. The securities have been acquired for
investment and may not be sold, transferred or assigned in the absence of an
effective registration statement for the securities under said Act, or an
opinion of counsel, in form, substance and scope reasonably acceptable to the
Company, that registration is not required under said Act or unless sold
pursuant to Rule 144 under said Act."
Subject
to this Section 5, the Company may instruct its transfer agent not to register
the transfer of all or a part of this Warrant, or any of the Shares, unless one
of the conditions specified in the above legend is satisfied.
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7.
Representations and Warranties
of the Company. The Company represents and warrants to the
Holder as follows:
(a) This
Warrant has been duly authorized and executed by the Company and is a valid and
binding obligation of the Company enforceable in accordance with its
terms;
(b) The
Underlying Stock has been duly authorized and reserved for issuance by the
Company and, when issued in accordance with the terms hereof, will be validly
issued, fully paid and nonassessable;
(c) The
execution and delivery of this Warrant are not, and the issuance of the
Underlying Stock upon exercise of this Warrant in accordance with the terms
hereof will not be, inconsistent with the Company’s Articles of Incorporation or
By-laws, as amended.
8.
Representations and Warranties
by the Holder. The Holder represents and warrants to the
Company as follows:
(a) This
Warrant is being acquired for its own account, for investment and not with a
view to, or for resale in connection with, any distribution or public offering
thereof within the meaning of the Securities Act. Upon exercise of
this Warrant, the Holder shall, if so requested by the Company, confirm in
writing, in a form reasonably satisfactory to the Company, that the Underlying
Stock issuable upon exercise of this Warrant is being acquired for investment
and not with a view toward distribution or resale.
(b) The
Holder understands that the Warrant and the Underlying Stock have not been
registered under the Securities Act by reason of their issuance in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act pursuant to Section 4(2) thereof, and that they must be held by
the Holder indefinitely, and that the Holder must therefore bear the economic
risk of such investment indefinitely, unless a subsequent disposition thereof is
registered under the Securities Act or is exempted from such
registration.
(c) The
Holder has such knowledge and experience in financial and business matters that
it is capable of evaluating the merits and risks of the purchase of this Warrant
and the Underlying Stock and of protecting its interests in connection
therewith.
(d) The
Holder is able to bear the economic risk of the purchase of the Underlying Stock
pursuant to the terms of this Warrant.
9.
Rights of
Stockholders. No holder of this Warrant shall be entitled, as
a warrant- holder, to vote or receive dividends or be deemed
the holder of Common Stock or any other securities of the Company which may at
any time be issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the holder of this Warrant, as
such, any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of stock, change
of par value, consolidation, merger, conveyance, or otherwise) or to receive
notice of meetings, or to receive dividends or subscription rights or otherwise
until the Warrant shall have been exercised and the Shares purchasable upon the
exercise hereof shall have become deliverable, as provided
herein.
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10. Miscellaneous.
(a) This
Warrant and any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the party against which enforcement
of such change, waiver, discharge or termination is sought.
(b) This
Warrant shall be governed by and construed in accordance with the laws of State
of Nevada without regard to principles of conflicts of laws. Any
action brought concerning the transactions contemplated by this Warrant shall be
brought only in the state courts of New York or in the federal courts located in
the state of New York; provided, however, that the Company may choose to waive
this provision and bring an action outside the state of New York.
(c) The
invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provision.
(d) The
headings in this Warrant are for purposes of reference only, and shall not limit
or otherwise affect any of the terms hereof.
(e) The
terms of this Warrant shall be binding upon and shall inure to the benefit of
any successors or assigns of the Company and of the holder or holders hereof and
of the Underlying Stock.
(f) This
Warrant and the other documents delivered pursuant hereto constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
(g) Upon
receipt of 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 delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, upon surrender and cancellation of such Warrant, the Company at its
expense will execute and deliver to the holder of record, in lieu thereof, a new
Warrant of like date and tenor.
(h) This
Warrant and any provision hereof may be amended, waived or terminated only by an
instrument in writing signed by the Company and the Holder.
(i) Receipt
of this Warrant by the Holder hereof shall constitute acceptance of and
agreement to the foregoing terms and conditions.
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rest of this page left intentionally blank.)
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IN WITNESS WHEREOF, the
Company has caused this Warrant to be signed by its duly authorized
officer.
Dated:
_____________, 2008
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By:
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Name:
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Title:
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Warrant
Holder:
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Address:
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EXHIBIT
A
NOTICE
OF EXERCISE
1. The
undersigned hereby elects to purchase ________ shares of Common Stock of
NANOVIRICIDES, INC. pursuant to the terms of this Warrant, and tenders herewith
payment of the purchase price of such shares in full.
2. Please
issue a certificate or certificates representing said shares of Common Stock in
the name of the undersigned or in such other name as is specified
below:
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(Name)
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(Address)
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3. The
undersigned hereby represents and warrants that the aforesaid shares of Common
Stock are being acquired for the account of the undersigned for investment and
not with a view to, or for resale, in connection with the distribution thereof,
and that the undersigned has no present intention of distributing or reselling
such shares and all representations and warranties of the undersigned set forth
in Section 8 of the attached Warrant are true and correct as of the date
hereof. In support thereof, the undersigned agrees to execute an
Investment Representation Statement in a form substantially similar to the form
attached to the Warrant as EXHIBIT A-1.
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(Signature)
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By:
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Title:
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Date:
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,
200__
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7
EXHIBIT
A-1
INVESTMENT
REPRESENTATION STATEMENT
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PURCHASER:
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______________________
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SELLER:
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______________________
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COMPANY:
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SECURITIES:
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COMMON
STOCK ISSUED UPON EXERCISE OF THE WARRANTS ISSUED ON ________,
2008
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AMOUNT:
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__________
SHARES
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DATE:
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____________,
200_
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In
connection with the purchase of the above-listed Securities, I, the Purchaser,
represent to the Seller and to the Company the following:
(a) I
am aware of the Company’s business affairs and financial condition, and have
acquired sufficient information about the Company to reach an informed and
knowledgeable decision to acquire the Securities. I am purchasing
these Securities for my own account for investment purposes only and not with a
view to, or for the resale in connection with, any "distribution" thereof for
purposes of the Securities Act of 1933, as amended (the "Securities
Act").
(b) I
understand that the Securities have not been registered under the Securities Act
in reliance upon a specific exemption therefrom, which exemption depends upon,
among other things, the bona fide nature of my investment intent as expressed
herein. In this connection, I understand that, in the view of the
Securities and Exchange Commission (the "Commission"), the statutory basis for
such exemption may be unavailable if my representation was predicated solely
upon a present intention to hold these Securities for the minimum capital gains
period specified under tax statutes, for a deferred sale, for or until an
increase or decrease in the market price of the Securities, or for a period of
one year or any other fixed period in the future.
(c) I
further understand that the Securities must be held indefinitely unless
subsequently registered under the Securities Act or unless an exemption from
registration is otherwise available. Moreover, I understand that the
Company is under no obligation to register the Securities. In
addition, I understand that the certificate evidencing the Securities will be
imprinted with a legend which prohibits the transfer of the Securities unless
they are registered or such registration is not required in the opinion of
counsel for the Company.
(d) I
am familiar with the provisions of Rule 144, promulgated under the Securities
Act, which, in substance, permits limited public resale of "restricted
securities" acquired, directly or indirectly, from the issuer thereof, in a
non-public offering subject to the satisfaction of certain
conditions.
The
Securities may be resold in certain limited circumstances subject to the
provisions of Rule 144, which requires among other things: (1) the
availability of certain public information about the Company, (2) the resale
occurring not less than one year after the party has purchased, and made full
payment for, within the meaning of Rule 144, the securities to be sold; and, in
the case of an affiliate, or of a non-affiliate who has held the securities less
than two years, (3) the sale being made through a broker in an unsolicited
"broker's transaction" or in transactions directly with a market maker (as said
term is defined under the Securities Exchange Act of 1934) and the amount of
securities being sold during any three month period not exceeding the specified
limitations stated therein, if applicable.
(e) I
further understand that in the event all of the applicable requirements of Rule
144 are not satisfied, registration under the Securities Act, compliance with
Regulation A, or some other registration exemption will be required; and that,
notwithstanding the fact that Rule 144 is not exclusive, the Commission has
expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant to
Rule 144 will have a substantial burden of proof in establishing that an
exemption from registration is available for such offers or sales, and that such
persons and their respective brokers who participate in such transactions do so
at their own risk.
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(Signature)
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By:
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Title:
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Date:
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,200__
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