EXHIBIT 10.16
THIS WARRANT AND THE UNDERLYING SHARES OF COMMON STOCK ISSUABLE UPON
ITS EXERCISE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS, AND NO SALE OR TRANSFER
THEREOF MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT OR AN
OPINION OF COUNSEL FOR THE HOLDER, SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
No. W-1
FORM OF
COMMON STOCK PURCHASE WARRANT
-----------------------------
GENETIC VECTORS, INC., a Florida corporation (the "Company"), hereby
certifies that, for value received, the XXXXXX X. XXXXXX IRREVOCABLE TRUST DATED
APRIL 22, 1993 (the "Holder"), or its registered permitted assigns, is entitled,
subject to the terms set forth below, to purchase from the Company at any time
or from time to time before 5:00 P.M., Eastern Time, on November 2, 2003, Ten
Thousand (10,000) shares of fully paid and non-assessable shares of the $0.001
par value per share common stock (the "Common Stock") of the Company, at a
purchase price per share of $_____ (such purchase price per share as adjusted
from time to time as provided herein is referred to herein as the "Purchase
Price"). The number and character of such shares of Common Stock and the
Purchase Price are subject to adjustment as provided herein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "COMPANY" shall include Genetic Vectors, Inc., a Florida
corporation, and any corporation which shall succeed or assume the obligations
of the Company hereunder.
(b) The term "COMMON STOCK" includes the Company's Common Stock, $0.001
par value per share, as authorized on the date of the Agreement and any other
securities into which or for which any of such Common Stock may be converted or
exchanged pursuant to a plan of recapitalization, reorganization, merger, sale
of assets or otherwise.
1. EXERCISE OF WARRANT.
-------------------
1.1. FULL EXERCISE. This Warrant may be exercised in full by the
Holder by surrender of this Warrant, with the form of subscription attached
hereto as Exhibit "A" (the "Subscription Form") duly executed by the Holder, to
the Company at its principal office, accompanied by payment, in cash or by
certified or official bank check or wire transfer payable to the order of the
Company, in the amount obtained by multiplying the number of shares of Common
Stock for which this Warrant is then exercisable by the Purchase Price then in
effect.
1.2. PARTIAL EXERCISE. This Warrant may be exercised in part by
surrender of this Warrant in the manner and at the place provided in Section 1.1
except that the amount payable by the holder on such partial exercise shall be
the amount obtained by multiplying (a) the number of shares of Common Stock
designated by the holder in the Subscription Form by (b) the Purchase Price then
in effect. On any such partial exercise the Company will issue and deliver to or
upon the order of the holder hereof a new Warrant or Warrants of like tenor, in
the name of the holder hereof or such holder (upon payment by such holder of any
applicable transfer taxes) may request, reflecting in the aggregate on the face
or faces thereof for the number of shares of Common Stock for which such Warrant
or Warrants may still be exercised.
2. DELIVERY OF STOCK CERTIFICATES, ETC. ON EXERCISE. As soon as
practical after the exercise of this Warrant in full or in part, the Company, at
its expense (including the payment by it of any applicable issue taxes), will
cause to be issued in the name of and delivered to the Holder hereof, as such
Holder (upon payment by the Holder of any applicable transfer taxes and, if
requested by the Company, demonstration by the Holder of compliance with
applicable securities laws) may direct, a certificate or certificates for the
number of fully paid and non-assessable shares of Common Stock to which such
Holder shall be entitled on such exercise, plus, in lieu of any fractional share
to which such Holder would otherwise be entitled, cash equal to such fraction
multiplied by the then-current market value of one full share, together with any
other stock or other securities and property (including cash, where applicable)
to which such holder is entitled upon such exercise pursuant to Section 1 or
otherwise.
3. ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
3.1 REORGANIZATION. In case at any time or from time to time, the
Company shall (a) effect a reorganization, (b) consolidate with or merge into
any other person or party, or (c) transfer all or substantially all of its
properties or assets to any other person under any plan or arrangement
contemplating the dissolution of the Company, then, in each such case, the
Holder of this Warrant, on the exercise hereof as provided in Section 1 at any
time after the consummation of such reorganization, consolidation or merger or
the effective date of such dissolution as the case may be, shall receive, in
lieu of the Common Stock issuable on such exercise prior to such consummation or
such effective date, the stock and other securities and property (including
cash) to which such Holder would have been entitled upon such consummation or in
connection with such dissolution, as the case may be, if such Holder had so
exercised this Warrant immediately prior thereto, all subject to further
adjustment thereafter as provided herein.
3.2. CONTINUATION OF TERMS. Upon any reorganization, consolidation,
merger or transfer (and any dissolution following any transfer) referred to in
this Section 3, this Warrant shall continue in full force and effect and the
terms hereof shall be applicable to the shares of stock and other securities and
property receivable on the exercise of this Warrant after the consummation of
such reorganization, consolidation or merger or the effective date of
dissolution following any such transfer, as the case may be, and shall be
binding upon the issuer of any such stock or other securities, including, in the
case of any such transfer, the person acquiring all or substantially all of the
properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant as provided herein.
2
4. ADDITIONAL WARRANTS. The Company shall grant to the Holder additional
warrants to purchase additional shares of Common Stock, in the amount set forth
in the following table, commencing on April 1, 1999 and on the first day of each
month thereafter, PROVIDED that the Company shall have no obligation to grant
additional warrants if on or before the date on which such grant is to be made
by the Company no amounts are outstanding on that certain Promissory Note in the
original principal amount of $100,000 given by the Company to the Holder:
NO. OF SHARES
DATE: OF COMMON STOCK:
---- ---------------
April 1, 1999 through October 1, 1999 1,250
November 1, 1999 and thereafter 2,500
All warrants to be granted pursuant to the immediately preceding sentence shall
be granted pursuant to a new Warrant in the same form as this Warrant.
5. RIGHT TO ATTEND BOARD MEETINGS. The Holder shall have the right to
have a single representative present (either in person or by telephone) at all
meetings of the Board of Directors of the Company for so long as any portion of
the Note remains unpaid. Such representative shall not be deemed to be a
director and shall have no voting rights.
6. NO DILUTION OR IMPAIRMENT.
(a) The Company will not, by amendment of its Articles of
Incorporation 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 the
Warrants, 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 holders of the Warrants
against dilution or other impairment.
(b) Any provision herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be made in respect of the issuance of
additional shares of Common Stock of the Company (or upon the conversion or
exchange of securities convertible or exchangeable into shares of Common Stock)
unless after the date hereof (a) the aggregate consideration to be received by
the Company for the issuance of such additional shares of Common Stock, whether
through one or more private placements or secondary public offerings (or upon
the conversion or exchange of securities convertible or exchangeable into shares
of Common Stock), is at least $500,000 and (b) the consideration per share for
an additional share of Common Stock (or the conversion or exchange price with
respect to securities convertible or exchangeable into shares of Common Stock)
to be issued by the Company is less than the difference between the Purchase
Price and $1.00. In such event, the Purchase Price shall be reduced to a price
(calculated to the nearest cent) determined by multiplying such Purchase Price
by a fraction, the numerator of which shall be the number of shares of Common
Stock outstanding immediately prior to such issue plus the number of shares of
Common Stock which the aggregate consideration received by the Company for the
3
total number of additional shares of Common Stock so issued would purchase at
such Purchase Price in effect immediately prior to such issuance, and the
denominator of which shall be the number of shares of Common Stock outstanding
immediately prior to such issue plus the number of such additional shares of
Common Stock so issued.
7. NOTICES OF RECORD DATE, ETC. In the event of:
(a) any taking by the Company of a record of the holders of any class
or securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, or
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any transfer of all or
substantially all the assets of the Company to or consolidation or merger of the
Company with or into any other person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company, or
(d) any proposed issue or grant by the Company of any shares of stock
of any class or any other securities, or any right or option to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any other
securities (other than this issue of Common Stock on the conversion of the Notes
and the exercise of the Warrants), then and in each such event the Company will
mail or cause to be mailed to each registered holder of a Warrant a notice
specifying (i) the date on which any such record is to be taken for the purpose
of such dividend distribution or right, and stating the amount and character of
such dividend, distribution or right; (ii) the date on which any such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or wind-up is to take place, and the time, if
any is to be fixed, as of which the holders of record of Common Stock shall be
entitled to exchange their shares of Common Stock for securities or other
property deliverable on such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up; and
(iii) the amount and character of any stock or other securities, or rights or
options with respect thereto, proposed to be issued or granted, the date of such
proposed issue or grant and the persons or class of persons to whom such
proposed issue or grant is to be offered or made. Such notice shall be mailed at
least 20 days prior to the date specified in such notice on which any such
action is to be taken.
8. CERTAIN DELIVERIES. The Company shall deliver to the Holder copies
of all documents filed by the Company with the Securities and Exchange
Commission. In addition and for so long as any portion of the Note remains
unpaid, the Company shall deliver to the Holder copies of its monthly financial
statements. Such financial statements shall be delivered on or before the
thirtieth day of each month for the immediately preceding month.
4
9. RESERVATION OF STOCK ISSUABLE ON EXERCISE OF WARRANTS. The Company
will at all times reserve and keep available, solely for issuance and delivery
on the exercise of the Warrants, all shares of Common Stock from time to time
issuable on the exercise of the Warrants.
10. EXCHANGE OF WARRANTS. On surrender for exchange of any Warrant,
properly endorsed, to the Company, the Company at its expense will issue and
deliver to or on the order of the holder thereof a new Warrant or Warrants of
like tenor, in the name of such holder or as such holder (upon payment by such
holder of any applicable transfer taxes and, if requested by the Company,
demonstration by such holder of compliance with applicable securities laws) may
direct, calling in the aggregate on the face or faces thereof for the number of
shares of Common Stock called for on the face or faces of the Warrant or
Warrants so surrendered.
11. REPLACEMENT OF WARRANTS. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant and, in the case of any such loss, heft or destruction of any Warrant,
on delivery of an indemnity agreement or security reasonably satisfactory in
form and amount to the Company or, in the case of any such mutilation, on
surrender and cancellation of such warrant, the Company at its expense will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
12. NEGOTIABILITY. This Warrant is issued upon the following terms, to all
of which each holder or owner hereof by the taking hereof consents and agrees:
(a) subject to compliance with all applicable securities laws, title
to this Warrant may be transferred by endorsement (by the holder hereof
executing the form of assignment at the end hereof) and delivery in the same
manner as in the case of a negotiable instrument transferable by endorsement and
delivery;
(b) any person in possession of this Warrant properly endorsed is
authorized to represent himself as absolute owner hereof and is empowered to
transfer absolute title hereto by endorsement and delivery hereof to a BONA FIDe
purchaser hereof for value; each prior taker or owner waives and renounces all
of his equities or rights in this Warrant in favor of each such BONA FIDE
purchaser, and each such BONA FIDE purchaser shall acquire absolute title hereto
and to all rights represented hereby; and
(c) until this Warrant is transferred on the books of the Company, the
Company may treat the registered holder hereof as the absolute owner hereof for
all purposes, notwithstanding any notice to the contrary.
13. NOTICES. All notices or other communications required or permitted to
be given pursuant to this Agreement shall be in writing and shall be considered
as duly given on (a) the date of delivery, if delivered in person, by nationally
recognized overnight delivery service or by facsimile, or (b) five days after
mailing if mailed from within the continental United States by registered or
certified mail, return receipt requested to the party entitled to receive the
same, if to the Company, to Genetic Vectors, Inc., 0000 X.X. 00xx Xxxxxx, Xxxxx
000, Xxxxx, Xxxxxxx 00000 Attention: Xxxx X. XxXxxx, Xx., with a copy to Xxxxxxx
X. Xxxxxx, Esq., Xxxxxxxxxxx & Xxxxxxxx LLP, 000 X. Xxxxxxxx Xxxxxxxxx, 00xx
Xxxxx, Xxxxx, Xxxxxxx 00000, and if to the Holder, at the address of such Holder
5
shown on the books of the Company. Any party may change his or its address by
giving notice to the other party stating his or its new address. Commencing on
the 10th day after the giving of such notice, such newly designed address shall
be such party's address for the purpose of all notices or other communications
required or permitted to be given pursuant to this Agreement.
14. GOVERNING LAW. This Agreement and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws of the State of
Florida, without regard to its conflicts of law principles. All parties hereto
(i) agree that any legal suit, action or proceeding arising out of or relating
to this Agreement shall be instituted only in a federal or state court in
Miami-Dade County, Florida; (ii) waive any objection which they may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding; and (iii) irrevocably submit to the jurisdiction of such federal or
state court in Miami-Dade County, Florida in any such suit, action or
proceeding, but such consent shall not constitute a general appearance or be
available to any other person who is not a party to this Agreement. All parties
hereto agree that the mailing of any processing any suit, action or proceeding
in accordance with the notice provisions of this Agreement shall constitute
personal service thereof.
15. ENTIRE AGREEMENT; WAIVER OF BREACH. This Agreement constitutes the
entire agreement among the parties and supersedes any prior agreement or
understanding among them with respect to the subject matter hereof, and it may
not be modified or amended in any manner other than as provided herein, and no
waiver of any breach or condition of this Agreement shall be deemed to have
occurred unless such waiver is in writing, signed by the party against whom
enforcement is sought, and no waiver shall be claimed to be a waiver of any
subsequent breach or condition of a like or different nature.
16. SEVERABILITY. If any provision of this Agreement, shall be held
invalid or unenforceable, such invalidity or unenforceability shall attach only
to such provision and shall not in any manner affect or render invalid or
unenforceable any other severable provision of this Agreement, and this
Agreement shall be carried out as if any such invalid or unenforceable provision
were not contained herein.
17. AMENDMENT. 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.
18. EXPIRATION. All rights under or arising out of this Warrant shall
expire at 5:00 P.M., Eastern Time, on November 2, 2003.
19. ATTORNEYS' FEES AND COSTS. In the event of any litigation arising
under or relating to this Warrant, the prevailing party in such dispute shall be
entitled to recover its costs and expenses, including reasonable attorney fees,
from the other.
20. RESTRICTIONS ON TRANSFERABILITY; RESTRICTIVE LEGEND. The holder
acknowledges that the shares of Common Stock issuable upon exercise of this
Warrant are subject to restrictions under applicable Federal and state
securities laws. Each certificate representing shares of Common Stock issued
6
shall, upon the exercise of this Warrant, bear the following legends in addition
to such other restrictive legends as may be required by law:
"The shares represented by this certificate have not been registered under
the Securities Act of 1933, as amended (the "ACT"), or any state securities
laws, and no sale or transfer thereof may be effected without an effective
registration statement or an opinion of counsel for the holder, satisfactory to
the Company, that such registration is not required under the Act and any
applicable state securities laws."
Dated: November 2, 1998
GENETIC VECTORS, INC.
By:__________________________________________
Title:_______________________________________
AGREED TO AND ACCEPTED:
THE XXXXXX X. XXXXXX IRREVOCABLE TRUST
DATED APRIL 22, 1993
By:_________________________________
Its:________________________________
Date:_______________________________
7
FORM OF SUBSCRIPTION
--------------------
(TO BE SIGNED ONLY ON EXERCISE OF WARRANT)
TO:
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder _____ shares of
Common Stock of ____________________, herewith makes payment of $__________
therefor, and requests that the certificates for such shares be issued in the
name of, and delivered to, whose address is:
___________________________________________________
___________________________________________________
___________________________________________________
Dated: ___________________.
____________________________________________
Signature
(Signature must conform to name of holder as
specified on the face of the Warrant)
____________________________________________
Print Name
____________________________________________
Street Address
____________________________________________
City, State and Zip Code
____________________________________________
Person's Social Security Number or Tax
Identification Number
8
FORM OF ASSIGNMENT
(TO BE SIGNED ONLY ON TRANSFER OF WARRANT)
For value received, the undersigned hereby sells, assigns, and transfers
unto ___________________ the right represented by the within Warrant to purchase
shares of Common Stock of ___________________ to which the within Warrant
relates, and appoints ___________________ as its attorney to transfer such right
on the books of _________________ with full power of substitution in the
premises.
Dated:_________________.
____________________________________________
Signature
(Signature must conform to name of holder as
specified on the face of the Warrant)
____________________________________________
Print Name
____________________________________________
Street Address
____________________________________________
City, State and Zip Code
____________________________________________
Person's Social Security Number or Tax
Identification Number
Signed in the presence of:
__________________________________
9
