GUARANTY AGREEMENT
Exhibit 10.8
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"),
OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE 1933 ACT, OR AN OPINION OF COUNSEL,
SATISFACTORY TO THE ISSUER HEREOF, TO THE EFFECT THAT REGISTRATION IS NOT
REQUIRED UNDER THE 1933 ACT.
WARRANT TO PURCHASE
COMMON STOCK OF
BIO-AMERICAN CAPITAL CORP.
Date of Issuance: July 16, 2002 Warrant No. __
This certifies that, for value received, BIO-AMERICAN CAPITAL
CORP., a Nevada corporation (the "Company"), grants HUMBOLDT CAPITAL
CORPORATION, or registered assigns (the "Registered Holder"), the right to
subscribe for and purchase from the Company, at the Exercise Price (as defined
herein), from and after 9:00 a.m. Central Daylight Time July 10, 2002 (the
"Exercise Commencement Date") and to and including 5:00 p.m., Central Daylight
Time on July 10, 2007 (the "Expiration Date"), One Hundred Thousand (100,000)
shares, as such number of shares may be adjusted from time to time (the "Warrant
Shares"), of the Company's common stock, par value $.001 per share (the "Common
Stock"), subject to the provisions and upon the terms and conditions herein set
forth. The "Exercise Price" per share of Common Stock shall be $0.40; provided,
that the Exercise Price and the number of Warrant Shares purchasable upon
exercise of this Warrant are subject to adjustment from time to time as provided
in Section 7 hereof.
Section 1. Registration. The Company shall register this
Warrant, upon records to be maintained by the Company for that purpose (the
"Warrant Records"), in the name of the Registered Holder. The Company may deem
and treat the Registered Holder as the absolute owner of this Warrant for the
purpose of any exercise hereof or any distribution to the Registered Holder, and
for all other purposes, and the Company shall not be affected by any notice to
the contrary.
Section 2. Registration of Transfers and Exchanges.
(a) Subject to Section 11 hereof, the Company shall register
the transfer of this Warrant, in whole or in part, upon records to be maintained
by the Company for that purpose, upon surrender of this Warrant, with the Form
of Assignment attached hereto completed and duly endorsed by the Registered
Holder, to the Company at the office specified in or pursuant to Section 3(b).
Upon any such registration of transfer, a new Warrant, in substantially the form
of this Warrant, evidencing the Common Stock purchase rights so transferred
shall be issued to the transferee and a new Warrant, in similar form, evidencing
the remaining Common Stock purchase rights not so transferred, if any, shall be
issued to the Registered Holder.
(b) This Warrant is exchangeable, upon the surrender hereof by
the Registered Holder at the office of the Company specified in or pursuant to
Section 3(b) hereof, for new Warrants, in substantially the form of this Warrant
evidencing, in the aggregate, the right to purchase the number of Warrant Shares
which may then be purchased hereunder, each of such new Warrants to be dated the
date of
GUARANTY AGREEMENT
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such exchange and to represent the right to purchase such number of Warrant
Shares as shall be designated by the Registered Holder at the time of such
surrender.
Section 3. Duration and Manner of Exercise of this Warrant.
(a) Duration. This Warrant shall be exercisable by the
Registered Holder, in whole, or from time to time in part, on any business day
after 9:00 a.m. Central Daylight Time, during the period beginning on the
Exercise Commencement Date and ending at 5:00 p.m. on the Expiration Date. At
5:00 p.m., Central Daylight Time, on the Expiration Date, this Warrant, to the
extent not previously exercised, shall become void and of no further force or
effect.
(b) Place of Exercise. Subject to Sections 4, and 11(a)
hereof, upon exercise or surrender of this Warrant, with the Form of Election to
Purchase attached hereto completed and duly endorsed by the Registered Holder,
to the Company at its office at 0000 Xxxxx Xxxxx, Xxx Xxxxx, XX 00000-0000,
Attention: President, or at such other address as the Company may specify in
writing to the Registered Holder, and upon payment of the Exercise Price
multiplied by up to the number of Warrant Shares then issuable upon exercise of
this Warrant in lawful money of the United States of America (except as
otherwise provided for in Section 3(c) hereof), all as specified by the
Registered Holder in the Form of Election to Purchase, the Company shall
promptly issue and cause to be delivered to or upon the written order of the
Registered Holder, and in such name or names as the Registered Holder may
designate, a certificate for the Warrant Shares issued upon such exercise. Any
person so designated in the Form of Election to Purchase, duly endorsed by the
Registered Holder, as the person to be named on the certificates for the Warrant
Shares, shall be deemed to have become holder of record of such Warrant Shares,
evidenced by such certificates, as of the Date of Exercise (as hereinafter
defined) of such Warrant.
(c) Cash or Cashless Exercise. The Registered Holder may pay
the applicable Exercise Price pursuant to Section 3(b), at the option of the
Registered Holder, either (i) in cash or by cashier's or certified bank check
payable to the Company in an amount equal to the product of the Exercise Price
multiplied by the number of Warrant Shares being purchased upon such exercise
(the AAggregate Exercise Price"), (ii) by wire transfer of immediately available
funds to the account which shall be indicated in writing by the Company to the
Registered Holder, or (iii) by written notice to the Company that the Registered
Holder is exercising this Warrant and is authorizing the Company to withhold
from the issuance to such Registered Holder that number of Warrant Shares which
when multiplied by the Market Price (as hereinafter defined) for the Common
Stock as of the Date of Exercise is equal to the Aggregate Exercise Price. Any
Warrant Shares withheld by the Company in connection with an exercise of this
Warrant pursuant to clause (iii) of this Section 3(c) shall no longer be
issuable under this Warrant and this Warrant shall be deemed to be automatically
amended to reduce the number of Warrant Shares issuable hereunder by an amount
equal to the amount of such withheld Warrant Shares.
(d) "Date of Exercise". Means the date on which the Company
shall have received (i) this Warrant, with the Form of Election to Purchase
attached hereto appropriately completed and duly endorsed, and (ii) payment of
the Aggregate Exercise Price as provided herein.
(e) Partial Exercise. This Warrant shall be exercisable either
as an entirety or, from time to time, for part only of the number of Warrant
Shares which are issuable hereunder. If this Warrant shall have been exercised
only in part, the Company shall, at the time of delivery of the certificates for
the Warrant Shares issued pursuant to such exercise, deliver to the Registered
Holder a new Warrant evidencing the rights to purchase the remaining Warrant
Shares, which Warrant shall be substantially in the form of this Warrant.
(f) Definition of Market Price. As used in this Warrant, the
term "Market Price" shall mean the average of the daily closing prices per share
of the Common Stock for the five (5) consecutive trading days immediately
preceding the day as of which Market Price is being determined. The closing
price for each day shall be the last reported sale price or, in case no such
sale takes place on such day, the average of the reported closing bid and asked
prices, in either case on the New York Stock Exchange, or, if the
Common Stock is not listed or admitted to trading on the New York Stock
Exchange, on the principal national securities exchange on which the shares are
listed or admitted to trading, or, if the shares are not so listed or admitted
to trading, the average of the highest reported bid and lowest reported asked
prices as furnished by the National Association of Securities Dealers, Inc. (the
"NASD") through NASDAQ or through a similar organization if NASDAQ is no longer
reporting such information or as reported on the NASD's OTC Electronic Bulletin
Board ("OTC"). If shares of Common Stock are not listed or admitted to trading
on any exchange or quoted through NASDAQ or any similar organization or reported
on OTC, the Market Price shall be deemed to be the higher of (A) the book value
of a share of the Common Stock as determined by any firm of independent public
accountants selected by the Board of Directors of the Company and acceptable to
the Registered Holder, as of the end of the most recent fiscal quarter preceding
the date as of which the determination is to be made, or (B) the fair value
thereof determined in good faith by the Company's Board of Directors as
expressed by a resolution of such board as of a date which is within fifteen
(15) days of the date as of which the determination is to be made. The fees and
expenses of any accounting firm engaged pursuant to subclause (A) of this
Section 3(f) shall be paid by the Company.
Section 4. Payment of Taxes and Expenses.
(a) The Company will pay all expenses and taxes (other than
any federal or state income tax or similar obligations of the Registered Holder)
and other governmental charges attributable to the preparation, execution,
issuance and delivery of this Warrant, any new Warrant and the Warrant Shares;
provided, however, that the Company shall not be required to pay any tax in
respect of the transfer of this Warrant or the Warrant Shares, or the issuance
or delivery of certificates for Warrant Shares upon the exercise of this
Warrant, to a person or entity other than a Registered Holder or an Affiliate
(as hereinafter defined) of such Registered Holder.
(b) An "Affiliate" of any person or entity means any other
person or entity directly or indirectly controlling, controlled by or under
direct or indirect common control with such person or entity.
Section 5. Mutilated or Missing Warrant Certificate. If this
Warrant shall be mutilated, lost, stolen or destroyed, upon request by the
Registered Holder, the Company will issue, in exchange for and upon cancellation
of the mutilated Warrant, or in substitution for the lost, stolen or destroyed
Warrant, a new Warrant, in substantially the form of this Warrant, of like
tenor, but, in the case of loss, theft or destruction, only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or
destruction of this Warrant and, if requested by the Company, indemnity also
reasonably satisfactory to it.
Section 6.Reservation, Listing and Issuance of Warrant Shares.
(a) The Company will at all times have authorized, and reserve
and keep available, free from preemptive rights, for the purpose of enabling it
to satisfy any obligation to issue Warrant Shares upon the exercise of the
rights represented by this Warrant, the number of Warrant Shares deliverable
upon exercise of this Warrant. The Company will, at its expense, use it best
efforts to cause such shares to be included in or listed on (subject to issuance
or notice of issuance of Warrant Shares) all markets or stock exchanges in or on
which the Common Stock is included or listed not later than the date on which
the Common Stock is first included or listed on any such market or exchange and
will thereafter maintain such inclusion or listing of all shares of Common Stock
from time to time issuable upon exercise of this Warrant.
(b) Before taking any action which could cause an adjustment
pursuant to Section 7 hereof reducing the Exercise Price below the par value of
the Warrant Shares, the Company will take any corporate action which may be
necessary in order that the Company may validly and legally issue at the
Exercise Price, as so adjusted, Warrant Shares that are fully paid and
non-assessable.
(c) The Company covenants that all Warrant Shares will, upon
issuance in accordance with the terms of this Warrant, be (i) duly authorized,
fully paid and nonassessable, and (ii) free from all taxes with respect to the
issuance thereof and from all liens, charges and security interests.
Section 7. Adjustments of Exercise Price and Number of Warrant Shares.
(a) Adjustment of Number of Warrant Shares. The Exercise Price
at which Warrant Shares may be purchased hereunder, and the number of Warrant
Shares to be purchased upon exercise hereof, are subject to change or adjustment
from time to time as hereinafter provided. Upon each resulting adjustment of
such Exercise Price, the number of Warrant Shares issuable upon the exercise of
this Warrant shall be adjusted to the nearest full Warrant Share by multiplying
a number equal to the Exercise Price in effect immediately prior to such
adjustment by the number of Warrant Shares issuable upon exercise of this
Warrant immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.
(b) Adjustment of Exercise Price upon Adjustment of Private
Placement Offering Price. If and whenever after the date hereof, the Company
shall issue or sell any shares of Common Stock under its pending private
placement offering of up to 5,000,000 Common shares for a consideration per
share less than $0.50 per share, then forthwith upon such issue or sale, the
Exercise Price shall be reduced to a price (calculated to the nearest cent)
determined by multiplying the actual offering price undedr the private placement
by eighty percent (80%). No adjustment of any Exercise Price, however, shall be
made in an amount less than one cent per share, but any such lesser adjustment
shall be carried forward and shall be made upon the earlier of (i) the first
anniversary of the issuance (or deemed issuance) of the securities requiring
such adjustment hereunder, and (ii) at the time of, and together with, the next
subsequent adjustment which together with any adjustments so carried forward
shall amount to one cent per share or more.
(c) Adjustment For Stock Dividends, Splits and Reverses. If
the Company shall pay a dividend in shares of its Common Shares, subdivide
(split) its outstanding shares of Common Stock, combine (reverse split) its
outstanding shares of Common Stock, issued by reclassification of its shares of
Common Stock any shares or other securities of the Company, or distribute to
holders of its Common Stock any securities of the Company or of another entity,
the number of shares of Common Stock or other securities the Registered Holder
hereof is entitled to purchase pursuant to this Warrant immediately prior
thereto shall be adjusted so that the Registered Holder shall be entitled to
receive upon exercise the number of shares of Common Stock or other securities
which he or she would have owned or would have been entitled to receive after
the happening of any of the events described above had this Warrant been
exercised immediately prior to the happening of such event, and the exercise
price per share shall be correspondingly adjusted; provided, however, that no
adjustment in the number of shares and/or the exercise price shall be required
unless such adjustment would require an increase or decrease of at least one
percent (1% in such number and/or price; and provided further, however, that any
adjustments which by reason of this Section 7 are not required to be made shall
be carried forward and taken into account in any subsequent adjustment. An
adjustment made pursuant to this Section 7 shall become effective immediately
after the record date in the case of the stock dividend or other distribution
and shall become effective immediately after the effective date in the case of a
subdivision, combination or reclassification. The Registered Holder shall be
entitled to participate in any subscription or other rights offering made to
holders as if the holder of this Warrant had purchased the full number of shares
as to which this Warrant remains unexercised immediately prior to the record
date for such rights offering. If the Company is consolidated or merged with or
into another corporation or if all or substantially all of its assets are
conveyed to another corporation this Warrant shall thereafter be exercisable for
the purchase of the kind and number of shares of stock or other securities or
property, if any, receivable
upon such consolidation, merger or conveyance by a holder of the number of
shares of Common Stock of the Company which could have been purchased on the
exercise of this Warrant immediately prior to such consolidation, merger or
conveyance; and, in any such case, appropriate adjustment (as determined by the
Board of Directors) shall be made in the application of the provisions herein
set forth with respect to the rights and interests thereafter of the holder of
this Warrant to the end that the provisions set forth herein (including
provisions with respect to changes in and other adjustments of the number of
shares of Common Stock the Registered Holder of this Warrant is entitled to
purchase) shall thereafter be applicable, as nearly as possible, in relation to
any shares of Common Stock or other securities or other property thereafter
deliverable upon the exercise of this Warrant. Upon any adjustment of the number
of shares of Common Stock or other securities the Registered Holder of this
Warrant is entitled to purchase, and of any change in exercise price per share,
then in each such case the Company shall give written notice thereof to the then
registered holder of this Warrant at the address of such holder as shown on the
books of the Company, which notice shall state such change and set forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Each such notice shall be accompanied by a statement of
the firm of independent certified public accountants retained to audit the
financial statements of the Company to the effect that such firm concurs in the
Company's calculation of the change.
Section 8. Certain Dividends and Distributions. In the event
that the Company shall at any time prior to the exercise of this Warrant declare
a dividend (other than a dividend consisting solely of shares of Common Stock or
a cash dividend or distribution payable out of current or retained earnings) or
otherwise distribute to its stockholders any monies, assets, property, rights,
evidences of indebtedness, securities (other than shares of Common Stock),
whether issued by the Company or by another person or entity, or any other thing
of value, the Registered Holder shall thereafter be entitled, in addition to the
shares of Common Stock receivable upon the exercise of the Warrant, to receive,
upon the exercise of the Warrant, the same monies, property, assets, rights,
evidences of indebtedness, securities or any other thing of value that the
Registered Holder would have been entitled to receive at the time of such
dividend or distribution had the Registered Holder been an owner of record of
the shares of Common Stock into which the Warrant is then being exercised as of
the record date or other date of determination for such dividend or distribution
and an appropriate provision (which provision may include without limitation,
the establishment of an escrow agreement in favor of the Registered Holder in
which the portion of the dividend or distribution attributable to such warrants
is held) shall be made a part of any such dividend or distribution.
Notwithstanding any provision herein to the contrary, no adjustment under this
Section 8 shall be made with respect to any cash dividend or distribution
payable solely out of current or retained earnings of the Company.
Section 9. No Rights or Liabilities as a Stockholder. The
Registered Holder shall not be entitled to vote 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, nor shall anything contained herein be
construed to confer upon the holder of this Warrant, as such, the rights of a
stockholder of the Company or the right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or give or
withhold consent to any corporate action or to receive notice of meetings or
other actions affecting stockholders (except as provided herein), or to receive
dividends or subscription rights or otherwise, until the Date of Exercise shall
have occurred. No provision of this Warrant, in the absence of affirmative
action by the Registered Holder hereof to purchase shares of Common Stock, and
no mere enumeration herein of the rights and privileges of the Registered
Holder, shall give rise to any liability of such holder for the Exercise Price
or as a stockholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
Section 10. Fractional Warrant Shares. The Company shall not
be required to issue fractions of Warrant Shares upon exercise of the Warrant or
to distribute certificates which evidence fractional Warrant Shares. If any
fraction of a Warrant Share would, except for the provisions of this Section 10,
be issuable on the exercise of any Warrant (or specified portion thereof), the
Company shall pay to the Registered Holder an amount in cash equal to the Market
Price as of the Exercise Date, multiplied by such fraction.
Section 11. Transfer Restrictions; Registration of the Warrant
and Warrant Shares.
(a) Neither the Warrant nor the Warrant Shares have been
registered under the 1933 Act. The Registered Holder, by acceptance hereof,
represents that it is acquiring this Warrant to be issued to it for its own
account and not with a view to the distribution thereof, and agrees not to sell,
transfer, pledge or hypothecate this Warrant, any purchase rights evidenced
hereby or any Warrant Shares unless a registration statement is effective for
this Warrant or the Warrant Shares under the 1933 Act or in the opinion of such
Registered Holder's counsel reasonably satisfactory to the Company, a copy of
which opinion shall be delivered to the Company, such transaction is exempt from
the registration requirements of the 1933 Act.
(b) Subject to the provisions of the following paragraph of
this Section 11, each Certificate for Warrant Shares shall be stamped or
otherwise imprinted with a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE 1933 ACT, OR AN
OPINION OF COUNSEL, SATISFACTORY TO THE ISSUER HEREOF, TO THE EFFECT
THAT REGISTRATION IS NOT REQUIRED UNDER THE 1933 ACT.
(c) The restrictions and requirements set forth in the
foregoing paragraph shall apply with respect to Warrant Shares unless and until
such Warrant Shares are sold or otherwise transferred pursuant to an effective
registration statement under the 1933 Act or are otherwise no longer subject to
the restrictions of the 1933 Act, at which time the Company agrees to promptly
cause such restrictive legends to be removed and stop transfer restrictions
applicable to such Warrant Shares to be rescinded.
(d) The Company will use its best efforts to comply with the
reporting requirements of Section 13 and 15(d) of the Securities Exchange Act of
1934, as amended (the "1934 Act") (whether or not it shall be required to do so
pursuant to such Sections) and will use its best efforts to comply with all
other public information reporting requirements of the Securities and Exchange
Commission (including, without limitation, Securities and Exchange Commission
("SEC") Rule 144 promulgated under the 0000 Xxx) from time to time in effect and
relating to the availability of an exemption from the 1933 Act for sale of
restricted securities. The Company also will cooperate with the Registered
Holder and with each holder of any Warrant Shares in supplying such information
as may be necessary for any such holders to complete and file any information
reporting forms presently or hereafter required by the SEC as a condition to the
availability of an exemption from the 1933 Act for the sale of restricted
securities.
Section 12. Registration Rights.
The Company covenants and agrees as follows:
(a) Definitions. For purposes of this Section 12:
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(i) The term "1934 Act" means the Securities Exchange
Act of 1934, as amended.
(ii) The term "Holder" means each of the persons who
at the time holds Registrable Securities or a warrant or warrants (including
this Warrant) to purchase Registrable Securities.
(iii) The term "Public Corporation" means a
corporation which has a class of equity securities registered pursuant to
Section 12 of the 1934 Act, or which is required to file periodic reports
pursuant to Section 15(d) of the 1934 Act.
(iv) The terms "register," "registered" and
"registration" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the 1933 Act, and
such registration statement or document becoming effective.
(v) The term "Registrable Securities" means any
Common Stock issued upon the exercise of any warrant or other security which is
issued as a dividend or other distribution with respect to, or in exchange for
or in replacement of, the Warrant Shares; provided, however, that any such
securities shall cease to be Registrable Securities when (i) one or more
registration statements with respect to the sale of such securities shall have
become effective under the 1933 Act and all such securities shall have been
disposed of in accordance with the plan of distribution set forth therein; (ii)
such securities shall have been disposed of in accordance with SEC Rule 144
promulgated under the 1933 Act, or any successor rule or regulation thereto, or
any statute hereafter adopted to replace or to establish the exemption that is
now covered by said Rule 144 ("Rule 144"); (iii) such securities may be sold by
a Holder in a transaction pursuant to the provisions of Rule 144 provided that
such rule shall be at such time available for the sale of all such securities
which the Holder at such time desires to sell; or (iv) such securities may
otherwise be sold to the public in a transaction not requiring registration
under the 1933 Act.
(vi) The term "Registration Expenses" means all
registration, qualification and filing fees, printing expenses, escrow fees and
blue sky fees, fees and disbursements of counsel for the Company and of the
Company's independent certified public accountants, in each case incident to or
required by the registration under this Warrant, and any other fees and expenses
of the registration under this Warrant which are not Selling Expenses.
(vii) The term "Selling Expenses" means all
underwriting discounts, selling commissions and stock transfer taxes applicable
to the securities registered by the Holders and all fees and disbursements of
counsel for any Holder.
(viii) All other capitalized terms used in this
Section that are not defined herein shall have the meaning otherwise given in
this Warrant. (b)Registration Rights.
(b) Registration Rights
(i) In the event that the Company files a
registration statement covering the shares covered by its pending private
placement of up to 5,000,000 Common shares and so long as Holder has exercised
its right to purchase Company's Common Stock under this Warrant prior to the
filing of the registration statement, then the Company will promptly give the
Holder written notice thereof, and include in such registration (and any related
qualification under blue sky or other state securities laws), and in any
underwriting involved therein, all of the Registrable Securities specified in a
written request or requests made by a Holder or Holders within twenty (20) days
after receipt of such written notice from the Company.
(ii) If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holder as part of the written notice given pursuant
to Section 12(c)(i). In such event, the right of each Holder to registration
pursuant to this Section 12(c) shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of the Registrable
Securities owned by such Holder in the underwriting to the extent provided
under this Section 12(c). If a Holder proposes to distribute its Registrable
Securities through such underwriting it shall (together with the Company and any
other holders of securities of the Company distributing their securities through
such underwriting) enter into an underwriting agreement with the managing or
lead managing underwriter selected by the Company in the form customarily used
by such underwriter with such changes thereto as the parties thereto shall
agree. Notwithstanding any other provision of this Section 12(c), if the
managing or lead managing underwriter determines that market factors require
that the number of Registrable Securities and other securities requested to be
included in the registration be limited, the managing or lead managing
underwriter may reduce the number of Registrable Securities and securities of
any other holders of securities to be included in the registration. If the
registration includes an underwritten primary registration on behalf of the
Company, the reduction shall be taken (i) first from and to the extent of the
securities requested to be included in the such registration by the Holders and
the holders of any other securities pro rata according to the number of
securities requested by the Holders and such holders to be included in the
registration, and (ii) thereafter from the securities to be registered on behalf
of the Company. If the registration consists only of any underwritten secondary
registration on behalf of holders of securities of the Company, the reduction
shall be taken (i) first from and to the extent of the securities requested to
be included in the such registration by the Holders and any other holders of
securities included in the registration other than pursuant to demand
registration rights pro rata according to the number of securities requested by
the Holders and such other holders to be included in the registration and (ii)
thereafter from securities, if any, to be registered on behalf of holders of
securities included in the registration pursuant to demand registration rights.
The Company shall advise any Holders and other holders participating in such
underwriting as to any such limitation and the number of shares that may be
included in the registration and underwriting. If a Holder disapproves of the
terms of such underwriting, such Holder may elect to withdraw therefrom by
written notice to the Company and the managing or lead underwriter. Any
Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from the registration.
(iii)The Company may withdraw a registration
for which registration rights have been exercised pursuant to this Section 12(b)
at any time prior to the time it becomes effective.
(d) Expenses of Registration. All Registration Expenses incurred in
connection with a registration pursuant to this Section 12 shall be borne by
the Company. All Selling Expenses relating to the Registrable Securities
registered on behalf of a Holder shall be borne by such Holder.
(e) Registration Procedures.
(i) In connection with the registration of
Registrable Securities pursuant to this Section 12, the Company shall as
expeditiously as is reasonable:
(A) prepare and file with the SEC on
any appropriate form a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective;
(B) prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective and to comply with the
provisions of the 1933 Act with respect to the disposition of all Registrable
Securities and other securities covered by such registration statement until the
expiration of a period of 90 days after the expiration of the term of the
Warrants or until the Holder or Holders have completed the distribution
described in such registration statement, whichever occurs first;
(C) furnish to each seller of such
Registrable Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (at least one of
which shall include all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary prospectus
and any summary prospectus), in conformity with the requirements of the 1933
Act, such documents incorporated by reference in such registration statement or
prospectus, and such other documents, as such
(D) use its best efforts to register
or qualify all Registrable Securities and other securities covered by such
registration statement under such other securities or "blue sky" laws of such
jurisdictions as the underwriter shall reasonably request, and do any and all
other acts and things as may be reasonably necessary to consummate the
disposition in such jurisdictions of the Registrable Securities covered by such
registration statement, except that the Company shall not for any such purpose
be required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, or to subject itself to taxation in
respect of doing business in any such jurisdiction, or to consent to general
service of process in any such jurisdiction.
(E) immediately notify each seller of
Registrable Securities, at any time when a prospectus relating thereto is
required to be delivered under the 1933 Act, of the happening of any event as a
result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing or if it
is necessary, in the opinion of counsel to the Company, to amend or supplement
such prospectus to comply with law, and at the request of any such seller
prepare and furnish to any such seller a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing and shall otherwise comply in all material respects with law and so
that such prospectus, as amended or supplemented, will comply with law.
(F) otherwise use its best efforts to
comply with all applicable rules and regulations of the SEC, and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve (12) months, beginning with the
first month of the first fiscal quarter after the effective date of such
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the 1933 Act;
(G) use its best efforts to list
such securities on each securities exchange or over-the-counter market on which
shares of Common Stock are then listed, if such securities are not already so
listed and if such listing is then permitted under the rules of such exchange
and, if shares of Common Stock are not then listed on a securities exchange or
over- the-counter market, to use is best efforts to cause such securities to be
listed on such securities exchange or over-the-counter market as the managing or
lead managing underwriter shall reasonably request;
(H) use its best efforts to provide a
transfer agent and registrar for such Registrable Securities not later than the
effective date of such registration statement; and
(I) issue to any underwriter to which
any holder of Registrable Securities may sell such Registrable Securities in
connection with any such registration (and to any direct or indirect transferee
of any such underwriter) certificates evidencing shares of Common Stock without
restrictive legends.
(ii) If requested by the managing or lead
managing underwriter for any underwritten offering of Registrable Securities on
behalf of a Holder or Holders of Registrable Securities, the Company will enter
into an underwriting agreement with the underwriters of such offering, such
agreement to contain such representations and warranties by the Company and each
such Holder and such other terms and conditions as are contained in underwriting
agreements customarily used by such managing or lead managing underwriter with
such changes as the parties thereto shall agree, including, without limitation,
provisions relating to indemnification and contribution in lieu thereof.
(iii) The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
from time to time reasonably request and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Agreement.
(iv) The Holder or Holders of Registrable
Securities included in any registration shall, upon request by the Company and
the managing or lead managing underwriter, execute and deliver custodian
agreements and powers of attorney in form and substance reasonably satisfactory
to the Company and such Holder or Holders and as shall be reasonably necessary
to consummate the offering.
(f) Indemnification. (i) The Company will indemnify each
Holder with respect to which a registration has been effected pursuant to this
Warrant, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the 1933 Act, against any and
all losses, claims, damages, liabilities or expenses (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement or prospectus, or any amendment or supplement thereto,
incident to any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading, or any violation by the
Company of the 1933 Act or any rule or regulation promulgated under the 1933 Act
applicable to the Company in connection with any such registration, and the
Company will reimburse each such Holder, each such underwriter and each person
who controls any such underwriter, for any legal and other expenses reasonably
incurred, as such expenses are incurred, in connection with investigating,
preparing or defending any such claims, loss, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder or
underwriter and stated to be specifically for use therein.
(ii) Each Holder will, if Registrable
Securities held by such Holder are included in the securities as to which such
registration is being effected, indemnify the Company, each of its directors and
officers, each underwriter, if any, of the Company's securities covered by such
a registration statement, each person who controls the Company or such
underwriter within the meaning of Section 15 of the 1933 Act and each other such
holder of securities included in the registration against any and all losses,
claims, damages, liabilities and expenses (or actions in respect thereof),
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any such registration statement or prospectus, or
any omission (or alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statement therein, in the light of
the circumstances under which they were made, not misleading, and will reimburse
the Company, such holders, underwriters or control persons for any legal or any
other expenses reasonably incurred, as such expenses are incurred, in connection
with investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement or prospectus in reliance upon and in
conformity with written information furnished to the Company by such Holder.
Notwithstanding the foregoing, the liability of each Holder under this Section
12(f) shall be limited to an amount equal to the aggregate proceeds received by
such Holder from the sale of Registrable Securities hereunder, unless such
liability arises out of or is based on willful conduct by such Holder.
(iii) Each party entitled to indemnification under
this Section 12 (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of
any such claims or any litigation resulting therefrom; provided, however, that
counsel for the Indemnifying Party, who shall conduct the defense of such claim
or litigation, shall be approved by the Indemnified Party (which approval shall
not be unreasonably withheld), and the Indemnified Party may participate in such
defense at such Indemnified Party's expense; provided, however, that the failure
of any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action. Notwithstanding the foregoing, the Indemnifying Party shall
not be entitled to assume the defense for matters as to which there is, in the
opinion of counsel to the Indemnifying Party, a conflict of interest or separate
and different defenses. No Indemnifying Party, in the defense of any such claim
or litigation, shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect of such claim or
litigation. Each Indemnified Party shall furnish such information regarding
itself or the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with the defense of
such claim and the litigation resulting therefrom.
(g) Contribution.
(i) If the indemnification provided for in
Section 12(f) hereof is unavailable to the Indemnified Parties in respect of any
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
referred to therein, then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party on the one hand and the
Indemnified Party on the other in connection with the statement or omission
which resulted in such losses, claims, damages, liabilities or expenses (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue statement (or alleged untrue statement), of a
material fact or the omission (or alleged omission) to state a material fact
relates to information supplied by the Indemnifying Party or the Indemnified
Party and the parties= relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each Holder agree that it would not be just and equitable if contribution
pursuant to this Section 12(g) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above. The amount paid or payable by an Indemnified
Party as a result of the losses, claims, damages, liabilities or expenses (or
actions in respect thereof) referred to above in this Section shall be deemed to
include any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim.
(ii) Notwithstanding anything to the contrary
contained herein, the obligation of each Holder to contribute pursuant to this
Section 12(f) is several and not joint and no selling Holder shall be required
to contribute any amount in excess of the amount by which the total price at
which the Registrable Securities of such Holder were offered to the public
exceeds the amount of any damages which such selling Holder has otherwise been
required to pay by reason of such untrue statement (or alleged untrue statement)
or omission (or alleged omission).
(iii) No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(h) 1934 Act Registration. The Company covenants and
agrees that until such time as there shall be no Registrable Securities
outstanding:
(i) it will, if required by law, maintain an
effective registration statement (containing such information and documents as
the SEC shall specify) with respect to the Common Stock under Section 12(g) of
the 1934 Act and will file in a timely manner such information, documents and
reports as the SEC may require or prescribe for companies whose stock has been
registered pursuant to said Section 12(g);
(ii) it will, if a registration statement with
respect to the Common Stock under Section 12(b) or Section 12(g) of the 1934 Act
is effective, make whatever filings with the SEC or otherwise make generally
available to the public such financial and other information as may be necessary
in order to enable the Holders to sell shares of Common Stock pursuant to the
provisions of Rule 144;
(iii) it will, if no longer required to file
reports pursuant to Section 12 (g) of the 1934 Act, upon the request of the
Registered Holder, make publicly available the information specified in
subparagraph (c)(2) of Rule 144, and will take such further action as any Holder
may reasonably request, all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the 1933
Act within the limitation of the exemptions provided by Rule 144 or any similar
rule or regulation hereafter adopted by the SEC; and
(iv) upon the request of any Holder, it will
deliver to such Holder a written statement as to whether it has complied with
the requirements of this Section 12(h).
The Company represents and warrants that such registration statement or
any information, documents or report filed with the SEC in connection therewith
or any information so made public shall not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements contained therein not misleading. The
Company agrees to indemnify and hold harmless (or to the extent the same is not
enforceable, make contribution to) the Holders, their partners, advisory
committee members, officers, directors and employees acting for any Holder in
connection with any offering or sale by such Holder of Registrable Securities or
any person, firm or corporation controlling (within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act) such Holder from and
against any and all losses, claims, damages, liabilities or expenses (or actions
in respect thereof) arising out of or resulting from any breach of the foregoing
representation or warranty, all on terms and conditions comparable to those set
forth in Section 12(f); provided, however, that the Company shall be given
written notice and an opportunity to assume on terms and conditions comparable
to those set forth in Section 12(f) the defense thereof.
Section 13. Notices. All notices, requests, demands and other
communications relating to this Warrant shall be in writing and shall be deemed
to have been duly given if delivered personally or sent by United States
certified or registered first-class mail, postage prepaid, return receipt
requested, to the parties hereto at the following addresses or at such other
address as any party hereto shall hereafter specify by notice to the other party
hereto:
(a) If to the Registered Holder of this Warrant or the holder
of the Warrant Shares, addressed to the address of such Registered Holder or
holder as set forth on books of the Company or otherwise furnished by the
Registered Holder or holder to the Company.
(b) If to the Company, addressed to:
Xxxxxx X. Xxxxxx
0000 Xxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
Attn: President
Section 14. Binding Effect. This Warrant shall be binding upon
and inure to the sole and exclusive benefit of the Company, its successors and
assigns, and the holder or holders from time to time of this Warrant and the
Warrant Shares.
Section 15. Governing Law. This Warrant shall be
construed in accordance with and governed by the laws of the State of Nevada.
Section 16. Section Headings. The Section headings in
this Warrant are for purposes of convenience only and shall not constitute a
part hereof.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed under its corporate seal by its officers thereunto duly authorized as
of the date hereof.
BIO-AMERICAN CAPITAL CORP.
By: ________________________________
Name: Xxxxxxx Viejo
Title: President
1
FORM OF ELECTION TO PURCHASE
(To Be Executed Upon Exercise of this Warrant)
To BIO-AMERICAN CAPITAL CORP.
The undersigned, the record holder of this Warrant (Warrant
No. _____), hereby irrevocably elects to exercise the right, represented by this
Warrant, to purchase ___________ of the Warrant Shares and herewith either (xxxx
only one of the following boxes):
Tenders payment for such Warrant Shares to the order of
BIO-AMERICAN CAPITAL CORP. of $_________ representing the full purchase price
for such shares at the price per share provided for in such Warrant and the
delivery of any applicable taxes payable by the undersigned pursuant to such
Warrant.
In lieu of paying the purchase price as provided in the
preceding paragraph, the undersigned elects to make a cashless exercise pursuant
to Section 3(c) of the attached Warrant.
The undersigned requests that certificates for such shares be issued in the
name of
_______________________________ PLEASE INSERT SOCIAL SECURITY
OR TAX IDENTIFICATION NUMBER
-------------------------------
-------------------------------
-------------------------------
(Please print name and address)
In the event that not all of the purchase rights represented
by the Warrant are exercised, a new Warrant, substantially identical to the
attached Warrant, representing the rights formerly represented by the attached
Warrant which have not been exercised, shall be issued in the name of and
delivered to
----------------------------------------------------
(Please print name)
------------------------------------------------------------
(Please print address)
Dated: ________________ Name of Holder (Print):
By: ________________________________
(Name): ____________________________
(Title): _____________________________
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, _______________________ hereby sells,
assigns and transfers to each assignee set forth below all of the rights of the
undersigned under the attached Warrant (Warrant No. _____) with respect to the
number of shares of Common Stock covered thereby set forth opposite the name of
such assignee unto:
Name of Assignee Address Number of Shares of
---------------- ------- Common Stock
------------
If the total of said purchase rights represented by the
Warrant shall not be assigned, the undersigned requests that a new Warrant
Certificate evidencing the purchase rights not so assigned be issued in the name
of and delivered to the undersigned.
Dated: _______________ Name of Holder (Print):
By: ________________________________
(Name): ____________________________
(Title): _____________________________
