WARRANT AGREEMENT
WARRANT AGREEMENT (this "Agreement"), dated as of November 12, 2002, by and
between The Immune Response Corporation, a Delaware corporation (the "Company"),
and Cheshire Associates LLC, a Delaware limited liability company (the "Warrant
Holder").
W I T N E S S E T H
WHEREAS, the parties have entered into that certain Note Purchase
Agreement, dated as of November 9, 2001, by and between the Company and Xxxxx
Xxxxxxxxx Partners, L.P. ("KKP"), as amended by Amendment No. 1 to the Note
Purchase Agreement, dated as of February 14, 2002 and Amendment No. 2 dated as
of May 3, 2002, each by and between the Company, KKP and Oshkim Limited
Partnership ("Oshkim") and as further amended by Amendment No. 3 by and between
the Company, KKP, Oshkim and The Xxxxxxxxx Family 1998 Irrevocable Trust (the
"Note Purchase Agreement"); and
WHEREAS, pursuant to the Note Purchase Agreement, the Warrant Holder has
agreed to loan to the Company $4,849,453.79 Dollars (the "Loan Amount"), subject
to the issuance by the Company of a convertible secured promissory note (the
"Note"), and the Company has agreed to issue to the Warrant Holder warrants (the
"Warrants") to purchase 4,243,354 shares of the Company's common stock, par
value $.0025 per share (the "Common Stock"), which equals the Loan Amount
divided by eighty (80%) percent of the Exercise Price (as defined in Section 1
hereof), subject to the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and promises contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. WARRANTS. The Company hereby grants to the Warrant Holder, subject to
the terms set forth herein, the right to purchase from the Company at any time
and from time to time after the date hereof until 5:00 p.m., New York City local
time, on November 8, 2012 (the "Expiration Date"), up to 4,243,354 fully paid
and non-assessable shares of Common Stock, subject to adjustment pursuant to
Section 3 hereof (the "Shares"), which number of Shares equals the Loan Amount
divided by eighty (80%) percent of the Exercise Price. Notwithstanding the
foregoing, the Warrants shall only be exercisable to the extent that shares of
Common Stock issuable on exercise of the Warrants, when aggregated with (i) the
Company's outstanding shares of Common Stock as of the date hereof and (ii)
shares of Common Stock issuable on conversion or exercise, as the case may be,
of notes, warrants and stock options outstanding as of the date hereof, would
not exceed the number of shares authorized under the Company's Restated
Certificate of Incorporation, as amended. The Company shall promptly cause its
Restated Certificate of Incorporation, as amended, to be further amended to
increase the number of shares of Common Stock authorized thereunder as shall be
sufficient for reserving and making available shares of Common Stock issuable
upon the exercise in full of the Warrants issued to the Warrant holder
hereunder. For purposes of this Agreement, the "Exercise Price" shall initially
be $1.428, which is equal to the average of the closing bid prices of the Common
Stock for the ten (10) consecutive trading days immediately preceding the date
hereof, subject to any adjustments pursuant to Section 3 hereof.
2. Exercise of Warrants.
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2.1 EXERCISE. The Warrants may be exercised by the Warrant
Holder, in whole or in part, by delivering the Notice of Exercise purchase form,
attached as Exhibit A hereto, duly executed by the Warrant Holder to the Company
at its principal office, or at such other office as the Company may designate,
accompanied by payment, in cash or by wire transfer or check payable to the
order of the Company, of the amount obtained by multiplying the number of Shares
designated in the Notice of Exercise by the Exercise Price (the "Purchase
Price"). The Purchase Price may also be paid, in whole or in part, by delivery
of such purchase form and of shares of Common Stock owned by the Warrant Holder
having a Fair Market Value (as defined in Section 2.3 hereof) on the last
trading day ending the day immediately preceding the Exercise Date (as defined
below) equal to the portion of the Purchase Price being paid in such shares. In
addition, the Warrants may be exercised, pursuant to a cashless exercise, except
as set forth in Section 3.3(4) below, by providing irrevocable instructions to
the Company, through delivery of the aforesaid purchase form with an appropriate
reference to this Section 2.1 to issue the number of shares of the Common Stock
equal to the product of (a) the number of shares as to which the Warrants are
being exercised multiplied by (b) a fraction, the numerator of which is the Fair
Market Value of a share of the Common Stock on the last business day preceding
the Exercise Date less the Exercise Price therefore and the denominator of which
is such Fair Market Value. For purposes hereof, "Exercise Date" shall mean the
date on which all deliveries required to be made to the Company upon exercise of
Warrants pursuant to this Section 2.1 shall have been made.
2.2 ISSUANCE OF CERTIFICATES. As soon as practicable after the
exercise of the Warrants (in whole or in part) in accordance with Section 2.1
hereof, the Company, at its expense, shall cause to be issued in the name of and
delivered to the Warrant Holder (i) a certificate or certificates for the number
of fully paid and non-assessable Shares to which the Warrant Holder shall be
entitled upon such exercise and (if applicable) (ii) a new warrant agreement of
like tenor to purchase all of the Shares that may be purchased pursuant to the
portion, if any, of the Warrants not exercised by the Warrant Holder. The
Warrant Holder shall for all purposes be deemed to have become the holder of
record of such Shares on the date on which the Notice of Exercise and payment of
the Purchase Price in accordance with Section 2.1 hereof were delivered and
made, respectively, irrespective of the date of delivery of such certificate or
certificates, except that if the date of such delivery, notice and payment is a
date when the stock transfer books of the Company are closed, such person shall
be deemed to have become the holder of record of such Shares at the close of
business on the next succeeding date on which the stock transfer books are open.
2.3 FAIR MARKET VALUE. The "Fair Market Value" of a share of
Common Stock on any day means: (a) if the principal market for the Common Stock
is The Nasdaq National Market or any other national securities exchange, the
last sales price of the Common Stock on such day as reported by such exchange or
market, or on a consolidated tape reflecting transactions on such exchange or
market, or (b) if the principal market for the Common Stock is not a national
securities exchange or The Nasdaq National Market and the Common Stock is quoted
on the National Association of Securities Dealers Automated Quotations System,
the mean between the closing bid and the closing asked prices for the Common
Stock on such day as quoted on such System, or (c) if the Common Stock is not
quoted on the National Association of Securities Dealers Automated Quotations
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System, the mean between the highest bid and lowest asked prices for the Common
Stock on such day as reported by Pink Sheets LLC; provided, however, that if
none of (a), (b) or (c) above is applicable, or if no trades have been made or
no quotes are available for such day, the Fair Market Value of the Common Stock
shall be reasonably determined, in good faith, by the Board of Directors of the
Company (the "Board of Directors").
3. Adjustments.
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3.1 STOCK SPLITS, STOCK DIVIDENDS AND COMBINATIONS. If the
Company at any time subdivides the outstanding shares of the Common Stock or
issues a stock dividend (in Common Stock) on the outstanding shares of the
Common Stock, the Exercise Price in effect immediately prior to such subdivision
or the issuance of such stock dividend shall be proportionately decreased, and
the number of Shares subject hereto shall be proportionately increased, and if
the Company at any time combines (by reverse stock split or otherwise) the
outstanding shares of Common Stock, the Exercise Price in effect immediately
prior to such combination shall be proportionately increased, and the number of
Shares subject hereto shall be proportionately decreased, effective at the close
of business on the date of such subdivision, stock dividend or combination, as
the case may be.
3.2 MERGER OR CONSOLIDATION. In the case of any consolidation of
the Company with, or merger of the Company with or into another entity (other
than a consolidation or merger which does not result in any reclassification or
change of the outstanding capital stock of the Company), the entity formed by
such consolidation or merger shall execute and deliver to the Warrant Holder a
supplemental warrant agreement providing that the Warrant Holder of the Warrants
then outstanding or to be outstanding shall have the right thereafter (until the
expiration of such Warrants) to receive, upon exercise of such Warrants, the
kind and amount of shares of capital stock and other securities and property
receivable upon such consolidation or merger by a holder of the number of Shares
for which such Warrants might have been exercised immediately prior to such
consolidation or merger. Such supplemental warrant agreement shall contain
provisions which shall be identical to the adjustments provided in Section 3.1
hereof and to the provisions of Section 10 hereof. This Section 3.2 shall
similarly apply to successive consolidations or mergers.
3.3 The Exercise Price shall also be subject to adjustment as
follows:
(1) Special Definitions. For purposes of this Section 3.3,
the following definitions shall apply:
(A) "Options" shall mean rights, options or warrants
to subscribe for, purchase or otherwise acquire Common Stock or Convertible
Securities.
(B) "Original Issue Date" shall mean the date of this
Agreement.
(C) "Convertible Securities" shall mean any evidence
of indebtedness, shares of capital stock (other than Common Stock) or other
securities convertible into or exchangeable for Common Stock.
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(D) "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued by the Company on or after the Original Issue
Date, other than shares of Common Stock issued at any time:
(i) pursuant to the exercise of options,
warrants or other Common Stock purchase rights issued (or to be issued) to
employees, officers or directors of, or consultants or advisors to, or any
strategic ally of, the Company pursuant to any stock purchase or stock option
plan or other arrangement approved by the Board of Directors;
(ii) pursuant to the exercise of options,
warrants or Convertible Securities outstanding as of the Original Issue Date; or
(iii) in connection with the acquisition of all or
part of another entity by stock acquisition, merger, consolidation or other
reorganization, or by the purchase of all or part of the assets of such other
entity (including securities issued to persons formerly employed by such other
entity and subsequently hired by the Company and to any brokers or finders in
connection therewith) where the Company or its stockholders own more than fifty
(50%) percent of the voting power of the acquired, surviving, combined or
successor company.
(2) ISSUANCE OF OPTIONS AND CONVERTIBLE SECURITIES. In the
event the Company at any time or from time to time after the Original Issue Date
shall issue any Options (other than any additional warrants issued to the
Warrant Holder or any affiliate thereof in accordance with the terms and
provisions of the Note Purchase Agreement) or Convertible Securities without
consideration or for a consideration per share less than the then-applicable
Exercise Price, then and in such event, such Exercise Price shall be reduced,
concurrently with such issue, to a price (calculated to the nearest cent)
determined by multiplying the then-applicable Exercise Price by a fraction, (i)
the numerator of which shall be the number of shares of Common Stock issued and
outstanding (on a fully-diluted basis) immediately prior to such issuance plus
the quotient obtained by dividing (x) the aggregate consideration received or to
be received by the Company for the total number of Additional Shares of Common
Stock issuable upon the exercise, conversion or exchange of such Options or
Convertible Securities by (y) the Exercise Price, and (ii) the denominator of
which shall be the number of shares of Common Stock issued and outstanding (on a
fully-diluted basis) immediately prior to such issuance plus the number of
Additional Shares of Common Stock issuable upon the exercise, conversion or
exchange of such Options or Convertible Securities. Upon each such adjustment of
the then-applicable Exercise Price pursuant to the provisions of this Section
3.3(2), the number of Warrant Shares purchasable upon the exercise of each
Warrant shall be adjusted to the nearest full amount by multiplying a number
equal to the Exercise Price in effect immediately prior to such adjustment by
the number of Warrant Shares purchasable upon the exercise of each Warrant
immediately prior to such adjustment and dividing the product so obtained by the
adjusted Exercise Price.
(3) ADJUSTMENT OF EXERCISE PRICE UPON ISSUANCE OF ADDITIONAL
SHARES OF COMMON STOCK. In the event the Company, after the Original Issue Date,
shall issue Additional Shares of Common Stock without consideration or for a
consideration per share less than the then-applicable Exercise Price, then and
in such event, such Exercise Price shall be reduced, concurrently with such
issue, to a price (calculated to the nearest cent) determined by multiplying the
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then-applicable Exercise Price by a fraction, (i) the numerator of which shall
be the number of shares of Common Stock issued and outstanding (on a
fully-diluted basis) immediately prior to such issuance plus the quotient
obtained by dividing (x) the aggregate consideration received by the Company for
the total number of Additional Shares of Common Stock so issued by (y) the
Exercise Price, and (ii) the denominator of which shall be the number of shares
of Common Stock issued and outstanding (on a fully-diluted basis) immediately
prior to such issuance plus the number of Additional Shares of Common Stock so
issued. Upon each such adjustment of the then-applicable Exercise Price pursuant
to the provisions of this Section 3.3(3), the number of Warrant Shares
purchasable upon the exercise of each Warrant shall be adjusted to the nearest
full amount by multiplying a number equal to the Exercise Price in effect
immediately prior to such adjustment by the number of Warrant Shares purchasable
upon the exercise of each Warrant immediately prior to such adjustment and
dividing the product so obtained by the adjusted Exercise Price.
(4) ADJUSTMENT OF EXERCISE PRICE UPON ADVERSE MARKET
CONDITIONS. Notwithstanding anything to the contrary contained herein, if at any
time after the Original Issue Date, the average of the closing bid prices of the
Common Stock for any ten (10) consecutive trading days (the "Ten-Day Average")
shall be less than the product obtained by multiplying (x) seventy-five (75%)
percent times (y) the Exercise Price otherwise then in effect (the "Adverse
Market Price"), then such Ten-Day Average may, subject to the terms of this
Section 3.3(4), become and constitute the adjusted Exercise Price (the "Adjusted
Exercise Price"), and the Warrants may be exercised, in whole or in part, by the
Warrant Holder at the Adjusted Exercise Price. To exercise all or any portion of
the Warrants at the Adjusted Exercise Price, the Warrant Holder shall (i)
deliver written notice (the "Adverse Market Price Notice") of such intent to the
Company during such time as the Ten-Day Average shall remain equal to or below
the Adverse Market Price and (ii) provide payment by cash or wire transfer of
immediately available funds in respect of such Warrants to be exercised to the
Company within five (5) trading days after delivery of the Adverse Market Price
Notice. The Ten-Day Average based on the ten (10) consecutive trading days
ending on the date that the Adverse Market Price Notice shall have been
delivered by the Warrant Holder shall be the Adjusted Exercise Price, unless (A)
the Warrant Holder shall not deliver the applicable payment by cash or wire
transfer within the five (5) trading days following delivery of the Adverse
Market Price Notice or (B) the Warrant Holder shall have provided a new Adverse
Market Price Notice during such five (5) trading days period, in which case the
Adjusted Exercise Price shall be adjusted based on the Ten-Day Average preceding
such new Adverse Market Price Notice. The provisions of this Section 3.3(4)
shall continue until all of the Warrants shall have been exercised. The number
of Warrant Shares shall not be adjusted as a result of any adjustment of the
then-applicable Exercise Price pursuant to the provisions of this Section
3.3(4).
(5) DETERMINATION OF CONSIDERATION. For purposes of this
Section 3, the consideration received by the Company for the issue of any
Additional Shares of Common Stock shall be computed as follows:
(A) CASH AND PROPERTY. Such consideration shall:
(i) insofar as it consists of cash, be computed
at the net amount of cash received by the Company excluding expenses, discounts
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and commissions payable by the Company in connection with such issuance or sale
and amounts paid or payable for accrued interest.
(ii) insofar as it consists of property other
than cash, be computed at the fair value thereof at the time of such issue, as
reasonably determined in good faith by the Board of Directors net of expenses as
set forth in clause (i) above; and
(iii) in the event Additional Shares of Common
Stock are issued together with other shares or securities or other assets of the
Company for consideration that covers both cash and property other than cash,
the proportion of such consideration so received, computed as provided in
clauses (i) and (ii) above, shall be as reasonably determined in good faith by
the Board of Directors.
(B) OPTIONS AND CONVERTIBLE SECURITIES. The
consideration per share received by the Company for the issuance of Options or
Convertible Securities pursuant to Section 3.3(2) shall be determined by
dividing:
(i) the total amount, received by the Company as
consideration for the issuance of such Options or Convertible Securities, plus
the minimum aggregate amount of additional consideration payable to the Company
upon the exercise of such Options or the conversion or exchange of such
Convertible Securities, or in the case of Options for Convertible Securities,
the exercise of such Options for Convertible Securities and the conversion or
exchange of such Convertible Securities (subject to any adjustments in the
exercise price thereof), by
(ii) the number of shares of Common Stock
issuable upon the exercise of such Options or the conversion or exchange of such
Convertible Securities or, in the case of Options for Convertible Securities,
the exercise of such Options for Convertible Securities and the conversion or
exchange of such Convertible Securities.
3.4 CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of each
adjustment or readjustment of the Exercise Price pursuant to this Section 3, the
Company, at its expense, shall promptly compute such adjustment or readjustment
of the Exercise Price in accordance with the terms hereof and furnish to each
Holder of Warrants a certificate setting forth such adjustment or readjustment
and showing in detail the facts upon which such adjustment or readjustment is
based, including a statement of (i) the consideration received or deemed to be
received by the Company for any Additional Shares of Common Stock issued or
deemed to have been issued, (ii) the Exercise Price in effect immediately prior
to such adjustment or readjustment, (iii) the number of Additional Shares of
Common Stock issued or deemed to have been issued and (iv) the number of shares
of Common Stock and the amount, if any, of other securities or property that at
the time would be received upon the exercise of the Warrants. The Company shall,
upon the written request at any time of any Holder of Warrants, furnish or cause
to be furnished to such Holder a like certificate setting forth (x) all
adjustments and readjustments of the Exercise Price since the Original Issue
Date and (y) the Exercise Price then in effect.
3.5 ASSURANCES WITH RESPECT TO EXERCISE RIGHTS. The Company shall
not, by amendment of its Certificate of Incorporation or By-laws 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
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observance or performance of any of the terms to be observed or performed
hereunder by the Company, but shall at all times, in good faith, assist in the
carrying out of all the provisions of this Agreement and in taking of all such
actions as may be necessary or appropriate in order to protect the exercise
rights of the Warrant Holder against impairment or dilution.
4. TRANSFERS.
4.1 UNREGISTERED SECURITIES. The Warrant Holder hereby
acknowledges and agrees that the Warrants and the Shares have not been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
and are "restricted securities" under the Securities Act inasmuch as they are
being acquired in a transaction not involving a public offering, and the Warrant
Holder agrees not to sell, pledge, distribute, offer for sale, transfer or
otherwise dispose of the Warrants or any Shares issued upon exercise of the
Warrants in the absence of (a) an effective registration statement under the Act
as to the Warrants or such Shares and registration and/or qualification of the
Warrants or such Shares under any applicable Federal or state securities law
then in effect or (b) an opinion of counsel, reasonably satisfactory to the
Company, that such registration and qualification are not required.
4.2 TRANSFERABILITY. Subject to the provisions of Section 4.1
hereof, the rights under this Agreement are freely transferable, in whole or in
part, by the Warrant Holder, and such transferee shall have the same rights
hereunder as the Warrant Holder.
4.3 WARRANT REGISTER. The Company will maintain a register
containing the names and addresses of the Warrant Holders of the Warrants. Until
any transfer of Warrants in accordance with this Agreement is reflected in the
warrant register, the Company may treat the Warrant Holder as the absolute owner
hereof for all purposes. Any Warrant Holder may change such Warrant Holder's
address as shown on the warrant register by written notice to the Company
requesting such change.
5. NO FRACTIONAL SHARES. Any adjustment in the number of Shares
purchasable hereunder shall be rounded to the nearest whole share.
6. INVESTMENT REPRESENTATIONS. The Warrant Holder agrees and
acknowledges that it is acquiring the Warrants and will be acquiring the Shares
for its own account and not with a view to any resale or distribution other than
in accordance with Federal and state securities laws. The Warrant Holder is an
"accredited investor" within the meaning of Rule 501(a) of Regulation D
promulgated under the Securities Act.
7. COVENANTS AS TO THE SHARES. The Company covenants and agrees that,
subject to Sections 6.2(a) of the Note Purchase Agreement, the shares of Common
Stock issuable upon exercise of the Warrants, will, upon issuance in accordance
with the terms hereof, be duly and validly issued and outstanding, fully paid
and nonassessable, with no personal liability attaching to the ownership
thereof, and free from all taxes, liens and charges with respect to the issuance
thereof imposed by or through the Company; provided, however, that the Company
shall not be required to pay any tax that may be payable in respect of any
transfer involved in the issuance and delivery of any certificates in respect of
such shares in a name other than that of the Warrant Holder and the Company
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shall not be required to issue or deliver such certificates unless or until the
person(s) requesting the issuance thereof shall have paid to the Company the
amount of such tax or it shall be established to the satisfaction of the Company
that such tax has been paid. The Company further covenants and agrees that the
Company will at all times have authorized and reserved, free from preemptive
rights imposed by or through the Company, a sufficient number of shares of
Common Stock to provide for the exercise of the rights represented under this
Agreement.
8. LEGEND. Any certificate evidencing the Shares issuable upon exercise
hereof will bear a legend indicating that such securities have not been
registered under the Securities Act or under any state securities laws and may
not be sold or offered for sale in the absence of an effective registration
statement as to the securities under the Securities Act and any applicable state
securities law or an opinion of counsel reasonably satisfactory to the Company
that such registration is not required.
9. RIGHTS APPLICABLE TO THE WARRANT SHARES. The parties hereby
acknowledge and agree that the Shares, when issued in accordance with the terms
hereof, shall be entitled to all of the same rights and privileges provided to
the Company's capital stock issued upon conversion of the Note, as set forth in
the Note Purchase Agreement.
10. DIVIDENDS AND OTHER DISTRIBUTIONS. In the event that the Company
shall, at any time prior to the exercise of all Warrants, declare a dividend
(other than a dividend consisting solely of shares of Common Stock) or otherwise
distribute to its stockholders any assets, properties, rights, evidence of
indebtedness, securities (other than shares of Common Stock), whether issued by
the Company or by another, or any other thing of value, the Warrant Holder shall
thereafter be entitled, in addition to the shares of Common Stock or other
securities and property receivable upon the exercise thereof, to receive, upon
the exercise of such Warrants, the same property, assets, rights, evidences of
indebtedness, securities or any other thing of value that the Warrant Holder
would have been entitled to receive at the time of such dividend or distribution
as if the Warrants had been exercised immediately prior to such dividend or
distribution. At the time of any such dividend or distribution, the Company
shall make (and maintain) appropriate reserves to ensure the timely performance
of the provisions of this Section 10.
11. MISCELLANEOUS.
11.1 WAIVERS AND AMENDMENTS. This Agreement or any provisions
hereof may be changed, waived, discharged or terminated only by a statement in
writing signed by the Company and by the Warrant Holder.
11.2 GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York.
11.3 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given when delivered by hand or
by facsimile transmission, when telexed, or upon receipt when mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(i) If to the Company:
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The Immune Response Corporation
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
With a copy (which copy shall not constitute notice) to:
Pillsbury Winthrop LLP
00 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(ii) If to the Warrant Holder:
Oshkim Limited Partnership
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx and Xxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
With a copy (which copy shall not constitute notice) to:
Xxxxxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq./Xxxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
11.4 HEADINGS. The headings in this Agreement are for convenience
of reference only, and shall not limit or otherwise affect the terms hereof.
11.5 CLOSING OF BOOKS. The Company will at no time close its
transfer books against the transfer of any Shares issued or issuable upon the
exercise of the Warrants in a manner that interferes with the timely exercise of
the Warrants.
11.6 NO RIGHTS OR LIABILITIES AS A STOCKHOLDER. Subject to Section
6.2(a) of the Note Purchase Agreement, this Agreement shall not entitle the
Warrant Holder hereof to any voting rights or other rights as a stockholder of
the Company with respect to the Shares prior to the exercise of the Warrants. No
provision of this Agreement, in the absence of affirmative action by the Warrant
Holder to purchase the Shares, and no mere enumeration herein of the rights or
privileges of the Warrant 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.
11.7 SUCCESSORS. All the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns and transferees.
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11.8 SEVERABILITY. If any provision of this Agreement shall be held
to be invalid and unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the date first written above.
THE IMMUNE RESPONSE CORPORATION
By:
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Name:
---------------------------------
Title:
--------------------------------
CHESHIRE ASSOCIATES LLC
By:
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Name:
---------------------------------
Title:
--------------------------------
EXHIBIT A
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NOTICE OF EXERCISE
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(To be signed only on exercise of any of the Warrants)
Dated:________________________
To: The Immune Response Corporation
The undersigned, pursuant to the provisions set forth in the attached
Warrant Agreement, hereby irrevocably elects to (check one of the following):
[ ] purchase ____________ shares of Common Stock covered by such
Warrant Agreement and herewith makes a cash payment of $_____________,
representing the full purchase price for such shares at the price per share
provided for in such Warrant Agreement.
[ ] purchase ____________ shares of Common Stock covered by such
Warrant Agreement and herewith delivers ___________ shares of Common Stock
having a Fair Market Value (as defined in such Warrant Agreement) as of the last
trading day preceding the date hereof, of $______, representing the full
purchase price for such shares at the price per share provided for in such
Warrant Agreement.
[ ] acquire in a cashless exercise _____ shares of Common Stock
pursuant to the terms of Section 2.1 of such Warrant Agreement.
Please issue a certificate or certificates representing such shares
of Common Stock in the name of the undersigned or in such other name as is
specified below.
Signature:___________________________
Name (print):________________________
Title (if applicable):_________________
Company (if applicable):_______________
