Contract
Exhibit
10.2
THIS
WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR ANY
APPLICABLE STATE LAWS, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED,
ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS
COVERING ANY SUCH TRANSACTION, OR SUCH TRANSACTION IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS, SUCH COMPLIANCE, AT THE
OPTION OF THE CORPORATION, TO BE EVIDENCED BY AN OPINION OF
THE
WARRANT HOLDER'S COUNSEL, IN FORM ACCEPTABLE TO THE CORPORATION, THAT NO
VIOLATION OF SUCH REGISTRATION PROVISIONS WOULD RESULT FROM ANY PROPOSED
TRANSFER OR ASSIGNMENT.
COMMON
STOCK PURCHASE WARRANT
XXXXXX
SYSTEMS, INC.
THIS
CERTIFIES that for good and valuable consideration received, Immunocept LLC,
or
a registered assignee (the “Holder”)
is
entitled, upon the terms and subject to the conditions hereinafter set forth,
to
acquire from Xxxxxx Systems, Inc., a Delaware corporation (the “Corporation”),
up to
225,000 (Two hundred twenty-five thousand) fully paid and nonassessable shares
of common stock, par value $0.001, of the Corporation (“Warrant
Stock”)
at a
purchase price per share (the “Exercise
Price”)
of
$1.50 (the “Warrant”).
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1.
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Term
of Warrant
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Subject
to the terms and conditions set forth herein, this Warrant shall be exercisable,
in whole or in part, at any time on or after the date hereof and at or prior
to
11:59 p.m., Pacific Standard Time, on March 29th, 2013 (the “Expiration
Date”).
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2.
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Exercise
of Warrant.
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The
purchase rights represented by this Warrant are exercisable by the registered
Holder hereof, in whole or in part, at any time and from time to time at or
prior to the Expiration Date by delivery of the following to the office of
the
Corporation specified in Section 13:
(a) A
duly
executed Notice of Exercise in the form attached hereto;
(b) Payment
of the Exercise Price for the shares thereby purchased either (i) by cash or
by
check or bank draft payable to the order of the Corporation, (ii) by
cancellation of indebtedness of the Corporation to the Holder hereof, if any,
at
the time of exercise in an amount equal to the purchase price of the shares
thereby purchased, or (iii) by net exercise pursuant to Section 2.1 hereof;
and
(c) This
Warrant.
Upon
the
exercise of the rights represented by this Warrant, the Holder shall be entitled
to receive from the Corporation a stock certificate in proper form representing
the number of shares of Warrant Stock so purchased.
2.1 Net
Exercise.
Notwithstanding
any provisions herein to the contrary, in the event of a Change of Control
the
Holder may elect, in lieu of exercising this Warrant by payment of cash, to
receive shares equal to the value (as determined below) of this Warrant (or
the
portion hereof being canceled) by surrender of this Warrant at the principal
office of the Corporation together with the properly endorsed Notice of Exercise
in which event the Company shall issue to the Holder, upon consummation of
such
Change of Control, a number of shares of Warrant Stock computed using the
following formula:
X
=
Y
(A-B)
A
| Where X = |
the
number of shares of Warrant Stock to be issued to the
Holder
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|
Y
=
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the
number of shares of Warrant Stock purchasable under the Warrant or,
if
only a portion of the Warrant is being exercised, the portion of
the
Warrant being canceled (at the date of such
calculation)
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A
=
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the
fair market value of one share of the Corporation’s Warrant Stock (at the
date of such calculation)
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|
B
=
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Exercise
Price (as adjusted to the date of such
calculation)
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For
purposes of the above calculation, the fair market value of one share of Warrant
Stock shall be the
value
received in such Change of Control by the holders of the securities as to which
purchase rights under this Warrant exist.
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3.
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Issuance
of Shares; No Fractional Shares of
Scrip.
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Certificates
for shares purchased hereunder shall be delivered to the Holder hereof by the
Corporation's transfer agent at the Corporation's expense within a reasonable
time after the date on which this Warrant shall have been exercised in
accordance with the terms hereof. Each certificate so delivered shall be in
such
denominations as may be requested by the Holder hereof and shall be registered
in the name of such Holder or, subject to applicable laws, such other name
as
shall be requested by the Holder. If, upon exercise of this Warrant, fewer
than
all of the shares of Warrant Stock evidenced by this Warrant are purchased
prior
to the Expiration Date, one or more new warrants substantially in the form
of,
and on the terms in, this Warrant will be issued for the remaining number of
shares of Warrant Stock not purchased upon exercise of this Warrant. The
Corporation hereby represents and warrants that all shares of Warrant Stock
which may be issued upon the exercise of this Warrant will, upon such exercise,
be duly and validly authorized and issued, fully paid and nonassessable and
free
from all taxes, liens and charges in respect of the issuance thereof (other
than
liens or charges created by or imposed upon the Holder of the Warrant Stock).
The Corporation agrees that the shares so issued shall be and will be deemed
to
be issued to such Holder as the record owner of such shares as of the close
of
business on the date on which this Warrant shall have been surrendered for
exercise in accordance with the terms hereof. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. With respect to any fraction of a share called for upon the exercise
of
this Warrant, an amount equal to such fraction multiplied by the then current
price at which each share may be purchased hereunder shall be paid in cash
to
the Holder of this Warrant.
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4.
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Charges,
Taxes and Expenses.
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Issuance
of certificates for shares of Warrant Stock upon the exercise of this Warrant
shall be made without charge to the Holder hereof for any issue or transfer
tax
or other incidental expense in respect of the issuance of such certificate,
all
of which taxes and expenses shall be paid by the Corporation, and such
certificates shall be issued in the name of the Holder of this Warrant or in
such name or names as may be directed by the Holder of this Warrant; provided,
however, that in the event certificates for shares of Warrant Stock are to
be
issued in a name other than the name of the Holder of this Warrant, this Warrant
when surrendered for exercise shall be accompanied by an Assignment Form to
be
provided by the Corporation duly executed by the Holder hereof.
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5.
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No
Rights as Stockholders.
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This
Warrant does not entitle the Holder hereof to any voting rights or other rights
as a stockholder of the Corporation prior to the exercise hereof.
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6.
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Exchange
and Registry of Warrant.
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This
Warrant is exchangeable, upon the surrender hereof by the registered Holder
at
the above mentioned office or agency of the Corporation, for a new Warrant
of
like tenor and dated as of such exchange. The Corporation shall maintain at
the
above-mentioned office or agency a registry showing the name and address of
the
registered Holder of this Warrant. This Warrant may be surrendered for exchange,
transfer or exercise, in accordance with its terms, at such office or agency
of
the Corporation, and the Corporation shall be entitled to rely in all respects,
prior to written notice to the contrary, upon such registry.
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7.
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Loss,
Theft, Destruction or Mutilation of
Warrant.
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Upon
receipt by the Corporation of evidence reasonably satisfactory to it of the
loss, theft, destruction or mutilation of this Warrant and in case of loss,
theft or destruction of indemnity or security reasonably satisfactory to it,
and
upon reimbursement to the Corporation of all reasonable expenses incidental
thereto, and upon surrender and cancellation of this Warrant, if mutilated,
the
Corporation will make and deliver a new Warrant of like tenor and dated as
of
such cancellation, in lieu of this Warrant.
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8.
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Saturdays,
Sundays and Holidays.
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If
the
last or appointed day for the taking of any action or the expiration of any
right required or granted herein shall be a Saturday
or a Sunday or that is a legal holiday, then such action may be taken or such
right may be exercised on the next succeeding
day not a Saturday, Sunday or legal holiday.
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9.
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Merger,
Sale of Assets, Etc.
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If
at any
time prior to the Expiration Date the Corporation proposes to effect an
acquisition of the Corporation by another entity by means of any transaction
or
series of related transactions (including, without limitation, any
reorganization, merger or consolidation) that results in the transfer of 50%
or
more of the outstanding voting power of the Corporation or sell or convey all
or
substantially all of the Corporation’s assets to any other entity (each, a
“Change of Control”), then, as a condition of such Change of Control, the
Corporation or its
successor, as the case may be, shall enter into a supplemental
agreement to make lawful and adequate provision whereby the Holder shall have
the right to receive, upon exercise of the Warrant, the kind and amount of
equity securities which would have been received upon such Change of Control
by
a Holder of a number of shares of common stock equal to the number of shares
issuable upon exercise of the Warrant immediately prior to such Change of
Control. If the property to be received upon such Change of Control is not
equity securities, or in the event of an initial public offering of securities
of the Corporation registered under the Act (whether or not such public offering
would be deemed a Change of Control), the Corporation shall give the Holder
of
this Warrant twenty (20) business days prior written notice of the proposed
effective date of such transaction, and if this Warrant has not been exercised
by or on the effective date of such transaction, it shall terminate.
Notwithstanding the foregoing, in the event of a public offering or Change
of
Control, the Holder shall have the right to deliver a Notice of Exercise to
the
Corporation conditioned upon consummation of such public offering or Change
of
Control transaction (a “Conditional Notice”). In the event of a Conditional
Notice, this Warrant shall be exercised only in the event such transaction
is
consummated, and shall be deemed so exercised immediately prior to the
consummation of such public offering or Change of Control transaction (but
after
giving effect to any adjustment to the Exercise Price).
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10.
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Subdivision,
Combination, Reclassification, Conversion,
Etc.
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If
the
Corporation at any time shall by subdivision, combination, reclassification
of
securities or otherwise, change the Warrant Stock into the same or a different
number of securities of any class or classes, this Warrant shall thereafter
entitle the Holder to acquire such number and kind of securities as would have
been issuable in respect of the Warrant Stock (or other securities which were
subject to the purchase rights under this Warrant immediately prior to such
subdivision, combination, reclassification or other change) as the result of
such change if this Warrant had been exercised in full for cash immediately
prior to such change. The Exercise Price hereunder shall be adjusted if and
to
the extent necessary to reflect such change. If the Warrant Stock or other
securities issuable upon exercise hereof are subdivided or combined into a
greater or smaller number of shares of such security, the number of shares
issuable hereunder shall be proportionately increased or decreased, as the
case
may be, and the Exercise Price shall be proportionately reduced or increased,
as
the case may be, in both cases according to the ratio which the total number
of
shares of such security to be outstanding immediately after such event bears
to
the total number of shares of such security outstanding immediately prior to
such event. The Corporation shall give the Holder prompt written notice of
any
change in the type of securities issuable hereunder, any adjustment of the
Exercise Price for the securities issuable hereunder, and any increase or
decrease in the number of shares issuable hereunder.
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11.
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Transferability; Compliance
with Securities Laws.
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(a) This
Warrant may not be transferred or assigned in whole or in part without
compliance with all applicable federal and state securities laws by the
transferor and transferee (including the delivery of investment representation
letters and legal opinions reasonably satisfactory to the Corporation, if
requested by the Corporation). Subject to such restrictions, prior to the
Expiration Date, this Warrant and all rights hereunder are transferable by
the
Holder hereof, in whole or in part, at the office or agency of the Corporation
referred to in Section 2 hereof. Any such transfer shall be made in person
or by
the Holder's duly authorized attorney, upon surrender of this Warrant together
with the Assignment Form attached hereto properly endorsed.
(b) The
Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant
and
the Warrant Stock issuable upon exercise hereof are being acquired solely for
the Holder's own account and not as a nominee for any other party, and for
investment, and that the Holder will not offer, sell or otherwise dispose of
this Warrant or any shares of Warrant Stock to be issued upon exercise hereof
except under circumstances that will not result in a violation of the Act,
or
any state securities laws. Upon exercise of this Warrant, the Holder shall,
if
requested by the Corporation, confirm in writing, in a form satisfactory to
the
Corporation, that the shares of Warrant Stock so purchased are being acquired
solely for Holder's own account and not as a nominee for any other party, for
investment, and not with a view toward distribution or resale.
(c) The
Holder understands that the Warrant Stock has not been registered under the
Act
on the basis that no distribution or public offering of the stock of the
Corporation is to be effected. The Holder realizes that the basis for the
exemption may not be present if, notwithstanding its representations, the Holder
has a present intention of acquiring the securities for a fixed or determinable
period in the future, selling (in connection with a distribution or otherwise),
granting any participation in, or otherwise distributing the securities. The
Holder has no such present intention.
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(d) Notwithstanding
the foregoing, no registration statement, no-action letter or opinion of counsel
shall be necessary for a transfer, pledge or grant of security interest by
a
holder of a Warrant (or securities issuable upon exercise thereof) (i) to a
fund, partnership, limited liability company, trust, or other entity that is
an
affiliate of such holder, (ii) to a partner or member (or retired partner or
member) of such transferring holder, or to the estate of any such partner or
member (or retired partner or member), (iii) to holder’s spouse, siblings,
lineal descendants or ancestors by gift, will or intestate succession or (iv)
in
compliance with Rule 144(k) (or any successor provision) of the Act so long
as
the Corporation is furnished with satisfactory evidence of compliance with
such
rule; provided, however, that, in the case of (i), (ii) or (iii), the transferee
agrees in writing to be subject to the terms of this Warrant to the same extent
as if he or she were an original holder hereunder.
(e) Each
certificate representing the Warrant Stock or other securities issued in respect
of the Warrant Stock upon any stock split, stock dividend, recapitalization,
merger, consolidation or similar event, shall be stamped or otherwise imprinted
with a legend substantially in the following form (in addition to any legend
required under applicable securities laws):
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR UNLESS THE SALE OR TRANSFER
IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID
ACT.
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12.
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Representations
and Warranties.
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The
Corporation hereby represents and warrants to the Holder hereof
that:
(a) during
the period that this Warrant is outstanding, the Corporation will reserve from
its authorized and unissued common stock a sufficient number of shares to
provide for the issuance of Warrant Stock upon the exercise of this
Warrant;
(b) the
issuance of this Warrant shall constitute full authority to the Corporation's
officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for the shares of Warrant Stock
issuable upon exercise of this Warrant;
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(c) the
Corporation has all requisite legal and corporate power to execute and deliver
this Warrant, to sell and issue the Warrant Stock hereunder, and to carry out
and perform its obligations under the terms of this Warrant;
(d) all
corporate action on the part of the Corporation, its directors and stockholders
necessary for the authorization, execution, delivery and performance of this
Warrant by the Corporation, the authorization, sale, issuance and delivery
of
the Warrant Stock, the grant of registration rights as provided herein and
the
performance of the Corporation's obligations hereunder has been
taken;
(e) the
Warrant Stock, when issued in compliance with the provisions of this Warrant
and
the Corporation's Certificate of Incorporation (as they may be amended from
time
to time), will be validly issued, fully paid and nonassessable, and free of
all
taxes, liens or encumbrances with respect to the issue thereof, and will be
issued in compliance with all applicable federal and state securities laws;
(f) the
issuance of the Warrant Stock will not be subject to any preemptive rights,
rights of first refusal or similar rights;
(g) Except
and to the extent as waived or consented to by the Holder, the Corporation
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 to be observed or performed
hereunder by the Corporation, but will at all times in good faith assist in
the
carrying out of all the provisions of this Warrant and in the taking of all
such
action as may be necessary or appropriate in order to protect the exercise
rights of the Holder against impairment; and
(h) In
the
event of any taking by the Corporation of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend (other than a cash dividend which is the same
as cash dividends paid in previous quarters) or other distribution, the Company
shall mail to the Holder, at least ten (10) days prior to the date the
Corporation plans to take a record of any class of securities for the purpose
of
determining the holders thereof who are entitled to receive any dividend, a
notice specifying the date on which any such record is to be taken for the
purpose of such dividend or distribution.
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13.
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Notices.
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All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be notified,
(b)
when sent by confirmed facsimile if sent during normal business hours of the
recipient, if not, then on the next business day, (c) five (5) days after having
been sent by registered or certified mail, return receipt requested, postage
prepaid, or (d) one (1) business day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification
of
receipt.
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All
communications to the Corporation shall be sent to the following
address:
Xxxxxx
Systems, Inc.
0000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Facsimile:
0-000-000-0000
Attn:
President
and
all
communications to the Holder shall be sent to the following
address:
Immunocept
LLC
0000
Xxxxxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn:
Xxxxx X. Xxxxxx, MD
or
such
other address as the Corporation or Holder may designate by ten (10) days
advance written notice to the other parties hereto.
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14.
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Governing
Law.
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This
Warrant shall be governed by and construed in accordance with the laws of the
State of New York.
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IN
WITNESS WHEREOF, the Corporation has caused this Warrant to be executed by
its
duly authorized officers.
Dated:
March 29, 2007
| XXXXXX SYSTEMS, INC. | ||||
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| By: | /s/ Xxxxxx Xxxxx | |||
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Xxxxxx
X. Xxxxx
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President
and Chief Executive Officer
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9
NOTICE
OF EXERCISE
To: Xxxxxx
Systems, Inc.
(1) □ The
undersigned hereby elects to purchase _______ shares of common stock of Xxxxxx
Systems, Inc. pursuant to the terms of the attached Warrant and tenders herewith
payment of the exercise price in full, together with all applicable transfer
taxes, if any.
□ The
undersigned hereby elects to purchase _______ shares of common stock of Xxxxxx
Systems, Inc. pursuant to the terms of the net exercise provisions set forth
in
Section 2.1 of the attached Warrant, and shall tender payment of all applicable
transfer taxes, if any.
(2) Please
issue a certificate or certificates representing said shares of common stock
in
the name of the undersigned or in such other name as is specified
below:
______________________________________
(Name)
______________________________________
(Address)
(3) The
undersigned represents that (i) the aforesaid shares of common stock are being
acquired for the account of the undersigned for investment and not with a view
to, or for resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling such shares;
(ii) the undersigned is experienced in making investments of this type and
has
such knowledge and background in financial and business matters that the
undersigned is capable of evaluating the merits and risks of this investment
and
protecting the undersigned’s own interests; and (iii) the undersigned
understands that the shares of common stock issuable upon exercise of this
Warrant have not been registered under the Securities Act of 1933, as amended
(the “Securities Act”), by reason of a specific exemption from the registration
provisions of the Securities Act, which exemption depends upon, among other
things, the bona fide nature of the investment intent as expressed herein,
and,
because such securities have not been registered under the Securities Act,
they
must be held indefinitely unless subsequently registered under the Securities
Act or an exemption from such registration is available.
Date:__________________________
______________________________
(Signature)
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