EXHIBIT 10.12
2004 WARRANT AGREEMENT
THIS WARRANT AGREEMENT (the "Agreement"), dated as of September 14, 2004,
is made and entered into by and between CHEMOKINE THERAPEUTICS CORP., a Delaware
corporation (the "Company"), and PHARMACEUTICAL PRODUCT DEVELOPMENT, INC. (the
"Warrantholder").
This Agreement is executed and delivered pursuant to the terms and
conditions of that certain Modification and Waiver Agreement of even date by and
between the Company and the Warrantholder (the "Modification Agreement").
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Modification Agreement. Pursuant to and in accordance with the
terms and conditions of the Modification Agreement, the Company agrees to issue
and sell, and the Warrantholder agrees to purchase, for a purchase price of
$1.00, warrants, as hereinafter described (the "Warrants"), to purchase a number
of shares (the "Shares"), subject to adjustment pursuant to the terms hereof, of
the Company's Common Stock, $.001 par value (the "Common Stock").
In consideration of the foregoing and for the purpose of defining the
terms and provisions of the Warrants and the respective rights and obligations
thereunder, the Company and the Warrantholder, for value received, hereby agree
as follows:
Section 1. Transferability and Form of Warrants.
1.1 Registration. The Warrants shall be numbered and shall be
registered on the books of the Company when issued. The Company may deem and
treat the Warrantholder of record as the owner of the Warrants for the purpose
of any exercise thereof and any distribution to the holder thereof and for all
other purposes.
1.2 Transfer. The Warrants shall be transferable in whole or in part
only on the books of the Company maintained at its principal office in
Vancouver, British Columbia, or wherever its principal office may then be
located, upon delivery thereof duly endorsed by the Warrantholder or by its duly
authorized attorney or representative, accompanied by proper evidence of
succession, assignment or authority to transfer, and if reasonably determined by
counsel to the Company, an opinion of counsel reasonably satisfactory to the
Company that such transfer is exempt from registration under the Securities Act
of 1933, as amended (the "Act"). Upon any registration of transfer, the Company
shall execute and deliver new Warrants to the person or persons entitled
thereto, and the surrendered Warrants shall be canceled by the Company.
1.3 Transfer of the Warrants. The Warrants are freely transferable
by the Warrantholder, subject to applicable requirements of state and federal
securities laws and regulations and Section 1.5. The Warrants may be divided or
combined, upon request to the Company by the Warrantholder, into a certificate
or certificates representing the right to purchase the same aggregate number of
Shares. Unless the context indicates otherwise, the term "Warrantholder" shall
include any transferee or transferees of the Warrants pursuant to this
subsection 1.3, and the term "Warrants" shall include any and all warrants
outstanding pursuant to this Agreement, including those evidenced by a
certificate or certificates issued upon division, exchange,
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substitution or transfer pursuant to this Agreement. The Warrantholder agrees
that prior to making any disposition of the Warrants or the Shares, the
Warrantholder shall give written notice to the Company describing briefly the
manner in which any such proposed disposition is to be made; and no such
disposition shall be made if the Company has notified the Warrantholder that, in
the opinion of counsel selected by the Company, a registration statement or
other notification or post-effective amendment thereto (hereinafter collectively
a "Registration Statement") under the Act is required with respect to such
disposition and no such Registration Statement has been filed by the Company
with, and declared effective, if necessary, by, the Securities and Exchange
Commission (the "Commission").
1.4 Form of Warrants. The text of the Warrants and the form of
election to purchase Shares shall be substantially as set forth in Exhibit A
attached hereto. The number of Shares issuable upon exercise of the Warrants is
subject to adjustment upon the occurrence of certain events, all as hereinafter
provided. The Warrants shall be executed on behalf of the Company by its
President or by a Vice President. A Warrant bearing the signature of an
individual who was at the time of signature the proper officer of the Company
shall bind the Company, notwithstanding that such individual shall have ceased
to hold such office prior to the delivery of such Warrant or did not hold such
office on the date of this Agreement.
The Warrants shall be dated as of the date of signature thereof by
the Company either upon initial issuance or upon division, exchange,
substitution or transfer.
1.5 Legend on Shares. Each Warrant certificate and certificate of
Shares initially issued upon exercise of the Warrants shall bear the following
legend, unless, at the time of exercise, such Shares are subject to a currently
effective registration statement under the Act:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY
NOT BE SOLD, EXCHANGED, HYPOTHECATED OR TRANSFERRED IN ANY MANNER EXCEPT
PURSUANT TO A REGISTRATION OR AN EXEMPTION FROM SUCH REGISTRATION AND IN
COMPLIANCE WITH THE AGREEMENT PURSUANT TO WHICH THEY WERE ISSUED."
Any certificate issued at any time in exchange or substitution for
any certificate bearing such legend (except a new certificate issued upon
completion of a public distribution pursuant to a registration statement under
the Act, of the securities represented thereby) shall also bear the above legend
unless, in the opinion of the Company's counsel, the securities represented
thereby need no longer be subject to such restrictions. In addition, if the
Shares deliverable upon exercise of any Warrants are not subject to a currently
effective Registration Statement under the Act, the Warrantholder shall deliver
to the Company such representations and certifications as the Company, or the
Company's counsel, shall reasonably require in order to comply with applicable
federal and state securities laws for the issuance of such Shares.
Section 2. Exchange of Warrant Certificate. Any Warrant certificate
may be exchanged for another certificate or certificates entitling the
Warrantholder to purchase a like aggregate number of Shares as the certificate
or certificates surrendered then entitled the Warrantholder to
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purchase. Any Warrantholder desiring to exchange a Warrant certificate shall
make such request in writing delivered to the Company, and shall surrender,
properly endorsed, the certificate evidencing the Warrant to be so exchanged.
Thereupon, the Company shall execute and deliver to the person or persons
entitled thereto a new Warrant certificate as so requested and the Warrants so
surrendered for exchange shall be canceled by the Company.
Section 3. Term of Warrants; Exercise of Warrants.
3.1 Subject to the terms of this Agreement, the Warrantholder shall
have the right, at any time during the period commencing at 9:00 a.m., Pacific
Time, on the date of the closing of the IPO, which shall be deemed closed for
purposes of this Agreement at such time as Chemokine shall issue a minimum of
eight million shares of common stock registered under the SB-2 Registration
Statement for the IPO ("IPO Closing Date") of the Company's initial public
offering ("IPO") pursuant to an effective registrations statement filed on Form
SB-2 on August 2, 2004, and ending at 5:00 p.m., Pacific Time, on the Warrant
Termination Date, which shall be 36 months after IPO Closing Date, to purchase
from the Company up to the number of fully paid and nonassessable Shares to
which the Warrantholder may at the time be entitled to purchase pursuant to this
Agreement, upon surrender to the Company, at its principal office, of the
certificate evidencing the Warrants to be exercised, together with the purchase
form on the reverse thereof duly filled in and signed, and upon payment to the
Company of the Warrant Price (as defined in and determined in accordance with
the provisions of this Section 3 and Sections 7 and 8 hereof), for the number of
Shares in respect of which such Warrants are then exercised, but in no event for
less than 100 Shares (unless less than an aggregate of 100 Shares are then
purchasable under all outstanding Warrants held by a Warrantholder). Payment of
the aggregate Warrant Price shall be made in cash, by check, or as set forth in
Section 3.3.
3.2 The Warrants shall be exercisable, at the election of the
Warrantholder, either in full or from time to time in part. Any Warrants not
surrendered to the Company for exercise in accordance with Section 3.1 prior to
5:00 p.m., Pacific Time, on the Warrant Termination Date shall be void.
3.3 The Warrants shall be deemed to have been exercised immediately
prior to the close of business on the date of their surrender for exercise as
provided above, and the person entitled to receive the Shares issuable upon such
exercise shall be treated for all purposes as the holder of record of such
shares as of the close of business on such date. As promptly as practicable on
or after such date and in any event within ten (10) days thereafter, the Company
at its expense shall issue and deliver to the person or persons entitled to
receive the same a certificate or certificates for the number of full Shares
issuable upon such exercise together with cash, as provided in Section 9 hereof,
in respect of any fractional Shares otherwise issuable upon such surrender;
provided that if the Shares deliverable upon exercise of any Warrants are not
subject to a currently effective Registration Statement under the Act, the
Warrantholder has delivered such representations and certifications as the
Company, or the Company's counsel, may reasonably require pursuant to Section
1.5 hereof. If the Warrants are exercised in part, the Company at its expense
will execute and deliver new Warrants of like tenor exercisable for the number
of Shares for which the Warrants may then be exercised.
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3.4 In lieu of exercising the Warrants, the Warrantholder may elect
to receive Shares equal to the value of the Warrants (or the portion thereof
being canceled) by the surrender of the Warrants at the principal office of the
Company together with notice of such election in which event the Company shall
issue to the Warrantholder a number of shares of Common Stock computed using the
following formula:
Y (A - B)
X = ---------
A
Where
X - The number of Shares to be issued to Warrantholder.
Y - The number of Shares purchasable under the Warrant, or if only a
portion of the Warrant is being exercised, the portion of the Warrant being
canceled on such date.
A - The Current Market Price of one share of the Company's Common
Stock (as defined in below).
B - Warrant Price (as adjusted to the date of such calculations).
For purposes of this Agreement, the term, "Current Market Price"
shall mean the average of the per share closing bid prices of the Company's
Common Stock quoted in the Over-the-Counter Market summary or the average of the
per share closing prices quoted on the TSX, the TSX Venture Exchange, or the
NASDAQ National Market, or on any exchange on which the Common Stock is listed,
whichever is applicable, as published in the Western Edition of the Wall Street
Journal, or other Canadian national newspaper (or, if not so reported, as
otherwise reported by the TSX Group or the NASDAQ System) for five (5) trading
days prior to the date notice of exercise is given to the Company. If trading in
the Common Stock is not reported by the NASDAQ system, the bid price referred to
above shall be the average of the lowest bid price for five (5) trading days as
reported in the "pink sheets" published by the National Quotation Bureau,
Incorporated. If the Common Stock is quoted on the NASDAQ National Market or
listed on any exchange, the closing price referred to above shall be the last
reported sales price or, in case no such reported sale takes place on such day,
the average of the reported closing bid and asked prices.
Section 4. Payment of Taxes. The Company will pay all documentary
stamp taxes, if any, attributable to the initial issuance of the Warrants or the
Shares; provided, however, that the Company shall not be required to pay any tax
which may be payable with respect to any secondary transfer of the Warrants or
the Shares.
Section 5. Mutilated or Missing Warrants. In case the certificate or
certificates evidencing the Warrants shall be mutilated, lost, stolen or
destroyed, the Company shall, at the request of the Warrantholder, issue and
deliver in exchange and substitution for and upon cancellation of the mutilated
certificate or certificates, or in lieu of and substitution for the certificate
or certificates lost, stolen or destroyed, a new Warrant certificate or
certificates of like
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tenor and representing an equivalent right or interest, but only upon receipt of
evidence satisfactory to the Company of such loss, theft or destruction of such
Warrant.
Section 6. Reservation of Shares. There has been reserved, and the
Company shall at all times keep reserved so long as the Warrants remain
outstanding, (i) out of its authorized Common Stock, such number of Shares of
Common Stock as shall be subject to purchase under the Warrants.
Section 7. Warrant Price. The price per Share at which Shares shall
be purchasable upon the exercise of the Warrants (the "Warrant Price") shall be
equal to the IPO price per share on the IPO Closing Date subject to further
adjustment pursuant to Section 8 hereof.
Section 8. Adjustments. The number and kind of securities
purchasable upon the exercise of the Warrants and the Warrant Price shall be
subject to adjustment from time to time upon the happening of certain events, as
follows:
8.1 Mergers, Consolidations or Sale of Assets. If at any time there
shall be a capital reorganization (other than a combination or subdivision of
Common Stock otherwise provided for herein), or a merger or consolidation of the
Company with or into another corporation, or the sale of the Company's
properties and assets as, or substantially as, an entirety to any other person,
then, as a part of such reorganization, merger, consolidation or sale, lawful
provision shall be made so that the Warrantholder shall thereafter be entitled
to receive upon exercise of the Warrants and payment of the Warrant Price, the
number of Shares of Common Stock or other securities or property of the Company
or the successor corporation resulting from such reorganization, merger,
consolidation or sale, to which a holder of the Shares deliverable upon exercise
of the Warrants would have been entitled under the provisions of the agreement
in such reorganization, merger, consolidation or sale if the Warrants had been
exercised immediately before consummation of such reorganization, merger,
consolidation or sale. In any such case, appropriate adjustment (as determined
in good faith by the Company's Board of Directors) shall be made in the
application of the provisions of the Warrants with respect to the rights and
interests of the Warrantholder after the reorganization, merger, consolidation
or sale to the end that the provisions of the Warrants (including adjustment of
the Warrant Price then in effect and the number of Shares) shall be applicable
after that event, as near as reasonably may be, in relation to any shares or
other property deliverable after that event upon exercise of the Warrants.
8.2 Splits, Subdivisions and Dividends. In the event the Company
should at any time or from time to time fix a record date for the effectuation
of a split or subdivision of the outstanding Shares of Common Stock or the
determination of the holders of Common Stock entitled to receive a dividend or
other distribution payable in additional Shares of Common Stock or other
securities or rights convertible into, or entitling the holder thereof to
receive directly or indirectly, additional Shares of Common Stock (hereinafter
referred to as the "Common Stock Equivalents") without payment of any
consideration by such holder for the additional Shares of Common Stock or Common
Stock Equivalents (including the additional Shares of Common Stock issuable upon
conversion or exercise thereof), then, as of such record date (or the date of
such distribution, split or subdivision if no record date is fixed), the per
share Warrant Price shall be appropriately decreased and the number of Shares
shall be appropriately increased in proportion to such increase
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of outstanding shares so that the Warrantholder would have the number of shares
to which a holder of the Shares deliverable upon exercise of the Warrants would
have been entitled had the warrants been exercised immediately prior to such
split, subdivision or dividend for the same aggregate price as would have been
paid immediately prior to such split, subdivision or dividend.
8.3 Combination or Reverse Split of Shares. If the number of Shares
of Common Stock outstanding at any time after the date hereof is decreased by a
combination of, or a reverse split affecting, the outstanding Shares of Common
Stock, the Warrant Price shall be appropriately increased and the number of
Shares shall be appropriately decreased in proportion to such decrease in
outstanding shares so that the Warrantholder would have the number of shares to
which a holder of the Shares deliverable upon exercise of the Warrants would
have been entitled had the warrants been exercised immediately prior to such
combination or reverse split for the same aggregate price as would have been
paid immediately prior to such combination or reverse split.
8.4 No Adjustment. No adjustment in the number of Shares purchasable
pursuant to the Warrants shall be required unless such adjustment would require
an increase or decrease of at least one percent in the number of Shares then
purchasable upon the exercise of the Warrants or, if the Warrants are not then
exercisable, the number of Shares purchasable upon the exercise of the Warrants
on the first date thereafter that the Warrants become exercisable; provided,
however, that any adjustments which by reason of this subsection 8.4 are not
required to be made immediately shall be carried forward and taken into account
in any subsequent adjustment.
8.5 Notice of Adjustment. Whenever the number of Shares purchasable
upon the exercise of the Warrants is adjusted as herein provided, the Company
shall cause to be promptly mailed to the Warrantholder by first class mail,
postage prepaid, notice of such adjustment and a certificate of the chief
financial officer of the Company setting forth the number of Shares purchasable
upon the exercise of the Warrants and the Warrant Price after such adjustment, a
brief statement of the facts requiring such adjustment and the computation by
which such adjustment was made.
Section 9. Fractional Interests; Current Market Price. The Company
shall not be required to issue fractional Shares on the exercise of the
Warrants. If any fraction of a Share would, except for the provisions of this
Section 9, be issuable on the exercise of the Warrants (or specified portion
thereof), the Company shall pay an amount in cash equal to the then Current
Market Price multiplied by such fraction. For purposes of this Agreement, the
term, "Current Market Price" shall mean the average of the per share closing bid
prices of the Company's Common Stock quoted in the Over-the-Counter Market
summary or the average of the per share closing prices quoted on the TSX, the
TSX Venture Exchange, or the NASDAQ National Market or on any exchange on which
the Common Stock is listed, whichever is applicable, as published in the Western
Edition of the Wall Street Journal, or other Canadian national newspaper (or, if
not so reported, as otherwise reported by the TSX Group or the NASDAQ System)
for five (5) trading days prior to the date notice of exercise is given to the
Company. If trading in the Common Stock is not reported by the NASDAQ system,
the bid price referred to above shall be the average of the lowest bid price for
five (5) trading days as reported in the "pink sheets" published by the National
Quotation Bureau, Incorporated. If the Common Stock is quoted on the NASDAQ
National Market or listed on any exchange, the closing price referred to above
shall be the last reported
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sales price or, in case no such reported sale takes place on such day, the
average of the reported closing bid and asked prices.
Section 10. No Rights as Stockholders; Notices to Warrantholders.
Nothing contained in this Agreement or in the Warrants shall be construed as
conferring upon the Warrantholder or its respective transferees any rights as a
stockholder of the Company, including the right to vote, receive dividends,
consent or receive notices as a stockholder in respect of any meeting of
stockholders for the election of directors of the Company or any other matter.
If, however, at any time prior to the expiration of the Warrants and prior to
their exercise, any one or more of the following events shall occur:
(a) any action which would require an adjustment pursuant to Section
8; or
(b) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation, merger or sale of its property, assets
and business as an entirety or substantially as an entirety) shall be proposed:
then the Company shall give notice in writing of such event to the
Warrantholder, as provided in Section 14 hereof, at least 20 days prior to the
date fixed as a record date or the date of closing the transfer books for the
determination of the stockholders entitled to any relevant dividend,
distribution, subscription rights or other rights or for the determination of
stockholders entitled to vote on such proposed dissolution, liquidation or
winding up. Such notice shall specify such record date or the date of closing
the transfer books, as the case may be. The failure to mail or receive such
notice or any defect therein shall not affect the validity of any action taken
with respect thereto.
Section 11. Registration Rights.
11.1 Company Registration. If the Company has a then-current
registration statement at the time that the Warrantholder decides to exercise
its Warrants under which the registration of the Shares is permissible, the
Warrantholder may notify the Company of its intent to exercise its Warrants and
its desire that the Shares be included in such registration statement. If,
acting with reasonable promptness upon receipt of such notice, the Company is
able to amend the registration statement to include the Shares within the time
period that the registration would otherwise remain effective, then the Company
shall amend such registration statement to include such Shares. If the Company
is eligible to use Form S-3, and the Company does not have a then-current
registration statement that could be amended to include the Shares, then the
Company shall register the Shares on Form S-3.
11.2 Expenses. All fees, disbursements and out-of-pocket expenses in
connection with the filing or amendment of any registration statement or Form
S-3 under this Section 11 (or obtaining the opinion of counsel and any no-action
position of the Commission with respect to sales under Rule 144) and in
complying with applicable securities and Blue Sky laws shall be borne by the
Company including reasonable fees of one counsel for the holders of the Shares;
provided, however, that such reasonable fees shall not exceed $5,000, and that
the Company shall be required to comply with the Blue Sky laws only in the state
of New York and two other states
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to be designated by the Warrantholder. The Company at its expense will supply
any holder of the Shares with copies of such registration statement and the
prospectus included therein and other related documents, and any opinions and
no-action letters in such quantities as may be reasonably requested by the
holder of the Shares.
11.3 The Company agrees that until all Shares have been sold under a
registration statement or pursuant to Rule 144 under the Act, it will keep
current in filing all materials required to be filed with the Commission in
order to permit the holders of such securities to sell the same under Rule 144.
Section 12. Indemnification.
12.1 In the event of the filing or amendment of any
registration statement with respect to the Shares pursuant to Section 11 hereof,
the Company will indemnify the holder of the Shares, its officers, directors and
partners, legal counsel and accountants and each person controlling such holder
of the Shares within the meaning of Section 15 of the Act, with respect to which
registration, qualification or compliance has been effected pursuant to Section
11 hereof, against all expenses, claims, losses, damages and liabilities (or
actions, proceedings or settlements in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular or other document (including any
related registration statement, notification or the like) 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 not misleading, or any violation by the
Company of the Act or any rule or regulation thereunder applicable to the
Company and relating to action or inaction required of the Company in connection
with any such registration, qualification or compliance, and will reimburse such
holder of the Shares, its officers, directors, partners, legal counsel and
accountants and each person controlling such holder of the Shares, for any legal
and any other expenses reasonably incurred in connection with investigating and
defending or settling any such claim, loss, damage, liability or action,
provided 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 based upon written information furnished to the
Company by the holder of the Shares and stated to be specifically for use
therein.
12.2 The holder of the Shares will, if the Shares held by it
are included in the securities as to which such registration, qualification or
compliance is being effected or amended, indemnify the Company, each of its
directors, officers, partners, legal counsel and accountants against all claims,
losses, damages and liabilities (or actions, proceedings, or settlements 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, prospectus, offering circular or other offering document, or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company, its directors, officers, partners, legal counsel and
accountants, for any legal or any other expenses reasonably 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
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registration statement, prospectus, offering circular or other offering document
in reliance upon and in conformity with written information furnished to the
Company by the holder of the Shares specifically for use in such registration
statement, prospectus, offering circular or other offering document; provided,
however, that the obligations of the holder of the Shares hereunder shall not
apply to amounts paid in settlement of any such claims, losses, damages or
liabilities (or actions in respect thereof) if such settlement is effected
without the consent of the holder of the Shares (which consent shall not be
unreasonably withheld).
12.3 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 claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 12, to the extent such
failure is not prejudicial. 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 to 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 defense of such claim and litigation resulting therefrom.
Section 13. Contribution. If the indemnification provided for in
Section 12 is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or expense
referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand and of the Indemnified Party on the other
in connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
Section 14. Notices. Any notice pursuant to this Agreement by the
Company or by a Warrantholder or a holder of Shares shall be in writing and
shall be deemed to have been duly given on the date of delivery or refusal
indicated on the return receipt if delivered or mailed by certified mail, return
receipt requested:
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(a) If to the Warrantholder or a holder of Shares addressed to
Pharmaceutical Product Development, Inc., 0000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, XX
00000; Attention: President.
(b) If to the Company addressed to it at McGuardian Bldg, 0000 Xxxx
Xxxx, Xxxx 000, Xxxxxxxxx, XX X0X 0X0, Attention: Xxxxxx Xxxxxx, President.
Each party may from time to time change the address to which notices to it are
to be delivered or mailed hereunder by notice in accordance herewith to the
other party.
Section 15. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company, the Warrantholder, or the
holders of Shares shall bind and inure to the benefit of their respective
successors and assigns hereunder.
Section 16. Merger or Consolidation of the Company. The Company will
not merge or consolidate with or into any other corporation or sell all or
substantially all of its property to another corporation, unless the provisions
of Section 8 are complied with.
Section 17. Applicable Law. This Agreement shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes shall
be construed in accordance with the laws of said State.
Section 18. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company,
the Warrantholder and the holders of Shares any legal or equitable right, remedy
or claim under this Agreement. This Agreement shall be for the sole and
exclusive benefit of the Company, the Warrantholder, and the holders of Shares.
Section 19. Amendments. This Agreement may be amended only by a
written instrument executed by duly authorized representatives of the Company
and the Warrantholder.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed, all as of the day and year first above written.
CHEMOKINE THERAPEUTICS CORP.
By: /s/ Xxxxxx Xxxxxx
------------------------
Name: Xxxxxx Xxxxxx
Title: President
PHARMACEUTICAL PRODUCT DEVELOPMENT, INC.
By: /s/ Xxxx Xxxxxxxxx
--------------------
Title: President
Title: Authorized Officer
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Exhibit A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD,
EXCHANGED, HYPOTHECATED OR TRANSFERRED IN ANY MANNER EXCEPT PURSUANT TO A
REGISTRATION OR AN EXEMPTION FROM SUCH REGISTRATION AND IN COMPLIANCE WITH THE
AGREEMENT PURSUANT TO WHICH THEY WERE ISSUED
Warrant Certificate No. 2
WARRANT TO PURCHASE 500,000 SHARES OF COMMON STOCK
VOID AFTER 5:00 P.M.
PACIFIC TIME ON THE WARRANT TERMINATION DATE
CHEMOKINE THERAPEUTICS CORP.
INCORPORATED UNDER THE LAWS
OF THE STATE OF DELAWARE
This certifies that, for value received, Pharmaceutical Product
Development, Inc., the registered holder hereof or assigns ("Warrantholder"), is
entitled to purchase from Chemokine Therapeutics Corp. (the "Company"), at any
time and from time to time during the period commencing at 9:00 a.m., Pacific
Time, on the IPO Closing Date (as set forth in paragraph 3.1 of the 2004 Warrant
Agreement), and before 5:00 p.m., Pacific Time, on the Warrant Termination Date
(as determined in the 2004 Warrant Agreement), at the purchase price per share
set forth in paragraph 7 of the 2004 Warrant Agreement (the "Warrant Price"),
the number of shares of Common Stock of the Company, par value $.001 per share
("Common Stock"), set forth above (the "Shares"). The number of Shares issuable
upon exercise of each Warrant evidenced hereby and the Warrant Price shall be
subject to adjustment from time to time as set forth in the Agreement referred
to below.
The Warrants evidenced hereby may be exercised in whole or in part by
presentation of this Warrant Certificate with the Purchase Form attached hereto
duly executed and simultaneous payment of the Warrant Price at the principal
office of the Company pursuant to the terms of the Agreement.
The Warrants evidenced hereby represent the right to purchase an aggregate
of up to 500,000 Shares, subject to certain adjustments, and are issued under
and in accordance with a certain 2004 Warrant Agreement, dated as of September
14, 2004 (the "Agreement"), between
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the Company and Warrant Holder and are subject to the terms and provisions
contained in the Agreement, to all of which the Warrantholder by acceptance
hereof consents.
Upon any partial exercise of the Warrants evidenced hereby, there shall be
signed and issued to the Warrantholder a new Warrant Certificate in respect of
the Shares of Common Stock as to which the Warrants evidenced hereby shall not
have been exercised. These Warrants may be exchanged at the office of the
Company by surrender of this Warrant Certificate properly endorsed for one or
more new Warrants of the same aggregate number of Shares of Common Stock as
evidenced by the Warrant or Warrants exchanged. No fractional Shares of Common
Stock will be issued upon the exercise of rights to purchase hereunder, but the
Company shall pay the cash value of any fraction upon the exercise of one or
more Warrants. These Warrants are transferable at the office of the Company in
the manner and subject to the limitations set forth in the Agreement.
This Warrant Certificate does not entitle any Warrantholder to any of the
rights of a stockholder of the Company.
CHEMOKINE THERAPEUTICS CORP.
By:
Xx. Xxxxxx Xxxxxx, President
Dated: September 14, 2004
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CHEMOKINE THERAPEUTICS CORP.
PURCHASE FORM
CHEMOKINE THERAPEUTICS CORP.
00000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx, President
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant Certificate for, and to purchase
thereunder, __________ Shares of Common Stock (the "Shares") provided for
therein, and requests that certificates for the Shares be issued in the name of:
____________________________
(Please Print or Type Name)
____________________________
(Address, including zip code)
____________________________
(Social Security No. or Tax I.D. No.)
and, if said number of Shares shall not be all the Shares purchasable hereunder,
that a new Warrant Certificate for the balance of the Shares purchasable under
the Warrant Certificate be registered in the name of the undersigned
Warrantholder or his Assignee as below indicated and delivered to the address
stated below.
Name of Warrantholder or Assignee: ____________________________
(Please Print)
Address: ____________________________
Signature: __________________________ Dated: _____________________
Note: The signature on this purchase must correspond with the name as it appears
upon the face of the within Warrant Certificate in every particular, without
alteration or enlargement or any change whatever.
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ASSIGNMENT
(To be signed only upon assignment of Warrants)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto the assignee named below all of the rights of the
undersigned represented by the attached Warrant with respect to the number
of Shares covered by the Warrant set forth below:
(Name and Address of Assignee Must Be Printed or Typewritten)
Social Security No.
Name of Assignee or Tax I.D. No. Address No. of Shares
________________ __________________ _______ ______________
and does hereby irrevocably constitute and appoint Attorney to transfer
said Warrants on the books of the Company, with full power of substitution
in the premises.
Dated: ________________
_____________________________________
Signature of Registered Holder
Note: The signature on this assignment must correspond with the names as it
appears upon the face of the within Warrant Certificate in every
particular, without alteration or enlargement or any change whatever.
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