Contract
EXHIBIT 10.2
THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
COMMONWEALTH BIOTECHNOLOGIES, INC.
FIRST AMENDED AND RESTATED
WARRANT TO PURCHASE SHARES OF COMMON STOCK
April 19, 2002
Void After April 19, 2005
THIS CERTIFIES THAT, for value received, Segerdahl &
Company, Inc. with its principal office at 000 X. Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000, or assigns (the “Holder”), is entitled to subscribe for and purchase at the Exercise Price (defined below) from COMMONWEALTH
BIOTECHNOLOGIES, INC., a Virginia corporation, with its principal office at 000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000 (the “Corporation”) One Hundred Thousand (100,000) shares of the common stock of the Corporation (the “Common
Stock”).
(a) “Exercise Period” shall mean the
period commencing with the date hereof and ending three (3) years from the date hereof, unless sooner terminated as provided below.
(b) “Exercise Price” shall mean Ninety Cents ($0.90) per share, subject to adjustment pursuant to Section 3 below.
(c) “Exercise Shares” shall mean the shares of the Corporation’s Common Stock issuable upon exercise of this Warrant.
(d) “Transaction” shall mean an equity capital financing or recapitalization
of the Corporation, as contemplated by that certain engagement letter, dated April 19, 2002, by and between the Company and Segerdahl & Company, Inc. (the “Engagement Letter”).
(a) A trade of at least one share of the Corporation’s Common Stock shall be executed at a
price equal to or greater than $2.90 for 10 of 20 consecutive trading days during the Exercise Period; and
(b) The Corporation completes a Transaction; provided, however, that for the purposes of this Warrant, (i) the acquisition by the Corporation of certain intellectual property contemplated by the Engagement Letter and (ii)
the completion of a short-term financing of up to $1,000,000 arranged by Segerdahl & Company, Inc. shall not constitute a Transaction.
(a) An executed
Notice of Exercise in the form attached hereto;
(b) Payment of the Exercise Price
either (i) in cash or by check, (ii) by cancellation of indebtedness, or (iii) pursuant to the net exercise provisions in Section 3.1 hereof; and
Upon the exercise of the rights
represented by this Warrant, a certificate or certificates for the Exercise Shares so purchased, registered in the name of the Holder or persons affiliated with the Holder, if the Holder so designates, shall be issued and delivered to the Holder
within a reasonable time after the rights represented by this Warrant shall have been so exercised. The person in whose name any certificate or certificates for Exercise Shares are to be issued upon exercise of this Warrant shall be deemed to have
become the Holder of record of such shares on the date on which this Warrant was surrendered and payment of the Exercise Price was made, irrespective of the date of delivery of such certificate or certificates, except that, if the date of such
surrender and payment is a date when the stock transfer books of the Corporation are closed, such person shall be deemed to have become the Holder of such shares at the close of business on the next succeeding date on which the stock transfer books
are open.
X = Y (A-B)
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A
Where |
X = |
the number of shares of common stock to be issued to the Holder | ||
Y = |
the number of shares of Common 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) | |||
A = |
the fair market value of one share of the Corporation’s Common Stock (at the date of such calculation) | |||
B = |
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
Common Stock shall mean, as of any date, (a) if the Common Stock is listed on a national securities exchange, the closing or opening price as reported for composite transactions for such date, (b) if the Common Stock is not so listed but is traded
on the NASDAQ National Market or SmallCap Market, the closing or opening price as reported on the NASDAQ National Market or SmallCap Market on such date or, if no sale occurred on a trading day, then the mean between the highest bid and the lowest
asked prices as of the close of business on such trading day, as reported on the NASDAQ National Market or SmallCap Market, (c) if the Common Stock is not traded on a national securities exchange or the NASDAQ National Market or SmallCap Market, but
is otherwise traded over-the-counter, the arithmetic average of the highest bid and lowest asked prices on such date as quoted on the National Association of Securities Dealers Automated Quotation System or an equivalent generally accepted reporting
service, (d) if the Corporation completes a transaction in which it ceases to be a publicly-traded company, the highest price paid to the Corporation’s stockholders (on a per share basis) for their Common Stock or (e) if none of the above
apply, a determination made in good faith by the Corporation’s Board of Directors.
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6.1. Whenever the Corporation proposes at any time following the date of this Warrant Agreement to register any of its Common Stock under the
Securities Act of 1933, as amended (the “Securities Act”) (a “Piggyback Registration”) (other than pursuant to form S-4, form S-8 or any successor forms) and the registration form to be used may be used for the registration of
Common Stock issued or issuable by way of exercise of the Warrant (“Registrable Securities”), the Corporation will give prompt written notice to all Holders of the Warrant and Registrable Securities of its intention to effect such a
registration and will include in such registration all Registrable Securities with respect to which the Corporation has received written requests for inclusion therein within 30 days after the date the Corporation’s notice is given to such
holders.
6.2. The Registration Expenses of the Holders of Registrable Securities (as
defined in Section 8 of this Warrant) will be paid by the Corporation in the Piggyback Registration.
6.3. If the Piggyback Registration is an underwritten primary registration on behalf of the Corporation, and the managing underwriters advise the Corporation that in their
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opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such offering within a price range reasonably acceptable to the Corporation, the Corporation will include in such registration (a) first, the securities the Corporation proposes to sell,
(b) second, the Registrable Securities requested to be included therein and any other securities requested to be included therein by other holders entitled to request inclusion of their securities in such registration, pro rata among the holders of
such Registrable Securities and other securities on the basis of the number of Registrable Securities requested to be included therein and any other securities requested to be included therein by other holders entitled to request inclusion of their
securities in such registration, and (c) third, other securities requested to be included in such registration.
6.4. If the Piggyback Registration is an underwritten secondary registration on behalf of holders of the Corporation’s Common Stock, and the managing underwriters advise the Corporation that in their opinion the
number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range reasonably acceptable to the holders initially requesting such registration, the
Corporation will include in such registration (a) first, the securities requested to be included therein by the holders requesting such registration, and (b) the Registrable Securities and any other securities requested to be included in such
registration by other holders entitled to request inclusion of their securities in such registration, pro rata among the holders of such securities on the basis of the number of Registrable Securities requested to be included therein and any other
securities requested to be included therein by other holders entitled to request inclusion of their securities in such registration.
7.1. Prepare and file with the Securities and Exchange Commission a registration statement with
respect to such Registrable Securities and use its best efforts to cause such registration statement to become effective (provided that before filing a registration statement or prospectus or any amendments or supplements thereto, the Corporation
will furnish to the Holders of the Registrable Securities covered by such registration statement copies of all such documents proposed to be filed);
7.2. Prepare and file with the Securities and Exchange Commission such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of not less than 180 days and comply with the provisions of the Securities Act with respect to the disposition of all securities
covered by such registration statement during such period in accordance with the intended methods of disposition by the Holders set forth in such registration statement;
7.3. Furnish to each seller of Registrable Securities such number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including each preliminary prospectus) and such other documents as such Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such
seller;
7.4 Use its best efforts to register or qualify such Registrable Securities
under such other securities or blue sky laws of such jurisdictions as any Holder requests and do any and all other acts and things which may necessary or advisable to enable such Holder to
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consummate the disposition in such jurisdictions of the Registrable Securities
owned by such Holder (provided that the Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify, (ii) subject itself to taxation in any such jurisdiction or
(iii) consent to general service of process in any such jurisdiction);
7.5. Promptly
notify each Holder of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such Holder, the Corporation will prepare a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
7.6. Use its best efforts to cause all such Registrable Securities to be listed on each securities
exchange or the inter-dealer quotation system on which Common Stock issued by the Corporation is then listed, if any;
7.7. Provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
7.8. Enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Holders of
a majority of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, including, without limitation, in the event that such securities
are being sold through underwriters, furnishing on the date that such Registrable Securities are delivered to such underwriters for sale, an opinion of legal counsel and a letter from the Corporation’s auditors, dated as of such date, in form
and substance as is customarily given to underwriters in an underwritten public offering, addressed to such underwriters;
7.9. Subject to obtaining a confidentiality agreement in reasonably acceptable form, make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant
to such registration statement and any attorney, accountant or other agent retained by such Holder or underwriter, all financial and other records, pertinent corporate documents and properties of the Corporation, and cause the Corporation’s
officers, directors, employees, independent accountants and attorneys to supply all information requested by any such Holder, underwriter, attorney, accountant or agent in connection with such registration statement;
7.10. Permit any Holder of Registrable Securities which Holder, in its sole exclusive judgment, might be deemed
to be an underwriter or a controlling person of the Corporation, to participate in the preparation of such registration or comparable statement and to require the insertion therein of material relating to such Holder, furnished to the Corporation in
writing, which in the reasonable judgment of such Holder and its counsel should be included; and
7.11. In the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of
any Common Stock included in such registration statement for sale in any jurisdiction, the Corporation will use its best efforts promptly to obtain the withdrawal of such order.
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(a) The Holder understands that the Warrant and the Exercise Shares have not been registered under the Securities 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.
(b) The Holder recognizes that the Warrant and the Exercise Shares must be held indefinitely unless
they are subsequently registered under the Securities Act or an exemption from such registration is available. The Holder recognizes that, except as provided herein, the Corporation has no obligation to register the Warrant or the Exercise Shares of
the Corporation, or to comply with any exemption from such registration.
(a) The
Holder further agrees not to make any disposition of all or any part of the Warrant or Exercise Shares in any event unless and until:
(i) The Corporation shall have received a letter secured by the Holder from the Securities and Exchange Commission stating that no action will be recommended to the Commission with respect
to the proposed disposition; or
(ii) There is then in effect a registration statement
under the Securities Act covering such proposed disposition and such disposition is made in accordance with said registration statement; or
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(iii) The Holder shall have notified the Corporation
of the proposed disposition and shall have furnished the Corporation with a reasonably detailed statement of the circumstances surrounding the proposed disposition, and if reasonably requested by the Corporation, the Holder shall have furnished the
Corporation with an opinion of counsel, reasonably satisfactory to the Corporation, for the Holder to the effect that such disposition will not require registration of such Warrant or Exercise Shares under the Securities Act or any applicable state
securities laws.
(b) The Holder understands and agrees that all certificates
evidencing the shares to be issued to the Holder may bear the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY
TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
(c) The Holder hereby
agrees not to sell or otherwise transfer or dispose of all or any part of this Warrant or the Exercise Shares during a period specified by the representative of the underwriters of Common Stock (not to exceed one hundred eighty (180) days) following
the effective date of the registration statement of the Corporation filed under the Securities Act. Holder further agrees that the Corporation may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions
until the end of such period.
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otherwise as it may reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of
like denomination and tenor as the Warrant so lost, stolen, mutilated or destroyed. Any such new Warrant shall constitute an original contractual obligation of the Corporation, whether or not the allegedly lost, stolen, mutilated or destroyed
Warrant shall be at any time enforceable by anyone.
if to the Corporation,
Commonwealth Biotechnologies, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx
00000
Telephone: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Ph.D.
with a copy to:
Xxxx Xxxxx LLP
901 X. Xxxx Street, Suite 0000
Xxxxxxxxxx Xxxxx—Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telephone: (000)
000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esquire
if to the Holder:
Segerdahl & Company, Inc.
000 X. Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
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or at such other address as one party may furnish to the other in writing. Notice shall be deemed effective on the date dispatched if by
personal delivery, telecopy, telex or telegram, two (2) days after mailing if by express mail, or three (3) days after mailing if by first-class mail.
22. GOVERNING LAW. This Warrant and all rights, obligations and liabilities hereunder shall be governed by the laws of the Commonwealth of Virginia.
[SIGNATURE PAGE FOLLOWS]
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COMMONWEALTH BIOTECHNOLOGIES, INC. | ||
By: |
/s/ XXXXXX X. XXXXXX,
PH.D. | |
President and Chief Executive Officer |
ATTEST: |
/s/ XXXXXX X. XXXXXXXX |
Secretary |
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NOTICE OF EXERCISE
TO: COMMONWEALTH BIOTECHNOLOGIES, INC.
(1) = The undersigned hereby elects to purchase shares of Common Stock of Commonwealth Biotechnologies, Inc. (the “Corporation”) 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 the Corporation pursuant to the terms of the net exercise provisions set forth in 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 aware of the Corporation’s business affairs and financial condition and has acquired sufficient information about the Corporation to reach an informed and knowledgeable decision regarding its
investment in the Corporation; (iii) 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; (iv) 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; and (v) the undersigned agrees not to make
any disposition of all or any part of the aforesaid shares of Common Stock unless and until there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with
said registration statement, or the undersigned has provided the Corporation with an opinion of counsel reasonably satisfactory to the Corporation, stating that such registration is not required.
(Signature) |
Print name of Holder |
(Date) |
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ASSIGNMENT FORM
(To assign the foregoing Warrant, execute
this form and supply required information.
Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name:
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(Please Print) | ||
Address:
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(Please Print) | ||
Dated:
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Holder’s Signature:
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Holder’s Address:
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NOTE: The signature to this Assignment Form must
correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of
authority to assign the foregoing Warrant.
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