NANOVIRICIDES, INC.
Exhibit
10.2
INVESTOR SUBSCRIPTION AGREEMENT (the
"Subscription Agreement") dated _______________, 2009 between NANOVIRICIDES, INC., a
publicly-owned Nevada corporation with principal offices at 000 Xxxx Xxxxxx,
Xxxx Xxxxx, Xxxxxxxxxxx 00000 (the "Company") and the person or persons
executing this Subscription Agreement on the last page hereof (the
"Subscriber"). All documents mentioned herein are incorporated by
reference.
1. Description of the
Offering. This Offering (the “Offering”) is being made solely
to holders (the “Warrantholders”) of certain of the Company’s warrants,
excluding those purchased in the Company’s offering closed July 7, 2009 (the
“Original Warrants”) to purchase units (the “Units”) consisting of 20,000 shares
of the Company’s common stock, par value $0.001 per share (the “Common Stock”)
and warrants (the “Warrant Shares”) to purchase an additional 20,000 shares of
Common Stock, at an exercise price of $1.00 per share, which expire in three (3)
years. The form of the Warrant is attached hereto as Appendix
“A”. The Units are being offered at the price of $10,000 per Unit
(the “Unit Price”). The Subscriber shall have the right to purchase a
number of Units equal to the amount the Subscriber invested when they acquired
the Original Warrants divided by the Unit Price. This Offering is
made only to Warrantholders that are accredited investors who qualify as
accredited investors pursuant to the suitability standards for investors
described under Regulation D of the Securities Act of 1933, as amended, and who
have no need for liquidity in their investments. The Offering is for a minimum
investment of $10,000, but the Warrantholders must exercise their Original Warrants
by returning the original form thereof along with the exercise price to purchase
all, but not less than all, of the Units equal to the number shares subscribed
for in connection with the Original Subscription unless the Company, in its sole discretion,
accepts fractional subscriptions. Prior to this Offering there was only a
limited public market for the Common Stock and no assurance can be given that a
market will be maintained so that any subscribers in this Offering may avail any
benefit from the same.
THE
SECURITIES OFFERED HEREBY ARE SPECULATIVE AND INVOLVE A HIGH DEGREE OF RISK AND
SHOULD NOT BE PURCHASED BY ANYONE WHO CANNOT AFFORD THE LOSS OF THEIR ENTIRE
INVESTMENT. THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT, OR THE SECURITIES LAWS OF ANY STATE, OR OTHER
JURISDICTION AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. THESE SECURITIES
MAY NOT BE TRANSFERRED, SOLD, PLEDGED, HYPOTHECATED OR ASSIGNED EXCEPT AS
PERMITTED UNDER SUCH ACT OR SUCH APPLICABLE LAWS PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM.
2. Terms of the
Offering. The offering will terminate at 5:00 p.m., Pacific
time, on August 14, 2009, unless extended for up to an additional fifteen (15)
days (the “Termination
Date”) by the Company, in its sole discretion. The Company
believes that Subscribers who elect to purchase the Units may not avail
themselves of the holding period of their Original Subscription in attempting to
sell the Common Stock under Rule 144 of the Securities Act. (The form
of the Notice of Exercise is attached hereto as Exhibit
A.) Therefore, at a minimum, pursuant to Rule 144, the Units will not
be available for resale until at least six months have passed or the Company
files a registration statement to register the Units, which it has no plan or
obligation to do.
1
3. Other Terms of the
Offering. The execution of this Subscription Agreement shall
constitute an offer by the Subscriber to purchase the Units in the amount and on
the terms specified herein. The Subscriber must also complete and
execute the Subscriber Questionnaire attached hereto. The Company
reserves the right, in its sole discretion, to reject in whole or in part, any
subscription offer. If the Subscriber's offer is accepted, the
Company will execute a copy of this Subscription Agreement and return it to
Subscriber. The Company may, in its sole discretion, accept
fractional subscriptions.
4. Subscription
Procedures. Warrantholders who wish to subscribe for the
Offering, must deliver to the Company the Original Warrants, along with
completed and fully executed originals of the Subscription Agreement, Subscriber
Questionnaire and Notice of Exercise. Warrantholders who elect to
purchase Units less than the amount equal to the number shares
subscribed for in connection with the Original Subscription may have their
subscription rejected by the Company, in it sole discretion. The
subscription price, which is $10,000 per Unit, will be payable in full upon
acceptance of the subscription. The Company reserves the right to
accept fractional subscriptions.
5. The Company's Representations and
Warranties. The Company hereby represents and warrants as
follows:
(a) The
Company warrants and covenants that there are no material misstatements or
omissions in this Subscription Agreement or any information provided of the
Offering documents herein;
(b) The
Company is a corporation duly formed and in good standing under the laws of the
State of Nevada with a class of securities pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), with full
power and authority to conduct its business as presently contemplated;
and
(c) The
Company has the power to execute, deliver and perform this Subscription
Agreement and any other agreement contemplated herein;
6. Subscriber's Representations,
Warranties and Covenants. The undersigned understands and
acknowledges that the Units are being offered and sold under one or more of the
exemptions from registration provided for in Section 3(b), 4(2) and 4(6) of the
Securities Act of 1933, as amended (the “Securities Act”) including, Regulation
D promulgated thereunder, that the undersigned acknowledges that the Units are
being purchased without the undersigned being offered or furnished any offering
literature, prospectus or other material, financial or otherwise, and that this
action has not been scrutinized by the United States Securities and Exchange
Commission or by any regulatory authority charged with the administration of the
securities laws of any state or other jurisdiction. The undersigned
hereby further represents and warrants as follows:
(a) The
undersigned confirms that he understands and has fully considered, for purposes
of this investment, the risks of an investment in the Units and understands
that: (i) this investment is suitable only for an investor who is
able to bear the economic consequences or losing his entire investment, (ii) the
purchase of the Units is a speculative investment which involves a high degree
of risk of loss by the undersigned of his entire investment, and (iii) that
there will be no public market for the Units and accordingly, it may not be
possible for him to liquidate his investment in the Units in case of an
emergency;
2
(b) The
Subscriber is an "Accredited Investor" as defined in Rule 501(a) of Regulation D
under the Securities Act. This representation is based on the fact
that the Subscriber, inter alia, is an accredited individual who, together with
the Subscriber’s spouse, have a net worth of at least $1,000,000 or the
Subscriber, individually, has had net income of not less than $200,000 during
the last two years, and reasonably anticipates that the Subscriber will have an
income of at least $200,000 during the present year and the next
year;
(c) If
the Subscriber is a corporation, partnership, trust or any unincorporated
association: (i) the person executing this Subscription Agreement does so with
full right, power and authority to make this investment; (ii) that such entity
was not formed for the specific purpose of making an investment in the Company;
and (iii) that all further representations and warranties made herein are true
and correct with respect to such corporation, partnership, trust and
unincorporated association;
(d) The
address set forth below is the Subscriber's true and correct residence or place
of business, and the Subscriber has no present intention of becoming a resident
of any other state or jurisdiction;
(e) The
Subscriber understands and agrees that the Company prohibits the investment of
funds by any persons or entities that are acting, directly or indirectly, (i) in
contravention of any U.S. or international laws and regulations, including
anti-money laundering regulations or conventions, (ii) on behalf of terrorists
or terrorist organizations, including those persons or entities that are
included on the List of Specially Designated Nationals and Blocked Persons
maintained by the U.S. Treasury Department's Office of Foreign Assets
Control1 ("OFAC"), as such list may be
amended from time to time, (iii) for a senior foreign political figure, any
member of a senior foreign political figure’s immediate family or any close
associate of a senior foreign political figure2, unless the Company, after being
specifically notified by the Subscriber in writing that it is such a person,
conducts further due diligence, and determines that such investment shall be
permitted, or (iv) for a foreign shell bank3 (such persons or entities in (i) –
(iv) are collectively referred to as "Prohibited Persons").
(f) The
Subscriber represents, warrants and covenants that: (i) it is not, nor is any
person or entity controlling, controlled by or under common control with the
Subscriber, a Prohibited Person, and (ii) to the extent the Subscriber has any
beneficial owners4, (a) it has carried out thorough
due diligence to establish the identities of such beneficial owners, (b) based
on such due diligence, the Subscriber reasonably believes that no such
beneficial owners are Prohibited Persons, (c) it holds the evidence of such
identities and status and will maintain all such evidence for at least five
years from the date of the Subscriber's complete withdrawal from the Company,
and (d) it will make available such information and any additional information
requested by the Company that is required under applicable
regulations.
____________________________
2 Senior
foreign political figure means a senior official in the executive, legislative,
administrative, military or judicial branches of a foreign government (whether
elected or not), a senior official of a major foreign political party, or a
senior executive of a foreign government-owned corporation. In
addition, a senior foreign political figure includes any corporation, business
or other entity that has been formed by, or for the benefit of, a senior foreign
political figure. The immediate family of a senior foreign political
figure typically includes the political figure’s parents, siblings, spouse,
children and in-laws. A close associate of a senior foreign political
figure is a person who is widely and publicly known internationally to maintain
an unusually close relationship with the senior foreign political figure, and
includes a person who is in a position to conduct substantial domestic and
international financial transactions on behalf of the senior foreign political
figure.
3 Foreign
shell bank means a foreign bank without a physical presence in any country, but
does not include a regulated affiliate. A post office box or
electronic address would not be considered a physical presence. A
regulated affiliate means a foreign shell bank that: (1) is an affiliate of a
depository institution, credit union, or foreign bank that maintains a physical
presence in the United States or a foreign country, as applicable; and (2) is
subject to supervision by a banking authority in the country regulating such
affiliated depository institution, credit union, or foreign
bank.
4 Beneficial
owners will include, but not be limited to: (i) shareholders of a corporation;
(ii) partners of a partnership; (iii) members of a limited liability company;
(iv) investors in a fund-of-funds; (v) the grantor of a revocable or grantor
trust; (vi) the beneficiaries of an irrevocable trust; (vii) the individual who
established an XXX; (viii) the participant in a self-directed pension plan; (ix)
the sponsor of any other pension plan; and (x) any person being represented by
the Subscriber in an agent, representative, intermediary, nominee or similar
capacity. If the beneficial owner is itself an entity, the
information and representations set forth herein must also be given with respect
to its individual beneficial owners. If the Subscriber is a
publicly-traded company, it need not conduct due diligence as to its beneficial
owners.
3
(g) If
any of the foregoing representations, warranties or covenants ceases to be true
or if the Company no longer reasonably believes that it has satisfactory
evidence as to their truth, notwithstanding any other agreement to the contrary,
the Company may, in accordance with applicable regulations, freeze the
Subscriber's investment, either by prohibiting additional investments, declining
or suspending any withdrawal requests and/or segregating the assets constituting
the investment, or the Subscriber's investment may immediately be involuntarily
withdrawn by the Company, and the Company may also be required to report such
action and to disclose the Subscriber's identity to OFAC or other
authority. In the event that the Company is required to take any of
the foregoing actions, the Subscriber understands and agrees that it shall have
no claim against the Company, and its respective affiliates, directors, members,
partners, shareholders, officers, employees and agents for any form of damages
as a result of any of the aforementioned actions.
(h) The
Subscriber agrees to indemnify and hold harmless the Company, its respective
affiliates, directors, members, partners, shareholders, officers, employees and
agents from and against any and all losses, liabilities, damages, penalties,
costs, fees and expenses (including legal fees and disbursements) which may
result, directly or indirectly, from any inaccuracy in or breach of any
representation, warranty, covenant or agreement set forth in this
Agreement.
(i)
The Subscriber has received and read or reviewed, is familiar with and fully
understands the documents furnished by the Company. The Subscriber
also fully understands this Subscription Agreement and the risks associated with
this interest and confirms that all documents, records and books pertaining to
the Subscriber’s investment in the Units and requested by the Subscriber have
been made available or delivered to the Subscriber by the Company;
(j)
The Subscriber has had an opportunity to ask questions of and receive answers
from, the Company or a person or persons acting on its behalf, concerning the
terms and conditions of this investment and confirms that all documents, records
and books pertaining to the investment in the Units and requested by the
Subscriber has been made available or delivered to the Subscriber;
(k) The
Subscriber will be acquiring the Units solely for the Subscriber's own account,
for investment and not with a view toward the resale, distribution, subdivision
or fractionalization thereof; and the Subscriber has no present plans to enter
into any such contract, undertaking, agreement or arrangement;
(l)
The Subscriber acknowledges and understands that prior to this Offering
there was only a limited public market for the Units and no assurance can be
given that a public market will be maintained so that any subscribers in this
Offering may avail any benefit from the same;
(m) The
Subscriber's compliance with the terms and conditions of this Subscription
Agreement will not conflict with any instrument or agreement pertaining to the
Units that will develop for the Units offered hereby, or if developed, that it
or the transactions contemplated herein; and will not conflict in, result in a
breach of, or constitute a default under any instrument to which the Subscriber
is a party;
4
(n) The
Subscriber will seek its own legal, tax and investment advice concerning tax
implications attendant upon the purchase of the Units and understands and
accepts that the Company is relying upon this representation insofar as
disclosure of tax matters is concerned;
(o) The
Subscriber hereby acknowledges and represents that the Subscriber is aware of
the information set forth in this document and in any exhibits attached hereto;
and
(p) The
foregoing representations and warranties are true and accurate as of the date
hereof and shall be true and accurate as of the date of delivery of the
subscription to the Company and shall survive such delivery. If, in
any respect, such representations and warranties shall not be true and accurate,
the Subscriber shall give written notice of such fact to the Company, specifying
which representations and warranties are not true and accurate and the reasons
therefor.
7. Risk Factors. THE SUBSCRIBER
ACKNOWLEDGES THAT THERE ARE SIGNIFICANT RISKS ASSOCIATED WITH THE PURCHASE OF
THE WARRANT SHARES AND THAT SUCH SECURITIES ARE HIGHLY SPECULATIVE AND SHOULD
NOT BE PURCHASED BY ANYONE WHO CANNOT AFFORD A TOTAL LOSS OF HIS OR HER ENTIRE
INVESTMENT. All of the risks and disclosures contained within the
company’s filings with the securities and exchange commission, are hereby
incorporated by reference. The Subscriber represents and warrants
that he or she has carefully considered and reviewed the Company’s filings with
the Securities and Exchange Commission located at xxx.xxx.xxx which are hereby
incorporated by reference, in reaching a determination to exercise the
Warrants.
8. Responsibility. The
Company or its officers and directors shall not be liable, responsible or
accountable for damages or otherwise to any Subscriber for any act or omission
performed or omitted by them in good faith and in a manner reasonably believed
by them to be within the scope of the authority granted to them by this
Subscription Agreement and in the best interests of the Company, provided they
were not guilty of gross negligence, willful or wanton misconduct, fraud, bad
faith or any other breach of fiduciary duty with respect to such acts or
omissions.
9. Miscellaneous.
(a) The
Company and the Subscriber hereby covenant that this Subscription Agreement is
intended to and does contain and embody herein all of the understandings and
agreements, both written or oral, of the Company and the Subscriber with respect
to the subject matter of this Subscription Agreement, and that there exists no
oral agreement or understanding, express or implied liability, whereby the
absolute, final and unconditional character and nature of this Subscription
Agreement shall be in any way invalidated, empowered or
affected. There are no representations, warranties or covenants other
than those set forth herein.
(b) The
headings of this Subscription Agreement are for convenient reference only and
they shall not limit or otherwise affect the interpretation or effect of any
terms or provisions hereof.
(c) This
Subscription Agreement shall not be changed or terminated except as set forth
herein. All of the terms and provisions of this Subscription
Agreement shall be binding upon and inure to the benefit of and be enforceable
by and against the successors and assigns of the Company and the heirs,
executors, administrators and assigns of the Subscriber.
5
(d) A
modification or waiver of any of the provisions of this Subscription Agreement
shall be effective only if made in writing and executed with the same formality
as this Subscription Agreement. The failure of either the Company or
the Subscriber to insist upon strict performance of any of the provisions of
this Subscription Agreement shall not be construed as a waiver of any subsequent
default of the same or similar nature, or of any other nature or
kind.
(e) The
various provisions of this Subscription Agreement are severable from each other
and from the other provisions of this Agreement, and in the event that any
provision in this Subscription Agreement shall be held invalid or unenforceable
by a court of competent jurisdiction, the remainder of this Subscription
Agreement shall be fully effective, operative and enforceable.
(f)
Pronouns used herein are to be interpreted as referring to both the masculine
and feminine gender.
(g) This
Subscription Agreement shall be construed and interpreted in accordance with the
laws of the State of Nevada without reference to conflict of laws
principle. The parties agree that in the event of a laws controversy
arising out of the interpretation, construction, performance or breach of this
Subscription Agreement, any and all claims arising out of, or relating to, this
Subscription Agreement shall be submitted by arbitration according to the
Commercial Arbitration Rules of the American Arbitration Association located in
New York City before a single arbitrator. Notwithstanding the prior
sentence, any other action commenced by either party herein shall be venued in
the appropriate court of competent jurisdiction located in the county of New
York, State of New York.
(h) This
Subscription Agreement may be executed in one or more counterparts each of which
shall be deemed an original and all of which together shall be deemed to be one
and the same instrument.
THE
SUBSCRIBER ACKNOWLEDGES THAT, EXCEPT AS SET FORTH IN THIS AGREEMENT, NO
REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE TO IT, OR TO ITS ADVISORS, BY THE
COMPANY, OR BY ANY PERSON ACTING ON BEHALF OF THE COMPANY, WITH RESPECT TO THE
INTERESTS, THE PROPOSED BUSINESS OF THE COMPANY, THE DEDUCTIBILITY OF ANY ITEM
FOR TAX PURPOSES, AND/OR THE ECONOMIC, TAX, OR ANY OTHER ASPECTS OR CONSEQUENCES
OF A PURCHASE OF AN INTEREST AND/OR ANY INVESTMENT IN THE COMPANY, AND THAT IT
HAS NOT RELIED UPON ANY INFORMATION CONCERNING THE OFFERING, WRITTEN OR ORAL,
OTHER THAN THAT CONTAINED IN THIS SUBSCRIPTION AGREEMENT.
---------------The
rest of this page left intentionally left blank.------------------
6
|
The Subscriber’s original
investment was $ _________ and the Subscriber holds ________ Original
Warrants.
The
Subscriber hereby offers to purchase the aggregate of ___________ Units
and encloses payment of $10,000 per Unit for an aggregate investment of
$___________.
|
|
Signature
of Subscriber
|
||
|
Name
of Subscriber
|
||
|
Name
of the Authorized Signatory
|
||
|
(If
Applicable)
|
||
|
(Print)
Xxxxxx Xxxxxxx - Xxxxxxxxx
|
||
|
(Xxxxx)
Xxxx, Xxxxx and Zip Code
|
||
|
Telephone
Number
|
||
|
Social
Security/Taxpayer I.D. Number
|
||
|
AGREED
TO AND ACCEPTED:
|
As of
___________, 2009
|
By:
|
||
|
Xxxxxx
Xxxxxxx, M.D., MPH
|
||
|
Chief
Executive Officer
|
---------------The
rest of this page left intentionally left
blank.------------------
CONFIDENTIAL
INVESTOR QUESTIONNAIRE
The
Subscriber represents and warrants that he, she or it comes within category as
marked below, and that for any category marked, he, she or it has truthfully set
forth, where applicable, the factual basis or reason the Subscriber comes within
that category. ALL INFORMATION IN RESPONSE TO THIS SECTION WILL BE
KEPT STRICTLY CONFIDENTIAL. The undersigned agrees to furnish any
additional information which the Company deems necessary in order to verify the
answers set forth below.
The
undersigned is an individual (not a partnership, corporation, etc.) whose
individual net worth, or joint net worth with his or her spouse, presently
exceeds $1,000,000.
Explanation. In
calculating net worth you may include equity in personal property and real
estate, including your principal residence, cash, short-term investments, stock
and securities. Equity in personal property and real estate should be
based on the fair market value of such property less debt secured by such
property.
The
undersigned is an individual (not a partnership, corporation, etc.) who had an
income in excess of $200,000 in each of the two most recent years, or joint
income with his or her spouse in excess of $300,000 in each of those years (in
each case including foreign income, tax exempt income and full amount of capital
gains and losses but excluding any income of other family members and any
unrealized capital appreciation) and has a reasonable expectation of reaching
the same income level in the current year.
The
undersigned is a director or executive officer of the Company which is issuing
and selling the Units.
The
undersigned is a bank; a savings and loan association; insurance company;
registered investment company; registered business development company; licensed
small business investment company (“SBIC”); or employee benefit plan within the
meaning of Title 1 of ERISA and (a) the investment decision is made by a plan
fiduciary which is either a bank, savings and loan association, insurance
company or registered investment advisor, or (b) the plan has total assets in
excess of $5,000,000 or (c) is a self directed plan with investment decisions
made solely by Persons that are accredited Subscribers. (describe
entity)
________________________________________________________
________________________________________________________
The
undersigned is a private business development company as defined in section
202(a)(22) of the Investment Advisors Act of 1940. (describe
entity)
________________________________________________________
________________________________________________________
The
undersigned is either a corporation, partnership, Massachusetts business trust,
or non-profit organization within the meaning of Section 501(c)(3) of the
Internal Revenue Code, in each case not formed for the specific purpose of
acquiring the Units and with total assets in excess of $5,000,000. (describe
entity)
________________________________________________________
________________________________________________________
The
undersigned is a trust with total assets in excess of $5,000,000, not formed for
the specific purpose of acquiring the Units, where the purchase is directed by a
“sophisticated person” as defined in Regulation 506(b)(2)(ii) under the
Securities Act.
The
undersigned is an entity (other than a trust) all of the equity owners of which
are “accredited investors” within one or more of the above
categories. If relying upon this Category H alone, each equity owner
must complete a separate copy of this Agreement. (describe
entity)
______________________________________________________
The
undersigned is not within any of the categories above and is therefore not an
accredited investor.
The
undersigned agrees that the undersigned will notify the Company at any time on
or prior to the Closing Date in the event that the representations and
warranties made by the undersigned in this Agreement shall cease to be true,
accurate and complete.
SUITABILITY
(please answer each question)
|
(a) For
an individual Subscriber, please describe your current employment,
including the company by which you are employed and its principal
business:
|
|
(b) For
an individual Subscriber, please describe any college or graduate degrees
held by you:
|
|
(c)
For all Subscribers, please list types of prior
investments:
|
|
(d) For
all Subscribers, please state whether you have you participated in other
private placements before:
|
YES_______ NO_______
(e) If
your answer to question (d) above was “YES”, please indicate frequency of such
prior participation in private placements of:
|
Public
|
Private
|
Public
or Private
|
||
|
Companies
|
Companies
|
[ ]
|
Frequently
Occasionally
Never
(f)
For individual Subscribers, do you expect your current level of income to
significantly decrease in the foreseeable future:
YES_______ NO_______
(g) For
trust, corporate, partnership and other institutional Subscribers, do you expect
your total assets to significantly decrease in the foreseeable
future:
YES_______ NO_______
(h) For
all Subscribers, do you have any other investments or contingent liabilities
which you reasonably anticipate could cause you to need sudden cash requirements
in excess of cash readily available to you:
YES_______ NO_______
(i) For
all Subscribers, are you familiar with the risk aspects and the non-liquidity of
investments such as the securities for which you seek to subscribe?
YES_______ NO_______
(j) For
all Subscribers, do you understand that there is no guarantee of financial
return on this investment and that you run the risk of losing your entire
investment?
YES_______ NO_______
4.
FINRA AFFILIATION.
Are you
affiliated or associated with a FINRA member firm (please check
one):
YES_______ NO_______
If yes,
please describe:
|
|
If
Subscriber is a Registered Representative with a FINRA member firm, have the
following acknowledgment signed by the appropriate party:
The
undersigned FINRA member firm acknowledges receipt of the notice required by the
Rules of Fair Practice.
|
Name
of FINRA Member Firm
|
||
|
By:
|
||
|
Authorized
Officer
|
||
|
Date:
|
||
5.
The undersigned is informed of the significance to the Company of the foregoing
representations and answers contained in the Confidential Investor Questionnaire
and such answers have been provided under the assumption that the Company, its
counsel and agents will rely on them.
|
Sign
Name:
|
||
|
Print
Name:
|
||
|
Date:
|
EXHIBIT
A
THIS
WARRANT AND 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”), OR ANY STATE SECURITIES LAWS. THIS WARRANT AND THE COMMON
STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS
TO THIS WARRANT UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO NANOVIRICIDES, INC., THAT SUCH
REGISTRATION IS NOT REQUIRED.
|
_______,
2009
|
Warrant
No.:_____
|
COMMON
STOCK PURCHASE WARRANT
Right to
Purchase ______ Shares of Common Stock of
NANOVIRICIDES,
INC., a corporation organized under the laws
of the State of Nevada (the “Company”), hereby certifies that, for value
received, ____________________ ____________, or its successors or assigns (the
“Holder”) is entitled to purchase from the Company upon the due exercise hereof,
and subject to the terms and conditions herein, from the date of issue of this
warrant (the “Warrant”) until the third (3rd) anniversary of the issuance hereof
(the "Expiration Date"), all or any part of __________ fully paid and
non-assessable shares of common stock, no par value per share (the "Common
Stock") of the Company, upon surrender hereof, with the exercise form annexed
hereto duly completed and executed, at the office of the Company and upon
simultaneous payment therefore in cash or by certified or official bank check,
payable to the order of the Company, at a per share exercise price
(“Exercise Price”) of One Dollar ($1.00), subject to adjustment as provided
herein.
1.
Restriction on
Transfer. No resale of the Warrant or of any of the shares of
Common Stock underlying the exercise of the Warrant (the “Underlying Stock”)
will be made unless such resale is registered pursuant to a registration
statement filed by the Company with the Securities and Exchange Commission (the
"Commission") or an exemption from registration under the Securities Act of
1933, as amended (the "Securities Act"). By acceptance of this agreement, the
Holder agrees, for itself and all subsequent holders, that prior to making any
disposition of the Warrant or of any Underlying Stock, the Holder shall give
written notice to the Company describing briefly the proposed disposition; and
no such disposition shall be made unless and until (i) the Company has notified
the Holder that, in the opinion of counsel satisfactory to it, no registration
or other action under the Securities Act is required with respect to such
disposition (which opinion may be conditioned upon the transferee's assuming the
Holder's obligation hereunder); or (ii) a registration statement under the
Securities Act has been filed by the Company and declared effective by the
Commission or other such similar action has been taken.
2.
Expiration of
Warrant. Unless this Warrant and the Exercise Price are
tendered as herein provided before the close of business on the Expiration Date,
this Warrant will become wholly void and all rights and obligations set forth
herein shall expire and terminate.
3.
Partial
Exercise. If this Warrant is exercised for less than all the
shares that may be purchased upon the exercise hereof, the Warrant shall be
surrendered by the Holder and replaced with a new warrant of like tender in the
name of the Holder providing for the right to purchase the number of shares of
Underlying Stock as to which this Warrant has not yet been
exercised.
4.
Adjustments. The
Exercise Price and the number of shares of Underlying Stock of the Company
issuable pursuant to such exercise is subject to adjustment as
follows:
(a) In
case the Company shall at any time declare a stock dividend or stock split on
the outstanding shares of Common Stock in shares of its Common Stock, then the
Exercise Price and number of shares of Underlying Stock shall be proportionately
adjusted so that the holder of any Warrant exercised after such time shall be
entitled to receive the aggregate number and kind of shares which if such
Warrant had been exercised immediately prior to such time, he or she would have
owned upon such exercise and been entitled to receive by virtue of such
dividend.
(b) In
case the Company shall at any time subdivide or combine the outstanding shares
of the Common Stock, the Exercise Price, initial or adjusted, in effect
immediately prior to such subdivision or combination shall forthwith be
proportionately decreased in the case of subdivision or increased in the case of
combination.
(c) In
case of any capital reorganization, sale of substantially all the assets of the
Company, or any reclassification of the shares of Common Stock of the Company,
or in case of any consolidation with or merger of the Company into or with
another corporation, then as a part of such reorganization sale
reclassification, consolidation or merger, as the case may be, provision shall
be made so that the registered owner of the Warrant evidenced hereby shall have
the right thereafter to receive upon the exercise thereof the kind and amount of
shares of stock or other securities or property which he would have been
entitled to receive if immediately prior to such reorganization,
reclassification, consolidation or merger, he had held the number of shares of
Underlying Stock which were then issuable upon the exercise of the Warrant
evidenced hereby, to the end that the provisions set forth (including provisions
with respect to adjustments of the Exercise Price) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any shares of stock
or other property thereafter deliverable upon the exercise of such
Warrants.
(d) If
the Company at any time makes any spin-off, split-off, or distribution of assets
upon or with respect to its Common Stock, as a liquidating or partial
liquidating dividend, spin-off, or by way of return of capital, or other than as
dividend payable out of earnings or any surplus legally available for dividends,
the Holder then outstanding shall, upon the exercise of the Warrant, receive, in
addition to the shares of Common Stock then issuable on exercise of the Warrant,
the amount of such assets (or, at the option of the Company, a sum equal to the
value thereof at the time of the distributions) which would have been payable to
such holder had he or she exercised the Warrant immediately prior to the record
date for such distribution.
(e) When
any adjustment is required to be made to the Exercise Price, the number of
shares of Common Stock issuable shall be determined as provided for in paragraph
(f) hereof. No fractional shares of Common Stock shall be issued upon the
exercise of the Warrant. The Company shall round all fractional
shares to the next whole share.
(f) Whenever
the Exercise Price is adjusted as provided above, the number of shares of
Underlying Stock immediately prior to such adjustment shall be increased,
effective simultaneously with such adjustment, by a number of shares of Common
Stock computed by multiplying such number of shares of Common Stock by a
fraction, the numerator of which is the Exercise Price in effect immediately
prior to such adjustment and the denominator of which is the Exercise Price in
effect upon such adjustment, and the number of shares of Underlying Stock
arrived at by making said computation shall be added to the number of shares of
Underlying Stock immediately prior to such adjustment. The total number of
shares arrived at by making the computation provided for in the immediately
preceding sentence shall thereupon be the number of shares of Common Stock
issuable upon exercise or the Warrant and the Company shall forthwith determine
the new Exercise Price.
5.
Delivery of Underlying
Stock. As soon as practicable after the exercise hereof, the
Company shall deliver a certificate or certificates for the number of full
shares of Underlying Stock, all of which shall be fully paid and nonassessable,
to the person or persons entitled to receive the same provided no sale, offer to
sell or transfer of the Underlying Stock or of this Warrant, or of any shares or
other securities issued in exchange for or in respect of such shares, shall be
made unless a registration statement under the Act, with respect to such shares,
is in effect or an exemption from the registration requirements of such Act is
applicable to such shares.
6.
Condition of Exercise of
Warrant.
(a) Unless
exercised pursuant to an effective registration statement under the Securities
Act which includes the Underlying Stock, it shall be a condition to any exercise
of this Warrant that the Company shall have received, at the time of such
exercise, a representation in writing from the recipient in the form attached
hereto as Exhibit A-1, that the Shares being issued upon exercise, are being
acquired for investment and not with a view to any sale or distribution
thereof.
(b) Each
certificate evidencing the Underlying Stock issued upon exercise of this
Warrant, shall be stamped or imprinted with a legend substantially in the
following form:
"The
securities represented by this certificate have not been registered under the
Securities Act of 1933, as amended. The securities have been acquired for
investment and may not be sold, transferred or assigned in the absence of an
effective registration statement for the securities under said Act, or an
opinion of counsel, in form, substance and scope reasonably acceptable to
NanoViricides, Inc., that registration is not required under said Act or unless
sold pursuant to Rule 144 under said Act."
Subject
to this Section 6, the Company may instruct its transfer agent not to register
the transfer of all or a part of this Warrant, or any of the Shares, unless one
of the conditions specified in the above legend is satisfied.
7.
Representations and
Warranties of the Company. The Company represents and warrants
to the Holder as follows:
(a) This
Warrant has been duly authorized and executed by the Company and is a valid and
binding obligation of the Company enforceable in accordance with its
terms;
(b) The
Underlying Stock has been duly authorized and reserved for issuance by the
Company and, when issued in accordance with the terms hereof, will be validly
issued, fully paid and nonassessable;
(c) The
execution and delivery of this Warrant are not, and the issuance of the
Underlying Stock upon exercise of this Warrant in accordance with the terms
hereof will not be, inconsistent with the Company’s Articles of Incorporation or
By-laws, as amended.
8.
Representations and Warranties
by the Holder. The Holder represents and warrants to the
Company as follows:
(a) This
Warrant is being acquired for its own account, for investment and not with a
view to, or for resale in connection with, any distribution or public offering
thereof within the meaning of the Securities Act. Upon exercise of
this Warrant, the Holder shall, if so requested by the Company, confirm in
writing, in a form reasonably satisfactory to the Company, that the Underlying
Stock issuable upon exercise of this Warrant is being acquired for investment
and not with a view toward distribution or resale.
(b) The
Holder understands that the Warrant and the Underlying Stock have not been
registered under the Securities Act by reason of their issuance in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act pursuant to Section 4(2) thereof, and that they must be held by
the Holder indefinitely, and that the Holder must therefore bear the economic
risk of such investment indefinitely, unless a subsequent disposition thereof is
registered under the Securities Act or is exempted from such
registration.
(c) The
Holder has such knowledge and experience in financial and business matters that
it is capable of evaluating the merits and risks of the purchase of this Warrant
and the Underlying Stock and of protecting its interests in connection
therewith.
(d) The
Holder is able to bear the economic risk of the purchase of the Underlying Stock
pursuant to the terms of this Warrant.
9.
Rights of
Stockholders. No holder of this Warrant shall be entitled, as
a warrant- holder, to vote or receive dividends or be deemed
the holder of Common Stock or any other securities of the Company which may at
any time be issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the holder of this Warrant, as
such, any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of stock, change
of par value, consolidation, merger, conveyance, or otherwise) or to receive
notice of meetings, or to receive dividends or subscription rights or otherwise
until the Warrant shall have been exercised and the Shares purchasable upon the
exercise hereof shall have become deliverable, as provided
herein.
10. Miscellaneous.
(a) This
Warrant and any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the party against which enforcement
of such change, waiver, discharge or termination is sought.
(b) This
Warrant shall be governed by and construed in accordance with the laws of State
of Nevada without regard to principles of conflicts of laws. Any
action brought concerning the transactions contemplated by this Warrant shall be
brought only in the state courts of New York or in the federal courts located in
the state of New York; provided, however, that the Company may choose to waive
this provision and bring an action outside the state of New York.
(c) The
invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provision.
(d) The
headings in this Warrant are for purposes of reference only, and shall not limit
or otherwise affect any of the terms hereof.
(e) The
terms of this Warrant shall be binding upon and shall inure to the benefit of
any successors or assigns of the Company and of the holder or holders hereof and
of the Underlying Stock.
(f) This
Warrant and the other documents delivered pursuant hereto constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
(g) Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of any such loss,
theft or destruction, upon delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, upon surrender and cancellation of such Warrant, the Company at its
expense will execute and deliver to the holder of record, in lieu thereof, a new
Warrant of like date and tenor.
(h) This
Warrant and any provision hereof may be amended, waived or terminated only by an
instrument in writing signed by the Company and the Holder.
(i)
Receipt of this Warrant by the Holder hereof shall constitute acceptance
of and agreement to the foregoing terms and conditions.
(The
rest of this page left intentionally blank.)
IN WITNESS WHEREOF, the
Company has caused this Warrant to be signed by its duly authorized
officer.
Dated:
_____________, 2009
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Warrant
Holder: ________________________________
|
Address:
|
|
