Exhibit 10.63
THIS WARRANT IS NON-TRANSFERABLE AND
MAY ONLY BE EXERCISED BY THE ORIGINAL PURCHASER
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THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT FILED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT.
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The Immune Response Corporation
COMMON STOCK PURCHASE WARRANT
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This certifies that, for good and valuable consideration, The Immune
Response Corporation, a Delaware corporation (the "Company"), grants to ▇▇▇▇▇▇
▇. ▇▇▇▇▇, Ph.D. (the "Warrantholder"), the right to subscribe for and purchase
from the Company 2,695 validly issued, fully paid and nonassessable shares (the
"Warrant Shares") of the Company's Common Stock, $.0025 par value (the "Common
Stock"), at the purchase price per share of $14 (the "Exercise Price"),
exercisable at any time and from time to time during the period (the "Exercise
Period") commencing on the 26th day of June, 1997 and ending on the fourth
anniversary of the date hereof, all subject to the terms, conditions and
adjustments herein set forth.
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1. Duration and Exercise of Warrant; Call of Warrant; Payment of
Taxes; Information.
1.1 Duration and Exercise of Warrant.
(a) Cash Exercise. This Warrant may be exercised in whole or in part by
the Warrantholder by (i) the surrender of this Warrant to the Company, with a
duly executed Exercise Form specifying the number of Warrant Shares to be
purchased, during normal business hours on any Business Day during the Exercise
Period and (ii) the delivery of payment to the Company, for the account of the
Company, by wire transfer of immediately available funds to a bank account
specified by the Company of the Exercise Price for the number of Warrant Shares
specified in the Exercise Form in lawful money of the United States of America.
(b) Net Issue Exercise. In lieu of exercising this Warrant pursuant to
Section 1.1(a), this Warrant may be exercised in whole or in part by the
Warrantholder by the surrender of this Warrant to the Company, with a duly
executed Exercise Form marked to reflect Net Issue Exercise and specifying the
number of Warrant Shares to be purchased, during normal business hours on any
Business Day during the Exercise Period. Upon such exercise, the Warrantholder
shall be entitled to receive shares equal to the value of this Warrant (or the
portion thereof being canceled) by surrender of this Warrant to the Company
together with notice of such election in which event the Company shall issue to
Warrantholder a number of shares of the Company's Common Stock computed as of
the date of surrender of this Warrant to the Company using the following
formula:
Y x (A-B)
X = ---------
A
Where X = the number of shares of Common Stock to be issued to
Warrantholder under this Section 1.1(b);
Y = the number of shares of Common Stock purchasable under this
Warrant, or any lesser number of shares as to which this Warrant
is being exercised (at the date of such calculation);
A = the fair market value of one share of the Company's Common Stock
(at the date of such calculation);
B = the Exercise Price (as adjusted to the date of such calculation).
(c) Other Forms of Exercise. This Warrant may also be exercised in whole
or in part by the Warrantholder by (i) the surrender of this Warrant to the
Company, with a duly executed Exercise Form specifying the number of Warrant
Shares to be purchased, during normal business hours on any Business Day during
the Exercise Period and (ii) payment of the Exercise
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Price, in whole or in part, by delivery to the Company of (A) shares of
Common Stock owned by the Warrantholder having a fair market value as of the
close of business on the date on which this Warrant shall have been
surrendered equal to the portion of the Exercise Price being paid in such
shares, or (B) irrevocable instructions to a broker-dealer to sell (or
margin) a sufficient portion of the Warrant Shares and deliver the sale (or
margin loan) proceeds directly to the Company to pay for the Exercise Price.
(d) Procedural Issues. All Warrant Shares issued pursuant to this Section
1.1 shall be deemed to be issued to the Warrantholder as the record holder of
such Warrant Shares as of the close of business (i) on the date on which this
Warrant shall have been surrendered and payment made for the Warrant Shares, if
issued pursuant to Section 1.1(a) or Section 1.1(c), or (ii) on the date on
which this Warrant shall have been surrendered, if issued pursuant to Section
1.1(b). A stock certificate or certificates for the Warrant Shares specified in
the Exercise Form shall be delivered to the Warrantholder as promptly as
practicable, and in any event within ten (10) days, thereafter. The stock
certificate or certificates so delivered shall be in denominations of 100 shares
each or such lesser or greater denominations as may be reasonably specified by
the Warrantholder in the Exercise Form. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of the stock
certificate or certificates, deliver to the Warrantholder a new Warrant
evidencing the rights to purchase the remaining Warrant Shares, which new
Warrant shall in all other respects be identical with this Warrant. No
adjustments shall be made on Warrant Shares issuable on the exercise of this
Warrant for any cash dividends paid or payable to holders of record of Common
Stock prior to the date as of which the Warrantholder shall be deemed to be the
record holder of such Warrant Shares.
(e) Fair Market Value. For purposes of Sections 1.1(b), 1.1(c), 1.2 and
6.1(d), fair market value of one share of the Company's Common Stock shall mean:
(i) the closing price per share of the Company's Common Stock on
the principal national securities exchange on which the Common Stock
is listed or admitted to trading or,
(ii) if not listed or traded on any such exchange, the last
reported sales price per share on the Nasdaq National Market or the
Nasdaq Small-Cap Market (collectively, "Nasdaq") or,
(iii) if not listed or traded on any such exchange or Nasdaq, the
average of the bid and asked price per share as reported in the "pink
sheets"
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published by the National Quotation Bureau, Inc. (the "pink sheets") or,
(iv) if such quotations are not available, the fair market value
per share of the Company's Common Stock on the date such notice was
received by the Company as reasonably determined by the Board of
Directors of the Company.
1.2 Call of Warrant by Company. If at any time prior to the exercise of
this Warrant in full, the fair market value of one share of the Company's Common
Stock remains equal to or greater than $28 over any consecutive forty-five (45)
day period (the "Threshold Period"), the Company shall have the option to
purchase this Warrant from Warrantholder for $.05 per Warrant Share. To
exercise this call option, the Company shall, within thirty (30) days following
termination of the Threshold Period, and at least thirty (30) days prior to
exercise of the option, provide the Warrantholder with written notice specifying
the date the option will be exercised. The Warrantholder then shall have ten
(10) days after receipt of such notice to exercise its rights under this
Warrant.
If the Company fails to exercise this call option in the manner and within
the time periods specified in this Section 1.2, the Company shall be deemed to
have waived its right to invoke such option and Warrantholder shall retain all
rights granted to it under this Warrant as though the Threshold Period had never
occurred; provided, however, that the Company's call option shall be revived
should the Company's Common Stock again trade at or above $28 for an additional
Threshold Period following any previous waiver by the Company of such option.
1.3 Payment of Taxes. The issuance of certificates for Warrant Shares
shall be made without charge to the Warrantholder for any stock transfer or
other issuance tax in respect thereto; provided, however, that the Warrantholder
shall be required to pay any and all taxes which may be payable in respect of
any transfer involved in the issuance and delivery of any certificate in a name
other than that of the then Warrantholder as reflected upon the books of the
Company.
1.4 Information. Upon receipt of a written request from a Warrantholder,
the Company agrees to deliver promptly to such Warrantholder a copy of its
current publicly available financial statements and to provide such other
publicly available information concerning the business and operations of the
Company as such Warrantholder may reasonably request in order to assist the
Warrantholder in evaluating the merits and risks of exercising the Warrant and
to make an informed investment decision in connection with such exercise.
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2. Restrictions on Transfer; Restrictive Legends.
2.1 Restrictions on Transfer; Compliance with Securities Laws. This
Warrant is not assignable. The Warrant Shares issued upon the exercise of the
Warrant may not be transferred or assigned in whole or in part without
compliance with all applicable federal and state securities laws by the
transferor and transferee (including the delivery of investment representation
letters and legal opinions reasonably satisfactory to the Company, if such are
requested by the Company). The Warrantholder, by acceptance hereof,
acknowledges that this Warrant and the Warrant Shares to be issued upon exercise
hereof are being acquired solely for the Warrantholder's own account and not as
a nominee for any other party, and for investment, and that the Warrantholder
will not offer, sell or otherwise dispose of any Warrant Shares to be issued
upon exercise hereof except under circumstances that will not result in a
violation of the Securities Act or any state securities laws. Upon exercise of
this Warrant, the Warrantholder shall, if requested by the Company, confirm in
writing, in a form satisfactory to the Company, that the Warrant Shares so
purchased are being acquired solely for the Warrantholder's own account and not
as a nominee for any other party, for investment, and not with a view toward
distribution or resale.
2.2 Restrictive Legends. This Warrant shall (and each Warrant issued in
substitution for this Warrant issued pursuant to Section 4 shall) be stamped or
otherwise imprinted with a legend in substantially the following form:
"THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER SUCH ACT OR
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT."
Except as otherwise permitted by this Section 2, each stock certificate for
Warrant Shares issued upon the exercise of any Warrant and each stock
certificate issued upon the direct or indirect transfer of any such Warrant
Shares shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER SUCH ACT OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT."
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Notwithstanding the foregoing, the Warrantholder may require the Company to
issue a stock certificate for Warrant Shares without a legend if (i) such
Warrant Shares, as the case may be, have been registered for resale under the
Securities Act or sold pursuant to Rule 144 under the Securities Act (or a
successor rule thereto) or (ii) the Warrantholder has received an opinion of
counsel reasonably satisfactory to the Company that such registration is not
required with respect to such Warrant Shares.
3. Reservation and Listing of Shares, Etc.
The Company covenants and agrees that all Warrant Shares which are issued
upon the exercise of this Warrant will, upon issuance, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof, other than
taxes in respect of any transfer occurring contemporaneously with such issue.
The Company further covenants and agrees that, during the Exercise Period, the
Company will at all times have authorized and reserved, and keep available free
from preemptive rights, a sufficient number of shares of Common Stock to provide
for the exercise of the rights represented by this Warrant and will, at its
expense, upon each such reservation of shares, procure such listing of such
shares of Common Stock (subject to issuance or notice of issuance) as then may
be required on all stock exchanges on which the Common Stock is then listed or
on Nasdaq.
4. Exchange, Loss or Destruction of Warrant.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant and, in the case of
loss, theft or destruction, of such bond or indemnification as the Company
reasonably may require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor. The term "Warrant" as used in this agreement shall be deemed to
include any Warrants issued in substitution or exchange for this Warrant.
5. Ownership of Warrant.
The Company may deem and treat the person in whose name this Warrant is
registered as the holder and owner hereof (notwithstanding any notations of
ownership or writing hereon made by anyone other than the Company) for all
purposes and shall not be affected by any notice to the contrary.
6. Certain Adjustments.
6.1 The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
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(a) Stock Dividends. If at any time prior to the exercise of this Warrant
in full (i) the Company shall fix a record date for the issuance of any stock
dividend payable in shares of Common Stock or (ii) the number of shares of
Common Stock shall have been increased by a subdivision or split-up of shares of
Common Stock, then, on the record date fixed for the determination of holders of
Common Stock entitled to receive such dividend or immediately after the
effective date of subdivision or split-up, as the case may be, the number of
shares of Common Stock to be delivered upon exercise of this Warrant will be
increased so that the Warrantholder will be entitled to receive the number of
shares of Common Stock that such Warrantholder would have owned immediately
following such action had this Warrant been exercised immediately prior thereto,
and the Exercise Price will be adjusted as provided below in paragraph (f).
(b) Combination of Stock. If at any time prior to the exercise of this
Warrant in full the number of shares of Common Stock outstanding shall have been
decreased by a combination of the outstanding shares of Common Stock, then,
immediately after the effective date of such combination, the number of shares
of Common Stock to be delivered upon exercise of this Warrant will be decreased
so that the Warrantholder thereafter will be entitled to receive the number of
shares of Common Stock that such Warrantholder would have owned immediately
following such action had this Warrant been exercised immediately prior thereto,
and the Exercise Price will be adjusted as provided below in paragraph (f).
(c) Reorganization, etc. If at any time prior to the exercise of this
Warrant in full any capital reorganization of the Company, or any
reclassification of the Common Stock, or any consolidation of the Company with
or merger of the Company with or into any other person or any sale, lease or
other transfer of all or substantially all of the assets of the Company to any
other person, shall be effected in such a way that the holders of Common Stock
shall be entitled to receive stock, other securities or assets, including cash
(whether such stock, other securities or assets are issued or distributed by the
Company or another person) with respect to or in exchange for Common Stock,
then, upon exercise of this Warrant the Warrantholder shall have the right to
receive the kind and amount of stock, other securities or assets receivable upon
such reorganization, reclassification, consolidation, merger or sale, lease or
other transfer by a holder of the number of shares of Common Stock that such
Warrantholder would have been entitled to receive upon exercise of this Warrant
had this Warrant been exercised immediately before such reorganization,
reclassification, consolidation, merger or sale, lease or other transfer,
subject to adjustments that shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Section 6.
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(d) Fractional Shares. No fractional shares of Common Stock or scrip
shall be issued to any Warrantholder in connection with the exercise of this
Warrant. Instead of any fractional shares of Common Stock that would otherwise
be issuable to such Warrantholder, the Company will pay to such Warrantholder a
cash adjustment in respect of such fractional interest in an amount equal to
that fractional interest of the then current fair market value per share of
Common Stock, determined in accordance with Section 1.1(e) hereof.
(e) Carryover. Notwithstanding any other provision of this Section 6, no
adjustment shall be made to the number of shares of Common Stock to be delivered
to the Warrantholder (or to the Exercise Price) if such adjustment represents
less than 1% of the number of shares to be so delivered, but any lesser
adjustment shall be carried forward and shall be made at the time and together
with the next subsequent adjustment which together with any adjustments so
carried forward shall amount to 1% or more of the number of shares to be so
delivered.
(f) Exercise Price Adjustment. Whenever the number of Warrant Shares
purchasable upon the exercise of the Warrant is adjusted, as herein provided,
the Exercise Price payable upon the exercise of this Warrant shall be adjusted
by multiplying such Exercise Price immediately prior to such adjustment by a
fraction, of which the numerator shall be the number of Warrant Shares
purchasable upon the exercise of the Warrant immediately prior to such
adjustment, and of which the denominator shall be the number of Warrant Shares
purchasable immediately thereafter.
(g) No Duplicate Adjustments. Notwithstanding anything else to the
contrary contained herein, in no event will an adjustment be made under the
provisions of this Section 6 to the number of Warrant Shares issuable upon
exercise of this Warrant or the Exercise Price for any event if an adjustment
having substantially the same effect to the Warrantholder as any adjustment that
otherwise would be made under the provisions of this Section 6 is made by the
Company for any such event to the number of shares of Common Stock (or other
securities) issuable upon exercise of this Warrant.
6.2 No Adjustment for Dividends. Except as provided in Section 6.1, no
adjustment in respect of any dividends shall be made during the term of the
Warrant or upon the exercise of this Warrant.
6.3 Notice of Adjustment. Whenever the number of Warrant Shares or the
Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail by first class, postage prepaid, to the
Warrantholder, notice of such adjustment or adjustments and a certificate of the
chief financial officer of the Company setting forth the number of Warrant
Shares and the Exercise Price of such Warrant Shares after such adjustment,
setting forth a brief statement of the
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facts requiring such adjustment and setting forth the computation by which
such adjustment was made.
7. Registration Rights.
7.1 Certain Additional Definitions.
As used in this Warrant, the following capitalized terms shall have the
following meanings:
"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"Register," "registered" and "registration" refer to a registration
effected by preparing and filing with the SEC a registration statement or
similar document in compliance with the Securities Act, and such registration
statement or document becoming effective under the Securities Act.
"Registrable Securities" shall mean (i) the Warrant Shares and (ii) any
Common Stock issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, such
Warrant Shares.
"Registration Statement" shall mean any registration statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Warrant, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such Registration Statement.
7.2 Registration. Upon the written request of Warrantholder (a "Demand
Request"), but in no event later than four (4) years from the date hereof, the
Company shall:
(a) within ten (10) days of the Company's receipt of a Demand Request,
give written notice of such request to all holders of Registerable Securities
("Holders");
(b) prepare and file with the SEC within sixty (60) days of the Company's
receipt of a Demand Request, and use its reasonable best efforts to have
declared effective by the SEC, a Registration Statement on any appropriate form
under the Securities Act as may then be available to the Company relating to
resale of all of the Registrable Securities which the Holders
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request to be registered within twenty (20) days of the mailing of the notice
required under Section 7.2(a) and use its reasonable best efforts to cause
such Registration Statement to remain continuously effective for a period of
one (1) year or such shorter period which will terminate when all Registrable
Securities covered by such Registration Statement have been sold; provided
that a registration will not count as the permitted demand registration until
the Registration Statement becomes effective and remains effective for the
period specified herein, so long as such registration is not withdrawn at the
request of the holder;
(c) prepare and file with the SEC such amendments, supplements and
post-effective amendments to the Registration Statement and the Prospectus as
may be necessary to keep such Registration Statement effective for the period
specified in Section 7.2(a) and to comply with the provisions of the Securities
Act and the Exchange Act with respect to the distribution of all Registrable
Securities during such period;
(d) notify the Warrantholder promptly, and confirm such notice in writing,
(i) when the Prospectus or any supplement or post-effective amendment has been
filed and, with respect to the Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the SEC
for amendments or supplements to the Registration Statement or Prospectus or for
additional information, (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and (v) when a Prospectus or a
Prospectus supplement is required to be delivered under the Securities Act upon
discovery that the Prospectus, as then in effect, includes an untrue statement
of material fact or omits to state a material fact necessary to make the
statements therein not misleading in light of the circumstances then existing,
which requires amendment or supplementation of the Registration Statement or
Prospectus;
(e) use its reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(f) deliver to the Warrantholder without charge as many copies of the
Prospectus (including each preliminary Prospectus) and any amendment or
supplement thereto as Warrantholder may reasonably request in order to
facilitate the disposition of the Registrable Securities in compliance with the
Securities Act;
(g) cause all Registrable Securities covered by the Registration Statement
to be listed on each securities exchange or market on which shares of the Common
Stock are then listed,
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and if the shares of the Common Stock are not so listed, use its reasonable
best efforts promptly to cause all such Registerable Securities to be listed
on either the New York Stock Exchange, the American Stock Exchange or the
Nasdaq Stock Market;
(h) use its reasonable best efforts to qualify or register the Registrable
Securities for sale under (or obtain exemptions from the application of) the
Blue Sky laws of such jurisdictions as are reasonably requested by Investor.
The Company shall not be required to qualify as a foreign corporation or to file
a general consent to service of process in any such jurisdiction where it is not
presently qualified or where it would be subject to general service of process
or taxation as a foreign corporation in any jurisdiction where it is not now so
subject;
(i) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC under the Securities Act and the
Exchange Act and take such other actions as may be reasonably necessary to
facilitate the registration of the Registrable Securities hereunder.
Warrantholder shall furnish to the Company such information regarding the
distribution of such securities as the Company may from time to time reasonably
request in writing.
If the Company delivers a certificate in writing to Warrantholder to the
effect that a delay in the sale of Registrable Securities by Warrantholder under
the Registration Statement is necessary because a sale pursuant to such
Registration Statement in its then current form would reasonably be expected to
constitute a violation of the federal securities laws, then Warrantholder shall
agree not to sell or otherwise transfer such Registrable Securities for the
period of time specified by the Company in its certificate. In no event shall
such delay exceed ten (10) business days; provided, however, that if, prior to
the expiration of such ten (10) business day period, the Company delivers a
certificate in writing to Warrantholder to the effect that a further delay in
such sale beyond such ten (10) business day period is necessary because a sale
pursuant to such Registration Statement in its then current form would
reasonably be expected to constitute a violation of the federal securities laws,
the Company may refuse to permit Warrantholder to resell any Registrable
Securities pursuant to such Registration Statement for one additional period not
to exceed five (5) business days.
7.3 Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Agreement, including without
limitation all registration and filing fees, fees with respect to the filings
required to be made with the National Association of Securities Dealers,
Inc., fees and expenses of compliance with the securities or Blue Sky laws,
printing expenses, messenger, telephone and delivery expenses, fees and
disbursements of counsel for the Company, fees and
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disbursements of all independent certified public accountants of the Company,
fees and expenses incurred in connection with the listing of the securities,
rating agency fees and the fees and expenses of any person, including special
experts, retained by the Company, will be borne by the Company, regardless of
whether the Registration Statement becomes effective; provided, however, that
the Company will not be required to pay discounts, commissions or fees of
underwriters, selling brokers, dealer managers or similar securities industry
professionals relating to the distribution of the Registrable Securities or
fees or disbursements of any counsel to Warrantholder.
7.4 Underwritten Registrations; Selection of Underwriter. If the
Warrantholder so elects, the offering of Registerable Securities shall be in the
form of an underwritten offering and the Company shall have the exclusive right
to designate the managing underwriter or underwriters with respect to the
related offering of the Registerable Securities, which underwriter or
underwriters must be reasonably acceptable to the Warrantholder.
7.5 Rule 144. The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and it
will take such further action as Warrantholder may reasonably request, all to
the extent required to enable Warrantholder to sell Registrable Securities
without registration under the Securities Act in reliance on the exemption
provided by Rule 144 or Rule 144A or any successor or similar rules or statues.
Upon the request of Warrantholder, the Company will deliver to Warrantholder a
written statement as to whether the Company has complied with such information
and requirements.
7.6 Transfer or Assignment of Registration Rights. The rights to cause
the Company to register Securities and all related rights granted to
Warrantholder by the Company under this Section 7 may be transferred or assigned
by Warrantholder only to a transferee or assignee of not less than 100,000
shares of Registrable Securities (as presently constituted and subject to
subsequent adjustments for stock splits, stock dividends, reverse stock splits,
and the like), provided that the Company is given written notice at the time of
or within a reasonable time after such transfer or assignment, stating the name
and address of the transferee or assignee and identifying the Securities with
respect to which such registration rights are being transferred or assigned,
and, provided further, that the transferee or assignee of such rights assumes
the obligations of Warrantholder under this Section 7.
7.7 "Market Stand-Off" Agreement. If requested by the Company and an
underwriter of Common Stock (or other securities) of the Company, Warrantholder
shall not sell or otherwise transfer or dispose of any Common Stock (or other
securities) of the Company held by Warrantholder (other than those included in
the registration) during the one hundred twenty (120) day period
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following the effective date of a registration statement of the Company filed
under the Securities Act.
The obligations described in this Section 7.7 shall not apply to a
registration relating solely to employee benefit plans on Form S-1 or Form S-8
or similar forms that may be promulgated in the future, or a registration
relating solely to a Rule 145 transaction on Form S-4 or similar forms that may
be promulgated in the future. The Company may impose stop-transfer instructions
with respect to the Securities subject to the foregoing restriction until the
end of such one hundred twenty (120) day period.
Each time the Company invokes its Market Stand-off rights under this
Section 7.7 while the Warrantholder is entitled to make a Demand Request, the
period during which the Warrantholder shall be entitled to make a Demand Request
under Section 7.2 hereof shall be extended by an additional one hundred twenty
(120) days; provided, however, that the Warrantholder's Demand Request period
will not be extended following the first Market Stand-Off unless such Market
Stand-Off occurs within one hundred twenty (120) days of the expiration of the
Warrantholder's Demand Request period.
7.8 Indemnification. In the event any Registrable Securities are included
in a Registration Statement under this Section 7:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless the Warrantholder, any person or entity to or through whom the
Warrantholder sells Registerable Securities that may be deemed to be an
underwriter (as defined in the Securities Act), any officer, director, partner
or agent thereof, and each person, if any, who controls the Warrantholder or
underwriter within the meaning of the Securities Act or the Exchange Act against
any and all losses, claims, damages, or liabilities (joint or several) to which
they may become subject under the Securities Act, the Exchange Act or other
United States federal or state securities law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in any related registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto or offering circular or in any application
or other document or communication executed by or on behalf of the Company
relating to such registration (together, "Selling Documents"), (ii) the 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 (iii)
any violation or alleged violation by the Company of the Securities Act, the
Exchange Act or other United States federal or state securities law, or any rule
or
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regulation promulgated under the Securities Act, the Exchange Act or other
United States federal or state securities law; and the Company will pay to
the Warrantholder, underwriter or controlling person any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action as incurred;
provided, however, that the indemnity agreement contained in this subsection
7.8(a) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability, or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability, or action to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration
by the Warrantholder, underwriter or controlling person.
(b) To the extent permitted by law, the Warrantholder will indemnify and
hold harmless the Company, each of its directors, each of its officers who has
signed the Selling Document, each person, if any, who controls the Company
within the meaning of the Securities Act, any underwriter, any officer,
director, partner or agent thereof and any controlling person of any such
underwriter, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Securities Act, the Exchange Act or other United States federal or state
securities law insofar as such losses, claims, damages, or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by the
Warrantholder expressly for use in connection with such registration; and the
Warrantholder will pay any legal or other expenses reasonably incurred by any
person intended to be indemnified pursuant to this subsection 7.8(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 7.8(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Warrantholder, which consent shall not be
unreasonably withheld; provided further, that in no event shall any indemnity
under this subsection 7.8(b) exceed the proceeds (net of underwriting discounts
and commissions) from the related offering of the Registerable Securities
received by the Warrantholder.
(c) After receipt by an indemnified party under this Section 7.8 of notice
of the commencement of any action (including any governmental action) involving
a claim referred to in Sections 7.8(a) or 7.8(b) hereof, such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying party
under this Section 7.8, deliver to the
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indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 7.8, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section
7.8.
(d) If the indemnification provided for in this Section 7.8 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 that resulted in such loss, liability, claim,
damage, or expense as well as any other relevant equitable considerations;
provided, however, that in any such case, (A) the Warrantholder will not be
required to contribute any amount in excess of the proceeds (net of underwriting
discounts and commissions) received by the Warrantholder from all Registrable
Securities offered and sold by the Warrantholder pursuant to the applicable
Selling Document; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person or entity who was not guilty of
such fraudulent misrepresentation. The relative fault of the indemnifying party
and of the indemnified party shall be determined by reference to, among other
things, whether the Violation 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.
15
(e) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in any underwriting agreement entered
into by the Company in connection with an underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control, provided that the Warrantholder is a signatory to the
underwriting agreement.
(f) The obligations of the Company and the Warrantholder under this
Section 7.8 shall survive the completion of any offering of Registrable
Securities in a Registration Statement under this Section 7 and otherwise.
8. Notices of Corporate Action.
In the event of
(a) any taking by the Company of a record of the holders of any class of
securities for the purpose of determining the holders thereof who are entitled
to receive any dividend or other distribution, or any right to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right, or
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any Change of Control,
or
(c) any voluntary or involuntary dissolution, liquidation or winding-up of
the Company,
the Company will mail to the Warrantholder a notice specifying (i) the date or
expected date on which any such record is to be taken for the purpose of such
dividend, distribution or right and the amount and character of any such
dividend, distribution or right, (ii) the date or expected date on which any
such reorganization, reclassification, recapitalization, Change of Control,
dissolution, liquidation or winding-up is to take place and the time, if any
such time is to be fixed, as of which the holders of record of Common Stock (or
other securities) shall be entitled to exchange their shares of Common Stock (or
other securities) for the securities or other property deliverable upon such
reorganization, reclassification, recapitalization, Change of Control,
dissolution, liquidation or winding-up and (iii) that in the event of a Change
of Control, the Warrants are exercisable immediately prior to the consummation
of such Change of Control. Such notice shall be mailed at least 20 days prior
to the date therein specified, in the case of any date referred to in the
foregoing subdivision (i), and at least 20 days prior to the date therein
specified, in the case of the date referred to in the foregoing subdivision
(ii).
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9. Definitions.
As used herein, unless the context otherwise requires, the following terms
have the following respective meanings:
Business Day: any day other than a Saturday, Sunday or a day on which
national banks are authorized by law to close in the City of New York, State of
New York.
Change of Control: shall mean (i) the consolidation of the Company with or
merger of the Company with or into any other person in which the Company is not
the surviving corporation, (ii) the sale of all or substantially all of the
assets of the Company to any other person or (iii) any sale or transfer of any
capital stock of the Company after the date of this agreement, following which
more than fifty percent (50%) of the combined voting power of the Company
becomes beneficially owned by one person or group acting together. For purposes
of this definition, "group" shall have the meaning as such term is used in
Section 13(d)(1) under the Exchange Act.
Company: The Immune Response Corporation, a Delaware corporation.
Exchange Act: the Securities Exchange Act of 1934, as amended, or any
successor federal statute, and the rules and regulations of the SEC thereunder,
all as the same shall be in effect at the time. Reference to a particular
section of the Securities Exchange Act of 1934, as amended, shall include a
reference to a comparable section, if any, of any successor federal statute.
Exercise Form: an Exercise Form in the form annexed hereto as Exhibit A.
Exercise Price: the meaning specified on the cover of this Warrant, as
such price may be adjusted pursuant to Section 6 hereof.
Nasdaq: the meaning specified in Section 1.1(c)(ii).
SEC: the Securities and Exchange Commission or any other federal agency at
the time administering the Securities Act or the Exchange Act, whichever is the
relevant statute for the particular purpose.
Securities Act: the Securities Act of 1933, as amended, or any successor
federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time. Reference to a particular section
of the Securities Act of 1933, as amended, shall include a reference to the
comparable section, if any, of any successor federal statute.
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Warrantholder: the meaning specified on the cover of this Warrant.
Warrant Shares: the meaning specified on the cover of this Warrant,
subject to the provisions of Section 6.
10. Miscellaneous.
10.1 Entire Agreement. This Warrant constitutes the entire agreement
between the Company and the Warrantholder with respect to this Warrant and
supersede all prior agreements and understandings, both written and oral, with
regard to the subject matter hereof.
10.2 Binding Effects; Benefits. This Warrant shall inure to the benefit of
and shall be binding upon the Company and the Warrantholder and their respective
successors. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company and the Warrantholder, or
their respective successors, any rights, remedies, obligations or liabilities
under or by reason of this Warrant.
10.3 Amendments and Waivers. This Warrant may not be modified or amended
except by an instrument or instruments in writing signed by the Company and the
Warrantholder. Either the Company or the Warrantholder may, by an instrument in
writing, waive compliance by the other party with any term or provision of this
Warrant on the part of such other party hereto to be performed or complied with.
The waiver by any such party of a breach of any term or provision of this
Warrant shall not be construed as a waiver of any subsequent breach.
10.4 Section and Other Headings. The section and other headings contained
in this Warrant are for reference purposes only and shall not be deemed to be a
part of this Warrant or to affect the meaning or interpretation of this Warrant.
10.5 Further Assurances. Each of the Company and the Warrantholder shall
do and perform all such further acts and things and execute and deliver all such
other certificates, instruments and documents as the Company or the
Warrantholder may, at any time and from time to time, reasonably request in
connection with the performance of any of the provisions of this agreement.
10.6 Notices. All notices and other communications required or permitted
to be given under this Warrant shall be in writing and shall be deemed to have
been duly given if delivered personally or sent by United States mail, postage
prepaid, to the parties hereto at the following addresses or to such other
address as any party hereto shall hereafter specify by notice to the other party
hereto:
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(a) if to the Company, addressed to:
The Immune Response Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Warrantholder, addressed to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D.
The Immune Response Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Except as otherwise provided herein, all such notices and communications shall
be deemed to have been received on the date of delivery thereof, if delivered
personally, or on the third Business Day after the mailing thereof.
10.7 Severability. Any term or provision of this Warrant which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the terms and provisions of this Warrant or
affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
10.8 Governing Law. This Warrant shall be governed by and interpreted in
accordance with the laws of the State of Delaware, except as they may be
preempted by federal law. In any action brought or arising out of this Warrant,
the Warrantholder and the Company hereby consent to the jurisdiction of any
federal or state court having proper venue within the State of California and
also consent to the service of process by any means authorized by California or
federal law.
4
10.9 Termination. This Warrant shall expire at 5:00 P.M., Pacific standard
time, on the fourth anniversary hereof; provided, however, that the rights and
obligations of the Company and the Warrantholder under Section 7.8 hereof shall
survive such termination.
10.10 No Rights or Liabilities as Stockholder. Nothing contained in this
Warrant shall be determined as conferring upon the Warrantholder any rights as a
stockholder of the Company until the Warrantholder exercises this Warrant in
whole or in part, or as imposing any liabilities on the Warrantholder to
19
purchase any securities whether such liabilities are asserted by the Company or
by creditors or stockholders of the Company or otherwise.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer.
Dated: June 26, 1997.
THE IMMUNE RESPONSE CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title Vice President
---------------------------
20
Exhibit A
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT FILED UNDER SUCH ACT OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT.
EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to purchase Warrant Shares and (check one):
/ / herewith tenders payment for _______ of the Warrant Shares to
the order of The Immune Response Corporation in the amount of
$_________ in accordance with the terms of this Warrant; or
/ / herewith tenders this Warrant for _______ Warrant Shares
pursuant to the Net Issue Exercise provisions of Section
1.1(b) of the Warrant.
The undersigned requests that a certificate (or certificates) for such
Warrant Shares be registered in the name of the undersigned and that
such certificate (or certificates) be delivered to the undersigned's
address below.
In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the Warrant Shares are being acquired for investment
solely for the account of the undersigned and not as a nominee for any
other party, and that the undersigned will not offer, sell or otherwise
dispose of any such Warrant Shares except under circumstances that will
not result in a violation of the Securities Act of 1933, as amended, or
any state securities laws.
Dated: ___________________.
Signature
----------------------------------------
----------------------------------------
(Print Name)
----------------------------------------
(Street Address)
----------------------------------------
(City) (State) (Zip Code)
If said number of shares shall not be all the shares purchasable
under the within Warrant, a new Warrant is to be issued in the name of
said undersigned for the balance remaining of the shares purchasable
thereunder.
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