EXHIBIT 10.10
MODIFICATION AND WAIVER AGREEMENT
THIS MODIFICATION AND WAIVER AGREEMENT (this "Agreement"), is made
effective as of the 14th day of September, 2004, by and between Chemokine
Therapeutics Corp., a Delaware corporation (the "Chemokine"), and Pharmaceutical
Product Development, Inc., a North Carolina corporation ("PPD").
RECITALS
A. Chemokine and PPD entered into a certain Loan and Stock Warrant
Agreement dated effective as of October 16, 2002 (the "Loan Agreement"), a
Warrant Agreement dated as of November 13, 2002 (the "Warrant Agreement"), an
Agreement Re: Exercise of Stock Warrant dated April 15, 2003 ("Exercise
Agreement"), an Option and License Agreement dated April 15, 2003 ("License
Agreement") and an Exclusive Provider Master Services Agreement dated April 15,
2003 ("Master Services Agreement") (the Loan Agreement, Warrant Agreement,
Exercise Agreement, License Agreement and Master Services Agreement are
sometimes referred to herein collectively as the "Existing Agreements").
B. Chemokine intends to make an initial public offering of its shares of
common stock ("IPO") and register the shares on Form SB-2 Registration Statement
with the Securities and Exchange Commission and with the relevant Canadian
securities regulatory authorities. For purposes of this Agreement only,
Chemokine has provided the Registration Statement Form SB-2, containing the
Preliminary Prospectus for the IPO as filed with the Securities and Exchange
Commission on August 2, 2004, (collectively, the "IPO Documents") to PPD.
C. Due to certain restrictions in the Existing Agreements, Chemokine has
requested PPD to consent to the IPO and the other agreements set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Chemokine and PPD covenant to and agree with each other as follows:
1. Payment of Payables. Immediately upon execution of this Agreement,
Chemokine will pay to PPD the current outstanding receivables of US$135,000.
2. Consent to IPO. PPD consents to the IPO with shares of Chemokine's
common stock being offered upon the terms set forth in the IPO Documents
submitted to PPD. PPD's consent herein shall be ineffective with respect to any
material changes which are made to the IPO Documents without PPD's written
consent. As used herein, a "material change" means and refers to any
modification which may have an adverse financial or legal impact upon PPD, upon
PPD's stock in Chemokine, or upon PPD's rights under the Existing Agreements,
except that Chemokine and its selling agent may set the IPO offering price in
good faith at the price accepted in the marketplace. Chemokine acknowledges to
and agrees with PPD as follows: (a)
Chemokine has provided the IPO Documents to PPD solely for the purposes of this
Agreement; (b) PPD is not a participant in the IPO in any manner; (c) PPD has no
duty to Chemokine or any third party to review the IPO Documents or to confirm
the accuracy of any provisions therein (and, in this respect, any review of the
IPO Documents by PPD is solely to protect its interests under the Existing
Agreements); and (d) the consent herein is not an endorsement of the IPO by PPD.
3. Deletion of Certain Covenants in Loan and Stock Warrant Agreement.
The parties agree that, effective upon the closing of the IPO, Chemokine shall
have no obligations under sections 4.01, 4.03, 4.04, 4.06, 4.07, 4.11, 4.12,
4.13, 4.14, 4.15, 4.17 and 4.18 of the Loan Agreement from and after the IPO
closing (it being understood that, except as set forth in Paragraph 8 below, all
obligations required to be performed under such sections prior to the IPO
closing are expressly preserved). Notwithstanding anything in the Loan Agreement
or in the following enumerated sections thereof to the contrary, (a) sections
4.02 and 4.05 of the Loan Agreement shall remain in effect and shall terminate
only when Chemokine has fulfilled such covenants, and (b) sections 4.08, 4.09,
4.10, and 4.16 of the Loan Agreement shall remain in effect and shall terminate
only when PPD no longer holds at least 750,000 shares of Chemokine's common or
preferred stock, or a combination thereof (which number of shares shall be
proportionately adjusted for stock splits, combinations, reclassifications,
mergers, consolidations, reorganizations or otherwise).
4. Covenant Regarding Preferred Stock. Chemokine covenants that it
shall restrict future issuances of its Series A Preferred Stock so that no more
than 2,500,000 shares of its Series A Preferred Stock shall be outstanding at
any time without the prior written consent of PPD. This covenant shall terminate
only when PPD no longer holds at least 1,250,0000 shares of Chemokine's Series A
Preferred Stock (which number of shares shall be proportionately adjusted for
stock splits, combinations, reclassifications, mergers, consolidations,
reorganizations or otherwise).
5. Exclusive Provider Master Services Agreement. The parties agree
that, effective upon the closing of the IPO, the Master Services Agreement shall
be rescinded; provided, however, that such rescission shall not affect or impair
any obligations of Chemokine to PPD which have accrued or are due in respect of
periods prior to the closing of the IPO.
6. Section 12.02 of Option and License Agreement. Chemokine agrees that
the email communication of May 10, 2004, from Xx. Xxxxxx Xxxxxx to Xxxxxx Xxxxx
constitutes the Non-Licensed CT Compound License Notice contemplated by Section
12.02 of the License Agreement with respect to compounds CTCM-226, CTCE-9908,
CTCM-189, XXXX-0000, XXXX-0000, XXXX-0000, XXXX-0000, CTCM-111 and that the
email communication of July 1, 2004, from Xx. Xxxxxx Xxxxxx to Xxxxxx Xxxxx
constitutes the Non-Licensed CT Compound License Notice contemplated by Section
12.02 of the License Agreement with respect to compounds XXXX-0000, XXXX-0000,
CTCE-02111 and CTCE-02112. Further, the parties agree that, effective upon the
closing of the IPO, section 12.02 of the License Agreement shall be
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amended to read in full as follows (and the time periods following the foregoing
notices shall be determined in accordance with amended section 12.02 as if
section 12.02, as amended hereby, had been in effect at the time the foregoing
notices were given):
12.02 Right to First Negotiate for a Non-Licensed CT Compound.
In the event Licensor desires to grant an exclusive license to
develop, use, offer for sale or sell any compound that is owned or
Controlled by CT and that is a compound other than a CT Compound
("Non-Licensed CT Compound") to any Third Party, Licensor shall notify
Licensee thereof in writing (the "Non-Licensed CT Compound License
Notice"). Licensee shall notify Licensor in writing within thirty (30)
business days of receipt of the Non-Licensed CT Compound License Notice
whether or not it desires to acquire an exclusive license of the
Non-Licensed CT Compound identified in the Non-Licensed CT Compound
License Notice. In the event Licensee fails to notify Licensor in writing
within such 30-day period or notifies Licensor that it does not desire to
obtain an exclusive license for such Non-Licensed CT Compound, then
Licensor shall have the right for a period of six (6) months after either
the receipt of such notice from Licensee or the expiration of the 30-day
period to grant to any Third Party an exclusive license to develop, use,
offer for sale or sell said Non-Licensed CT Compound on terms and
conditions acceptable to Licensor in its sole discretion. Such time period
shall be extended for one (1) additional thirty (30) day period as
required (an "Extension") if the parties are using their best efforts and
negotiating in good faith to reach such an agreement, and have made
significant progress in so doing, but cannot conclude such negotiations
and/or execute a definitive agreement within such six-month period. If
Licensor and a Third Party do not enter into a definitive agreement for an
exclusive license or other business arrangement of the Non-Licensed CT
Compound within this six month period (or longer in the case of an
Extension), the restrictions set forth in this Section 12.02 shall again
become effective.
In the event Licensee notifies Licensor that it desires to enter
into negotiations with Licensor to acquire an exclusive license for the
Non-Licensed CT Compound identified in the Non-Licensed CT Compound
License Notice (the "Exercise Notice"), Licensee shall thereafter have the
right, for a period of three (3) months after receipt of the Non-Licensed
CT Compound License Notice (the "Negotiation Period"), to negotiate,
execute and deliver a definitive agreement for the exclusive license to
develop, use, offer for sale or sell such Non Licensed CT Compound. Such
time period shall be extended for one (1) additional thirty (30) day
period as required (an "Extension") if the parties are using their best
efforts and negotiating in good faith to reach such an agreement, and have
made significant progress in so doing, but cannot conclude such
negotiations and/or
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execute a definitive agreement within such Negotiation Period. In the
event Licensee and Licensor do not enter into a definitive agreement for
the license of the Non-Licensed CT Compound on or before the expiration of
the Negotiation Period or an Extension thereof, then Licensor shall have
the right for a period of six (6) months after the expiration of such
Negotiation Period (or longer in the event of one (1) permitted thirty
(30) day Extension) to grant to any Third Party a license to develop, use,
offer for sale or sell the Non-Licensed CT Compound on terms and
conditions which are, on the whole, no more favorable to such Third Party
than the terms and conditions, if any, last offered by Licensee to
Licensor during the Negotiation Period or an Extension thereof. If
Licensor and a Third Party do not enter into a definitive agreement for an
exclusive license of the Non-Licensed CT Compound within the six-month
period (or longer in the case of an Extension), the restrictions set forth
in this Section 12.02 shall again become effective.
7. Agreement Re: Exercise of Stock Warrant. The parties agree that,
effective as of the closing of the IPO, the Exercise Agreement shall be amended
as follows: (a) subsections 4(a) and 4(b) shall be deleted, and (b) Section 4(f)
shall be amended to delete any reference to and any inclusion of the Master
Services Agreement.
8. Waiver of Breaches. Chemokine does not concede or acknowledge any
breach or violation of any provision of any agreement with PPD; however, to the
extent that Chemokine might have committed any such breach or violation prior to
the date hereof, PPD agrees to waive, effective as of the closing of the IPO,
any such past breach or violation and releases Chemokine, effective as of the
closing of the IPO, from any loss, claim, liability, damage, cause of action, or
other harm to PPD, known and unknown, arising therefrom or related thereto, with
respect to the following provisions: (a) Loan Agreement - sections 4.01,
4.03(a), (b) (but only with respect to the Permitted Amendment) and (d), 4.04,
4.08, 4.10 (to the extent disclosed in the Form SB-2 Registration Statement),
and 4.17(a); and (b) Exercise Agreement - 4(a), 4(b), 4(i), 4(d) (but only to
the extent of waiving any breach of the "time is of the essence" clause), and
4(e) (but only to the extent of waiving any breach of the "time is of the
essence" clause). The waivers in this Paragraph 8 shall not constitute a consent
to, waiver of, or excuse for, any future breach of the same or similar nature.
PPD consents to the amendment of Article IV of the restated and amended
certificate of incorporation of Chemokine to increase the authorized number of
shares of common stock to fifty million shares in the form attached hereto as
Attachment C (the "Permitted Amendment").
9. Consulting Services. Chemokine shall enter into a six month
consulting agreement with PPD pursuant to which PPD shall render guidance and
advice to Chemokine in connection with the development of CTCE-0214. The
consulting agreement shall be in the form of the Consulting Agreement attached
hereto as Attachment A (the "Consulting Agreement"). The parties shall execute
and deliver the Consulting Agreement contemporaneously with the
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execution hereof, and the Consulting Agreement shall become effective as of the
closing of the IPO. Pursuant to the Consulting Agreement, Chemokine shall pay to
PPD a consulting fee of US$150,000 in six equal monthly payments commencing upon
the closing of the IPO.
10. Additional Warrants. Chemokine shall grant to PPD warrants to
purchase 500,000 shares of common stock at an exercise price equal to the IPO
price per share to be exercised at PPD's option, within 36 months of the closing
of the IPO pursuant to the Registration Statement filed with the SEC in
connection with the IPO. The warrants shall be governed by the terms of the
Warrant Agreement attached to this Agreement as Attachment B (the "2004 Warrant
Agreement"). The parties shall execute and deliver the 2004 Warrant Agreement
contemporaneously with the execution hereof, and the 2004 Warrant Agreement
shall become effective as of the closing of the IPO. The warrants shall have a
"cashless" exercise feature such that the number of shares to be issued if the
cashless exercise is chosen will be the total equity built up in the warrants
divided by the then-current common share price. The shares to be issued would be
included in a then-current registration statement, if any, or on Form S-3 if
Chemokine is eligible to use Form S-3.
11. Phase I Clinical Studies. Chemokine shall use a sufficient amount of
the proceeds of the IPO to perform to completion the CTCE-0214 "Phase I Study"
as defined in Section 1.22 of the License Agreement (herein, the "Phase I
Clinical Studies"). An initial protocol of the Phase I Clinical Studies shall be
performed in accordance with the Study Protocol between the parties dated April
26, 2004 entitled "A DOUBLE-BLIND, ACTIVE-AND PLACEBO-CONTROLLED DOSE-ESCALATION
STUDY OF THE SAFETY, PHARMACOKINETICS, AND PHARMACODYNAMICS OF A SINGLE
SUBCUTANEOUS DOSE OF CTCE-0214 ADMINISTERED TO HEALTHY HUMAN SUBJECTS", as the
same was heretofore amended by amendment dated August 5, 2004 entitled "Protocol
Amendment Summary" and as the same may be hereafter amended in accordance with
its own terms (collectively, the "Initial Protocol"). The provisions of the
Initial Protocol are incorporated herein by this reference. The Phase I Study
set forth in Section 1.22 of the License Agreement includes, without limitation,
the Phase I clinical study contemplated in the Initial Protocol (the "Initial
Protocol Study") and the Phase I clinical studies set forth in Schedules 4(e)-1
and 4(e)-2 of the Exercise Agreement (the Phase I Study is expressly not limited
to the Initial Protocol Study). On or before the IPO closing, Chemokine will
initiate the Phase I Clinical Studies and thereafter will use commercially
reasonable efforts to prosecute the Phase I Clinical Studies to completion
within 18 months of the initiation of the Phase I Clinical Studies. In addition,
on or before the IPO closing, Chemokine will initiate the Initial Protocol Study
and thereafter will use commercially reasonable efforts to prosecute the Initial
Protocol Study to completion within 8 months of the initiation of the Initial
Protocol Study. Chemokine will be solely responsible for all costs and expenses
associated with the Phase I Clinical Studies. In order to confirm Chemokine's
compliance with the covenants in this Paragraph 11, PPD (or its designee) shall
have the right, during business hours and upon reasonable notice, to examine
Chemokine's
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books and records pertaining to CTCE-0214 and to discuss all aspects of
CTCE-0214 with Chemokine's officers, employees and public accountants (Chemokine
hereby authorizes said officers, employees and public accountants to discuss all
aspects of CTCE-0214 with PPD or its designee).
12. Captions. All captions contained in this Agreement are for reference
only and do not interpret, define, or limit the scope, extent, or intent of this
Agreement or any of its provisions.
13. Counterpart Execution. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, with the same effect
as if all parties had executed the same counterpart. All counterparts shall be
construed together and shall constitute one Agreement.
14. Number; Gender; Dollars. As used in this Agreement and when required
by the context, the singular number shall include the plural and the masculine
gender shall include the feminine and neuter genders and the word "person" shall
include corporation, firm, partnership, individual, or other form of
association. All references to "dollars" or "$" in this Agreement shall mean and
refer to dollars in United States currency, unless specifically indicated as
Canadian currency.
15. Drafting Agreement. The parties are of equal bargaining strength and
have had the opportunity to discuss and negotiate this Agreement in detail. Each
of the parties waives all provisions of law that would otherwise require this
Agreement to be construed against the party drafting this Agreement. Each party
shall be deemed to have drafted this Agreement.
16. Further Assurances. The parties shall from time to time, without
further consideration, do and perform all such further acts and things and
execute all such further documents and instruments that may be reasonably
requested to ensure the carrying out of the intent and purpose of this
Agreement. Each party shall perform its obligations under this Agreement in
accordance with all applicable laws, rules, and regulations now or hereafter in
effect. Except where expressly stated to the contrary in this Agreement, all
rights and remedies specified are cumulative and are not exclusive of any rights
or remedies provided by law or in equity.
17. Notices. Any notice required or permitted to be given hereunder
shall be given in accordance with the terms of the Loan Agreement.
18. Severability. If any provision in this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
19. Governing Law. This Agreement will be governed by the laws of the
State of North Carolina without regard to conflicts of laws principles.
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20. Jurisdiction; Venue. Chemokine hereby irrevocably agrees that any
legal action or proceeding arising out of or relating to this Agreement or any
other claims which may arise out of its relationship with PPD may be instituted
in the Superior Court in New Hanover County, North Carolina or in the United
States District Court for the Eastern District of North Carolina. Chemokine
consents to the jurisdiction of such courts and waives any objection to the
maintenance of any legal action or proceeding in any state or federal courts of
the State of North Carolina on the basis of improper venue or inconvenient
forum.
21. Integrated Agreement; Amendment. This Agreement constitutes the
entire understanding and agreement between the parties with respect to the
subject matter of this Agreement, and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties; there are no agreements, understandings, restrictions, representations,
or warranties other than those set forth in this Agreement. All schedules,
exhibits, attachments and appendices attached hereto and referenced herein are
incorporated herein and are an integral part of this Agreement for all purposes.
This Agreement may be amended only by an instrument in writing signed by all
parties that expressly refers to this Agreement and specifically states that it
is intended to amend it. Furthermore, this Agreement may not be modified by an
oral agreement even though supported by new consideration.
22. No Waiver. No term or provision of this Agreement shall be waived or
any breach of this Agreement excused except in writing signed by the party that
is claimed to have so waived or excused. No waiver of any provision of this
Agreement shall constitute a waiver of any other provision. Any consent or
waiver by any party to any breach of this Agreement by the other party, whether
expressed or implied, shall not constitute a consent to, waiver of, or excuse
for, any other breach. The failure of any party to give notice to the other
party, or to take any other step in respect of, any breach of any provision of
this Agreement shall not constitute a waiver thereof. Acceptance of payment by a
party after the breach of any provision of this Agreement by the other party
shall not constitute a waiver thereof.
23. Relationship Between the Parties. This Agreement does not constitute
and shall not be construed as constituting a partnership or joint venture
between the parties. No party shall have the right to obligate or bind the other
party in any manner whatsoever. Neither party is an agent of the other party.
24. Binding on Successors. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto, whether so expressed or not.
25. Time of Essence. Time is of the essence with respect to all dates
and time periods set forth herein.
26. No Claims. Except as to future obligations and future performance
required by the Existing Agreements, as modified by this Agreement, Chemokine
agrees that, as of the date hereof, there are no claims, causes of action,
debts, demands, damages, losses, costs or expenses (including attorneys' fees)
of any kind, character or nature whatsoever, known or unknown, fixed
7
or contingent, which Chemokine may have or claim to have against PPD or any of
its subsidiaries or affiliates. In consideration of PPD's entrance into this
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Chemokine hereby releases and forever
discharges PPD and its subsidiaries and affiliates, and its and their officers,
directors, agents, attorneys, successors and assigns, from and against any and
all claims, causes of action, debts, demands, damages, losses, costs or expenses
(including attorneys' fees) of any kind, character or nature whatsoever, known
or unknown, fixed or contingent, whether at law or in equity, in contract or
tort, that, as of the date hereof, Chemokine has, may now have or may hereafter
have.
27. Ratification. Except as modified or supplemented by this Agreement,
all of the terms and conditions of the Existing Agreements are hereby ratified
and confirmed and remain in full force and effect.
28. Obligations Contingent upon Closing of IPO. The obligations of the
parties to this Agreement in Paragraphs 2 through 11 above are contingent upon
the closing of the IPO on or before February 28, 2005 (the "Termination Date").
If the IPO does not close on or before the Termination Date, then Paragraphs 2
through 11 above shall be null and void and of no force or effect. The IPO shall
be deemed closed for purposes of this Agreement at such time as Chemokine shall
issue a minimum of eight million shares of common stock registered under the
SB-2 Registration Statement for the IPO.
[SIGNATURE PAGE FOLLOWS]
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EXECUTION PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
or have caused this Agreement to be duly executed on their respective behalf by
their respective officers thereunto duly authorized, as of the day and year
first above written.
Chemokine Therapeutics Corp. Pharmaceutical Product Development, Inc.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxx Xxxxxxxxx
Xx. Xxxxxx Xxxxxx, President Title: President
ATTACHMENT A
2004 CONSULTING AGREEMENT
THIS 2004 CONSULTING AGREEMENT (this "Agreement"), is made by and between
Chemokine Therapeutics Corp., a Delaware corporation (the "Chemokine"), and
Pharmaceutical Product Development, Inc., a North Carolina corporation ("PPD"),
as of September 14, 2004.
RECITALS
A. Chemokine is engaged in the development and sale of pharmaceutical
products;
B. PPD is a clinical research organization engaged in the business of
managing research and development programs for pharmaceutical and biotechnology
companies;
C. Chemokine is in the process of registering shares of common stock
with the Securities and Exchange Commission on Form SB-2 for purposes of a
public offering to raise capital to further its research and development
activities. The IPO shall be deemed closed for purposes of this Agreement at
such time as Chemokine shall issue a minimum of eight million shares of common
stock registered under the SB-2 Registration Statement for the IPO ("IPO Date").
D. Pursuant to agreements previously entered into between the parties,
Chemokine and PPD each has an interest in the development of CTCE-0214.
E. Chemokine desires to seek advice and consultation from PPD in
connection with the development of CTCE-0214, and PPD has agreed to provide the
same to Chemokine.
WHEREFORE, in consideration of the premises and covenants contained
herein, the parties agree as follows:
1. Consulting Advice. In the six-month period following the IPO Date,
PPD shall consult with Chemokine from time to time as requested by Chemokine in
connection with issues relating to the development of CTCE-0214, including the
following: a) the design and execution of clinical trials; b) the evaluation of
the results of clinical trials; and c) the design, execution and evaluation of
research and development activities. Such consultation may take the form of
telephone conversations, telephone conferences, televideo conferences, and the
evaluation of written materials. Such consultation shall not require in person
meetings.
2. Coordination with PPD. Notwithstanding PPD's commitment to
consultation, PPD shall be required to render such consultation only upon
reasonable prior notice and at such
times and places which (i) are reasonably acceptable to PPD, and (ii) do not
unduly interfere with the ability of PPD to conduct its own business activities.
3. Compensation to PPD. As consideration for this consulting advice,
Chemokine shall pay to PPD the sum of $150,000 (United States currency) in six
equal monthly installments. The first monthly installment shall be due on or
immediately after the IPO Date, and the remaining monthly installments shall be
due on the same day of the five (5) succeeding months thereafter. Chemokine
shall pay the monthly installments to PPD regardless of (i) whether and/or to
what extent Chemokine has requested consultation from PPD during any particular
month, and (ii) the frequency or scope of consultation rendered by PPD during
any particular month.
4. Confidentiality. PPD shall be subject to the same confidentiality
obligations, duties and responsibilities that exist under the current agreements
between PPD and Chemokine.
5. Termination. If Chemokine is unsuccessful in completing the IPO,
then this Agreement shall terminate and the parties shall have no obligation to
each other under this Agreement.
6. Drafting Agreement. The parties are of equal bargaining strength and
have had the opportunity to discuss and negotiate this Agreement in detail. Each
of the parties waives all provisions of law that would otherwise require this
Agreement to be construed against the party drafting this Agreement. Each party
shall be deemed to have drafted this Agreement.
7. Notices. Any notice required or permitted to be given hereunder
shall be given at the main business addresses of the parties.
8. Severability. If any provision in this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
9. Governing Law. This Agreement will be governed by the laws of the
State of North Carolina without regard to conflicts of laws principles.
10. No Waiver. No term or provision of this Agreement shall be waived or
any breach of this Agreement excused except in writing signed by the party that
is claimed to have so waived or excused. No waiver of any provision of this
Agreement shall constitute a waiver of any other provision. Any consent or
waiver by any party to any breach of this Agreement by the other party, whether
expressed or implied, shall not constitute a consent to, waiver of, or excuse
for, any other breach. The failure of any party to give notice to the other
party, or to take any other step in respect of, any breach of any provision of
this Agreement shall not constitute a waiver thereof. Acceptance of payment by a
party after the breach of any provision of this Agreement by the other party
shall not constitute a waiver thereof.
11. Relationship Between the Parties. This Agreement does not constitute
and shall not be construed as constituting a partnership or joint venture
between the parties. No party shall have the right to obligate or bind the other
party in any manner whatsoever. Neither party is an agent of the other party.
12. Binding on Successors. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto, whether so expressed or not.
13. Jurisdiction; Venue. Chemokine hereby irrevocably agrees that any
legal action or proceeding arising out of or relating to this Agreement or any
other claims which may arise out of its relationship with PPD may be instituted
in the Superior Court in New Hanover County, North Carolina or in the United
States District Court for the Eastern District of North Carolina. Chemokine
consents to the jurisdiction of such courts and waives any objection to the
maintenance of any legal action or proceeding in any state or federal courts of
the State of North Carolina on the basis of improper venue or inconvenient
forum.
14. Integrated Agreement. This Agreement constitutes the entire
understanding and agreement between the parties with respect to the subject
matter of this Agreement, and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties; there are
no agreements, understandings, restrictions, representations, or warranties
other than those set forth in this Agreement.
[SIGNATURE PAGE FOLLOWS]
EXECUTION PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
or have caused this Agreement to be duly executed on their respective behalf by
their respective officers thereunto duly authorized, as of the day and year
first above written.
Chemokine Therapeutics Corp. Pharmaceutical Product Development, Inc.
By: _________________________________ By: _________________________________
Xx. Xxxxxx Xxxxxx, President Title: ______________________________
EXECUTION PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
or have caused this Agreement to be duly executed on their respective behalf by
their respective officers thereunto duly authorized, as of the day and year
first above written.
Chemokine Therapeutics Corp. Pharmaceutical Product Development, Inc.
By: _________________________________ By: _________________________________
Xx. Xxxxxx Xxxxxx, President Title: ______________________________
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ATTACHMENT B
2004 WARRANT AGREEMENT
THIS WARRANT AGREEMENT (the "Agreement"), dated as of September 14, 2004,
is made and entered into by and between CHEMOKINE THERAPEUTICS CORP., a Delaware
corporation (the "Company"), and PHARMACEUTICAL PRODUCT DEVELOPMENT, INC. (the
"Warrantholder").
This Agreement is executed and delivered pursuant to the terms and
conditions of that certain Modification and Waiver Agreement of even date by and
between the Company and the Warrantholder (the "Modification Agreement").
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Modification Agreement. Pursuant to and in accordance with the
terms and conditions of the Modification Agreement, the Company agrees to issue
and sell, and the Warrantholder agrees to purchase, for a purchase price of
$1.00, warrants, as hereinafter described (the "Warrants"), to purchase a number
of shares (the "Shares"), subject to adjustment pursuant to the terms hereof, of
the Company's Common Stock, $.001 par value (the "Common Stock").
In consideration of the foregoing and for the purpose of defining the
terms and provisions of the Warrants and the respective rights and obligations
thereunder, the Company and the Warrantholder, for value received, hereby agree
as follows:
Section 1. Transferability and Form of Warrants.
1.1 Registration. The Warrants shall be numbered and shall be
registered on the books of the Company when issued. The Company may deem and
treat the Warrantholder of record as the owner of the Warrants for the purpose
of any exercise thereof and any distribution to the holder thereof and for all
other purposes.
1.2 Transfer. The Warrants shall be transferable in whole or in
part only on the books of the Company maintained at its principal office in
Vancouver, British Columbia, or wherever its principal office may then be
located, upon delivery thereof duly endorsed by the Warrantholder or by its duly
authorized attorney or representative, accompanied by proper evidence of
succession, assignment or authority to transfer, and if reasonably determined by
counsel to the Company, an opinion of counsel reasonably satisfactory to the
Company that such transfer is exempt from registration under the Securities Act
of 1933, as amended (the "Act"). Upon any registration of transfer, the Company
shall execute and deliver new Warrants to the person or persons entitled
thereto, and the surrendered Warrants shall be canceled by the Company.
1.3 Transfer of the Warrants. The Warrants are freely
transferable by the Warrantholder, subject to applicable requirements of state
and federal securities laws and regulations and Section 1.5. The Warrants may be
divided or combined, upon request to the Company by the Warrantholder, into a
certificate or certificates representing the right to purchase the same
aggregate number of Shares. Unless the context indicates otherwise, the term
"Warrantholder" shall include any transferee or transferees of the Warrants
pursuant to this subsection 1.3, and the
14
term "Warrants" shall include any and all warrants outstanding pursuant to this
Agreement, including those evidenced by a certificate or certificates issued
upon division, exchange, substitution or transfer pursuant to this Agreement.
The Warrantholder agrees that prior to making any disposition of the Warrants or
the Shares, the Warrantholder shall give written notice to the Company
describing briefly the manner in which any such proposed disposition is to be
made; and no such disposition shall be made if the Company has notified the
Warrantholder that, in the opinion of counsel selected by the Company, a
registration statement or other notification or post-effective amendment thereto
(hereinafter collectively a "Registration Statement") under the Act is required
with respect to such disposition and no such Registration Statement has been
filed by the Company with, and declared effective, if necessary, by, the
Securities and Exchange Commission (the "Commission").
1.4 Form of Warrants. The text of the Warrants and the form of election
to purchase Shares shall be substantially as set forth in Exhibit A attached
hereto. The number of Shares issuable upon exercise of the Warrants is subject
to adjustment upon the occurrence of certain events, all as hereinafter
provided. The Warrants shall be executed on behalf of the Company by its
President or by a Vice President. A Warrant bearing the signature of an
individual who was at the time of signature the proper officer of the Company
shall bind the Company, notwithstanding that such individual shall have ceased
to hold such office prior to the delivery of such Warrant or did not hold such
office on the date of this Agreement.
The Warrants shall be dated as of the date of signature thereof by the
Company either upon initial issuance or upon division, exchange, substitution or
transfer.
1.5 Legend on Shares. Each Warrant certificate and certificate of Shares
initially issued upon exercise of the Warrants shall bear the following legend,
unless, at the time of exercise, such Shares are subject to a currently
effective registration statement under the Act:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE
SOLD, EXCHANGED, HYPOTHECATED OR TRANSFERRED IN ANY MANNER EXCEPT PURSUANT TO A
REGISTRATION OR AN EXEMPTION FROM SUCH REGISTRATION AND IN COMPLIANCE WITH THE
AGREEMENT PURSUANT TO WHICH THEY WERE ISSUED."
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution pursuant to a registration statement under the Act, of
the securities represented thereby) shall also bear the above legend unless, in
the opinion of the Company's counsel, the securities represented thereby need no
longer be subject to such restrictions. In addition, if the Shares deliverable
upon exercise of any Warrants are not subject to a currently effective
Registration Statement under the Act, the Warrantholder shall deliver to the
Company such representations and certifications as the Company, or the Company's
counsel, shall reasonably require in order to comply with applicable federal and
state securities laws for the issuance of such Shares.
15
Section 2. Exchange of Warrant Certificate. Any Warrant certificate may be
exchanged for another certificate or certificates entitling the Warrantholder to
purchase a like aggregate number of Shares as the certificate or certificates
surrendered then entitled the Warrantholder to purchase. Any Warrantholder
desiring to exchange a Warrant certificate shall make such request in writing
delivered to the Company, and shall surrender, properly endorsed, the
certificate evidencing the Warrant to be so exchanged. Thereupon, the Company
shall execute and deliver to the person or persons entitled thereto a new
Warrant certificate as so requested and the Warrants so surrendered for exchange
shall be canceled by the Company.
Section 3. Term of Warrants; Exercise of Warrants.
3.1 Subject to the terms of this Agreement, the Warrantholder shall have
the right, at any time during the period commencing at 9:00 a.m., Pacific Time,
on the date of the closing of the IPO, which shall be deemed closed for purposes
of this Agreement at such time as Chemokine shall issue a minimum of eight
million shares of common stock registered under the SB-2 Registration Statement
for the IPO ("IPO Closing Date") of the Company's initial public offering
("IPO") pursuant to an effective registrations statement filed on Form SB-2 on
August 2, 2004, and ending at 5:00 p.m., Pacific Time, on the Warrant
Termination Date, which shall be 36 months after IPO Closing Date, to purchase
from the Company up to the number of fully paid and nonassessable Shares to
which the Warrantholder may at the time be entitled to purchase pursuant to this
Agreement, upon surrender to the Company, at its principal office, of the
certificate evidencing the Warrants to be exercised, together with the purchase
form on the reverse thereof duly filled in and signed, and upon payment to the
Company of the Warrant Price (as defined in and determined in accordance with
the provisions of this Section 3 and Sections 7 and 8 hereof), for the number of
Shares in respect of which such Warrants are then exercised, but in no event for
less than 100 Shares (unless less than an aggregate of 100 Shares are then
purchasable under all outstanding Warrants held by a Warrantholder). Payment of
the aggregate Warrant Price shall be made in cash, by check, or as set forth in
Section 3.3.
3.2 The Warrants shall be exercisable, at the election of the
Warrantholder, either in full or from time to time in part. Any Warrants not
surrendered to the Company for exercise in accordance with Section 3.1 prior to
5:00 p.m., Pacific Time, on the Warrant Termination Date shall be void.
3.3 The Warrants shall be deemed to have been exercised immediately
prior to the close of business on the date of their surrender for exercise as
provided above, and the person entitled to receive the Shares issuable upon such
exercise shall be treated for all purposes as the holder of record of such
shares as of the close of business on such date. As promptly as practicable on
or after such date and in any event within ten (10) days thereafter, the Company
at its expense shall issue and deliver to the person or persons entitled to
receive the same a certificate or certificates for the number of full Shares
issuable upon such exercise together with cash, as provided in Section 9 hereof,
in respect of any fractional Shares otherwise issuable upon such surrender;
provided that if the Shares deliverable upon exercise of any Warrants are not
subject to a currently effective Registration Statement under the Act, the
Warrantholder has delivered such representations and certifications as the
Company, or the Company's counsel, may reasonably require pursuant to Section
1.5 hereof. If the Warrants are exercised in part, the Company at its
16
expense will execute and deliver new Warrants of like tenor exercisable for the
number of Shares for which the Warrants may then be exercised.
3.4 In lieu of exercising the Warrants, the Warrantholder may elect to
receive Shares equal to the value of the Warrants (or the portion thereof being
canceled) by the surrender of the Warrants at the principal office of the
Company together with notice of such election in which event the Company shall
issue to the Warrantholder a number of shares of Common Stock computed using the
following formula:
Y (A - B)
X = ---------
A
Where
X - The number of Shares to be issued to Warrantholder.
Y - The number of Shares purchasable under the Warrant, or if only a
portion of the Warrant is being exercised, the portion of the Warrant being
canceled on such date.
A - The Current Market Price of one share of the Company's Common Stock
(as defined in below).
B - Warrant Price (as adjusted to the date of such calculations).
For purposes of this Agreement, the term, "Current Market Price" shall
mean the average of the per share closing bid prices of the Company's Common
Stock quoted in the Over-the-Counter Market summary or the average of the per
share closing prices quoted on the TSX, the TSX Venture Exchange, or the NASDAQ
National Market, or on any exchange on which the Common Stock is listed,
whichever is applicable, as published in the Western Edition of the Wall Street
Journal, or other Canadian national newspaper (or, if not so reported, as
otherwise reported by the TSX Group or the NASDAQ System) for five (5) trading
days prior to the date notice of exercise is given to the Company. If trading in
the Common Stock is not reported by the NASDAQ system, the bid price referred to
above shall be the average of the lowest bid price for five (5) trading days as
reported in the "pink sheets" published by the National Quotation Bureau,
Incorporated. If the Common Stock is quoted on the NASDAQ National Market or
listed on any exchange, the closing price referred to above shall be the last
reported sales price or, in case no such reported sale takes place on such day,
the average of the reported closing bid and asked prices.
Section 4. Payment of Taxes. The Company will pay all documentary stamp
taxes, if any, attributable to the initial issuance of the Warrants or the
Shares; provided, however, that the Company shall not be required to pay any tax
which may be payable with respect to any secondary transfer of the Warrants or
the Shares.
Section 5. Mutilated or Missing Warrants. In case the certificate or
certificates evidencing the Warrants shall be mutilated, lost, stolen or
destroyed, the Company shall, at the
17
request of the Warrantholder, issue and deliver in exchange and substitution for
and upon cancellation of the mutilated certificate or certificates, or in lieu
of and substitution for the certificate or certificates lost, stolen or
destroyed, a new Warrant certificate or certificates of like tenor and
representing an equivalent right or interest, but only upon receipt of evidence
satisfactory to the Company of such loss, theft or destruction of such Warrant.
Section 6. Reservation of Shares. There has been reserved, and the Company
shall at all times keep reserved so long as the Warrants remain outstanding, (i)
out of its authorized Common Stock, such number of Shares of Common Stock as
shall be subject to purchase under the Warrants.
Section 7. Warrant Price. The price per Share at which Shares shall be
purchasable upon the exercise of the Warrants (the "Warrant Price") shall be
equal to the IPO price per share on the IPO Closing Date subject to further
adjustment pursuant to Section 8 hereof.
Section 8. Adjustments. The number and kind of securities purchasable upon
the exercise of the Warrants and the Warrant Price shall be subject to
adjustment from time to time upon the happening of certain events, as follows:
8.1 Mergers, Consolidations or Sale of Assets. If at any time there shall
be a capital reorganization (other than a combination or subdivision of Common
Stock otherwise provided for herein), or a merger or consolidation of the
Company with or into another corporation, or the sale of the Company's
properties and assets as, or substantially as, an entirety to any other person,
then, as a part of such reorganization, merger, consolidation or sale, lawful
provision shall be made so that the Warrantholder shall thereafter be entitled
to receive upon exercise of the Warrants and payment of the Warrant Price, the
number of Shares of Common Stock or other securities or property of the Company
or the successor corporation resulting from such reorganization, merger,
consolidation or sale, to which a holder of the Shares deliverable upon exercise
of the Warrants would have been entitled under the provisions of the agreement
in such reorganization, merger, consolidation or sale if the Warrants had been
exercised immediately before consummation of such reorganization, merger,
consolidation or sale. In any such case, appropriate adjustment (as determined
in good faith by the Company's Board of Directors) shall be made in the
application of the provisions of the Warrants with respect to the rights and
interests of the Warrantholder after the reorganization, merger, consolidation
or sale to the end that the provisions of the Warrants (including adjustment of
the Warrant Price then in effect and the number of Shares) shall be applicable
after that event, as near as reasonably may be, in relation to any shares or
other property deliverable after that event upon exercise of the Warrants.
8.2 Splits, Subdivisions and Dividends. In the event the Company should at
any time or from time to time fix a record date for the effectuation of a split
or subdivision of the outstanding Shares of Common Stock or the determination of
the holders of Common Stock entitled to receive a dividend or other distribution
payable in additional Shares of Common Stock or other securities or rights
convertible into, or entitling the holder thereof to receive directly or
indirectly, additional Shares of Common Stock (hereinafter referred to as the
"Common Stock Equivalents") without payment of any consideration by such holder
for the additional Shares of Common Stock or Common Stock Equivalents (including
the additional Shares of Common Stock issuable upon
18
conversion or exercise thereof), then, as of such record date (or the date of
such distribution, split or subdivision if no record date is fixed), the per
share Warrant Price shall be appropriately decreased and the number of Shares
shall be appropriately increased in proportion to such increase of outstanding
shares so that the Warrantholder would have the number of shares to which a
holder of the Shares deliverable upon exercise of the Warrants would have been
entitled had the warrants been exercised immediately prior to such split,
subdivision or dividend for the same aggregate price as would have been paid
immediately prior to such split, subdivision or dividend.
8.3 Combination or Reverse Split of Shares. If the number of Shares of
Common Stock outstanding at any time after the date hereof is decreased by a
combination of, or a reverse split affecting, the outstanding Shares of Common
Stock, the Warrant Price shall be appropriately increased and the number of
Shares shall be appropriately decreased in proportion to such decrease in
outstanding shares so that the Warrantholder would have the number of shares to
which a holder of the Shares deliverable upon exercise of the Warrants would
have been entitled had the warrants been exercised immediately prior to such
combination or reverse split for the same aggregate price as would have been
paid immediately prior to such combination or reverse split.
8.4 No Adjustment. No adjustment in the number of Shares purchasable
pursuant to the Warrants shall be required unless such adjustment would require
an increase or decrease of at least one percent in the number of Shares then
purchasable upon the exercise of the Warrants or, if the Warrants are not then
exercisable, the number of Shares purchasable upon the exercise of the Warrants
on the first date thereafter that the Warrants become exercisable; provided,
however, that any adjustments which by reason of this subsection 8.4 are not
required to be made immediately shall be carried forward and taken into account
in any subsequent adjustment.
8.5 Notice of Adjustment. Whenever the number of Shares purchasable upon
the exercise of the Warrants is adjusted as herein provided, the Company shall
cause to be promptly mailed to the Warrantholder by first class mail, postage
prepaid, notice of such adjustment and a certificate of the chief financial
officer of the Company setting forth the number of Shares purchasable upon the
exercise of the Warrants and the Warrant Price after such adjustment, a brief
statement of the facts requiring such adjustment and the computation by which
such adjustment was made.
Section 9. Fractional Interests; Current Market Price. The Company shall
not be required to issue fractional Shares on the exercise of the Warrants. If
any fraction of a Share would, except for the provisions of this Section 9, be
issuable on the exercise of the Warrants (or specified portion thereof), the
Company shall pay an amount in cash equal to the then Current Market Price
multiplied by such fraction. For purposes of this Agreement, the term, "Current
Market Price" shall mean the average of the per share closing bid prices of the
Company's Common Stock quoted in the Over-the-Counter Market summary or the
average of the per share closing prices quoted on the TSX, the TSX Venture
Exchange, or the NASDAQ National Market or on any exchange on which the Common
Stock is listed, whichever is applicable, as published in the Western Edition of
the Wall Street Journal, or other Canadian national newspaper (or, if not so
reported, as otherwise reported by the TSX Group or the NASDAQ System) for five
(5) trading days prior to the date notice of exercise is given to the Company.
If trading in the Common Stock is not reported by the NASDAQ system, the bid
price referred to above shall be the average of the
19
lowest bid price for five (5) trading days as reported in the "pink sheets"
published by the National Quotation Bureau, Incorporated. If the Common Stock is
quoted on the NASDAQ National Market or listed on any exchange, the closing
price referred to above shall be the last reported sales price or, in case no
such reported sale takes place on such day, the average of the reported closing
bid and asked prices.
Section 10. No Rights as Stockholders; Notices to Warrantholders. Nothing
contained in this Agreement or in the Warrants shall be construed as conferring
upon the Warrantholder or its respective transferees any rights as a stockholder
of the Company, including the right to vote, receive dividends, consent or
receive notices as a stockholder in respect of any meeting of stockholders for
the election of directors of the Company or any other matter. If, however, at
any time prior to the expiration of the Warrants and prior to their exercise,
any one or more of the following events shall occur:
(a) any action which would require an adjustment pursuant to Section 8; or
(b) a dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation, merger or sale of its property, assets and
business as an entirety or substantially as an entirety) shall be proposed:
then the Company shall give notice in writing of such event to the
Warrantholder, as provided in Section 14 hereof, at least 20 days prior to the
date fixed as a record date or the date of closing the transfer books for the
determination of the stockholders entitled to any relevant dividend,
distribution, subscription rights or other rights or for the determination of
stockholders entitled to vote on such proposed dissolution, liquidation or
winding up. Such notice shall specify such record date or the date of closing
the transfer books, as the case may be. The failure to mail or receive such
notice or any defect therein shall not affect the validity of any action taken
with respect thereto.
Section 11. Registration Rights.
11.1 Company Registration. If the Company has a then-current registration
statement at the time that the Warrantholder decides to exercise its Warrants
under which the registration of the Shares is permissible, the Warrantholder may
notify the Company of its intent to exercise its Warrants and its desire that
the Shares be included in such registration statement. If, acting with
reasonable promptness upon receipt of such notice, the Company is able to amend
the registration statement to include the Shares within the time period that the
registration would otherwise remain effective, then the Company shall amend such
registration statement to include such Shares. If the Company is eligible to use
Form S-3, and the Company does not have a then-current registration statement
that could be amended to include the Shares, then the Company shall register the
Shares on Form S-3.
11.2 Expenses. All fees, disbursements and out-of-pocket expenses in
connection with the filing or amendment of any registration statement or Form
S-3 under this Section 11 (or obtaining the opinion of counsel and any no-action
position of the Commission with respect to sales under Rule 144) and in
complying with applicable securities and Blue Sky laws shall be
20
borne by the Company including reasonable fees of one counsel for the holders of
the Shares; provided, however, that such reasonable fees shall not exceed
$5,000, and that the Company shall be required to comply with the Blue Sky laws
only in the state of New York and two other states to be designated by the
Warrantholder. The Company at its expense will supply any holder of the Shares
with copies of such registration statement and the prospectus included therein
and other related documents, and any opinions and no-action letters in such
quantities as may be reasonably requested by the holder of the Shares.
11.3 The Company agrees that until all Shares have been sold under a
registration statement or pursuant to Rule 144 under the Act, it will keep
current in filing all materials required to be filed with the Commission in
order to permit the holders of such securities to sell the same under Rule 144.
Section 12. Indemnification.
12.1 In the event of the filing or amendment of any registration
statement with respect to the Shares pursuant to Section 11 hereof, the Company
will indemnify the holder of the Shares, its officers, directors and partners,
legal counsel and accountants and each person controlling such holder of the
Shares within the meaning of Section 15 of the Act, with respect to which
registration, qualification or compliance has been effected pursuant to Section
11 hereof, against all expenses, claims, losses, damages and liabilities (or
actions, proceedings or settlements in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular or other document (including any
related registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of the Act or any rule or regulation thereunder applicable to the
Company and relating to action or inaction required of the Company in connection
with any such registration, qualification or compliance, and will reimburse such
holder of the Shares, its officers, directors, partners, legal counsel and
accountants and each person controlling such holder of the Shares, for any legal
and any other expenses reasonably incurred in connection with investigating and
defending or settling any such claim, loss, damage, liability or action,
provided that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or is based on
any untrue statement or omission based upon written information furnished to the
Company by the holder of the Shares and stated to be specifically for use
therein.
12.2 The holder of the Shares will, if the Shares held by it are
included in the securities as to which such registration, qualification or
compliance is being effected or amended, indemnify the Company, each of its
directors, officers, partners, legal counsel and accountants against all claims,
losses, damages and liabilities (or actions, proceedings, or settlements in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other offering document, or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company, its directors, officers, partners, legal counsel and
accountants, for any legal or any other
21
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other offering document in reliance upon and in
conformity with written information furnished to the Company by the holder of
the Shares specifically for use in such registration statement, prospectus,
offering circular or other offering document; provided, however, that the
obligations of the holder of the Shares hereunder shall not apply to amounts
paid in settlement of any such claims, losses, damages or liabilities (or
actions in respect thereof) if such settlement is effected without the consent
of the holder of the Shares (which consent shall not be unreasonably withheld).
12.3 Each party entitled to indemnification under this Section 12
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 12, to the extent such
failure is not prejudicial. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect to such
claim or litigation. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in connection
with defense of such claim and litigation resulting therefrom.
Section 13. Contribution. If the indemnification provided for in Section
12 is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or expense
referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand and of the Indemnified Party on the other
in connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
Section 14. Notices. Any notice pursuant to this Agreement by the Company
or by a Warrantholder or a holder of Shares shall be in writing and shall be
deemed to have been duly
22
given on the date of delivery or refusal indicated on the return receipt if
delivered or mailed by certified mail, return receipt requested:
(a) If to the Warrantholder or a holder of Shares addressed to
Pharmaceutical Product Development, Inc., 0000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, XX
00000; Attention: President.
(b) If to the Company addressed to it at McGuardian Bldg, 0000 Xxxx Xxxx,
Xxxx 000, Xxxxxxxxx, XX X0X 0X0, Attention: Xxxxxx Xxxxxx, President.
Each party may from time to time change the address to which notices to it are
to be delivered or mailed hereunder by notice in accordance herewith to the
other party.
Section 15. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company, the Warrantholder, or the holders of
Shares shall bind and inure to the benefit of their respective successors and
assigns hereunder.
Section 16. Merger or Consolidation of the Company. The Company will not
merge or consolidate with or into any other corporation or sell all or
substantially all of its property to another corporation, unless the provisions
of Section 8 are complied with.
Section 17. Applicable Law. This Agreement shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes shall
be construed in accordance with the laws of said State.
Section 18. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company, the
Warrantholder and the holders of Shares any legal or equitable right, remedy or
claim under this Agreement. This Agreement shall be for the sole and exclusive
benefit of the Company, the Warrantholder, and the holders of Shares.
Section 19. Amendments. This Agreement may be amended only by a written
instrument executed by duly authorized representatives of the Company and the
Warrantholder.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed, all as of the day and year first above written.
CHEMOKINE THERAPEUTICS CORP.
By: _________________________
Name: Xxxxxx Xxxxxx
Title: President
PHARMACEUTICAL PRODUCT DEVELOPMENT, INC.
By: __________________________
Name: _________________
Title: Authorized Officer
23
Exhibit A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD,
EXCHANGED, HYPOTHECATED OR TRANSFERRED IN ANY MANNER EXCEPT PURSUANT TO A
REGISTRATION OR AN EXEMPTION FROM SUCH REGISTRATION AND IN COMPLIANCE WITH THE
AGREEMENT PURSUANT TO WHICH THEY WERE ISSUED
Warrant Certificate No. 2
WARRANT TO PURCHASE 500,000 SHARES OF COMMON STOCK
VOID AFTER 5:00 P.M.
PACIFIC TIME ON THE WARRANT TERMINATION DATE
CHEMOKINE THERAPEUTICS CORP.
INCORPORATED UNDER THE LAWS
OF THE STATE OF DELAWARE
This certifies that, for value received, Pharmaceutical Product
Development, Inc., the registered holder hereof or assigns ("Warrantholder"), is
entitled to purchase from Chemokine Therapeutics Corp. (the "Company"), at any
time and from time to time during the period commencing at 9:00 a.m., Pacific
Time, on the IPO Closing Date (as set forth in paragraph 3.1 of the 2004 Warrant
Agreement), and before 5:00 p.m., Pacific Time, on the Warrant Termination Date
(as determined in the 2004 Warrant Agreement), at the purchase price per share
set forth in paragraph 7 of the 2004 Warrant Agreement (the "Warrant Price"),
the number of shares of Common Stock of the Company, par value $.001 per share
("Common Stock"), set forth above (the "Shares"). The number of Shares issuable
upon exercise of each Warrant evidenced hereby and the Warrant Price shall be
subject to adjustment from time to time as set forth in the Agreement referred
to below.
The Warrants evidenced hereby may be exercised in whole or in part by
presentation of this Warrant Certificate with the Purchase Form attached hereto
duly executed and simultaneous payment of the Warrant Price at the principal
office of the Company pursuant to the terms of the Agreement.
The Warrants evidenced hereby represent the right to purchase an aggregate
of up to 500,000 Shares, subject to certain adjustments, and are issued under
and in accordance with a certain 2004 Warrant Agreement, dated as of September
14, 2004 (the "Agreement"), between
24
the Company and Warrant Holder and are subject to the terms and provisions
contained in the Agreement, to all of which the Warrantholder by acceptance
hereof consents.
Upon any partial exercise of the Warrants evidenced hereby, there shall be
signed and issued to the Warrantholder a new Warrant Certificate in respect of
the Shares of Common Stock as to which the Warrants evidenced hereby shall not
have been exercised. These Warrants may be exchanged at the office of the
Company by surrender of this Warrant Certificate properly endorsed for one or
more new Warrants of the same aggregate number of Shares of Common Stock as
evidenced by the Warrant or Warrants exchanged. No fractional Shares of Common
Stock will be issued upon the exercise of rights to purchase hereunder, but the
Company shall pay the cash value of any fraction upon the exercise of one or
more Warrants. These Warrants are transferable at the office of the Company in
the manner and subject to the limitations set forth in the Agreement.
This Warrant Certificate does not entitle any Warrantholder to any of the
rights of a stockholder of the Company.
CHEMOKINE THERAPEUTICS CORP.
By:
Xx. Xxxxxx Xxxxxx, President
Dated: September 14, 2004
25
CHEMOKINE THERAPEUTICS CORP.
PURCHASE FORM
CHEMOKINE THERAPEUTICS CORP.
00000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx, President
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant Certificate for, and to purchase
thereunder, __________ Shares of Common Stock (the "Shares") provided for
therein, and requests that certificates for the Shares be issued in the name of:
__________________________________
(Please Print or Type Name)
__________________________________
(Address, including zip code)
__________________________________
(Social Security No. or Tax I.D. No.)
and, if said number of Shares shall not be all the Shares purchasable hereunder,
that a new Warrant Certificate for the balance of the Shares purchasable under
the Warrant Certificate be registered in the name of the undersigned
Warrantholder or his Assignee as below indicated and delivered to the address
stated below.
Name of Warrantholder or Assignee: ______________________________________
(Please Print)
Address: _________________________
Signature: ________________________ Dated: ___________________________
Note: The signature on this purchase must correspond with the name as it
appears upon the face of the within Warrant Certificate in every particular,
without alteration or enlargement or any change whatever.
26
ASSIGNMENT
(To be signed only upon assignment of Warrants)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto the assignee named below all of the rights of the
undersigned represented by the attached Warrant with respect to the number
of Shares covered by the Warrant set forth below:
(Name and Address of Assignee Must Be Printed or Typewritten)
Social Security No. No. of
Name of Assignee or Tax I.D. No. Address Shares
_________________ ___________________ __________________________ ______
and does hereby irrevocably constitute and appoint_________________
Attorney to transfer said Warrants on the books of the Company, with full
power of substitution in the premises.
Dated: ________
________________________________________________
Signature of Registered Holder
Note: The signature on this assignment must correspond with the names as it
appears upon the face of the within Warrant Certificate in every
particular, without alteration or enlargement or any change whatever.
ATTACHMENT C
RESTATED ARTICLE IV OF THE RESTATED AND AMENDED CERTIFICATE OF
INCORPORATION
ARTICLE IV
(A) CLASSES OF STOCK. The Corporation is authorized to issue
two classes of stock to be designated, respectively, "COMMON STOCK"
and "PREFERRED STOCK." The total number of shares which the
Corporation is authorized to issue is Fifty-Six Million (56,000,000)
shares, each with a par value of $0.001 per share. Fifty Million
(50,000,000) shares shall be Common Stock and Six Million
(6,000,000) shares shall be Preferred Stock.
(B) The Preferred Stock may be issued from time to time in
one or more series. The Board of Directors is hereby authorized
within the limitations and restrictions stated in this Certificate
of Incorporation, to determine or alter the rights, preferences,
privileges and restrictions granted to or imposed upon any wholly
unissued series of Preferred Stock and the number of shares
constituting any such series and the designation thereof, or any of
them; and to increase or decrease the number of shares of any series
subsequent to the issuance of shares of that series, but not below
the number of shares of such series then outstanding. In case the
number of shares of any series shall be so decreased, the shares
constituting such decrease shall resume the status which they had
prior to the adoption of the resolution originally fixing the number
of shares of such series.
