Exhibit 10.75
THE SECURITIES REPRESENTED HEREBY AND THE SECURITIES WHICH MAY BE ISSUED UPON
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS. NO SALE OR DISTRIBUTION
HEREOF OR THEREOF MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER APPLICABLE SECURITIES LAWS.
WARRANT AGREEMENT
WARRANT AGREEMENT (this "Agreement"), dated as of January 31, 2006, by
and between Vyteris Holdings (Nevada), Inc., a Nevada corporation (the
"Company"), and Xxxxxxx Xxxxx Specialty Group, LLC, a Delaware limited liability
company (the "Warrant Holder").
W I T N E S S E T H
WHEREAS, the parties have entered into that certain Note and Warrant
Purchase Agreement, dated as of January 31, 2006, by and between the Company and
the Warrant Holder (the "Note and Warrant Purchase Agreement"); and
WHEREAS, pursuant to the Note and Warrant Purchase Agreement, the
Warrant Holder has agreed to loan to the Company Two Hundred Fifty Thousand
($250,000) Dollars (the "Loan Amount"), subject to the issuance by the Company
of a convertible subordinated promissory note (the "Note"), and the Company has
agreed to issue to the Warrant Holder a warrant (the "Warrant") to purchase
52,083 shares of the Company's common stock, par value $.0001 per share (the
"Common Stock"), subject to the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and promises contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. WARRANT.
1.1 COMMON STOCK. The Company hereby grants to the Warrant Holder,
subject to the terms set forth herein, the right to purchase at any time during
the term (the "Warrant Exercise Term") commencing on the date hereof and ending
at 5:30 p.m., New York time, on the seventh anniversary of the date hereof (the
"Expiration Date") 52,083 shares of Common Stock (the "Shares"), at an initial
exercise price of $2.88 per share, subject to adjustment as provided in Sections
1.2 and 3 hereof (as in effect from time to time, the "Exercise Price").
2. EXERCISE OF WARRANT.
2.1 EXERCISE. The Warrant may be exercised by the Warrant
Holder, in whole or in part, by delivering the Notice of Exercise purchase form,
attached as EXHIBIT A hereto (the "Notice of Exercise"), duly executed by the
Warrant Holder to the Company at its principal office, or at such other office
as the Company may designate, accompanied by payment, in cash or by wire
transfer or check payable to the order of the Company, of the amount obtained by
multiplying the number of Shares designated in the Notice of Exercise by the
Exercise Price (the
"Purchase Price"). The Purchase Price may also be paid, in whole or in part, by
delivery of such purchase form and of shares of Common Stock owned by the
Warrant Holder having a Fair Market Value (as defined in Section 2.3 hereof) on
the last business day ending the day immediately prior to the Exercise Date (as
defined below) equal to the portion of the aggregate Exercise Price being paid
in such shares. In addition, the Warrant may be exercised, pursuant to a
cashless exercise by providing irrevocable instructions to the Company, through
delivery of the Notice of Exercise with an appropriate reference to this Section
2.1 to issue the number of shares of the Common Stock equal to the product of
(a) the number of shares as to which the Warrant is being exercised multiplied
by (b) a fraction, the numerator of which is the Fair Market Value of a share of
the Common Stock on the last business day preceding the Exercise Date less the
Exercise Price therefor and the denominator of which is such Fair Market Value.
For purposes hereof, "Exercise Date" shall mean the date on which all deliveries
required to be made to the Company upon exercise of the Warrant pursuant to this
Section 2.1 shall have been made.
2.2 ISSUANCE OF CERTIFICATES. As soon as practicable after
the exercise of the Warrant (in whole or in part) in accordance with Section 2.1
hereof, the Company, at its expense, shall cause to be issued in the name of and
delivered to the Warrant Holder (i) a certificate or certificates for the number
of fully paid and non-assessable Shares to which the Warrant Holder shall be
entitled upon such exercise and (if applicable) (ii) a new warrant agreement of
like tenor to purchase all of the Shares that may be purchased pursuant to the
portion, if any, of the Warrant not exercised by the Warrant Holder. The Warrant
Holder shall for all purposes be deemed to have become the holder of record of
such Shares on the date on which the Notice of Exercise and payment of the
Purchase Price in accordance with Section 2.1 hereof were delivered and made,
respectively, irrespective of the date of delivery of such certificate or
certificates, except that if the date of such delivery, notice and payment is a
date when the stock transfer books of the Company are closed, such person shall
be deemed to have become the holder of record of such Shares at the close of
business on the next succeeding date on which the stock transfer books are open.
2.3 FAIR MARKET VALUE. The "Fair Market Value" of a share of
Common Stock on any determined date means: (a) if the principal market for the
Common Stock is The New York Stock Exchange, any other national securities
exchange or The Nasdaq National Market, the closing sales price of the Common
Stock on such day as reported by such exchange or market, or on a consolidated
tape reflecting transactions on such exchange or market, or (b) if the principal
market for the Common Stock is not a national securities exchange or The Nasdaq
National Market and the Common Stock is quoted on the National Association of
Securities Dealers Automated Quotations System, the mean between the closing bid
and the closing asked prices for the Common Stock on such day as quoted on such
System, or (c) if the Common Stock is not quoted on the National Association of
Securities Dealers Automated Quotations System, the mean between the highest bid
and lowest asked prices for the Common Stock on such day as reported by the
National Quotation Bureau, Inc.; PROVIDED, that if none of (a), (b) or (c) above
is applicable, or if no trades have been made or no quotes are available for
such day, the Fair Market Value of the Common Stock shall be determined, in good
faith, by the Board of Directors of the Company.
3. ADJUSTMENTS.
3.1 STOCK SPLITS, STOCK DIVIDENDS AND COMBINATIONS. If the
Company at any time subdivides the outstanding shares of the Common Stock or
issues a stock dividend (in
Common Stock) on the outstanding shares of the Common Stock, the Exercise Price
in effect immediately prior to such subdivision or the issuance of such stock
dividend shall be proportionately decreased, and the number of Shares subject
hereto shall be proportionately increased, and if the Company at any time
combines (by reverse stock split or otherwise) the outstanding shares of Common
Stock, the Exercise Price in effect immediately prior to such combination shall
be proportionately increased, and the number of Shares subject hereto shall be
proportionately decreased, effective at the close of business on the date of
such subdivision, stock dividend or combination, as the case may be.
3.2 MERGER OR CONSOLIDATION. In the case of any
consolidation of the Company with, or merger of the Company with or into another
entity (other than a consolidation or merger which does not result in any
reclassification or change of the outstanding capital stock of the Company), the
entity formed by such consolidation or merger shall execute and deliver to the
Warrant Holder a supplemental warrant agreement providing that the Warrant
Holder of the Warrant then outstanding or to be outstanding shall have the right
thereafter (until the expiration of such Warrant) to receive, upon exercise of
such Warrant, the kind and amount of shares of capital stock and other
securities and property receivable upon such consolidation or merger by a holder
of the number of Shares for which such Warrant might have been exercised
immediately prior to such consolidation or merger. Such supplemental warrant
agreement shall provide for adjustments which shall be identical to the
adjustments provided in Section 3.1 hereof and to the provisions of Section 10
hereof. This Section 3.2 shall similarly apply to successive consolidations or
mergers.
3.3 The Exercise Price shall also be subject to adjustment
as follows:
(1) SPECIAL DEFINITIONS. For purposes of this
Section 3.3, the following definitions shall apply:
(A) "Options" shall mean rights, options or
warrants to subscribe for, purchase or otherwise acquire Common Stock or
Convertible Securities.
(B) "Original Issue Date" shall mean the
date of this Agreement.
(C) "Convertible Securities" shall mean any
evidence of indebtedness, shares of capital stock (other than Common Stock) or
other securities convertible into or exchangeable for Common Stock.
(D) "Additional Shares of Common Stock"
shall mean all shares of Common Stock issued by the Company on or after the
Original Issue Date, other than shares of Common Stock issued at any time:
(i) upon exercise of the Warrant or
conversion of the Note issued pursuant to the Note and Warrant Purchase
Agreement;
(ii) pursuant to the exercise of
options, warrants or other Common Stock purchase rights issued (or to be issued)
to employees, officers or directors of, or consultants or advisors to, or any
strategic ally of, the Company pursuant to any stock purchase or stock option
plan or other arrangement approved by the Board of Directors;
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(iii) pursuant to the exercise of
options, warrants or Convertible Securities outstanding as of the Original Issue
Date; or
(iv) in connection with the
acquisition of all or part of another entity by stock acquisition, merger,
consolidation or other reorganization, or by the purchase of all or part of the
assets of such other entity (including securities issued to persons formerly
employed by such other entity and subsequently hired by the Company and to any
brokers or finders in connection therewith) where the Company or its
stockholders own more than fifty (50%) percent of the voting power of the
acquired, surviving, combined or successor company.
(2) ISSUANCE OF OPTIONS AND CONVERTIBLE SECURITIES.
Subject to Section 3.3(1)(D) hereof, in the event the Company at any time or
from time to time after the Original Issue Date shall issue any Options or
Convertible Securities, then the number of shares of Common Stock actually
issued upon the exercise of such Options or, in the case of Convertible
Securities, the actual conversion or exchange of such Convertible Securities,
shall be deemed to be Additional Shares of Common Stock.
(3) ADJUSTMENT OF EXERCISE PRICE UPON ISSUANCE OF
ADDITIONAL SHARES OF COMMON Stock. In the event the Company, after the Original
Issue Date, shall issue Additional Shares of Common without consideration or for
a consideration per share less than the then-applicable Exercise Price, then and
in such event, such Exercise Price shall be reduced, concurrently with such
issue, to a price (calculated to the nearest cent) determined by multiplying the
then-applicable Exercise Price by a fraction, (i) the numerator of which shall
be the number of shares of Common Stock issued and outstanding (on a
fully-diluted basis) immediately prior to such issuance plus the quotient
obtained by dividing (x) the aggregate consideration received by the Company for
the total number of Additional Shares of Common Stock so issued by (y) the
Conversion Price, and (ii) the denominator of which shall be the number of
shares of Common Stock issued and outstanding (on a fully-diluted basis)
immediately prior to such issuance plus the number of Additional Shares of
Common Stock so issued. Upon each such adjustment of the then-applicable
Exercise Price pursuant to the provisions of this Section 3.3(3), the number of
Warrant Shares purchasable upon the exercise of each Warrant shall be adjusted
to the nearest full amount by multiplying a number equal to the Exercise Price
in effect immediately prior to such adjustment by the number of Warrant Shares
purchasable upon the exercise of each Warrant immediately prior to such
adjustment and dividing the product so obtained by the adjusted Exercise Price.
(4) DETERMINATION OF CONSIDERATION. For purposes of
this Section 3, the consideration received by the Company for the issue of any
Additional Shares of Common Stock shall be computed as follows:
(A) CASH AND PROPERTY. Such consideration
shall:
(i) insofar as it consists of cash,
be computed at the gross amount of cash received by the Company, excluding only
expenses, discounts and commissions actually paid by the Company in connection
with such issuance or sale and amounts paid or payable for accrued interest.
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(ii) insofar as it consists of
property other than cash, be computed at the fair value thereof at the time of
such issue, as reasonably determined in good faith by the Board of Directors,
excluding only the expenses as set forth in clause (i) above; and
(iii) in the event Additional Shares
of Common Stock are issued together with other shares or securities or other
assets of the Company for consideration that covers both cash and property other
than cash, the proportion of such consideration so received, computed as
provided in clauses (i) and (ii) above, shall be as reasonably determined in
good faith by the Board of Directors.
(B) OPTIONS AND CONVERTIBLE SECURITIES. The
consideration per share received by the Company for Additional Shares of Common
Stock issued pursuant to Section 3.3(2), relating to Options and Convertible
Securities, shall be determined by dividing:
(i) the total amount, if any,
received by the Company as consideration for the issuance of such Options or
Convertible Securities, plus the aggregate amount of additional consideration
paid or payable to the Company upon the exercise of such Options or the
conversion or exchange of such Convertible Securities, or in the case of Options
for Convertible Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such Convertible Securities
(subject to any adjustments in the exercise price thereof), by
(ii) the number of shares of Common
Stock issued or issuable upon the exercise of such Options or the conversion or
exchange of such Convertible Securities or, in the case of Options for
Convertible Securities, the exercise of such Options for Convertible Securities
and the conversion or exchange of such Convertible Securities.
3.4 CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of
each adjustment or readjustment of the Exercise Price pursuant to this Section
3, the Company, at its expense, shall promptly compute such adjustment or
readjustment of the Exercise Price in accordance with the terms hereof and
furnish to each Holder of a Warrant a certificate setting forth such adjustment
or readjustment and showing in detail the facts upon which such adjustment or
readjustment is based, including a statement of (i) the consideration received
or deemed to be received by the Company for any Additional Shares of Common
Stock issued or deemed to have been issued, (ii) the Exercise Price in effect
immediately prior to such adjustment or readjustment, (iii) the number of
Additional Shares of Common Stock issued or deemed to have been issued and (iv)
the number of shares of Common Stock and the amount, if any, of other securities
or property that at the time would be received upon the exercise of the Warrant.
The Company shall, upon the written request at any time of any Holder of a
Warrant, furnish or cause to be furnished to such Holder a like certificate
setting forth (x) all adjustments and readjustments of the Exercise Price since
the Original Issue Date and (y) the Exercise Price then in effect.
3.5. ASSURANCES WITH RESPECT TO EXERCISE RIGHTS. The Company
shall not, by amendment of its Certificate of Incorporation or By-laws or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Company, but shall at all times, in good faith,
assist in the carrying out of all the provisions of this Agreement and in taking
of all such actions as may be
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necessary or appropriate in order to protect the exercise rights of the Warrant
Holder against impairment or dilution.
4. TRANSFERS.
4.1 UNREGISTERED SECURITIES. Warrant Holder hereby
acknowledges and agrees that the Warrant and the Shares have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), and are
"restricted securities" under the Securities Act inasmuch as they are being
acquired in a transaction not involving a public offering, and the Warrant
Holder agrees not to sell, pledge, distribute, offer for sale, transfer or
otherwise dispose of the Warrant or any Shares issued upon exercise of the
Warrant in the absence of (a) an effective registration statement under the Act
as to the Warrant or such Shares and registration and/or qualification of the
Warrant or such Shares under any applicable Federal or state securities law then
in effect or (b) an opinion of counsel, reasonably satisfactory to the Company,
that such registration and qualification are not required.
4.2 TRANSFERABILITY. Subject to the provisions of Section
4.1 hereof, the rights under this Agreement are freely transferable, in whole or
in part, by the Warrant Holder, and such transferee shall have the same rights
hereunder as the Warrant Holder.
4.3 WARRANT REGISTER. The Company will maintain a register
containing the names and addresses of the Warrant Holders of the Warrant. Until
any transfer of Warrant in accordance with this Agreement is reflected in the
warrant register, the Company may treat the Warrant Holder as the absolute owner
hereof for all purposes. Any Warrant Holder may change such Warrant Holder's
address as shown on the warrant register by written notice to the Company
requesting such change.
5. NO FRACTIONAL SHARES. Any adjustment in the number of Shares
purchasable hereunder shall be rounded to the nearest whole share.
6. INVESTMENT REPRESENTATIONS. The Warrant Holder agrees and
acknowledges that it is acquiring the Warrant and will be acquiring the Shares
for its own account and not with a view to any resale or distribution other than
in accordance with Federal and state securities laws. The Warrant Holder is an
"accredited investor" within the meaning of Rule 501(a) of Regulation D
promulgated under the Securities Act.
7. COVENANTS AS TO THE SHARES. The Company covenants and agrees
that the shares of capital stock issuable upon exercise of the Warrant, will,
upon issuance in accordance with the terms hereof, be duly and validly issued
and outstanding, fully paid and nonassessable, with no personal liability
attaching to the ownership thereof, and free from all taxes, liens and charges
with respect to the issuance thereof imposed by or through the Company;
PROVIDED, HOWEVER, that the Company shall not be required to pay any tax that
may be payable in respect of any transfer involved in the issuance and delivery
of any certificates in respect of such shares in a name other than that of the
Warrant Holder and the Company shall not be required to issue or deliver such
certificates unless or until the person(s) requesting the issuance thereof shall
have paid to the Company the amount of such tax or it shall be established to
the satisfaction of the Company that such tax has been paid. The Company further
covenants and agrees that the Company will at all times have authorized and
reserved, free from preemptive rights imposed by or through the
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Company, a sufficient number of shares of capital stock to provide for the
exercise of the rights represented under this Agreement.
8. LEGEND. Any certificate evidencing the Shares issuable upon
exercise hereof will bear a legend indicating that such securities have not been
registered under the Securities Act or under any state securities laws and may
not be sold or offered for sale in the absence of an effective registration
statement as to the securities under the Securities Act and any applicable state
securities law or an opinion of counsel reasonably satisfactory to the Company
that such registration is not required.
9. RIGHTS APPLICABLE TO THE WARRANT SHARES. The parties hereby
acknowledge and agree that the Shares, when issued in accordance with the terms
hereof, shall be entitled to all of rights and privileges provided to the
Registration Rights Agreement (as such term is defined in the Note and Warrant
Purchase Agreement).
10. DIVIDENDS AND OTHER DISTRIBUTIONS. In the event that the Company
shall, at any time prior to the exercise of all Warrants, declare a dividend
(other than a dividend consisting solely of shares of Common Stock) or otherwise
distribute to its stockholders any assets, properties, rights, evidence of
indebtedness, securities (other than shares of Common Stock), whether issued by
the Company or by another person, or any other thing of value, the Warrant
Holder shall thereafter be entitled, in addition to the shares of Common Stock
or other securities and property receivable upon the exercise thereof, to
receive, upon the exercise of such Warrant, the same property, assets, rights,
evidences of indebtedness, securities or any other thing of value that the
Warrant Holder would have been entitled to receive at the time of such dividend
or distribution as if the Warrant had been exercised immediately prior to such
dividend or distribution. At the time of any such dividend or distribution, the
Company shall make (and maintain) appropriate reserves to ensure the timely
performance of the provisions of this Section 10.
11. MISCELLANEOUS.
11.1 WAIVERS AND AMENDMENTS. This Agreement or any provisions
hereof may be changed, waived, discharged or terminated only by a statement in
writing signed by the Company and by the Warrant Holder.
11.2 GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York.
11.3 NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given when delivered by
hand or by facsimile transmission, when telexed, or upon receipt when mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(i) If to the Company:
Vyteris, Inc.
00-00 Xxxxxxx Xxxxx
Xxxx Xxxx, Xxx Xxxxxx 00000
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Attention: Chief Executive Officer
Facsimile: (000) 000-0000
With a copy (which copy shall not constitute notice) to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
(ii) If to the Warrant Holder:
Xxxxxxx Xxxxx Specialty Group, LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
With a copy (which copy shall not constitute notice) to:
Xxxxxxx Xxxxxx LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
11.4 HEADINGS. The headings in this Agreement are for
convenience of reference only, and shall not limit or otherwise affect the terms
hereof.
11.5 CLOSING OF BOOKS. The Company will at no time close its
transfer books against the transfer of any Shares issued or issuable upon the
exercise of the Warrant in a manner that interferes with the timely exercise of
the Warrant.
11.6 NO RIGHTS OR LIABILITIES AS A STOCKHOLDER. This
Agreement shall not entitle the Warrant Holder hereof to any voting rights or
other rights as a stockholder of the Company with respect to the Shares prior to
the exercise of the Warrant. No provision of this Agreement, in the absence of
affirmative action by the Warrant Holder to purchase the Shares, and no mere
enumeration herein of the rights or privileges of the Warrant Holder, shall give
rise to any liability of such Holder for the Exercise Price or as a stockholder
of the Company, whether such liability is asserted by the Company or by
creditors of the Company.
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11.7 SUCCESSORS. All the covenants and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns and transferees.
11.8 SEVERABILITY. If any provision of this Agreement shall
be held to be invalid and unenforceable, such invalidity or unenforceability
shall not affect any other provision of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the date first written above.
Vyteris Holdings (Nevada), Inc.
By: /s/ Xxxxxxx X. XxXxxxxx
Name: Xxxxxxx X. XxXxxxxx
Title: President & CEO
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: Vice President & CFO
XXXXXXX XXXXX SPECIALTY GROUP, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
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EXHIBIT A
NOTICE OF EXERCISE
(To be signed only on exercise of Warrant)
Dated:________________________
To: Vyteris Holdings (Nevada), Inc.
The undersigned, pursuant to the provisions set forth in the attached
Warrant Agreement, hereby irrevocably elects to:
[ ] purchase _____ shares of Common Stock covered by such Warrant
Agreement and herewith makes a cash payment of $_____________, representing the
full purchase price for such shares at the price per share provided for in such
Warrant Agreement.
[ ] purchase _____ shares of Common Stock covered by such Warrant
Agreement and herewith delivers _____ shares of Common Stock having a Fair
Market Value as of the last trading day preceding the date hereof of $______,
representing the full purchase price for such shares at the price per shares
provided for in such Warrant Agreement.
[ ] acquire in a cashless exercise _____ shares of Common Stock
pursuant to the terms of Section 2.1 of such Warrant Agreement.
Please issue a certificate or certificates representing such shares of
Common Stock in the name of the undersigned or in such other name as is
specified below.
Signature:________________________________
Name (print):_____________________________
Title (if applicable):____________________
Company (if applicable):__________________
