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EXHIBIT 4.9
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MA Y NOT BE SOLD, OFFERED FOR SALE, ASSIGNED, TRANSFERRED
OR OTHERWISE DISPOSED OF, UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF THE
SECURITIES ACT OR AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY IS OBTAINED
STATING THAT SUCH DISPOSITION IS IN COMPLIANCE WITH AN AVAILABLE EXEMPTION FROM
SUCH REGISTRATION.
December 21, 1998
VIRAGEN, INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
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FOR VALUE RECEIVED, VIRAGEN, INC. (the "Company"), a Delaware
corporation, having its principal offices at 000 X.X. 00xx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, grants to GIRMON INVESTMENT CO., LIMITED, a company
incorporated in Ireland, Company No. 233671 or assignees, (the "Holder"), the
right to purchase from the Company up to 500,000 fully paid and non-assessable
shares of Common Stock at a price per share (the "Exercise Price"), term and
vesting schedule and conditions hereinafter set forth.
This Warrant is issued pursuant to that certain Agreement made and
entered into as of December 21, 1998 (the "Effective Date") by and among the
Holder, (the "Agreement").
The term "Common Stock" means the Common Stock, par value $.01 per
share, of the Company. The number of shares of Common Stock to be received upon
the exercise of this Warrant may be adjusted from time to time as hereinafter
set forth. The shares of Common Stock deliverable upon such exercise, and as
adjusted from time to time, are hereinafter referred to as "Warrant Stock." The
term "Other Securities" means any other equity or debt securities that may be
issued by the Company in addition thereto or in substitution for the Warrant
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Stock. The term "Company" means and includes the corporation named above as well
as (i) any immediate or more remote successor corporation resulting from the
merger or consolidation of such corporation (or any immediate or more remote
successor corporation of such corporation) with another corporation, or (ii) any
corporation to which such corporation (or any immediate or more remote successor
corporation of such corporation) has transferred its property or assets as an
entirety or substantially as an entirety.
The Holder agrees with the Company that this Warrant is issued, and all
the rights hereunder shall be held subject to, all of the conditions,
limitations and provisions of the Agreement to which this Warrant is attached
and as set forth herein.
1. WARRANT VESTING SCHEDULE AND EXERCISE PRICES. This Warrant
shall be exercisable at $0.50 per share, vest in whole or in
part, for a period of 30 months for the number of shares of
Warrant Stock indicated, contingent upon the closing bid price
per share of the Company's Common Stock maintaining certain
target minimum levels for 60 consecutive days ("vesting
threshold") as provided in the Agreement. Upon the common
stock attaining each vesting threshold ("vesting date"), each
vesting threshold component of the Warrant shall be
exercisable for a period of 24 months.
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NO. OF VESTED BID MARKET PRICE
SHARES LEVEL
(VESTING THRESHOLD)
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44,448 $1.00
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44,448 $1.25
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44,448 $1.50
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44,448 $1.75
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44,448 $2.00
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44,448 $2.25
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44,448 $2.50
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44,448 $2.75
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44,448 $3.00
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50,000 $4.00
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50,000 $5.00
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2. EXERCISE OF WARRANT. Following vesting, this Warrant may be
exercised as to the specified amount of Warrant Stock, in whole or in part, but
if in part, in minimum increments of 10,000 shares at any time, or from time to
time during the period commencing on the vesting date and expiring 5:00 p.m.
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Eastern Time on the second anniversary of the vesting date, if such day is a day
on which banking institutions in New York are authorized by law to close, then
on the next succeeding day that shall not be such a day, by presentation and
surrender of this Warrant to the Company at its principal office with the
Warrant Exercise Form attached hereto (Exhibit A) duly executed and accompanied
by payment (either in cash or by certified or official bank check, payable to
the order of the Company) of the Exercise Price for the number of shares
specified in such form and instruments of transfer, if appropriate, duly
executed by the Holder or its duly authorized attorney. If this Warrant should
be exercised in part only, the Company shall, upon surrender of this Warrant for
cancellation, execute and deliver a new Warrant evidencing the rights of the
Holder thereof to purchase the balance of the shares purchasable hereunder. Upon
receipt by the Company of this Warrant, together with the payment of the
Exercise Price at its office in proper form for exercise, the Holder shall be
deemed to be the holder of record of the shares of Common Stock issuable upon
such exercise, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such shares of Common
Stock shall not then be actually delivered to the Holder. The Company shall pay
any and all documentary stamp or similar issue or transfer taxes payable in
respect of the issue or delivery of shares of Common Stock on exercise of this
Warrant.
3. PIGGYBACK REGISTRATION RIGHTS. For the term of this Warrant, the
Company hereby grants Piggyback Registration Rights to the Holder and agrees
that in the event of the Company's filing of any stock registration on Form S-3
or other available registration form under the Securities Act of 1933, with the
exception of a currently pending Convertible Preferred Stock offering and the
Equity Line Agreement currently in registration, the Company will register any
and all shares purchased by the Holder hereunder. In the event that the Warrant
has not been exercised, in whole or in part, the Company agrees to include in
such registrations, with the exception of a currently pending Convertible
Preferred Stock offering and the Equity Line Agreement currently in
registration, any and all such shares underlying the Warrant. The Company shall
pay all costs and expenses of such registrations, excluding fees and expenses of
counsel for and other professionals advising the Holder, and underwriting
discounts, commissions or expenses of the Holder with respect to the sale of the
stock. In the case of any registrations pursuant to this Section 3, the Company
(i) will keep the Holder advised as to the initiation and progress of
proceedings for such registrations and as to the completion thereof, and (ii) at
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its expense will keep such registrations effective for a period of at least nine
months from the initial effective date of the registrations. The Holder agrees
to provide such information to the Company as is reasonably requested by the
Company which the Company believes is necessary in order for the Company to
register the stock, and the Holder shall execute such documents, certificates
and other instruments as the Company reasonably determines is necessary or
appropriate in connection therewith.
4. RESERVATION OF SHARES. The Company will at all times reserve for
issuance and delivery upon exercise of this Warrant all shares of Common Stock
or other shares of capital stock of the Company (and Other Securities) from time
to time receivable upon exercise of this Warrant. All such shares (and Other
Securities) shall be duly authorized and, when issued upon such exercise, shall
be validly issued, fully paid and non-assessable and free of all preemptive
rights.
5. FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant, but the
Company shall pay the holder an amount equal to the fair market value of such
fractional share of Common Stock in lieu of each fraction of a share otherwise
called for upon any exercise of this Warrant. For purposes of this Warrant, the
fair market value of a share of Common Stock shall be determined as follows:
(a) If the Common Stock is listed on a National Securities Exchange
or admitted to unlisted trading privileges on such exchange or listed
for trading on the NASDAQ system, the current market value shall be the
last reported sale price of the Common Stock on such exchange or system
on the last business day prior to the date of exercise of this Warrant
or, if no such sale is made on such day, the average of the closing bid
and asked prices for such day on such exchange or system; or
(b) if the Common Stock is not so listed or admitted to unlisted
trading privileges, the current market value shall be the mean of the
last reported bid and asked prices reported by the National Quotation
Bureau, Inc. on the last business day prior to the date of the exercise
of this Warrant; or
(c) If the Common Stock is not so listed or admitted to unlisted trading
privileges and bid and asked prices are not so reported, the current
market value shall be an amount, not less than book value thereof as at
the end of the most recent fiscal year of the Company ending prior to
the date of the exercise of the Warrant, determined in such reasonable
manner as may be prescribed by the Board of Directors of the Company.
6. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
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entitled to any rights of a stockholder in the Company, either at law or in
equity, and the rights of the Holder are limited to those expressed in this
Warrant.
7. ANTI-DILUTION PROVISIONS.
7.1 ADJUSTMENT FOR RECAPITALIZATION. If the Company shall at any time
subdivide its outstanding shares of Common Stock (or Other Securities at the
time receivable upon the exercise of the Warrant) by recapitalization,
reclassification or split-up thereof, or if the Company shall declare a stock
dividend or similar distribution of shares of Common Stock to its stockholders,
the number of shares of Common Stock subject to this Warrant immediately prior
to such subdivision shall be proportionately increased, and the Exercise Price
shall be proportionately decreased, and if the Company shall at any time combine
the outstanding shares of Common Stock by recapitalization, reclassification or
combination thereof, the number of shares of Common Stock subject to this
Warrant immediately prior to such combination shall be proportionately
decreased, and the Exercise Price shall be proportionately increased. Any such
adjustments pursuant to this Section 7.1 shall be effective at the close of
business on the effective date of such subdivision or combination, or if any
adjustment is the result of a stock dividend or distribution, then the effective
date for such adjustment based thereof shall be the record date therefor.
7.2 ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC. In
case of any reorganization of the Company (or any other a corporation, the
securities of which are at the time receivable on the exercise of this Warrant),
or in case after such date the Company (or any such other corporation) shall
consolidate with or merge into another corporation or convey all or
substantially all of its assets to another corporation, then, and in each such
case, the Holder of this Warrant upon the exercise thereof as provided in
Section 1 at any time after the consummation of such reorganization,
consolidation, merger or conveyance shall be entitled to receive, in lieu of the
securities and property receivable upon the exercise of this Warrant prior to
such consummation, the securities or property to which such Holder would have
been entitled upon such consummation if such Holder had exercised this Warrant
immediately prior thereto; in each such case, the terms of this Warrant shall be
applicable to the securities or property receivable upon the exercise of this
Warrant after such consummation.
7.3 NOTIFICATION AS TO ADJUSTMENTS. In each case of an adjustment
in the number of shares of Common Stock receivable on the exercise of the
Warrant, the Company at its expense will promptly compute such adjustment in
accordance with the terms of the Warrant and will notify the Holder in writing
of such adjustment within 30 days of the effective date of such adjustment. When
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appropriate, notice may be given in advance as part of notices required to be
mailed to the Holder pursuant to Section 7.5 hereof.
7.4 OTHER ISSUANCES. Except as otherwise expressly provided herein,
the issuance by the Company of shares of its capital stock of any class, or
securities convertible into shares of capital stock of any class, either in
connection with a direct sale or upon the exercise of rights or warrants to
subscribe therefore, or upon conversions of shares or obligations of the Company
convertible into such shares or other securities, or as compensation or
otherwise, shall not affect, and no adjustment by reason thereof shall be made
with respect to, the number of or the exercise price of the Shares that remain
unexercised under the Warrant.
Without limiting the generality of the foregoing, the existence of
unexercised Shares under the Warrant shall not affect in any manner the right or
power of the Company to make, authorize or consummate (i) any issuances as
described above, (ii) any or all adjustments, recapitalizations, reorganizations
or other changes in the Company's capital structure or its business; (iii) any
merger or consolidation of the Company; (iv) any issue by the Company of debt
securities, or preferred or preference stock that would rank above the Shares
issuable upon exercise of the Warrant; (v) the dissolution or liquidation of the
Company; (vi) any sale, transfer or assignment of all or any part of the assets
or business of the Company; or (vii) any other corporate act or proceeding,
whether of a similar character or otherwise.
7.5 NOTICES OF RECORD DATE, ETC. In case:
(a) the Company shall take a record of the holders of its
Common Stock (or Other Securities at the time receivable upon the exercise of
the Warrant) for the purpose of entitling them to receive any dividend (other
than a cash dividend at the same rate as the rate of the last cash dividend
theretofore paid) or other distribution, or any right to subscribe for, purchase
or otherwise acquire any shares of stock of any class or any other securities,
or to receive any other right; or
(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance of all
or substantially all of the assets of the Company to another corporation; or
(c) of any voluntary or involuntary dissolution, liquidation
or winding up of the Company,
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then, and in each such case, the Company shall mail or cause
to be mailed to each Holder of the Warrant at the time outstanding a notice
specifying, as the case may be, (i) the date on which a record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (ii) the date on which
such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding up is to take place, and the time, if any,
is to be fixed, as to which the holders of record of Common Stock (or such Other
Securities at the time receivable upon the exercise of the Warrant) shall be
entitled to exchange their shares of Common Stock (or such Other Securities) for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding up. Such notice shall be mailed at least 20 days prior to the date
therein specified, and the Warrant may be exercised prior to said date during
the term of the Warrant.
8. TRANSFER TO COMPLY WITH THE SECURITIES ACT. The Warrant Stock or
Other Securities may not be sold, transferred, pledged, hypothecated or
otherwise disposed of except as follows: (a) in a transaction exempt from
registration under the Securities Act including pursuant to Rule 144 thereunder;
(b) to a person who, in the opinion of counsel to the Company, is a person to
whom this Warrant or the Warrant Stock or Other Securities may legally be
transferred without registration and without the delivery of a current
prospectus under the Securities Act with respect thereto and then only against
receipt of an agreement of such person to comply with the provisions of this
Warrant with respect to any resale or other disposition of such securities; or
(c) to any person upon delivery of a prospectus then meeting the requirements of
the Securities Act relating to such securities and the offering thereof for such
sale or disposition.
9. LEGEND. Unless the shares of Warrant Stock or Other Securities have
been registered under the Securities Act, upon exercise of any of the Warrants
and the issuance of any of the shares of Warrant Stock, all certificates
representing shares will bear on the face thereof substantially the following
legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD, OFFERED FOR SALE, ASSIGNED, TRANSFERRED or OTHERWISE
DISPOSED OF UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF THAT
ACT or UNLESS AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY IS
OBTAINED STATING THAT SUCH DISPOSITION IS IN COMPLIANCE WITH AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION.
10. NOTICES. All notices required hereunder shall be in writing and
shall be deemed given when telegraphed, delivered personally or within two days
after mailing when mailed by certified or registered mail, return receipt
requested, to the Company or the Holder, as the case may be, for whom such
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notice is intended at the address of such party as set forth on the first page,
or at such other address of which the Company or the Holder has been advised by
notice hereunder.
11. APPLICABLE LAW. The Warrant is issued under and shall for all
purposes be governed by and construed in accordance with the laws of the State
of Delaware.
IN WITNESS WHEREOF , the Company has caused this Warrant to be signed
on its behalf, in its corporate name, by its duly authorized officer, all as of
the day and year first above written.
VIRAGEN, INC.
By: /s/ XXXXXX XXXXX
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Xxxxxx Xxxxx, President
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EXHIBIT A
WARRANT EXERCISE FORM
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing __________ shares of Common Stock at an
exercise price of $ ______________ per share of Common Stock of Viragen, Inc., a
Delaware corporation, and hereby makes payment of $ ______________ in payment
therefor.
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Signature
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Date
INSTRUCTIONS FOR ISSUANCE OF STOCK
(If in a name other than to the registered holder of the within Warrant)
Name
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(Please typewrite or print in block letters)
Address:
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Social Security or
Taxpayer Identification Number:
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