EXHIBIT 10.02
ZYMETX, INC.
WARRANT AGREEMENT, dated _____________, 2001 (the
"Agreement"), by and between ZymeTx, Inc., a Delaware corporation (the
"Company"), and ______________________ the holder of ______ units of the Company
sold in connection with the Company's Private Placement (as defined below)
(individually a "Holder" and collectively with the holders of other Units, the
"Holders").
WHEREAS, the Company has proposed to offer, pursuant to the Company's private
placement offering (the "Private Placement"), a maximum of 40 units of the
Company (the "Units"), each Unit consisting of (i) a $25,000 principal amount
secured 12% Promissory Note, and (ii) Common Stock purchase warrants (the
"Warrants"), entitling the holder thereof to purchase an aggregate of 25,000
shares of Common Stock at an exercise price that is equal to $0.30 per share,
and
WHEREAS, purchasers of the Units have been issued Warrant
Certificates evidencing the Warrants; and
WHEREAS, the Warrant Certificates incorporate by reference the
terms of this Warrant Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the Company and the Holder hereby agree as
follows:
1. Exercise of Warrant. This Warrant shall entitle the Holder thereof
to purchase an aggregate of _________ shares of Common Stock at an exercise
price of $0.30 (the "Exercise Price") per share. The Warrants may be exercised
in whole or in part at any time or from time to time during the period
commencing on _____________, 2001, and expiring at 5:00 p.m., New York City
time, on October 31, 2006 (the "Exercise Term"), or if such day is a day on
which banking institutions in the State of New York are authorized by law to
close, then on the next succeeding day which shall not be such a day, by
presentation and surrender of the Warrant Certificate evidencing the Warrant to
be exercised to the Company at its principal office or at the office of its
stock transfer agent, if any, with the Exercise Form annexed hereto duly
executed and accompanied by payment of the Exercise Price for the number of
shares specified in such form. If any Warrant should be exercised in part only,
the Company shall, upon surrender of the Warrant Certificates for cancellation
and presentment of the Exercise Form, execute and deliver new a Warrant
Certificate or Certificates, as the case may be, evidencing the rights of the
Holder thereof to purchase the balance of the shares purchasable thereunder.
Upon receipt by the Company of a Warrant Certificate at its office, or by the
stock transfer agent of the Company at its office, in proper form for exercise
and accompanied by the appropriate payment for the shares of Common Stock
underlying the Warrants (the "Warrant Shares"), the Holder shall be deemed to be
the holder of record of such Warrant Shares, notwithstanding that the stock
transfer books of the Company shall then be closed or that certificates
representing such Warrant Shares shall not then be actually delivered to the
Holder. Certificates for the Warrant Shares shall be delivered to the Holder
within a reasonable time following the exercise of the Warrants in accordance
with the foregoing.
2. Alternative Exercise Provisions. Anything contained herein to the
contrary notwithstanding, provided that the shares underlying this Warrant have
been registered, the Holder, at his option, may exercise the Warrants, in whole
or in part, during the Exercise Term by delivering to the Company a confirmation
slip issued by a brokerage firm that is a member of the National Association of
Securities Dealers, Inc. with respect to the sale of those number of Warrant
Shares for which the Warrants are being exercised, and, in such case, the
Company shall deliver certificates representing such Warrant Shares on
settlement date at the office of the Company's stock transfer agent against
payment for such Warrant Shares by such brokerage firm or its clearing broker,
made payable to the Company or made payable to the order of the Holder and
endorsed by the Holder to the Company.
3. Reservation and Listing of Shares. The Company hereby agrees that at
all times there shall be reserved for issuance and delivery upon exercise of the
Warrants, such number of shares of its Common Stock as shall be required for
issuance and delivery upon exercise of the Warrants. As long as the Warrants
shall be outstanding, the Company shall use its best efforts to cause all shares
of Common Stock issuable upon the exercise of the Warrants to be listed on the
Over The Counter Bulletin Board or on Nasdaq or a national securities exchange,
if such shares of Common Stock, as a class, are theretofore so listed.
4. Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of the Warrants. Any
fraction of a share called for upon any exercise hereof shall be canceled. The
Holder, by his acceptance hereof, expressly waives any right to receive any
fractional share of stock or fractional Warrant upon exercise of the Warrants.
5. Exchange, Transfer, Assignment or Loss of Warrant. The Warrants are
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender of the Warrant Certificates evidencing such Warrants to the
Company at its office or at the office of its stock transfer agent, if any, for
other Warrants of different denominations entitling the Holder thereof to
purchase in the aggregate the same number of shares of Common Stock as are
purchasable thereunder at the same respective Exercise Price. Subject to Section
10 hereof, upon surrender of the Warrant Certificates to the Company at its
principal office or at the office of its stock transfer agent, if any, with a
duly executed Assignment Form which is annexed hereto and funds sufficient to
pay the applicable transfer tax, if any, the Company shall, without charge,
execute and deliver new Warrant Certificates in the name of the assignee named
in such instrument of assignment and the original Warrant Certificate shall
promptly be canceled. The Warrants may be divided or combined with other
Warrants which carry the same rights upon presentation of the Warrant
Certificate evidencing such Warrants at the office of the Company or at the
office of its stock transfer agent, if any, together with a written notice
signed by the Holder hereof specifying the names and denominations in which new
Warrant Certificates are to be issued. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of the
Warrants, and, in the case of loss, theft or destruction, of reasonably
satisfactory indemnification, and upon surrender and cancellation of the
Warrants, if mutilated, the Company will execute and deliver new Warrant
Certificates of like tenor and date. Any such new Warrant Certificates, when
executed and delivered, shall constitute an additional contractual obligation on
the part of the Company, whether or not the Warrant Certificates so lost,
stolen, destroyed, or mutilated shall be at any time enforceable by anyone.
6. Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a shareholder of the Company until exercise of any
Warrants.
7. Adjustments of Purchase Price and Number of Shares.
(a) Subdivision and Combination. In case the Company shall at any
time subdivide or combine the outstanding shares of Common Stock by way of stock
split, reverse stock split or the like, the Exercise Prices shall forthwith be
proportionately increased or decreased.
(b) Adjustment in Number of Shares. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Section 7, the number of
Shares issuable upon the exercise of each Warrant shall be adjusted to the
nearest full Share by multiplying a number equal to the Exercise Price in effect
immediately prior to such adjustment by the number of Shares issuable upon
exercise of the Warrants immediately prior to such adjustment and dividing the
product so obtained by the adjusted Exercise Price.
(c) Reclassification, Consolidation, Merger, etc. In case of any
reclassification or change of the outstanding shares of Common Stock (other than
a change in par value to no par value, or from no par value to par value, or as
a result of a subdivision or combination), or in the case of any consolidation
of the Company with, or merger of the Company into, another corporation (other
than a consolidation or merger in which the Company is the surviving corporation
and which does not result in any reclassification or change of the outstanding
shares of Common Stock, except a change as a result of a subdivision or
combination of such shares or a change in par value, as aforesaid), or in the
case of a sale or conveyance to another corporation of all or a substantial part
of the property of the Company, the Holder shall thereafter have the right to
purchase the kind and number of shares of stock and other securities and
property receivable upon such reclassification, change, consolidation, merger,
sale or conveyance as if the Holder were the owner of the shares of Common Stock
underlying the Warrants immediately prior to any such events at a price equal to
the product of (x) the number of shares issuable upon exercise of the Warrants
and (y) the Exercise Price in effect immediately prior to the record date for
such reclassification, change, consolidation, merger, sale or conveyance as if
such Holder had exercised the Warrants.
(d) Dividends and Other Distributions with Respect to Outstanding
Securities. 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 a cash dividend or distribution payable out
of current or retained earnings) or otherwise distribute to its shareholders any
monies, assets, property, rights, evidences of indebtedness, securities (other
than shares of Common Stock), whether issued by the Company or by another person
or entity, or any other thing of value, the Holder of the unexercised Warrants
shall thereafter be entitled, in addition to the shares of Common Stock or other
securities receivable upon the exercise thereof, to receive, upon the exercise
of such Warrants, the same monies, property, assets, rights, evidences of
indebtedness, securities or any other thing of value that they would have been
entitled to receive at the time of such dividend or distribution. At the time of
any such dividend or distribution, the Company shall make appropriate reserves
to ensure the timely performance of the provisions of this Subsection 7(d).
(e) Warrant Certificate After Adjustment. Irrespective of any change
pursuant to this Section 7 in the Exercise Price or in the number, kind or class
of shares or other securities or other property obtainable upon exercise of the
Warrants, the Warrants may continue to express as the Exercise Price and as the
number of shares obtainable upon exercise, the same price and number of shares
as are stated herein.
(f) Statement of Calculation. Whenever the Exercise Price shall be
adjusted pursuant to the provisions of this Section 7, the Company shall
forthwith file at its principal office, a statement signed by an executive
officer of the Company specifying the adjusted Exercise Price determined as
above provided in such section. Such statement shall show in reasonable detail
the method of calculation of such adjustment and the facts requiring the
adjustment and upon which the calculation is based. The Company shall forthwith
cause a notice setting forth the adjusted Exercise Price to be sent by certified
mail, return receipt requested, postage prepaid, to the Holder.
8. Definition of "Common Stock." For the purpose of the Warrants, the
term "Common Stock" shall mean, in addition to the class of stock designated as
the Common Stock, $.02 par value, of the Company on the date hereof, any class
of stock resulting from successive changes or reclassifications of the Common
Stock consisting solely of changes in par value, or from par value to no par
value, or from no par value to par value. If at any time, as a result of an
adjustment made pursuant to one or more of the provisions of Section 7 hereof,
the shares of stock or other securities or property obtainable upon exercise of
the Warrants shall include securities of the Company other than shares of Common
Stock or securities of another corporation, then thereafter the amount of such
other securities so obtainable shall be subject to adjustment from time to time
in a manner and upon terms as nearly equivalent as practicable to the provisions
with respect to Common Stock contained in Section 7 hereof and all other
provisions of the Warrants with respect to Common Stock shall apply on like
terms to any such other shares or other securities.
9. Registration Under the Securities Act of 1933. The Warrant Shares
issuable upon exercise of the Warrants are subject to the Company's registration
obligations as set forth in the Subscription Agreement, the terms of which are
incorporated by reference into this Warrant Agreement as if such terms are set
forth at length herein.
10. Transfer to Comply with the Act. Neither Warrants nor the Warrant
Shares nor any other security issued or issuable upon exercise of the Warrants
may be sold or otherwise disposed of except as follows:
(a) to a person who, in the opinion of counsel for the Company, is a
person to whom the Warrants or Warrant Shares may legally be transferred without
registration and without the delivery of a current prospectus under the Act with
respect thereto and then only against receipt of a letter from such person in
which such person represents that he is acquiring the Warrants or Warrant Shares
for his own account for investment purposes and not with a view to distribution
and provides any other information and representations required by the Company,
and in which such person agrees to comply with the provisions of this Section 10
with respect to any resale or other disposition of such securities; or
(b) to any person upon delivery of a prospectus then meeting the
requirements of the Act relating to such securities and the offering thereof for
such sale or disposition.
11. Notices to Warrant Holders. Nothing contained in this Agreement
shall be construed as conferring upon the Holder or Holders the right to vote or
to consent or to receive notice as a shareholder in respect of any meetings of
shareholders for the election of directors or any other matter, or as having any
rights whatsoever as a shareholder of the Company. If, however, at any time
prior to the expiration of the Warrants and their exercise, any of the following
events shall occur:
(a) The Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) The Company shall offer to all the holders of its Common Stock
any additional shares of capital stock of the Company or securities convertible
into or exchangeable for shares of capital stock of the Company, or any warrant,
right or option to subscribe therefor; or
(c) A dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business shall be proposed; or
(d) There shall be any capital reorganization or reclassification of
the capital stock of the Company, or consolidation or merger of the Company with
another entity, then, in any one or more of said events, the Company shall give
written notice of such event at least fifteen (15) days prior to the date fixed
as a record date or the date of closing the transfer books for the determination
of the shareholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, warrants or options, or entitled
to vote on such proposed dissolution, liquidation, winding up or sale. Such
notice shall specify such record date or the date of closing the transfer books,
as the case may be. Failure to give such notice or any defect therein shall not
affect the validity of any action taken in connection with the declaration or
payment of any such dividend or distribution, or the issuance of any convertible
or exchangeable securities or subscription rights, warrants or options, or any
proposed dissolution, liquidation, winding up or sale.
12. Notices.
(a) All communications under this Agreement shall be in writing and
shall be mailed by certified mail, postage prepaid, return receipt requested, or
telecopied with confirmation of receipt or delivered by hand or by overnight
delivery service:
If to the Company, at:
ZymeTx, Inc.
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
If to the Holder, to the address of such
Holder as it appears in the stock or warrant
ledger of the Company.
(b) Any notice so addressed, when mailed by registered or certified
mail shall be deemed to be given three days after so mailed, when telecopied
shall be deemed to be given when transmitted, or when delivered by hand or
overnight shall be deemed to be given when hand delivered or on the day
following deposit with the overnight delivery service.
13. Successors. All the covenants and provisions of this Warrant
Agreement by or for the benefit of the Holder shall inure to the benefit of his
successors and assigns hereunder.
14. Termination. This Warrant Agreement will terminate on the earlier
of (a) the expiration date of the Warrants or (b) the date all of the Warrants
shall have been exercised.
15. Governing Law. This Warrant Agreement shall be deemed to be made
under the laws of the State of New York and for all purposes shall be construed
in accordance with the laws of said State, excluding choice of law principles
thereof.
[THIS SPACE INTENTIONALLY LEFT BLANK]
16. Entire Agreement; Amendment; Waiver. This Warrant Agreement and all
attachments hereto and all incorporation by references set forth herein, set
forth the entire agreement and understanding between the parties as to the
subject matter hereof and merges and supersedes all prior discussions,
agreements and understandings of any and every nature among them. This Warrant
Agreement may be amended, the Company may take any action herein prohibited or
omit to take any action herein required to be performed by it, and any breach of
any covenant, agreement, warranty or representation may be waived, only if the
Company has obtained the written consent or waiver of the Holder. No course of
dealing between or among any persons having any interest in this Warrant
Agreement will be deemed effective to modify, amend or discharge any part of
this Warrant Agreement or any rights or obligations of any person under or by
reason of this Warrant Agreement.
ZYMETX, INC.
By:
------------------------------
Name:
Title:
Dated: __________, 2001
Attest:
-----------------------------
WARRANT AGREEMENT SIGNATURE PAGE
FOR INDIVIDUALS:
----------------
-----------------------------
(Print Name)
-----------------------------
(Print Name, if more than one subscriber)
Dated: , 2001
--------------------------- ------------------------------
(Signature)
-----------------------------
(Signature, if more than one subscriber)
FOR CORPORATIONS:
-----------------------------
Name of Company
-----------------------------
Name and Title of Executive
Officer executing Questionnaire
Dated: , 2001
---------------------------- -----------------------------
Signature of Officer
FOR PARTNERSHIPS:
-----------------
-----------------------------
Name of Partnership
-----------------------------
Name of General Partner executing
Questionnaire
Dated: , 2001
----------------------------- -----------------------------
Signature of General Partner
executing Questionnaire
WARRANT AGREEMENT SIGNATURE PAGE
FOR TRUSTS:
-----------
-----------------------------
Name of Trust
-----------------------------
Name of Authorized Trustee
Executing Questionnaire
Dated: , 2001
------------------------------- -----------------------------
Signature of Authorized
Trustee
FOR QUALIFIED PENSION PLANS:
----------------------------
-----------------------------
Name of Qualified Pension Plan
and
-----------------------------
Name of Plan Fiduciary
executing Questionnaire
Dated: , 2001
--------------------------- -----------------------------
Signature of Plan Fiduciary
executing Questionnaire
or
-----------------------------
Name of Plan Beneficiary
executing Questionnaire
and
Dated: , 2001
----------------------------- -----------------------------
Signature of Plan Beneficiary
executing Questionnaire
ZYMETX, INC.
WARRANT ASSIGNMENT FORM
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Name and address of assignee must be printed or typewritten)
the rights of the undersigned with respect to the Warrant Certificate
surrendered herewith to the extent of _____________________ (_______) shares of
Common Stock, $.001 par value per share, of ZymeTx, Inc. (the "Company"), hereby
irrevocably constituting and appointing _______________, attorney to make such
transfer on the books of the Company, with full power of substitution in the
premises.
Dated: ______________, ____ -----------------------------------
Signature of Registered Holder
Signature(s) Guaranteed:
-----------------------------------
Signature of Registered Holder, if
more than one
-----------------------------
-----------------------------------
Name of Registered Holder
-----------------------------------
Name of Registered Holder, if more
than one
Note: The above signature(s) must correspond with the name(s) as it (they)
appear(s) upon the Warrant Certificate in every particular, without alteration
or enlargement or any change whatever.
ZYMETX, INC.
WARRANT EXERCISE FORM
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the Warrant Certificate for, and to purchase thereunder,
__________ shares of Common Stock, $.001 par value per share, of ZymeTx, Inc.
(the "Shares"), and requests that certificates for the Shares be issued in the
name of: _________________________
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print name, address and social security number)
and, if said number of Shares shall not be all the Shares purchasable
thereunder, that a new Warrant Certificate for the balance of the Shares
purchasable under the Warrant be registered in the name of the undersigned
Warrantholder or his or her Assignee as below indicated and delivered to the
address stated below.
Dated: ________________, ____
Name of Warrantholder or Assignee: ____________________________________
(Please print)
Address:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
-----------------------------
Signature of Registered Holder
-----------------------------
Signature of Registered Holder, if
more than one
-----------------------------
Signature(s) Guaranteed: Name of Registered Holder
-----------------------------
----------------------------- Name of Registered Holder, if more
than one
Note: The above signature(s) must correspond with the name(s) as it (they)
appears upon the Warrant Certificate in every particular, without alteration or
enlargement or any change whatever.
