Exhibit 10.7
AMERIMMUNE PHARMACEUTICALS, INC.
WARRANT PURCHASE AGREEMENT
THIS WARRANT PURCHASE AGREEMENT (this "Agreement") is made as of July
13, 2001, by and among Amerimmune Pharmaceuticals, Inc., a Colorado
corporation (the "Company"), and MAYA LLC, a Nevada limited liability
company (the "Investor").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF WARRANTS.
1.1 APPRAISAL; NUMBER OF WARRANT SHARES. As further described
in Sections 1.2 and 1.3 hereof, the Investor will purchase an Initial
Warrant for $125,000 and will be entitled to purchase Additional Warrants
in up to three (3) separate closings of no less than $125,000 per closing.
Each Warrant shall have an exercise price of $0.20 per share of common
stock (each a "Warrant Share") and the Warrants shall be for that aggregate
number of Warrant Shares such that the aggregate value of the Warrants
(assuming that Investor purchases all of the Additional Warrants) shall be
$500,000, as determined by a valuation to be conducted by an independent
valuation consultant selected by the Investor and reasonably acceptable to
the Company and calculated in accordance with customary derivative security
appraisal standards (the "Appraisal"). The Company and the Investor
acknowledge that the Appraisal will likely be stated as a range between two
prices per Warrant Share (rather than one price), and in that event the
parties agree to apply that price in the range that would provide for the
greatest number of Warrant Shares into which each Warrant may be exercised
(i.e., the lowest price in the Appraisal range). The Company shall pay for
all costs of the Appraisal.
1.2 SALE AND ISSUANCE OF THE INITIAL WARRANT. Upon completion of
the Appraisal, and subject to the terms and conditions of this Agreement,
the Investor agrees to purchase and the Company agrees to sell and issue to
the Investor a warrant to purchase common stock of the Company in the form
attached hereto as Exhibit A (the "Initial Warrant"). The number of
Warrant Shares into which the Initial Warrant may be exercised shall be
determined by the Appraisal referenced in Section 1.1. Simultaneous with
the issuance of the Initial Warrant, the Investor shall pay the Company the
purchase price for the Initial Warrant of $125,000 in cash; provided that
the Investor may choose to pay to the Company the purchase price for the
Initial Warrant prior to the completion of the Appraisal, on the condition
that the Initial Warrant be issued within two (2) business days of the
completion of the Appraisal.
1.3 SALE AND ISSUANCE OF THE ADDITIONAL WARRANTS. Subject to
the terms and conditions of this Agreement, the Investor shall have the
option, but not the obligation, to purchase additional warrants (the
"Additional Warrants" and collectively with the Initial Warrant, the
"Warrants") in the same form as the Initial Warrant. The Additional
Warrants shall be purchasable by the Investor in up to three (3) separate
closings of no less than $125,000 per closing during the 12-month period
following the date first set forth above. The number of Warrant Shares
into which each Additional Warrant may be exercised shall have been
determined by the Appraisal referenced in Section 1.1. If the Investor
elects to purchase an Additional Warrant, he shall provide the Company with
five (5) business days' advance notice of the date that Investor will make
the required payment in exchange for his receipt of such Additional
Warrant.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Investor as follows:
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2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company
is a corporation duly organized, validly existing and in good standing
under the laws of the State of Colorado and has all requisite corporate
power and authority to carry on its business as now conducted and as
proposed to be conducted.
2.2 AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the performance of
all obligations of the Company hereunder, and the authorization, issuance
(or reservation for issuance), sale and delivery of the Warrant being sold
hereunder has been taken or will be taken prior to the Closing, and this
Agreement constitutes a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other
laws of general application affecting enforcement of creditors' rights
generally, and (ii) as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable remedies. The
Company has all requisite legal and corporate power and authority to
execute and deliver this Agreement, to issue and sell the Warrants, to
issue the Common Stock upon exercise of the Warrants and to carry out and
perform its obligations under the terms of the Agreement.
2.3 VALID ISSUANCE OF WARRANTS. The Warrants, when issued, sold and
delivered in accordance with the terms of this Agreement for the
consideration expressed herein, will be duly and validly issued, fully paid
and will be free of restrictions on transfer other than restrictions on
transfer under applicable state and federal securities laws. The Warrant
Shares, when issued upon exercise of any Warrant, will be duly and validly
issued, fully paid and will be free of restrictions on transfer other than
restrictions on transfer under applicable state and federal securities laws
2.4 BROKERS. The Company has no contract, arrangement or
understanding with any broker, finder or similar agent with respect to the
transactions contemplated by this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor hereby
represents and Warrants that:
3.1 AUTHORIZATION. The Investor has full power and authority to
enter into this Agreement, and the Agreement constitutes his valid and
legally binding obligation, enforceable in accordance with its terms except
(i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement of
creditors' rights generally, and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies.
3.2 ACCREDITED INVESTOR. The Investor is an "accredited investor"
within the meaning of Securities and Exchange Commission ("SEC") Rule 501
of Regulation D, as presently in effect.
3.3 RESTRICTED SECURITIES. Such Investor understands that the Warrant
it is purchasing and the Warrant Shares into which the Warrants are
exercisable are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may not be resold without
registration under the Act or pursuant to an exemption from such
registration.
3.4 LEGENDS. It is understood that the certificates evidencing any
Warrant Shares issued upon exercise of a Warrant may bear the following
legend:
"These securities have not been registered under the Securities
Act of 1933, as amended. They may not be sold, offered for sale, pledged or
hypothecated in the absence of a registration statement in effect with
respect to the securities under such Act and applicable state law or an
opinion of counsel satisfactory to the Company that such registration is
not required."
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4. MISCELLANEOUS.
4.1 SURVIVAL. The warranties, representations and covenants of the
Company and the Investor contained in or made pursuant to this Agreement
shall survive the execution and delivery of this Agreement and the Closing.
4.2 SUCCESSORS AND ASSIGNS. The Investor shall have the right to
assign his rights hereunder without the consent of the Company. Except as
otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties (including transferees of any Warrants or Warrant
Shares). Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities
under or by reason of this Agreement, except as expressly provided in this
Agreement.
4.3 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Nevada as applied to agreements among Nevada
residents entered into and to be performed entirely within Nevada.
4.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.5 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.6 NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be
deemed effectively given upon delivery by overnight mail, personal delivery
to the party to be notified, or upon deposit with the United States Post
Office, by registered or certified mail, postage prepaid and addressed to
the party to be notified at the address indicated for such party on the
signature page hereof, or at such other address as such party may designate
by ten (10) days' advance written notice to the other parties.
4.7 EXPENSES. The Company shall pay all costs and expenses that it
incurs with respect to the negotiation, execution, delivery and performance
of this Agreement. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
4.8 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the parties to this
Agreement.
4.9 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms.
4.10 ENTIRE AGREEMENT. This Agreement and the documents referred to
herein constitute the entire agreement among the parties and no party shall
be liable or bound to any other party in any manner by any warranties,
representations, or covenants except as specifically set forth herein or
therein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
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AMERIMMUNE PHARMACEUTICALS, INC., MAYA LLC,
a Colorado corporation a Nevada limited liability company
By: /s/ X.X. Xxxxxxx By: /s/ Xxx X. Xxxxx
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Name: X.X. Xxxxxxx Xxx X. Xxxxx, Manager
Title: Chairman of the Board
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EXHIBIT A
FORM OF WARRANT
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[Please see attached]
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THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH WARRANTS AND SHARES
MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH
SECURITIES UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED.
WARRANT
TO PURCHASE SHARES OF
COMMON STOCK OF
AMERIMMUNE PHARMACEUTICALS, INC.
Dated ____________
HOLDER: _______________________________________
NUMBER OF SHARES: _____________________________
THIS CERTIFIES THAT, for good and valuable consideration, the above
referenced holder ("Holder"), or its assigns, is entitled to subscribe for
and purchase from AMERIMMUNE PHARMACEUTICALS, INC., a Colorado corporation
(the "Company"), at any time commencing on the date of this Warrant and
ending at the close of business ten (10) years from the date of issuance,
the number of fully paid and nonassessable shares of the Common Stock of
the Company set forth above at an exercise price of twenty cents ($0.20)
per share (the "Warrant Exercise Price"), subject to the adjustment
provisions of Sections 5 and 6 of this Warrant. The shares which may be
acquired upon exercise of this Warrant are referred to herein as the
"Warrant Shares." As used herein, the term "Holder" includes any party who
acquires all or a part of this Warrant as a transferee of Holder; the term
"Common Stock" means and includes the Company's presently authorized Common
Stock, $0.05 par value.
This Warrant is subject to the following provisions, terms and
conditions:
1. EXERCISE; TRANSFERABILITY.
(a) The rights represented by this Warrant may be exercised by
the Holder hereof, in whole or in part (but not as to any fractional shares
of Common Stock), by written notice of exercise (in the form attached
hereto) delivered to the Company at the principal office of the Company
prior to the expiration of this Warrant and accompanied or preceded by the
surrender of this Warrant along with payment of the Warrant Exercise Price
for such shares (i) in cash, by check or by wire
transfer of federal funds, (ii) on a cashless basis in accordance with the
provisions of Section 11 of this Warrant, or (iii) by a combination of the
methods specified in clauses (a) and (b). Notwithstanding the foregoing,
the Company, in its sole discretion, may extend and maintain, or arrange
for the extension and maintenance of, credit to the Holder to finance
payment of the purchase price on such terms as may be approved by the Board
of Directors of the Company.
(b) This Warrant may not be sold, transferred, assigned,
hypothecated or divided except as provided in Section 9 hereof.
2. EXCHANGE AND REPLACEMENT. Subject to Sections 1 and 9 hereof,
this Warrant is exchangeable upon the surrender hereof by the Holder to the
Company at its office for new Warrants of like tenor and date representing
in the aggregate the right to purchase the number of Warrant Shares
purchasable hereunder, each of such new Warrants to represent the right to
purchase such number of Warrant Shares (not to exceed the aggregate total
number purchasable hereunder) as shall be designated by the Holder at the
time of such surrender. Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction, or mutilation of this
Warrant, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it, and upon surrender and cancellation
of this Warrant, if mutilated, the Company will make and deliver a new
Warrant of like tenor, in lieu of this Warrant; provided, however, that if
Holder shall be such Holder, an agreement of indemnity by such Holder shall
be sufficient for all purposes of this Section 2. This Warrant shall be
promptly canceled by the Company upon the surrender hereof in connection
with any exchange or replacement. The Company shall pay all expenses, taxes
(other than stock transfer taxes), and other charges payable in connection
with the preparation, execution, and delivery of Warrants pursuant to this
Section 2.
3. ISSUANCE OF THE WARRANT SHARES.
(a) The Company agrees that the Warrant Shares shall be and will
be deemed to be issued to the Holder as of the close of business on the
date on which this Warrant shall have been surrendered and the payment made
for such Warrant Shares as provided herein. Subject to the provisions of
the next section, certificates for the Warrant Shares so purchased shall be
delivered to the Holder within a reasonable time after the rights
represented by this Warrant shall have been so exercised, and, unless this
Warrant has expired, a new Warrant representing the right to purchase the
number of Warrant Shares, if any, with respect to which this Warrant shall
not then have been exercised shall also be delivered to the Holder within
such time.
(b) Notwithstanding the foregoing, however, the Company shall
not be required to deliver any certificate for Warrant Shares upon exercise
of this Warrant except in accordance with exemptions from the applicable
securities registration requirements or registrations under applicable
securities laws. Nothing
herein, however, shall obligate the Company to effect registrations under
federal or state securities laws. If registrations are not in effect and if
exemptions are not available when the Holder seeks to exercise the Warrant,
the Warrant exercise period will be extended, if need be, to prevent the
Warrant from expiring, until such time as either registrations become
effective or exemptions are available, and the Warrant shall then remain
exercisable for a period of at least 90 calendar days from the date the
Company delivers to the Holder written notice of the availability of any
registrations or exemptions. The Holder agrees to execute such documents
and make such representations, warranties and agreements as maybe required
solely to comply with the exemptions relied upon by the Company, or any
registrations made, for the issuance of the Warrant Shares.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees that
all Warrant Shares will, upon issuance, be duly authorized and issued,
fully paid, nonassessable, and free from all taxes, liens, and charges with
respect to the issue thereof. The Company further covenants and agrees that
during the period within which the rights represented by this Warrant may
be exercised, the Company will at all times have authorized and reserved
for the purpose of issue or transfer upon exercise of the purchase rights
evidenced by this Warrant a sufficient number of shares of Common Stock to
provide for the exercise of the rights represented by this Warrant.
5. RESTRICTIONS ON ISSUANCE AND TRANSFER OF SHARES. Shares of
Common Stock acquired pursuant to the exercise of this Warrant which are
not registered under the Securities Act of 1933, as amended (the "Act"),
shall be subject to restrictions on transfer and as required by applicable
state and/or federal securities laws. Any unregistered shares acquired by
exercise of this Warrant shall bear a legend referring to the restrictions
and limitations of this Section. The Company may impose stop transfer
instructions to implement such restrictions and limitations.
6. ANTI-DILUTION ADJUSTMENTS. The number of Warrant Shares
purchasable upon the exercise of this Warrant and the Warrant Exercise
Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend or make a
distribution on its Common Stock in shares of its capital stock or
other securities, (ii) subdivide its outstanding shares of Common
Stock into a greater number of shares, or (iii) issue, by
reclassification of its Common Stock, shares of its capital stock or
other securities of the Company (including any such reclassification
in connection with a consolidation or merger in which the Company is
the continuing corporation), the number of Warrant Shares purchasable
upon exercise of this Warrant immediately prior thereto shall be
adjusted so that the Holder shall be entitled to receive the kind and
number of Warrant Shares, shares of its capital stock and other
securities of the Company which such holder would have owned or would
have been entitled to
receive immediately after the happening of any of the events described
above, had the Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. Any
adjustment made pursuant to this subsection 6(a) shall become
effective immediately after the effective date of such event.
(b) In case the Company shall issue rights, options, warrants or
convertible securities to holders of its Common Stock, without any
charge to such holders, containing the right to subscribe for or
purchase Common Stock, the number of Warrant Shares thereafter
purchasable upon the exercise of this Warrant shall be determined by
multiplying the number of Warrant shares theretofore purchasable upon
exercise of this Warrant by a fraction, of which the numerator shall
be the number of shares of Common Stock outstanding immediately prior
to the issuance of such rights, options, warrants or convertible
securities plus the number of additional shares of Common Stock
offered for subscription or purchase, and of which the denominator
shall be the number of shares of Common Stock outstanding immediately
prior to the issuance of such rights, options, warrants or convertible
securities. Such adjustment shall be made whenever such rights,
options, warrants or convertible securities are issued, and shall
become effective immediately upon issuance of such rights, options,
warrants or convertible securities. In the event of such adjustment,
corresponding adjustments shall be made to the Warrant Exercise Price.
(c) In case the Company shall distribute to holders of its
Common Stock evidences of its indebtedness or assets (excluding cash
dividends or distributions out of current earnings made in the
ordinary course of business consistent with past practices), then in
each case the number of Warrant shares thereafter purchasable upon the
exercise of this Warrant shall be determined by multiplying the number
of Warrant Shares theretofore purchasable upon exercise of this
Warrant by a fraction, of which the numerator shall be the then Market
Price (as defined below) on the date of such distribution, and of
which the denominator shall be such Market Price on such date minus
the then fair value (determined as provided in subsection 6(e) below)
of the portion of the assets or evidences of indebtedness so
distributed applicable to one share of Common Stock. Such adjustment
shall be made whenever any such distribution is made and shall become
effective on the date of distribution. In the event of any such
adjustment, the number of shares of Common Stock subject to the
Warrant shall also be adjusted and shall be that number determined by
multiplying the number of shares of Common Stock issuable upon
exercise before the adjustment by a fraction, the numerator of which
shall be the Warrant Exercise Price in
effect immediately before the adjustment and the denominator of which
shall be the Warrant Exercise Price as so adjusted.
(d) Whenever the number of Warrant Shares purchasable upon the
exercise of this Warrant is adjusted as herein provided, the Warrant
Exercise Price payable upon exercise of the Warrant shall be adjusted
by multiplying such Warrant Exercise Price immediately prior to such
adjustment by a fraction, the numerator of which shall be the number
of Warrant Shares purchasable upon the exercise of this Warrant
immediately prior to such adjustment, and the denominator of which
shall be the number of Warrant Shares purchasable immediately
thereafter.
(e) In case the Company shall sell or issue shares of Common
Stock, or rights, options, warrants, or convertible or exchangeable
securities containing the right to subscribe for or purchase shares of
Common Stock at a price per share of Common Stock (determined, in the
case of such rights, options, warrants, or convertible or exchangeable
securities, by dividing (X) the total amount receivable by the Company
in consideration of the sale and issuance of such rights, options,
warrants, or convertible or exchangeable securities, plus the total
consideration payable to the Company upon exercise, conversion, or
exchange thereof, by (Y) the total number of shares of Common Stock
covered by such rights, options, warrants, or convertible or
exchangeable securities) that is lower than the Warrant Exercise
Price, then the Warrant Exercise Price shall be adjusted so that it
shall equal the price per share of Common Stock at which such Common
Stock or other securities were sold or issued. Such adjustment shall
be made successively whenever such a sale or issuance occurs. In the
event of any such adjustment, the number of shares of Common Stock
subject to the Warrant shall also be adjusted and shall be that number
determined by multiplying the number of shares of Common Stock
issuable upon exercise before the adjustment by a fraction, the
numerator of which shall be the Warrant Exercise Price in effect
immediately before the adjustment and the denominator of which shall
be the Warrant Exercise Price as so adjusted. For the purposes of
adjustments, the shares of Common Stock which the holder of any such
rights, options, warrants, or convertible or exchangeable securities
shall be entitled to subscribe for or purchase shall be deemed to be
issued and outstanding as of the date of the sale or issuance of the
rights, warrants, or convertible or exchangeable securities and the
consideration received by the Company therefor shall be deemed to be
the consideration received by the Company for such rights, options,
warrants, or convertble or exchangeable securities, plus the
consideration or premiums stated in such rights, options, warrants or
convertible or exchangeable securities
to be paid for the shares of Common Stock covered thereby. In case
the Company shall sell or issue shares of Common Stock or rights,
options, warrants, or convertible or exchangeable securities
containing the right to subscribe for or purchase shares of Common
Stock for a consideration consisting, in whole or in part, of property
other than cash or its equivalent, then in determining the "price per
share of Common Stock" and the "consideration received by the
Company," the Board of Directors of the Company shall determine, in
good faith, the fair value of said property. PROVIDED, that there
shall be no adjustment due to the recoupment by the Company of any
number of the Company's shares of Common Stock from Three R
Associates, Inc. ("3R") or Xxxxxx X. XxXxxx, Xx., an agent of 3R.
(f) Upon any adjustment of the Warrant Exercise Price and the
number of Warrant Shares subject to this Warrant, then and in each
such case, the Company shall give written notice thereof, by
first-class mail, postage prepaid, addressed to the Holder as shown on
the books of the Company, which notice shall state the Warrant
Exercise Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares of Common Stock purchasable
at such price upon the exercise of this Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which
such calculation is based.
Whenever the Company's Board of Directors determines the fair market
value as stated in Section 6(e) above or Section 10 below and the Holder
disagrees, the Holder may, within 60 days of receipt of such notice of
determination, require the Company to deliver a certificate of a firm of
independent public accountants of recognized standing selected by the Board
of Directors (which may be the regular auditors of the Company) recomputing
the Exercise Price and the number of Warrant Shares after the adjustment or
the effect of the modification and a brief statement of the firm's manner
of recomputing the same. Such recomputation shall be binding upon the
Company and the Holder. The cost of obtaining the second certificate shall
be borne by the Company unless the recomputation is the same as or less
favorable to the Holder than the Company's initial computation, in which
case the cost of obtaining the second certificate shall be borne by the
Holder.
7. MERGER, REORGANIZATION OR CONSOLIDATION. In any case in which a
transaction would result in a complete liquidation of the Company or a
merger, reorganization, or consolidation of the Company with any other
unrelated corporation or other entity in which the Company is not the
surviving corporation or the Company becomes a wholly-owned subsidiary of
another unrelated corporation or other entity (all such transactions being
referred to herein as a "Reorganization"), the surviving corporation or
other entity shall be required to assume the Warrant or to issue substitute
warrants in place thereof which substitute warrants shall provide for terms
at least as favorable to the Warrantholders as contained in this Warrant
and shall provide the
Warrantholder the right to acquire the kind and amount of shares and other
securities and property which the Warrantholder would have owned or been
entitled to receive had the Warrants been exercised immediately prior to
such Reorganization.
8. NO VOTING RIGHTS. This Warrant shall not entitle the Holder to
any voting rights or other rights as a stockholder of the Company.
9. NOTICE OF TRANSFER OF WARRANT OR RESALE OF THE WARRANT SHARES.
(a) The Holder, by acceptance hereof, agrees to give written
notice to the Company before transferring this Warrant or transferring any
Warrant Shares of such Holder's intention to do so, describing briefly the
manner of any proposed transfer. Promptly upon receiving such written
notice, the Company shall present copies thereof to the Company's counsel
and to counsel to the original purchaser of this Warrant. If in the opinion
of each such counsel the proposed transfer may be effected without
registration or qualification (under any federal or state securities laws),
the Company, as promptly as practicable, shall notify the Holder of such
opinion, whereupon the Holder shall be entitled to transfer this Warrant or
to dispose of Warrant Shares received upon the previous exercise of this
Warrant, all in accordance with the terms of the notice delivered by the
Holder to the Company; provided that an appropriate legend may be endorsed
on the Warrant or the certificates for such Warrant Shares respecting
restrictions upon transfer thereof necessary or advisable in the opinion of
counsel and satisfactory to the Company to prevent further transfers which
would be in violation of Section 5 of the Securities Act of 1933, as
amended (the "Act"), and applicable state securities laws; and provided
further that the prospective transferee or purchaser shall execute such
documents and make such representations, warranties, and agreements as may
be reasonably required solely to comply with the exemptions relied upon by
the Company or the Holder for the transfer or disposition of the Warrant or
Warrant Shares.
(b) If in the opinion of counsel referred to in this Section 9,
the proposed transfer or disposition of this Warrant or such Warrant Shares
described in the written notice given pursuant to this Section 9 may not be
effected without registration or qualification of this Warrant or such
Warrant Shares, the Company shall promptly give written notice thereof to
the Holder.
10. FRACTIONAL SHARES. Fractional shares shall not be issued upon
the exercise of this Warrant, but in any case where the Holder would,
except for the provisions of this Section, be entitled under the terms
hereof to receive a fractional share, the Company shall, upon the exercise
of this Warrant for the largest number of whole shares then called for, pay
a sum in cash equal to the sum of (a) the excess, if any, of the Market
Price of such fractional share over the proportional part of the Warrant
Exercise Price represented by such fractional share, plus (b) the
proportional part of the Warrant Exercise Price represented by such
fractional share. For purposes of this Section, the term"Market Price" with
respect to shares of Common Stock of any
class or series means the average of the last reported sale prices or, if
none, the average of the last reported closing bid and asked prices on any
national securities exchange, the Nasdaq National Market, Nasdaq SmallCap
Market, or NASD OTC Bulletin Board over the five (5) trading days
immediately preceding the determination date. If the Company's Common
Stock is not listed on a national securities exchange or quoted on Nasdaq
or the OTC Bulletin Board, the Market Price shall be the average of the
last reported closing bid and asked prices as reported in the "pink sheets"
or other standard compilation of quotations by market makers in the
over-the-counter market over the five consecutive trading days immediately
prior to the determination date. In the event that no quotations are
available, the "Market Price" shall be the fair market value of a share of
Common Stock as determined in good faith by the Board of Directors of the
Company.
11. RIGHT TO CONVERT WARRANT INTO COMMON STOCK; NET ISSUANCE. In
addition to any other methods of payment set forth in Section 1(a) above
and in lieu of any cash payment required thereunder, unless otherwise
prohibited by law, the Holder shall have the right at any time, when
exercisable, and from time to time to exercise this Warrant in full or in
part (i) by receiving from the Company the number of Warrant Shares equal
to the number of Warrant shares otherwise issuable upon such exercise less
the number of Warrant Shares having an aggregate value on the date of
exercise equal to the Warrant Exercise Price multiplied by the number of
Warrant Shares for which this Warrant is being exercised. For purposes
hereof, the "value" of a share of Common Stock on a given date shall equal
to the Market Price on such date as defined in Section 10 of this
Agreement.
12. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Holder of this Warrant as follows:
(a) This Warrant has been duly authorized and executed by the
Company and is a valid and binding obligation of the Company enforceable in
accordance with its terms, subject to laws of general application relating
to bankruptcy, insolvency and the relief of debtors and the rules of law or
principles at equity governing specific performance, injunctive relief and
other equitable remedies;
(b) The Warrant Shares have been duly authorized and reserved
for issuance by the Company and, when issued in accordance with the terms
hereof, will be validly issued, fully paid and nonassessable; and
(c) The execution and delivery of this Warrant are not, and the
issuance of the Warrant Shares upon exercise of this Warrant in accordance
with the terms hereof will not be, inconsistent with the articles of
incorporation, by-laws or other organizational documents of the Company, do
not and will not contravene, in any material respect, any governmental rule
or regulation, judgment or order applicable to the Company, and do not and
will not conflict with or contravene any provision of, or constitute a
default under, any indenture, mortgage, contract or other instrument of
which the Company is a party or by which it is bound or require the consent
or approval of, the giving of notice to, the registration or filing with or
the taking of any action in respect of or by, any Federal, state or local
government authority or agency or other person, except for the filing of
notices pursuant to federal and state securities laws, which filings will
be effected by the time required thereby.
13. NOTICES. Notices and other communications provided for herein
shall be in writing and may be given by mail, courier, confirmed telex or
facsimile transmission and shall, unless otherwise expressly required, be
deemed given when received or when delivery thereof is refused. In the
case of Holder, such notices and communications shall be addressed to its
address as shown on the books maintained by the Company unless Holder shall
notify the Company that notices and communications should be sent to a
different address (or telex or facsimile number) in which case such notices
and communications shall be sent to the address (or telex or facsimile
number) specified by Holder.
14. GOVERNING LAW. This Warrant shall be governed by and construed
in accordance with the laws of the State of Nevada.
15. GENERAL PROVISIONS.
(a) This Agreement contains the entire understanding between the
parties with respect to the subject matter hereof, and supersedes any and
all prior written or oral agreements between the parties with respect to
the subject matter hereof. There are no representations, agreements,
arrangements, or understandings, either written or oral, between or among
the parties with respect to the subject matter hereof which are not set
forth in this Agreement.
(b) Each party to this Agreement agrees to perform such further
acts and to execute and deliver such other and additional documents as may
be reasonably necessary to carry out the provisions of this Agreement.
(c) If any term, provision, covenant, or condition of this
Agreement is held by a court of competent jurisdiction to be invalid,
illegal, or unenforceable for any reason, such invalidity, illegality, or
unenforceability shall not affect any of the other terms, provisions,
covenants, or conditions of this Agreement, each of which shall be binding
and enforceable.
(d) This Agreement may not be modified, extended, renewed or
substituted without an amendment or other agreement in writing signed by
the parties to this Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer as the date first specified above.
AMERIMMUNE PHARMACEUTICALS, INC.
By:______________________________________
Name:
Title:
ATTEST:
By:________________________________________
Name:
Title:
AMERIMMUNE PHARMACEUTICALS, INC.
WARRANT EXERCISE NOTICE
(TO BE SIGNED ONLY UPON EXERCISE OF WARRANT)
The undersigned Holder of the foregoing Warrant hereby irrevocably
elects to exercise the right, represented by such Warrant, to purchase
________ shares of the Common Stock, _____ par value, of AMERIMMUNE
PHARMACEUTICALS, INC. and tenders herewith payment in accordance with
Section 1 of said Warrant as follows:
_____ shares for CASH: $ _______________________
_____ shares for CASHLESS EXERCISE (pursuant to Section 11
of the Warrant)
Please deliver the stock certificate to the address set forth below.
In addition, if the number of shares being purchased pursuant to this
exercise is less than the all of the shares purchasable under this Warrant,
please return to such address either (1) the Warrant marked to reflect the
remaining balance of shares purchasable thereunder or (2) a newly issued
Warrant in the name of the undersigned for such remaining balance of shares
purchasable thereunder.
Dated: ____________________________
Name of Warrant Holder: _______________________________________________
Tax Identification No. or
Social Security No. of Warrant Holder: _________________________________
______________________________________
(Signature)
Title:
NOTE: THE ABOVE SIGNATURE SHOULD CORRESPOND EXACTLY WITH THE NAME OF THE
WARRANT HOLDER AS IT APPEARS ON THE FIRST PAGE OF THE WARRANT OR ON A DULY
EXECUTED WARRANT ASSIGNMENT.
AMERIMMUNE PHARMACEUTICALS, INC.
WARRANT ASSIGNMENT
(TO BE SIGNED ONLY UPON TRANSFER OF WARRANT)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________________________________________, the
assignee, whose address is ______________________________________________,
and whose tax identification or social security number is
__________________,the right represented by the foregoing Warrant to
purchase ___________________shares of the Common Stock of AMERIMMUNE
PHARMACEUTICALS, INC., to which the foregoing Warrant relates and appoints
___________________ attorney to transfer said right on the books of
Amerimmune Pharmaceuticals, Inc., with full power of substitution in the
premises. If the number of shares assigned is less than all of the shares
purchasable under the Warrant, anew Warrant will be issued in the name of
the undersigned for the remaining balance of the shares purchasable
thereunder.
Dated: ____________________________
Name of Warrant Holder/Assignor: _______________________________________
(Please print)
______________________________________
(Signature)
Title:
Address of Warrant Holder/Assignor: ______________________________________
_______________________________________
_______________________________________
Tax Identification No. or Social Security No. of
Warrant Holder/Assignor: _________________________________________________
NOTE: THE ABOVE SIGNATURE SHOULD CORRESPOND EXACTLY WITH THE NAME OF THE
WARRANT HOLDER AS IT APPEARS ON THE FIRST PAGE OF THE WARRANT OR ON A
DULY EXECUTED ASSIGNMENT FORM.
