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EXHIBIT 4(e)
THE COMMON STOCK OPTION REPRESENTED BY THIS AGREEMENT (THE "OPTION") AND THE
SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF (THE "OPTION SHARES")
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR THE LAWS OF ANY OTHER JURISDICTION AND MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN ANY MANNER (1) WITHOUT
REGISTRATION UNDER THE ACT AND IN COMPLIANCE WITH THE LAWS OF ANY APPLICABLE
JURISDICTIONS; OR (2) AN OPINION OF COUNSEL (IN FORM AND SUBSTANCE ACCEPTABLE TO
ADVANCED VIRAL RESEARCH CORP.) THAT REGISTRATION IS NOT REQUIRED.
ADVANCED VIRAL RESEARCH CORP.
COMMON STOCK OPTION AND AGREEMENT
THIS COMMON STOCK OPTION (the "Option") for a total of 5,000,000 shares
(the "Option Shares") of common stock, par value $.00001 per share (the "Common
Stock"), of Advanced Viral Research Corp., a Delaware corporation (the
"Company"), is hereby granted by the Company to Plata Partners Limited
Partnership, a Michigan limited partnership (the "Optionee"), pursuant to that
certain Agreement between the Company and Optionee dated March 20, 1992, at the
price and subject to the terms and conditions contained herein.
1. Exercise of Option.
(a) Time and Price. At any time, and from time to time, for a period
of fifteen (15) months, commencing on the date hereof and ending at 4:00 p.m. on
July 19, 1994, Optionee shall be entitled to exercise in whole or in part, the
Option at the exercise price of $.10 for each Option Share.
(i) The Option granted hereunder shall be deemed exercised when
Optionee shall indicate his decision to do so in writing to the Company in
accordance with paragraph 1(b) hereof, and shall at the same time tender to the
Company payment in full for the Option Shares in accordance with paragraph 1(c)
hereof.
(b) Method of Exercise. The Option shall be exercisable by a written
notice which shall:
(i) state the election to exercise the Option, the person in
whose name the stock certificate(s) for such shares of Common Stock is to be
registered, his address and social security number (or if more than one, the
names, addresses and social security numbers of such persons);
(ii) be signed by the person or persons entitled to exercise the
Option and, if the Option is being exercised by any person(s) other than the
Optionee be accompanied by proof, satisfactory to counsel for the Company, of
the right of such person(s) to exercise the Option; and
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(iii) be delivered in person or by certified mail to
the Company.
(c) Payment. Payment of the purchase price for the Option
Shares shall be by certified or bank cashier's check.
(d) Restriction on Exercise. Notwithstanding anything
contained herein to the contrary, this Option may not be exercised if the
issuance of the Option Shares would constitute a violation of any applicable
federal or state securities laws or other applicable laws or regulations. As a
condition to the exercise of the Option, the Company may require the person
exercising the Option to make such representations and agree to such covenants
as may be required by any applicable law or regulation.
2. Optionee's or Successor's Rights as Stockholders. Neither the
Optionee nor his successor(s) in interest, as permitted hereunder, shall have
any rights as a stockholder of the Company with respect to any Option Shares
until Optionee or his successors in interest becomes a beneficial holder of the
Option Shares and receives from the Company or its duly authorized agent a certi
ficate or certificates representing the Option Shares. Optionee may not transfer
the Option without the Company's prior written consent.
3. No Registration. Optionee understands that the Option granted hereby
and the Option Shares underlying the Option have not been registered under the
Securities Act of 1933, as amended (the "Act") or any other applicable state's
securities laws in reliance upon applicable exemptions from such registration
and may be transferred only pursuant to such securities laws.
4. Investment Intent. The Option and the Option Shares contemplated to
be acquired pursuant to the exercise of the Option are being and shall be
acquired by Optionee solely for investment purposes and not for the account of
any other person and not for distribution, assignment or resale to others. No
other person has a direct or indirect beneficial interest in the Option or the
Option Shares. Optionee has not subdivided the beneficial ownership of the
Option or the Option Shares with any other person.
5. Transfer to Comply with the Securities Act of 1933. Neither the
Option nor the Option Shares may be offered or sold except in compliance with
the Act, and the laws of any applicable jurisdiction. The Company shall cause a
legend in substantially the form that follows to be set forth on the certificate
representing the Option Shares.
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR THE LAWS OF ANY OTHER JURISDICTION AND
MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
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HYPOTHECATED OR OTHERWISE DISPOSED OF IN ANY MANNER WITHOUT
(1) REGISTRATION UNDER THE ACT AND THE LAWS OF ANY APPLICABLE
JURISDICTION; OR (2) AN OPINION OF COUNSEL (IN FORM AND
SUBSTANCE ACCEPTABLE TO ADVANCED VIRAL RESEARCH CORP.) THAT
REGISTRATION IS NOT REQUIRED.
6. Review and Evaluation of Information Regarding the Company. Optionee
hereby warrants to the Company as follows:
(a) Optionee has, together with his financial advisors, if
any, have had access to any relevant information and documents desired; have had
the opportunity to ask questions of and receive answers from any person
authorized to act on behalf of the Company concerning any aspect of the Company,
including but not limited to, the merits of accepting the Option; are in
receipt of (i) that certain prospectus of the Company dated June 9, 1992; (ii)
the Company's Report on Form 10-K for the fiscal year ended December 31, 1992;
and (iii) all other requested documents and information regarding the Company
(collectively the "Information").
(b) Optionee together with his financial advisors, if any,
represent that they have carefully read, are familiar with and fully understand
the Information including all documents referred to therein, and have consulted
with such other advisors as they have deemed necessary and appropriate in making
the decision to acquire the Option. Optionee fully represents that, after a
careful review of the Information, including all documents referred to therein,
Optionee accepts the Option.
7. Financial Experience. Optionee is sufficiently experienced in
financial and business matters to be capable of evaluating the merits and risks
of his acceptance of the Option, or if Optionee has utilized the services of a
financial advisor, together they are sufficiently experienced in financial and
business matters that they are capable of evaluating the merits and risks of
Optionee's acceptance of the Option.
8. Accredited Investor. Unless this section is crossed out, Optionee is
an "accredited investor" as such term is defined at Rule 501 promulgated under
the Act, a copy of which definition is attached hereto and incorporated by
reference hereby as Exhibit "1."
9. Residency. Optionee is a limited partnership organized under the
laws of the State of Michigan.
10. MISCELLANEOUS.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the
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subject matter hereof and supersedes all prior negotiations, understandings,
agreements, arrangements and understandings, both oral and written, among the
parties hereto with respect to such subject matter.
(b) Amendment. This Agreement may not be amended or modified
in any respect, except by the mutual written agreement of the parties hereto.
(c) No Third Party Beneficiary. Nothing expressed or implied
in this Agreement is intended, or shall be construed, to confer upon or give any
person, firm, corporation, partnership, association or other entity, other than
the parties hereto and their respective successors and assigns, any rights or
remedies under or by reason of this Agreement.
(d) Waivers and Remedies. The waiver by any of the parties
hereto of any other party's prompt and complete performance, or breach or
violation, of any provision of this Agreement shall not operate nor be construed
as a waiver of any subsequent breach or violation, and the waiver by any of the
parties hereto to exercise any right or remedy which it may possess hereunder
shall not operate nor be construed as a bar to the exercise of such right or
remedy by such party upon the occurrence of any subsequent breach or violation.
(e) Severability. The invalidity of any one or more of the
words, phrases, sentences, clauses, sections or subsections contained in this
Agreement shall not affect the enforceability of the remaining portions of this
Agreement or any part hereof, all of which are inserted conditionally on their
being valid in law, and, in the event that any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in this Agreement
shall be declared invalid by a court of competent jurisdiction, this Agreement
shall be construed as if such invalid word or words, phrase or phrases, sentence
or sentences, clause or clauses, section or sections, or subsection or
subsections had not been inserted.
(f) Descriptive Headings. Descriptive headings contained
herein are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
(g) Counterparts. This Agreement may be executed in any
numbers of counterparts and by the separate parties hereto in separate
counterparts, each of which shall be deemed to be one and the same instrument.
(h) Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process in
regard hereto shall be in writing and shall be deemed to have been duly given,
when delivered by hand or three (3) days after deposited in the United States
mail, by registered or
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certified mail, return receipt requested, postage prepaid, as follows:
If to the Company: Advanced Viral Research Corp.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx,
Secretary/Treasurer
With a copy to: Xxxxxxx X. Xxxxxxx, Esq.
Hornsby, Sacher, Xxxxxx &
Xxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
If to Optionee: Plata Partners Limited Partnership
0000 Xxxx Xxxxxx
Xxxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
or to such other address as any party hereto may from time to time designate in
writing delivered in a like manner.
(i) Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns. None of the parties hereto shall assign any of its
rights or obligations hereunder.
(j) Applicable Law. This Agreement shall be governed by, and
shall be construed, interpreted and enforced in accordance with the laws of the
State of Florida.
(k) Expenses. Each of the parties hereto agrees to pay all of
the respective expenses incurred by it in connection with the negotiation,
preparation, execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
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(l) Agent. Neither party is hereby constituted an agent or
legal representative of the other party hereto and neither is granted any right
or authority hereunder to assume or create any obligation, express or implied,
or to make any representation, covenant, warranty, or guaranty, except as
expressly granted or made in this Agreement.
DATE OF GRANT: 4/20, 1993
ADVANCED VIRAL RESEARCH CORP.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------
Authorized Representative
(CORPORATE SEAL)
Attest: /s/ Xxxxxxx Xxxxxxxxx
-----------------------
Agreed and Accepted this
20 day of April 1993
----------------------------------
PLATA PARTNERS LIMITED PARTNERSHIP
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Authorized Representative
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EXHIBIT "1"
ACCREDITED INVESTOR DEFINITION
As defined in Rule 501 promulgated under the Securities Act of 1933, as
amended (the "Act"), "accredited investors" include: (1) any bank as defined in
section 3(a)(2) of the Act, or any savings and loan association or other
institution as defined in section 3(a)(5)(A) of the Act whether acting in its
individual or fiduciary capacity; any broker or dealer registered pursuant to
section 15 of the Securities Exchange Act of 1934; any insurance company as
defined in section 2(13) of the Act; any investment company registered under the
Investment Company Act of 1940 or a business development company as defined in
section 2(a)(48) of that Act; any Small Business Investment Company licensed by
the U.S. Small Business Administration under section 301(c) or (d) of the Small
Business Investment Act of 1958; any plan established and maintained by a state,
its political subdivisions, or any agency or instrumentality of the state or its
political subdivisions, for the benefit of its employees, if such plan has total
assets of $5,000,000; any employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974, if the investment decision is
made by a plan fiduciary, as defined in section 3(21) of such Act, which is
either a bank, savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total assets in excess
of $5,000,000 or, if a self-directed plan, with investment decisions made solely
by persons that are accredited investors; (2) any private business development
company as defined in section 202(a)(22) of the Investment Advisers Act of 1940;
(3) any organization described in Section 501(c)(3) of the Internal Revenue
Code, corporation, Massachusetts or similar business trust, or partnership, not
formed for the specific purpose of acquiring the Common Stock offered, with
total assets in excess of $5,000,000; (4) any director, executive officer, or
general partner of the issuer of the securities being offered or sold, or any
director, executive officer or general partner of a general partner of that
issuer; (5) any natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of his purchase exceeds $1,000,000; (6)
any natural person who had an individual income in excess of $200,000 in each of
the two most recent years or joint income with that person's spouse in excess of
$300,000 in each of those years and has a reasonable expectation of reaching the
same income level in the current year; (7) any trust, with total assets in
excess of $5,000,000, not formed for the specific purpose of acquiring the
Common Stock offered, whose purchase is directed by a sophisticated person as
described in Rule 506(b)(2)(ii) of the Act; and (8) any entity in which all of
the equity owners are accredited investors.
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