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Exhibit 4.12
COMMON STOCK PURCHASE WARRANT
50,000 COMMON SHARES
VIRAGEN, INC.
(A DELAWARE CORPORATION)
Dated: as of November 1, 1999 and
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND CANNOT BE SOLD, TRANSFERRED, DISPOSED
OF, PLEDGED OR HYPOTHECATED IN ANY MANNER WHATSOEVER UNLESS REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR, IF IN THE OPINION OF COMPANY COUNSEL AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS IS IN FACT APPLICABLE TO SAID
SECURITIES.
THIS CERTIFIES THAT XXXXXXXX X. XXXXXX (hereinafter called the
"Holder") is entitled to purchase from VIRAGEN, INC., a Delaware corporation
(hereinafter called the "Company"), during the period hereinafter specified,
50,000 shares (the shares of Common Stock underlying the Warrants being
hereinafter referred to, in part or in whole, as the "Shares") of the Company's
common stock, par value $.01 per share ("Common Stock"), at an exercise price of
$1.00 per Share (the "Exercise Price"). The right to purchase the Shares under
this Warrant is exercisable, in part or in whole, commencing on the date hereof.
The right to purchase any of the Shares underlying this Warrant by the Holder
hereof shall expire on November 30, 2004 and the Holder shall have no further
right to purchase any of such Shares, effective 5:00 p.m. on November 30, 2004.
1. EXERCISE RIGHTS. The right to purchase the Shares under this
Warrant is exercisable in part at any time until expiration.
2. EXERCISE OF WARRANTS. The rights represented by this Warrant may be
exercised at any time within the period above specified, in whole or in part, by
(i) the surrender of this Warrant (with the purchase form at the end hereof
properly executed) at the principal executive office of the Company (or such
other office or agency of the Company as it may designate by notice in writing
to the Holder at the address of the Holder appearing on the books of the
Company); and (ii) payment to the Company of the Exercise Price then in effect
for the number of Shares specified in the above-mentioned purchase form. This
Warrant shall be deemed to have been exercised, in whole or in part to the
extent specified, immediately prior to the close of business on the date this
Warrant is surrendered and payment is made in accordance with the foregoing
provisions of this Paragraph 1, and the person or persons in whose name or names
the certificates for Shares shall be issuable upon such exercise shall become
the holder or holders of
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record of such Shares at that time and date. The certificates for the 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.
3. RESTRICTED SECURITIES. Unless the Shares shall have been registered
with the Securities and Exchange Commission, as hereinafter provided, all Shares
acquired upon the exercise of the Warrant shall be "restricted securities" as
that term is defined in Rule 144 promulgated under the Securities Act of 1933,
as amended (the "Act"). In such event, the certificate(s) representing the
Shares shall bear an appropriate legend restricting their transfer and such
Shares cannot be sold, transferred, assigned or otherwise hypothecated without
registration under the Act or unless a valid exemption from registration is then
available under applicable federal and state securities laws and the Company has
been furnished with an opinion of counsel satisfactory in form and substance to
it that such registration is not required.
4. TRANSFER OF WARRANT. This Warrant may be sold, transferred,
assigned, or otherwise disposed of at any time by the Holder providing that the
Company shall be furnished with an opinion of counsel in form and substance
satisfactory to it that such sale, transfer, assignment or other disposition
does not require registration under the Act and a valid exemption is available
under applicable federal and state securities laws. Upon any such disposition,
the right to accelerate the lapsing of the Company's right of repurchase through
obtaining the aforementioned financings shall automatically terminate. Any
permitted transfer or assignment shall be effected by the Holder (i) completing
and executing the form of assignment, attached hereto, and (ii) surrendering
this Warrant with such duly completed and executed assignment form for
cancellation, accompanied by funds sufficient to pay any transfer tax, at the
principal executive office of the Company, accompanied by a written
representation from each such assignee addressed to the Company stating that
such assignee agrees to be bound by the terms of this Warrant; whereupon the
Company shall issue, in the name or names specified by the Holder (including the
Holder) a new Warrant or Warrants of like tenor with appropriate legends
restricting transfer under the Act and reciting the Company's right to
repurchase and representing in the aggregate rights to purchase the same number
of Shares as are purchasable hereunder.
5. REGISTRATION RIGHTS. The Holder shall have piggy-back registration
rights for all Shares underlying this Warrant in connection with any
registration statement filed through such dates by the Company to register
securities of the Company for sale to the public (except a registration
statement filed in connection with an exchange offering, a registration
statement filed to register securities in connection with a Company employee
benefit plan or a registration statement filed on behalf of selling security
holders which by the terms of its contract, or by separate written request,
precludes the inclusion of other security holders). The Company shall give
prompt written notice to Holder of any such proposed registration, and Holder
shall inform the Company, within 20 days after receipt of such notice, if it
wishes to register any of its Shares in the Company's registration statement. If
Xxxxxx does not so inform the Company, the Company shall have the right to
assume that Xxxxxx does not wish to register any of its Shares in
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the Company's registration statement. The Company shall pay all costs and
expenses of such registration, excluding fees and expenses of counsel for Holder
and underwriting discounts, commissions or expenses of Holder with respect to
the sale of its Shares. The Company shall also register Holder's Shares in one
(1) jurisdiction; provided, however, that the Company shall not be required to
qualify to do business in such jurisdiction as a condition to the registration
of the sale of the Shares in such jurisdiction or commit to a general consent to
service of process within the jurisdiction. Subject to the right of Holder to
sell its Shares under Rule l44 (as set forth below), Xxxxxx agrees to restrict
the public sale of its Shares under any such registration (which agreement shall
not affect any other shares of Common Stock or other securities of the Company
which Holder may own) to the extent requested by an underwriter of the Company's
offering of securities. Notwithstanding anything herein to the contrary, Holder
may sell shares of the Common Stock which it owns (including the shares as to
which it has registration rights) in the public marketplace pursuant to Rule 144
under the Act, to the extent that the provisions of the rule are satisfied. The
Company shall use its best efforts to make any such registration effective.
In the case of each registration pursuant to this Section 6, the
Company (i) will keep Holder advised in writing as to the initiation and
progress of proceedings for such registration and as to the completion thereof,
and (ii) at its expense, subject to the limitations as provided above, will keep
such registration effective for a period of at least nine months from the latter
of the initial effective date of the registration or the underwriter's
restrictive lock up period. Xxxxxx agrees to provide such information to the
Company as is reasonably requested by the Company which the Company believes is
necessary in order to allow the Company to register Holder's shares.
6. STATUS OF SHARES. The Company covenants and agrees that all Xxxxxx
purchased hereunder will, upon issuance, be duly and validly issued, fully paid
and non-assessable and no personal liability will attach to the Holder thereof.
The Company further covenants and agrees that during the period within which
this W xxxxxx may be exercised, the Company will at all times have authorized
and reserved a sufficient number of shares of Common Stock to provide for the
exercise of this Warrant.
7. NO VOTING RIGHTS. This Warrant shall not entitle the Holder to any
voting rights or other rights as a stockholder of the Company, either at law or
in equity, and the rights of the Holder are limited to those expressed in this
Warrant and are not enforceable against the Company except to the extent set
forth herein.
8. ADJUSTMENTS. The initial per share exercise price of $1.00 per share
and/or the number of Shares issuable upon exercise of each Warrant shall be
subject to adjustment from time to time as follows: In case the Company shall
(i) pay a dividend in shares of Common Stock or make a distribution in shares of
Common Stock, (ii) subdivide its outstanding shares of Common Stock, (iii)
combine its outstanding shares of Common Stock, or (iv) issue by
reclassification of its shares of Common Stock other securities of the Company
(including any such reclassification
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in connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Shares purchasable upon exercise of each
Warrant immediately prior thereto shall be adjusted so that the holder of each
Warrant shall be entitled to receive the kind and number of Shares or other
securities of the Company which he would have owned or have been entitled to
receive after the happening of any of the events described above, had such
Warrants been exercised immediately prior to the happening of such event or any
record date with respect thereto. An adjustment made pursuant to this paragraph
(a) shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event. Such adjustment shall be
made successively whenever any event listed above shall occur.
9. GOVERNING LAWS. This Warrant shall be governed by and in accordance
with the laws of the State of Florida and may not be amended other than by
written instrument executed by the parties hereto.
IN WITNESS WHEREOF, VIRAGEN, INC. has caused this Warrant to be signed
by its duly authorized officer and this Warrant to be dated as of the date first
above written.
VIRAGEN, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Executive Vice President
ATTEST: Date: November 1, 1999
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Secretary
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PURCHASE FORM
(To be signed only upon exercise of Warrant)
The undersigned, the Holder of the foregoing Warrant, hereby
irrevocably elects to exercise the purchase rights represented by such Warrant
for, and to purchase thereunder, ____________________ Shares of the Common Stock
of VIRAGEN, INC., and herewith makes payment of $_____________ therefore, and
requests that the share certificates be issued in the name(s) of, and delivered
to
________________________________________________________________________________
whose address(es) is (are) _____________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
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(Signature)
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Name (Print or Type)
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Address
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TRANSFER FORM
(To be signed only upon transfer of the Warrant)
For value received, the undersigned hereby assigns and transfers unto
___________________________________________ the right to purchase shares of the
Common Stock of VIRAGEN, INC. represented by the foregoing Warrant to the extent
of _______________________ Shares, and appoints _______________________ ,
attorney to transfer such rights on the books of _______________________ with
full power of substitution in the premises.
Dated:
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(Signature)
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Name (Print or Type)
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Address
