Exhibit 4.11
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE BEEN ACQUIRED FOR INVESTMENT
AND NOT FOR DISTRIBUTION, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED NEITHER THE WARRANT NOR THE SHARES MAY BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT
OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED. THIS WARRANT
MUST BE SURRENDERED TO THE COMPANY OR ITS TRANSFER AGENT AS A CONDITION
PRECEDENT TO THE SALE, PLEDGE OR OTHER TRANSFER OF ANY INTEREST IN THIS WARRANT
OR THE SHARES ISSUABLE HEREUNDER.
Issuer: Cavit Sciences, Inc. Warrant No. A-002
Class of Stock: Common Stock 125,000 Shares of
Issue Date: January 11, 2008 Common Stock
Expiration Date: Six Months from Issue Date As Herein Described
CLASS A WARRANT TO PURCHASE COMMON STOCK
This is to certify that, for value received, Isthmus Investments Management
S.A., or a proper assignee (in each case, "Holder") is entitled to purchase,
subject to the provisions of this Warrant, from Cavit Sciences, Inc., a Florida
corporation ("Company") that number of shares of the Company's common stock
("Common Stock") set forth in Section 1.1 below..
ARTICLE 1
DESCRIPTION OF WARRANTS
1.1 Warrants. The Company hereby grants to Holder the right to purchase
125,000 shares of the Company's Common Stock ("Shares" or "Warrant Shares") at a
price per share equal to the Exercise Price set forth in Section 2.4 below.
1.2 Expiration of Warrants. This Warrant shall expire and Holder shall no
longer be able to purchase the Warrant Shares after six months from the issue
date ("Expiration Date").
ARTICLE 2
EXERCISE
2.1 Exercise and Price. Holder may exercise this Warrant by timely
delivering a duly executed Warrant Notice of Exercise in substantially the form
attached as Appendix 1, together with the Exercise Price, to the principal
office of the Company.
2.2 Delivery of Certificate and New Warrant. As promptly as practicable
after the receipt of the Warrant Notice of Exercise, but in any event not more
than two (2) Business Days after the Company's receipt of the Warrant Notice of
Exercise, the Company shall issue the Warrant Shares being purchased and cause
to be mailed for delivery by overnight courier, or if a Registration Statement
covering the Shares has been declared effective by the SEC, cause to be
electronically transferred, to Holder a certificate representing the Shares
acquired and, if this Warrant has not been fully exercised and has not expired,
a new Warrant substantially in the form of this Warrant representing the right
to acquire the portion of the Shares not so acquired.
2.3 Replacement of Warrants. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of loss, theft or destruction, on delivery of an indemnity
agreement reasonably satisfactory in form and amount to the Company or, in the
case of mutilation, or surrender and cancellation of this Warrant, the Company
at its expense shall execute and deliver, in lieu of this Warrant, a new warrant
of like tenor.
2.4 Exercise Price. The Exercise Price of this Warrant shall be $.40 per
Share payable in cash.
ARTICLE 3
ADJUSTMENT TO THE SHARES
The number of Shares purchasable upon the exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
3.1 Reclassification. In case of any reclassification or change of
outstanding securities of the class issuable upon exercise of this Warrant then,
and in any such case, the Holder, upon the exercise hereof at any time after the
consummation of such reclassification or change, shall be entitled to receive in
lieu of each Share theretofore issuable upon exercise of this Warrant, the kind
and amount of shares of stock, other securities, money and/or property received
upon such reclassification or change by a holder of one Share. The provisions of
this Section 3.1 shall similarly apply to successive reclassifications or
changes.
3.2 Subdivision or Combination of Shares. If the Company at any time while
this Warrant remains outstanding and unexpired shall subdivide or combine its
Shares, the Exercise Price shall be proportionately decreased in the case of a
subdivision or increased in the case of a combination.
3.3 Stock Dividends. If the Company, at any time while this Warrant is
outstanding shall pay a dividend with respect to its Shares payable in Shares,
or make any other distribution of Shares with respect to Shares (except any
distribution specifically provided for in Section 3.1 and Section 3.2 above),
then the Exercise Price shall be adjusted, effective from and after the date of
determination of shareholders entitled to received such dividend or
distribution, to that price determined by multiplying the Exercise Price in
effect immediately prior to such date of determination by a fraction, (a) the
numerator of which shall be the total number of Shares outstanding immediately
prior to such dividend or distribution, and (b) the denominator of which shall
be the total number of Shares outstanding immediately after such dividend or
distribution.
3.4 Non-Cash Dividends. If the Company at any time while this Warrant is
outstanding shall pay a dividend with respect to Shares payable in securities
other than Shares or other non-cash property, or make any other distribution of
such securities or property with respect to Shares (except any distribution
specifically provided for in Section 3.1 and Section 3.2 above), then this
Warrant shall represent the right to acquire upon exercise of this Warrant such
securities or property which a holder of Shares would have been entitled to
receive upon such dividend or distribution, without the payment by the Holder of
any additional consideration for such securities or property.
3.5 Effect of Reorganization and Asset Sales. If any (i) reorganization or
reclassification of the Common Stock (ii) consolidation or merger of the Company
with or into another corporation, or (iii) sale or all or substantially all of
the Company's operating assets to another corporation followed by a liquidation
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of the Company (any such transaction shall be referred to herein as an "Event"),
is effected in such a way that holders of Common Stock are entitled to receive
securities and/or assets as a result of their Common Stock ownership, the
Holder, upon exercise of this Warrant, shall be entitled to receive such shares
of stock securities or assets which the Holder would have received had it fully
exercised this Warrant on or prior the record date for such Event. The Company
shall not merge into or consolidate with another corporation or sell all of its
assets to another corporation for a consideration consisting primarily of
securities of such corporation, unless the successor or acquiring corporation,
as the case may be, shall expressly assume the due and punctual observance and
performance of each and every covenant and condition of this Warrant to be
performed or observed by the Company and all of the obligations and liabilities
hereunder, subject to such modification as shall be necessary to provide for
adjustments which shall be as nearly equivalent as practicable to the
adjustments provided for in this Section 2. The foregoing provisions shall
similarly apply to successive mergers, consolidations or sales of assets.
3.6 Adjustment of Number of Shares. Upon each adjustment in the Exercise
Price, the number of Shares shall be adjusted, to the nearest whole share, to
the product obtained by multiplying the number of Shares, purchasable
immediately prior to such adjustment by a fraction, the numerator of which shall
be the Exercise Price immediately prior to such adjustment and the denominator
of which shall be the Exercise Price immediately thereafter.
3.7 No Impairment. The Company shall not, by amendment of its articles of
incorporation or through a reorganization, transfer of assets, consolidation,
merger, dissolution, issue, or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed under this Warrant by the Company, but shall at all times
in good faith assist in carrying out all of the provisions of this Warrant and
in taking all such action as may be reasonably necessary or appropriate to
protect Holder's rights hereunder against impairment. If the Company takes any
action affecting its Common Stock other than as described above that adversely
affects Holder's rights under this Warrant, the Exercise Price shall be adjusted
downward and the number of Shares issuable upon exercise of this Warrant shall
be adjusted upward in such a manner that the aggregate Exercise Price of this
Warrant is unchanged.
3.8 Fractional Shares. No fractional Shares shall be issuable upon the
exercise of this Warrant, and the number of Shares to be issued shall be rounded
down to the nearest whole share.
3.9 Certificate as to Adjustments. Upon any adjustment of the Exercise
Price, the Company, at its expense, shall compute such adjustment and furnish
Holder with a certificate of its Chief Financial Officer setting forth such
adjustment and the facts upon which such adjustment is based. The Company shall,
upon written request, furnish Holder a certificate setting forth the Exercise
Price in effect upon the date thereof and the series of adjustments leading to
such Exercise Price.
3.10 No Rights of Shareholders. This Warrant does not entitle Holder to any
voting rights or any other rights as a shareholder of the Company prior to the
exercise of Holder's right to purchase Shares as provided herein.
ARTICLE 4
REPRESENTATIONS AND COVENANTS OF THE COMPANY
4.1 Representations and Warranties. The Company hereby represents and
warrants to Holder that all Shares which may be issued upon the exercise of the
purchase right represented by this Warrant, shall, upon issuance, be duly
authorized, validly issued, fully paid and nonasessable, and free of any liens
and encumbrances.
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4.2 Notice of Certain Events. If the Company proposes at any time (a) to
declare any dividend or distribution upon its Common Stock, whether in cash,
property, stock, or other securities and whether or not a regular cash dividend;
(b) to offer for subscription pro rata to the holders of any class or series of
its stock any additional shares of stock of any class or series or other rights;
(c) to effect any reclassification or recapitalization of Common Stock; (d) to
merge or consolidate with or into any other corporation, or sell, lease,
license, or convey all or substantially all of its assets, or to liquidate,
dissolve or wind up; or (e) offer holders of registration rights the opportunity
to participate in an underwritten public offering of the Company's securities
for cash, then, in connection with each such event, the Company shall give
Holder (1) at least 20 days prior written notice of the date on which a record
will be taken for such dividend, distribution, or subscription rights (and
specifying the date on which the holders of Common Stock will be entitled
thereto) or for determining rights to vote, if any, in respect of the matters
referred to in (c) and (d) above; (2) in the case of the matters referred to in
(c) and (d) above at least 20 days prior written notice of the date when the
same will take place (and specifying the date on which the holders of Common
Stock will be entitled to exchange their Common Stock for securities or other
property deliverable upon the occurrence of such event); and (3) in the case of
the matter referred to in (e) above, the same notice as is given to the holders
of such registration rights.
4.3 Information Rights. So long as Holder holds this Warrant and/or any of
the Shares, the Company shall deliver to Holder (a) promptly after mailing,
copies of all notices or other written communications to the shareholders of the
Company, (b) within ninety (90) days of their availability, the annual audited
financial statements of the Company certified by independent public accountants
of recognized standing, and (c) within forty-five (45) days after the end of
each fiscal quarter or each fiscal year, the Company's quarterly, unaudited
financial statements.
4.4 Reservation of Warrant Shares. The Company has reserved and will keep
available, out of the authorized and unissued shares of Common Stock, the full
number of shares sufficient to provide for the exercise of the rights of
purchase represented by this Warrant.
ARTICLE 5
REGISTRATION RIGHTS
5.1 Definitions.
(a) As used in this Agreement, the following terms shall have the meanings:
(i) "AFFILIATE" of any specified Person means any other Person who
directly, or indirectly through one or more intermediaries, is in control of, is
controlled by, or is under common control with, such specified Person. For
purposes of this definition, control of a Person means the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether by contract, securities, ownership or otherwise; and the
terms "CONTROLLING" and "CONTROLLED" have the respective meanings correlative to
the foregoing.
(ii) "COMMISSION" means the Securities and Exchange Commission.
(3) "PERSON" means any individual, partnership, corporation, limited
liability company, joint stock company, association, trust, unincorporated
organization, or a government or agency or political subdivision thereof.
(iii) "PROSPECTUS" means the prospectus (including, without limitation, any
preliminary prospectus and any final prospectus filed pursuant to Rule 424b.
under the Securities Act, including any prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
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statement in reliance on Rule 430b. under the Securities Act) included in the
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement and by all other amendments and
supplements to such prospectus, including all material incorporated by reference
in such prospectus and all documents filed after the date of such prospectus by
the Company under the Exchange Act and incorporated by reference therein.
(iv) "PUBLIC OFFERING" means an offer registered with the Commission and
the appropriate state securities commissions by the Company of its Common Stock
and made pursuant to the Securities Act.
(v) "REGISTRABLE SECURITIES" means the Common Stock issued (i) upon
exercise of the Warrants, and (ii) in connection with any distribution,
recapitalization, stock-split, stock adjustment or reorganization of the
Company; provided, however, a share of Common Stock shall cease to be a
Registrable Security for purposes of this Agreement when it no longer is a
Restricted Security.
(vi) "REGISTRATION STATEMENT" means a registration statement of the Company
filed on an appropriate form under the Securities Act providing for the
registration of, and the sale on a continuous or delayed basis by the holders
of, all of the Registrable Securities pursuant to Rule 415 under the Securities
Act, including the Prospectus contained therein and forming a part thereof, any
amendments to such registration statement and supplements to such Prospectus,
and all exhibits to and other material incorporated by reference in such
registration statement and Prospectus.
(vii) "RESTRICTED SECURITY" means any share of Common Stock issued upon
exercise of warrants except any such share that (i) has been registered pursuant
to an effective registration statement under the Securities Act and sold in a
manner contemplated by the prospectus included in such registration statement,
(ii) has been transferred in compliance with the resale provisions of Rule 144
under the Securities Act (or any successor provision thereto) or is transferable
pursuant to paragraph (k) of Rule 144 under the Securities Act (or any successor
provision thereto) or (iii) otherwise has been transferred and a new share of
Common Stock not subject to transfer restrictions under the Securities Act has
been delivered by or on behalf of the Company.
(viii) "SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder, or any similar successor
statute.
5.2 Registration.
(a) FILING AND EFFECTIVENESS OF REGISTRATION STATEMENT. The Company shall
prepare and file with the Commission as soon as practicable a Registration
Statement relating to the offer and sale of the Registrable Securities and shall
use its best efforts to cause the Commission to declare such Registration
Statement effective under the Securities Act as promptly as practicable. The
Company shall notify Holder by written notice that such Registration Statement
has been declared effective by the Commission within 24 hours of such
declaration by the Commission.
5.3 Obligations of the Company.
In connection with the registration of the Registrable Securities, the
Company shall:
(a) Promptly (i) prepare and file with the Commission such amendments to
the Registration Statement and supplements to the Prospectus as may be necessary
to keep the Registration Statement continuously effective and in compliance with
the provisions of the Securities Act applicable thereto so as to permit the
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Prospectus forming part thereof to be current and useable by Holder for resale
of the Registrable Securities for a period of two (2) years from the date on
which the Registration Statement is first declared effective by the Commission
("EFFECTIVE TIME") or such shorter period that will terminate when all the
Registrable Securities covered by the Registration Statement have been sold
pursuant thereto in accordance with the plan of distribution provided in the
Prospectus, transferred pursuant to Rule 144 under the Securities Act or
otherwise transferred in a manner that results in the delivery of new securities
not subject to transfer restrictions under the Securities Act ("REGISTRATION
PERIOD") and (ii) take all lawful action such that each of (A) the Registration
Statement and any amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, not misleading
and (B) the Prospectus forming part of the Registration Statement, and any
amendment or supplement thereto, does not at any time during the Registration
Period include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(b) (i) Prior to the filing with the Commission of any Registration
Statement (including any amendments thereto) and the distribution or delivery of
any Prospectus (including any supplements thereto), provide draft copies thereof
to Holder and reflect in such documents all such comments as Holder (and its
counsel) reasonably may propose and (ii) furnish to Holder whose Registrable
Securities are included in the Registration Statement and its legal counsel
identified to the Company, (A) promptly after the same is prepared and publicly
distributed, filed with the Commission, or received by the Company, one copy of
the Registration Statement, each Prospectus, and each amendment or supplement
thereto and (B) such number of copies of the Prospectus and all amendments and
supplements thereto and such other documents, as Holder may reasonably request
in order to facilitate the disposition of the Registrable Securities owned by
Holder;
(c) (i) Register or qualify the Registrable Securities covered by the
Registration Statement under such securities or "blue sky" laws of such
jurisdictions as Holder reasonably requests, (ii) prepare and file in such
jurisdictions such amendments (including post-effective amendments) and
supplements to such registrations and qualifications as may be necessary to
maintain the effectiveness thereof at all times during the Registration Period,
(iii) take all such other lawful actions as may be necessary to maintain such
registrations and qualifications in effect at all times during the Registration
Period and (iv) take all such other lawful actions reasonably necessary or
advisable to qualify the Registrable Securities for sale in such jurisdictions.
(d) As promptly as practicable after becoming aware of such event, notify
Holder of the occurrence of any event, as a result of which the Prospectus
included in the Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and promptly prepare
an amendment to the Registration Statement and supplement to the Prospectus to
correct such untrue statement or omission, and deliver a number of copies of
such supplement and amendment to Holder may reasonably request;
(e) As promptly as practicable after becoming aware of such event, notify
Holder of the issuance by the Commission of any stop order or other suspension
of the effectiveness of the Registration Statement at the earliest possible time
and take all lawful action to effect the withdrawal, recession or removal of
such stop order or other suspension;
(f) Cause all the Registrable Securities covered by the Registration
Statement to be listed on the principal national securities exchange or included
in an inter-dealer quotation system of a registered national securities
6
association, on or in which securities of the same class or series issued by the
Company are then listed or included;
(g) Cooperate with Holder who holds Registrable Securities being offered to
facilitate the timely preparation and delivery of certificates for the
Registrable Securities to be offered pursuant to the registration statement and
enable such certificates for the Registrable Securities to be in such
denominations or amounts, as the case may be, as Holder reasonably may request
and registered in such names as Holder may request; and, within three (3)
business days after a registration statement which includes Registrable
Securities is declared effective by the Commission, deliver and cause legal
counsel selected by the Company to deliver to the transfer agent for the
Registrable Securities (with copies to the Investors whose Registrable
Securities are included in such registration statement) an appropriate
instruction and, to the extent necessary, an opinion of such counsel;
(h) Take all such other lawful actions reasonably necessary to expedite and
facilitate the disposition by Holder of its Registrable Securities in accordance
with the intended methods therefor provided in the Prospectus which are
customary under the circumstances; and
(i) (i) Make reasonably available for inspection by Holder, any underwriter
participating in any disposition pursuant to the Registration Statement, and any
attorney, accountant or other agent retained by such Investors or any such
underwriter all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries, and (ii) cause the
Company's officers, directors and employees to supply all information reasonably
requested by Holder or any such underwriter, attorney, accountant or agent in
connection with the Registration Statement, in each case, as is customary for
similar due diligence examinations; provided, however, that all records,
information and documents that are designated in writing by the Company, in good
faith, as confidential, proprietary or containing any material nonpublic
information shall be kept confidential by such Investors and any such
underwriter, attorney, accountant or agent (pursuant to an appropriate
confidentiality agreement in the case of any such holder or agent), unless such
disclosure is made pursuant to judicial process in a court proceeding (after
first giving the Company an opportunity promptly to seek a protective order or
otherwise limit the scope of the information sought to be disclosed) or is
required by law, or such records, information or documents become available to
the public generally or through a third party not in violation of an
accompanying obligation of confidentiality; and provided, further, that, if the
foregoing inspection and information gathering would otherwise disrupt the
Company's conduct of its business, such inspection and information gathering
shall, to the maximum extent possible, be coordinated on behalf of the Investors
and the other parties entitled thereto by one firm of counsel designed by and on
behalf of the majority in interest of Investors and other parties.
5.4 Obligations of Holder.
In connection with the registration of the Registrable Securities, Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it as shall be reasonably required to effect the registration
of such Registrable Securities and shall execute such documents in connection
with such registration as the Company may reasonably request.
5.5 Expenses of Registration.
All expenses, other than underwriting discounts and commissions, incurred
in connection with registrations, filings or qualifications pursuant to Section
5, but including, without limitation, all registration, listing, and
qualifications fees, printing and engraving fees, accounting fees, and the fees
7
and disbursements of counsel for the Company, and the reasonable fees of one
firm of counsel to the holders of a majority in interest of the Registrable
Securities shall be borne by the Company.
5.6 Indemnification and Contribution.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall indemnify and hold
harmless Holder and each underwriter, if any, which facilitates the disposition
of Registrable Securities, and each of their respective officers and directors
and each person who controls Holder or underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act (each such person
being sometimes hereinafter referred to as an "INDEMNIFIED PERSON") from and
against any losses, claims, damages or liabilities, joint or several, to which
such Indemnified Person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement of a
material fact contained in any Registration Statement or an omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, not misleading, or arise out of or are based upon an untrue
statement of a material fact contained in any Prospectus or an omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and the Company hereby agrees to reimburse such
Indemnified Person for all reasonable legal and other expenses incurred by them
in connection with investigating or defending any such action or claim as and
when such expenses are incurred; provided, however, that the Company shall not
be liable to any such Indemnified Person in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon (i) an
untrue statement made in, or an omission from, such Registration Statement or
Prospectus in reliance upon and in conformity with written information furnished
to the Company by such Indemnified Person expressly for use therein or (ii) the
use by the Indemnified Person of an outdated or defective Prospectus after the
Company has provided to such Indemnified Person an updated Prospectus correcting
the untrue statement or omission giving rise to such loss, claim, damage or
liability.
(b) NOTICE OF CLAIMS, ETC. Promptly after receipt by a party seeking
indemnification pursuant to this Section 5.6 ("INDEMNIFIED PARTY") of written
notice of any investigation, claim, proceeding or other action in respect of
which indemnification is being sought (each, a "CLAIM"), the Indemnified Party
promptly shall notify the party against whom indemnification pursuant to this
Section 5.6 is being sought ("INDEMNIFYING PARTY") of the commencement thereof;
but the omission to so notify the Indemnifying Party shall not relieve it from
any liability that it otherwise may have to the Indemnified Party, except to the
extent that the Indemnifying Party is materially prejudiced and forfeits
substantive rights and defenses by reason of such failure. In connection with
any Claim as to which both the Indemnifying Party and the Indemnified Party are
parties, the Indemnifying Party shall be entitled to assume the defense thereof.
Notwithstanding the assumption of the defense of any Claim by the Indemnifying
Party, the Indemnified Party shall have the right to employ separate legal
counsel and to participate in the defense of such Claim, and the Indemnifying
Party shall bear the reasonable fees, out-of-pocket costs and expenses of such
separate legal counsel to the Indemnified Party if (and only if): (x) the
Indemnifying Party shall have agreed to pay such fees, costs and expenses, (y)
the Indemnified Party and the Indemnifying Party shall reasonably have concluded
that representation of the Indemnified Party by the Indemnifying Party by the
same legal counsel would not be appropriate due to actual or, as reasonably
determined by legal counsel to the Indemnified Party, potentially differing
interests between such parties in the conduct of the defense of such Claim, or
if there may be legal defenses available to the Indemnified Party that are in
addition to or disparate from those available to the Indemnifying Party or (z)
the Indemnifying Party shall have failed to employ legal counsel reasonably
satisfactory to the Indemnified Party within a reasonable period of time after
notice of the commencement of such Claim. If the Indemnified Party employs
separate legal counsel in circumstances other than as described in clauses (x),
(y) or (z) above, the fees, costs and expenses of such legal counsel shall be
borne exclusively by the Indemnified Party. Except as provided above, the
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Indemnifying Party shall not, in connection with any Claim in the same
jurisdiction, be liable for the fees and expenses of more than one firm of
counsel for the Indemnified Party (together with appropriate local counsel). The
Indemnified Party shall not, without the prior written consent of the
Indemnifying Party (which consent shall not unreasonably be withheld), settle or
compromise any Claim or consent to the entry of any judgment that does not
include an unconditional release of the Indemnifying Party from all liabilities
with respect to such Claim or judgment.
(c) CONTRIBUTION. If the indemnification provided for in this Section 5.6
is unavailable to or insufficient to hold harmless an Indemnified Person under
subsection (A) or (B) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and the Indemnified Party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations.
(d) Notwithstanding any other provision of this Section 5.6, in no event
shall any (i) Holder be required to undertake liability to any person under this
Section 5.6 for any amounts in excess of the dollar amount of the proceeds to be
received by Holder from the sale of Holder's Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) pursuant to
any Registration Statement under which such Registrable Securities are to be
registered under the Securities Act and (ii) underwriter be required to
undertake liability to any Person hereunder for any amounts in excess of the
aggregate discount, commission or other compensation payable to such underwriter
with respect to the Registrable Securities underwritten by it and distributed
pursuant to the Registration Statement.
(e) The obligations of the Company under this Section 5.6 shall be in
addition to any liability which the Company may otherwise have to any
Indemnified Person and the obligations of any Indemnified Person under this
Section 5 shall be in addition to any liability which such Indemnified Person
may otherwise have to the Company. The remedies provided in this Section 5.6 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to an indemnified party at law or in equity.
5.7 Assignment.
The rights to have the Company register Registrable Securities pursuant to
this Agreement shall be automatically assigned by Holder to any transferee of
all or any portion of such Registrable Securities (or all or any portion of the
Warrants only if (a) Holder agrees in writing with the transferee or assignee to
assign such rights, and a copy of such agreement is furnished to the Company
within a reasonable time after such assignment, (b) the Company is, within a
reasonable time after such transfer or assignment, furnished with written notice
of (i) the name and address of such transferee or assignee and (ii) the
securities with respect to which such registration rights are being transferred
or assigned, (c) immediately following such transfer or assignment, the
securities so transferred or assigned to the transferee or assignee constitute
Restricted Securities and (d) at or before the time the Company received the
written notice contemplated by clause (b) of this sentence the transferee or
assignee agrees in writing with the Company to be bound by all of the provisions
contained herein.
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ARTICLE 6
REPRESENTATIONS AND COVENANTS OF THE HOLDER
6.1 Private Issue. Holder understands (i) that the Shares issuable upon
exercise of Holder's rights contained in the Warrant are not registered under
the Act or qualified under applicable state securities laws on the ground that
the issuance contemplated by the Warrant will be exempt from the registration
and qualifications requirements thereof, and (ii) that the Company's reliance on
such exemption is predicated on Holder's representations set forth in this
Article 6.
6.2 Financial Risk. Holder has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of its
investment and has the ability to bear the economic risks of its investment.
6.3 Risk of No Registration. Holder understands that if the Company does
not register with the Securities and Exchange Commission pursuant to Section 12
of the Act, or file reports pursuant to Section 15(d), of the Securities
Exchange Act of 1934 (the "1934 Act"), or if a registration statement covering
the securities under the Act is not in effect when it desires to sell (i) the
right to purchase Shares pursuant to the Warrant, or (ii) the Shares issuable
upon exercise of the right to purchase, it may be required to hold such
securities for an indefinite period.
6.4 Accredited Investor. Holder is an "accredited investor," as such term
is defined in Regulation D promulgated pursuant to the Act.
ARTICLE 7
MISCELLANEOUS
7.1 Term. This Warrant is exercisable, in whole or in part, at any time and
from time to time on or after the Issue Date and on or before the Expiration
Date set forth above.
7.2 Compliance with Securities Laws on Transfer. This Warrant may not be
transferred or assigned in whole or in part without compliance with applicable
federal and state securities laws by the transferor and the transferee
(including, without limitation, the delivery of investment representation
letters and legal opinions reasonably satisfactory to the Company, as reasonably
requested by the Company). The Company shall not require Holder to provide an
opinion of counsel if the transfer is to an affiliate of Holder.
7.3 Transfer Procedure. Holder shall have the right without the consent of
the Company to transfer or assign in whole or in part this Warrant and the
Shares issuable upon exercise of this Warrant. Holder agrees that unless there
is in effect a registration statement under the Act covering the proposed
transfer of all or part of this Warrant, prior to any such proposed transfer the
Holder shall give written notice thereof to the Company ("Transfer Notice").
Each Transfer Notice shall describe the manner and circumstances of the proposed
transfer in reasonable detail and, if the company so requests, shall be
accompanied by an opinion of legal counsel, in a form reasonably satisfactory to
the Company, to the effect that the proposed transfer may be effected without
registration under the Act; provided that the Company will not require opinions
of counsel for transactions involving transfers to affiliates or pursuant to
Rule 144 promulgated by the Securities and Exchange Commission under the act,
except in unusual circumstances.
7.4 Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be delivered personally, or
sent by telecopier machine or by a nationally recognized overnight courier
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service, and shall be deemed given when so delivered personally, or by
telecopier machine or overnight courier service as follows:
IF TO THE COMPANY, TO:
Cavit Sciences, Inc.
000 Xxxx Xxxxxx Xxxxxxxxx, Xxxxx 000X
Xxxxxx Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
IF TO THE HOLDER, TO:
Isthmus Investments Management S.A.
X.X. Xxx 0000
Xxxxx Xxxxx Xxxxxx, Xxxxxx
Xxxxxxxx of Panama
Attention: Xxxx Xxxxxxx, President
or at such other address as the Company shall have furnished to the Holder. Each
such notice or other communication shall for all purposes of this agreement be
treated as effective or having been given when delivered if delivered
personally, or, if sent by mail, at the earlier of its receipt or five days
after the same has been deposited in a regularly maintained receptacle for the
deposit of the United States mail, addressed and mailed as aforesaid.
7.5 Counterparts. This agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument. Facsimile execution shall be deemed originals.
7.6 Waiver. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
7.7 Attorneys Fees. In the event of any dispute between the parties
concerning the terms and provisions of this Warrant, the party prevailing in
such dispute shall be entitled to collect from the other party all costs
incurred in such dispute, including reasonable attorneys fees.
7.8 Governing Law; Jurisdiction. This Warrant shall be governed by and
construed in accordance with the laws of the State of Florida, without giving
effect to its principles regarding conflicts of law. Each of the parties hereto
consents to the jurisdiction of the federal courts whose districts encompass any
part of the City of Miami or the state courts of the State of Florida sitting in
the City of Miami in connection with any dispute arising under this Warrant and
hereby waives, to the maximum extent permitted by law, any objection including
any objection based on FORUM NON CONVENIENS, to the bringing of any such
proceeding in such jurisdictions.
7.9 Remedies. The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to the Holder, by vitiating
the intent and purpose of the transactions hereby. Accordingly, the Company
acknowledges that the remedy at law for a breach of its obligations under this
Warrant will be inadequate and agrees, in the event of a breach or threatened
breach by the Company of the provisions of this Warrant, that the Holder shall
be entitled, in addition to all other available remedies at law or in equity,
and in addition to the penalties assessable herein, to an injunction or
11
injunctions restraining, preventing or curing any breach of this Warrant and to
enforce specifically the terms and provisions hereof, without the necessity of
showing economic loss and without any bond or other security being required.
IN WITNESS WHEREOF, the parties hereto have duly caused this Class A Warrant to
Purchase Common Stock to be executed and delivered on the date first above
written.
Cavit Sciences, Inc.
By: /s/ Xxxx X. Xxxx
---------------------------
Title: President
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APPENDIX 1
WARRANT NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase _____ shares of the Common
Stock of Cavit Sciences, Inc. pursuant to the terms of the Class A Warrant to
Purchase Common Stock issued on January 11, 2008.
2. Please issue a certificate or certificates representing said shares in
the name of the undersigned or in such other name as is specified below:
---------------------
---------------------
---------------------
(Name and Address)
3. The undersigned makes the representations and covenants set forth in
Article 5 of the Class A Warrant to Purchase Common Stock.
--------------------------------
(Signature)
--------------------------------
(Date)
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