EXHIBIT 10.90
STOCK WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of June 16, 2003 (the "Effective Date") between
Viragen, Inc. a Delaware Corporation (the "Company") and Xxxxxxx X. Xxxx, M.D.
("Consultant").
The Company hereby grants to Consultant a Warrant to acquire 250,000 shares of
Common Stock, par value $.01 per share, of the Company (the "Common Stock"),
subject to the following terms and conditions:
1. Grant of Warrant. The Company hereby grants to Consultant (the
"Warrant") to purchase up to 250,000, shares of Common Stock (the "Shares"), to
be transferred upon the exercise thereof, fully paid and nonassessable.
2. Exercise Price. The exercise price of the Shares subject to
the Warrant shall be at market at the date of grant, $0.26 per share. The
Company shall pay all original issue or transfer taxes upon the exercise of the
Warrant by Consultant.
3. Exercisability of Warrant; Rights and Privileges. Subject to
the provisions of Paragraph 6 hereof, the Warrant shall be exercisable by
Consultant commencing on the Effective Date, concurrent with the effective date
of Consultant's Consulting Agreement ("Exercise Date") for a period of five (5)
years.
All granted but unexercised Warrants shall continue to be fully exercisable in
accordance with the provisions herein:
(i) if there occurs any corporate transaction
(which shall include a series of corporate transactions occurring within 60 days
or occurring pursuant to a plan), that has the result that shareholders of the
Company immediately before such transaction cease to own at least 66 2/3 percent
of the voting stock of the Company in a (a) reorganization, (b) consolidation,
(c) merger, (d) liquidation or (e) a similar of corporate transaction;
(ii) if the shareholders of the Company shall
approve a plan of merger, consolidation, reorganization, liquidation or
dissolution in which the Company does not survive (unless the approved merger,
consolidation, reorganization, liquidation or dissolution is subsequently
abandoned); or
(iii) if the shareholders of the Company shall
approve a plan for the sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company (unless such plan is
subsequently abandoned).
4. Non-Assignability of Warrant. The Warrant shall not be given,
granted, sold, exchanged, transferred, pledged, encumbered, assigned or
otherwise disposed of by Consultant, other than by will, the laws of descent and
distribution or estate planning purposes, and during the lifetime of Consultant,
shall not be exercisable by any other person, but only by Consultant.
5. Method of Exercise of Warrant. Consultant shall notify the
Company by written notice, in the form of the Notice of Exercise attached hereto
(Attachment A), delivered to the Company's principal office, attention: Chief
Financial Officer.
Payment for the Shares shall be made by Consultant's check
payable to the order to the Company in full payment for the total exercise price
of the number of Shares purchased.
As soon as practicable after the receipt of such Notice of
Exercise and accompanying payment for the purchase of Shares, the Company shall,
at its principal office, tender to Consultant a certificate or certificates
issued in Consultant's name evidencing the Shares purchased by Consultant
hereunder.
6. Termination of Warrant. To the extent exercisable but not
exercised, the Warrant shall terminate upon the first to occur of the following
dates:
(a) five (5) years from the Exercise Date as defined
herein if Consultant is still consulting with the Company pursuant to the June
15, 2003 Consulting Agreement, or
(b) if the Consulting Agreement is terminated by the
Company:
i. prior to the first anniversary of the
Consulting Agreement, six (6) months from
termination; or
ii. subsequent to the first anniversary of the
Consulting Agreement, to the second anniversary, nine
(9) months from termination; or
iii. subsequent to the second anniversary of the
Consulting Agreement, one (1) year from termination;
(c) if the Consulting Agreement is terminated by
Consultant:
i. prior to the first anniversary of the
Consulting Agreement, ninety (90) days from
termination;
ii. subsequent to the first anniversary to the
second anniversary, six (6) months from termination;
iii. subsequent to the second anniversary to the
third anniversary, nine (9) months from termination;
or
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iv. subsequent to the third anniversary, one (1)
year from termination.
Subject to the provisions of this paragraph, in the event of
Consultant's death, the exercisable but unexercised portion of the Warrant may
be exercised by the estate of the Consultant or by the person who acquired the
right to exercise the Warrant by bequest or inheritance or by reason of the
death of Consultant.
7. Securities Laws. The Company represents and warrants that (i)
all shares underlying the Warrants will be issued from shares authorized for
transfer under the applicable regulations of the Securities and Exchange
Commission on Form S-8; and (ii) such registration covering the shares
underlying the Warrants will be maintained as effective for the longer of (a)
term of the Consulting Agreement and any extensions thereof, if applicable, or
(b) the Exercise Period of the Warrants as defined herein.
8. Adjustment of Shares. If at any time prior to the expiration
or exercise in full of the Warrant, there shall be any increase or decrease in
the number of issued and outstanding shares of the Common Stock through the
declaration of a stock dividend or through any recapitalization resulting in a
stock split-up, combination or exchange of the Common Stock, then and in such
event:
(i) appropriate adjustment shall be made in the maximum
number of Shares available for grant, so that the same percentage of the
Company's issued and outstanding Shares shall continue to be subject to Warrant;
and
(ii) appropriate adjustment shall be made in the number of
Shares, and the exercise price per Share thereof, that remain unexercised under
the Warrant, so that the same percentage of the Company's issued and outstanding
shares of Common Stock shall remain subject to purchase at the same aggregate
exercise price.
Except as otherwise expressly provided herein, the issuance by the Company of
shares of its capital stock of any class, or securities convertible into shares
of capital stock of any class, either in connection with a direct sale of upon
the exercise of rights or warrants to subscribe therefore, or upon conversions
of shares or obligations the Company convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof shall be made
with respect to, the number of exercise price of the Shares that remain
unexercised under the Warrant.
Without limiting the generality of the foregoing, the existence of unexercised
Shares under the Warrant shall not affect in any manner the right or power of
the Company to make, authorize or consummate (i) any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business; (ii) any merger or consolidation of the Company;
(iii) any issue by the Company of debt securities, or preferred or preference
stock that would rank above the Shares issuable upon exercise of the Warrant;
(iv) the dissolution or liquidation of the Company; (v) any
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sale, transfer or assignment of all or any part of the assets or business of the
Company; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.
9. No Rights as Stockholder. Consultant shall have no rights as a
stockholder of the Company in respect of the Shares as to which the Warrant
shall not have been exercised and payments made therefore as herein provided.
10. Binding Effect. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their heirs, legal representatives, successors and permitted assigns.
11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without giving
effect to the conflict of laws principles thereof. All terms not defined in this
Agreement shall have the same meaning as in the Plan.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
VIRAGEN, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxxx
Chief Executive Officer
CONSULTANT
/s/ Xxxxxxx X. Xxxx
--------------------------
Xxxxxxx X. Xxxx, M.D.
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ATTACHMENT A
NOTICE OF EXERCISE
The undersigned hereby irrevocably elects to exercise the within Warrant to the
extent of purchasing __________ shares of Common Stock of Viragen, Inc., a
Delaware Corporation, and hereby makes payments of $________ in payment
therefor.
________________________________
Signature
________________________________
Date
INSTRUCTIONS FOR ISSUANCE OF STOCK AND CORPORATE RECORDS
Name: ________________________________________
(Please type or print in block letters)
Address: ________________________________________
________________________________________
Social Security #: _______________________________________
Phone #: (____)___________________________________________
Fax #: (____)___________________________________________
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