EX-10.95
CLR & ASSOCIATES AGREEMENT
CLR & ASSOCIATES WARRANT AGREEMENT
EXHIBIT “B”
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE
EXERCISE HEREOF HAVE BEEN ISSUED AND SOLD WITHOUT REGISTRATION IN
RELIANCE UPON EXEMPTIONS FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933 (THE “1933 ACT”) AND SIMILAR LAWS OF THE
STATE WHEREIN THE HOLDER RESIDES THE “STATE ACT’). SUCH
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, OR TRANSFERRED
OTHER THAN (i) PURSUANT TO AN EFFECTIVE REGISTRATION OR AN
EXEMPTION THEREFROM UNDER THE 1933 ACT AND THE STATE ACT AND
(ii) UPON RECEIPT BY THE ISSUER OF EVIDENCE SATISFACTORY TO
IT OF COMPLIANCE WITH THE 1933 ACT, THE STATE ACT AND THE
APPLICABLE SECURITIES LAWS OF ANY OTHER JURISDICTION. THE ISSUER
SHALL BE ENTITLED TO REQUIRE AN OPINION OF COUNSEL SATISFACTORY
TO IT WITH RESPECT TO COMPLIANCE WITH THE ABOVE LAWS.
WARRANT TO PURCHASE UP TO 240,000 SHARES OF
COMMON STOCK
OF
BIOSHIELD TECHNOLOGIES, INC.
(A GEORGIA CORPORATION)
NOT TRANSFERABLE OR EXERCISABLE EXCEPT
UPON CONDITIONS HEREIN SPECIFIED
VOID AFTER 5:00 O’CLOCK P.M.,
ATLANTA, GEORGIA, TIME, ON JULY 1ST, 2004
BIOSHIELD TECHNOLOGIES, INC., a Georgia corporation (the
“Company’), hereby certifies that CLR ASSOCIATES, a
resident of the State of FLORIDA, his registered successors and
permitted assigns registered on the books of the Company
maintained for such purposes as the registered holder hereof (the
“Holder”), for value received, is entitled to purchase
from the Company the number of fully paid and non-assessable
shares of common stock of the Company (the “Common
Stock”), stated above (the “Shares”) at the
purchase price of $5.00 per Share (the “Exercise
Price”) (the number of Shares and Exercise Price subject to
adjustment as hereinafter provided) upon the terms and conditions
herein provided.
1. Exercise of Warrant
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(a) Subject to subsection (b) of this Section 1,
upon presentation and surrender of this Warrant Certificate, with
an approved purchase form duly executed, at the principal office
of the Company at 4405 International Blvd., Suite B 109,
Norcross, Georgia 30093, or at such other place as the Company
may designate by notice to the Holder hereof, together with a
certified or bank cashier’s check payable to the order of
the Company in the amount of the Exercise Price times the number
of Shares being purchased, the Company shall deliver to the
Holder hereof, as promptly as the Company shall deliver to the
Holder hereof, as promptly as practicable, certificates
representing the Share being purchased. This Warrant may be
exercised in whole or in part; and, in case of exercise hereof in
part only, the company, upon surrender hereof, will deliver to
the Holder a new Warrant Certificate or Warrant Certificates of
like tenor entitling the Holder to purchase the number of Shares
as to which this Warrant has not been exercised. |
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(b) This Warrant may be exercised in whole or in part any
time prior to 5:00 o’clock p.m., Atlanta, Georgia time,
on the day five years from the earlier to occur of
(i) March 31, 1998, or (ii) the effective date of
a registration statement with respect to the Company’s
initial public offering of Common Stock (the “Expiration
Date”) (the time period from the date of this Warrant
through the Expiration Date being referred to herein as the
“Term”); |
2. Exchange and Transfer of Warrant.
This Warrant Certificate (a) at any time prior to the
exercise hereof, upon presentation and surrender to the Company,
may be exchanged, alone or with other Warrant Certificates of
like tenor registered in the name of the Holder, for another
Warrant Certificate or Warrant Certificates of like tenor in the
name of such Holder exercisable for the same aggregate number of
Shares as the Warrant Certificate or Warrant Certificates
surrendered, (b) may not be sold, transferred, hypothecated
or assigned, in whole or in part, without the prior written
consent of the Company, with the exception of any direct family
member.
3. Rights and Obligations of Warrant Holder.
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(a) The Holder of this Warrant Certificate shall not, by
virtue hereof, be entitled to any rights of a shareholder in the
Company, either at law or in equity; provided, however, in the
event that any certificate representing the Shares is issued to
the Holder hereof upon exercise of this Warrant, such Holder
shall, for all purposes, be deemed to have become the holder of
record of such Shares on the date on which this Warrant
Certificate, together with a duly executed Purchase Form, was
surrendered and payment of the Exercise Price was made,
irrespective of the date of delivery of such Share certificate.
The rights of the Holder of this Warrant are limited to those
expressed herein and the Holder of this Warrant, by its
acceptance hereof, consents to and agrees to be bound by and to
comply with all the provisions of this Warrant Certificate,
including, without limitation, all the obligations imposed upon
the Holder hereof by Sections 2 and 5 hereof. In addition,
the Holder of this Warrant Certificate, by accepting the same,
agrees that the Company may deem and treat the person in whose
name this Warrant Certificate is registered on the books of the
Company maintained for such purpose as the absolute, true and
lawful owner for all purposes whatsoever, notwithstanding any
notation of ownership or other writing hereon, and the Company
shall not be affected by any notice to the contrary. |
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(b) The Holder of this Warrant Certificate, as such, shall
not be entitled to vote or receive dividends or to be deemed the
holder of Shares for any purpose, nor shall anything contained in
this Warrant Certificate be construed to confer upon the Holder
of this Warrant Certificate, as such, any of the rights of a
shareholder of the Company including but not limited to any right
to vote, give or withhold consent to any action by the Company,
whether upon any recapitalization, issue of stock,
reclassification otherwise, receive notice of meetings or other
action affecting shareholders (except for the notices provided
for herein), receive dividends, receive subscription rights, or
any other right, until this Warrant shall have been exercised and
the Shares purchasable upon the exercise hereof shall have
become deliverable as provided herein; provided, however, the any
such exercise on any date when the stock transfer books of the
Company shall be closed shall constitute the person or persons in
whose name or names the certificate or certificates for those
Shares are to be issued as the record holder or holders thereof
for all purposes at the opening of business on the next
succeeding day on which such stock transfer books are open, and
the Warrant surrendered shall not be deemed to have been
exercised, in whole or in part as the case may be, until the next
succeeding day on which stock transfer books are open for the
purpose of determining entitlement to dividends on the
Company’s common stock. |
4. Shares Underlying Warrant.
The Company covenants and agrees that all Shares delivered upon
exercise of this Warrant shall, upon delivery and payment
therefor, be duly and validly authorized and issued, fully paid
and non-assessable, and free from all liens and charges with
respect to the purchase thereof.
5. Disposition of Warrants or Shares.
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(a) The Holder of this Warrant Certificate and any
transferee hereof or of the Shares issuable upon the exercise of
this Warrant, by their acceptance hereof or thereof, hereby
understand and agree that this Warrant, and the Shares issuable
upon the exercise hereof, have not been registered under either
the Securities Act of 1933, as amended (the “1933 Act”)
or applicable state securities laws (the “State Acts”)
and shall not be sold, pledged, hypothecated, donated or
otherwise transferred (whether or not for consideration) except
upon the issuance to the Company of a favorable opinion of
counsel or submission to the Company of such evidence as may be
satisfactory to counsel to the Company, in each such case, to the
effect that any such transfer shall not be in violation of the
Act and the State Acts. It shall be a condition to the transfer
of this Warrant that any transferee hereof deliver to the Company
its written agreement to accept and be bound by all of the terms
and conditions of this Warrant Certificate. (b) The stock
certificates of the Company that will evidence the Shares
issuable upon the exercise hereof may be imprinted with a
conspicuous legend in substantially the following form: |
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The securities represented by this certificate have not been
registered under either the Securities Act of 1933, as amended
(the “Act”) or applicable state securities laws (the
“State Acts”) and shall not be |
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sold, pledged, hypothecated, donated or otherwise transferred
(whether or not for consideration) by the holder except upon the
issuance to the Company of a favorable opinion of its counsel or
submission to the Company of such other evidence as may be
satisfactory to counsel to the Company, in each case, to the
effect that any such transfer shall not be in violation of the
Act and the State Acts. |
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The Company does not file, and does not in the foreseeable future
contemplate filing, periodic reports with the Securities and
Exchange Commission (“SEC”) pursuant to the provisions
of the Securities Exchange Act of 1934, as amended. The Company
has not agreed to register any of the Shares issuable upon the
exercise hereof for distribution in accordance with the
provisions of the Act or the State Acts, and the Company has not
agreed to comply with any exemption from registration under the
Act or the State Acts for the resale of such Shares. Hence, it is
the understanding of the Holder of this Warrant that by virtue
of the provisions of certain rules respecting “restricted
securities” promulgated by the SEC, the Shares issuable upon
the exercise hereof may be required to be held indefinitely,
unless and until registered under the Act and the State Acts,
unless an exemption from such registration is available, in which
case the Holder may still be limited as to the number of such
Shares that may sold. |
6. Adjustments.
The Exercise Price and the number of Shares purchasable upon the
exercise of this Warrant are subject to proportionate adjustment
from time to time upon the occurrence of any of the events
enumerated below.
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(a) In case the Company shall: (i) subdivide its
outstanding shares of Common Stock into a greater number of
shares of Common Stock, or (ii) combine its outstanding
shares of Common Stock into a smaller number of shares of Common
Stock, the Exercise Price and the number of Shares purchasable
upon the exercise of this Warrant immediately prior thereto shall
be proportionately adjusted so that the Holder shall be entitled
to receive upon exercise of this Warrant that number of Shares
which such Holder would have owned or would have been entitled to
receive after the happening of such event had such Holder
exercised this Warrant immediately prior to the effective date.
An adjustment made pursuant to this subsection (a) shall be
made whenever any of such events shall occur, but shall become
effective retroactively after such record date or such effective
date, as the case may be, as to any portion of this Warrant
exercised between such record date or effective date and date of
happening of any such event. |
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(b) No adjustment shall be required unless such adjustment
would require an increase or decrease of at least one percent in
the number of Shares purchasable hereunder; provided, however,
that any adjustments which by reason of this subsection
(b) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment, AU calculations
under this Section 6 shall be made to the nearest
one-hundredth of a Share. |
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(c) Whenever the Exercise Price and the number of Shares
purchasable hereunder are adjusted as herein provided, the
Company shall cause to be mailed to the Holder in accordance with
the provisions of this Section 6 a notice (i) stating
that the Exercise Price and the number of Shares purchasable upon
exercise of this Warrant have been adjusted, (ii) setting
forth the adjusted Exercise Price and the number of Shares
purchasable upon the exercise of this Warrant, and
(iii) showing in reasonable detail the computations and the
facts, including the amount of consideration received or deemed
to have been received by the Company, upon which such adjustments
are based. |
7. Fractional Shares.
The Company shall not be required to issue any fraction of a
Share upon the exercise of this Warrant or any portion hereof If
more than one Warrant Certificate (each such Warrant Certificate
representing a portion of this Warrant) shall be surrendered for
exercise at one time by the same Holder, the number of full
Shares which shall be issuable upon exercise thereof shall be
computed on the basis of the aggregate number of Shares
represented by the Warrant Certificates surrendered. If any
fractional interest in a Share shall be issuable upon exercise
thereof shall be computed on the basis of the aggregate number of
Shares represented by the Warrant Certificates surrendered. If
any fractional interest in a Share shall be deliverable upon the
exercise of this Warrant, the Company shall make an adjustment
therefor in cash equal to such fraction multiplied by the Current
Market Price of the Shares on the business day next preceding
the day of exercise.
8. [intentionally Omitted.]
9. [intentionally Omitted.]
10. Loss or Destruction.
Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant Certificate
and, in the case of any such loss, theft or destruction, upon
delivery of an indemnity agreement or bond satisfactory in form,
substance and amount to the Company or, in the case of any such
mutilation, upon surrender and cancellation of this Warrant
Certificate, the Company at its expense will execute and deliver,
in lieu thereof, a new Warrant Certificate of like tenor.
11. Survival.
The various rights and obligations of the Holder hereof as set
forth herein shall survive the exercise of this Warrant at any
time or from time to time and the surrender of this Warrant
Certificate.
12. Notices.
Whenever any notice, payment of any purchase price or other
communication is required to be given or delivered under the
terms of this Warrant, it shag be in writing and delivered by
hand delivery or registered or certified United States mail
postage prepaid, and will be deemed to have been given or
delivered on the date such notice, purchase price or other
communication is so delivered or posted, as the case may be, and,
if to the Company, it will be addressed to the address specified
in Section I hereof, and if to the Holder, it will be
addressed to the registered Holder at his address as it appears
on the books of the Company.
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BIOSHIELD TECHNOLOGIES, INC. |
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By: /s/ TIMOTHY C. MOSES |
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Title: President and CEO |
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Date: September 29, 1999 |
[CORPORATE SEAL]
ATTEST:
BY:
Assistant Secretary
HOLDER:
Name: CLR Associates
Address: 5732 Wind Drift Lane
Boca Raton, FL 33433
