EXHIBIT 10.60
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THIS WARRANT AND THE UNDERLYING SHARES OF COMMON STOCK ISSUABLE UPON
ITS EXERCISE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS, AND NO SALE OR TRANSFER
THEREOF MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT OR AN
OPINION OF COUNSEL FOR THE HOLDER, SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
No.
COMMON STOCK PURCHASE WARRANT
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THIS WARRANT is issued in connection with that certain Convertible
Promissory Note in the principal amount of $50,000.00, dated as of the date
hereof (the "Note").
GENETIC VECTORS, INC., a Florida corporation (the "COMPANY"), hereby
certifies that, for value received, MICHAEL AND LOIS HALBERT (the "HOLDER"), or
its registered permitted assigns, is entitled, subject to the terms set forth
below, to purchase from the Company at any time or from time to time before 5:00
P.M., Eastern Time, on May 8, 2005, the number of shares of fully paid and
non-assessable shares of common stock, par value $0.001 per share (the "COMMON
STOCK"), of the Company as set forth in the Note and at a purchase price per
share as set forth in such Note (the "PURCHASE PRICE"). The number and character
of such shares of Common Stock are subject to adjustment as provided herein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "COMPANY" shall include Genetic Vectors, Inc., a
Florida corporation, and any ------- corporation which shall succeed or assume
the obligations of the Company hereunder.
(b) The term "COMMON STOCK" includes the Company's Common Stock,
par value $0.001 per share, as authorized on the date hereof and any other
securities into which or for which any of such Common Stock may be converted or
exchanged pursuant to a plan of recapitalization, reorganization, merger, sale
of assets or otherwise.
1. EXERCISE OF WARRANT.
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1.1. FULL EXERCISE. This Warrant may be exercised in full by
the Holder by surrender of this Warrant, with the form of Notice of Exercise
attached hereto as Exhibit "A" (the "EXERCISE NOTICE") duly executed by the
Holder, to the Company at its principal office, accompanied by payment, in cash
or by certified or official bank check or wire transfer payable to the order of
the Company, in the amount obtained by multiplying the number of shares of
Common Stock for which this Warrant is then exercisable by the Purchase Price.
1.2. PARTIAL EXERCISE. This Warrant may be exercised in part
by surrender of this Warrant in the manner and at the place provided in Section
1.1 except that the amount payable by the Holder on such partial exercise shall
be the amount obtained by multiplying (a) the number of shares of Common Stock
designated by the Holder in the Exercise Notice by (b) the Purchase Price. On
any such partial exercise, the Company will issue and deliver to the Holder
hereof a new Warrant or Warrants of like tenor, in the name of the Holder hereof
or such other person as such Holder (upon payment by such Holder of any
applicable transfer taxes) may request, reflecting in the aggregate on the face
or faces thereof for the number of shares of Common Stock for which such Warrant
or Warrants may still be exercised.
2. DELIVERY OF STOCK CERTIFICATES, ETC. ON EXERCISE. As soon as
practical after the exercise of this Warrant in full or in part, the Company, at
its expense (including the payment by it of any applicable issue taxes), will
cause to be issued in the name of and delivered to the Holder hereof, or such
other person as such Holder (upon payment by the Holder of any applicable
transfer taxes and, if requested by the Company, demonstration by the Holder of
compliance with applicable securities laws) may direct, a certificate or
certificates for the number of fully paid and non-assessable shares of Common
Stock to which such Holder shall be entitled on such exercise, plus, in lieu of
any fractional share to which such Holder would otherwise be entitled, cash
equal to such fraction multiplied by the then-current market value of one full
share, together with any other stock or other securities and property (including
cash, where applicable) to which such Holder is entitled upon such exercise
pursuant to Section 1 or otherwise.
3. ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
3.1. REORGANIZATION. If the Company shall (a) effect a
reorganization, (b) consolidate with or merge into any other person or party, or
(c) transfer all or substantially all of its properties or assets to any other
person under any plan or arrangement contemplating the dissolution of the
Company, then, in each such case, the Holder of this Warrant, on the exercise
hereof as provided in Section 1 at any time after the consummation of such
reorganization, consolidation or merger or the effective date of such
dissolution as the case may be, shall receive, in lieu of the Common Stock
issuable on such exercise prior to such consummation or such effective date, the
stock and other securities and property (including cash) to which such Holder
would have been entitled upon such consummation or in connection with such
dissolution, as the case may be, if such Holder had so exercised this Warrant
immediately prior thereto, all subject to further adjustment thereafter as
provided herein.
3.2. CONTINUATION OF TERMS. Upon any reorganization,
consolidation, merger or transfer (and any dissolution following any transfer)
referred to in this Section 3, this Warrant shall continue in full force and
effect and the terms hereof shall be applicable to the shares of stock and other
securities and property receivable on the exercise of this Warrant after the
consummation of such reorganization, consolidation or merger or the effective
date of dissolution following any such transfer, as the case may be, and shall
be binding upon the issuer of any such stock or other securities, including, in
the case of any such transfer, the person acquiring all or substantially all of
the properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant as provided herein.
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4. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
Articles of Incorporation or through any 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 of the Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder against
dilution or other impairment.
5. NOTICES OF RECORD DATE, ETC. In the event of:
(a) any taking by the Company of a record of the holders of
any class or securities for the purpose of determining the holders thereof who
are entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, or
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or any
transfer of all or substantially all the assets of the Company to or
consolidation or merger of the Company with or into any other person, or
(c) any voluntary or involuntary dissolution, liquidation
or winding-up of the Company, or
(d) any proposed (i) issue or grant by the Company of any
shares of stock of any class or any other securities, or (ii) any right or
option to subscribe for, purchase or otherwise acquire any shares of stock of
any class or (iii) any other securities (other than the issue of Common Stock on
exercise of this Warrant), which would require the affirmative vote of the
shareholders of the Company according to its Articles of Incorporation or
applicable state law, then and in each such event the Company will mail or cause
to be mailed to the Holder a notice specifying (i) the date on which any such
record is to be taken for the purpose of such dividend distribution or right,
and stating the amount and character of such dividend, distribution or right;
(ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable on such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up; and (iii) the amount and
character of any stock or other securities, or rights or options with respect
thereto, proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue or grant
is to be offered or made. Such notice shall be mailed at least twenty (20) days
prior to the date specified in such notice on which any such action is to be
taken.
6. RESERVATION OF STOCK ISSUABLE ON EXERCISE OF WARRANT. The Company
will at all times reserve and keep available, solely for issuance and delivery
on the exercise of this Warrant, all shares of Common Stock from time to time
issuable on the exercise of this Warrant.
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7. EXCHANGE OF WARRANT. On surrender of this Warrant, properly
endorsed, to the Company, the Company at its expense will issue and deliver to
or on the order of the Holder thereof a new Warrant or Warrants of like tenor,
in the name of such Holder or such other person as such Holder (upon payment by
such Holder of any applicable transfer taxes and, if requested by the Company,
demonstration by such Holder of compliance with applicable securities laws) may
direct, calling in the aggregate on the face or faces thereof for the number of
shares of Common Stock called for on the face or faces of the Warrant or
Warrants so surrendered.
8. REPLACEMENT OF WARRANT. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of the
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such warrant, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
9. NEGOTIABILITY. This Warrant is issued upon the following
terms, to all of which each Holder or owner hereof by the taking hereof consents
and agrees:
(a) subject to compliance with all applicable securities laws,
title to this Warrant may be transferred by endorsement (by the Holder hereof
executing the Form of Assignment attached hereto as EXHIBIT "B") and delivery in
the same manner as in the case of a negotiable instrument transferable by
endorsement and delivery;
(b) any person in possession of this Warrant properly endorsed
is authorized to represent himself as absolute owner hereof and is empowered to
transfer absolute title hereto by endorsement and delivery hereof to a BONA FIDE
purchaser hereof for value; each prior taker or owner waives and renounces all
of his equities or rights in this Warrant in favor of each such BONA FIDE
purchaser, and each such BONA FIDE purchaser shall acquire absolute title hereto
and to all rights represented hereby; and
(c) until this Warrant is transferred on the books of the
Company, the Company may treat the registered Holder hereof as the absolute
owner hereof for all purposes, notwithstanding any notice to the contrary.
10. NOTICES. All notices or other communications required or permitted
to be given pursuant to this Warrant shall be in writing and shall be considered
as duly given on (a) the date of delivery, if delivered in person, by nationally
recognized overnight delivery service or (b) ten (10) days after mailing if
mailed from within the continental United States by registered or certified
mail, return receipt requested to the party entitled to receive the same, if to
the Company, to Genetic Vectors, Inc., 5201 N.W. 77th Avenue, Suite 100, Miami,
Florida 33166 Attention: Mead M. McCabe, Jr., with a copy to Clayton E. Parker,
Esq., Kirkpatrick & Lockhart LLP, 201 S. Biscayne Boulevard, 20th Floor, Miami,
Florida 33131, and if to the Holder, at the address of such Holder shown on the
books of the Company. Any party may change his or its address by giving notice
to the other party stating his or its new address. Commencing on the 10th day
after the giving of such notice, such newly designed address shall be such
party's address for the purpose of all notices or other communications required
or permitted to be given pursuant to this Warrant.
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11. GOVERNING LAW. This Warrant and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws of the State of
Florida, without regard to its conflicts of law principles. All parties hereto
(i) agree that any legal suit, action or proceeding arising out of or relating
to this Warrant shall be instituted only in a federal or state court in
Miami-Dade County, Florida; (ii) waive any objection which they may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding; and (iii) irrevocably submit to the jurisdiction of such federal or
state court in Miami-Dade County, Florida in any such suit, action or
proceeding, but such consent shall not constitute a general appearance or be
available to any other person who is not a party to this Warrant. All parties
hereto agree that the mailing of any processing of any suit, action or
proceeding in accordance with the notice provisions of this Warrant shall
constitute personal service thereof.
12. ENTIRE AGREEMENT; WAIVER OF BREACH. This Warrant constitutes the
entire agreement among the parties and supersedes any prior agreement or
understanding among them with respect to the subject matter hereof, and it may
not be modified or amended in any manner other than as provided herein, and no
waiver of any breach or condition of this Warrant shall be deemed to have
occurred unless such waiver is in writing, signed by the party against whom
enforcement is sought, and no waiver shall be claimed to be a waiver of any
subsequent breach or condition of a like or different nature.
13. SEVERABILITY. If any provision of this Warrant shall be held
invalid or unenforceable, such invalidity or unenforceability shall attach only
to such provision and shall not in any manner affect or render invalid or
unenforceable any other severable provision of this Warrant, and this Warrant
shall be carried out as if any such invalid or unenforceable provision were not
contained herein.
14. AMENDMENT. 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. 15. Restrictions on Transferability; Restrictive Legend. The Holder
acknowledges that the shares of Common Stock issuable upon exercise of this
Warrant are subject to restrictions under applicable Federal and state
securities laws. Each certificate representing shares of Common Stock issued
shall, upon the exercise of this Warrant, bear the following legends in addition
to such other restrictive legends as may be required by law:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "ACT"), or any state
securities laws, and no sale or transfer thereof may be effected without an
effective registration statement or an opinion of counsel for the Holder,
satisfactory to the Company and its counsel, that such registration is not
required under the Act and any applicable state securities laws."
Dated: June 9, 2000
GENETIC VECTORS, INC.
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By:
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Title: Mead McCabe, Jr., Chief Executive Officer
AGREED TO AND ACCEPTED:
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By:
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Name:
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Title:
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Date:
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A-1
EXHIBIT "A"
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FORM OF EXERCISE
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(TO BE SIGNED ONLY ON EXERCISE OF WARRANT)
TO:
The undersigned, the Holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder _____ shares of
Common Stock of ____________________, herewith makes payment of $__________
therefor, and requests that the certificates for such shares be issued in the
name of, and delivered to, whose address is:
____________________________________________________________
____________________________________________________________
____________________________________________________________
Dated: ___________________.
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Signature
(Signature must conform to name of
holder as specified on the face of
the Warrant)
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Print Name
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Street Address
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City, State and Zip Code
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Person's Social Security Number or
Tax Identification Number
A-1
EXHIBIT "B"
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FORM OF ASSIGNMENT
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(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto ___________________ the right represented by the within Warrant
to purchase shares of Common Stock of ___________________ to which the within
Warrant relates, and appoints ___________________ as its attorney to transfer
such right on the books of _________________ with full power of substitution in
the premises.
Dated: _________________.
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Signature
(Signature must conform to name of
holder as specified on the face of
the Warrant)
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Print Name
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Street Address
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City, State and Zip Code
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Person's Social Security Number or
Tax Identification Number
Signed in the presence of:
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