FORM OF WARRANT - 2003
EXHIBIT 4.5
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE. THESE
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
COVERING SUCH SECURITIES UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS,
UNLESS THE HOLDER SHALL HAVE OBTAINED AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
NOT NEGOTIABLE AND RESTRICTED TRANSFERABILITY
WARRANT TO PURCHASE COMMON STOCK
OF
HEMISPHERx BIOPHARMA, INC.
Date: _________________, 2003 No. 03-XX-XX
Hemispherx Biopharma, Inc., a Delaware corporation (the "Company"),
hereby certifies that, for value received, ___________________ (the "Warrant
Holder"), is entitled to subscribe for and purchase up to ______________ shares
of the Company's Common Stock at a price equal to the "Exercise Price", subject
to the provisions and upon the terms and conditions hereinafter set forth. This
warrant and related terms were approved by the Board of Directors.
This Warrant is subject to all of the terms and conditions specified
below.
1. Common Stock. The Common Stock of Hemispherx Biopharma, Inc.
which at the date hereof consists of 100 million shares
authorized, each share having a par value of $.001 per share, as
designated in the Company's Certificate of Incorporation as
amended from time to time.
2. Stock Purchasable. The number of shares of Common Stock
purchasable upon the total exercise of this Warrant is
________________________ (______________).
3. Exercise Price. The price at which this Warrant is exercisable,
unless such price is adjusted as described in Section 7, is
$_______ per share, in lawful funds of the United States of
America ("Exercise Price").
4. Expiration of Warrant. This Warrant shall expire and be no longer
exercisable after 5:00 p.m. Eastern Time on __________________
(Expiration Date").
5. Exercise of Warrants. Except for an event of the immediate right
to exercise as set forth below, these warrants may be exercised
as of September 10, 2003 and thereafter during the remaining term
of this agreement. All warrants shall be exercisable immediately
upon the merger of the Company into another entity, the
acquisition of the Company by another entity or disposition of
all or a substantial portion of the Company's assets to another
entity not controlled by the Company. The purchase rights
represented by this Warrant may be exercised, as allowed by the
terms and conditions of this agreement, in whole or in part (but
not less than 1,000 share increments), by the Warrantholder or
its duly authorized attorney or representative at any time and
from time to time while this Warrant is exercisable, upon
presentation of this Warrant at the principal office of the
Company, with the purchase form attached hereto duly completed
and signed, and upon payment to the Company in cash or by
certified check or bank draft of an amount equal to the number of
shares being so purchased multiplied by the Exercise Price.
Should Warrantholder elect to so surrender this Warrant, This
Warrant shall be terminated thereafter, and Warrantholder shall
have no other rights hereunder.
If,during the five-year period after
the date of this Agreement, the
Company proposes to register any of its common stock (or other
security into which the common stock has been recapitalized,
converted or transformed) with the Securities and Exchange
Commission (other than registrations involving only acquisition
transactions or benefit plans), the Company will use its best
efforts to register, at its own expense (except for selling
commissions) under the Securities Act of 1933, as amended, and
laws of the various states as may be required, the Stock so as to
permit the sales of securities issuable upon the exercise of this
Warrant to be lawful under such laws. The Company shall indemnify
the Warrantholder and any transferee with respect to such
registration statement.
6. Procedures. The Company agrees that the Warrantholder shall be
deemed the record owner of the Stock as of the close of business
on the date on which the Warrant shall have been presented and
payment shall have been made for the Stock as aforesaid.
Certificates for the shares of Stock so purchased shall be
delivered to the Warrantholder within a reasonable time, not
exceeding 15 days, after the exercise in full of the rights
represented by this Warrant.
If the Warrant is exercised in part only, the Company, upon
surrender of this Warrant for cancellation, shall deliver a new
Warrant evidencing the rights of the Warrantholder to purchase
the balance of the shares of Stock which the Warrantholder is
entitled to purchase hereunder.
7. Adjustment of Exercise Price and Number of Warrant Shares. The
number and kind of securities 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 and in the manner described below.
(a) Reorganization, Consolidation, Merger, etc. In case of any
capital reclassification or reorganization or of any
consolidation or merger of the Company with or into any other
person, or any other corporate reorganization (other than a
merger or consolidation in which the Company shall be the
continuing or surviving entity and which does not result in any
change in the Common Stock) or any sale of all or substantially
all of the assets of the Company (any such transaction being
hereinafter referred to as a "Reorganization"), then, in each
case, the Holder, on exercise hereof at any time after the
consummation or effective date of such Reorganization (the
"Effective Date"), shall receive, in lieu of the Warrant Shares
issuable on such exercise prior to the Effective Date, the stock
and other securities and property (including cash) to which such
Holder would have been entitled upon the Effective Date as if
this Warrant were fully vested and Holder had exercised this
Warrant immediately prior thereto.
(b) Split, Subdivision or Combination of Common Stock. If the Company
at any time while this Warrant remains outstanding shall split,
subdivide or combine the Common Stock or shall issue a dividend
on the Common Stock payable in shares of Common Stock, the
Exercise Price shall be proportionately decreased in the case of
a split, subdivision or stock dividend, and increased in the case
of a combination.
(c) Other Dividends and Distributions. If the Company shall make or
issue, or shall fix a record date for the determination of
eligible holders entitled to receive, a dividend or other
distribution with respect to the Common Stock payable in (i)
securities or evidences of indebtedness of the Company or of
other persons (other than shares of Common Stock in which case
the provisions of paragraph (b) above shall apply) or (ii) assets
or cash (excluding cash dividends paid or payable solely out of
retained earnings), then in each case, the Holder on exercise
hereof at any time after the consummation, effective date or
record date of such event, shall receive, in addition to the
Warrant Shares (or such other stock or securities) issuable on
such exercise prior to such dates the securities or such other
assets of the Company to which Holder would have been entitled
upon such date as if this Warrant were fully vested and Holder
has exercised this Warrant immediately prior thereto.
(d) Adjustment of Number of Shares. Upon each adjustment in the
Exercise Price, the number of Warrant Shares purchasable
hereunder shall be adjusted, to the nearest whole share, to the
product obtained by multiplying the number of Warrant Shares
purchasable immediately prior to such adjustment in the Exercise
Price by a fraction (i) the numerator of which shall be the
Exercise Price immediately prior to such adjustment, and (ii) the
denominator of which shall be the Exercise Price immediately
after such adjustment.
(e) Statements of Adjustments. Whenever the Exercise Price shall be
adjusted as provided in this Section 7, the Company shall prepare
a statement showing the facts requiring such adjustment and the
Exercise Price that shall be in effect after such adjustment. The
Company shall cause a copy of such statement to be by first class
mail, postage prepaid, to the Holder at his/her address appearing
on the Company's records. Where appropriate, such copy may be
given in advance and may be included as part of the notice
required to be mailed under the provisions of subsection (g) of
this Section 7.
(f) Effectiveness of Adjustment. Adjustment made pursuant to
subsection (b) (c) and (d) of this Section 7 shall be made on the
date such split, subdivision, dividend, combination or
distribution, as the case may be is made, and shall become
effective at the opening of business on the business day next
following the record date for the determination of stockholders
entitled to such split, subdivision, dividend, combination or
distribution.
(g) Notices. In the event the Company shall propose to take any
action of the types described in subsection (a) (b) or (c) of
this Section 7, the Company shall give notice to the Holder, in
the manner set forth in subsection (e) of this Section 7, which
notice shall specify the record date, if any, with respect to any
such action and the date on which such action is to take place.
Such notice shall also set forth such facts with respect thereto
as shall be reasonably necessary to indicate the number, kind or
class of shares or other securities or property which shall be
deliverable to the Holder upon exercise hereof following the
occurrence of such action. In the case of any action which would
require the fixing of a record date, such notice shall, to the
extent practicable be given at least 10 days prior to the date so
fixed, and in case of all other action, such notice shall be
given at least 10 days prior to the taking of such proposed
action. Failure to give such notice, or any defect therein, shall
not affect the legality or validity of any such action.
(h) Other Adjustments. In case at any time conditions arise by reason
of action taken by the Company (expressly excluding the grant of
stock options to employees and the grant of warrants at an
exercise price not less than fair market value on the date of
grant), which in the opinion of its Board of Directors are not
adequately covered by the other provisions of this Section 7 and
which would materially and adversely affect the rights of the
Holder, then the Board of Directors may appoint a firm of
independent certified public accountants of recognized national
standing (who may be the accountants then auditing the books of
the Company) to advise on the adjustment if any, on a basis
consistent with the standards established in the other provisions
of this Section 7, necessary with respect to the Exercise Price
and number of Warrant Shares, as so to preserve, without
dilution, the rights of the Holder hereunder. Upon receipt of
such report, the Board shall have the power to make the
adjustments, if any, it deems appropriate.
8. Covenants. The Company covenants and agrees that:
(a) Reservation of Stock. During the period within which the rights
represented by the Warrant may be exercised, the Company shall,
at all times, reserve and keep available, free from preemptive
rights out of the aggregate of its authorized but unissued Stock,
for the purpose of enabling it to satisfy any obligation to issue
shares of Stock upon the exercise of this Warrant, the number of
shares of Stock deliverable upon the exercise of this Warrant. If
at any time the number of shares of authorized Stock shall not be
sufficient to effect the exercise of this Warrant, the Company
shall take such corporate action as may be necessary to increase
its authorized but unissued Stock to such number of shares as
shall be sufficient for such purpose. The Company shall have
analogous obligations with respect to any other securities or
properties issuable upon exercise of this Warrant.
(b) No Liens, etc. All Stock that may be issued upon exercise of the
rights represented by this Warrant shall, upon issuance, be
validly issued, fully paid, nonassessable and free from all
taxes, liens and charges with respect to the issue thereof;
(c) Taxes. All original issue taxes payable with respect to the
issuance of shares upon the exercise of the rights represented by
this Warrant shall be borne by the Company, but in no event shall
the Company be responsible or liable for income taxes or transfer
taxes upon the transfer of any Warrant;
(d) No Diminution of Value. The Company shall not take any action to
terminate this Warrant or to diminish it in value; and
(e) Notice of Events. The Company shall give prior written notice to
the Warrantholder of (i) any tender offer that is being made for
any of the Company's stock; (ii) any offers to holders of Stock
for subscription or purchase by them of any shares of stock of
any class; (iii) any capital reorganization of the Company,
reclassification of the capital stock of the Company,
consolidation or merger of the Company with or into another
corporation, the sale, lease or transfer of all or substantially
all of the property or assets of the Company to another
corporation or the voluntary or involuntary dissolution,
liquidation or winding up of the Company and (iv) any event of
the type described in Section 7 hereof (all such events in
clauses (i)-(iv) above are referred to as "Events"). Upon
becoming aware of any pending or proposed Event, the Company
shall deliver notice at least five business days before the day
of the occurrence of any Event and shall describe the Event, the
date it is to take place and when the holders of the Company's
stock will be entitled to exchange their shares for securities or
other properties deliverable upon such Event.
9. Voting Rights. Until exercised, this Warrant shall not entitle
the Warrantholder to any voting rights or other rights as a
stockholder of the Company.
10. Transfer Restrictions. A Warrantholder may transfer its
beneficial interest or any portion thereof in the Warrant only to
the Warrantholder's spouse, lineal descendants or ancestors (and
their spouses) or the trustee of a trust for the principal
benefit of such persons. Any transfer of ownership or control of
a corporation or other entity which is a Warrantholder shall be
deemed a transfer of this Warrant which must comply with the
terms of this Section 10. In addition, neither this Warrant nor
the Stock issuable upon the exercise hereof may be sold,
transferred, pledged or hypothecated unless the Company shall
have been supplied with evidence reasonably satisfactory to it
that such transfer is not violation of the Securities Act of
1933, as amended (the "Act"), and any applicable state laws. The
Company may place a legend to that effect on this Warrant or any
replacement Warrant and on each certificate representing shares
issuable upon exercise of this Warrant. Subject to the
satisfaction of the aforesaid condition, this Warrant shall be
transferable by the Warrantholder.
If this Warrant is transferred,in whole or in part,upon surrender
of this Warrant to the Company, the Company shall deliver to each
transferee a Warrant evidencing the rights of such transferee to
purchase the number of shares of Stock that such transferee is
entitled to purchase pursuant to such transfer.
11. Stockholder Communications. Until the exercise or expiration of
this Warrant, the Company shall provide each Warrantholder with
each and every report or other communication mailed to the
stockholders of the Company.
12. Lost, Stolen Warrants. If this Warrant is lost, stolen mutilated
or destroyed, the Company shall, on such terms as the Company may
reasonably impose, including a requirement that the Warrantholder
obtain a bond, issue a new Warrant of like denomination, tenor
and date. Any such new Warrant shall constitute an original
contractual obligation of the Company, whether or not the
allegedly lost, stolen, mutilated or destroyed Warrant shall be
at any time enforceable by anyone.
13. Provisions of New Warrants. Any Warrant issued pursuant to the
provisions of Section 14, or upon transfer, exchange, division or
partial exercise of this Warrant or combination thereof with
another Warrant or Warrants, shall set forth each provision set
forth in Sections 1 through 26, inclusive, of this Warrant as
each such provision is set forth herein, and shall be duly
executed on behalf of the Company by an executive officer.
14. Cancellation of Warrant. Upon surrender of this Warrant for
transfer or exchange or upon the exercise hereof, this Warrant
shall be canceled by the Company, shall not be reissued by the
Company, and, except as provided in Section 6 in case of a
transfer, no Warrant shall be issued in lieu hereof. Any new
Warrant certificate shall be issued promptly but no later than 14
days after receipt of the old Warrant certificate, provided,
however, that the obligation of the Company to transfer the
Warrant or issue the shares of Stock upon the exercise of this
Warrant shall be subject to compliance with Section 10.
15. Complete Agreement: Modifications. This Warrant and any documents
referred to herein or executed contemporaneously herewith
constitute the parties' entire agreement with respect to the
subject matter hereof and supersede all agreements,
representations, warranties, statements, promises and
understandings, whether oral or written, with respect to the
subject matter hereof. This Warrant may not be amended, altered
or modified except by a writing signed by the parties.
16. Cooperation. Each party hereto agrees to execute any and all
further documents and writings and perform such other reasonable
actions which may be or become necessary or expedient to
effectuate and carry out this Warrant.
17. Notices. All notices under this Warrant shall be in writing and
shall be delivered by personal service or telegram, telecopy or
certified mail, postage prepaid, to such address as may be
designated from time to time by the relevant party, and which
will initially be as set forth below. Any notice sent by
certified mail will be deemed to have been given three (3) days
after the date on which it is mailed. All other notices will be
deemed given when received. No objection may be made to the
manner of delivery of any notice actually received in writing by
an authorized agent of a party. Notices will be addressed as set
forth on the last page hereof or to such other addresses as the
party to whom the same is directed will have specified.
18. Successor and Assigns. Except as provided herein to the contrary,
this Warrant shall be binding upon and inure to the benefit of
the parties, their respective successors and permitted assigns.
19. Governing Law: Jurisdiction. This Warrant shall be governed by
and construed in accordance with the internal laws of the State
of Delaware and without giving effect to choice of law
provisions. No amendment or waiver of any provision of this
Warrant, nor a consent to any departure by the Company therefrom,
shall in any event be effective unless the same shall be in
writing and signed by the Company and the Holder, and then such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. The
captions of this Warrant have been inserted for convenience only
and shall have no substantive effect.
20. Construction. No term or provision of the Warrant shall be
construed so as to require the commission of any act contrary to
law, and wherever there is any conflict between any provision of
this Warrant and any present or future statute, law, ordinance,
or regulation contrary to which the parties have no legal right
to contract, the latter shall prevail, but in such event the
provision of this Warrant so affected shall be curtailed and
limited only to the extent necessary to bring it within the
requirements of the law.
21. Waivers Strictly Construed. With regard to any power, remedy or
right provided herein or otherwise available to any party
hereunder (i) no waiver or extension of time shall be effective
unless expressly contained in writing signed by the waiving
party; and (ii) no alteration, modification or impairment shall
be implied by reason of any previous waiver, extension of time,
delay or omission in exercise, or other indulgence.
22. Severability. If one or more of the provisions of this Warrant
shall be held to be invalid, illegal or unenforceable in any
respect, the validity, legality or enforceability of the
remainder of this Warrant shall not be affected.
23. Headings. The headings in this Warrant are inserted only as a
matter of convenience, and in no way define, limit, or extend or
interpret the scope of this Warrant or of any particular
provision.
24. Counterparts. This Warrant may be executed in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one or the same instrument.
25. Attorney's Fees. Should any litigation be commenced (including
any proceedings in a bankruptcy court) between the parties hereto
or their representatives concerning any provision of this Warrant
or the rights and duties of any person or entity hereunder, the
party or parties prevailing in such proceedings shall be
entitled, in addition to such other relief as may be granted, to
the attorney's fees and court costs incurred by reason of such
litigation.
26. No Brokers etc. Fees. Each party hereto represents that it is not
and will not be obligated for any finder's or broker's fees or
commissions in connection with this Warrant or any agreement
referred to herein or contemplated hereby. The Company agrees to
indemnify and hold harmless the Warrantholder from any liability
for any commission or compensation in the nature of a finder's or
broker's fee (and the costs and expenses of defending against
such liability or asserted liability) for which the Company or
any of its officers, employees or representatives is alleged to
be responsible.
27. Other. These Warrants were granted to the Warrantholder for
services performed on behalf of the Company.
WITNESS the signature of a duly authorized officer.
Dated: ____________________, 2003
Hemispherx Biopharma, Inc.
By:___________________________________________________________
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Title
ADDRESS OF COMPANY:
Hemispherx Biopharma, Inc.
One Penn Center
1617 JFK Boulevard
Philadelphia, PA 19103
Telephone (215) 988-0080
Fax (215) 988-1739
ADDRESS OF WARRANTHOLDER:
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HEMISPHERx BIOPHARMA, INC.
PURCHASE FORM
To Be Executed Upon Exercise of Warrant
No. 03-XX-XX
The undersigned Warrantholder hereby exercises the right to purchase shares of
Stock, evidenced by the within Warrant, according to the terms and conditions
thereof, and herewith makes payment of the purchase price in full for _________
shares at the exercise price of $______ per share for a total of $_____________.
The undersigned requests that the certificate(s) for such shares shall be issued
in the name and delivered to the address set forth below:
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If said number of shares shall not be all the shares purchasable under the
within Warrant, the Warrantholder hereby requests that a new Warrant for the
unexercised portion ( _______ shares) shall be registered in the name delivered
to the address set forth below.
Dated: ________________
NAME OF WARRANTHOLDER
By: ___________________________
Address: _________________________
___________________________________
Employee Identification Number, Social
Security Number or other identifying
number: _________________________