1
Exhibit 10.31
THE TRANSFERABILITY OF THIS WARRANT IS
RESTRICTED AS PROVIDED IN SECTION 2
January 23, 1997
NU-TECH BIO-MED, INC.
COMMON STOCK PURCHASE WARRANT
For good and valuable consideration, the receipt of which is hereby
acknowledged by Nu-Tech Bio-Med, Inc., a Delaware corporation (the "Company"),
MICHAEL G. JESSELSON 12/18/1980 TRUST, with an address at 1301 Avenue of
Americas, New York, New York 10019 (sometimes referrred to as the "Holder") is
hereby granted the right to purchase, at any time from the date hereof until
5:00 P.M., New York City time, on January 22, 2002 ("Warrant Exercise Term"), up
to 100,000 paid and non-assessable shares of the Company's Common Stock, $.01
par value per share ("Common Stock").
This Warrant is exercisable at a per share price (the "Exercise Price") of
$11.50 per share. The number of Shares purchasable upon exercise of the Warrants
represented by this certificate and the Exercise Price per Share shall be
subject to further adjustment from time to time as set forth herein.
l. Exercise of Warrant.
l.l The purchase rights represented by this Warrant are exercisable at
the option of the holder hereof, in whole or in part (but not as to fractional
shares of the Common Stock) during any period in which this Warrant may be
exercised as set forth above. In the case of the purchase of less than all the
shares of Common Stock purchasable under this Warrant, the Company shall cancel
this Warrant upon the surrender thereof and shall execute and deliver a new
Warrant of like tenor for the balance of the shares of Common Stock purchasable
hereunder.
l.2 The issuance of certificates for shares of Common Stock upon the
exercise of this Warrant shall be made without charge to the holder hereof
including, without limitation, any tax which may be payable in respect of the
issuance thereof, and such certificates shall be issued in the name of, or in
such names as may be directed by, the holder hereof; provided, however, that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of such certificate in a name
other than that of the holder and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
l.3 In case the Company shall (i) pay a dividend in Common Shares or
make a distribution in Common Shares, (ii) subdivide its outstanding Common
Shares, (iii) combine its
2
outstanding Common Shares into a smaller number of Common Shares (by way of a
reverse split or otherwise) or (iv) issue by reclassification of its Common
Shares other securities of the Company, the number of Warrant Shares purchasable
upon exercise of the Warrants immediately prior thereto shall be adjusted so
that the Warrantholder shall be entitled to receive the kind and number of
Warrant Shares or other securities of the Company which it would have owned or
would have been entitled to receive after the happening of any of the events
described above, had the Warrants been exercised immediately prior to the
happening of such event or any record date with respect thereto. Any adjustment
made pursuant to this subsection 1.3 shall become effective immediately after
the effective date of such event retroactive to the record date, if any, for
such event.
l.4 In case of any reclassification or change of outstanding shares
of Common Stock issuable upon exercise of this Warrant (other than change in par
value, or from par value to no par value, or from no par value to par value, or
as a result or a subdivision or combination), or in case of any consolidation or
merger of the Company with or into another corporation (other than a merger in
which the Company is the continuing corporation and which does not result in any
reclassification or change of outstanding shares of Common Stock, other than a
change in number of the shares issuable upon exercise of the Warrant) or in case
of any sale or conveyance to another corporation of the property of the Company
as an entirety or substantially as an entirety, the holder of this Warrant shall
have the right thereafter to exercise this Warrant into the kind and amount of
shares of stock and other securities and property receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a holder
of the number of shares of Common Stock of the Company for which the Warrant
might have been exercised immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. The above provisions of this Section
l.4 shall similarly apply to successive reclassifications and changes of shares
of Common Stock and to successive consolidations, mergers, sales or conveyances.
l.5 The Company covenants that it will at all times reserve and keep
available out of its authorized Common Stock, solely for the purpose of issuance
upon exercise of this Warrant as herein provided, such number of shares of
Common Stock as shall then be issuable upon the exercise of this Warrant. The
Company covenants that all shares of Common Stock which shall be so issuable
shall be duly and validly issued and fully-paid and non-assessable.
2
3
1.6 At any time during the Warrant Exercise Term, the Holder may, at
its option, exchange the Warrants represented by such Holder's Warrant
certificate, in whole or in part (a "Warrant Exchange"), into the number of
fully paid and non-assessable Warrant Shares determined in accordance with this
Section 1.6, by surrendering such Warrant certificate at the principal office of
the Company or at the office of its transfer agent, accompanied by a notice
stating such Holder's intent to effect such exchange, the number of Warrant
Shares to be exchanged and the date on which the Holder requests that such
Warrant Exchange occur (the "Notice of Exchange"). The Warrant Exchange shall
take place on the date specified in the Notice of Exchange, or, if later, the
date the Notice of Exchange is received by the Company (the "Exchange Date").
Certificates for the Warrant Shares issuable upon such Warrant Exchange and, if
applicable, a new Warrant of like tenor evidencing the balance of the Warrant
Shares remaining subject to the Holder's Warrant certificate, shall be issued as
of the Exchange Date and delivered to the Holder within three (3) days following
the Exchange Date. In connection with any Warrant Exchange, the Holder's Warrant
certificate shall represent the right to subscribe for and acquire the number of
Warrant Shares (rounded to the next highest integer) equal to (A) the number of
Warrant Shares specified by the Holder in its Notice of Exchange (the "Total
Share Number") less (B) the number of Warrant Shares equal to the quotient
obtained by dividing (i) the product of the Total Share Number and the existing
Exercise Price (as hereinafter defined) per Share by (ii) the Market Price (as
hereafter defined) of a share of Common Stock.
As used herein, the phrase "Market Price" at any date shall be
deemed to be the last reported sale price, or, in case no such reported sale
takes place on such day, the average of the last reported sale prices for the
last three (3) trading days prior to such date, in either case as officially
reported by the principal securities exchange on which the Common Stock is
listed or admitted to trading or as reported in the Nasdaq Market System
(National Market or SmallCap Market), or, if the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted on the Nasdaq
Market System (National Market or SmallCap Market), the last reported sale price
as furnished by the National Association of Securities Dealers, Inc. through
Nasdaq or similar organization if Nasdaq is no longer reporting such
information, or if the Common Stock is not quoted on Nasdaq, as determined in
good faith by resolution of the Board of Directors of the Company, based on the
best information available to it for the two (2) days immediately preceding such
issuance or sale and the day of such issuance or sale.
2. Restrictions on Transfer.
The holder acknowledges that he has been advised by the Company that
this Warrant and the shares of Common Stock (the "Warrant Shares") issuable upon
exercise thereof (collectively the
3
4
"Securities") have not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), that the Warrant is being issued, and the shares
issuable upon exercise of the Warrant will be issued, on the basis of the
statutory exemption provided by section 4(2) of the Securities Act relating to
transactions by an issuer not involving any public offering, and that the
Company's reliance upon this statutory exemption is based in part upon the
representations made by the holder contained herein. The holder acknowledges
that he has been informed by the Company of, or is otherwise familiar with, the
nature of the limitations imposed by the Securities Act and the rules and
regulations thereunder on the transfer of securities. In particular, the holder
agrees that no sale, assignment or transfer of the Securities shall be valid or
effective, and the Company shall not be required to give any effect to any such
sale, assignment or transfer, unless (i) the sale, assignment or transfer of the
Securities is registered under the Securities Act, and the Company has no
obligations or intention to so register the Securities, or (ii) the Securities
are sold, assigned or transferred in accordance with all the requirements and
limitations of Rule 144 under the Securities Act or such sale, assignment, or
transfer is otherwise exempt from registration under the Securities Act. The
holder represents and warrants that he has acquired this Warrant and will
acquire the Securities for his own account for investment and not with a view to
the sale or distribution thereof or the granting of any participation therein,
and that he has no present intention of distributing or selling to others any of
such interest or granting any participation therein. The holder acknowledges
that the securities shall bear the following legend:
"These securities have not been registered under the
Securities Act of 1933. Such securities may not be sold
or offered for sale, transferred, hypothecated or
otherwise assigned in the absence of an effective
registration statement with respect thereto under such
Act or an opinion of counsel to the Company that an
exemption from registration for such sale, offer,
transfer, hypothecation or other assignment is available
under such Act."
3. Registration Rights.
3.l During the period commencing January 23, 1997 and until Janaury
22, 2001, the Company shall advise the Holder of this Warrant or of the Warrant
Shares or any then holder of Warrants or Warrant Shares (such persons being
collectively referred to herein as "holders") by written notice at least 20 days
prior to the filing of any registration statement under the Securities Act of
1933 (the "Act") covering securities of the Company, except on Form S-4 or Form
S-8, and upon the request of any such holder within ten days after the date of
such notice, include in any such
4
5
registration statement such information as may be required to permit a public
offering of the Warrant Shares. The Company shall supply prospectuses and other
documents as the Holder may request in order to facilitate the public sale or
other disposition of the Warrant Shares, qualify the Warrant Shares for sale in
such states as any such holder designates and do any and all other acts and
things which may be necessary or desirable to enable such Holders to consummate
the public sale or other disposition of the Warrant Shares, and furnish
indemnification in the manner as set forth in Subsection 3.2 of this Section 3.
Such holders shall furnish information and indemnification as set forth in
Subsection 3.2 of this Section 3. For the purpose of the foregoing, inclusion of
the Warrant Shares in a Registration Statement pursuant to this sub-paragraph
3.l under a condition that the offer and/or sale of such Warrant Shares not
commence until a date not to exceed 90 days from the effective date of such
registration statement shall be deemed to be in compliance with this
sub-paragraph 3.l. The Company shall include the Warrant Shares in a
registration statement currently before the Securities and Exchange Commission
as of this date.
3.2 The following provisions of this Section 3 shall also be
applicable to the exercise of the registration rights granted under this Section
3.l:
(A) The foregoing registration rights shall be contingent on
the holders furnishing the Company with such appropriate information (relating
to the intentions of such holders) as the Company shall reasonably request in
writing. Following the effective date of such registration, the Company shall
upon the request of any owner of Warrants and/or Warrant Shares forthwith supply
such number of prospectuses meeting the requirements of the Act as shall be
requested by such owner to permit such holder to make a public offering of all
Warrant Shares from time to time offered or sold to such holder, provided that
such holder shall from time to time furnish the Company with such appropriate
information (relating to the intentions of such holder) as the Company shall
request in writing. The Company shall also use its best efforts to qualify the
Warrant Shares for sale in such states as such holder shall reasonably
designate.
(B) The Company shall bear the entire cost and expense of any
registration of securities initiated by it under Subsection 3.l of this Section
3 notwithstanding that Warrant Shares subject to this Warrant may be included in
any such registration. Any holder whose Warrant Shares are included in any such
registration statement pursuant to this Section 3 shall, however, bear the fees
of his own counsel and any registration fees, transfer taxes or underwriting
discounts or commissions applicable to the Warrant Shares sold by him pursuant
thereto.
(C) The Company shall indemnify and hold harmless each such
holder and each underwriter, within the meaning of the
5
6
Act, who may purchase from or sell for any such holder any Warrant Shares from
and against any and all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any post-effective amendment thereto or any
registration statement under the Act or any prospectus included therein required
to be filed or furnished by reason of this Section 3 or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or alleged untrue statement or omission or alleged omission
based upon information furnished or required to be furnished in writing to the
Company by such holder or underwriter expressly for use therein, which
indemnification shall include each person, if any, who controls any such
underwriter within the meaning of such Act; provided, however, that the Company
shall not be obliged so to indemnify any such holder or underwriter or
controlling person unless such holder or underwriter shall at the same time
agree to indemnify the Company, its directors, each officer signing the related
registration statement and each person, if any, who controls the Company within
the meaning of such Act, from and against any and all losses, claims, damages
and liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or any prospectus required
to be filed or furnished by reason of this Section 3 or caused by any omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or alleged untrue
statement or omission based upon information furnished in writing to the Company
by any such holder or underwriter expressly for use therein.
4. Miscellaneous.
4.l All the covenants and agreements made by the Company in this
Warrant shall bind its successors and assigns.
4.2 No recourse shall be had for the payment of the principal of or
the interest of premium, if any, on this Warrant or for any claim based hereon
or otherwise in any manner in respect hereof, against any incorporator,
stockholder, officer or director, past, present or future, of the Company or of
any predecessor corporation, whether by virtue of any constitutional provision
or statute or rule of law, or by the enforcement of any assessment or penalty or
in any other manner, all such liability being expressly waived and released by
the acceptance hereof and as part of the consideration for the issue hereof.
4.3 No course of dealing between the Company and the holder hereof
shall operate as a waiver of any right of any holder
6
7
hereof, and no delay on the part of the holder in exercising any
right hereunder shall so operate.
4.4 This Warrant may be amended only by a written instrument
executed by the Company and the holder hereof. Any amendment shall be endorsed
upon this Warrant, and all future holders shall be bound thereby.
4.5 All communications provided for herein shall be sent, except as
may be otherwise specifically provided, by registered or certified mail: if to
the holder of this Warrant, to the address shown on the books of the Company;
and if to the Company, to 55 Access Road, Warwick, Rhode Island 02886, attention
of the Chairman, or to such other address as the Company may advise the holder
of this Warrant in writing. Notices shall be deemed given when mailed.
4.6 The provisions of this Warrant shall in all respects be
constructed according to, and the rights and liabilities of the parties hereto
shall in all respects be governed by, the laws of the State of New York. This
Warrant shall be deemed a contract made under the laws of the State of New York
and the validity of this Warrant and all rights and liabilities hereunder shall
be determined under the laws of said State.
4.7 The headings of the Sections of this Warrant are inserted for
convenience only and shall not be deemed to constitute a part of this Warrant.
IN WITNESS WHEREOF, NU-TECH BIO-MED, INC. has caused this
Warrant to be executed in its corporate name by its Chairman, and
its seal to be affixed hereto.
Dated: January 23, 1997
NU-TECH BIO-MED, INC.
By:________________________________
J. Marvin Feigenbaum, Chairman
7
8
SUBSCRIPTION FORM
TO: Nu-Tech Bio-Med, Inc.
55 Access Road
Warwick, Rhode Island 02886
The undersigned holder hereby irrevocably elects to exercise the right
to purchase shares of Common Stock covered by this Warrant according to the
conditions hereof and herewith makes full payment of the Exercise Price of such
shares. Kindly deliver to the undersigned a certificate representing the Shares.
INSTRUCTIONS FOR DELIVERY
Name: ____________________________________________________________
(please typewrite or print in block letters)
Address: __________________________________________________________
Dated: _________________________
Signature ________________________________
8