EXHIBIT 10.1
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT is dated as of May 30, 2002 by and between
Advanced Viral Research Corp., a Delaware corporation, with offices located at
200 Corporate Boulevard South, Suite 4, Yonkers, New York 10701 (the "Company")
and Harbor View Group, Inc., a New York corporation, with offices located at One
Old Country Road, Carle Place, New York 11514 (the "Consultant").
RECITALS
A. Consultant and the Company are party to a Consulting Agreement dated
February 7, 2000 (the "Consulting Agreement") pursuant to which Consultant
provided advice to the Company relating to corporate structuring, financial
transactions, financial public relations, corporate governance and shareholder
relations.
B. Consultant continued to provide such consulting services to the
Company after the termination date set forth in the Consulting Agreement, and
the Company desires to compensate Consultant for such additional consulting
services.
NOW, THEREFORE, in consideration of the promises and commitments set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
legally to be bound, hereby agree as follows:
1. TERMINATION OF AGREEMENT.
The parties hereto agree and acknowledge that the Consulting Agreement
is terminated effective as of December 31, 2001 (the "Termination Date").
2. COMPENSATION.
As full compensation for the services provided by Consultant after the
Termination Date, the Company hereby grants Consultant warrants to purchase
1,000,000 shares of the Company's Common Stock, par value $.00001 per share, at
an exercise price of $0.18 per share. The warrants shall be exercisable in whole
or in part at any time and from time to time prior to 5:00 p.m. Eastern Standard
Time on May 30, 2008, and shall otherwise contain substantially the same terms
and conditions as are set forth in the exhibit attached hereto as EXHIBIT A.
The warrants granted hereunder shall otherwise be non-transferable
provided, however, that Consultant shall have the right to transfer all or any
part of the warrants to any principal of or persons experienced in the financial
community who enjoy favorable reputations in the financial and business
community and who are otherwise acceptable to the Company who have assisted
Consultant in connection with Consultant's services to the Company
(collectively, the "Experienced Persons") , to the spouse or child of any
principal of Consultant or Experienced Persons or to any trust for the benefit
of any of the aforesaid persons if the provisions of such trust are permissive
thereof. Any such transfer shall be subject to the provisions of this Agreement
and have the terms of the warrants.
Consultant represents that it is an Accredited Investor as that term is
defined in Rule 501 of Regulation D under the Securities Act of 1933.
1
3. PROPERTY RIGHTS OF PARTIES.
(a) Consultant shall not disclose any trade secrets of the Company,
directly or indirectly, nor use them in any way at any time. All files, records,
documents, drawings, specifications, equipment and similar items relating to the
business of the Company, whether or not prepared by Consultant, shall remain the
exclusive property of the Company.
(b) Consultant shall immediately deliver to the Company all property in
Consultant's possession or under Consultant's control belonging to the Company,
including, but not limited to, all accounting records, computer terminals and
tapes, disks, or other data storage mechanisms, accounting machines, and all
office furniture and fixtures, supplies and other personal property in the
possession or under the control of Consultant, in good condition, ordinary wear
and tear excepted, and including, without limitation, all correspondence files,
research data, and patent information or data, of every sort.
(c) Consultant does not claim any rights or interests in and to trade
secrets, formulas, devices, inventions, processes, patents, applications,
continuations, copyrights, trademarks, compilations of information, records,
specifications, rights, interests and data of any other sort, affecting or
pertaining directly or indirectly to the business of the Company as now
conducted, or to the patents, trade secrets, and other rights now owned by the
Company.
(d) Consultant, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged as adequate and received from or on
behalf of the Company, hereby irrevocably releases and forever discharges, and
Consultant shall cause its subsidiaries, officers, directors, principals,
employees, affiliates and agents (collectively, "Consultant's Affiliates") to
release and forever discharge, the Company, its subsidiaries, officers,
directors, employees and agents, of and from all causes of action, suits,
claims, debts, accounts, reckonings, claims for attorneys fees, interests,
contracts, promises, damages and demands of any nature whatsoever, in law or in
equity, which Consultant and Consultant's Affiliates ever had, now has, or which
any successor or assign or transferee of Consultant or Consultant's Affiliates
hereafter can, shall or may have, against the Company or its subsidiaries,
officers, directors, affiliates, employees or agents, for, upon or by reason of
any matter, cause or thing whatsoever.
4. LIABILITIES.
The parties acknowledge and agree that monetary damages may be
inadequate to protect the Company against breach or threatened breach of this
Agreement by Consultant and that the Company shall be entitled to specific
performance and injunctions or other equitable relief in the event of any such
breach or threatened breach, in addition to all other remedies at law or in
equity.
5. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement
of the parties hereto with respect to the subject matter hereof and no amendment
or modification hereof shall be valid or binding unless made in writing and
signed by the party against whom enforcement thereof is sought.
(b) NOTICES. Any notice required, permitted or desired to be given
pursuant to any of the provisions of this Agreement shall be deemed to have been
sufficiently given or served for all purposes if delivered in person or sent by
telephone facsimile or sent by certified mail, return receipt requested, or sent
by responsible overnight delivery service, postage and fees prepaid, to the
parties hereto at their respective addresses set forth in the preamble to this
2
Agreement. Either of the parties hereto may at any time and from time to time
change the address to which notice shall be sent hereunder by notice to the
other party given under this subsection. The date of the giving of any notice
sent by mail shall be three business days following the date of the posting of
the mail, the date delivered in person, the next business day following delivery
to an overnight delivery service or the date sent by telephone facsimile, as
applicable. All notices to the Company, to be valid, shall simultaneously be
delivered to Berman Rennert Vogel & Mandler, P.A., 100 SE 2nd Street, Suite
3500, Miami, Florida 33131.
(c) NO ASSIGNMENT. This Agreement may not be assigned by Consultant.
This Agreement shall be binding upon Consultant and the Company and their
respective successors and assigns.
(d) NO WAIVER. No course of dealing nor any delay on the part of the
Company in exercising any rights hereunder shall operate as a waiver of any such
rights. No waiver of any default or breach of this Agreement shall be deemed a
continuing waiver or a waiver of any other breach or default.
(e) GOVERNING LAW. This Agreement shall be governed, interpreted and
construed in accordance with the substantive laws of the State of Delaware
applicable to agreements entered into and to be performed entirely therein. Any
suit, action or proceeding with respect to this Agreement shall be brought
exclusively in the courts of the State of Delaware.
(f) SEVERABILITY. If any clause, paragraph, section or part of this
Agreement shall be held or declared to be void, invalid or illegal, for any
reason, by any court of competent jurisdiction, such provision shall be
ineffective but shall not in any way invalidate or affect any other clause,
paragraph, section or part of this Agreement. The parties intend that all
clauses, paragraphs, sections or parts of this Agreement shall be enforceable to
the fullest extent permitted by law.
(g) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which counterparts, when taken together, shall constitute
but one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
ADVANCED VIRAL RESEARCH CORP. HARBOR VIEW GROUP, INC.
By: /s/ SHALOM HIRSCHMAN, M.D. By: /s/ LAWRENCE J. POMERANTZ
-------------------------- -------------------------
Name: Shalom Hirschman, M.D. Name: Lawrence J. Pomerantz
Title: President Title: Chairman
3
EXHIBIT A
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE
OF THIS WARRANT (COLLECTIVELY, THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT, OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT.
WARRANT TO PURCHASE
COMMON STOCK, PAR VALUE $.00001 PER SHARE
OF
ADVANCED VIRAL RESEARCH CORP.
THIS CERTIFIES THAT, for value received, HARBOR VIEW GROUP, INC., or
registered assigns ("Warrantholder"), is entitled to purchase from ADVANCED
VIRAL RESEARCH CORP. (the "Company"), subject to the provisions of this Warrant,
at any time and from time to time until 5:00 p.m. Eastern Standard Time on May
30, 2008, 1,000,000 shares of the Company's Common Stock, par value $.00001 per
share ("Warrant Shares"). The purchase price payable upon the exercise of this
Warrant shall be $0.18 per Warrant Share. The Warrant Price and the number of
Warrant Shares which the Warrantholder is entitled to purchase is subject to
adjustment upon the occurrence of the contingencies set forth in Section 3 of
this Warrant, and as adjusted from time to time, such purchase price is
hereinafter referred to as the "Warrant Price."
This Warrant is subject to the following terms and conditions:
1. EXERCISE OF WARRANT.
(a) This Warrant may be exercised in whole or in part but not for a
fractional share. Upon delivery of this Warrant at the offices of the Company or
at such other address as the Company may designate by notice in writing to the
registered holder hereof with the Subscription Form annexed hereto duly
executed, accompanied by payment of the Warrant Price for the number of Warrant
Shares purchased (in cash, by certified, cashier's or other check acceptable to
the Company, or any combination of the foregoing), the registered holder of this
Warrant shall be entitled to receive a certificate or certificates for the
Warrant Shares so purchased. Such certificate or certificates shall be promptly
delivered to the Warrantholder. Upon any partial exercise of this Warrant, the
Company shall execute and deliver a new Warrant of like tenor for the balance of
the Warrant Shares purchasable hereunder.
(b) The Warrant Shares deliverable hereunder shall, upon issuance, be
fully paid and non-assessable and the Company agrees that at all times during
the term of this Warrant it shall cause to be reserved for issuance such number
of shares of its Common Stock as shall be required for issuance and delivery
upon exercise of this Warrant.
2. TRANSFER OR ASSIGNMENT OF WARRANT.
(a) Any assignment or transfer of this Warrant shall be made by
surrender of this Warrant at the offices of the Company or at such other address
as the Company may designate in writing to the registered holder hereof with the
4
Assignment Form annexed hereto duly executed and accompanied by payment of any
requisite transfer taxes, and the Company shall, without charge, execute and
deliver a new Warrant of like tenor in the name of the assignee for the portion
so assigned in case of only a partial assignment, with a new Warrant of like
tenor to the assignor for the balance of the Warrant Shares purchasable.
(b) Prior to any assignment or transfer of this Warrant, the holder
thereof shall, if reasonably requested by the Company, deliver an opinion of
counsel to the Company to the effect that the proposed transfer may be effected
without registration under the Act.
3. ADJUSTMENT OF WARRANT PRICE AND WARRANT SHARES.
(a) In case the Company shall at any time subdivide or combine the
outstanding shares of Common Stock, the Warrant Price shall forthwith be
proportionately decreased in the case of the subdivision or proportionately
increased in the case of combination to the nearest one cent. Any such
adjustment shall become effective at the close of business on the date that such
subdivision or combination shall become effective.
(b) In the event that the number of outstanding shares of Common Stock
is increased by a stock dividend payable in shares of Common Stock or by a
subdivision of the outstanding shares of Common Stock, which may include a stock
split, then from and after the time at which the adjusted Warrant Price becomes
effective pursuant to the foregoing subsection (a) of this Section by reason of
such dividend or subdivision, the number of shares issuable upon the exercise of
this Warrant shall be increased in proportion to such increase in outstanding
shares. In the event that the number of outstanding shares of Common Stock is
decreased by a combination of the outstanding shares of Common Stock, then, from
and after the time at which the adjusted Warrant Price becomes effective
pursuant to such subsection (a) of this Section by reason of such combination,
the number of shares issuable upon the exercise of this Warrant shall be
decreased in proportion to such decrease in outstanding shares.
(c) In the event of an adjustment of the Warrant Price, the number of
shares of Common Stock (or reclassified stock) issuable upon exercise of this
Warrant after such adjustment shall be equal to the number determined by
dividing:
(1) an amount equal to the product of (i) the number of shares
of Common Stock issuable upon exercise of this Warrant immediately prior to such
adjustment, and (ii) the Warrant Price immediately prior to such adjustment, by
(2) the Warrant Price immediately after such adjustment.
(d) In the case of any reorganization or reclassification of the
outstanding shares of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination) or in the case of any consolidation of the Company
with, or merger of the Company with, another corporation, or in the case of any
sale, lease or conveyance of all, or substantially all, of the property, assets,
business and goodwill of the Company as an entity, the holder of this Warrant
shall thereafter have the right upon exercise to purchase the kind and amount of
shares of stock and other securities and property receivable upon such
reorganization, reclassification, consolidation, merger or sale by a holder of
the number of shares of Common Stock which the holder of this Warrant would have
5
received had all Warrant Shares issuable upon exercise of this Warrant been
issued immediately prior to such reorganization, reclassification,
consolidation, merger or sale, at a price equal to the Warrant Price then in
effect pertaining to this Warrant (the kind, amount and price of such stock and
other securities to be subject to adjustment as herein provided).
(e) In case the Company shall, at any time prior to the expiration of
this Warrant and prior to the exercise thereof, dissolve, liquidate or wind up
its affairs, the Warrantholder shall be entitled, upon the exercise hereof, to
receive, in lieu of the Warrant Shares of the Company which it would have been
entitled to receive, the same kind and amount of assets as would have been
issued, distributed or paid to it upon such Warrant Shares of the Company, had
it been the holder of record of shares of Common Stock receivable upon the
exercise of this Warrant on the record date for the determination of those
entitled to receive any such liquidating distribution. After any such
dissolution, liquidation or winding up which shall result in any distribution in
excess of the Warrant Price provided for by this Warrant, the Warrantholder may
at its option exercise the same without making payment of the aggregate Warrant
Price and in such case the Company shall upon the distribution to said
Warrantholder consider that the aggregate Warrant Price has been paid in full to
it and in making settlement to said Warrantholder, shall deduct from the amount
payable to such Warrantholder an amount equal to the aggregate Warrant Price.
(f) In case the Company shall, at any time prior to the expiration of
this Warrant and prior to the exercise thereof make a distribution of assets
(other than cash) or securities of the Company to its stockholders (the
"Distribution") the Warrantholder shall be entitled, upon the exercise thereof,
to receive, in addition to the Warrant Shares it is entitled to receive, the
same kind and amount of assets or securities as would have been distributed to
it in the Distribution had it been the holder of record of shares of Common
Stock receivable upon exercise of this Warrant on the record date for
determination of those entitled to receive the Distribution.
(g) Irrespective of any adjustments in the number of Warrant Shares and
the Warrant Price or the number or kind of shares purchasable upon exercise of
this Warrant, this Warrant may continue to express the same price and number and
kind of shares as originally issued.
4. OFFICER'S CERTIFICATE.
Whenever the number of Warrant Shares and the Warrant Price shall be
adjusted pursuant to the provisions hereof, the Company shall forthwith file at
its principal executive office a statement, signed by the Chairman of the Board,
President, or one of the Vice Presidents of the Company and by its Chief
Financial Officer or one of its Treasurers or Assistant Treasurers, stating the
adjusted number of Warrant Shares and the new Warrant Price calculated to the
nearest one hundredth of a cent and setting forth in reasonable detail the
method of calculation and the facts requiring such adjustment and upon which
such calculation is based. Each adjustment shall remain in effect until a
subsequent adjustment hereunder is required. A copy of such statement shall be
mailed to the Warrantholder.
5. CHARGES, TAXES AND EXPENSES.
The issuance of certificates for Warrant Shares upon any exercise of
this Warrant shall be made without charge to the Warrantholder for any tax or
other expense in respect to the issuance of such certificates, all of which
taxes and expenses shall be paid by the Company, and such certificates shall be
issued only in the name of the Warrantholder.
6. MISCELLANEOUS.
(a) The terms of this Warrant shall be binding upon and shall inure to
the benefit of any successors or assigns of the Company and of the holder or
holders hereof and of the shares of Common Stock issued or issuable upon the
exercise hereof.
6
(b) No holder of this Warrant, as such, shall be entitled to vote or
receive dividends or be deemed to be a stockholder of the Company for any
purpose, nor shall anything contained in this Warrant be construed to confer
upon the holder of this Warrant, as such, any rights of a stockholder of the
Company or any right to vote, give or withhold consent to any corporate action,
receive notice of meetings, receive dividends or subscription rights, or
otherwise.
(c) Receipt of this Warrant by the holder hereof shall constitute
acceptance of an agreement to the foregoing terms and conditions.
(d) The Warrant and the performance of the parties hereunder shall be
construed and interpreted in accordance with the laws of the State of Delaware
and the parties hereunder consent and agree that the State and Federal Courts
which sit in the State of Delaware shall have exclusive jurisdiction with
respect to all controversies and disputes arising hereunder.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer and its corporate seal to be affixed hereto.
Dated: May 30, 2002
ADVANCED VIRAL RESEARCH CORP.
BY: /s/ Shalom Hirschman, M.D.
-------------------------------------
Shalom Hirschman, M.D.
President
7
SUBSCRIPTION FORM
(TO BE EXECUTED BY THE REGISTERED HOLDER
IF HE DESIRES TO EXERCISE THE WARRANT)
TO: ADVANCED VIRAL RESEARCH CORP.
The undersigned hereby exercises the right to purchase
_________ shares of Common Stock, par value $.00001 per share, covered by the
attached Warrant in accordance with the terms and conditions thereof, and
herewith makes payment of the Warrant Price for such shares in full.
--------------------------
SIGNATURE
--------------------------
ADDRESS
DATED:
-------------------
ASSIGNMENT
(TO BE EXECUTED BY THE REGISTERED HOLDER
IF HE DESIRES TO TRANSFER THE WARRANT)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto the right to purchase shares of Common Stock of ADVANCED VIRAL
RESEARCH CORP., evidenced by the within Warrant, and does hereby irrevocably
constitute and appoint Attorney to transfer the said Warrant on the books of the
Company, with full power of substitution.
--------------------------
SIGNATURE
--------------------------
ADDRESS
--------------------------
DATED
--------------------------
IN THE PRESENCE OF: