EXHIBIT 10.2
THIS DEBENTURE, AND THE SECURITIES INTO WHICH IT IS CONVERTIBLE (COLLECTIVELY,
THE "SECURITIES"), HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES
AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE. THE
SECURITIES ARE BEING OFFERED PURSUANT TO A SAFE HARBOR FROM REGISTRATION UNDER
REGULATION D PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). THE SECURITIES ARE "RESTRICTED" AND MAY NOT BE OFFERED OR SOLD UNLESS
THE SECURITIES ARE REGISTERED UNDER THE ACT, PURSUANT TO REGULATION D OR
PURSUANT TO AVAILABLE EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE ACT
AND THE COMPANY WILL BE PROVIDED WITH OPINION OF COUNSEL OR OTHER SUCH
INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH EXEMPTIONS ARE
AVAILABLE. FURTHER HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE MADE
EXCEPT IN COMPLIANCE WITH THE ACT.
DEBENTURE
ADVANCED VIRAL RESEARCH CORP.
5% CONVERTIBLE DEBENTURE
DUE APRIL 28, 2008
NO. 001 $ 2,500,000.00
This Debenture is issued by ADVANCED VIRAL RESEARCH CORP., a Delaware
corporation (the "Company"), to CORNELL CAPITAL PARTNERS, LP (together with its
permitted successors and assigns, the "Holder") pursuant to exemptions from
registration under the Securities Act of 1933, as amended.
ARTICLE I.
SECTION 1.01 PRINCIPAL AND INTEREST. For value received, on April 28,
2003, the Company hereby promises to pay to the order of the Holder in lawful
money of the United States of America and in immediately available funds the
principal sum of TWO MILLION FIVE HUNDRED THOUSAND DOLLARS (US $2,500,000.00),
together with interest on the unpaid principal of this Debenture at the rate of
five percent (5%) per year (computed on the basis of a 365-day year and the
actual days elapsed) from the date of this Debenture until paid. At the
Company's option, the entire principal amount and all accrued interest shall be
either (a) paid to the Holder on the fifth (5th) year anniversary from the date
hereof or (b) converted in accordance with Section 1.02 herein.
SECTION 1.02 OPTIONAL CONVERSION. Commencing ninety (90) days after the
date hereof, the Holder is entitled, at its option, to convert, and sell on the
same day, until payment in full of this Debenture, all or any part of the
principal amount of the Debenture, plus accrued interest, into shares (the
"Conversion Shares") of the Company's common stock, par value $0.00001 per share
("Common Stock"), at the price per share (the "Conversion Price") equal to the
lesser of (a) an amount equal to Eight Cents ($0.08) or (b) an amount equal to
eighty percent (80%) of the lowest Closing Bid Price of the Common Stock for the
four (4) trading days immediately preceding the Conversion Date (as defined
herein). Subparagraphs (a) and (b) above are individually referred to as a
"Conversion Price". As used herein, "Principal Market" shall mean The National
Association of Securities Dealers Inc.'s Over-The-Counter Bulletin Board, Nasdaq
SmallCap Market, or American Stock Exchange. If the Common Stock is not traded
on a Principal Market, the Closing Bid Price shall mean, the reported Closing
Bid Price for the Common Stock, as furnished by the National Association of
Securities Dealers, Inc., for the applicable periods. No fraction of shares or
scrip representing fractions of shares will be issued on conversion, but the
number of shares issuable shall be rounded to the nearest whole share. To
convert this Debenture, the Holder hereof shall deliver written notice thereof,
substantially in the form of Exhibit "A" to this Debenture, with appropriate
insertions (the "Conversion Notice"), to the Company at its address as set forth
herein. The date upon which the conversion shall be effective (the "Conversion
Date") shall be deemed to be the date set forth in the Conversion Notice.
SECTION 1.03 CONVERSION RESTRICTIONS. Notwithstanding Section 1.02
herein, the Holder shall not convert more than Six Hundred Thousand Dollars
($600,000) in any thirty (30) day calendar period, unless otherwise agreed by
the Company.
Section 1.04 RESERVATION OF COMMON STOCK. The Company shall reserve and
keep available out of its authorized but unissued shares of Common Stock, solely
for the purpose of effecting the conversion of this Debenture, such number of
shares of Common Stock as shall from time to time be sufficient to effect such
conversion, based upon the Conversion Price. If at any time the Company does not
have a sufficient number of Conversion Shares authorized and available, then the
Company shall call and hold a special meeting of its stockholders within sixty
(60) days of that time for the sole purpose of increasing the number of
authorized shares of Common Stock.
Section 1.05 RIGHT OF REDEMPTION.
(i) The Company at its option shall have the right to
redeem, with two (2) business days advance written notice (the "Redemption
Notice"), a portion or all outstanding convertible debenture. The redemption
price shall be one hundred fifteen percent (115%) of the amount redeemed plus
accrued interest. Once the Company has issued to the Holder a Redemption Notice
the Holder may continue to execute conversions only as long as the closing bid
price of the Company's Common Stock the day prior to conversion is above the
closing bid price of the Company's Common Stock on the Closing Date.
(ii) In the event the closing bid price of the Company's
Common Stock on the date the Registration Statement is declared effective by the
Securities and Exchange Commission is less than Ten Cents ($.10) the Company
shall have the right to, upon written
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notification to the Holder, within ten (10) days from the effectiveness of the
Registration Statement to redeem all of the Convertible Debenture purchased at
the Third Closing (as this term is defined in the Securities Purchase Agreement
dated the date hereof). The redemption price shall be face amount of the
Convertible Debenture.
In the event the Company exercises a redemption of either all or a
portion the Convertible Debenture, as outlined in section (i) herein, the Holder
shall receive a warrant to purchase one million (1,000,000) shares of the
Company's Common Stock for every One Hundred Thousand Dollars ($100,000)
redeemed, pro rata (the "Warrant"). The Warrant shall be exercisable on a "cash
basis" and have an exercise price of the higher of one hundred ten percent
(110%) of the Closing Bid Price of the Company's Common Stock on the Closing
Date or Eight Cents ($0.08) per share. The Warrant shall have "piggy-back"
registration rights and shall survive for five (5) years from the Closing Date.
The Warrant shall not be exercisable prior to six months after the date hereof.
Section 1.06 REGISTRATION RIGHTS. The Company is obligated to register
the resale of the Conversion Shares under the Securities Act of 1933, as
amended, pursuant to the terms of a Registration Rights Agreement, between the
Company and the Holder of even date herewith (the "Investor Registration Rights
Agreement").
Section 1.07 INTEREST PAYMENTS. The interest so payable will be paid at
the time of maturity or conversion to the person in whose name this Debenture is
registered. At the time such interest is payable, the Holder, in its sole
discretion, may elect to receive interest in cash (via wire transfer or
certified funds) or in the form of Common Stock. In the event of default, as
described in Article III Section 3.01 hereunder, the Holder may elect that the
interest be paid in cash (via wire transfer or certified funds) or in the form
of Common Stock. If paid in the form of Common Stock, the amount of stock to be
issued will be calculated as follows: the value of the stock shall be the
Closing Bid Price on: (i) the date the interest payment is due; or (ii) if the
interest payment is not made when due, the date the interest payment is made. A
number of shares of Common Stock with a value equal to the amount of interest
due shall be issued. No fractional shares will be issued; therefore, in the
event that the value of the Common Stock per share does not equal the total
interest due, the Company will pay the balance in cash.
Section 1.08 PAYING AGENT AND REGISTRAR. Initially, the Company will
act as paying agent and registrar. The Company may change any paying agent,
registrar, or Company-registrar by giving the Holder not less than ten (10)
business days' written notice of its election to do so, specifying the name,
address, telephone number and facsimile number of the paying agent or registrar.
The Company may act in any such capacity.
Section 1.09 SUBORDINATED NATURE OF DEBENTURE. This Debenture and all
payments hereon, including principal or interest, shall be subordinate and
junior in right of payment to all accounts payable of the Company incurred in
the ordinary course of business and/or bank debt of the Company not to exceed
$2,500,000.
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ARTICLE II.
SECTION 2.01 AMENDMENTS AND WAIVER OF DEFAULT. The Debenture may not be
amended. Notwithstanding the above, the Debenture may be amended to cure any
ambiguity, defect or inconsistency, to provide for assumption of the Company
obligations to the Holder or to make any change that does not adversely affect
the rights of the Holder.
ARTICLE III.
SECTION 3.01 EVENTS OF DEFAULT. An Event of Default is defined as
follows: (a) failure by the Company to pay amounts due hereunder within fifteen
(15) days of the date of maturity of this Debenture; (b) failure by the Company
to comply with the terms of the Irrevocable Transfer Agent Instructions attached
to the Securities Purchase Agreement; (c) failure by the Company's transfer
agent to issue Common Stock to the Holder within ten (10) days of the Company's
receipt of the attached Notice of Conversion from Holder; (d) failure by the
Company for ten (10) days after notice to it to comply with any of its other
agreements in the Debenture; (e) events of bankruptcy or insolvency; (f) a
breach by the Company of its obligations under the Securities Purchase Agreement
which is not cured by the Company within ten (10) days after receipt of written
notice thereof.
ARTICLE IV.
SECTION 4.01 RIGHTS AND TERMS OF CONVERSION. Commencing ninety (90)
days after the date hereof, this Debenture, in whole or in part, may be
converted at any time into shares of Common Stock at a price equal to the
Conversion Price as described in Section 1.02 above.
SECTION 4.02 RE-ISSUANCE OF DEBENTURE. When the Holder elects to
convert a part of the Debenture, then the Company shall reissue a new Debenture
in the same form as this Debenture to reflect the new principal amount.
SECTION 4.03 TERMINATION OF CONVERSION RIGHTS. The Holder's right to
convert the Debenture into the Common Stock in accordance with paragraph 4.01
shall terminate on the date that is the fifth (5th) year anniversary from the
date hereof and this Debenture shall be automatically converted on that date in
accordance with the formula set forth in Section 1.02 hereof, and the
appropriate shares of Common Stock and amount of interest shall be issued to the
Holder.
ARTICLE V.
SECTION 5.01 ANTI-DILUTION. In the event that the Company shall at any
time subdivide the outstanding shares of Common Stock, or shall issue a stock
dividend on the outstanding Common Stock, the Conversion Price in effect
immediately prior to such subdivision or the issuance of such dividend shall be
proportionately decreased, and in the event that the Company shall at any time
combine the outstanding shares of Common Stock, the Conversion Price in effect
immediately prior to such combination shall be proportionately increased,
effective at the close of business on the date of such subdivision, dividend or
combination as the case may be.
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SECTION 5.02 CONSENT OF HOLDER TO SELL COMMON CAPITAL STOCK. Except for
the Equity Line of Credit Agreement dated the date hereof between the Company
and Cornell Capital Partners, LP. so long as any of the principal of or interest
on this Note remains unpaid and unconverted, the Company shall not, without the
prior consent of the Holder, issue or sell (i) any Common Stock or preferred
stock without consideration, or (ii) issue or sell any preferred stock, warrant,
option, right, contract, call, or other security or instrument granting the
holder thereof the right to acquire Common Stock without consideration or for a
consideration per share less than such Common Stock's fair market value
determined immediately prior to its issuance or (iii) file any registration
statement on Form S-8 or (iv) grant a security interest in any of the Assets of
the Company. The provisions of this Section 5.02 shall terminate and be of no
further force or effect on the one hundred and twenty-first (121st) day
following the Effective Date of the Registration Statement referred to in the
Investor Registration Rights Agreement.
ARTICLE VI.
SECTION 6.01 NOTICE. Notices regarding this Debenture shall be sent to
the parties at the following addresses, unless a party notifies the other
parties, in writing, of a change of address:
If to the Company, to: Advanced Viral Research Corp.
200 Corporate Boulevard South
Yonkers, NY 10701
Attention: Alan Gallantar
Chief Financial Officer
Telephone: (914) 376-7383
Facsimile: (914) 376-7638
With a copy to: Kirkpatrick & Lockhart LLP
201 South Biscayne Boulevard - Suite 2000
Miami, FL 33131-2399
Attention: Clayton E. Parker, Esq.
Telephone: (305) 539-3300
Facsimile: (305) 358-7095
If to the Holder: Cornell Capital Partners, LP
101 Hudson Street, Suite 3606
Jersey City, NJ 07306
Attention: Mark A. Angelo
Telephone: (201) 985-8300
Facsimile: (201) 985-8266
With a copy to: Butler Gonzalez LLP
1000 Stuyvesant Avenue - Suite 6
Union, NJ 07083
Attention: David Gonzalez, Esq.
Telephone: (908) 810-8588
Facsimile: (908) 810-0973
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SECTION 6.02 GOVERNING LAW. This Debenture shall be deemed to be made
under and shall be construed in accordance with the laws of the State of
Delaware without giving effect to the principals of conflict of laws thereof.
Each of the parties consents to the jurisdiction of the U.S. District Court
sitting in the District of the State of New Jersey or the state courts of the
State of New Jersey sitting in Hudson County, New Jersey in connection with any
dispute arising under this Debenture and hereby waives, to the maximum extent
permitted by law, any objection, including any objection based on forum non
conveniens to the bringing of any such proceeding in such jurisdictions.
SECTION 6.03 SEVERABILITY. The invalidity of any of the provisions of
this Debenture shall not invalidate or otherwise affect any of the other
provisions of this Debenture, which shall remain in full force and effect.
SECTION 6.04 ENTIRE AGREEMENT AND AMENDMENTS. This Debenture represents
the entire agreement between the parties hereto with respect to the subject
matter hereof and there are no representations, warranties or commitments,
except as set forth herein. This Debenture may be amended only by an instrument
in writing executed by the parties hereto.
SECTION 6.05 COUNTERPARTS. This Debenture may be executed in multiple
counterparts, each of which shall be an original, but all of which shall be
deemed to constitute on instrument.
SECTION 6.06 NO ASSIGNMENT. This Debenture shall not be assignable.
IN WITNESS WHEREOF, with the intent to be legally bound hereby, the
Company as executed this Debenture as of the date first written above.
ADVANCED VIRAL RESEARCH CORP.
By: /s/ Shalom Z. Hirschman, MD
-----------------------------------
Name: Shalom Z. Hirschman
Title: Chief Executive Officer
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