EXHIBIT 99.3
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 IN THE
UNITED STATES OR TO U.S. PERSONS (AS DEFINED IN REGULATION S UNDER
THE SECURITIES ACT) UNLESS IN ACCORDANCE WITH REGULATION S,
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT, OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
UNDER THE SECURITIES ACT. IN ADDITION, HEDGING TRANSACTIONS
INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH THE SECURITIES ACT.
WARRANT TO PURCHASE
COMMON STOCK, PAR VALUE $.00001 PER SHARE
OF
ADVANCED VIRAL RESEARCH CORP.
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This certifies that, for value received, RBB BANK
AKTIENGESELLSCHAFT, 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 October 31, 2008, 375,000 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 $0.20 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.
(1) 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, by Common Stock of the
Company having a Market Value (as hereinafter
defined) equal to the aggregate Warrant Price for the
Warrant Shares to be purchased, 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.
(2) In lieu of exercising this Warrant pursuant to
Section 1(1), the holder may elect to receive shares
of Common Stock equal to the value of this Warrant
determined in the manner described below (or any
portion thereof remaining unexercised) 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 Notice of Cashless Exercise Form annexed
hereto duly executed. In such event the Company shall
issue to the holder a number of shares of the
Company's Common Stock computed using the following
formula:
X = Y (A-B)
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A
Where X = the number of shares of Common Stock to be issued to the holder.
Y = the number of shares of Common Stock purchasable under this Warrant
(at the date of such calculation).
A = the Market Value of the Company's Common Stock on the business day
immediately preceding the day on which the Notice of Cashless
Exercise is received by the Company.
B = Warrant Price (as adjusted to the date of such calculation).
(3) 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.
(4) For purposes of this Warrant, the Market Value of a
share of Common Stock on any date shall be equal to
(i) the closing sale price per share as published by
a national securities exchange on which shares of
Common Stock (or other units of the security) are
traded (an "Exchange") on such date or, if there is
no sale of Common Stock on such date, the average of
the bid and asked prices on such exchange at the
close of trading on such date or, (ii) if shares of
Common Stock are not listed on a national securities
exchange on such date, the closing price per share as
published on the National Association of Securities
Dealers Automatic Quotation System
("NASDAQ") National Market System if the shares are
quoted on such system on such date, or (iii) the
average of the bid and asked prices in the
over-the-counter market at the close of trading on
such date if the shares are not traded on an exchange
or listed on the NASDAQ National Market System, or
(iv) if the Common Stock is not traded on a national
securities exchange or in the over-the-counter
market, the fair market value of a share of Common
Stock on such date as determined in good faith by the
Board of Directors. If the holder disagrees with the
determination of the Market Value of any securities
of the Company determined by the Board of Directors
under Section 1(4)(iv) the Market Value of such
securities shall be determined by an independent
appraiser acceptable to the Company and the holder
(or, if they cannot agree on such an appraiser, by an
independent appraiser selected by each of them, and
Market Value shall be the median of the appraisals
made by such appraisers). If there is one appraiser,
the cost of the appraisal shall be shared equally
between the Company and the holder. If there are two
appraisers, each of the Company and the holder shall
pay for its own appraisal.
2. TRANSFER OR ASSIGNMENT OF WARRANT.
(1) 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 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.
(2) Prior to any assignment or transfer of this Warrant,
the holder thereof shall 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 -- ANTI-DILUTION
PROVISIONS.
A. (1) Except as hereinafter provided, in
case the Company shall at any time after the date
hereof issue any shares of Common Stock (including
shares held in the Company's treasury) without
consideration, then, and thereafter successively upon
each issuance, the Warrant Price in effect
immediately prior to each such issuance shall
forthwith be reduced to a price determined by
multiplying the Warrant Price in effect immediately
prior to such issuance by a fraction:
(a) the numerator of which shall be the
total number of shares of Common Stock
outstanding immediately prior to such
issuance, and
(b) the denominator of which shall be the
total number of shares of Common Stock
outstanding immediately after such
issuance.
For the purposes of any computation to be made in accordance with the
provisions of this clause (1), the following provisions shall be applicable:
(i) Shares of Common Stock
issuable by way of dividend or
other distribution on any
stock of the Company shall be
deemed to have been issued and
to be outstanding at the close
of business on the record date
fixed for the determination of
stockholders entitled to
receive such dividend or other
distribution and shall be
deemed to have been issued
without consideration. Shares
of Common Stock issued
otherwise than as a dividend,
shall be deemed to have been
issued and to be outstanding
at the close of business on
the date of issue.
(ii) The number of shares of Common
Stock at any time outstanding
shall not include any shares
then owned or held by or for
the account of the Company.
(2) 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 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 thereof, 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 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.
(1) 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.
(2) 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.
(3) Receipt of this Warrant by the holder hereof shall
constitute acceptance of an agreement to the
foregoing terms and conditions.
(4) The Warrant and the performance of the parties
hereunder shall be construed and interpreted in
accordance with the laws of the State of New York
and the parties hereunder consent and agree that
the State and Federal Courts which sit in the
State of New York and the County of New York shall
have exclusive jurisdiction with respect to all
controversies and disputes arising hereunder.
(5) Shares issued upon exercise of this Warrant shall
be legended substantially as follows:
"The shares evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended, and
must be held indefinitely unless they are transferred pursuant
to an effective registration statement under that Act or after
receipt of an opinion of counsel satisfactory to the Company
that registration is not required."
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: November 16, 1998
ADVANCED VIRAL RESEARCH CORP.
BY: \s\ Shalom Hirschman
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Shalom Hirschman, M.D., President
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.
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SIGNATURE
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ADDRESS
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DATED:
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NOTICE OF EXERCISE OF COMMON STOCK WARRANT
PURSUANT TO NET ISSUE ("CASHLESS") EXERCISE PROVISIONS
, 199
------------ ---
Advanced Viral Research Corp. Aggregate Price of $
a Delaware corporation of Warrant --------------
200 Corporate Boulevard South
Yonkers, New York 10701 Aggregate Price Being
Exercised: $
Attention: --------------
-------------------- Warrant Price
(per share): $
Number of Shares of --------------
Common Stock to be
Issued Under this
Notice:
CASHLESS EXERCISE
Gentlemen:
The undersigned, registered holder of the Warrant to Purchase
Common Stock delivered herewith ("Warrant") hereby irrevocably exercises such
Warrant for, and purchases thereunder, shares of the Common Stock of ADVANCED
VIRAL RESEARCH CORP., a Delaware corporation, as provided below. Capitalized
terms used herein, unless otherwise defined herein, shall have the meanings
given in the Warrant. The portion of the Aggregate Price (as hereinafter
defined) to be applied toward the purchase of Common Stock pursuant to this
Notice of Exercise is $ , thereby leaving a remainder Aggregate Price (if any)
equal to $
. Such exercise shall be pursuant to the net issue exercise provisions
of Section 1(b) of the Warrant; therefore, the holder makes no payment with this
Notice of Exercise. The number of shares to be issued pursuant to this exercise
shall be determined by reference to the formula in Section 1(b) of the Warrant
which requires the use of the Market Value (as defined in Section 1(d) of the
Warrant) of the Company's Common Stock on the business day immediately preceding
the day on which this Notice is received by the Company. To the extent the
foregoing exercise is for less than the full Aggregate Price of the Warrant, the
remainder of the Warrant representing a number of Shares equal to the quotient
obtained by dividing the remainder of the Aggregate Price by the Warrant Price
(and otherwise of like form, tenor and effect) may be exercised under Section
1(a) of the Warrant. For purposes of this Notice the term "Aggregate Price"
means the product obtained by multiplying the number of shares of Common Stock
for which the Warrant is exercisable times the Warrant Price.
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SIGNATURE
DATE:
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ADDRESS
2
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.
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SIGNATURE
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ADDRESS
DATED:
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IN THE PRESENCE OF:
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