Exhibit 10.4
WARRANT
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT") OR UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE PLEDGED, SOLD,
ASSIGNED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNTIL (I) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR (II) THE COMPANY RECEIVES AN OPINION OF COUNSEL TO THE
COMPANY OR OTHER COUNSEL TO THE COMPANY THAT SUCH SECURITIES MAY BE PLEDGED,
SOLD, ASSIGNED, HYPOTHECATED OR TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR APPLICABLE STATE SECURITIES LAWS.
Warrant to Purchase
100,000 shares
VOID AFTER JULY 18, 2005
WARRANT TO PURCHASE
COMMON STOCK
OF
INTEGRATED BIOPHARMA, INC.
Incorporated Under the Laws of the State of Delaware
THIS IS TO CERTIFY that WOLFE AXELROD WEINBERGER ASSOCIATES LLC, or its
proper assigns (the "Warrantholder"), is entitled, upon the due exercise hereof
and subject to the terms and conditions hereof, as to the total number of shares
thereafter, until 5:00 p.m. New York time on July 18, 2005, to purchase from
Integrated BioPharma, Inc., a Delaware corporation (the "Company"), from time to
time, all or any part of One Hundred Thousand (100,000) fully paid and
nonassessable shares of common stock, par value $.002 per share, of the Company
(the "Common Stock"), but not for fractional shares of Common Stock, and not for
less than Five Thousand (5,000) shares of Common Stock at any one time, upon
delivery of the Election to Purchase attached hereto as Appendix A and, for the
exercise for the remaining balance of such number of such Common Stock, the
surrender hereof with the Election to Purchase attached hereto as Appendix A,
duly completed and delivered, in accordance with Section 11 of this Warrant, and
simultaneous payment therefor by wire transfer of immediately available funds,
or good bank or certified check drawn to the order of the Company, at an
exercise price of (i) $1.37 for one (1) share of Common Stock for the first
Seventy-Five Thousand (75,000) shares of Common Stock, and (ii) $1.75 for one
(1) share of Common Stock for the remaining Twenty-Five Thousand (25,000) shares
of Common Stock (the "Warrant Exercise Price").
This Warrant is issued pursuant to an agreement dated July 18, 2000
(the "Retainer Agreement") between the Company and the original Warrantholder
and is intended to formalize and document the options and warrants granted on
July 18, 2000 by the Company to the Warrantholder entitling the Warrantholder to
purchase 75,000 shares of Common Stock and an additional 25,000 shares of Common
Stock pursuant to the Retainer Agreement.
1. Term. This Warrant is exercisable at the option of the
Warrantholder, for a five (5) year period, commencing on the date hereof and may
not be exercised after 5:00 p.m., New York time, July 18, 2005 (the "Expiration
Date"), at which time this Warrant will become wholly void and all rights
evidenced hereby will terminate solely as to the purchase of any shares of
Common Stock for which an Election to Purchase has not been delivered to the
Company by the Warrantholder or its assigns.
2. Treatment of Partial Exercise of Warrant. If this Warrant is
exercised for less than all the shares purchasable upon the exercise hereof,
subject to the minimum amount of Five Thousand (5,000) shares of Common Stock
per exercise (or the remaining balance of this Warrant, whichever is the
lesser), this Warrant shall be deemed to be amended to appropriately decrease
the number of shares of Common Stock available for exercise.
3. Issuance of Common Stock Certificates. Upon the exercise of this
Warrant and full payment of the applicable Warrant Exercise Price, the Company
will cause its transfer agent to issue to the Warrantholder or its designee,
within four (4) business days, stock certificates representing the number of
shares of Common Stock exercised therefor, in the name of the Warrantholder or
in such names as may be directed by the holder. Electronic delivery shall be
made to a securities intermediary within such period if so requested by the
Warrantholder.
4. Adjustment of Warrant Exercise Price and Number of Shares of Common
Stock. In case of any dividend in securities of the Company, stock split,
spinoff, reclassification, capital reorganization, or other change of
outstanding shares of Common Stock, or in case of any consolidation or merger of
the Company with or into another corporation (other than a consolidation or
merger in which the Company is the continuing corporation and which does not
result in any reclassification, capital reorganization, or other change of
outstanding shares of Common Stock), or in case of any sale or conveyance to
another corporation of all or substantially all of the property of the Company
(other than a sale/leaseback, mortgage, or other financing transaction), or the
issuance of any rights to purchase or to receive any securities of the Company
or its subsidiaries issued to all holders of Common Stock, the Company shall
cause effective provision to be made so that the Warrantholder shall have the
right thereafter, by exercising such Warrant, to purchase the kind and number of
shares of stock or other securities or property (including cash) receivable upon
such reclassification, capital reorganization, or other change, consolidation,
merger, sale, or conveyance by a holder of the number of shares of Common Stock
that might have been purchased upon exercise of such Warrant immediately prior
to such reclassification, capital reorganization, or other change,
consolidation, merger, sale, or conveyance. Any such provision shall include
provision for adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 4. The Company shall
not effect any such consolidation, merger or sale, unless prior to or
simultaneously with the consummation thereof, the successor (if other than the
Company) resulting from such consolidation or merger or the corporation
purchasing assets or other appropriate corporation or entity shall assume by
written instrument the obligation to deliver to the holder of this Warrant such
shares of stock, securities, or assets as, in accordance with the foregoing
provisions, such holders may be entitled to purchase and the other obligations
under this Agreement. The foregoing provisions shall similarly apply to each
successive dividend, rights offering, stock split, spinoff, reclassification,
capital reorganizations, and other changes of outstanding shares of Common Stock
and to successive consolidations, mergers, sales, or conveyances.
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5. No Stockholder Rights. The Warrantholder shall not have the right to
vote or to consent or to receive notice as a stockholder in respect of any
meetings of stockholders or as having any rights whatsoever as a stockholder of
the Company until such time as it has exercised all or any part of this Warrant.
The Warrantholder shall not be entitled to any rights of a stockholder of the
Company in respect of any shares purchasable upon the exercise hereof until such
shares have been paid for in full, whether or not a certificate has been
delivered hereunder.
6. Restrictions on Transfer; Permitted Transferees. This Warrant and
the shares of Common Stock issuable upon the exercise hereof (collectively, the
"Warrant Securities") are not currently registered upon the Securities Act of
1933, as amended (the "Securities Act") or any state securities laws. The
Warrant Securities are subject to restrictions on transferability and resale and
may not be transferred or resold, except as set forth below. For so long as the
Warrant Securities are not registered under the Securities Act, each certificate
representing shares of Common Stock issuable upon the exercise of this Warrant
shall bear the following legend (in addition to any legend required under
applicable state securities laws and any other applicable agreement): THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
NOR UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE PLEDGED, SOLD, ASSIGNED,
HYPOTHECATED OR OTHERWISE TRANSFERRED UNTIL (I) A REGISTRATION STATEMENT WITH
RESPECT THERETO IS EFFECTIVE UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR (II) THE COMPANY RECEIVES AN OPINION OF COUNSEL TO THE COMPANY OR OTHER
COUNSEL TO THE COMPANY THAT SUCH SECURITIES MAY BE PLEDGED, SOLD, ASSIGNED,
HYPOTHECATED OR TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT OR APPLICABLE STATE SECURITIES LAWS. Subject to the Warrantholder's
compliance with the requirements set forth in the above legend, the
Warrantholder may transfer all or part of the Warrant Securities to any of the
persons listed on Appendix B hereto; provided, however, that any transferee must
agree in writing (the "Transferee Consent") to be bound by the terms of the
Warrant and of the Settlement Agreement, dated as of December 20, 2004 (the
"Settlement Agreement"), between the Company and Wolfe Axelrod Weinberger
Associates LLC ("WA"), that are applicable to WA. The Warrantholder shall give
prompt written notice to the Company, in accordance with Section 11 of this
Warrant, of any such transfer, which notice shall specify the applicable Warrant
Exercise Price of the transferred Warrant Securities and shall include a copy of
the Transferee Consent.
7. Reservation of Stock Issuable Upon Exercise. The Company has
reserved and shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock and other securities deliverable hereunder,
solely for the purpose of effecting the issuance of the shares of Common Stock
and other securities upon exercise of the Warrant, such number of its shares of
Common Stock and other securities as shall from time to time be sufficient to
provide for the exercise of this Warrant, and if at any time the number of
authorized but unissued shares of Common Stock or other securities shall not be
sufficient to provide for the exercise of this Warrant, the Company will,
subject to the requirements of applicable state law, take such corporate action
as may, in the option of its counsel, be necessary to increase its authorized
but unissued shares of Common Stock or other securities to such number of shares
of Common Stock and other securities as shall be sufficient for such purposes.
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8. Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Warrants, nor shall it be required to issue scrip or
pay cash in lieu of fractional interests, it being the intent of the parties
that all fractional interests shall be eliminated by rounding any fraction to
the nearest whole number of shares of Common Stock or other securities,
properties or rights.
9. Loss or Mutilation. Upon receipt by the Company of evidence
reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and (in the case of loss,
theft or destruction) of indemnity reasonably satisfactory to the Company, and
(in the case of mutilation) upon surrender and cancellation thereof, the Company
will execute and deliver in lieu thereof a new Warrant Certificate of like
tenor.
10. Successors. All the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of the Company and the
Warrantholder and its respective successors and assigns hereunder.
11. Governing Law; Submission to Jurisdiction. This Warrant issued
hereunder shall be deemed to be a contract made under the laws of the State of
New York and the Delaware General Corporate Law and for all purposes shall be
construed in accordance with the laws of said States, without giving effect to
the rules of said State governing the conflicts of laws which might cause the
application of any other laws.
12. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made when
delivered by registered or certified mail, return receipt requested, or by
overnight mail (a) If to the registered Warrantholder, to the address of such
Warrantholder as shown on the books of the Company, with a copy by facsimile to
Wolf, Block, Schorr & Solis-Cohen LLP facsimile (212) 672-1165, Attn: Barry J.
Bendes, Esq.; or (b) If to the Company, to its principal offices at 225 Long
Avenue, Hillside, New Jersey 07205 and by facsimile to (973) 926-1735, Attn:
Eric Friedman, Chief Financial Officer, with a copy by facsimile to Greenberg
Traurig, LLP, facsimile (212) 805-5552, Attn: Andrew H. Abramowitz, Esq., or to
such other address as the Company may designate by notice to the Warrantholder.
13. Entire Agreement; Modification. This Agreement, together with the
Settlement Agreement, contains the entire understanding between the parties
hereto with respect to the subject matter hereof and may not be modified or
amended, except by a writing duly signed by the party against whom enforcement
of the modification or amendment is sought.
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INTEGRATED BIOPHARMA, INC.
By: /s/ E. Gerald Kay
---------------------
Name: E. Gerald Kay
Title: Chief Executive Officer
Dated: As of July 18, 2000
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Appendix A
FORM OF ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to purchase _______ shares of Common Stock at an
exercise price of $____ per share of Common Stock
In accordance with the terms of the Warrant dated as of _________
issued by Integrated BioPharma, Inc. in favor of ______________, the
undersigned requests that a certificate for such securities be registered in
the name of ___________ whose address is ____________ and that such
Certificate be delivered to _____________________________ whose address
is __________________________________________________________.
Dated: _________________,
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Signature (Signature must conform in all
respects to name of holder as specified on
the face of the Warrant.)
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(Insert Social Security or Other
Identifying Number of Warrantholder)
Appendix B
PERMITTED TRANSFEREES
Stephen Axelrod
Donald Weinberger