EXHIBIT 10.8
AMERIMMUNE PHARMACEUTICALS, INC.
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (this "AGREEMENT") is made as of November 15,
2001, by and among Amerimmune Pharmaceuticals, Inc., a Colorado corporation
(the "COMPANY") whose address is 2325 Renaissance Drive, Las Vegas, Nevada
89119, and Rex H. Lewis, an individual whose address is c/o the Company,
2325 Renaissance Drive, Las Vegas, Nevada 89119 ("HOLDER"), with respect
to the following facts:
A. The Company has previously granted Holder options (collectively,
the "OPTION") to purchase up to 6,380,357 shares of Common Stock of the
Company ("COMMON STOCK") at an exercise price of $0.22 per share pursuant
to the terms of two Stock Option Agreements, each having a grant date of
December 28, 2000 (the "OPTION AGREEMENTS").
B. The Company and Holder desire to enter into a transaction by
which Holder would agree to cancel the existing Option and any rights he
may have pursuant to the terms of the Option Agreements in exchange for a
Warrant to purchase up to 6,380,357 shares of Common Stock at an exercise
price of $0.22 per share pursuant to the terms of a Warrant Agreement in
the form of Exhibit A, attached hereto (the "WARRANT AGREEMENT").
C. The Company and Holder acknowledge and agree that (i) the value
of the Warrant (the "WARRANT VALUE") can be readily ascertained through the
application of recognized option and warrant valuation methods which
consider, among other things, (1) the value of the underlying Common Stock
based on the reported public trading price of the Common Stock, (2) the
probability of any increase or decrease in the value of the underlying
Common Stock, and (3) the term of the Warrant , and (ii) the Warrant Value,
as determined in good faith by the Company's Board of Directors based upon
established valuation methods, shall be treated as compensation to the
Holder.
NOW, THEREFORE, for good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereto agree as follows:
1. CANCELLATION OF OPTION AND ISSUANCE OF WARRANT.
1.1 CANCELLATION OF OPTION. Subject to the terms of this
Agreement and issuance of the Warrant to the Holder pursuant to the terms
of this Agreement and the Warrant Agreement, simultaneously with the
execution of this Agreement (i) the Option shall be deemed canceled and of
no further force and effect , without exercise of any portion thereof, and
(ii) Holder shall be deemed to have automatically waived any rights that he
may have pursuant to the terms of the Option Agreements and (iii) Holder
shall deliver to the Company the original Option Agreements or, if either
of the Option Agreements has been lost or destroyed, a customary form of
acknowledgment and indemnity.
1.2 ISSUANCE OF WARRANT. Subject to the terms of this
Agreement and cancellation of the Option pursuant to the terms of Section
1.1 hereof, simultaneously with the execution of this Agreement, the
Company shall issue and deliver to Holder the Warrant as evidenced by the
Warrant Agreement.
1.3 COMPENSATION TO HOLDER. The disinterested members of
the Company's Board of Directors, after consideration of various factors,
including a recent independent valuation of warrants having comparable
terms, has determined that the aggregate Warrant Value equals $127,607.14
(e.g. $.02 per Warrant Share, as defined below). Holder and the Company
acknowledge and agree that upon issuance of the Warrant, such aggregate
Warrant Value shall be treated as W-2 compensation to the Holder.
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1.4 WAIVER OF ANTI-DILUTION ADJUSTMENTS. To the extent
that the issuance of this Warrant or the Warrant Shares (as defined below)
would trigger an adjustment in the number of shares or exercise price
pursuant to the anti-dilution provisions of any currently outstanding
warrant issued to Holder or his affiliates, including Maya, LLC, any
adjustment(s) that would otherwise result from the transactions
contemplated hereby or the issuance of the Warrant or the Warrant Shares,
are hereby waived by Holder and his affiliates. Nothing herein shall be
deemed a waiver of any anti-dilution rights that the Holder or his
affiliates may have as a result of any transactions other than the issuance
of this Warrant or the Warrant Shares contemplated hereby.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to Holder as follows:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The
Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Colorado and has all requisite
corporate power and authority to carry on its business as now conducted and
as proposed to be conducted.
2.2 AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the performance of
all obligations of the Company hereunder, and the authorization, issuance
(or reservation for issuance), sale and delivery of the Warrant being
issued hereunder, including the approval of this transaction by a majority
of the disinterested members of the Board of Directors of the Company, has
been taken, and this Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except
(i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement of
creditors' rights generally, and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies. The Company has all requisite legal and corporate power and
authority to execute and deliver this Agreement, to issue the Warrant, to
issue the Common Stock upon exercise of the Warrant and to carry out and
perform its obligations under the terms of the Agreement.
2.3 VALID ISSUANCE OF WARRANT. The Warrant, when issued,
sold and delivered in accordance with the terms of this Agreement for the
consideration expressed herein, will be duly and validly issued, fully paid
and will be free of restrictions on transfer other than restrictions on
transfer under applicable state and federal securities laws. The shares of
Common Stock issuable upon exercise of the Warrant (the "WARRANT SHARES"),
when issued upon exercise of the Warrant, will be duly and validly issued,
fully paid and will be free of restrictions on transfer other than
restrictions on transfer under applicable state and federal securities
laws.
3. REPRESENTATIONS AND WARRANTIES OF HOLDER. The Holder hereby
represents and Warrants that:
3.1 AUTHORIZATION. The Holder has full power and authority
to enter into this Agreement, and the Agreement constitutes his valid and
legally binding obligation, enforceable in accordance with its terms except
(i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement of
creditors' rights generally, and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies.
3.2 ACCREDITED INVESTOR. The Holder is an "accredited
investor" within the meaning of Securities and Exchange Commission ("SEC")
Rule 501 of Regulation D, as presently in effect.
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3.3 SECURITIES LAWS. Holder understands that the Warrant
and the Warrant Shares into which the Warrants are exercisable are
characterized as "restricted securities" under federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable
regulations such securities may not be resold without registration under
the Act or pursuant to an exemption from such registration.
3.4 LEGENDS. It is understood that the certificates
evidencing any Warrant Shares issued upon exercise of a Warrant shall bear
such legends as may be required under applicable law, including the
following legend:
"These securities have not been registered under the Securities
Act of 1933, as amended. They may not be sold, offered for sale, pledged or
hypothecated in the absence of a registration statement in effect with
respect to the securities under such Act and applicable state law or an
opinion of counsel satisfactory to the Company that such registration is
not required."
3.5 OWNERSHIP OF OPTION. The Holder is the owner of the
Option and any rights pursuant to the Option Agreements free and clear of
any and all claims, liens, encumbrances or security interests. The Holder
has not transferred, hypothecated or otherwise assigned or agreed to
transfer, hypothecate or otherwise assign, any interest in and to the
Option, the Option Agreements or any shares of Common Stock issuable upon
exercise of the Option.
4. MISCELLANEOUS.
4.1 SURVIVAL. The warranties, representations and
covenants of the Company and the Holder contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement.
4.2 SUCCESSORS AND ASSIGNS. Subject to any restrictions
under applicable securities laws, the Holder shall have the right to
transfer or assign his rights hereunder without the consent of the Company.
Except as otherwise provided herein, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties (including transferees of the Warrant
or Warrant Shares). Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement.
4.3 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of Nevada as applied to agreements
among Nevada residents entered into and to be performed entirely within
Nevada; provided, however, that the Colorado Business Corporation Act shall
govern with respect to the matters of corporate law.
4.4 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
4.5 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.
4.6 NOTICES. Unless otherwise provided, any notice required
or permitted under this Agreement shall be given in writing and shall be
deemed effectively given upon delivery by overnight mail, personal delivery
to the party to be notified, or upon deposit with the United States Post
Office, by registered or certified mail, postage prepaid and addressed to
the party to be notified at the address indicated for such party on the
signature page hereof, or at such other address as such party may designate
by ten (10) days' advance written notice to the other parties.
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4.7 EXPENSES. The Company shall pay all costs and expenses
that it incurs with respect to the negotiation, execution, delivery and
performance of this Agreement. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which such party
may be entitled.
4.8 AMENDMENTS AND WAIVERS. Any term of this Agreement may
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the parties to this
Agreement.
4.9 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement
shall be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
4.10 ENTIRE AGREEMENT. This Agreement and the documents
referred to herein constitute the entire agreement among the parties and no
party shall be liable or bound to any other party in any manner by any
warranties, representations, or covenants except as specifically set forth
herein or therein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
AMERIMMUNE PHARMACEUTICALS, INC.,
a Colorado corporation
By: ______________________________ __________________________________
O.B. Parrish, Chairman REX H. LEWIS
MAYA, LLC, a Nevada limited
liability company (solely with
respect to Section 1.4 of this
Agreement)
By:_____________________________
Name: __________________________
Title: _________________________
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EXHIBIT A
FORM OF WARRANT
---------------
See attached form of Warrant
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THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH WARRANTS AND SHARES
MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH
SECURITIES UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED.
WARRANT
TO PURCHASE SHARES OF
COMMON STOCK OF
AMERIMMUNE PHARMACEUTICALS, INC.
Dated November 15, 2001
HOLDER: REX H. LEWIS
NUMBER OF SHARES: 6,380,357
THIS CERTIFIES THAT, for good and valuable consideration, the above
referenced holder ("Holder"), or its assigns, is entitled to subscribe for
and purchase from AMERIMMUNE PHARMACEUTICALS, INC., a Colorado corporation
(the "Company"), at any time commencing on the date of this Warrant and
ending at the close of business ten (10) years from the date of issuance,
the number of fully paid and nonassessable shares of the Common Stock of
the Company set forth above at an exercise price of twenty-two cents
($0.22) per share (the "Warrant Exercise Price"), subject to the adjustment
provisions of Sections 5 and 6 of this Warrant. The shares which may be
acquired upon exercise of this Warrant are referred to herein as the
"Warrant Shares." As used herein, the term "Holder" includes any party who
acquires all or a part of this Warrant as a transferee of Holder; the term
"Common Stock" means and includes the Company's presently authorized Common
Stock, $0.05 par value.
This Warrant is issued in accordance with the terms of that certain
Exchange Agreement between Holder and the Company of even date herewith and
is subject to the following provisions, terms and conditions:
1. EXERCISE; TRANSFERABILITY.
(a) The rights represented by this Warrant may be exercised by
the Holder hereof, in whole or in part (but not as to any fractional shares
of Common Stock), by written notice of exercise (in the form attached
hereto) delivered to the Company at the principal office of the Company
prior to the expiration of this Warrant and accompanied or preceded by the
surrender of this Warrant along with
payment of the Warrant Exercise Price for such shares (i) in cash, by check
or by wire transfer of federal funds, (ii) on a cashless basis in
accordance with the provisions of Section 11 of this Warrant, or (iii) by
a combination of the methods specified in clauses (a) and (b).
Notwithstanding the foregoing, the Company, in its sole discretion, may
extend and maintain, or arrange for the extension and maintenance of,
credit to the Holder to finance payment of the purchase price on such terms
as may be approved by the Board of Directors of the Company.
2. EXCHANGE AND REPLACEMENT. Subject to Sections 1 and 9 hereof,
this Warrant is exchangeable upon the surrender hereof by the Holder to the
Company at its office for new Warrants of like tenor and date representing
in the aggregate the right to purchase the number of Warrant Shares
purchasable hereunder, each of such new Warrants to represent the right to
purchase such number of Warrant Shares (not to exceed the aggregate total
number purchasable hereunder) as shall be designated by the Holder at the
time of such surrender. Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction, or mutilation of this
Warrant, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it, and upon surrender and cancellation
of this Warrant, if mutilated, the Company will make and deliver a new
Warrant of like tenor, in lieu of this Warrant; provided, however, that if
Holder shall be such Holder, an agreement of indemnity by such Holder shall
be sufficient for all purposes of this Section 2. This Warrant shall be
promptly canceled by the Company upon the surrender hereof in connection
with any exchange or replacement. The Company shall pay all expenses, taxes
(other than stock transfer taxes), and other charges payable in connection
with the preparation, execution, and delivery of Warrants pursuant to this
Section 2.
3. ISSUANCE OF THE WARRANT SHARES.
(a) The Company agrees that the Warrant Shares shall be and will
be deemed to be issued to the Holder as of the close of business on the
date on which this Warrant shall have been surrendered and the payment made
for such Warrant Shares as provided herein. Subject to the provisions of
the next section, certificates for the Warrant Shares so purchased shall be
delivered to the Holder within a reasonable time after the rights
represented by this Warrant shall have been so exercised, and, unless this
Warrant has expired, a new Warrant representing the right to purchase the
number of Warrant Shares, if any, with respect to which this Warrant shall
not then have been exercised shall also be delivered to the Holder within
such time.
(b) Notwithstanding the foregoing, however, the Company shall
not be required to deliver any certificate for Warrant Shares upon exercise
of this Warrant except in accordance with exemptions from the applicable
securities registration requirements or registrations under applicable
securities laws. Nothing herein, however, shall obligate the Company to
effect registrations under federal or state securities laws. If
registrations are not in effect and if exemptions are not available
when the Holder seeks to exercise the Warrant, the Warrant exercise period
will be extended, if need be, to prevent the Warrant from expiring, until
such time as either registrations become effective or exemptions are
available, and the Warrant shall then remain exercisable for a period of at
least 90 calendar days from the date the Company delivers to the Holder
written notice of the availability of any registrations or exemptions. The
Holder agrees to execute such documents and make such representations,
warranties and agreements as maybe required solely to comply with the
exemptions relied upon by the Company, or any registrations made, for the
issuance of the Warrant Shares.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees that
all Warrant Shares will, upon issuance, be duly authorized and issued,
fully paid, nonassessable, and free from all taxes, liens, and charges with
respect to the issue thereof. The Company further covenants and agrees that
during the period within which the rights represented by this Warrant may
be exercised, the Company will at all times have authorized and reserved
for the purpose of issue or transfer upon exercise of the purchase rights
evidenced by this Warrant a sufficient number of shares of Common Stock to
provide for the exercise of the rights represented by this Warrant.
5. RESTRICTIONS ON ISSUANCE AND TRANSFER OF SHARES. Shares of
Common Stock acquired pursuant to the exercise of this Warrant which are
not registered under the Securities Act of 1933, as amended (the "Act"),
shall be subject to restrictions on transfer and as required by applicable
state and/or federal securities laws. Any unregistered shares acquired by
exercise of this Warrant shall bear a legend referring to the restrictions
and limitations of this Section. The Company may impose stop transfer
instructions to implement such restrictions and limitations.
6. ANTI-DILUTION ADJUSTMENTS. The number of Warrant Shares
purchasable upon the exercise of this Warrant and the Warrant Exercise
Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend or make a
distribution on its Common Stock in shares of its capital stock or
other securities, (ii) subdivide its outstanding shares of Common
Stock into a greater number of shares, or (iii) issue, by
reclassification of its Common Stock, shares of its capital stock or
other securities of the Company (including any such reclassification
in connection with a consolidation or merger in which the Company is
the continuing corporation), the number of Warrant Shares purchasable
upon exercise of this Warrant immediately prior thereto shall be
adjusted so that the Holder shall be entitled to receive the kind and
number of Warrant Shares, shares of its capital stock and other
securities of the Company which such holder would have owned or would
have been entitled to receive immediately after the happening of any
of the events described above, had the Warrant been exercised
immediately prior to the
happening of such event or any record date with respect thereto. Any
adjustment made pursuant to this subsection 6(a) shall become
effective immediately after the effective date of such event.
(b) In case the Company shall issue rights, options, warrants or
convertible securities to holders of its Common Stock, without any
charge to such holders, containing the right to subscribe for or
purchase Common Stock, the number of Warrant Shares thereafter
purchasable upon the exercise of this Warrant shall be determined by
multiplying the number of Warrant shares theretofore purchasable upon
exercise of this Warrant by a fraction, of which the numerator shall
be the number of shares of Common Stock outstanding immediately prior
to the issuance of such rights, options, warrants or convertible
securities plus the number of additional shares of Common Stock
offered for subscription or purchase, and of which the denominator
shall be the number of shares of Common Stock outstanding immediately
prior to the issuance of such rights, options, warrants or convertible
securities. Such adjustment shall be made whenever such rights,
options, warrants or convertible securities are issued, and shall
become effective immediately upon issuance of such rights, options,
warrants or convertible securities. In the event of such adjustment,
corresponding adjustments shall be made to the Warrant Exercise Price.
(c) In case the Company shall distribute to holders of its
Common Stock evidences of its indebtedness or assets (excluding cash
dividends or distributions out of current earnings made in the
ordinary course of business consistent with past practices), then in
each case the number of Warrant shares thereafter purchasable upon the
exercise of this Warrant shall be determined by multiplying the number
of Warrant Shares theretofore purchasable upon exercise of this
Warrant by a fraction, of which the numerator shall be the then Market
Price (as defined below) on the date of such distribution, and of
which the denominator shall be such Market Price on such date minus
the then fair value (determined as provided in subsection 6(e) below)
of the portion of the assets or evidences of indebtedness so
distributed applicable to one share of Common Stock. Such adjustment
shall be made whenever any such distribution is made and shall become
effective on the date of distribution. In the event of any such
adjustment, the number of shares of Common Stock subject to the
Warrant shall also be adjusted and shall be that number determined by
multiplying the number of shares of Common Stock issuable upon
exercise before the adjustment by a fraction, the numerator of which
shall be the Warrant Exercise Price in effect immediately before the
adjustment and the denominator of which shall be the Warrant Exercise
Price as so adjusted.
(d) Whenever the number of Warrant Shares purchasable upon the
exercise of this Warrant is adjusted as herein provided, the Warrant
Exercise Price payable upon exercise of the Warrant shall be adjusted
by multiplying such Warrant Exercise Price immediately prior to such
adjustment by a fraction, the numerator of which shall be the number
of Warrant Shares purchasable upon the exercise of this Warrant
immediately prior to such adjustment, and the denominator of which
shall be the number of Warrant Shares purchasable immediately
thereafter.
(e) In case the Company shall sell or issue shares of Common
Stock, or rights, options, warrants, or convertible or exchangeable
securities containing the right to subscribe for or purchase shares of
Common Stock at a price per share of Common Stock (determined, in the
case of such rights, options, warrants, or convertible or exchangeable
securities, by dividing (X) the total amount receivable by the Company
in consideration of the sale and issuance of such rights, options,
warrants, or convertible or exchangeable securities, plus the total
consideration payable to the Company upon exercise, conversion, or
exchange thereof, by (Y) the total number of shares of Common Stock
covered by such rights, options, warrants, or convertible or
exchangeable securities) that is lower than the Warrant Exercise
Price, then the Warrant Exercise Price shall be adjusted so that it
shall equal the price per share of Common Stock at which such Common
Stock or other securities were sold or issued. Such adjustment shall
be made successively whenever such a sale or issuance occurs. In the
event of any such adjustment, the number of shares of Common Stock
subject to the Warrant shall also be adjusted and shall be that number
determined by multiplying the number of shares of Common Stock
issuable upon exercise before the adjustment by a fraction, the
numerator of which shall be the Warrant Exercise Price in effect
immediately before the adjustment and the denominator of which shall
be the Warrant Exercise Price as so adjusted. For the purposes of
adjustments, the shares of Common Stock which the holder of any such
rights, options, warrants, or convertible or exchangeable securities
shall be entitled to subscribe for or purchase shall be deemed to be
issued and outstanding as of the date of the sale or issuance of the
rights, warrants, or convertible or exchangeable securities and the
consideration received by the Company therefor shall be deemed to be
the consideration received by the Company for such rights, options,
warrants, or convertble or exchangeable securities, plus the
consideration or premiums stated in such rights, options, warrants or
convertible or exchangeable securities to be paid for the shares of
Common Stock covered thereby. In case the Company shall sell or issue
shares of Common Stock or rights, options, warrants, or convertible or
exchangeable securities containing the right
to subscribe for or purchase shares of Common Stock for a
consideration consisting, in whole or in part, of property other than
cash or its equivalent, then in determining the "price per share of
Common Stock" and the "consideration received by the Company," the
Board of Directors of the Company shall determine, in good faith, the
fair value of said property. PROVIDED, that there shall be no
adjustment due to the recoupment by the Company of any number of the
Company's shares of Common Stock from Three R Associates, Inc. ("3R")
or Joseph J. McCann, Jr., an agent of 3R.
(f) Upon any adjustment of the Warrant Exercise Price and the
number of Warrant Shares subject to this Warrant, then and in each
such case, the Company shall give written notice thereof, by
first-class mail, postage prepaid, addressed to the Holder as shown on
the books of the Company, which notice shall state the Warrant
Exercise Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares of Common Stock purchasable
at such price upon the exercise of this Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which
such calculation is based.
Whenever the Company's Board of Directors determines the fair market
value as stated in Section 6(e) above or Section 10 below and the Holder
disagrees, the Holder may, within 60 days of receipt of such notice of
determination, require the Company to deliver a certificate of a firm of
independent public accountants of recognized standing selected by the Board
of Directors (which may be the regular auditors of the Company) recomputing
the Exercise Price and the number of Warrant Shares after the adjustment or
the effect of the modification and a brief statement of the firm's manner
of recomputing the same. Such recomputation shall be binding upon the
Company and the Holder. The cost of obtaining the second certificate shall
be borne by the Company unless the recomputation is the same as or less
favorable to the Holder than the Company's initial computation, in which
case the cost of obtaining the second certificate shall be borne by the
Holder.
7. MERGER, REORGANIZATION OR CONSOLIDATION. In any case in which a
transaction would result in a complete liquidation of the Company or a
merger, reorganization, or consolidation of the Company with any other
unrelated corporation or other entity in which the Company is not the
surviving corporation or the Company becomes a wholly-owned subsidiary of
another unrelated corporation or other entity (all such transactions being
referred to herein as a "Reorganization"), the surviving corporation or
other entity shall be required to assume the Warrant or to issue substitute
warrants in place thereof which substitute warrants shall provide for terms
at least as favorable to the Warrantholders as contained in this Warrant
and shall provide the Warrantholder the right to acquire the kind and
amount of shares and other securities and property which the Warrantholder
would have owned or been entitled to receive had the Warrants been
exercised immediately prior to such Reorganization.
8. NO VOTING RIGHTS. This Warrant shall not entitle the Holder to
any voting rights or other rights as a stockholder of the Company.
9. NOTICE OF TRANSFER OF WARRANT OR RESALE OF THE WARRANT SHARES.
(a) The Holder, by acceptance hereof, agrees to give written
notice to the Company before transferring this Warrant or transferring any
Warrant Shares of such Holder's intention to do so, describing briefly the
manner of any proposed transfer. Promptly upon receiving such written
notice, the Company shall present copies thereof to the Company's counsel
and to counsel to the original purchaser of this Warrant. If in the opinion
of each such counsel the proposed transfer may be effected without
registration or qualification (under any federal or state securities laws),
the Company, as promptly as practicable, shall notify the Holder of such
opinion, whereupon the Holder shall be entitled to transfer this Warrant or
to dispose of Warrant Shares received upon the previous exercise of this
Warrant, all in accordance with the terms of the notice delivered by the
Holder to the Company; provided that an appropriate legend may be endorsed
on the Warrant or the certificates for such Warrant Shares respecting
restrictions upon transfer thereof necessary or advisable in the opinion of
counsel and satisfactory to the Company to prevent further transfers which
would be in violation of Section 5 of the Securities Act of 1933, as
amended (the "Act"), and applicable state securities laws; and provided
further that the prospective transferee or purchaser shall execute such
documents and make such representations, warranties, and agreements as may
be reasonably required solely to comply with the exemptions relied upon by
the Company or the Holder for the transfer or disposition of the Warrant or
Warrant Shares.
(b) If in the opinion of counsel referred to in this Section 9,
the proposed transfer or disposition of this Warrant or such Warrant Shares
described in the written notice given pursuant to this Section 9 may not be
effected without registration or qualification of this Warrant or such
Warrant Shares, the Company shall promptly give written notice thereof to
the Holder.
10. Fractional Shares. Fractional shares shall not be issued upon
the exercise of this Warrant, but in any case where the Holder would,
except for the provisions of this Section, be entitled under the terms
hereof to receive a fractional share, the Company shall, upon the exercise
of this Warrant for the largest number of whole shares then called for, pay
a sum in cash equal to the sum of (a) the excess, if any, of the Market
Price of such fractional share over the proportional part of the Warrant
Exercise Price represented by such fractional share, plus (b) the
proportional part of the Warrant Exercise Price represented by such
fractional share. For purposes of this Section, the term "Market Price"
with respect to shares of Common Stock of any class or series means the
average of the last reported sale prices or, if none, the average of the
last reported closing bid and asked prices on any national securities
exchange, the Nasdaq National Market, Nasdaq SmallCap Market, or NASD OTC
Bulletin Board over the five (5) trading days immediately preceding the
determination date. If the Company's Common Stock is not listed on a
national securities exchange or quoted on Nasdaq or the OTC Bulletin Board,
the Market Price shall be the average of the last reported closing bid and
asked prices as reported in the "pink sheets" or other standard compilation
of quotations by market makers in the over-the-counter market over the five
consecutive trading days immediately prior to the determination date. In
the event that no quotations are available, the "Market Price" shall be the
fair market value of a share of Common Stock as determined in good faith by
the Board of Directors of the Company.
11. RIGHT TO CONVERT WARRANT INTO COMMON STOCK; NET ISSUANCE. In
addition to any other methods of payment set forth in Section 1(a) above
and in lieu of any cash payment required thereunder, unless otherwise
prohibited by law, the Holder shall have the right at any time, when
exercisable, and from time to time to exercise this Warrant in full or in
part (i) by receiving from the Company the number of Warrant Shares equal
to the number of Warrant shares otherwise issuable upon such exercise less
the number of Warrant Shares having an aggregate value on the date of
exercise equal to the Warrant Exercise Price multiplied by the number of
Warrant Shares for which this Warrant is being exercised. For purposes
hereof, the "value" of a share of Common Stock on a given date shall equal
to the Market Price on such date as defined in Section 10 of this
Agreement.
12. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Holder of this Warrant as follows:
(a) This Warrant has been duly authorized and executed by the
Company and is a valid and binding obligation of the Company enforceable in
accordance with its terms, subject to laws of general application relating
to bankruptcy, insolvency and the relief of debtors and the rules of law or
principles at equity governing specific performance, injunctive relief and
other equitable remedies;
(b) The Warrant Shares have been duly authorized and reserved
for issuance by the Company and, when issued in accordance with the terms
hereof, will be validly issued, fully paid and nonassessable; and
(c) The execution and delivery of this Warrant are not, and the
issuance of the Warrant Shares upon exercise of this Warrant in accordance
with the terms hereof will not be, inconsistent with the articles of
incorporation, by-laws or other organizational documents of the Company, do
not and will not contravene, in any material respect, any governmental rule
or regulation, judgment or order applicable to the Company, and do not and
will not conflict with or contravene any provision of, or constitute a
default under, any indenture, mortgage, contract or other instrument of
which the Company is a party or by which it is bound or require the consent
or approval of, the giving of notice to, the registration or filing with or
the taking of any action in respect of or by, any Federal, state or local
government authority or agency or
other person, except for the filing of notices pursuant to federal and
state securities laws, which filings will be effected by the time required
thereby.
13. NOTICES. Notices and other communications provided for herein
shall be in writing and may be given by mail, courier, confirmed telex or
facsimile transmission and shall, unless otherwise expressly required, be
deemed given when received or when delivery thereof is refused. In the
case of Holder, such notices and communications shall be addressed to its
address as shown on the books maintained by the Company unless Holder shall
notify the Company that notices and communications should be sent to a
different address (or telex or facsimile number) in which case such notices
and communications shall be sent to the address (or telex or facsimile
number) specified by Holder.
14. GOVERNING LAW. This Warrant shall be governed by and construed
in accordance with the laws of the State of Nevada.
15. GENERAL PROVISIONS.
(a) This Agreement contains the entire understanding
between the parties with respect to the subject matter hereof, and
supersedes any and all prior written or oral agreements between the parties
with respect to the subject matter hereof. There are no representations,
agreements, arrangements, or understandings, either written or oral,
between or among the parties with respect to the subject matter hereof
which are not set forth in this Agreement.
(b) Each party to this Agreement agrees to perform such
further acts and to execute and deliver such other and additional documents
as may be reasonably necessary to carry out the provisions of this
Agreement.
(c) If any term, provision, covenant, or condition of this
Agreement is held by a court of competent jurisdiction to be invalid,
illegal, or unenforceable for any reason, such invalidity, illegality, or
unenforceability shall not affect any of the other terms, provisions,
covenants, or conditions of this Agreement, each of which shall be binding
and enforceable.
(d) This Agreement may not be modified, extended, renewed
or substituted without an amendment or other agreement in writing signed by
the parties to this Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer as the date first specified above.
AMERIMMUNE PHARMACEUTICALS, INC.
By:_______________________________________
Name: OB Parrish
Title: Chairman of the Board
ATTEST:
By:________________________________________
Name: Pamela M. Kapustay
Title: Vice President of Operations
AMERIMMUNE PHARMACEUTICALS, INC.
WARRANT EXERCISE NOTICE
(TO BE SIGNED ONLY UPON EXERCISE OF WARRANT)
The undersigned Holder of the foregoing Warrant hereby irrevocably
elects to exercise the right, represented by such Warrant, to purchase
__________ shares of the Common Stock, _____ par value, of AMERIMMUNE
PHARMACEUTICALS, INC. and tenders herewith payment in accordance with
Section 1 of said Warrant as follows:
______ shares for CASH: $ _______________________
______ shares for CASHLESS EXERCISE (pursuant to Section 11
of theWarrant)
Please deliver the stock certificate to the address set forth below.
In addition, if the number of shares being purchased pursuant to this
exercise is less than the all of the shares purchasable under this Warrant,
please return to such address either (1) the Warrant marked to reflect the
remaining balance of shares purchasable thereunder or (2) a newly issued
Warrant in the name of the undersigned for such remaining balance of shares
purchasable thereunder.
Dated: ____________________________
Name of Warrant Holder: _________________________________________________
Tax Identification No. or
Social Security No. of Warrant Holder: __________________________________
_________________________________________
(Signature)
Title:
NOTE: THE ABOVE SIGNATURE SHOULD CORRESPOND EXACTLY WITH THE NAME OF THE
WARRANT HOLDER AS IT APPEARS ON THE FIRST PAGE OF THE WARRANT OR ON A DULY
EXECUTED WARRANT ASSIGNMENT.
AMERIMMUNE PHARMACEUTICALS, INC.
WARRANT ASSIGNMENT
(TO BE SIGNED ONLY UPON TRANSFER OF WARRANT)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________________________________________, the
assignee, whose address is ______________________________________________,
and whose tax identification or social security number is
_______________________,the right represented by the foregoing Warrant to
purchase ___________________shares of the Common Stock of AMERIMMUNE
PHARMACEUTICALS, INC., to which the foregoing Warrant relates and appoints
___________________ attorney to transfer said right on the books of
Amerimmune Pharmaceuticals, Inc., with full power of substitution in the
premises. If the number of shares assigned is less than all of the shares
purchasable under the Warrant, anew Warrant will be issued in the name of
the undersigned for the remaining balance of the shares purchasable
thereunder.
Dated: ______________________________
Name of Warrant Holder/Assignor: _________________________________________
(Please print)
________________________________________
(Signature)
Title:
Address of Warrant Holder/Assignor: ______________________________________
______________________________________
______________________________________
Tax Identification No. or Social Security No. of
Warrant Holder/Assignor: _________________________________________________
NOTE: THE ABOVE SIGNATURE SHOULD CORRESPOND EXACTLY WITH THE NAME OF THE
WARRANT HOLDER AS IT APPEARS ON THE FIRST PAGE OF THE WARRANT OR ON A
DULY EXECUTED ASSIGNMENT FORM.
WARRANT ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto MAYA, LLC, a Nevada limited liability company whose address
is 2325 Renaissance Drive, Las Vegas, Nevada 89119, and whose tax
identification number is 88-0333538, all of the undersigned's rights in and
to and obligations under the warrant (the "Warrant") represented by that
certain Warrant Agreement, dated November 15, 2001 to purchase 6,380,357
shares of the Common Stock of AMERIMMUNE PHARMACEUTICALS, INC., a Colorado
corporation (the "Company"), and appoints the Company's Chairman or Chief
Financial Officer, or either of them acting individually, as attorney to
transfer said right on the books of Company with full power of substitution
in the premises.
The signature of Maya, LLC set forth below constitutes its agreement
to be bound by the terms and conditions of the Warrant as the Holder
thereof. The transfer to Maya, LLC, an entity owned or controlled by the
undersigned, has been made as a contribution of capital by the undersigned
and for no other consideration.
Dated: _________________________________
Name of Warrant Holder/Assignor: REX H. LEWIS
------------
(Please print)
_____________________________________
(Signature)
Address of Warrant Holder/Assignor: 2325 Renaissance Drive
Las Vegas, Nevada 89119
AGREED TO AND ACCEPTED AS OF
__________________________, 2001:
MAYA, LLC, a Nevada limited liability company
By:_________________________________________
Name: Rex H. Lewis
Title: Manager
ACKNOWLEDGMENT OF ASSIGNMENT
Amerimmune Pharmaceuticals, Inc., a Colorado corporation (the
"Company") hereby acknowledges receipt of the attached Warrant Assignment
and acknowledges and agrees that (i) such Warrant Assignment satisfies the
notice provisions of Section 9 of the Warrant (as defined in the attached
Warrant Assignment), and (ii) due to the nature of the assignment (e.g. a
transfer to an entity owned or controlled by the transferor), the
requirement of an opinion of Company counsel regarding such assignment is
hereby waived.
AMERIMMUNE PHARMACEUTICALS, INC., a
Colorado corporation
By:_______________________________________
O.B. Parrish, Chairman