Exhibit 10.30
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
ANY APPLICABLE STATE SECURITIES LAWS, BUT HAVE BEEN ACQUIRED FOR
THE PRIVATE INVESTMENT OF THE HOLDER HEREOF AND MAY NOT BE
OFFERED, SOLD OR TRANSFERRED UNTIL (A) A REGISTRATION STATEMENT
UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES LAWS SHALL HAVE
BECOME EFFECTIVE WITH REGARD THERETO, OR (B) IN THE OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY REGISTRATION UNDER THE ACT OR
SUCH APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED IN CONNECTION WITH SUCH PROPOSED
OFFER, SALE OR TRANSFER.
This Common Stock Purchase Warrant is issued this 13th day of May,
1998, by AyurCore, Inc., a Delaware corporation (the "Company"), to Fred Kassner
("Holder").
W I T N E S S E T H:
1. Issuance of Warrant; Term. For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company hereby grants to Holder, subject to the provisions hereinafter set
forth, the right to purchase 125,000 shares of the Company's Common Stock, $.001
par value per share (the "Common Stock"), (this "Warrant"). The shares of Common
Stock issuable upon exercise of this Warrant are hereinafter referred to as the
"Shares". This Warrant shall be exercisable at any time after the date hereof
and on or before 5:00 p.m. on the 31st day of May, 2000. The number of Shares
issuable upon exercise of this Warrant shall be subject to adjustment as
hereinafter set forth.
2. Exercise Price. The exercise price per share for which all
or any of the Shares may be purchased pursuant to the terms of this Warrant
shall be $7.80 or, in the event the Company shall effect an initial public
offering during the term of this Warrant, 130% of the price to the public in
such initial public offering, subject to adjustment as hereinafter set forth
(hereinafter referred to as the "Exercise Price").
3. Exercise.
(a) This Warrant may be exercised by the Holder (but only on
the conditions hereinafter set forth) in whole or in part, upon delivery of
written notice to the Company, specifying the number of Shares which the Holder
has elected to purchase, at the following address: 1737 N. First Street, Suite
290, San Jose, California 95112, Attention: Chief Executive Officer, or such
other address as the Company shall designate in written notice to the Holder
hereof, together with this Warrant and payment (in the manner described in
Section 3(b) below) for the aggregate Exercise Price of the Shares so purchased.
Upon exercise of this Warrant as aforesaid, the Company shall as promptly as
practicable execute and deliver to the Holder a certificate or certificates for
the total number of whole Shares for which this Warrant is being exercised in as
are requested by such Holder. If this Warrant shall be exercised with respect to
less than all of the
Shares, the Holder shall be entitled to receive a new Warrant covering the
number of Shares in respect of which this Warrant shall not have been exercised,
which new Warrant shall in all other respects be identical to this Warrant.
(b) Payment for the Shares to be purchased upon exercise of
this Warrant shall be made by the delivery of a certified or cashier's check
payable to the Company for the aggregate Exercise Price of the Shares to be
purchased.
(c) If on any exercise of this Warrant the Holder would be
entitled to acquire a fraction of a share of Common Stock, in lieu of such
fraction of a share, the Holder of this Warrant otherwise entitled to a fraction
of such share of Common Stock shall receive, upon surrender to the Company of
the Warrant held by such Holder, a cash amount for such fraction of a share
equal to the product obtained by multiplying (I) such fraction of a share of
Common Stock, by (ii) the amount obtained by subtracting the Exercise Price from
the fair market value of a share of Common Stock as determined by the Board of
Directors of the Company.
4. Covenants and Conditions. The above provisions are subject
to the following:
(a) Neither this Warrant nor the Shares have been registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws ("Blue Sky Laws"). This Warrant has been acquired by Holder for
investment purposes and not with a view to distribution or resale and may not be
made subject to a security interest, pledged, hypothecated, sold or otherwise
transferred without an effective registration statement for this Warrant under
the Act and such applicable Blue Sky Laws or an opinion of counsel reasonably
satisfactory to the Company and its counsel that registration is not required
under the Act and under any applicable Blue Sky Laws. Transfer of the Shares
issued upon the exercise of this Warrant shall be restricted in the same manner
and to the same extent as this Warrant, and the certificates representing such
Shares shall bear substantially the following legend:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
ANY APPLICABLE STATE SECURITIES LAWS, BUT HAVE BEEN ACQUIRED FOR THE
PRIVATE INVESTMENT OF THE HOLDER HEREOF AND MAY NOT BE OFFERED, SOLD OR
TRANSFERRED UNTIL (A) A REGISTRATION STATEMENT UNDER THE ACT OR SUCH
APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH
REGARD THERETO OR (B) IN THE OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY REGISTRATION UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES
LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED OFFER, SALE OR
TRANSFER.
Other legends as required by applicable federal and state laws may be placed on
this Warrant and such certificates. The Holder and the Company agree to execute
such other documents and instruments as counsel for the Company reasonably deems
necessary to effect the compliance of the issuance of
-2-
this Warrant and any Shares issued upon exercise hereof with applicable federal
and state securities laws. The Holder agrees that the Company may decline to
permit a transfer of this Warrant if such transfer would result in this Warrant
being held by more than 35 persons, exclusive of "accredited" investors as
defined under Regulation D promulgated under the Act, or if such proposed
transferee does not meet then applicable qualifications for investors in
securities offerings exempt from registration. Furthermore, the unexercised
Warrant may be transferred in full (subject to the provisions hereof) but not in
part.
(b) The Company covenants and agrees that all Shares which may
be issued upon exercise of this Warrant shall, upon issuance and payment
therefor in accordance with the terms hereof, be legally and validly issued and
outstanding, fully paid and nonassessable. The Company shall at all times
reserve and keep available for issuance upon the exercise of this Warrant such
number of authorized but unissued shares of Common Stock as will be sufficient
to permit the exercise in full of this Warrant and all other outstanding
Warrants.
5. Warrant Holder Not Shareholder. This Warrant does not
confer upon the Holder hereof, as such, any right or privilege whatsoever as a
shareholder of the Company until the Holder shall have delivered the notice and
tendered payment as required under the provisions of Sections 2 and 3 hereof.
6. Anti-Dilution. Wherever this Warrant specifies a number of
Shares or an Exercise Price per share, the specified number of Shares or the
specified Exercise Price per share shall be changed to reflect adjustments
required by this section. If prior to the expiration or exercise of this Warrant
there shall be any change in the capital structure of the Company, the Shares
covered by this Warrant and the Exercise Price payable therefor shall be
adjusted as follows:
(a) If a stock dividend is declared on the Common Stock, there
shall be added to the shares of Common Stock issuable under this Warrant the
number of shares of Common Stock ("total additional shares") which would have
been issuable to the Holder had the Holder been the holder of record only of the
number of shares of Common Stock covered by this Warrant but not exercised at
the stock dividend record date. Such additional shares resulting from such stock
dividend shall be delivered without additional cost, upon the exercise of this
Warrant, and, in the event that less than all of the Shares covered by this
Warrant are purchased, the number of additional shares to be delivered shall be
the same fraction of the total additional shares as the number of shares
purchased bears to the total number of shares of Common Stock covered by this
Warrant. Any distribution to the holders of the Common Stock of the Company,
other than a distribution of cash as a dividend out of surplus or net profits or
a distribution by way of granting of rights to subscribe for shares of capital
stock of the Company, shall be treated as a stock dividend.
(b) If an increase shall be effected in the number of
outstanding shares of Common Stock by reason of a subdivision of such shares,
the number of shares which may thereafter be purchased under this Warrant shall
be increased by the number of shares that would have been received by the Holder
on such subdivision had he been the holder of record only of the number of
-3-
shares of Common Stock covered by this Warrant at the effective date of the
subdivision. In such event, the Exercise Price per share shall be decreased by
multiplying the Exercise Price theretofore in effect by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately prior to such subdivision and the denominator of which is the number
of shares of Common Stock outstanding immediately after the subdivision.
(c) If a decrease shall be effected in the number of
outstanding shares of Common Stock by reason of a combination or reverse stock
split, the number of shares which may thereafter be purchased under this Warrant
shall be changed to the number of shares which would have been held by the
Holder after said combination or reverse stock split had he been the holder only
of the number of shares of Common Stock covered by this Warrant at the effective
date of the combination or reverse stock split. In such event, the Exercise
Price per share shall be increased by multiplying the Exercise Price theretofore
in effect by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately prior to the combination or reverse stock
split and the denominator of which is the number of shares of Common Stock
outstanding immediately after the combination or reverse stock split.
(d) If there is any capital reorganization or reclassification
of the capital stock of the Company, or any consolidation or merger of the
Company with any other corporation or corporations, or any sale or distribution
of all or substantially all of the Company's property and assets, adequate
provision shall be made by the Company so that there shall remain and be
substituted under this Warrant the stock, securities, or assets that would have
been issuable or payable in respect of or in exchange for the shares of Common
Stock then remaining under this Warrant and not theretofore purchased and issued
hereunder, as if the Holder had been the owner of such shares on the applicable
record date. Until the expiration or exercise of this Warrant, any shares of
stock so substituted under this Warrant shall be subject to adjustment as
provided in this Section 6 in the same manner and to the same effect as the
shares of Common Stock covered by this Warrant.
7. Notices. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed to have been duly given if delivered personally, given by
prepaid telegram or mailed first class, postage prepaid, registered or certified
mail as follows:
If to the Company: AyurCore, Inc.
1737 N. First Street
Suite 290
San Jose, California 95112
Attention: President
-4-
If to Holder: Fred Kassner
c/o Liberty Travel
59 Spring Street
Ramsey, New Jersey 07446
8. Governing Law. This Warrant shall be construed and enforced
in accordance with the laws of the state of New York.
9. Successors, Assigns. This Warrant shall be binding upon and
inure to the benefit of any successor or successors of the Company, and shall
inure to the benefit of and shall be enforceable by the Holder and the Holder's
legal representatives, successors, heirs and permitted assigns.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed and delivered by its duly authorized officer as of the date first above
written.
AYURCORE, INC.
By: /s/ Deepa Chitre
---------------------------------
Deepa Chitre
Chief Executive Officer
-5-
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
ANY APPLICABLE STATE SECURITIES LAWS, BUT HAVE BEEN ACQUIRED FOR
THE PRIVATE INVESTMENT OF THE HOLDER HEREOF AND MAY NOT BE
OFFERED, SOLD OR TRANSFERRED UNTIL (A) A REGISTRATION STATEMENT
UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES LAWS SHALL HAVE
BECOME EFFECTIVE WITH REGARD THERETO, OR (B) IN THE OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY REGISTRATION UNDER THE ACT OR
SUCH APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED IN CONNECTION WITH SUCH PROPOSED
OFFER, SALE OR TRANSFER.
This Common Stock Purchase Warrant is issued this 13th day of May,
1998, by AyurCore, Inc., a Delaware corporation (the "Company"), to Michael
Splinter and Patricia Roboostoff ("Holder").
W I T N E S S E T H:
1. Issuance of Warrant; Term. For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company hereby grants to Holder, subject to the provisions hereinafter set
forth, the right to purchase 50,000 shares of the Company's Common Stock, $.001
par value per share (the "Common Stock"), (this "Warrant"). The shares of Common
Stock issuable upon exercise of this Warrant are hereinafter referred to as the
"Shares". This Warrant shall be exercisable at any time after the date hereof
and on or before 5:00 p.m. on the 12th day of August, 1999. The number of Shares
issuable upon exercise of this Warrant shall be subject to adjustment as
hereinafter set forth.
2. Exercise Price. The exercise price per share for which all
or any of the Shares may be purchased pursuant to the terms of this Warrant
shall be $7.80 or, in the event the Company shall effect an initial public
offering during the term of this Warrant, 130% of the price to the public in
such initial public offering, subject to adjustment as hereinafter set forth
(hereinafter referred to as the "Exercise Price").
3. Exercise.
(a) This Warrant may be exercised by the Holder (but only on
the conditions hereinafter set forth) in whole or in part, upon delivery of
written notice to the Company, specifying the number of Shares which the Holder
has elected to purchase, at the following address: 1737 N. First Street, Suite
290, San Jose, California 95112, Attention: Chief Executive Officer, or such
other address as the Company shall designate in written notice to the Holder
hereof, together with this Warrant and payment (in the manner described in
Section 3(b) below) for the aggregate Exercise Price of the Shares so purchased.
Upon exercise of this Warrant as aforesaid, the Company shall as promptly as
practicable execute and deliver to the Holder a certificate or certificates for
the total number of whole Shares for which this Warrant is being exercised in as
are requested by such Holder. If this Warrant shall be exercised with respect to
less than all of the
Shares, the Holder shall be entitled to receive a new Warrant covering the
number of Shares in respect of which this Warrant shall not have been exercised,
which new Warrant shall in all other respects be identical to this Warrant.
(b) Payment for the Shares to be purchased upon exercise of
this Warrant shall be made by the delivery of a certified or cashier's check
payable to the Company for the aggregate Exercise Price of the Shares to be
purchased.
(c) If on any exercise of this Warrant the Holder would be
entitled to acquire a fraction of a share of Common Stock, in lieu of such
fraction of a share, the Holder of this Warrant otherwise entitled to a fraction
of such share of Common Stock shall receive, upon surrender to the Company of
the Warrant held by such Holder, a cash amount for such fraction of a share
equal to the product obtained by multiplying (I) such fraction of a share of
Common Stock, by (ii) the amount obtained by subtracting the Exercise Price from
the fair market value of a share of Common Stock as determined by the Board of
Directors of the Company.
4. Covenants and Conditions. The above provisions are subject
to the following:
(a) Neither this Warrant nor the Shares have been registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws ("Blue Sky Laws"). This Warrant has been acquired by Holder for
investment purposes and not with a view to distribution or resale and may not be
made subject to a security interest, pledged, hypothecated, sold or otherwise
transferred without an effective registration statement for this Warrant under
the Act and such applicable Blue Sky Laws or an opinion of counsel reasonably
satisfactory to the Company and its counsel that registration is not required
under the Act and under any applicable Blue Sky Laws. Transfer of the Shares
issued upon the exercise of this Warrant shall be restricted in the same manner
and to the same extent as this Warrant, and the certificates representing such
Shares shall bear substantially the following legend:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
ANY APPLICABLE STATE SECURITIES LAWS, BUT HAVE BEEN ACQUIRED FOR THE
PRIVATE INVESTMENT OF THE HOLDER HEREOF AND MAY NOT BE OFFERED, SOLD OR
TRANSFERRED UNTIL (A) A REGISTRATION STATEMENT UNDER THE ACT OR SUCH
APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH
REGARD THERETO OR (B) IN THE OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY REGISTRATION UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES
LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED OFFER, SALE OR
TRANSFER.
Other legends as required by applicable federal and state laws may be placed on
this Warrant and such certificates. The Holder and the Company agree to execute
such other documents and instruments as counsel for the Company reasonably deems
necessary to effect the compliance of the issuance of
-2-
this Warrant and any Shares issued upon exercise hereof with applicable federal
and state securities laws. The Holder agrees that the Company may decline to
permit a transfer of this Warrant if such transfer would result in this Warrant
being held by more than 35 persons, exclusive of "accredited" investors as
defined under Regulation D promulgated under the Act, or if such proposed
transferee does not meet then applicable qualifications for investors in
securities offerings exempt from registration. Furthermore, the unexercised
Warrant may be transferred in full (subject to the provisions hereof) but not in
part.
(b) The Company covenants and agrees that all Shares which may
be issued upon exercise of this Warrant shall, upon issuance and payment
therefor in accordance with the terms hereof, be legally and validly issued and
outstanding, fully paid and nonassessable. The Company shall at all times
reserve and keep available for issuance upon the exercise of this Warrant such
number of authorized but unissued shares of Common Stock as will be sufficient
to permit the exercise in full of this Warrant and all other outstanding
Warrants.
5. Warrant Holder Not Shareholder. This Warrant does not
confer upon the Holder hereof, as such, any right or privilege whatsoever as a
shareholder of the Company until the Holder shall have delivered the notice and
tendered payment as required under the provisions of Sections 2 and 3 hereof.
6. Anti-Dilution. Wherever this Warrant specifies a number of
Shares or an Exercise Price per share, the specified number of Shares or the
specified Exercise Price per share shall be changed to reflect adjustments
required by this section. If prior to the expiration or exercise of this Warrant
there shall be any change in the capital structure of the Company, the Shares
covered by this Warrant and the Exercise Price payable therefor shall be
adjusted as follows:
(a) If a stock dividend is declared on the Common Stock, there
shall be added to the shares of Common Stock issuable under this Warrant the
number of shares of Common Stock ("total additional shares") which would have
been issuable to the Holder had the Holder been the holder of record only of the
number of shares of Common Stock covered by this Warrant but not exercised at
the stock dividend record date. Such additional shares resulting from such stock
dividend shall be delivered without additional cost, upon the exercise of this
Warrant, and, in the event that less than all of the Shares covered by this
Warrant are purchased, the number of additional shares to be delivered shall be
the same fraction of the total additional shares as the number of shares
purchased bears to the total number of shares of Common Stock covered by this
Warrant. Any distribution to the holders of the Common Stock of the Company,
other than a distribution of cash as a dividend out of surplus or net profits or
a distribution by way of granting of rights to subscribe for shares of capital
stock of the Company, shall be treated as a stock dividend.
(b) If an increase shall be effected in the number of
outstanding shares of Common Stock by reason of a subdivision of such shares,
the number of shares which may thereafter be purchased under this Warrant shall
be increased by the number of shares that would have been received by the Holder
on such subdivision had he been the holder of record only of the number of
-3-
shares of Common Stock covered by this Warrant at the effective date of the
subdivision. In such event, the Exercise Price per share shall be decreased by
multiplying the Exercise Price theretofore in effect by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately prior to such subdivision and the denominator of which is the number
of shares of Common Stock outstanding immediately after the subdivision.
(c) If a decrease shall be effected in the number of
outstanding shares of Common Stock by reason of a combination or reverse stock
split, the number of shares which may thereafter be purchased under this Warrant
shall be changed to the number of shares which would have been held by the
Holder after said combination or reverse stock split had he been the holder only
of the number of shares of Common Stock covered by this Warrant at the effective
date of the combination or reverse stock split. In such event, the Exercise
Price per share shall be increased by multiplying the Exercise Price theretofore
in effect by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately prior to the combination or reverse stock
split and the denominator of which is the number of shares of Common Stock
outstanding immediately after the combination or reverse stock split.
(d) If there is any capital reorganization or reclassification
of the capital stock of the Company, or any consolidation or merger of the
Company with any other corporation or corporations, or any sale or distribution
of all or substantially all of the Company's property and assets, adequate
provision shall be made by the Company so that there shall remain and be
substituted under this Warrant the stock, securities, or assets that would have
been issuable or payable in respect of or in exchange for the shares of Common
Stock then remaining under this Warrant and not theretofore purchased and issued
hereunder, as if the Holder had been the owner of such shares on the applicable
record date. Until the expiration or exercise of this Warrant, any shares of
stock so substituted under this Warrant shall be subject to adjustment as
provided in this Section 6 in the same manner and to the same effect as the
shares of Common Stock covered by this Warrant.
7. Notices. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed to have been duly given if delivered personally, given by
prepaid telegram or mailed first class, postage prepaid, registered or certified
mail as follows:
If to the Company: AyurCore, Inc.
1737 N. First Street
Suite 290
San Jose, California 95112
Attention: President
-4-
If to Holder: Michael Splinter and Patricia Roboostoff
8160 Kinsbrook Lane
Granite Bay, California 95746
8. Governing Law. This Warrant shall be construed and
enforced in accordance with the laws of the State of New York.
9. Successors, Assigns. This Warrant shall be binding upon
and inure to the benefit of any successor or successors of the Company, and
shall inure to the benefit of and shall be enforceable by the Holder and the
Holder's legal representatives, successors, heirs and permitted assigns.
IN WITNESS WHEREOF, the Company has caused this Warrant to
be executed and delivered by its duly authorized officer as of the date first
above written.
AYURCORE, INC.
By: Deepa Chitre
----------------------------
Deppa Chitre
Chief Executive Officer
-5-
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
ANY APPLICABLE STATE SECURITIES LAWS, BUT HAVE BEEN ACQUIRED FOR
THE PRIVATE INVESTMENT OF THE HOLDER HEREOF AND MAY NOT BE
OFFERED, SOLD OR TRANSFERRED UNTIL (A) A REGISTRATION STATEMENT
UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES LAWS SHALL HAVE
BECOME EFFECTIVE WITH REGARD THERETO, OR (B) IN THE OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY REGISTRATION UNDER THE ACT OR
SUCH APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED IN CONNECTION WITH SUCH PROPOSED
OFFER, SALE OR TRANSFER.
This Common Stock Purchase Warrant is issued this 13th day of May,
1998, by AyurCore, Inc., a Delaware corporation (the "Company"), to Michael
Splinter and Patricia Roboostoff ("Holder").
W I T N E S S E T H:
1. Issuance of Warrant; Term. For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company hereby grants to Holder, subject to the provisions hereinafter set
forth, the right to purchase 50,000 shares of the Company's Common Stock, $.001
par value per share (the "Common Stock"), (this "Warrant"). The shares of Common
Stock issuable upon exercise of this Warrant are hereinafter referred to as the
"Shares". This Warrant shall be exercisable at any time after the date hereof
and on or before 5:00 p.m. on the 31st day of May, 2000. The number of Shares
issuable upon exercise of this Warrant shall be subject to adjustment as
hereinafter set forth.
2. Exercise Price. The exercise price per share for which all
or any of the Shares may be purchased pursuant to the terms of this Warrant
shall be $7.80 or, in the event the Company shall effect an initial public
offering during the term of this Warrant, 130% of the price to the public in
such initial public offering, subject to adjustment as hereinafter set forth
(hereinafter referred to as the "Exercise Price").
3. Exercise.
(a) This Warrant may be exercised by the Holder (but only on
the conditions hereinafter set forth) in whole or in part, upon delivery of
written notice to the Company, specifying the number of Shares which the Holder
has elected to purchase, at the following address: 1737 N. First Street, Suite
290, San Jose, California 95112, Attention: Chief Executive Officer, or such
other address as the Company shall designate in written notice to the Holder
hereof, together with this Warrant and payment (in the manner described in
Section 3(b) below) for the aggregate Exercise Price of the Shares so purchased.
Upon exercise of this Warrant as aforesaid, the Company shall as promptly as
practicable execute and deliver to the Holder a certificate or certificates for
the total number of whole Shares for which this Warrant is being exercised in as
are requested by such Holder. If this Warrant shall be exercised with respect to
less than all of the
Shares, the Holder shall be entitled to receive a new Warrant covering the
number of Shares in respect of which this Warrant shall not have been exercised,
which new Warrant shall in all other respects be identical to this Warrant.
(b) Payment for the Shares to be purchased upon exercise of
this Warrant shall be made by the delivery of a certified or cashier's check
payable to the Company for the aggregate Exercise Price of the Shares to be
purchased.
(c) If on any exercise of this Warrant the Holder would be
entitled to acquire a fraction of a share of Common Stock, in lieu of such
fraction of a share, the Holder of this Warrant otherwise entitled to a fraction
of such share of Common Stock shall receive, upon surrender to the Company of
the Warrant held by such Holder, a cash amount for such fraction of a share
equal to the product obtained by multiplying (I) such fraction of a share of
Common Stock, by (ii) the amount obtained by subtracting the Exercise Price from
the fair market value of a share of Common Stock as determined by the Board of
Directors of the Company.
4. Covenants and Conditions. The above provisions are subject
to the following:
(a) Neither this Warrant nor the Shares have been registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws ("Blue Sky Laws"). This Warrant has been acquired by Holder for
investment purposes and not with a view to distribution or resale and may not be
made subject to a security interest, pledged, hypothecated, sold or otherwise
transferred without an effective registration statement for this Warrant under
the Act and such applicable Blue Sky Laws or an opinion of counsel reasonably
satisfactory to the Company and its counsel that registration is not required
under the Act and under any applicable Blue Sky Laws. Transfer of the Shares
issued upon the exercise of this Warrant shall be restricted in the same manner
and to the same extent as this Warrant, and the certificates representing such
Shares shall bear substantially the following legend:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
ANY APPLICABLE STATE SECURITIES LAWS, BUT HAVE BEEN ACQUIRED FOR THE
PRIVATE INVESTMENT OF THE HOLDER HEREOF AND MAY NOT BE OFFERED, SOLD OR
TRANSFERRED UNTIL (A) A REGISTRATION STATEMENT UNDER THE ACT OR SUCH
APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH
REGARD THERETO OR (B) IN THE OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY REGISTRATION UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES
LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED OFFER, SALE OR
TRANSFER.
Other legends as required by applicable federal and state laws may be placed on
this Warrant and such certificates. The Holder and the Company agree to execute
such other documents and instruments as counsel for the Company reasonably deems
necessary to effect the compliance of the issuance of
-2-
this Warrant and any Shares issued upon exercise hereof with applicable federal
and state securities laws. The Holder agrees that the Company may decline to
permit a transfer of this Warrant if such transfer would result in this Warrant
being held by more than 35 persons, exclusive of "accredited" investors as
defined under Regulation D promulgated under the Act, or if such proposed
transferee does not meet then applicable qualifications for investors in
securities offerings exempt from registration. Furthermore, the unexercised
Warrant may be transferred in full (subject to the provisions hereof) but not in
part.
(b) The Company covenants and agrees that all Shares which may
be issued upon exercise of this Warrant shall, upon issuance and payment
therefor in accordance with the terms hereof, be legally and validly issued and
outstanding, fully paid and nonassessable. The Company shall at all times
reserve and keep available for issuance upon the exercise of this Warrant such
number of authorized but unissued shares of Common Stock as will be sufficient
to permit the exercise in full of this Warrant and all other outstanding
Warrants.
5. Warrant Holder Not Shareholder. This Warrant does not
confer upon the Holder hereof, as such, any right or privilege whatsoever as a
shareholder of the Company until the Holder shall have delivered the notice and
tendered payment as required under the provisions of Sections 2 and 3 hereof.
6. Anti-Dilution. Wherever this Warrant specifies a number of
Shares or an Exercise Price per share, the specified number of Shares or the
specified Exercise Price per share shall be changed to reflect adjustments
required by this section. If prior to the expiration or exercise of this Warrant
there shall be any change in the capital structure of the Company, the Shares
covered by this Warrant and the Exercise Price payable therefor shall be
adjusted as follows:
(a) If a stock dividend is declared on the Common Stock, there
shall be added to the shares of Common Stock issuable under this Warrant the
number of shares of Common Stock ("total additional shares") which would have
been issuable to the Holder had the Holder been the holder of record only of the
number of shares of Common Stock covered by this Warrant but not exercised at
the stock dividend record date. Such additional shares resulting from such stock
dividend shall be delivered without additional cost, upon the exercise of this
Warrant, and, in the event that less than all of the Shares covered by this
Warrant are purchased, the number of additional shares to be delivered shall be
the same fraction of the total additional shares as the number of shares
purchased bears to the total number of shares of Common Stock covered by this
Warrant. Any distribution to the holders of the Common Stock of the Company,
other than a distribution of cash as a dividend out of surplus or net profits or
a distribution by way of granting of rights to subscribe for shares of capital
stock of the Company, shall be treated as a stock dividend.
(b) If an increase shall be effected in the number of
outstanding shares of Common Stock by reason of a subdivision of such shares,
the number of shares which may thereafter be purchased under this Warrant shall
be increased by the number of shares that would have been received by the Holder
on such subdivision had he been the holder of record only of the number of
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shares of Common Stock covered by this Warrant at the effective date of the
subdivision. In such event, the Exercise Price per share shall be decreased by
multiplying the Exercise Price theretofore in effect by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately prior to such subdivision and the denominator of which is the number
of shares of Common Stock outstanding immediately after the subdivision.
(c) If a decrease shall be effected in the number of
outstanding shares of Common Stock by reason of a combination or reverse stock
split, the number of shares which may thereafter be purchased under this Warrant
shall be changed to the number of shares which would have been held by the
Holder after said combination or reverse stock split had he been the holder only
of the number of shares of Common Stock covered by this Warrant at the effective
date of the combination or reverse stock split. In such event, the Exercise
Price per share shall be increased by multiplying the Exercise Price theretofore
in effect by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately prior to the combination or reverse stock
split and the denominator of which is the number of shares of Common Stock
outstanding immediately after the combination or reverse stock split.
(d) If there is any capital reorganization or reclassification
of the capital stock of the Company, or any consolidation or merger of the
Company with any other corporation or corporations, or any sale or distribution
of all or substantially all of the Company's property and assets, adequate
provision shall be made by the Company so that there shall remain and be
substituted under this Warrant the stock, securities, or assets that would have
been issuable or payable in respect of or in exchange for the shares of Common
Stock then remaining under this Warrant and not theretofore purchased and issued
hereunder, as if the Holder had been the owner of such shares on the applicable
record date. Until the expiration or exercise of this Warrant, any shares of
stock so substituted under this Warrant shall be subject to adjustment as
provided in this Section 6 in the same manner and to the same effect as the
shares of Common Stock covered by this Warrant.
7. Notices. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed to have been duly given if delivered personally, given by
prepaid telegram or mailed first class, postage prepaid, registered or certified
mail as follows:
If to the Company: AyurCore, Inc.
1737 N. First Street
Suite 290
San Jose, California 95112
Attention: President
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If to Holder: Michael Splinter and Patricia Roboostoff
8160 Kinsbrook Lane
Granite Bay, California 95746
8. Governing Law. This Warrant shall be construed and
enforced in accordance with the laws of the State of New York.
9. Successors, Assigns. This Warrant shall be binding upon
and inure to the benefit of any successor or successors of the Company, and
shall inure to the benefit of and shall be enforceable by the Holder and the
Holder's legal representatives, successors, heirs and permitted assigns.
IN WITNESS WHEREOF, the Company has caused this Warrant to
be executed and delivered by its duly authorized officer as of the date first
above written.
AYURCORE, INC.
By: Deepa Chitre
----------------------------
Deppa Chitre
Chief Executive Officer
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THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
ANY APPLICABLE STATE SECURITIES LAWS, BUT HAVE BEEN ACQUIRED FOR
THE PRIVATE INVESTMENT OF THE HOLDER HEREOF AND MAY NOT BE
OFFERED, SOLD OR TRANSFERRED UNTIL (A) A REGISTRATION STATEMENT
UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES LAWS SHALL HAVE
BECOME EFFECTIVE WITH REGARD THERETO, OR (B) IN THE OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY REGISTRATION UNDER THE ACT OR
SUCH APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED IN CONNECTION WITH SUCH PROPOSED
OFFER, SALE OR TRANSFER.
This Common Stock Purchase Warrant is issued this 13th day of May,
1998, by AyurCore, Inc., a Delaware corporation (the "Company"), to Paul Gupta
("Holder").
W I T N E S S E T H:
1. Issuance of Warrant; Term. For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company hereby grants to Holder, subject to the provisions hereinafter set
forth, the right to purchase 25,000 shares of the Company's Common Stock, $.001
par value per share (the "Common Stock"), (this "Warrant"). The shares of Common
Stock issuable upon exercise of this Warrant are hereinafter referred to as the
"Shares". This Warrant shall be exercisable at any time after the date hereof
and on or before 5:00 p.m. on the 31st day of May, 2000. The number of Shares
issuable upon exercise of this Warrant shall be subject to adjustment as
hereinafter set forth.
2. Exercise Price. The exercise price per share for which all
or any of the Shares may be purchased pursuant to the terms of this Warrant
shall be $7.80 or, in the event the Company shall effect an initial public
offering during the term of this Warrant, 130% of the price to the public in
such initial public offering, subject to adjustment as hereinafter set forth
(hereinafter referred to as the "Exercise Price").
3. Exercise.
(a) This Warrant may be exercised by the Holder (but only on
the conditions hereinafter set forth) in whole or in part, upon delivery of
written notice to the Company, specifying the number of Shares which the Holder
has elected to purchase, at the following address: 1737 N. First Street, Suite
290, San Jose, California 95112, Attention: Chief Executive Officer, or such
other address as the Company shall designate in written notice to the Holder
hereof, together with this Warrant and payment (in the manner described in
Section 3(b) below) for the aggregate Exercise Price of the Shares so purchased.
Upon exercise of this Warrant as aforesaid, the Company shall as promptly as
practicable execute and deliver to the Holder a certificate or certificates for
the total number of whole Shares for which this Warrant is being exercised in as
are requested by such Holder. If this Warrant shall be exercised with respect to
less than all of the
Shares, the Holder shall be entitled to receive a new Warrant covering the
number of Shares in respect of which this Warrant shall not have been exercised,
which new Warrant shall in all other respects be identical to this Warrant.
(b) Payment for the Shares to be purchased upon exercise of
this Warrant shall be made by the delivery of a certified or cashier's check
payable to the Company for the aggregate Exercise Price of the Shares to be
purchased.
(c) If on any exercise of this Warrant the Holder would be
entitled to acquire a fraction of a share of Common Stock, in lieu of such
fraction of a share, the Holder of this Warrant otherwise entitled to a fraction
of such share of Common Stock shall receive, upon surrender to the Company of
the Warrant held by such Holder, a cash amount for such fraction of a share
equal to the product obtained by multiplying (I) such fraction of a share of
Common Stock, by (ii) the amount obtained by subtracting the Exercise Price from
the fair market value of a share of Common Stock as determined by the Board of
Directors of the Company.
4. Covenants and Conditions. The above provisions are subject
to the following:
(a) Neither this Warrant nor the Shares have been registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws ("Blue Sky Laws"). This Warrant has been acquired by Holder for
investment purposes and not with a view to distribution or resale and may not be
made subject to a security interest, pledged, hypothecated, sold or otherwise
transferred without an effective registration statement for this Warrant under
the Act and such applicable Blue Sky Laws or an opinion of counsel reasonably
satisfactory to the Company and its counsel that registration is not required
under the Act and under any applicable Blue Sky Laws. Transfer of the Shares
issued upon the exercise of this Warrant shall be restricted in the same manner
and to the same extent as this Warrant, and the certificates representing such
Shares shall bear substantially the following legend:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
ANY APPLICABLE STATE SECURITIES LAWS, BUT HAVE BEEN ACQUIRED FOR THE
PRIVATE INVESTMENT OF THE HOLDER HEREOF AND MAY NOT BE OFFERED, SOLD OR
TRANSFERRED UNTIL (A) A REGISTRATION STATEMENT UNDER THE ACT OR SUCH
APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH
REGARD THERETO OR (B) IN THE OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY REGISTRATION UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES
LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED OFFER, SALE OR
TRANSFER.
Other legends as required by applicable federal and state laws may be placed on
this Warrant and such certificates. The Holder and the Company agree to execute
such other documents and instruments as counsel for the Company reasonably deems
necessary to effect the compliance of the issuance of
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this Warrant and any Shares issued upon exercise hereof with applicable federal
and state securities laws. The Holder agrees that the Company may decline to
permit a transfer of this Warrant if such transfer would result in this Warrant
being held by more than 35 persons, exclusive of "accredited" investors as
defined under Regulation D promulgated under the Act, or if such proposed
transferee does not meet then applicable qualifications for investors in
securities offerings exempt from registration. Furthermore, the unexercised
Warrant may be transferred in full (subject to the provisions hereof) but not in
part.
(b) The Company covenants and agrees that all Shares which may
be issued upon exercise of this Warrant shall, upon issuance and payment
therefor in accordance with the terms hereof, be legally and validly issued and
outstanding, fully paid and nonassessable. The Company shall at all times
reserve and keep available for issuance upon the exercise of this Warrant such
number of authorized but unissued shares of Common Stock as will be sufficient
to permit the exercise in full of this Warrant and all other outstanding
Warrants.
5. Warrant Holder Not Shareholder. This Warrant does not
confer upon the Holder hereof, as such, any right or privilege whatsoever as a
shareholder of the Company until the Holder shall have delivered the notice and
tendered payment as required under the provisions of Sections 2 and 3 hereof.
6. Anti-Dilution. Wherever this Warrant specifies a number of
Shares or an Exercise Price per share, the specified number of Shares or the
specified Exercise Price per share shall be changed to reflect adjustments
required by this section. If prior to the expiration or exercise of this Warrant
there shall be any change in the capital structure of the Company, the Shares
covered by this Warrant and the Exercise Price payable therefor shall be
adjusted as follows:
(a) If a stock dividend is declared on the Common Stock, there
shall be added to the shares of Common Stock issuable under this Warrant the
number of shares of Common Stock ("total additional shares") which would have
been issuable to the Holder had the Holder been the holder of record only of the
number of shares of Common Stock covered by this Warrant but not exercised at
the stock dividend record date. Such additional shares resulting from such stock
dividend shall be delivered without additional cost, upon the exercise of this
Warrant, and, in the event that less than all of the Shares covered by this
Warrant are purchased, the number of additional shares to be delivered shall be
the same fraction of the total additional shares as the number of shares
purchased bears to the total number of shares of Common Stock covered by this
Warrant. Any distribution to the holders of the Common Stock of the Company,
other than a distribution of cash as a dividend out of surplus or net profits or
a distribution by way of granting of rights to subscribe for shares of capital
stock of the Company, shall be treated as a stock dividend.
(b) If an increase shall be effected in the number of
outstanding shares of Common Stock by reason of a subdivision of such shares,
the number of shares which may thereafter be purchased under this Warrant shall
be increased by the number of shares that would have been received by the Holder
on such subdivision had he been the holder of record only of the number of
-3-
shares of Common Stock covered by this Warrant at the effective date of the
subdivision. In such event, the Exercise Price per share shall be decreased by
multiplying the Exercise Price theretofore in effect by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately prior to such subdivision and the denominator of which is the number
of shares of Common Stock outstanding immediately after the subdivision.
(c) If a decrease shall be effected in the number of
outstanding shares of Common Stock by reason of a combination or reverse stock
split, the number of shares which may thereafter be purchased under this Warrant
shall be changed to the number of shares which would have been held by the
Holder after said combination or reverse stock split had he been the holder only
of the number of shares of Common Stock covered by this Warrant at the effective
date of the combination or reverse stock split. In such event, the Exercise
Price per share shall be increased by multiplying the Exercise Price theretofore
in effect by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately prior to the combination or reverse stock
split and the denominator of which is the number of shares of Common Stock
outstanding immediately after the combination or reverse stock split.
(d) If there is any capital reorganization or reclassification
of the capital stock of the Company, or any consolidation or merger of the
Company with any other corporation or corporations, or any sale or distribution
of all or substantially all of the Company's property and assets, adequate
provision shall be made by the Company so that there shall remain and be
substituted under this Warrant the stock, securities, or assets that would have
been issuable or payable in respect of or in exchange for the shares of Common
Stock then remaining under this Warrant and not theretofore purchased and issued
hereunder, as if the Holder had been the owner of such shares on the applicable
record date. Until the expiration or exercise of this Warrant, any shares of
stock so substituted under this Warrant shall be subject to adjustment as
provided in this Section 6 in the same manner and to the same effect as the
shares of Common Stock covered by this Warrant.
7. Notices. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed to have been duly given if delivered personally, given by
prepaid telegram or mailed first class, postage prepaid, registered or certified
mail as follows:
If to the Company: AyurCore, Inc.
1737 N. First Street
Suite 290
San Jose, California 95112
Attention: President
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If to Holder: Paul Gupta
15000 Blue Gum Court
Saratoga, California 95070
8. Governing Law. This Warrant shall be construed and
enforced in accordance with the laws of the State of New York.
9. Successors, Assigns. This Warrant shall be binding upon
and inure to the benefit of any successor or successors of the Company, and
shall inure to the benefit of and shall be enforceable by the Holder and the
Holder's legal representatives, successors, heirs and permitted assigns.
IN WITNESS WHEREOF, the Company has caused this Warrant to
be executed and delivered by its duly authorized officer as of the date first
above written.
AYURCORE, INC.
By: Deepa Chitre
----------------------------
Deppa Chitre
Chief Executive Officer
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