<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON May 19, 2000
Registration No. 333- ___________
SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
VIRAGEN, INC.
-----------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware
-----------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
59-2101668
-----------------------------------------------------------------
(I.R.S. Employer Identification No.)
865 S.W. 78th Avenue, Suite 100
Plantation, FL 33324
Telephone (954) 233-8746
-----------------------------------------------------------------
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Copies to:
<TABLE>
<CAPTION>
<S> <C>
Gerald Smith James M. Schneider, Esq.
Chairman of the Board Atlas Pearlman
Viragen, Inc. 350 East Las Olas Boulevard
865 SW 78th Avenue, Suite 100 Suite 1700
Plantation, Florida 33324 Fort Lauderdale, Florida 33301
(954) 233-8746 (954) 763-1200
------------------------------------------------------- -----------------------------------------------------
(Name, address, including zip code, and telephone number, including area code, of agent for service)
</TABLE>
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] __________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ] __________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box.[ ]
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of each class Proposed maximum Proposed
of securities to be Amount to be offering price per maximum aggregate Amount of
registered registered unit (1) offering price (1) registration fee
- ------------------------------------ ------------------- -------------------- ----------------------- --------------------
<S> <C> <C> <C> <C>
Common stock,
$.01 par value per share,
issuable upon
conversion of
convertible short-term 2,175,000 $ 1.50 $ 3,262,500 $ 861
promissory notes (2)
Common stock,
$.01 par value per share,
issuable upon exercise
of common stock
purchase warrants (3) 225,000 1.50 337,500 89
--------- ------------ ------
2,400,000 $ 3,600,000 $ 950
========= ============ =======
</TABLE>
- ----------------
(1) Estimated solely for the purpose of computing the amount of the
registration fee in accordance with Rule 457(c) under the
Securities Act of 1933, based on the last sale price of our
common stock, $.01 par value per share, as reported on the
American Stock Exchange at May 11, 2000.
(2) Includes up to an aggregate of 2,175,000 shares of our common
stock issuable upon the conversion of two $1,000,000 convertible
short-term promissory notes plus related interest at $1.00 per
share.
(3) Includes up to an aggregate of 225,000 shares of our common stock
issuable upon the exercise of warrants exercisable at prices
ranging between $0.95 and $2.00 per share.
Pursuant to Rule 416 under the Securities Act of 1933, there are
also being registered an additional number of shares as may be
issuable as a result of the anti-dilutive provisions of the notes
and warrants.
Viragen, Inc. will amend this registration statement on the date
or dates as may be necessary to delay its effective date until
Viragen shall file a further amendment which specifically states
that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act
of 1933 or until this registration statement shall become
effective on the date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
ii
<PAGE> 3
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT, OF WHICH THIS
PROSPECTUS IS PART, FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT
SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE
IS NOT PERMITTED.
Subject to Completion
Dated May 19, 2000
Selling Security Holder Offering Prospectus
VIRAGEN, INC.
2,400,000 shares of common stock
The selling security holders will receive the proceeds from the re-sale
of the shares.
Our common stock is listed on the American Stock Exchange, under the
symbol "VRA". On May 11, 2000, the last reported sale price for our common stock
was $1.50 per share.
THIS INVESTMENT INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD PURCHASE
SHARES ONLY IF YOU CAN AFFORD A COMPLETE LOSS. SEE "RISK FACTORS" BEGINNING AT
PAGE 5.
----------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is May ____, 2000.
<PAGE> 4
TABLE OF CONTENTS
PAGE
----
About Viragen ........................................................ 3
Where You Can Find More Information .................................. 3
Risk Factors ......................................................... 5
Use of Proceeds ...................................................... 11
Dividend Policy ...................................................... 11
Selling Security Holders ............................................. 11
Plan of Distribution ................................................. 13
Description of Securities ............................................ 14
Legal Matters ........................................................ 15
Experts .............................................................. 16
You should rely only on the information contained in this document or
to which we have referred you. We have not authorized anyone to provide you with
information that is different. This document may only be used where it is legal
to sell these securities. The information contained in this document may only be
accurate on the date of this document.
2
<PAGE> 5
ABOUT VIRAGEN
Viragen, Inc. is in the business of researching and developing products
which help the human immune system resist viral infections. We were organized in
1980. Our primary product is a natural interferon product named Omniferon(TM),
which we produce using human white blood cells. Natural interferon stimulates
and controls the human immune system. In addition, interferon may stem the
growth of various viruses including those involved with diseases like hepatitis,
multiple sclerosis, cancer and HIV/AIDS.
Neither the United States Food and Drug Administration nor the
European Union regulatory authorities has approved our product. When we refer to
"product" later in this prospectus, we do not intend to imply that our product
has regulatory approvals that will allow it to be marketed currently. Viragen
will seek Food and Drug Administration and European Union regulatory authority
approval for various uses of its Omniferon product in the future. This approval
requires several years of clinical trials and substantial additional funds. We
are concentrating our efforts on obtaining the necessary regulatory approvals
for our Omniferon product so that we may market our product. This will be
initially in the European Union and eventually from the Food and Drug
Administration for the United States.
Our affiliate, Viragen (Scotland) Ltd., has entered into a license and
manufacturing agreement with the Common Services Agency of Scotland, and the
Scottish National Blood Transfusion Service. As a result of this agreement, the
Scottish National Blood Transfusion Service will help in the manufacture of our
natural interferon product for exclusive distribution in the European Union and
on a non-exclusive basis worldwide. The Scottish National Blood Transfusion
Service will receive royalties and special access to our Omniferon product. We
have also entered into agreements with the American Red Cross, America's Blood
Centers and the German Red Cross for supplies of white blood cells. These
sources of white blood cells will enable us to manufacture Omniferon in
sufficient quantities to conduct planned European Union and United States
clinical trials. Subject to regulatory approvals, these sources will also
provide sufficient quantities of white blood cells for commercial manufacturing
in the future.
Our executive offices are located at 865 SW 78th Avenue, Suite 100,
Plantation, FL 33324. Our telephone number is (954) 233-8746; our facsimile
number is (954) 233-1414.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission a
registration statement on Form S-3. This prospectus is a part of the
registration statement. It does not contain all of the information set forth in
the registration statement. For further information about Viragen, Inc. and its
common stock, you should refer to the registration statement. Statements
contained in this prospectus as to the contents of any contract or other
document referred to in this prospectus are not necessarily complete. Where a
contract or other document is an exhibit to the registration statement, each of
you should review the provisions of the exhibit, to which reference is made. You
may obtain these exhibits from the Securities and Exchange Commission, as
discussed below.
3
<PAGE> 6
We are required to file annual, quarterly, and current reports, proxy
statements and other information with the Securities and Exchange Commission.
You may read and copy these filings at the Securities and Exchange Commission
public reference rooms in Washington, D.C.; New York, NY; and Chicago, IL. You
may request copies of these documents by writing to the Securities and Exchange
Commission and paying a fee for copying costs. Please call the Securities and
Exchange Commission at 1-800-SEC-0330 for more information about the operation
of their public reference rooms. Copies of our filings are also available at the
Securities and Exchange Commission web site at HTTP://WWW.SEC.GOV or through our
web site at HTTP://WWW.VIRAGEN.COM.
The Securities and Exchange Commission allows us to "incorporate by
reference" information that we file with them, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus,
and information that we file later with the Securities and Exchange Commission
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings we will make with
the Securities and Exchange Commission under Section 13(a), 14 or 15(d) of the
Securities Exchange Act of 1934:
o Quarterly report on Form 10-Q, for the quarterly period ended March
31, 2000, filed May 15, 2000;
o Quarterly report on Form 10-Q, for the quarterly period ended
December 31, 1999, filed February 14, 2000;
o Quarterly report on Form 10-Q, for the quarterly period ended
September 30, 1999, filed November 15, 1999.
o Annual Report on Form 10-K/A for the fiscal year ended June 30,
1999, filed February 10, 2000; and
o Registration statement on Form S-3 (File No. 333-32306), filed March
13, 2000.
You may obtain a copy of these filings at no cost by writing, telephoning,
faxing or visiting out website at the following address:
Dennis W. Healey
Viragen, Inc.
865 S.W. 78th Avenue, Suite 100
Plantation, FL 33324
Telephone No.: (954) 233-8746
Facsimile No.: (954) 233-1414
Web Site: http://www.viragen.com.
4
<PAGE> 7
RISK FACTORS
An investment in our common stock is very risky. You should be aware
you could lose the entire amount of your investment. Prior to making an
investment decision, you should carefully read this entire prospectus and
consider the following risk factors.
WE HAVE A HISTORY OF LOSSES DUE TO LACK OF SALES AND REGULATORY APPROVALS. IF WE
DO NOT RECEIVE NECESSARY REGULATORY APPROVALS AND DEVELOP PROFITABLE OPERATIONS,
WE WILL NEED TO TERMINATE OUR OPERATIONS. AS A RESULT, INVESTORS MAY LOSE THEIR
ENTIRE INVESTMENT.
Since the organization of Viragen, we have incurred operating losses.
Losses have totaled:
o $9,025,326 for the nine month period ended March 31, 2000,
o $10,650,832 for the fiscal year ended June 30, 1999,
o $7,856,136 for the fiscal year ended June 30, 1998, and
o $4,775,245 for the fiscal year ended June 30, 1997.
At March 31, 2000, we had a total deficit since organization of $59,551,040 and
a working capital deficit of $1,870,309.
We presently produce a single product known as Omniferon(TM), a natural
human leukocyte derived alpha interferon. However, because the United States
Food and Drug Administration and the European Union regulatory authorities have
not yet approved our natural interferon product, we cannot sell this product. As
a result, we have no current source of income from operations.
We will not be able to reduce our losses or operate profitably, until
we obtain the necessary approvals to sell natural interferon. While we currently
have a 10% interest in a company that is developing a product for the treatment
of rheumatoid arthritis, we expect sales of natural interferon to be our primary
source of income. Investors must understand that our natural interferon product
may never receive the necessary approvals from regulatory authorities. In
addition, even if the product is approved, we may not be able to recover
sufficient profit from the sale of natural interferon. If we do not obtain the
required approvals or we do not profit from the sale of natural interferon or
other products, Viragen most likely will terminate its operations. In that case,
those who have invested in Viragen will likely lose their entire investment.
As a result of these conditions, our independent certified public
accountants included an explanatory paragraph in their report dated September
17, 1999. Their report indicated that these conditions raised substantial doubt
about our ability to continue as a going concern. As of May 12, 2000, we had on
hand less than one year's cash requirements.
5
<PAGE> 8
COMPETITIVE CONDITIONS IN THE PHARMACEUTICAL INDUSTRY MAY FORCE US TO TERMINATE
OPERATIONS.
Competition for investment capital and market share in the
immunological and pharmaceutical products industry is very strong. Our
competitors, which include major pharmaceutical companies, have more experience
in research, development and clinical testing of pharmaceutical and biomedical
products. We do not have, as yet, an immunological product that can be marketed.
Our competitors also have greater financial, marketing and human resources than
Viragen. Some of our competitors, including Hoffman-La Roche, Inc.,
Shering-Plough Corporation, Biogen, Inc., Chiron Corp., and Baxter Laboratories,
already have approvals for their synthetic interferons. They have been marketing
their products, since 1986. These companies have received wide acceptance from
the medical community and the patient population for their products. This will
make it more difficult for us to introduce our product, if and when we receive
the necessary regulatory approval. We only expect competition to increase in the
future. In addition, technological advances made by our competitors may make
synthetic products more effective, less costly and with less harmful side
effects. Viragen may not be able to keep pace with technological advances by
others, either because we do not have sufficient resources or because we cannot
achieve greater improvements in our technology. If we are unable to compete with
our larger, more experienced competitors, we may terminate operations.
Competition for funding in the pharmaceutical industry is also intense.
As explained above, we have no source of income, as yet. We may not have
sufficient sources of income or investment capital for a significant period of
time, if ever. We need additional funds to conduct clinical trials so we can
receive regulatory approvals. We must obtain additional funding from outside
sources to conduct these trials. If we are unable to locate funding or obtain
funding on reasonable terms, we will most likely terminate operations. In that
case, any investment in Viragen could be lost.
GOVERNMENT REGULATION MAY AFFECT VIRAGEN'S ABILITY TO DEVELOP AND DISTRIBUTE
NATURAL INTERFERON.
All pharmaceutical manufacturers are subject to state and federal rules
and regulations. In particular, we must comply with the United States Food and
Drug Administration guidelines governing production, testing and marketing.
European Union regulatory authorities also impose similar regulations. These
rules and regulations are constantly changing. These changes could extend the
period of clinical trials, involve costly compliance measures and may restrict
our ability to produce and distribute our natural interferon product based on
the results of testing. It is possible that we may never receive these
regulatory approvals for any specific illness or range of illnesses that we are
attempting to treat with our natural interferon product.
IF PATIENTS HAVE PROBLEMS RECEIVING THIRD PARTY REIMBURSEMENTS OF OUR PRODUCT,
IT WILL BE MORE DIFFICULT TO MARKET OUR PRODUCT. IN ADDITION, OUR MARKETING
COSTS WOULD INCREASE.
Our ability to successfully market our products depends in part on the
receipt of reimbursements from government health administration authorities,
private health coverage insurers and other organizations. The pricing of
products similar to ours or the amount of reimbursement available to patients
may affect our ability to market our product at a profit. Third party
6
<PAGE> 9
reimbursement limitations could restrict the patient population that will make
use of our product. If we have difficulty in getting third party payors to allow
reimbursement for our product, this could also require us to increase our
marketing efforts. This will involve greater expenses.
OUR PROPRIETARY TECHNOLOGY AND ANY FUTURE PATENTS THAT WE RECEIVE MAY NOT
PROVIDE SUFFICIENT PROTECTION TO US.
We intend to rely, in part, on technology developed by Viragen's
scientists for the efficient and safe production of natural interferon. We
believe that this technology allows us to produce our natural interferon more
efficiently and with less possible contaminants. Viragen recently filed two
patent applications relating to our Omniferon production technology. If we are
not successful in obtaining patents or demonstrating that our production process
is proprietary under trade secret law, we will have limited protection against
those who might copy our technology. In addition, we may be damaged if we are
accused of misappropriating a competitor's proprietary technology, even if these
claims are untrue. We cannot assure you that our patent applications will be
approved. Even if granted, we cannot assure you that these patents or any future
patent applications or our other proprietary rights will provide necessary
protection to us.
TECHNOLOGY TRANSFERS BY VIRAGEN TO THIRD PARTIES MAY NOT RESULT IN REVENUE TO
US.
One of our proposed marketing strategies is to license our
manufacturing technology to third parties. They, in turn, will use our
technology to produce natural human leukocyte alpha interferon outside the
United States. We cannot guarantee that these third parties will be able to
successfully market the product or that we will receive revenue from their
efforts.
WE MAY BE EXPOSED TO PRODUCT LIABILITY CLAIMS, AND OUR PRODUCT LIABILITY
INSURANCE MAY NOT BE SUFFICIENT TO COVER ALL CLAIMS OR CONTINUE TO BE AVAILABLE
TO US.
Persons, who claim to be injured from use of our natural interferon,
may file claims for personal injuries or other damages against us. In order to
protect Viragen against these claims, we maintain product liability insurance in
the amount of $1,000,000 per occurrence and $2,000,000 in total. We cannot be
sure that this insurance will be adequate to cover any liabilities that may
result from the use of our natural interferon. Also, we may not be able to
afford this form of insurance in the future.
OUR RELIANCE ON FOREIGN THIRD PARTY MANUFACTURER MAY DISRUPT OPERATIONS.
Viragen (Scotland) Ltd., a wholly-owned subsidiary of Viragen (Europe)
Ltd., our majority-owned subsidiary, entered into a manufacturing agreement with
the Common Services Agency of Scotland for the production of Omniferon. Under
this agreement, Viragen (Scotland) and the Common Services Agency will jointly
manufacture Omniferon. Our decision to use an offshore manufacturer could expose
us to risks involved with fluctuations in exchange rates of foreign currencies.
In addition, relying on the Common Services Agency exposes us to all the risks
of dealing with a foreign manufacturing source. These risks include:
7
<PAGE> 10
o local governmental regulations,
o tariffs,
o import and export restrictions,
o transportation,
o taxes, and
o foreign health and safety regulations.
Foreign manufacturing arrangements will limit our control. For
instance, the Common Services Agency has limited our access to portions of their
facility, when introducing stimulating agents during production. This may lead
to the disruption of our operations. This could negatively affect our operations
and your investment in us.
WE ARE DEPENDENT ON KEY EXECUTIVES AND THEIR LOSS WOULD BE DAMAGING TO VIRAGEN.
Mr. Gerald Smith, our chairman of the board and president, Mr. Dennis
W. Healey, our executive vice president, treasurer and chief financial officer,
and Dr. D. Magnus Nicolson, the managing director of Viragen (Scotland) Ltd.,
manage our day-to-day operations. We have employment agreements with Messrs.
Smith, Healey and Nicolson which restrict competitive activities by them.
However, the loss of their services would have a negative effect on our ability
to conduct business. Our future success will greatly depend on our ability to
attract and retain additional skilled personnel in various phases of our
operations.
WE WILL REQUIRE ADDITIONAL FUNDING TO CONDUCT OPERATIONS. THE FUNDING MAY NOT BE
AVAILABLE AND CAUSE US TO TERMINATE OUR OPERATIONS.
Viragen will continue to require significant funding in the future to
continue its operations. We estimate that we will require funding of
approximately $30 million, over the next three years. These funds would be used
to fund operations including clinical trials. We cannot assume that any
additional financing will be available. If financing is not available, we may
have to sell, suspend, or terminate our operations.
THE SALE OF OUR COMMON STOCK UNDER THIS SHELF REGISTRATION AND OTHER FINANCINGS
MAY CAUSE SUBSTANTIAL DILUTION TO OUR STOCKHOLDERS.
As described in the preceding risk factor, we will need additional
funding to continue to conduct operations. In December 1999, we retained the
investment banking firm of Ladenburg Thalmann & Co., Inc. to aid us in
identifying and developing financing sources. They will serve as the exclusive
placement agent for offerings under a shelf registration on Form S-3 (File No.
333-32306), and have agreed to assist us in raising up to $60,000,000 through
equity transactions. In order to raise the amount of funding needed, we may have
to issue millions of common shares.
8
<PAGE> 11
Also, during February and March 2000, Viragen issued short-term
convertible notes to two investors. The notes totaled $2,000,000 in principal.
Interest on one $1,000,000 note is payable at 8% and the second $1,000,000 note
bears an interest rate of 9.5%. The notes are convertible into a total of
2,000,000 common shares, which are being registered under this registration.
Future transactions with other investors could further depress the
price of our stock because of additional stockholder dilution.
WE MAY HAVE VIOLATED SECTION 5 OF THE SECURITIES ACT OF 1933 AND MAY HAVE A
CONTINGENT LIABILITY TO INVESTORS
In March 1999, we issued 8% convertible promissory notes in the amount
of $2,000,000 to two investors. In June 1999, we modified our agreements with
these investors to lower the conversion price of their promissory notes. We did
this in order to obtain a waiver from the investors for an interim financing. We
did the interim financing in May 1999 when we received $1,375,000 from three
other investors through the sale of our common stock. Since we had a pending
registration statement at the time of the June 1999 modification and the May
1999 interim financing, the Securities and Exchange Commission informed us that
we may have violated Section 5 of the Securities Act of 1933. If this is so, we
may have a contingent liability to the 8% convertible promissory note investors
and the three investors in the interim financing, since they may have the right
to rescind their transactions.
OUR OPERATIONS MAY SUFFER FROM COMPUTER PROBLEMS RELATING TO THE YEAR 2000.
Many existing computer programs use only two digits to identify a year
in the date field. These programs were designed and developed without
considering the impact of the upcoming change in the year 2000. Some older
computer systems store dates with only a two-digit year with an assumed prefix
of "19." Consequently, this limits those systems to dates between 1900 and 1999.
If not corrected, many computer systems and applications could fail or create
erroneous results by or at the year 2000.
Because we rely heavily on computers to conduct our business, we are
subject to all the risks associated with the year 2000 condition. We have
assessed the scope of our risks related to problems these computer systems may
have experienced upon the arrival of the year 2000. We believe that we have
adequately addressed these risks. In addition, we have questioned our vendors
and business partners about their progress in identifying and addressing
problems related to the year 2000. However, we cannot assure you that all of
these third party systems or that our computer systems are fully year 2000
compliant.
WE DO NOT EXPECT TO PAY DIVIDENDS IN THE FORESEEABLE FUTURE.
We have never paid cash dividends on our common stock. We do not expect
to pay cash dividends on our common stock any time in the foreseeable future.
The future payment of dividends directly depends upon our future earnings,
capital requirements, financial requirements and other factors that our board of
9
<PAGE> 12
directors will consider. For the foreseeable future, we will use earnings from
operations, if any, to finance our growth, and we will not pay dividends to our
common stockholders. Since we do not anticipate paying cash dividends on our
common stock, return on your investment, if any, will depend solely on an
increase in the market value of Viragen's common stock.
POSSIBLE SALES OF SECURITIES BY CURRENT STOCKHOLDERS COULD HAVE A DEPRESSIVE
EFFECT ON MARKET VALUE OF OUR STOCK.
As of May 12, 2000, we had 7,651,821 shares of common stock
outstanding, which were "restricted securities," as defined by Rule 144 under
the Securities Act of 1933. Also, as of that date, we had short-term convertible
notes, convertible preferred stock, and common stock options and warrants
outstanding, which if converted or exercised, would result in 11,289,799
additional shares of our common stock outstanding. Under Rule 144, a person who
holds restricted securities for a period of one year may sell a limited number
of shares to the public in ordinary brokerage transactions. Sales under Rule 144
and sales of common stock covered by registration statements filed by us,
including shares covered by this prospectus, may reduce the market price of our
common stock and will increase the number of our publicly-held securities.
WE COULD USE PREFERRED STOCK TO RESIST TAKEOVERS AND MAY ALSO CAUSE POTENTIAL
ADDITIONAL DILUTION.
Our Certificate of Incorporation authorizes 1,000,000 shares of
preferred stock, of which at May 12, 2000, 2,650 shares of series A preferred
stock were issued and outstanding. Our Certificate of Incorporation gives our
board of directors the authority to issue preferred stock without approval of
our stockholders. We may issue additional shares of preferred stock to raise
money to finance our operations. We may authorize the issuance of the preferred
stock in one or more series. In addition, we may set the following terms:
o dividend and liquidation preferences,
o voting rights,
o conversion privileges,
o redemption terms, and
o other privileges and rights of the shares of each authorized series.
The issuance of large blocks of preferred stock could possibly have a dilutive
effect to our existing stockholders. It can also negatively impact our existing
stockholders' liquidation preferences. In addition, while we include preferred
stock in our capitalization to improve our financial flexibility, we could
possibly issue our preferred stock to friendly third parties to preserve control
by present management. This could occur if we become subject to a hostile
takeover that could ultimately benefit Viragen and Viragen's stockholders.
10
<PAGE> 13
USE OF PROCEEDS
We used the net proceeds from the short-term borrowings for general
corporate purposes including the funding of clinical trials of our Omniferon
product, capital expenditures and general working capital.
DIVIDEND POLICY
We have never paid any dividends on our common stock. We do not
anticipate paying any cash dividends in the foreseeable future because:
o we have experienced losses since inception,
o we have significant capital requirements in the future, and
o we presently intend to retain future earnings, if any, to finance
the expansion of our business.
Future dividend policy will depend on:
o our earnings, if any,
o capital requirements,
o expansion plans,
o financial condition, and
o other relevant factors.
SELLING SECURITY HOLDERS
TRANSACTION OVERVIEW
On November 3, 1999, Viragen, Inc. borrowed $400,000 from Equitable
Equity Lending, Inc. through a note secured by a second mortgage and a security
agreement. The note bears interest at a rate of 12% per annum. Interest was
payable monthly commencing on December 3, 1999, with the principal and unpaid
interest due on May 3, 2000. The note with related accrued interest was paid in
full on April 21, 2000.
The note was secured by a mortgage on Viragen's Hialeah facility and
the laboratory equipment located in the facility. Also, while the mortgage's
promissory note was not convertible into common stock, Viragen did issue
Equitable a warrant to purchase 25,000 common shares, as additional
consideration. The warrant is exercisable at $0.95 per share through October 31,
2004.
On February 18, 2000, we entered into a subscription agreement with
Active Investors Ltd. II, an investment fund managed by Carl N. Singer. Mr.
Singer is a director of Viragen and the Chairman of its Executive Committee.
Under the terms of the subscription agreement, we issued to Active Investors
Ltd. II a convertible promissory note for the principal amount of $1,000,000.
The promissory note bears interest at a rate of 9.5% per annum. The principal
and
11
<PAGE> 14
interest are payable on February 17, 2001. Charles Simons, a director of Viragen
and the Chairman of its Audit, Finance & Compensation Committee, is an investor
in Active Investors Ltd. II.
Active Investors Ltd. II can elect to convert the unpaid principal and
interest, at any time, into common shares at the fixed rate of $1.00 per share.
Under the subscription agreement, Active Investors Ltd. II also received a
warrant to purchase 100,000 common shares. The warrant is exercisable at $2.00
per share through February 17, 2003.
On March 1, 2000, Viragen entered into a loan and escrow agreement with
AMRO International, S.A. Under the terms of this agreement, we issued to AMRO
International a convertible promissory note for the principal amount of
$1,000,000. The promissory note bears interest at a rate of 8% per annum. The
principal and interest are payable on March 1, 2001.
AMRO International can elect to convert the unpaid principal and
interest, at any time, into common shares at the fixed rate of $1.00 per share.
Under the subscription agreement, AMRO International also received a warrant to
purchase 100,000 common shares. The warrant is exercisable at $1.72 per share
through March 1, 2004. Viragen paid $70,000 for placement fees and expenses on
the transaction.
OWNERSHIP TABLE
The following table sets forth as of May 12, 2000:
o the name of each of the selling security holders,
o the amount of common stock held directly or indirectly or underlying
the warrants to be offered by the selling security holders, and
o the amount to be owned by the selling security holders following the
sale of these shares.
As of May 12, 2000, there were outstanding 85,307,495 shares of
Viragen's common stock.
The total of 2,400,000 potential shares allocated to the selling
security holders was derived as follows:
o 2,175,000 shares issuable upon conversion of convertible promissory
notes and related interest, and
o 225,000 shares issuable upon exercise of warrants issued to the
selling security holders.
12
<PAGE> 15
<TABLE>
<CAPTION>
Number of Shares to be Owed
Name of Selling Security Holders Shares Owned After Offering
- ----------------------------------------------------- ------------------- ---------------------------------
<S> <C> <C>
Equitable Equity Lending, Inc. 25,000 0
Active Investors Ltd. II 1,195,000 0
AMRO International, S.A. 1,180,000 0
===================
2,400,000
===================
</TABLE>
Equitable Equity's ownership includes warrants to purchase 25,000
common shares.
Active Investors Ltd. II's ownership includes 1,095,000 common shares
issuable upon conversion of the convertible promissory note and related
interest. Their ownership also includes a warrant to purchase 100,000 common
shares. Active Investors Ltd. II is an investment fund managed by Carl N.
Singer, a director of Viragen.
AMRO International's ownership includes 1,080,000 common shares
issuable upon conversion of the convertible promissory note and related
interest. Their ownership also includes a warrant to purchase 100,000 common
shares.
Viragen agreed to pay for all costs and expenses in the issuance,
offer, sale and delivery of the shares of our common stock. These include, all
expenses and fees of preparing, filing and printing the registration statement
and mailing of these items. Viragen will not pay selling commissions and
expenses for any sales by the selling security holders. Viragen will indemnify
the selling security holders against civil liabilities including liabilities
under the Securities Act of 1933.
PLAN OF DISTRIBUTION
These shares of our common stock may be sold by the selling security
holders or by other successors in interest. The sales may be made on one or more
exchanges or in the over-the-counter market, at prices related to the then
current market price, or in negotiated transactions. The shares of our common
stock may be sold by one or more of the following methods, including:
o a block trade in which the broker-dealer will attempt to sell the
shares of our common stock as agent, but may position and resell a
portion of the block as principal;
o purchases by a broker or dealer as principal and resale by the
broker or dealer;
o ordinary brokerage transactions and transactions in which the broker
solicits purchasers; and
o face-to-face or other direct transactions between the selling
security holders and purchasers without broker-dealer or other
intermediary.
13
<PAGE> 16
In addition, the selling security holders may, subject to the
restrictions described below and previously under "Selling Security Holders",
sell short the common stock of Viragen. In these instances, this prospectus may
be delivered in the connection with the short sale, and the shares offered may
be used to cover the short sale. In making sales, broker-dealers or agents
engaged by the selling security holders may arrange for other broker-dealers or
agents to participate. Broker-dealers may receive commissions or discounts from
the selling security holders in amounts to be negotiated immediately prior to
the sale. These broker-dealers, agents and any other participating
broker-dealers or agents, as well as the selling security holders and the
placement agent, may be considered to be "underwriters" within the meaning of
the Securities Act of 1933. In addition, any securities covered by this
prospectus that qualify for sale under Rule 144 may be sold under Rule 144
rather than by this prospectus.
We informed the selling security holders that the anti-manipulative
rules under the Securities Exchange Act of 1934, including Regulation M, will
apply to their sales in the market. We have furnished the selling security
holders with a copy of these rules. We have also informed the selling security
holders that they must deliver a copy of this prospectus with any sale of their
shares.
DESCRIPTION OF SECURITIES
Viragen is currently authorized to issue up to 125,000,000 shares of
common stock, par value $.01 per share. There were 85,307,495 shares outstanding
as of May 12, 2000. Viragen is also authorized to issue up to 1,000,000 shares
of preferred stock, par value $1.00 per share. There were 2,650 shares of series
A preferred stock were outstanding as of May 12, 2000.
COMMON STOCK
Subject to the dividend rights of preferred stockholders, common
stockholders share dividends on a proportionate basis, as may be declared by the
board of directors. Upon liquidation, dissolution or winding up of Viragen,
after payment to creditors and holders of our outstanding preferred stock,
Viragen's assets will be divided proportionately on a per share basis among the
holders of our common stock.
Each share of our common stock has one vote. Holders of our common
stock do not have cumulative voting rights. This means that the holders of a
plurality of the shares voting for the election of directors can elect all of
the directors. In that event, the holders of the remaining shares will not be
able to elect any directors. Viragen's By-Laws provide that a majority of the
outstanding shares of our common stock are a quorum to transact business at a
stockholders' meeting. Our common stock has no preemptive, subscription or
conversion rights. Also, our common stock is not redeemable.
PREFERRED STOCK
Viragen is authorized to issue a total of 1,000,000 shares of preferred
stock, par value $1.00 per share. Viragen's board of directors may issue
preferred stock by resolutions, without any action of the stockholders. These
14
<PAGE> 17
resolutions may authorize issuance of preferred stock in one or more series. In
addition, the board of directors may fix and determine all privileges and rights
of the authorized preferred stock series including:
o dividend and liquidation preferences,
o voting rights,
o conversion privileges, and
o redemption terms.
Viragen includes preferred stock in its capitalization to improve its
financial flexibility. However, Viragen could use preferred stock to preserve
control by present management, in the event of a potential hostile takeover of
Viragen. In addition, the issuance of large blocks of preferred stock could have
a dilutive effect to existing holders of Viragen's common stock.
SERIES A PREFERRED STOCK
Viragen established the series A preferred stock in November 1986. Each
share of series A preferred stock is immediately convertible into 4.26 shares of
our common stock. Dividends on the series A preferred stock are cumulative and
have priority to our common stock. These dividends are payable in either cash or
common stock, at Viragen's option.
The series A preferred stock has voting rights only if dividends are in
arrears for five annual dividends. Upon this occurrence, the voting is limited
to the election of two directors. Voting rights terminate upon payment of the
cumulative dividends. Viragen may redeem the series A preferred stock at any
time after expiration of ten consecutive business days during which the bid or
last sale price for our common stock is $6.00 per share or higher. There is no
mandatory redemption or sinking fund obligation for the series A preferred
stock.
Owners of the series A preferred stock are entitled to receive $10.00
per share, plus accrued and unpaid dividends, upon liquidation, dissolution or
winding up of Viragen. This must be satisfied before any distribution or payment
is made to holders of the common stock or other stock of Viragen junior to the
series A preferred stock.
TRANSFER AGENT
The transfer agent for the shares of our common stock is Chase Mellon
Shareholder Services, Overpeck Center, 85 Challenger Road, Ridgefield Park, New
Jersey 07660-2108.
LEGAL MATTERS
Atlas Pearlman will review the validity of the issuance of the shares
of our common stock being offered. They are located at 350 East Las Olas
Boulevard, Suite 1700, Fort Lauderdale, Florida 33301. Members of that firm or
members of their family own a total of 37,000 shares of our common stock.
15
<PAGE> 18
EXPERTS
Ernst & Young LLP, independent certified public accountants, have
audited our consolidated financial statements included in our Annual Report on
Form 10-K/A for the year ended June 30, 1999, as set forth in their report,
which is incorporated by reference in this prospectus and elsewhere in the
registration statement. Our financial statements are incorporated by reference
in reliance on Ernst & Young LLP's report, given on their authority as experts
in accounting and auditing.
16
<PAGE> 19
Viragen, Inc.
Prospectus
May __, 2000
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth expenses payable in connection with the
issuance and distribution of the common stock being registered, other than
underwriting discounts and commissions.
Securities and Exchange Commission
registration fee $ 950
Legal fees and expenses 5,000
Accounting fees and expenses 4,000
Blue sky fees and expenses 500
Printing expenses 1,200
Registrar and transfer agent's fee 1,500
Miscellaneous 850
-------------
Total $ 14,000
=============
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of Delaware allows a
corporation to indemnify any person who was or is, or is threatened to be made a
party to any threatened, pending, or completed suit or proceeding. This applies
whether the matter is civil, criminal, administrative or investigative because
he or she is or was a director, officer, employee or agent of the corporation.
A corporation may indemnify against expenses, including attorney's
fees, and, except for an action by or in the name of the corporation, against
judgments, fines and amounts paid in settlement as part of this suit or
proceeding. This applies only if the person indemnified acted in good faith and
in a manner he or she reasonably believed to be in the best interest of the
corporation. In addition, with respect to any criminal action or proceeding, the
person had no reasonable cause to believe his or her conduct was unlawful.
In the case of an action by or in the name of the corporation, no
indemnification of expenses may be made for any claim, as to which the person
has been found to be liable to the corporation. The exception is if the court in
which this action was brought determines that the person is reasonably entitled
to indemnity for expenses.
Section 145 of the General Corporation Law of Delaware further provides
that if a director, officer, employee or agent of the corporation has been
successful in the defense of any suit, claim or proceeding described above, he
or she will be indemnified for expenses, including attorney's fees, actually and
reasonably incurred by him or her.
II-1
<PAGE> 21
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling
Viragen pursuant to the foregoing provisions, Viragen has been informed that in
the opinion of the Securities and Exchange Commission, indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
these liabilities, other than the payment by Viragen in the successful defense
of any action, suit or proceeding, is asserted, Viragen will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
indemnification by it is against public policy. Viragen will be governed by the
final adjudication of this issue.
ITEM 16. EXHIBITS
2. Plan of acquisition, reorganization, arrangement, liquidation or
succession
2.1 Plan of Merger between Florida Immunological Institute, Inc.
and Vira-Tech, Inc., dated September 30, 1986 (incorporated by
reference to the Company's registration statement on Form S-2,
dated October 24, 1986, as amended File No. 33-9714 ("1986
Form S-2"), Part II, Item 16, 2.1)
2.2 Articles of Merger of Florida Immunological Institute into
Vira-Tech, Inc., dated September 30, 1986 (incorporated by
reference to 1986 Form S-2, Part II, Item 16, 2.2)
4. Instruments defining the rights of security holders, including
indentures
4.1 Form of Common Stock Certificate (incorporated by reference to
Viragen's registration statement on Form S-1 dated June 8,
1991, File No. 2-72691)
4.2 Certificate of Designation for Series A Preferred Stock, as
amended (incorporated by reference to 1986 Form S-2, Part II,
Item 16, 4.4)
4.3 Specimen Certificate for Unit (Series A Preferred Stock and
Class A Warrant) (incorporated by reference to 1986 Form S-2,
Part II, Item 15, 4.5)
4.4 1995 Stock Option Plan (incorporated by reference to the
Company's Registration Statement on Form S-8 filed June 9,
1995)
4.5 1997 Stock Option Plan (incorporated by reference to the
Company's Registration Statement on Form S-8 filed April 17,
1998)
4.6 Subscription Agreement between Active Investors Ltd. II and
Viragen, Inc. dated February 18, 2000 *
4.7 Loan and Escrow Agreement between AMRO International, S.A. and
Viragen, Inc. dated March 1, 2000 *
II-2
<PAGE> 22
4.8 Common Stock Purchase Warrant issued to Equitable Equity
Lending, Inc. dated November 1, 1999 *
5. Opinion of Atlas Pearlmann, P.A. as to the validity of
securities being registered. *
23. Consents of experts and counsel.
23.1 Consent of Independent Certified Public Accountants*
23.2 Consent of Atlas Pearlmann, P.A. (included as part of Exhibit
(5)).
- ---------
* Filed herewith
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
II-3
<PAGE> 23
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offering therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, Viragen has
been advised that in the opinion of the Securities and Exchange Commission
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person of
Viragen in the successful defense of any action, suit or proceeding) is asserted
by a director, officer or controlling person in connection with the securities
being registered, Viragen will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of this issue.
II-4
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Plantation, State of Florida on May 16, 2000.
VIRAGEN, INC.
BY: /s/ GERALD SMITH
----------------------------------------
Gerald Smith
Chairman of the Board of Directors
and President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- -----
<S> <C> <C>
/s/ Gerald Smith Chairman of the Board Of Directors, President, And May 16, 2000
- ------------------------------------------ Principal Executive Officer
Gerald Smith
/s/ Robert H. Zeiger Vice Chairman of the Board May 16, 2000
- ------------------------------------------
Robert H. Zeiger
/s/ Carl N. Singer Director and Chairman of the Executive Committee May 16, 2000
- ------------------------------------------
Carl N. Singer
/s/ Dennis W. Healey Executive Vice President, Treasurer, Principal May 16, 2000
- ------------------------------------------ Financial Officer, Director and Secretary
Dennis W. Healey
/s/ Charles J. Simons Director May 16, 2000
- ------------------------------------------
Charles J. Simons
/s/ Peter D. Fischbein Director May 16, 2000
- ------------------------------------------
Peter D. Fischbein
Director May , 2000
- ------------------------------------------
Sidney Dworkin
/s/ Robert C. Salisbury Director May 16, 2000
- ------------------------------------------
Robert C. Salisbury
/s/ Jose I. Ortega Controller and Principal Accounting Officer May 16, 2000
- ------------------------------------------
Jose I. Ortega
</TABLE>
II-5
<PAGE> 1
EXHIBIT 4.6
SUBSCRIPTION AGREEMENT
VIRAGEN, INC.
865 S.W. 78th Avenue
Suite 100
Plantation, Florida 33324
Gentlemen:
Active Investors Ltd. II ("Investor") is writing to advise you of the
following terms and conditions under which Investor hereby offers to subscribe
(the "Offer") for a Convertible Promissory Note in the principal amount of
$1,000,000 (the "Note"), which is convertible into shares (the "Shares") of
common stock, par value $.01 ("Common Stock"), of the Company and Warrants to
purchase 100,000 shares of common stock of the Company. The Note shall be in the
form of Exhibit B and shall be initially convertible into Common Stock of the
Company (the Conversion Shares") at a conversion price of $1.00 per share. The
Warrants issued to Investor shall be substantially in the form of Exhibit A, and
be exercisable at $2.00 per share of Common Stock ("Warrant Shares"). The Notes,
the Common Shares and the Warrant Shares are sometimes collectively referred to
as the "Securities". The Note the Shares and the Warrant Shares have not been
registered under the Securities Act of 1933, as amended (the "Act") or in
accordance with the laws of any state and may not be sold or transferred except
pursuant to this subscription agreement and in compliance with the Act and
applicable state securities laws.
1. SUBSCRIPTION.
Subject to the terms and conditions hereinafter set forth in this
Subscription Agreement, the Investor hereby offers to purchase the Note and the
Warrant for an aggregate purchase price of One Million Dollars ($1,000,000) (the
"Purchase Price"). The Purchase Price will be paid by the Investor in cash or
other immediately available funds.
2. COMPANY REPRESENTATIONS AND WARRANTIES.
The Company hereby warrants and represents to the Investor as follows:
(A) The Company is duly organized and validly existing under, and by
virtue of, the laws of the State of Delaware and is in good standing under such
laws. The Company has all requisite power to own and operate its properties and
assets, and to carry on its business as presently conducted and as proposed to
be conducted.
(B) The Company has all requisite legal and power and authority to
execute and deliver this Subscription Agreement, to sell and issue the Shares
and to carry out and perform its obligations under the terms of this Agreement
and the transactions contemplated hereby.
<PAGE> 2
(C) All action on the part of the Company, its officers and directors
necessary for the authorization, execution, delivery and performance of this
Subscription Agreement, the authorization, sale, issuance and delivery of the
Note and the Warrant and the performance of the Company's obligations hereunder
has been taken. Upon acceptance by the Company, this Agreement shall constitute
the valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies.
(D) The Conversion Shares and the Warrant Shares will be validly issued
and fully paid and nonassessable and free and clear of all encumbrances.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.
The Investor, in order to induce the Company to accept this Offer,
hereby warrants and represents as follows:
(A) The Investor has sufficient liquid assets to sustain a
loss of the Investor's entire investment.
(B) The Investor represents that the Investor is an Accredited
Investor as that term is defined in Regulation D promulgated under the
Securities Act of 1933, as amended (the "Act"). In general, an
"Accredited Investor" is deemed to be an institution with assets in
excess of $5,000,000 or individuals with net worth in excess of
$1,000,000 or annual income exceeding $200,000 or $300,000 jointly with
their spouse. In the event the Investor does not qualify as an
Accredited Investor, the Company may reject this subscription unless
the Company determines that the Investor is otherwise qualified to
participate in this offering based on the information furnished by the
Investor to the Company pursuant to this Subscription Agreement.
(C) The Investor represents that the Investor (i) has adequate
means of providing for the Investor's current financial needs and
possible personal contingencies and has no need for liquidity of
investment in the Company; (ii) can afford (a) to hold unregistered
securities for an indefinite period of time as required; and (b)
sustain a complete loss of the entire amount of the subscription; and
(iii) has not made an overall commitment to investments which are not
readily marketable which is disproportionate so as to cause such
overall commitment to become excessive.
(D) The Investor has been afforded the opportunity to review
the Company's Annual Report on Form 10-K/A for the year ended June 30,
1999, the Company's Quarterly Reports on Form 10-Q/A and 10-Q for the
quarters ended September 30, 1999 and December 31, 1999, respectively.
In addition, the Investor has been afforded the opportunity to ask
questions of, and receive answers from, the officers and/or directors
of the Company acting on its behalf concerning the terms and conditions
of this transaction and to obtain any additional information, to the
extent that the Company possesses such information or can acquire it
without unreasonable effort or expense, necessary to verify the
accuracy of the information furnished; and has availed itself of such
opportunity to the extent the Investor considers appropriate in order
2
<PAGE> 3
to permit the Investor to evaluate the merits and risks of an
investment in the Company. It is understood that all documents, records
and books pertaining to this investment have been made available for
inspection, and that the books and records of the Company will be
available upon reasonable notice for inspection by investors during
reasonable business hours at its principal place of business.
(E) The Securities being subscribed for are being acquired
solely for the account of the Investor for personal investment and not
with a view to, or for resale in connection with, any distribution in
any jurisdiction where such sale or distribution would be precluded. By
such representation, the Investor means that no other person has a
beneficial interest in the Securities subscribed for hereunder, and
that no other person has furnished or will furnish directly or
indirectly, any part of or guarantee the payment of any part of the
consideration to be paid to the Company in connection therewith. The
Investor does not intend to dispose of all or any part of the
Securities, except in compliance with the provisions of the Act and
applicable state securities laws, and understands that the Securities
are being offered pursuant to a specific exemption under the provisions
of the Act, which exemption(s) depends, among other things, upon the
compliance with the provisions of the Act.
(F) The Investor hereby agrees that the Company may insert the
following or similar legend on the face of the certificates evidencing
the Note, the Conversion Shares and the Warrant Shares:
"These securities have not been registered under any state
securities laws and may not be sold or otherwise transferred
or disposed of except pursuant to an effective registration
statement under any applicable state securities laws, or an
opinion of counsel satisfactory to counsel to the Company that
an exemption from registration under any applicable state
securities laws is available."
The Investor certifies that each of the foregoing
representations and warranties set forth in subsections (A) through (F)
inclusive of this Section 3 are true as of the date hereof and shall
survive such date.
4. FOR FLORIDA RESIDENTS ONLY: EACH FLORIDA RESIDENT WHO SUBSCRIBES FOR
THE PURCHASE OF SECURITIES HEREIN HAS THE RIGHT, PURSUANT TO SECTION
517.061(11)(A)(5) OF THE FLORIDA SECURITIES ACT, TO WITHDRAW HIS SUBSCRIPTION
FOR THE PURCHASE AND RECEIVE A FULL REFUND OF ALL MONIES PAID WITHIN THREE
BUSINESS DAYS AFTER THE EXECUTION OF THE SUBSCRIPTION AGREEMENT OR PAYMENT FOR
THE PURCHASE HAS BEEN MADE, WHICHEVER IS LATER. WITHDRAWAL WILL BE WITHOUT ANY
3
<PAGE> 4
FURTHER LIABILITY TO ANY PERSON. TO ACCOMPLISH THIS WITHDRAWAL, A SUBSCRIBER
NEED ONLY SEND A LETTER OR TELEGRAM TO THE COMPANY AT THE ADDRESS SET FORTH IN
THIS CONFIDENTIAL TERM SHEET INDICATING HIS INTENTION TO WITHDRAW. SUCH LETTER
OR TELEGRAM SHOULD BE SET AND POSTMARKED PRIOR TO THE END OF THE AFOREMENTIONED
THIRD BUSINESS DAY. IT IS ADVISABLE TO SEND SUCH LETTER BY CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO ENSURE THAT IT IS RECEIVED AND ALSO TO EVIDENCE THE
TIME IT WAS MAILED. IF THE REQUEST IS MADE ORALLY, IN PERSON OR BY TELEPHONE TO
AN OFFICER OF THE COMPANY, A WRITTEN CONFIRMATION THAT THE REQUEST HAS BEEN
RECEIVED SHOULD BE REQUESTED.
FOR RESIDENTS OF ALL STATES: THE SECURITIES OFFERED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY
STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT
TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION
OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO
BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
5. NO WAIVER.
Notwithstanding any of the representations, warranties,
acknowledgments or agreements made herein by the Investor, the Investor does not
thereby or in any manner waive any rights granted to the Investor under federal
or state securities laws.
6. REGISTRATION.
The Company agrees to use its best efforts in order to register within
the next 12 months, Fundamental Investors, Ltd. II Conversion Shares and Warrant
Shares in a Registration Statement to be filed by the Company and the Company
will pay all costs and expenses associated with the registration process and
will indemnify Fundamental Investors, Ltd. II to the full extent permitted by
law in connection with the information included in such Registration Statement.
(THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK)
4
<PAGE> 5
IN WITNESS WHEREOF, the Investor has executed this Subscription
Agreement on the date his signature has been subscribed and sworn to below.
The Shares are -------------------------------
to be issued in Print Name of Investor
(check ONE box):
--------------------------------
individual name Print Name of Joint Investor
- ---- (if applicable)
joint tenants
- ---- with rights of --------------------------------
survivorship Signature of Investor
tenants in the
- ---- entirety --------------------------------
Signature of Joint Investor
corporation
- ---- (an officer --------------------------------
must sign)
--------------------------------
Address of Investor
X partnership
- ---- (all general /s/ Carl N. Singer
partners must sign) ---------------------------------
Carl N. Singer
Accepted as of the 18th day of February, 2000.
VIRAGEN, INC.
By: /s/ Dennis W. Healey
--------------------------------
Dennis W. Healey
Executive Vice President/CFO
5
<PAGE> 6
EXHIBIT A
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR ANY OTHER APPLICABLE STATE SECURITIES LAWS IN RELIANCE UPON AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER SECURITIES
LAWS. NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF MAY BE
SOLD, PLEDGED, TRANSFERRED, ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR IN A
TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER THE PROVISIONS OF THE
SECURITIES ACT OR ANY APPLICABLE STATE LAWS.
STOCK PURCHASE WARRANT
To Purchase 100,000 Shares of Common Stock of
VIRAGEN, INC.
THIS CERTIFIES that, for value received, Active Investors Ltd.
II (the "Holder"), is entitled, upon the terms and subject to the limitations on
exercise and the conditions hereinafter set forth, at any time on or after
February 18, 2000 (the "Initial Exercise Date") and on or prior to the close of
business on February 17, 2003 (the "Termination Date") but not thereafter, to
subscribe for and purchase from Viragen, Inc., a corporation incorporated in
Delaware (the "Company"), up to One Hundred Thousand (100,000) shares (the
"Warrant Shares") of Common Stock, $0.01 par value, of the Company (the "Common
Stock"). The purchase price of one share of Common Stock (the "Exercise Price")
under this Warrant shall be $2.00. The Exercise Price and the number of shares
for which the Warrant is exercisable shall be subject to adjustment as provided
herein. In the event of any conflict between the terms of this Warrant and the
Subscription Agreement pursuant to which this Warrant has been issued (the
"Subscription Agreement"), the Subscription Agreement shall control. Capitalized
terms used and not otherwise defined herein shall have the meanings set forth
for such terms in the Subscription Agreement.
<PAGE> 7
1. TITLE TO WARRANT. Prior to the Termination Date and subject to
compliance with applicable laws, this Warrant and all rights hereunder are
transferable, in whole or in part, at the office or agency of the Company by the
holder hereof in person or by duly authorized attorney, upon surrender of this
Warrant together with the Assignment Form annexed hereto properly endorsed.
2. AUTHORIZATION OF SHARES. The Company covenants that all shares
of Common Stock which may be issued upon the exercise of rights represented by
this Warrant will, upon exercise of the rights represented by this Warrant, be
duly authorized, validly issued, fully paid and nonassessable and free from all
taxes, liens and charges in respect of the issue thereof (other than taxes in
respect of any transfer occurring contemporaneously with such issue).
3. EXERCISE OF WARRANT.
(a) Except as provided in Section 4 herein, exercise of
the purchase rights represented by this Warrant may be made at any time or times
on or after the Initial Exercise Date, and before the close of business on the
Termination Date by the surrender of this Warrant and the Notice of Exercise
Form annexed hereto duly executed, at the office of the Company (or such other
office or agency of the Company as it may designate by notice in writing to the
registered holder hereof at the address of such holder appearing on the books of
the Company) and upon payment of the Exercise Price of the shares thereby
purchased by wire transfer or cashier's check drawn on a United States or
Canadian bank, the holder of this Warrant shall be entitled to receive a
certificate for the number of shares of Common Stock so purchased. Certificates
for shares purchased hereunder shall be delivered to the holder hereof within
three (3) Trading Days after the date on which this Warrant shall have been
exercised as aforesaid. This Warrant shall be deemed to have been exercised and
such certificate or certificates shall be deemed to have been issued, and Holder
or any other person so designated to be named therein shall be deemed to have
become a holder of record of such shares for all purposes, as of the date the
Warrant has been exercised by payment to the Company of the Exercise Price and
all taxes required to be paid by Holder, if any, pursuant to Section 5 prior to
the issuance of such shares, have been paid.
(b) If this Warrant shall have been exercised in part,
the Company shall, at the time of delivery of the certificate or certificates
representing Warrant Shares, deliver to Holder a new Warrant evidencing the
rights of Holder to purchase the unpurchased shares of Common Stock called for
by this Warrant, which new Warrant shall in all other respects be identical with
this Warrant.
(c) If no registration statement is effective permitting
the resale of the shares of Common Stock issued upon exercise of this Warrant at
any time commencing one year after the issuance date hereof, then this Warrant
shall also be exercisable by means of a "cashless exercise" in which the holder
shall be entitled to receive a certificate for the number of shares equal to the
quotient obtained by dividing [(A-B) (X)] by (A), where:
2
<PAGE> 8
(A) = the average of the high and low trading prices per share of Common Stock
on the Trading Day preceding the date of such election on the Nasdaq Stock
Market, or if the Common Stock is not traded on the Nasdaq Stock Market, then
the principal market in terms of volume, and converted into US Dollars;
(B) = the Exercise Price of the Warrants; and
(X) = the number of shares issuable upon exercise of the Warrants in accordance
with the terms of this Warrant.
4. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which Holder would otherwise be entitled
to purchase upon such exercise, the Company shall pay a cash adjustment in
respect of such final fraction in an amount equal to the Exercise Price.
5. CHARGES, TAXES AND EXPENSES. Issuance of certificates for
shares of Common Stock upon the exercise of this Warrant shall be made without
charge to the holder hereof for any issue or transfer tax or other incidental
expense in respect of the issuance of such certificate, all of which taxes and
expenses shall be paid by the Company, and such certificates shall be issued in
the name of the holder of this Warrant or in such name or names as may be
directed by the holder of this Warrant; provided, however, that in the event
certificates for shares of Common Stock are to be issued in a name other than
the name of the holder of this Warrant, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached hereto duly
executed by the holder hereof; and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax
incidental thereto.
6. CLOSING OF BOOKS. The Company will not close its shareholder
books or records in any manner which prevents the timely exercise of this
Warrant.
7. TRANSFER, DIVISION AND COMBINATION. (a) Subject to compliance
with any applicable securities laws, transfer of this Warrant and all rights
hereunder, in whole or in part, shall be registered on the books of the Company
to be maintained for such purpose, upon surrender of this Warrant at the
principal office of the Company, together with a written assignment of this
Warrant substantially in the form attached hereto duly executed by Holder or its
agent or attorney and funds sufficient to pay any transfer taxes payable upon
the making of such transfer. Upon such surrender and, if required, such payment,
the Company shall execute and deliver a new Warrant or Warrants in the name of
the assignee or assignees and in the denomination or denominations specified in
such instrument of assignment, and shall issue to the assignor a new Warrant
evidencing the portion of this Warrant not so assigned, and this Warrant shall
promptly be cancelled. A Warrant, if properly assigned, may be exercised by a
new holder for the purchase of shares of Common Stock without having a new
Warrant issued.
(b) This Warrant may be divided or combined with other
Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which
new Warrants are to be issued, signed by Holder or its agent or attorney.
Subject to compliance with Section 7(a), as to any transfer which may be
3
<PAGE> 9
involved in such division or combination, the Company shall execute and deliver
a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice.
(c) The Company shall prepare, issue and deliver at its
own expense (other than transfer taxes) the new Warrant or Warrants under this
Section 7.
(d) The Company agrees to maintain, at its aforesaid
office, books for the registration and the registration of transfer of the
Warrants.
8. NO RIGHTS AS SHAREHOLDER UNTIL EXERCISE. This Warrant does not
entitle the holder hereof to any voting rights or other rights as a shareholder
of the Company prior to the exercise hereof. Upon the surrender of this Warrant
and the payment of the aggregate Exercise Price, the Warrant Shares so purchased
shall be and be deemed to be issued to such holder as the record owner of such
shares as of the close of business on the later of the date of such surrender or
payment.
9. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT. The Company
covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant certificate
or any stock certificate relating to the Warrant Shares, and in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it
(which shall not include the posting of any bond), and upon surrender and
cancellation of such Warrant or stock certificate, if mutilated, the Company
will make and deliver a new Warrant or stock certificate of like tenor and dated
as of such cancellation, in lieu of such Warrant or stock certificate.
10. SATURDAYS, SUNDAYS, HOLIDAYS, ETC. If the last or appointed
day for the taking of any action or the expiration of any right required or
granted herein shall be a Saturday, Sunday or a legal holiday, then such action
may be taken or such right may be exercised on the next succeeding day not a
Saturday, Sunday or legal holiday.
11. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES.
(a) STOCK SPLITS, ETC. The number and kind of securities purchasable upon the
exercise of this Warrant and the Exercise Price shall be subject to adjustment
from time to time upon the happening of any of the following. In case the
Company shall (i) pay a dividend in shares of Common Stock or make a
distribution in shares of Common Stock to holders of its outstanding Common
Stock, (ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares of Common
Stock into a smaller number of shares of Common Stock or (iv) issue any shares
of its capital stock in a reclassification of the Common Stock, then the number
of Warrant Shares purchasable upon exercise of this Warrant immediately prior
thereto shall be adjusted so that the holder of this Warrant shall be entitled
to receive the kind and number of Warrant Shares or other securities of the
Company which he would have owned or have been entitled to receive had such
Warrant been exercised in advance thereof. Upon each such adjustment of the kind
and number of Warrant Shares or other securities of the Company which are
purchasable hereunder, the holder of this Warrant shall thereafter be entitled
to purchase the number of Warrant Shares or other securities resulting from such
adjustment at an Exercise Price per Warrant Share or other security obtained by
multiplying the Exercise Price in effect immediately prior to such adjustment by
4
<PAGE> 10
the number of Warrant Shares purchasable pursuant hereto immediately prior to
such adjustment and dividing by the number of Warrant Shares or other securities
of the Company resulting from such adjustment. An adjustment made pursuant to
this paragraph shall become effective immediately after the effective date of
such event retroactive to the record date, if any, for such event.
(b) REORGANIZATION, RECLASSIFICATION, MERGER,
CONSOLIDATION OR DISPOSITION OF ASSETS. In case the Company shall reorganize its
capital, reclassify its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving corporation or where there
is a change in or distribution with respect to the Common Stock of the Company),
or sell, transfer or otherwise dispose of all or substantially all its property,
assets or business to another corporation and, pursuant to the terms of such
reorganization, reclassification, merger, consolidation or disposition of
assets, shares of common stock of the successor or acquiring corporation, or any
cash, shares of stock or other securities or property of any nature whatsoever
(including warrants or other subscription or purchase rights) in addition to or
in lieu of common stock of the successor or acquiring corporation ("Other
Property"), are to be received by or distributed to the holders of Common Stock
of the Company, then Holder shall have the right thereafter to receive, upon
exercise of this Warrant, the number of shares of common stock of the successor
or acquiring corporation or of the Company, if it is the surviving corporation,
and Other Property receivable upon or as a result of such reorganization,
reclassification, merger, consolidation or disposition of assets by a holder of
the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such event. In case of any such reorganization,
reclassification, merger, consolidation or disposition of assets, the successor
or acquiring corporation (if other than the Company) shall expressly assume the
due and punctual observance and performance of each and every covenant and
condition of this Warrant to be performed and observed by the Company and all
the obligations and liabilities hereunder, subject to such modifications as may
be deemed appropriate (as determined in good faith by resolution of the Board of
Directors of the Company) in order to provide for adjustments of shares of
Common Stock for which this Warrant is exercisable which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 11.
For purposes of this Section 11, "common stock of the successor or acquiring
corporation" shall include stock of such corporation of any class which is not
preferred as to dividends or assets over any other class of stock of such
corporation and which is not subject to redemption and shall also include any
evidences of indebtedness, shares of stock or other securities which are
convertible into or exchangeable for any such stock, either immediately or upon
the arrival of a specified date or the happening of a specified event and any
warrants or other rights to subscribe for or purchase any such stock. The
foregoing provisions of this Section 11 shall similarly apply to successive
reorganizations, reclassifications, mergers, consolidations or disposition of
assets.
12. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may at any
time during the term of this Warrant, reduce the then current Exercise Price to
any amount and for any period of time deemed appropriate by the Board of
Directors of the Company.
13. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
number or kind of securities or other property purchasable upon the exercise of
this Warrant or the Exercise Price is adjusted, as herein provided, the Company
shall promptly mail by registered or certified mail, return receipt requested,
to the holder of this Warrant notice of such adjustment or adjustments setting
forth the number of Warrant Shares (and other securities or property)
purchasable upon the exercise of this Warrant and the Exercise Price of such
5
<PAGE> 11
Warrant Shares (and other securities or property) after such adjustment, setting
forth a brief statement of the facts requiring such adjustment and setting forth
the computation by which such adjustment was made. Such notice, in the absence
of manifest error, shall be conclusive evidence of the correctness of such
adjustment.
14. NOTICE OF CORPORATE ACTION. If at any time:
(a) the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend or other
distribution, or any right to subscribe for or purchase any evidences of its
indebtedness, any shares of stock of any class or any other securities or
property, or to receive any other right, or
(b) there shall be any capital reorganization of the
Company, any reclassification or recapitalization of the capital stock of the
Company or any consolidation or merger of the Company with, or any sale,
transfer or other disposition of all or substantially all the property, assets
or business of the Company to, another corporation or,
(c) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holder (i) at
least 30 days' prior written notice of the date on which a record date shall be
selected for such dividend, distribution or right or for determining rights to
vote in respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, liquidation or winding up, and (ii)
in the case of any such reorganization, reclassification, merger, consolidation,
sale, transfer, disposition, dissolution, liquidation or winding up, at least 30
days' prior written notice of the date when the same shall take place. Such
notice in accordance with the foregoing clause also shall specify (i) the date
on which any such record is to be taken for the purpose of such dividend,
distribution or right, the date on which the holders of Common Stock shall be
entitled to any such dividend, distribution or right, and the amount and
character thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up is to take place and the time, if any
such time is to be fixed, as of which the holders of Common Stock shall be
entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such disposition, dissolution, liquidation or winding
up. Each such written notice shall be sufficiently given if addressed to Holder
at the last address of Holder appearing on the books of the Company and
delivered in accordance with Section 16(d).
15. AUTHORIZED SHARES. The Company covenants that during the
period the Warrant is outstanding, it will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of the Warrant Shares upon the exercise of any purchase rights under this
Warrant. The Company further covenants that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary certificates for
the Warrant Shares upon the exercise of the purchase rights under this Warrant.
The Company will take all such reasonable action as may be necessary to assure
6
<PAGE> 12
that such Warrant Shares may be issued as provided herein without violation of
any applicable law or regulation, or of any requirements of the Principal Market
upon which the Common Stock may be listed.
The Company shall not by any action, including, without
limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate to protect the
rights of Holder against impairment. Without limiting the generality of the
foregoing, the Company will (a) not increase the par value of any shares of
Common Stock receivable upon the exercise of this Warrant above the amount
payable therefor upon such exercise immediately prior to such increase in par
value, (b) take all such action as may be necessary or appropriate in order that
the Company may validly and legally issue fully paid and nonassessable shares of
Common Stock upon the exercise of this Warrant, and (c) use its best efforts to
obtain all such authorizations, exemptions or consents from any public
regulatory body having jurisdiction thereof as may be necessary to enable the
Company to perform its obligations under this Warrant.
Before taking any action which would result in an adjustment
in the number of shares of Common Stock for which this Warrant is exercisable or
in the Exercise Price, the Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
16. MISCELLANEOUS.
(a) JURISDICTION. This Warrant shall be binding upon any
successors or assigns of the Company. This Warrant shall constitute a contract
under the laws of New York, without regard to its conflict of law, principles or
rules, and be subject to arbitration pursuant to the terms set forth in the
Subscription Agreement.
(b) RESTRICTIONS. The holder hereof acknowledges that the Warrant
Shares acquired upon the exercise of this Warrant, if not registered, will have
restrictions upon resale imposed by state and federal securities laws.
(c) NONWAIVER AND EXPENSES. No course of dealing or any delay or
failure to exercise any right hereunder on the part of Holder shall operate as a
waiver of such right or otherwise prejudice Holder's rights, powers or remedies,
notwithstanding all rights hereunder terminate on the Termination Date. If the
Company fails to comply with any provision of this Warrant, the Company shall
pay to Holder such amounts as shall be sufficient to cover any costs and
expenses including, but not limited to, reasonable attorneys' fees, including
those of appellate proceedings, incurred by Holder in collecting any amounts due
pursuant hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.
(d) NOTICES. Any notice, request or other document required or
permitted to be given or delivered to the holder hereof by the Company shall be
delivered in accordance with the notice provisions of the Subscription
Agreement.
7
<PAGE> 13
(e) LIMITATION OF LIABILITY. No provision hereof, in the absence
of affirmative action by Holder to purchase shares of Common Stock, and no
enumeration herein of the rights or privileges of Holder hereof, shall give rise
to any liability of Holder for the purchase price of any Common Stock or as a
stockholder of the Company, whether such liability is asserted by the Company or
by creditors of the Company.
(f) REMEDIES. Holder, in addition to being entitled to exercise
all rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Warrant. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Warrant and hereby agrees to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
(g) SUCCESSORS AND ASSIGNS. Subject to applicable securities laws,
this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors of the Company and the successors
and permitted assigns of Holder. The provisions of this Warrant are intended to
be for the benefit of all Holders from time to time of this Warrant and shall be
enforceable by any such Holder or holder of Warrant Shares.
(h) INDEMNIFICATION. The Company agrees to indemnify and hold
harmless Holder from and against any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, attorneys' fees, expenses
and disbursements of any kind which may be imposed upon, incurred by or asserted
against Holder in any manner relating to or arising out of any failure by the
Company to perform or observe in any material respect any of its covenants,
agreements, undertakings or obligations set forth in this Warrant; PROVIDED,
HOWEVER, that the Company will not be liable hereunder to the extent that any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs, attorneys' fees, expenses or disbursements are found in a final
non-appealable judgment by a court to have resulted from Holder's negligence,
bad faith or willful misconduct in its capacity as a stockholder or
warrantholder of the Company.
(i) AMENDMENT. This Warrant may be modified or amended or the
provisions hereof waived with the written consent of the Company and the Holder.
(j) SEVERABILITY. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this Warrant.
8
<PAGE> 14
(k) HEADINGS. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officer thereunto duly authorized.
Dated: February 18, 2000
Viragen, Inc
By: /s/ Dennis W. Healey
-----------------------------------------
Dennis W. Healey, Chief Financial Officer
9
<PAGE> 15
NOTICE OF EXERCISE
To: Viragen, Inc.
(1) The undersigned hereby elects to purchase ________ shares of
Common Stock (the "Common Stock"), of Viragen, Inc. pursuant to the terms of the
attached Warrant, and tenders herewith payment of the exercise price in full,
together with all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said
shares of Common Stock in the name of the undersigned or in such other name as
is specified below:
----------------------------------------
(Name)
----------------------------------------
(Address)
----------------------------------------
Dated:
------------------------------
Signature
<PAGE> 16
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
whose address is
- -----------------------------------------------
- ---------------------------------------------------------------
- ---------------------------------------------------------------
Dated:
-------------- , ------
Holder's Signature:
--------------------------------
Holder's Address:
--------------------------------
--------------------------------
Signature Guaranteed:
---------------------------------------------
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in an fiduciary or other representative
capacity should file proper evidence of authority to assign the foregoing
Warrant.
<PAGE> 17
EXHIBIT B
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR ANY STATE SECURITIES LAW AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT COVERING SUCH SECURITIES UNLESS THE ISSUER RECEIVES AN OPINION OF
COUNSEL FOR THE HOLDER OF THIS NOTE REASONABLY SATISFACTORY TO THE ISSUER
STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT AND APPLICABLE
STATE SECURITIES LAWS OR THAT THE SALE IS MADE IN ACCORDANCE WITH RULE 144 UNDER
THE ACT.
VIRAGEN, INC.
CONVERTIBLE PROMISSORY NOTE
$1,000,000 February 18, 2000
FOR VALUE RECEIVED, Viragen, Inc., a Delaware corporation,
with an address at 865 S.W. 78th Avenue, Suite 100, Plantation, Florida 33324
(the "Company" or "Payor"), promises to pay to the order of ACTIVE INVESTORS
LTD. II (the "Payee" or the "Holder"), or registered assigns, the principal
amount of One Million Dollars ($1,000,000) on February 17, 2001 (the "Maturity
Date"), and unpaid interest on the unpaid principal balance hereof from the date
of this Note at the rate of 9 1/2% per annum, payable in full no later than on
the Maturity Date. Payments of principal and interest shall be made in such coin
or currency of the United States of America as at the time of payment shall be
legal tender for the payment of public or private debts.
1. TERMS OF REPAYMENT.
1.1 All payments received on account of this Note shall
be applied first to the payment of accrued interest on this Note and then to the
reduction of the unpaid principal balance of this Note. Interest shall be
computed on the basis of a year of 360 days, for the actual number of days
elapsed.
1.2 If payment of the outstanding principal amount of
this Note, together with accrued unpaid interest thereon at the applicable rate
of interest (as set forth herein), is not made on the Maturity Date, then
interest shall accrue on the outstanding principal amount due under this Note
and on any unpaid accrued interest due on this date of the payment in full of
such amounts (including from and after the date of the entry of judgment in
favor of the Holder in an action to collect this Note) at an annual rate equal
to the lesser of 18% or the maximum rate of interest permitted by applicable
law.
1.3 Notwithstanding anything to the contrary contained in
this Note, the Company shall not be obligated pay, and the Holder shall not be
entitled to charge, collect, or receive, interest in excess of the maximum rate
allowed by applicable law. During any period of time in which the interest rate
<PAGE> 18
specified herein exceeds such maximum rate, any amounts of interest collected by
the Holder in excess of such maximum rate shall be deemed to apply to principal,
and all payments of interest and principal shall be recalculated to allow for
such characterization.
1.4 In the event that the date for the payment of any
amount payable under this Note falls due on a Saturday, Sunday or public holiday
under the laws of the State of Florida, the time for payment of such amount
shall be extended to the next succeeding business day and interest shall
continue to accrue on any principal amount so effected until the payment thereof
on such extended due date.
1.5 This Note is issued pursuant to a Subscription
Agreement between the Company and the Payee of even date herewith (the "Purchase
Agreement"), pursuant to which the Payee is purchasing, from the Company the
Note and warrants to acquire, up to an aggregate of 100,000 shares of the
Company's Common Stock, at an exercise price of $2.00 per share (the
"Warrants"). This Note is subject and entitled to certain terms, conditions,
covenants and agreements contained in the Purchase Agreement. Any transferee or
transferees of this Note, by their acceptance hereof, assume the obligations of
the Payee in the Purchase Agreement with respect to the conditions and
procedures for transfer of this Note. Reference to the Purchase Agreement shall
in no way impair the absolute and unconditional obligation of the Company to pay
both principal and interest hereon as provided herein.
2. CONVERSION RIGHTS.
2.1 RIGHT TO CONVERT. The Holder shall have the option,
at any time to convert, all or any part of the outstanding principal amount of
this Note into fully paid and non-assessable shares of the Common Stock, par
value $.01 per share, of the Company (the "Conversion Right") at the Conversion
Price (as defined below) determined as provided in this Section 2. Promptly
after the surrender of this Note, accompanied by a Notice of Conversion of
Convertible Note in the form attached hereto as Exhibit A, properly completed
and duly executed by the Holder (a "Conversion Notice"), the Company shall issue
and deliver to or upon the order of the Holder that number of shares of Common
Stock for the balance of this Note converted as shall be determined in
accordance herewith.
2.2 CALCULATION. The number of shares of Common Stock to
be issued upon each conversion of this Note shall be determined by dividing (i)
the amount of Principal to be converted by (ii) the Conversion Price in effect
on the date the Conversion Notice is delivered to the Company by the Holder.
2.3 CONVERSION PRICE. The conversion price shall be $1.00
per share, subject to adjustment from time to time upon the happening of certain
events (as adjusted, the "Conversion Price") as set forth below.
2.4 SUBDIVISION. If the Company, at any time while Notes
remain outstanding, shall (i) subdivide the Common Stock (or effect a similar
transaction), the Conversion Price shall be proportionately reduced or (ii)
effect a reverse stock split or similar transaction, the Conversion Price shall
be proportionately increased, as the case may be, as of the effective date of
such subdivision, reverse stock split or similar transaction, or, if the Company
2
<PAGE> 19
shall take a record of holders of its Common Stock for the purpose of any such
transaction, as of such record date, whichever is earlier (provided if such
transaction does not actually occur, such adjustment shall not be made).
2.5 STOCK DIVIDENDS. If the Company at any time while the
Note is outstanding 0 0 all pay a dividend in shares of, or make other
distribution of shares of, the Common Stock, then the Conversion Price shall be
adjusted, as of the date the Company shall take a record of the holders of its
Common Stock for the purpose of receiving such dividend or other distribution
(or if no such record is taken, as at the date of such payment or other
distribution), to that price determined by multiplying the Conversion Price in
effect immediately prior to such payment or other distribution by a fraction (a)
the numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution, and (b) the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution.
2.6 RECLASSIFICATION, CONSOLIDATION OR MERGER. At any
time while this Note remains outstanding, in case of any reclassification or
change of Common Stock (other than a change in par value, or from par value to
no par value per share, or from no par value per share to par value) or in case
of any consolidation or merger of the Company with or into another corporation
(other than a merger with another corporation in which the Company is a
continuing corporation and which does not result in any reclassification or
change, other than a change in par value, or from par value to no par value per
share, or from no par value per share to par value), or in the case of any sale
or transfer to another corporation of the property of the Company as an entirety
or substantially as an entirety, the Company or such successor or purchasing
corporation, as the case may be, shall, without payment of any additional
consideration therefor, execute new note providing that the holder of the Note
shall have the right to exercise such new note (upon terms not less favorable to
the holder than those then applicable to the Note) and to receive upon such
exercise, in lieu of each share of Common Stock theretofore issuable upon
exercise of the Note, the kind and amount of shares of stock, other securities,
money or property receivable upon such reclassification, change, consolidation,
merger, sale or transfer by the Holder of one share of Common Stock issuable
upon exercise of the Note had the Note been converted immediately prior to such
reclassification, change, consolidation, merger, sale or transfer. Such new note
shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 2. The provisions of
this Section 2.6 shall similarly apply to successive reclassifications, changes,
consolidations, mergers, sales and transfers.
2.7 SHARE ISSUANCE. If the Company at any time shall
issue any shares of Common Stock or options, warrants or convertible securities
providing for the issuance of shares of Common Stock, prior to the conversion of
the entire principal amount of the Note (otherwise than as provided above or
pursuant to options, warrants or other obligations to issue shares outstanding
on the date hereof as described in the Company's periodic reports filed with the
Securities and Exchange Commission) for a consideration less than the Conversion
Price that would be in effect at the time of such issue, then, and thereafter
successively upon each such issue, the Conversion Price shall be reduced to the
price of such share issuance.
2.8 METHOD OF CONVERSION. Except as otherwise provided in
this Note or agreed to by the Holder, this Note may be converted by the Holder
in whole at any time or in part (provided such partial conversion is at least
$20,000) from time to time by (i) submitting to the Company a Conversion Notice
(by facsimile dispatched on the Conversion Date and confirmed by U.S. mail or
3
<PAGE> 20
overnight mail service sent within two business days thereafter) and (ii)
surrendering this Note with the mailed confirmation of the Conversion Notice at
the principal office of the Company. Upon partial exercise of the Conversion
Rights, a new note containing the same date and provisions as this Note shall be
issued by the Company to the Holder for the balance due hereunder which shall
not have been converted.
2.9 RESTRICTIONS ON SHARES. This Note has been issued by
the Company pursuant to the exemption from registration under the Securities Act
of 1933 (the "Act"). The shares of Common Stock issuable upon conversion of this
Note may not be offered, sold or otherwise transferred unless (i) they first
shall have been registered under the Act and applicable state securities laws or
(ii) the Company shall have been furnished with an opinion of legal counsel (in
form, substance and scope reasonably acceptable to the Company) to the effect
that such sale or transfer is exempt from the registration requirements of the
Act. Each certificate for shares of Common Stock issuable upon conversion of
this Note that have not been so registered and that has not been sold pursuant
to an exemption that permits removal of the applicable legend, shall bear a
legend substantially in the following form, as appropriate:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT"). THE SECURITIES
REPRESENTED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED UNLESS THEY ARE REGISTERED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS, OR SUCH OFFERS, SALES AND
TRANSFERS ARE MADE PURSUANT TO AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
Upon the request of a holder of a certificate representing any
shares of Common Stock issuable upon conversion of this Note, the Company shall
remove the foregoing legend from the certificate or issue to such Holder a new
certificate therefor free of any transfer legend, if (i) with such request, the
Company shall have received an opinion of counsel, reasonably satisfactory to
the Maker in form, substance and scope, to the effect that any such legend may
be removed from such certificate or (ii) a registration statement under the Act
covering such securities is in effect.
2.10 RESERVATION OF SHARES. The Company shall at all times
have authorized and reserved, for the purpose of issuance, a sufficient number
of shares of Common Stock to provide for the issuance of shares of Common Stock
underlying the then outstanding aggregate principal amount of the Note.
3. COVENANTS. The Company covenants and agrees that for so
long as any portion of the indebtedness evidenced by this Note, whether
principal, accrued and unpaid interest or any other amount at any time due
hereunder, remains unpaid, the Company will:
(a) Pay and discharge all lawful taxes, assessments and
governmental charges or levies imposed upon it, upon its income and profits or
upon any of its assets, before the same shall become in default, as well as all
lawful claims for labor, materials and supplies which, if unpaid, might become a
lien or charge upon such properties or any part thereof, provided, however, that
the Company will not be required to pay and discharge any such tax, assessment,
4
<PAGE> 21
charge, levy or claim so long as (i) the validity, applicability and/or the
amount thereof shall be contested in good faith by appropriate proceedings, (ii)
the Company, shall have set aside on its books adequate reserves in accordance
with GAAP with respect to any such tax, assessment, charge, levy or claim so
contested, and (iii) enforcement of any lien on any assets of the Company
associated with any such taxes, assessments, charges, levies or claims shall
have been effectively stayed or fully bonded pending the final determination of
any such proceedings.
(b) Do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises and to comply in all material respects with all laws, regulations and
orders of each governmental authority having jurisdiction over the Company.
(c) Promptly following the occurrence of a Default (as
defined herein), furnish to the Holder a statement of the Company's President or
Chief Financial Officer setting forth the details of such Default and the action
which the Company proposes to take with respect thereto.
(d) At all times maintain true and complete records and
books of account in which all of the financial transactions of the Company are
duly recorded in conformance with GAAP.
(e) At all times reserve and keep available out of its
authorized shares of Common Stock, solely for the purpose of issuance upon
conversion of the Note, such number of shares of Common Stock as shall be
issuable upon the conversion of the Note.
(f) Take all action which may be necessary or expedient
to assure that, upon conversion of the Note, all shares issuable upon such
conversion or exercise will be duly and validly issued, fully paid,
non-assessable and not subject to the preemptive rights of any stockholder.
(g) Use the proceeds from the sale of the Notes primarily
for working capital.
(h) The Company shall provide to the Payee copies of the
Company's quarterly and annual reports as filed with the Securities and Exchange
Commission and copies of the Company's other information, documents and reports
which the Company is required to file with the Securities and Exchange
Commission (the "Commission") pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(i) Cooperate with the Holder and execute such further
instruments and documents as the Holder shall reasonably request to carry out to
their satisfaction the transactions contemplated by this Note.
(j) Permit Payee to visit and inspect any of the
properties of the Company, to examine the books of account of the Company (and
to make copies thereof and extracts therefrom), and to discuss the affairs,
finances and accounts of the Company with, and to be advised as to the same by,
its and their officers, at all such reasonable times and intervals as Payee may
reasonably request.
5
<PAGE> 22
(k) Comply in all material respects with (i) the
applicable laws and regulations wherever its business is conducted, (ii) the
provisions of its charter documents and by-laws, (iii) all agreements and
instruments by which it or any of its properties may be bound and (iv) all
applicable decrees, orders and judgements.
4. EVENTS OF DEFAULT. If any of the following events (each an
"Event of Default") shall occur:
4.1 The Company fails to pay the principal of, any
installment of interest accrued on, or any other amount at anytime owing under,
the Note as and when the same becomes due and payable and such default is not
cured within two days after notice of the occurrence of such default; or
4.2 The Company defaults in the due observance or
performance of or breach any of its covenants contained in this Note and such
default is not cured within 10 business days after notice of the occurrence of
such default; or
4.3 The Company shall (i) becomes insolvent, (ii) apply
for or consent to the appointment of, or the taking of possession by, a
receiver, trustee or similar official of or for itself or of or for all or a
substantial part of its property, (iii) make an assignment for the benefit of
its creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code,
as now or hereafter in effect (the "Code"), (v) file a petition seeking to take
advantage of any other bankruptcy, insolvency, moratorium, reorganization or
other similar law of any jurisdiction ("Other Laws"), (vi) acquiesce as to, or
fail to controvert in a timely or appropriate manner, an involuntary case filed
against the Company under the Code, or (vii) take any corporate action in
furtherance of any of the foregoing; or
4.4 A proceeding or involuntary case shall be commenced,
without the application or consent of the Company in any court of competent
jurisdiction (i) under the Code, (ii) seeking liquidation, reorganization,
dissolution, winding up or composition or readjustment of its debts under any
Other Laws, or (iii) seeking the appointment of a trustee, receiver or similar
official for it or for all or any substantial part of its assets, and any such
proceeding or case shall continue undismissed, or unstayed and in effect, for a
period of 90 days; or
4.5 A final judgment for the payment of money shall be
rendered by a court of competent jurisdiction against the Company, and the
Company shall not discharge the same, or procure a stay of execution thereof
within 30 days from the date of entry thereof and within such 30 day period or
such longer period during which execution of such judgment shall have been
stayed, appeal therefrom and cause the execution thereof to be stayed during
such appeal, and such judgment, together with all other judgments against the
Company (including all subsidiaries), shall exceed in the aggregate $100,000 in
excess of any insurance as to the subject matter of such judgments, as to which
coverage has not been declined or the underlying claim rejected by the
applicable insurer; or
4.6 The liquidation or dissolution of the Company or any
vote in favor thereof by the board of directors and stockholders of the Company;
or
6
<PAGE> 23
4.7 A proceeding is commenced to foreclose a security
interest in or lien on any asset of the Company as a result of a default in the
payment or performance of any indebtedness of the Company in excess of $100,000,
together with accrued unpaid interest thereon and related costs (other than the
Note); or
4.8 An attachment or garnishment is levied against the
assets of the Company or any Subsidiary thereof involving an amount in excess of
$100,000 and the lien created by such levy is not vacated, bonded or stayed
within 10 business days after such lien has attached to such assets; or
4.9 The Company defaults in the payment (regardless of
amount) when due of the principal of, interest on, or any other liability on
account of, any indebtedness of the Company(other than the Note) having an
unpaid principal amount in excess of $100,000, or a default occurs in the
performance or observance by the Company of any covenant or condition (other
than for the payment of money) contained in any note (other than this Note) or
agreement evidencing or pertaining to any such indebtedness, which causes the
maturity of such indebtedness to be accelerated or permits the holder or holders
of such indebtedness to declare the same to be due prior to the stated maturity
thereof;
4.10 The Company sells all or substantially all of its
assets or merges or is consolidated with another corporation in which the
Company is not the surviving corporation; then, and in any such event, the
Holder of this Note may by written notice to the Company declare the entire
unpaid principal amount of this Note outstanding together with accrued interest
thereon due and payable, and the same shall, unless such default be cured within
twenty (20) days after such notice, forthwith become due and payable upon the
expiration of such twenty (20) day period, without presentment, demand, protest,
or other notice of any kind, all of which are expressly waived.
5. SUITS FOR ENFORCEMENT AND REMEDIES. If any one or more
Events of Default shall occur, the Holder may proceed to (i) protect and enforce
Holder's rights either by suit in equity or by action at law, or both, whether
for the specific performance of any covenant, condition or agreement contained
in this Note or in any agreement or document referred to herein or in aid of the
exercise of any power granted in this Note or in any agreement or document
referred to herein, (ii) enforce the payment of this Note, or (iii) enforce any
other legal or equitable right of the Holder. No right or remedy herein or in
any other agreement or instrument conferred upon the Holder of this Note is
intended to be exclusive of any other right or remedy, and each and every such
right or remedy shall be cumulative and shall be in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise.
6. RESTRICTION ON TRANSFER. This Note has been acquired for
investment and has not been registered under the securities laws of the United
States of America or any state thereof. Accordingly, neither this Note nor any
interest therein may be offered for sale, sold or transferred in the absence of
registration and qualification of this Note under applicable federal and state
securities laws or an opinion of counsel of the Holder reasonably satisfactory
to the Company that such registration and qualification are not required.
7. PREPAYMENT. The principal of and accrued interest on this
Note may be prepaid in full at any time without premium or penalty.
7
<PAGE> 24
8. HOLDER DEEMED OWNER. The Company may deem and treat the
registered Holder hereof as the absolute owner of this Note (whether or not this
Note shall be overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Company, for the purpose of receiving
payment hereof or thereof or on account hereof and for all other purposes) and
the Company shall not be affected by notice to the contrary.
9. MISCELLANEOUS
9.1 If, following the occurrence of an Event of Default,
the Holder of this Note shall seek to enforce the collection of any amount of
principal and/or accrued interest on this Note, there shall be immediately due
and payable by the Company, in addition to the then unpaid principal of, and
accrued unpaid interest on, this Note, all costs and expenses incurred by the
Holder of this Note in connection therewith, including, without limitation,
reasonable attorneys' fees and disbursements.
9.2 No forbearance, indulgence, delay or failure to
exercise any right or remedy with respect to this Note shall operate as a waiver
or as an acquiescence in any Default, nor shall any single or partial exercise
of any right or remedy preclude any other or further exercise thereof or the
exercise of any other right or remedy.
9.3 This Note may not be modified or discharged (other
than by payment), except by a writing duly executed by the Company and Holder.
9.4 The headings of various sections and subsections of
this Note are for convenience of reference only and shall in no way modify any
of the terms or provisions of this Note.
9.5 All notices required to be given to any of the
parties hereunder shall be in writing and shall be deemed to have been
sufficiently given for all purposes when presented personally to such party,
sent by telecopier (with the original timely mailed), or sent by registered,
certified or express mail, return receipt requested, to such party at its
address set forth below:
If to the Company, to:
Viragen, Inc.
865 S.W. 78th Avenue, Suite 100
Plantation, FL 33324
Telecopier No.: (954) 233-1416
Attn.: Dennis W. Healey
If to the Payee, to:
Active Investors Ltd. II
8567 Coral Way, # 138
Miami, FL 33155
Attn.: Carl Singer
8
<PAGE> 25
Or hereafter given to the other party hereto pursuant to the
provisions of this Note.
9.6 The Company may not delegate its obligations under
this Note and such attempted delegations shall be null and void. The Holder may
assign, pledge or otherwise transfer this Note without prior written consent of
the Company. This Note inures to the benefit of Payee, its successors and its
assignee of this Note and binds the Company, and its successors and assigns, and
the terms "Payee" and "the Company" whenever occurring herein shall be deemed
and construed to include such respective successors and assigns.
9.7 This Note shall continue to be effective or be
reinstated, as the case may be, if at any time any payment made pursuant to it
is rescinded or must otherwise be returned by the Holder upon bankruptcy or
reorganization or otherwise of the Company, all as though such payment had not
been made.
9.8 THE COMPANY AND THE HOLDER EACH (I) AGREES THAT ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE SHALL BE
INSTITUTED EXCLUSIVELY IN THE APPROPRIATE STATE COURT, COUNTY OF BROWARD OR IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA (II)
WAIVES ANY OBJECTION WHICH THE COMPANY MAY HAVE NOW OR HEREAFTER BASED UPON
FORUM NON CONVENIENS OR TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND
(III) IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE STATE COURT, COUNTY OF
BROWARD AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
FLORIDA IN ANY SUCH SUIT, ACTION OR PROCEEDING. THE COMPANY AND THE HOLDER EACH
FURTHER AGREES TO ACCEPT AND ACKNOWLEDGE SERVICE OF ANY AND ALL PROCESS WHICH
MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE COURT, COUNTY
OF BROWARD OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
FLORIDA AND AGREES THAT SERVICE OF PROCESS UPON THE COMPANY OR THE HOLDER,
MAILED BY CERTIFIED MAIL TO THEIR RESPECTIVE ADDRESSES, SUCH SERVICE TO BECOME
EFFECTIVE THREE BUSINESS DAYS AFTER SUCH MAILING, WILL BE DEEMED IN EVERY
RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE COMPANY OR THE HOLDER, AS THE CASE
MAY BE, IN ANY SUIT, ACTION OR PROCEEDING. FURTHER, BOTH THE COMPANY AND THE
HOLDER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION TO ENFORCE THIS NOTE AND IN
CONNECTION WITH ANY DEFENSE, COUNTERCLAIM OR CROSSCLAIM ASSERTED IN ANY SUCH
ACTION.
9.9 This Note is exchangeable, without expense, upon the
surrender hereof by the Holder at the principal executive office of the Company,
for two or more new Notes of like tenor and date (except for the principal
amounts thereof) representing in the aggregate the same principal amount as this
Note, in such denominations as shall be designated by the Holder thereof at the
time of such surrender, provided that such new Notes shall be issuable in
minimum denominations of $100,000 and integral multiples thereof.
9.10 This Note shall be construed in accordance with and
governed by the laws of the State of Florida without regard to principles of
conflicts of law, and cannot be changed, discharged or terminated orally but
only by an instrument in writing signed by the party against whom enforcement of
any change, discharge or termination is sought.
9
<PAGE> 26
9.11 No forbearance, indulgence, delay or failure to
exercise any right or remedy with respect to this Note shall operate as a waiver
or as an acquiescence in any Event of Default, nor shall any single or partial
exercise of any right or remedy preclude any other or further exercise thereof
or the exercise of any other right or remedy.
PAYOR:
VIRAGEN, INC.
By: /s/ Dennis W. Healey
-------------------------------
Dennis W. Healey
Executive Vice President/CFO
10
<PAGE> 1
EXHIBIT 4.7
LOAN AND ESCROW AGREEMENT
THIS LOAN and ESCROW AGREEMENT (this "Agreement") is made as
of March 1, 2000, by and among Viragen, Inc., a corporation incorporated under
the laws of the State of Delaware (the "Company"), AMRO International, S.A.
("Investor"), and Epstein Becker & Green, P.C. (the "Escrow Agent").
W I T N E S S E T H:
WHEREAS, the Investor will be lending the Company $1,000,000
pursuant to a convertible promissory note, and will receive as partial
consideration therefor Warrants to purchase, in the aggregate, up to 100,000
shares of the Company's Common Stock, at a purchase equal to the closing bid
price of the Company's common stock on the OTCBB on March 1, 2000; and
WHEREAS, the Company and the Investor have requested that the
Escrow Agent hold the $1,000,000 loan disbursement in escrow until the Escrow
Agent has received the certificates representing the Warrants and the Promissory
Note for the $1,000,000 loan and a Registration Rights Agreement between the
Investor and the Company;
NOW, THEREFORE, in consideration of the covenants and mutual
promises contained herein and other good and valuable consideration, the receipt
and legal sufficiency of which are hereby acknowledged and intending to be
legally bound hereby, the parties agree as follows:
ARTICLE 1
TERMS OF THE ESCROW
1.1. The Investor hereby agrees to lend, and the Company hereby
agrees to borrow, the sum of $1,000,000, pursuant to the terms of that certain
Convertible Promissory Note attached hereto as Exhibit A, that certain Warrant
attached hereto as Exhibit B and that certain Registration Rights Agreement
attached hereto as Exhibit C, and this Purchase and Escrow Agreement.
1.2. The parties hereby agree to establish an escrow account with
the Escrow Agent whereby the Escrow Agent shall hold the funds for the loan and
the other documents described herein.
1.3. At the Closing, once Escrow Agent has received the original
executed Convertible Promissory Note and Warrant certificate from the Company,
together with an executed Registration Rights Agreement from the Company and the
Investor, it shall (i) enter the funding date on the face of the Convertible
Promissory Note and enter the exercise price on the face of the Warrant and then
(ii) wire the sum of $1,000,000 per the written instructions of the Company net
of legal and escrow administrative costs of five thousand dollars ($5,000) to
Epstein Becker & Green, P.C. ("EB&G"), 250 Park Avenue, New York, NY 10177, and
seven percent (7%) of the amount of the Promissory Note ($70,000) as directed by
<PAGE> 2
AMRO as payment of the placement fees and non-accountable expenses of the
transaction.
Once the funds (as set forth above) have been sent per the Company's
instructions, the Escrow Agent shall then arrange to have the Promissory Note,
the Warrants and the Registration Rights Agreement delivered to the Investor.
ARTICLE 2
MISCELLANEOUS
2.1. No waiver or any breach of any covenant or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension of
time for performance of any obligation or act shall be deemed any extension of
the time for performance of any other obligation or act.
2.2. All notices or other communications required or permitted
hereunder shall be in writing, and shall be sent by fax or overnight delivery
service to the last address of the party to be noticed.
2.3. This Escrow Agreement shall be binding upon and shall inure to
the benefit of the permitted successors and permitted assigns of the parties
hereto.
2.4. This Escrow Agreement is the final expression of, and contains
the entire agreement between, the parties with respect to the subject matter
hereof and supersedes all prior understandings with respect thereto. This Escrow
Agreement may not be modified, changed, supplemented or terminated, nor may any
obligations hereunder be waived, except by written instrument signed by the
parties to be charged or by its agent duly authorized in writing or as otherwise
expressly permitted herein.
2.5. Whenever required by the context of this Escrow Agreement, the
singular shall include the plural and masculine shall include the feminine. This
Escrow Agreement shall not be construed as if it had been prepared by one of the
parties, but rather as if both parties had prepared the same. Unless otherwise
indicated, all references to Articles are to this Escrow Agreement.
2.6. The parties hereto expressly agree that this Escrow Agreement
shall be governed by, interpreted under and construed and enforced in accordance
with the laws of the State of New York. Any action to enforce, arising out of,
or relating in any way to, any provisions of this Escrow Agreement shall only be
brought in a state or Federal court sitting in New York City.
2.7. The Escrow Agent's duties hereunder may be altered, amended,
modified or revoked only by a writing signed by the Company, each Investor and
the Escrow Agent.
2
<PAGE> 3
2.8. The Escrow Agent shall be obligated only for the performance
of such duties as are specifically set forth herein and may rely and shall be
protected in relying or refraining from acting on any instrument reasonably
believed by the Escrow Agent to be genuine and to have been signed or presented
by the proper party or parties. The Escrow Agent shall not be personally liable
for any act the Escrow Agent may do or omit to do hereunder as the Escrow Agent
while acting in good faith, and any act done or omitted by the Escrow Agent
pursuant to the advice of the Escrow Agent's attorneys-at-law shall be
conclusive evidence of such good faith.
2.9. The Escrow Agent is hereby expressly authorized to disregard
any and all warnings given by any of the parties hereto or by any other person
or corporation, excepting only orders or process of courts of law and is hereby
expressly authorized to comply with and obey orders, judgments or decrees of any
court. In case the Escrow Agent obeys or complies with any such order, judgment
or decree, the Escrow Agent shall not be liable to any of the parties hereto or
to any other person, firm or corporation by reason of such decree being
subsequently reversed, modified, annulled, set aside, vacated or found to have
been entered without jurisdiction.
2.10. The Escrow Agent shall not be liable in any respect on account
of the identity, authorization or rights of the parties executing or delivering
or purporting to execute or deliver the Purchase Agreement or any documents or
papers deposited or called for thereunder.
2.11. The Escrow Agent shall be entitled to employ such legal
counsel and other experts as the Escrow Agent may deem necessary properly to
advise the Escrow Agent in connection with the Escrow Agent's duties hereunder,
may rely upon the advice of such counsel, and may pay such counsel reasonable
compensation therefor. THE ESCROW AGENT HAS ACTED AS LEGAL COUNSEL FOR THE
INVESTOR, AND MAY CONTINUE TO ACT AS LEGAL COUNSEL FOR THE INVESTOR FROM TIME TO
TIME, NOTWITHSTANDING ITS DUTIES AS THE ESCROW AGENT HEREUNDER. THE COMPANY
CONSENTS TO THE ESCROW AGENT IN SUCH CAPACITY AS LEGAL COUNSEL FOR THE INVESTOR
AND WAIVES ANY CLAIM THAT SUCH REPRESENTATION REPRESENTS A CONFLICT OF INTEREST
ON THE PART OF THE ESCROW AGENT. THE COMPANY UNDERSTANDS THAT THE INVESTOR AND
THE ESCROW AGENT ARE RELYING EXPLICITLY ON THE FOREGOING PROVISION IN ENTERING
INTO THIS ESCROW AGREEMENT.
2.12. The Escrow Agent's responsibilities as escrow agent hereunder
shall terminate if the Escrow Agent shall resign by written notice to the
Company and the Investors. In the event of any such resignation, the Investors
and the Company shall appoint a successor Escrow Agent.
2.13. If the Escrow Agent reasonably requires other or further
instruments in connection with this Escrow Agreement or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such instruments.
2.14. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the documents
or the escrow funds held by the Escrow Agent hereunder, the Escrow Agent is
authorized and directed in the Escrow Agent's sole discretion (1) to retain in
the Escrow Agent's possession without liability to anyone all or any part of
said documents or the escrow funds until such disputes shall have been settled
either by mutual written agreement of the parties concerned by a final order,
3
<PAGE> 4
decree or judgment or a court of competent jurisdiction after the time for
appeal has expired and no appeal has been perfected, but the Escrow Agent shall
be under no duty whatsoever to institute or defend any such proceedings or (2)
to deliver the escrow funds and any other property and documents held by the
Escrow Agent hereunder to a state or Federal court having competent subject
matter jurisdiction and located in the City of New York in accordance with the
applicable procedure therefor.
The Company and Investor agree jointly and severally to
indemnify and hold harmless the Escrow Agent and its partners, employees, agents
and representatives from any and all claims, liabilities, costs or expenses in
any way arising from or relating to the duties or performance of the Escrow
Agent hereunder or the transactions contemplated hereby other than any such
claim, liability, cost or expense to the extent the same shall have been
determined by final, unappealable judgment of a court of competent jurisdiction
to have resulted from the gross negligence or willful misconduct of the Escrow
Agent.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date set forth above by their undersigned signatories, each
being duly authorized to do so.
VIRAGEN, inc.
By: /s/ Dennis W. Healey
-----------------------------------------
Dennis W. Healey, Chief Financial Officer
AMRO INTERNATIONAL, S.A.
By: /s/ H. U. Bachofen
-----------------------------------------
H. U. Bachofen, Director
ESCROW AGENT:
EPSTEIN BECKER & GREEN, P.C.
By: /s/ Joseph A. Smith
-----------------------------------------
Joseph A. Smith,
Authorized Signatory
4
<PAGE> 5
EXHIBIT A
CONVERTIBLE PROMISSORY NOTE
$1,000,000 March 1, 2000
FOR VALUE RECEIVED, and intending to be legally bound,
Viragen, Inc., a Florida corporation with an office and principal place of
business at 865 SW 78th Avenue, Suite 100, Plantation, Florida 33324 (the
"Maker"), hereby unconditionally and irrevocably promises to pay to the order of
AMRO International, S.A. (the "Payee"), at the offices of Ultra Finanz AG,
Grossmuensterplatz 6, Zurich CH-8022, Switzerland, or such other place as Payee
may designate in writing, in lawful money of the United States of America, the
sum of One Million Dollars ($1,000,000) plus all accrued but unpaid interest, on
March 1, 2001.
Interest shall accrue on the outstanding principal balance of
this Promissory Note daily from the date of issuance until paid in full at the
rate of eight percent (8%) per annum, and shall be due and payable at the
maturity date, except that upon any partial payment or prepayment of the
principal balance hereof, all accrued but unpaid interest shall be paid
simultaneous with such prepayment of principal.
This Promissory Note may be prepaid in whole or in part at any
time or from time to time without penalty or premium upon five (5) business
days' prior written notice to the Payee, and shall be prepaid up to the extent
of fifty percent (50%) of the net proceeds to Maker from any public or private
sale of Maker's equity or equity-derivative securities by Maker.
The Payee is entitled, at its option, to convert at any time
the principal sum outstanding of this Promissory Note or any portion thereof,
together with accrued but unpaid interest, into shares of Common Stock of the
Maker ("Conversion Shares") at a conversion price for each share of Common Stock
equal to $1.00, subject to adjustment for any subsequent stock splits, reverse
splits or similar adjustments.
Conversion shall be effectuated by surrendering this
Promissory Note to the Maker (if such conversion will convert all outstanding
principal) together with the form of conversion notice attached hereto as
EXHIBIT A (the "Notice of Conversion"), executed by the Payee evidencing Payee's
intention to convert this Promissory Note or a specified portion (as above
provided) hereof, and accompanied, if required by the Maker, by proper
assignment hereof in blank. No fraction of a share or scrip representing a
fraction of a share will be issued on conversion, but the number of shares
issuable shall be rounded to the nearest whole share. Certificates representing
Common Stock upon conversion will be delivered to the Payee within five (5)
business days from the date the Notice of Conversion is delivered to the Maker.
Delivery of shares upon conversion shall be made to the address specified by the
Payee in the Notice of Conversion.
If the Maker merges or consolidates with another corporation
or sells or transfers all or substantially all of its assets to another person
and the Maker's common stockholders are entitled to receive stock, securities or
property in respect of or in exchange for common stock, then as a condition of
such merger, consolidation, sale or transfer, the Maker and any such successor,
purchaser or transferee agree that this Promissory Note may thereafter be
converted on the terms and subject to the conditions set forth above into the
kind and amount of stock, securities or property receivable upon such merger,
consolidation, sale or transfer by a holder of the number of shares of common
<PAGE> 6
stock into which this Promissory Note might have been converted immediately
before such merger, consolidation, sale or transfer, subject to adjustments
which shall be as nearly equivalent as may be practicable. In the event of any
proposed merger, consolidation or sale or transfer of all or substantially all
of the assets of the Maker (a "Sale"), the Payee shall have the right to convert
by delivering a Notice of Conversion to the Maker within fifteen (15) days of
receipt of notice of such Sale from the Maker. In the event the Payee shall
elect not to convert, the Maker may prepay all outstanding principal and accrued
interest on this Promissory Note, upon which tender of payment following such
notice, the right of conversion shall terminate.
For purposes of this Promissory Note, an "Event of Default"
shall occur if the Maker shall: (i) fail to pay the entire principal amount of
this Promissory Note plus all accrued but unpaid interest when due and payable
after five (5) days' written notice to Maker of such default by Payee, (ii) fail
to honor any conversion notice within five (5) business days, (iii) admit in
writing its inability to pay any of its monetary obligations under this
Promissory Note, (iv) make a general assignment of its assets for the benefit of
creditors, or (v) allow any proceeding to be instituted by or against it seeking
relief from or by creditors, including, without limitation, any bankruptcy
proceedings, which, if not a voluntary proceeding, is not dismissed within
ninety (90) days.
In the event that an Event of Default has occurred, the Payee
or any other Payee of this Promissory Note may, by notice to the Maker, declare
this entire Promissory Note to be forthwith immediately due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Maker. In the event that an Event of Default
consisting of a voluntary or involuntary bankruptcy filing has occurred, then
this entire Promissory Note shall automatically become due and payable without
any notice or other action by Payee.
The nonexercise or delay by the Payee or any other Payee of
this Promissory Note of any of its rights hereunder in any particular instance
shall not constitute a waiver thereof in that or any subsequent instance. No
waiver of any right shall be effective unless in writing signed by the Payee,
and no waiver on one (1) or more occasions shall be conclusive as a bar to or
waiver of any right on any other occasion.
Should any part of the indebtedness evidenced hereby be
collected by law or through an attorney-at-law, the Payee or any other Payee of
this Promissory Note shall, if permitted by applicable law, be entitled to
collect from the Maker all reasonable costs of collection, including, without
limitation, attorneys' fees.
All notices and other communications must be in writing to the
address of the party set forth in the first paragraph hereof and shall be deemed
to have been received when delivered personally (which shall include via fax or
an overnight courier service) or, if mailed, five (5) business days after having
been mailed by registered or certified mail, return receipt requested, postage
prepaid. The parties may designate by notice to each other any new address for
the purpose of this Promissory Note.
2
<PAGE> 7
Maker hereby forever waives presentment, demand, presentment
for payment, protest, notice of protest, and notice of dishonor of this
Promissory Note and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Promissory Note.
This Promissory Note shall be binding upon the successors and
assigns of the Maker, and shall be binding upon, and inure to the benefit of,
the successors and assigns of the Payee.
This Promissory Note shall be governed by and construed in
accordance with the internal laws of the State of New York. All disputes between
the Maker and the Payee relating in any way to this Promissory Note shall be
resolved only by state and federal courts located in New York County, New York,
and the courts to which an appeal therefrom may be taken.
IN WITNESS WHEREOF, the undersigned Maker has executed this
Promissory Note as of March 1, 2000.
MAKER:
Viragen, Inc.
By: /s/ Dennis W. Healey
-----------------------------------------
Dennis W. Healey
Chief Financial Officer
3
<PAGE> 8
EXHIBIT A
NOTICE OF CONVERSION
(To be Executed by the Registered Payee in order to Convert the Promissory Note)
The undersigned hereby irrevocably elects to convert
$________________ of the principal amount of the above Promissory Note No. _____
into Shares of Common Stock of Medisys Technologies, Inc. (the "Maker")
according to the conditions hereof, as of the date written below.
Date of Conversion* ____________________________________________________________
Applicable Conversion Price * __________________________________________________
Accrued Interest________________________________________________________________
Signature_______________________________________________________________________
[Name]
Address:________________________________________________________________________
________________________________________________________________________
* This original Notice of Conversion must be received by the Maker by the third
Trading Day following the Date of Conversion, and, if such conversion represents
the remaining principal balance of the Promissory Note, the original Promissory
Note.
4
<PAGE> 9
EXHIBIT B
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR ANY OTHER APPLICABLE STATE SECURITIES LAWS IN RELIANCE UPON AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT PURSUANT TO REGULATION D AND
SUCH OTHER SECURITIES LAWS. NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON
EXERCISE HEREOF MAY BE SOLD, PLEDGED, TRANSFERRED, ENCUMBERED OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR IN A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER THE
PROVISIONS OF THE SECURITIES ACT OR ANY APPLICABLE STATE LAWS.
STOCK PURCHASE WARRANT
To Purchase 100,000 Shares of Common Stock of
Viragen, Inc.
THIS CERTIFIES that, for value received, AMRO International, S.A. (the
"Holder"), is entitled, upon the terms and subject to the limitations on
exercise and the conditions hereinafter set forth, at any time on or after March
1, 2000 (the "Initial Exercise Date") and on or prior to the close of business
on March 1, 2004 (the "Termination Date") but not thereafter, to subscribe for
and purchase from Viragen, Inc., a corporation incorporated in Delaware (the
"Company"), up to One Hundred Thousand (100,000) shares (the "Warrant Shares")
of Common Stock, no par value, of the Company (the "Common Stock"). The purchase
price of one share of Common Stock (the "Exercise Price") under this Warrant
shall be $1.71875 (100% of the closing bid price on March 1, 2000). The Exercise
Price and the number of shares for which the Warrant is exercisable shall be
subject to adjustment as provided herein.
1
<PAGE> 10
1. TITLE TO WARRANT. Prior to the Termination Date and subject to
compliance with applicable laws, this Warrant and all rights hereunder are
transferable, in whole or in part, at the office or agency of the Company by the
holder hereof in person or by duly authorized attorney, upon surrender of this
Warrant together with the Assignment Form annexed hereto properly endorsed.
2. AUTHORIZATION OF SHARES. The Company covenants that all shares
of Common Stock which may be issued upon the exercise of rights represented by
this Warrant will, upon exercise of the rights represented by this Warrant, be
duly authorized, validly issued, fully paid and nonassessable and free from all
taxes, liens and charges in respect of the issue thereof (other than taxes in
respect of any transfer occurring contemporaneously with such issue).
3. EXERCISE OF WARRANT.
(a) Except as provided in Section 4 herein, exercise of
the purchase rights represented by this Warrant may be made at any time or times
on or after the Initial Exercise Date, and before the close of business on the
Termination Date by the surrender of this Warrant and the Notice of Exercise
Form annexed hereto duly executed, at the office of the Company (or such other
office or agency of the Company as it may designate by notice in writing to the
registered holder hereof at the address of such holder appearing on the books of
the Company) and upon payment of the Exercise Price of the shares thereby
purchased by wire transfer or cashier's check drawn on a United States bank, the
holder of this Warrant shall be entitled to receive a certificate for the number
of shares of Common Stock so purchased. Certificates for shares purchased
hereunder shall be delivered to the holder hereof within three (3) Trading Days
after the date on which this Warrant shall have been exercised as aforesaid.
This Warrant shall be deemed to have been exercised and such certificate or
certificates shall be deemed to have been issued, and Holder or any other person
so designated to be named therein shall be deemed to have become a holder of
record of such shares for all purposes, as of the date the Warrant has been
exercised by payment to the Company of the Exercise Price and all taxes required
to be paid by Holder, if any, pursuant to Section 5 prior to the issuance of
such shares, have been paid.
(b) If this Warrant shall have been exercised in part,
the Company shall, at the time of delivery of the certificate or certificates
representing Warrant Shares, deliver to Holder a new Warrant evidencing the
rights of Holder to purchase the unpurchased shares of Common Stock called for
by this Warrant, which new Warrant shall in all other respects be identical with
this Warrant.
(c) If no registration statement is effective permitting
the resale of the shares of Common Stock issued upon exercise of this Warrant at
any time commencing one year after the issuance date hereof, then this Warrant
shall also be exercisable by means of a "cashless exercise" in which the holder
shall be entitled to receive a certificate for the number of shares equal to the
quotient obtained by dividing [(A-B) (X)] by (A), where:
2
<PAGE> 11
(A) = the average of the high and low trading prices per share of Common Stock
on the Trading Day preceding the date of such election on the Nasdaq Stock
Market, or if the Common Stock is not traded on the Nasdaq Stock Market, then
the principal market in terms of volume, and converted into US Dollars;
(B) = the Exercise Price of the Warrants; and
(X) = the number of shares issuable upon exercise of the Warrants in accordance
with the terms of this Warrant.
4. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which Holder would otherwise be entitled
to purchase upon such exercise, the Company shall pay a cash adjustment in
respect of such final fraction in an amount equal to the Exercise Price.
5. CHARGES, TAXES AND EXPENSES. Issuance of certificates for
shares of Common Stock upon the exercise of this Warrant shall be made without
charge to the holder hereof for any issue or transfer tax or other incidental
expense in respect of the issuance of such certificate, all of which taxes and
expenses shall be paid by the Company, and such certificates shall be issued in
the name of the holder of this Warrant or in such name or names as may be
directed by the holder of this Warrant; provided, however, that in the event
certificates for shares of Common Stock are to be issued in a name other than
the name of the older of this Warrant, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached hereto duly
executed by the holder hereof; and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax
incidental thereto.
6. CLOSING OF BOOKS. The Company will not close its shareholder
books or records in any manner which prevents the timely exercise of this
Warrant.
7. TRANSFER, DIVISION AND COMBINATION. (a) Subject to compliance
with any applicable securities laws, transfer of this Warrant and all rights
hereunder, in whole or in part, shall be registered on the books of the Company
to be maintained for such purpose, upon surrender of this Warrant at the
principal office of the Company, together with a written assignment of this
Warrant substantially in the form attached hereto duly executed by Holder or its
agent or attorney and funds sufficient to pay any transfer taxes payable upon
the making of such transfer. Upon such surrender and, if required, such payment,
the Company shall execute and deliver a new Warrant or Warrants in the name of
the assignee or assignees and in the denomination or denominations specified in
such instrument of assignment, and shall issue to the assignor a new Warrant
evidencing the portion of this Warrant not so assigned, and this Warrant shall
promptly be cancelled. A Warrant, if properly assigned, may be exercised by a
new holder for the purchase of shares of Common Stock without having a new
Warrant issued.
(b) This Warrant may be divided or combined with other
Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which
new Warrants are to be issued, signed by Holder or its agent or attorney.
Subject to compliance with Section 7(a), as to any transfer which may be
3
<PAGE> 12
involved in such division or combination, the Company shall execute and deliver
a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice.
(c) The Company shall prepare, issue and deliver at its
own expense (other than transfer taxes) the new Warrant or Warrants under this
Section 7.
(d) The Company agrees to maintain, at its aforesaid
office, books for the registration and the registration of transfer of the
Warrants.
8. NO RIGHTS AS SHAREHOLDER UNTIL EXERCISE. This Warrant does not
entitle the holder hereof to any voting rights or other rights as a shareholder
of the Company prior to the exercise hereof. Upon the surrender of this Warrant
and the payment of the aggregate Exercise Price, the Warrant Shares so purchased
shall be and be deemed to be issued to such holder as the record owner of such
shares as of the close of business on the later of the date of such surrender or
payment.
9. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT. The Company
covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant certificate
or any stock certificate relating to the Warrant Shares, and in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it
(which shall not include the posting of any bond), and upon surrender and
cancellation of such Warrant or stock certificate, if mutilated, the Company
will make and deliver a new Warrant or stock certificate of like tenor and dated
as of such cancellation, in lieu of such Warrant or stock certificate.
10. SATURDAYS, SUNDAYS, HOLIDAYS, ETC. If the last or appointed
day for the taking of any action or the expiration of any right required or
granted herein shall be a Saturday, Sunday or a legal holiday, then such action
may be taken or such right may be exercised on the next succeeding day not a
Saturday, Sunday or legal holiday.
11. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES.
(a) STOCK SPLITS, ETC. The number and kind of securities purchasable upon the
exercise of this Warrant and the Exercise Price shall be subject to adjustment
from time to time upon the happening of any of the following. In case the
Company shall (i) pay a dividend in shares of Common Stock or make a
distribution in shares of Common Stock to holders of its outstanding Common
Stock, (ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares of Common
Stock into a smaller number of shares of Common Stock or (iv) issue any shares
of its capital stock in a reclassification of the Common Stock, then the number
of Warrant Shares purchasable upon exercise of this Warrant immediately prior
thereto shall be adjusted so that the holder of this Warrant shall be entitled
to receive the kind and number of Warrant Shares or other securities of the
Company which he would have owned or have been entitled to receive had such
Warrant been exercised in advance thereof. Upon each such adjustment of the kind
and number of Warrant Shares or other securities of the Company which are
purchasable hereunder, the holder of this Warrant shall thereafter be entitled
4
<PAGE> 13
to purchase the number of Warrant Shares or other securities resulting from such
adjustment at an Exercise Price per Warrant Share or other security obtained by
multiplying the Exercise Price in effect immediately prior to such adjustment by
the number of Warrant Shares purchasable pursuant hereto immediately prior to
such adjustment and dividing by the number of Warrant Shares or other securities
of the Company resulting from such adjustment. An adjustment made pursuant to
this paragraph shall become effective immediately after the effective date of
such event retroactive to the record date, if any, for such event.
(b) REORGANIZATION, RECLASSIFICATION, MERGER,
CONSOLIDATION OR DISPOSITION OF ASSETS. In case the Company shall reorganize its
capital, reclassify its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving corporation or where there
is a change in or distribution with respect to the Common Stock of the Company),
or sell, transfer or otherwise dispose of all or substantially all its property,
assets or business to another corporation and, pursuant to the terms of such
reorganization, reclassification, merger, consolidation or disposition of
assets, shares of common stock of the successor or acquiring corporation, or any
cash, shares of stock or other securities or property of any nature whatsoever
(including warrants or other subscription or purchase rights) in addition to or
in lieu of common stock of the successor or acquiring corporation ("Other
Property"), are to be received by or distributed to the holders of Common Stock
of the Company, then Holder shall have the right thereafter to receive, upon
exercise of this Warrant, the number of shares of common stock of the successor
or acquiring corporation or of the Company, if it is the surviving corporation,
and Other Property receivable upon or as a result of such reorganization,
reclassification, merger, consolidation or disposition of assets by a holder of
the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such event. In case of any such reorganization,
reclassification, merger, consolidation or disposition of assets, the successor
or acquiring corporation (if other than the Company) shall expressly assume the
due and punctual observance and performance of each and every covenant and
condition of this Warrant to be performed and observed by the Company and all
the obligations and liabilities hereunder, subject to such modifications as may
be deemed appropriate (as determined in good faith by resolution of the Board of
Directors of the Company) in order to provide for adjustments of shares of
Common Stock for which this Warrant is exercisable which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 11.
For purposes of this Section 11, "common stock of the successor or acquiring
corporation" shall include stock of such corporation of any class which is not
preferred as to dividends or assets over any other class of stock of such
corporation and which is not subject to redemption and shall also include any
evidences of indebtedness, shares of stock or other securities which are
convertible into or exchangeable for any such stock, either immediately or upon
the arrival of a specified date or the happening of a specified event and any
warrants or other rights to subscribe for or purchase any such stock. The
foregoing provisions of this Section 11 shall similarly apply to successive
reorganizations, reclassifications, mergers, consolidations or disposition of
assets.
12. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may at any
time during the term of this Warrant, reduce the then current Exercise Price to
any amount and for any period of time deemed appropriate by the Board of
Directors of the Company.
13. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
number or kind of securities or other property purchasable upon the exercise of
this Warrant or the Exercise Price is adjusted, as herein provided, the Company
shall promptly mail by registered or certified mail, return receipt requested,
to the holder of this Warrant notice of such adjustment or adjustments setting
forth the number of Warrant Shares (and other securities or property)
purchasable upon the exercise of this Warrant and the Exercise Price of such
5
<PAGE> 14
Warrant Shares (and other securities or property) after such adjustment, setting
forth a brief statement of the facts requiring such adjustment and setting forth
the computation by which such adjustment was made. Such notice, in the absence
of manifest error, shall be conclusive evidence of the correctness of such
adjustment.
14. NOTICE OF CORPORATE ACTION. If at any time:
(a) the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend or other
distribution, or any right to subscribe for or purchase any evidences of its
indebtedness, any shares of stock of any class or any other securities or
property, or to receive any other right, or
(b) there shall be any capital reorganization of the
Company, any reclassification or recapitalization of the capital stock of the
Company or any consolidation or merger of the Company with, or any sale,
transfer or other disposition of all or substantially all the property, assets
or business of the Company to, another corporation or,
(c) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holder (i) at
least 30 days' prior written notice of the date on which a record date shall be
selected for such dividend, distribution or right or for determining rights to
vote in respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, liquidation or winding up, and (ii)
in the case of any such reorganization, reclassification, merger, consolidation,
sale, transfer, disposition, dissolution, liquidation or winding up, at least 30
days' prior written notice of the date when the same shall take place. Such
notice in accordance with the foregoing clause also shall specify (i) the date
on which any such record is to be taken for the purpose of such dividend,
distribution or right, the date on which the holders of Common Stock shall be
entitled to any such dividend, distribution or right, and the amount and
character thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up is to take place and the time, if any
such time is to be fixed, as of which the holders of Common Stock shall be
entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such disposition, dissolution, liquidation or winding
up. Each such written notice shall be sufficiently given if addressed to Holder
at the last address of Holder appearing on the books of the Company and
delivered in accordance with Section 16(d).
15. AUTHORIZED SHARES. The Company covenants that during the
period the Warrant is outstanding, it will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of the Warrant Shares upon the exercise of any purchase rights under this
Warrant. The Company further covenants that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary certificates for
the Warrant Shares upon the exercise of the purchase rights under this Warrant.
The Company will take all such reasonable action as may be necessary to assure
6
<PAGE> 15
that such Warrant Shares may be issued as provided herein without violation of
any applicable law or regulation, or of any requirements of the Principal Market
upon which the Common Stock may be listed.
The Company shall not by any action, including, without
limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate to protect the
rights of Holder against impairment. Without limiting the generality of the
foregoing, the Company will (a) not increase the par value of any shares of
Common Stock receivable upon the exercise of this Warrant above the amount
payable therefor upon such exercise immediately prior to such increase in par
value, (b) take all such action as may be necessary or appropriate in order that
the Company may validly and legally issue fully paid and nonassessable shares of
Common Stock upon the exercise of this Warrant, and (c) use its best efforts to
obtain all such authorizations, exemptions or consents from any public
regulatory body having jurisdiction thereof as may be necessary to enable the
Company to perform its obligations under this Warrant.
Before taking any action which would result in an adjustment
in the number of shares of Common Stock for which this Warrant is exercisable or
in the Exercise Price, the Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
16. MISCELLANEOUS.
(a) JURISDICTION. This Warrant shall be binding upon any
successors or assigns of the Company. This Warrant shall constitute a contract
under the laws of New York, without regard to its conflict of law, principles or
rules, and be subject to arbitration pursuant to the terms set forth in the
Purchase Agreement.
(b) RESTRICTIONS. The holder hereof acknowledges that the Warrant
Shares acquired upon the exercise of this Warrant, if not registered, will have
restrictions upon resale imposed by state and federal securities laws.
(c) NONWAIVER AND EXPENSES. No course of dealing or any delay or
failure to exercise any right hereunder on the part of Holder shall operate as a
waiver of such right or otherwise prejudice Holder's rights, powers or remedies,
notwithstanding all rights hereunder terminate on the Termination Date. If the
Company fails to comply with any provision of this Warrant, the Company shall
pay to Holder such amounts as shall be sufficient to cover any costs and
expenses including, but not limited to, reasonable attorneys' fees, including
those of appellate proceedings, incurred by Holder in collecting any amounts due
pursuant hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.
7
<PAGE> 16
(d) LIMITATION OF LIABILITY. No provision hereof, in the absence
of affirmative action by Holder to purchase shares of Common Stock, and no
enumeration herein of the rights or privileges of Holder hereof, shall give rise
to any liability of Holder for the purchase price of any Common Stock or as a
stockholder of the Company, whether such liability is asserted by the Company or
by creditors of the Company.
(e) REMEDIES. Holder, in addition to being entitled to exercise
all rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Warrant. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Warrant and hereby agrees to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
(f) SUCCESSORS AND ASSIGNS. Subject to applicable securities laws,
this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors of the Company and the successors
and permitted assigns of Holder. The provisions of this Warrant are intended to
be for the benefit of all Holders from time to time of this Warrant and shall be
enforceable by any such Holder or holder of Warrant Shares.
(g) INDEMNIFICATION. The Company agrees to indemnify and hold
harmless Holder from and against any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, attorneys' fees, expenses
and disbursements of any kind which may be imposed upon, incurred by or asserted
against Holder in any manner relating to or arising out of any failure by the
Company to perform or observe in any material respect any of its covenants,
agreements, undertakings or obligations set forth in this Warrant; PROVIDED,
HOWEVER, that the Company will not be liable hereunder to the extent that any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs, attorneys' fees, expenses or disbursements are found in a final
non-appealable judgment by a court to have resulted from Holder's negligence,
bad faith or willful misconduct in its capacity as a stockholder or
warrantholder of the Company.
(h) AMENDMENT. This Warrant may be modified or amended or the
provisions hereof waived with the written consent of the Company and the Holder.
(i) SEVERABILITY. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this Warrant.
8
<PAGE> 17
(j) HEADINGS. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officer thereunto duly authorized.
Dated: March 1, 2000
Viragen, Inc
By: /s/ Dennis W. Healey
-------------------------------
Dennis W. Healey
Chief Financial Officer
9
<PAGE> 18
NOTICE OF EXERCISE
To: Viragen, Inc.
(1) The undersigned hereby elects to purchase ________ shares of Common
Stock (the "Common Stock"), of Viragen, Inc. pursuant to the terms of the
attached Warrant, and tenders herewith payment of the exercise price in full,
together with all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
----------------------------------------
(Name)
----------------------------------------
(Address)
----------------------------------------
Dated:
------------------------------
Signature
<PAGE> 19
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
whose address is
- -----------------------------------------------
- ------------------------------------------------------------------------------.
- ------------------------------------------------------------------------------.
Dated:
--------------, -------
Holder's Signature:
---------------------------------
Holder's Address:
---------------------------------
---------------------------------
Signature Guaranteed:
------------------------------------------------
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in an fiduciary or other representative
capacity should file proper evidence of authority to assign the foregoing
Warrant.
<PAGE> 20
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of March 1, 2000
between AMRO International, S.A. (the "Investor"), and Viragen, Inc., a Delaware
corporation (the "Company").
WHEREAS, simultaneously with the execution and delivery of
this Agreement, the Investor is lending the Company $1,000,000 pursuant to a
Loan and Escrow Agreement dated the date hereof (the "Loan Agreement") in
exchange for a Convertible Promissory Note which is convertible into up to
1,000,000 shares of the Company's Common Stock, and is receiving from the
Company Warrants to purchase up to 100,000 shares of the Company's Common Stock
(terms not defined herein shall have the meanings ascribed to them in the Loan
Agreement); and
WHEREAS, the Company desires to grant to the Investor the
registration rights set forth herein with respect to the Shares issuable upon
conversion of the Convertible Promissory Note and shares of Common Stock
issuable upon exercise of the Warrants (hereinafter referred to as the "Stock"
or "Securities" of the Company).
NOW, THEREFORE, the parties hereto mutually agree as follows:
Section 1. REGISTRABLE SECURITIES. As used herein the term
"Registrable Security" means the Securities until (i) the Registration Statement
has been declared effective by the Commission, and all Securities have been
disposed of pursuant to the Registration Statement, (ii) all Securities have
been sold under circumstances under which all of the applicable conditions of
Rule 144 (or any similar provision then in force) under the Securities Act
("Rule 144") are met, (iii) all Securities have been otherwise transferred to
holders who may trade such Securities without restriction under the Securities
Act, and the Company has delivered a new certificate or other evidence of
ownership for such Securities not bearing a restrictive legend or (iv) such time
as, in the opinion of counsel to the Company, all Securities may be sold without
any time, volume or manner limitations pursuant to Rule 144(k) (or any similar
provision then in effect) under the Securities Act. The term "Registrable
Securities" means any and/or all of the securities falling within the foregoing
definition of a "Registrable Security." In the event of any merger,
reorganization, consolidation, recapitalization or other change in corporate
structure affecting the Common Stock, such adjustment shall be deemed to be made
in the definition of "Registrable Security" as is appropriate in order to
prevent any dilution or enlargement of the rights granted pursuant to this
Agreement.
Section 2. RESTRICTIONS ON TRANSFER. Investor acknowledges and
understands that prior to the registration of the Securities as provided herein,
the Securities are "restricted securities" as defined in Rule 144 promulgated
under the Act. Investor understands that no disposition or transfer of the
Securities may be made by Investor in the absence of (i) an opinion of counsel
<PAGE> 21
to the Investor, in form and substance reasonably satisfactory to the Company,
that such transfer may be made without registration under the Securities Act,
pursuant to Regulation D or another exemption, or (ii) such registration.
With a view to making available to the Investor the
benefits of Rule 144 under the Securities Act or any other similar rule or
regulation of the Commission that may at any time permit the Investor to sell
securities of the Company to the public without registration ("Rule 144"), the
Company agrees to:
(a) comply with the provisions of paragraph (c)(1) of
Rule 144; and
(b) file with the Commission in a timely manner all
reports and other documents required to be filed with the Commission pursuant to
Section 13 or 15(d) under the Exchange Act by companies subject to either of
such sections, irrespective of whether the Company is then subject to such
reporting requirements.
Section 3. REGISTRATION RIGHTS WITH RESPECT TO THE SECURITIES.
(a) The Company agrees that it will prepare and file
with the Securities and Conversion Commission ("Commission"), at the sole
expense of the Company (except as provided in Section 3(c) hereof), in respect
of the Investor a Registration Statement, so as to permit a public offering and
resale of all of the Securities under the Act by the Investor as selling
stockholders and not as underwriters. Such Registration Statement shall be filed
by the Company within thirty (30) days of demand therefor from the Investor,
provided, that the Investor shall not make any such demand prior to the
effective date of the Company's contemplated registration statement on Form S-3
for a Rule 415 shelf offering, provided, that the Investor may make a demand for
registration if such Form S-3 shall not have been declared effective by August
31, 2000.
The Company shall use its best efforts to cause such
Registration Statement to become effective within ninety (90) days from the
filing date, or, if earlier, within five (5) days of SEC clearance to request
acceleration of effectiveness. The Company will notify the Investor of the
effectiveness of the Registration Statement within one Trading Day of such
event.
(b) The Company will maintain the Registration
Statement or post-effective amendment filed under this Section 3 effective under
the Securities Act until the earlier of (i) the date that none of the Securities
covered by such Registration Statement are or may become issued and outstanding,
(ii) the date that all of the Securities have been sold pursuant to such
Registration Statement, (iii) the date the Investor receives an opinion of
counsel to the Company, which counsel shall be reasonably acceptable to the
Investor, that the Securities may be sold under the provisions of Rule 144
without limitation as to volume, (iv) all Securities have been otherwise
transferred to persons who may trade such shares without restriction under the
Securities Act, and the Company has delivered a new certificate or other
evidence of ownership for such securities not bearing a restrictive legend, or
(v) all Securities may be sold without any time, volume or manner limitations
2
<PAGE> 22
pursuant to Rule 144(k) or any similar provision then in effect under the
Securities Act in the opinion of counsel to the Company, which counsel shall be
reasonably acceptable to the Investor (the "Effectiveness Period").
(c) All fees, disbursements and out-of-pocket
expenses and costs incurred by the Company in connection with the preparation
and filing of the Registration Statement under subparagraph 3(a) and in
complying with applicable securities and Blue Sky laws (including, without
limitation, all attorneys' fees of the Company) shall be borne by the Company.
The Investor shall bear the cost of underwriting and/or brokerage discounts,
fees and commissions, if any, applicable to the Securities being registered and
the fees and expenses of their counsel. The Investor and its counsel shall have
a reasonable period, not to exceed five (5) Trading Days, to review the proposed
Registration Statement or any amendment thereto, prior to filing with the
Commission, and the Company shall provide Investor with copies of any comment
letters received from the Commission with respect thereto within two (2) Trading
Days of receipt thereof. The Company shall qualify any of the securities for
sale in such states as any Investor reasonably designates and shall furnish
indemnification in the manner provided in Section 6 hereof. However, the Company
shall not be required to qualify in any state which will require an escrow or
other restriction relating to the Company and/or the sellers, or which will
require the Company to qualify to do business in such state or require the
Company to file therein any general consent to service of process. The Company
at its expense will supply the Investor with copies of the applicable
Registration Statement and the prospectus included therein and other related
documents in such quantities as may be reasonably requested by the Investor.
(d) The Company shall not be required by this Section
3 to include an Investor's Securities in any Registration Statement which is to
be filed if, in the opinion of counsel for both the Investor and the Company
(or, should they not agree, in the opinion of another counsel experienced in
securities law matters acceptable to counsel for the Investor and the Company)
the proposed offering or other transfer as to which such registration is
requested is exempt from applicable federal and state securities laws and would
result in all purchasers or transferees obtaining securities which are not
"restricted securities", as defined in Rule 144 under the Securities Act.
(e) In the event that (i) the Registration Statement
to be filed by the Company pursuant to Section 3(a) above is not filed with the
Commission within thirty (30) days from the demand by Investor, (ii) such
Registration Statement is not declared effective by the Commission within the
earlier of ninety (90) days from the filing date or five (5) days of clearance
by the Commission to request effectiveness, or (iii) such Registration Statement
is not maintained as effective by the Company for the period set forth in
Section 3(b) above (each a "Registration Default") then the Company will pay
Investor (pro rated on a daily basis), as liquidated damages for such failure
and not as a penalty the sum of $25,000 for each month until such Registration
Statement has been filed, or in the event of late effectiveness (in case of
clause (ii) above) or lapsed effectiveness (in the case of clause (iii) above)
until such Registration Statement has been declared effective. Such payment of
the liquidated damages shall be made to the Investor in cash, within five (5)
calendar days of demand, provided, however, that the payment of such liquidated
damages shall not relieve the Company from its obligations to register the
Securities pursuant to this Section.
3
<PAGE> 23
If the Company does not remit the payment to the
Investor as set forth above, the Company will pay the Investor's reasonable
costs of collection, including attorneys' fees, in addition to the liquidated
damages. The registration of the Securities pursuant to this provision shall not
affect or limit the Investor's other rights or remedies as set forth in this
Agreement.
(f) No provision contained herein shall preclude the
Company from selling securities pursuant to any Registration Statement in which
it is required to include Securities pursuant to this Section 3.
(g) If at any time or from time to time after the
effective date of any Registration Statement, the Company notifies the Investor
in writing of the existence of a Potential Material Event (as defined in Section
3(h) below), the Investor shall not offer or sell any Securities or engage in
any other transaction involving or relating to Securities, from the time of the
giving of notice with respect to a Potential Material Event until the Investor
receives written notice from the Company that such Potential Material Event
either has been disclosed to the public or no longer constitutes a Potential
Material Event; provided, however, that the Company may not so suspend the right
to such holders of Securities for more than twenty (20) days in the aggregate
during any twelve month period, during the period the Registration Statement is
required to be in effect, and if such period is exceeded, such event shall be a
Registration Default. If a Potential Material Event shall occur prior to the
date a Registration Statement is required to be filed, then the Company's
obligation to file such Registration Statement shall be delayed without penalty
for not more than twenty (20) days, and such delay or delays shall not
constitute a Registration Default. The Company must, if lawful, give the
Investor notice in writing at least two (2) Trading Days prior to the first day
of the blackout period.
(h) "Potential Material Event" means any of the
following: (a) the possession by the Company of material information not ripe
for disclosure in a registration statement, as determined in good faith by the
Chief Executive Officer or the Board of Directors of the Company that disclosure
of such information in a Registration Statement would be detrimental to the
business and affairs of the Company; or (b) any material engagement or activity
by the Company which would, in the good faith determination of the Chief
Executive Officer or the Board of Directors of the Company, be adversely
affected by disclosure in a registration statement at such time, which
determination shall be accompanied by a good faith determination by the Chief
Executive Officer or the Board of Directors of the Company that the applicable
Registration Statement would be materially misleading absent the inclusion of
such information.
Section 4. COOPERATION WITH COMPANY. The Investor will
cooperate with the Company in all respects in connection with this Agreement,
including timely supplying all information reasonably requested by the Company
(which shall include all information regarding the Investor and proposed manner
of sale of the Registrable Securities required to be disclosed in any
Registration Statement) and executing and returning all documents reasonably
requested in connection with the registration and sale of the Registrable
Securities and entering into and performing their obligations under any
underwriting agreement, if the offering is an underwritten offering, in usual
and customary form, with the managing underwriter or underwriters of such
4
<PAGE> 24
underwritten offering. Nothing in this Agreement shall obligate Investor to
consent to be named as an underwriter in any Registration Statement. The
obligation of the Company to register the Registrable Securities shall be
absolute and unconditional as to those Securities which the Commission will
permit to be registered without naming the Investor as an underwriter. Any delay
or delays caused by the Investor by failure to cooperate as required hereunder
shall not constitute a Registration Default.
Section 5. REGISTRATION PROCEDURES. If and whenever the
Company is required by any of the provisions of this Agreement to effect the
registration of any of the Registrable Securities under the Act, the Company
shall (except as otherwise provided in this Agreement), as expeditiously as
possible, subject to the Investor's assistance and cooperation as reasonably
required with respect to each Registration Statement:
(a) (i) prepare and file with the Commission such
amendments and supplements to the Registration Statement and the prospectus used
in connection therewith as may be necessary to keep such Registration Statement
effective and to comply with the provisions of the Act with respect to the sale
or other disposition of all securities covered by such registration statement
whenever the Investor shall desire to sell or otherwise dispose of the same
(including prospectus supplements with respect to the sales of securities from
time to time in connection with a registration statement pursuant to Rule 415
promulgated under the Act) and (ii) take all lawful action such that each of (A)
the Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading and (B) the prospectus forming part of the Registration Statement,
and any amendment or supplement thereto, does not at any time during the
Registration Period include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(b) (i) prior to the filing with the Commission of
any Registration Statement (including any amendments thereto) and the
distribution or delivery of any prospectus (including any supplements thereto),
provide draft copies thereof to the Investor as required by Section 3(c) and
reflect in such documents all such comments as the Investor (and their counsel)
reasonably may propose and (ii) furnish to Investor such numbers of copies of a
prospectus including a preliminary prospectus or any amendment or supplement to
any prospectus, as applicable, in conformity with the requirements of the Act,
and such other documents, as the Investor may reasonably request in order to
facilitate the public sale or other disposition of the securities owned by
Investor;
(c) register and qualify the Registrable Securities
covered by the Registration Statement under such other securities or blue sky
laws of such jurisdictions as the Investor shall reasonably request (subject to
the limitations set forth in Section 3(c) above), and do any and all other acts
and things which may be necessary or advisable to enable the Investor to
consummate the public sale or other disposition in such jurisdiction of the
securities owned by Investor;
5
<PAGE> 25
(d) list such Registrable Securities on the Principal
Market, if the listing of such Registrable Securities is then permitted under
the rules of such Principal Market;
(e) notify Investor at any time when a prospectus
relating thereto covered by the Registration Statement is required to be
delivered under the Act, of the happening of any event of which it has knowledge
as a result of which the prospectus included in the Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and the Company shall prepare and file a curative amendment under
Section 5(a) as quickly as commercially possible;
(f) as promptly as practicable after becoming aware
of such event, notify Investor (or, in the event of an underwritten offering,
the managing underwriters) of the issuance by the Commission of any stop order
or other suspension of the effectiveness of the Registration Statement at the
earliest possible time and take all lawful action to effect the withdrawal,
recession or removal of such stop order or other suspension;
(g) cooperate with the Investor to facilitate the
timely preparation and delivery of certificates for the Registrable Securities
to be offered pursuant to the Registration Statement and enable such
certificates for the Registrable Securities to be in such denominations or
amounts, as the case may be, as the Investor reasonably may request and
registered in such names as the Investor may request; and, within three (3)
Trading Days after a Registration Statement which includes Registrable
Securities is declared effective by the Commission, deliver and cause legal
counsel selected by the Company to deliver to the transfer agent for the
Registrable Securities (with copies to the Investor) an appropriate instruction
and, to the extent necessary, an opinion of such counsel;
(h) take all such other lawful actions reasonably
necessary to expedite and facilitate the disposition by the Investor of their
Registrable Securities in accordance with the intended methods therefor provided
in the prospectus which are customary for issuers to perform under the
circumstances;
(i) in the event of an underwritten offering,
promptly include or incorporate in a prospectus supplement or post-effective
amendment to the Registration Statement such information as the managers
reasonably agree should be included therein and to which the Company does not
reasonably object and make all required filings of such prospectus supplement or
post-effective amendment as soon as practicable after it is notified of the
matters to be included or incorporated in such Prospectus supplement or
post-effective amendment; and
(j) maintain a transfer agent and registrar for its
Common Stock.
Section 6. INDEMNIFICATION.
(a) To the maximum extent permitted by law, the
Company agrees to indemnify and hold harmless the Investor and each person, if
any, who controls the Investor within the meaning of the Securities Act (each a
"Distributing Investor") against any losses, claims, damages or liabilities,
joint or several (which shall, for all purposes of this Agreement, include, but
not be limited to, all reasonable costs of defense and investigation and all
6
<PAGE> 26
reasonable attorneys' fees and expenses), to which the Distributing Investor may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, or any related final prospectus or
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that the Company will not be liable in any such case to the extent, and
only to the extent, that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement, preliminary prospectus,
final prospectus or amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to the Company by the
Distributing Investor, its counsel, affiliates or any underwriter, specifically
for use in the preparation thereof. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) To the maximum extent permitted by law, each
Distributing Investor agrees that it will indemnify and hold harmless the
Company, and each officer and director of the Company or person, if any, who
controls the Company within the meaning of the Securities Act, against any
losses, claims, damages or liabilities (which shall, for all purposes of this
Agreement, include, but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees and expenses) to which the
Company or any such officer, director or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in any Registration Statement, or any related final prospectus or amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but in each case
only to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission was made in such Registration Statement, final
prospectus or amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to the Company by such
Distributing Investor, its counsel, affiliates or any underwriter, specifically
for use in the preparation thereof. This indemnity agreement will be in addition
to any liability which the Distributing Investor may otherwise have.
Notwithstanding the foregoing, the liability of the Distributing Investor
hereunder shall not exceed the proceeds to the Distributing Investor from the
sale of the Securities.
(c) Promptly after receipt by an indemnified party
under this Section 6 of notice of the commencement of any action against such
indemnified party, such indemnified party will, if a claim in respect thereof is
to be made against the indemnifying party under this Section 6, notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve the indemnifying party from
any liability which it may have to any indemnified party except to the extent
the failure of the indemnified party to provide such written notification
actually prejudices the ability of the indemnifying party to defend such action.
In case any such action is brought against any indemnified party, and it
7
<PAGE> 27
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in, and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, assume the defense
thereof, subject to the provisions herein stated and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section 6 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation, unless the indemnifying party shall not
pursue the action to its final conclusion. The indemnified parties as a group
shall have the right to employ one separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall not be at the expense of the indemnifying party if the indemnifying party
has assumed the defense of the action with counsel reasonably satisfactory to
the indemnified party unless (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party, or (ii) the named
parties to any such action (including any impleaded parties) include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by its counsel that there may be one or more legal defenses
available to the indemnifying party different from or in conflict with any legal
defenses which may be available to the indemnified party or any other
indemnified party (in which case the indemnifying party shall not have the right
to assume the defense of such action on behalf of such indemnified party, it
being understood, however, that the indemnifying party shall, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable only for the reasonable fees and expenses of one
separate firm of attorneys for the indemnified party, which firm shall be
designated in writing by the indemnified party). No settlement of any action
against an indemnified party shall be made without the prior written consent of
the indemnified party, which consent shall not be unreasonably withheld so long
as such settlement includes a full release of claims against the indemnified
party.
Section 7. CONTRIBUTION. In order to provide for just and
equitable contribution under the Securities Act in any case in which (i) the
indemnified party makes a claim for indemnification pursuant to Section 6 hereof
but is judicially determined (by the entry of a final judgment or decree by a
court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that the express provisions of
Section 6 hereof provide for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of any indemnified party,
then the Company and the applicable Distributing Investor shall contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (which shall, for all purposes of this Agreement, include, but not be
limited to, all reasonable costs of defense and investigation and all reasonable
attorneys' fees and expenses), in either such case (after contribution from
others) on the basis of relative fault as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the applicable
Distributing Investor on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Distributing Investor agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
8
<PAGE> 28
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in this
Section 7. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this Section 7 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
Notwithstanding any other provision of this Section 7, in no event shall any (i)
Investor be required to undertake liability to any person under this Section 7
for any amounts in excess of the dollar amount of the proceeds received by such
Investor from the sale of such Investor's Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) pursuant to
any Registration Statement under which such Registrable Securities are
registered under the Securities Act and (ii) underwriter be required to
undertake liability to any person hereunder for any amounts in excess of the
aggregate discount, commission or other compensation payable to such underwriter
with respect to the Registrable Securities underwritten by it and distributed
pursuant to such Registration Statement.
Section 8. NOTICES. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder shall be in
writing and shall be delivered as set forth in the Loan Agreement.
Section 9. ASSIGNMENT. This Agreement is binding upon and
inures to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns. The rights granted the Investor under this
Agreement may be assigned to any purchaser of substantially all of the
Registrable Securities (or the rights thereto) from Investor.
Section 10. ADDITIONAL COVENANTS OF THE COMPANY. The Company
agrees that at such time as it otherwise meets the requirements for the use of
Securities Act Registration Statement on Form S-3 for the purpose of registering
the Registrable Securities, it shall file all reports and information required
to be filed by it with the Commission in a timely manner and take all such other
action so as to maintain such eligibility for the use of such form.
Section 11. COUNTERPARTS/FACSIMILE. This Agreement may be
executed in two or more counterparts, each of which shall constitute an
original, but all of which, when together shall constitute but one and the same
instrument, and shall become effective when one or more counterparts have been
signed by each party hereto and delivered to the other parties. In lieu of the
original, a facsimile transmission or copy of the original shall be as effective
and enforceable as the original.
Section 12. REMEDIES. The remedies provided in this Agreement
are cumulative and not exclusive of any remedies provided by law. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
9
<PAGE> 29
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their best efforts to find and
employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction.
Section 13. CONFLICTING AGREEMENTS. The Company shall not
enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the holders of Registrable Securities in this
Agreement or otherwise prevents the Company from complying with all of its
obligations hereunder.
Section 14. HEADINGS. The headings in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 15. GOVERNING LAW, ARBITRATION. This Agreement shall
be governed by and construed in accordance with the laws of the State of New
York applicable to contracts made in New York by persons domiciled in New York
City and without regard to its principles of conflicts of laws. Any dispute
under this Agreement shall be submitted to arbitration under the American
Arbitration Association (the "AAA") in New York City, New York, and shall be
finally and conclusively determined by the decision of a board of arbitration
consisting of three (3) members (hereinafter referred to as the "Board of
Arbitration") selected as according to the rules governing the AAA. The Board of
Arbitration shall meet on consecutive business days in New York City, New York,
and shall reach and render a decision in writing (concurred in by a majority of
the members of the Board of Arbitration) with respect to the amount, if any,
which the losing party is required to pay to the other party in respect of a
claim filed. In connection with rendering its decisions, the Board of
Arbitration shall adopt and follow the laws of the State of New York. To the
extent practical, decisions of the Board of Arbitration shall be rendered no
more than thirty (30) calendar days following commencement of proceedings with
respect thereto. The Board of Arbitration shall cause its written decision to be
delivered to all parties involved in the dispute. Any decision made by the Board
of Arbitration (either prior to or after the expiration of such thirty (30)
calendar day period) shall be final, binding and conclusive on the parties to
the dispute, and entitled to be enforced to the fullest extent permitted by law
and entered in any court of competent jurisdiction. The Board of Arbitration
shall be authorized and is hereby directed to enter a default judgment against
any party failing to participate in any proceeding hereunder within the time
periods set forth in the AAA rules. The non-prevailing party to any arbitration
(as determined by the Board of Arbitration) shall pay the expenses of the
prevailing party, including reasonable attorneys' fees, in connection with such
arbitration. Any party shall be entitled to obtain injunctive relief from a
court in any case where such relief is available.
10
<PAGE> 30
IN WITNESS WHEREOF, the parties hereto have caused this
Registration Rights Agreement to be duly executed, on the day and year first
above written.
Viragen, Inc.
By: /s/ Dennis W. Healey
-----------------------------------------
Dennis W. Healey, Chief Financial Officer
AMRO International, S.A.
By: /s/ H. U. Bachofen
-------------------------
H. U. Bachofen, Director
11
<PAGE> 1
EXHIBIT 4.8
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND MAY NOT BE SOLD, OFFERED FOR SALE, ASSIGNED, TRANSFERRED OR OTHERWISE
DISPOSED OF, UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF THE SECURITIES ACT
OR AN OPINION OF COUNSEL IS OBTAINED STATING THAT SUCH DISPOSITION IS IN
COMPLIANCE WITH AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION.
November 1, 1999
VIRAGEN, INC.
(Incorporated under the laws of the State of Delaware)
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
No. EB-01
FOR VALUE RECEIVED, VIRAGEN, INC. (the "Company"), a Delaware
corporation, hereby certifies that Equitable Equity Lending, Inc. (the
"Holder"), is entitled, subject to the provisions of the Warrant, to purchase
from the Company up to 25,000 fully paid and non-assessable shares of Common
Stock at a price equal to the closing price of the Common Stock as quoted by the
NASDAQ:OTC on Monday, November 1, 1999 (the "Exercise Price").
The term "Common Stock" means the Common Stock, par value $.01 per
share, of the Company as constituted on November 1, 1999 (the "Base Date"). The
number of shares of Common Stock to be received upon the exercise of this
Warrant may be adjusted from time to time as hereinafter set forth. The shares
of Common Stock deliverable upon such exercise, and as adjusted from time to
time, are hereinafter referred to as "Warrant Stock." The term "Other
Securities" means any other equity or debt securities that may be issued by the
Company in addition thereto or in substitution for the Warrant Stock. The term
"Company" means and includes the corporation named above as well as (i) any
immediate or more remote successor corporation resulting from the merger or
consolidation of such corporation (or any immediate or more remote successor
corporation of such corporation) with another corporation, or (ii) any
corporation to which such corporation (or any immediate or more remote successor
corporation of such corporation) has transferred its property or assets as an
entirety or substantially as an entirety.
Upon receipt by the Company of evidence satisfactory to it of the loss,
theft, destruction or mutilation of this Warrant, and (in the case of loss,
theft or destruction) of satisfactory indemnification, and upon surrender and
cancellation of this Warrant, if mutilated, the Company shall execute and
<PAGE> 2
deliver a new Warrant of like tenor and date. Any such new Warrant executed and
delivered shall constitute an additional contractual obligation on the part of
the Company, whether or not this Warrant so lost, stolen, destroyed or mutilated
shall be at any time enforceable by anyone.
The Holder agrees with the Company that this Warrant is issued, and all
the rights hereunder shall be held subject to, all of the conditions,
limitations and provisions set forth herein.
1. EXERCISE OF WARRANT. Subject to the provisions herein, this Warrant
shall vest and become exercisable in whole as of the date hereof for a five (5)
year period commencing on the date hereof (the "Expiration Date") or, if such
day is a day on which banking institutions in New York are authorized by law to
close, then on the next succeeding day that shall not be such a day, by
presentation and surrender of this Warrant to the Company at its principal
office, or at the office of its stock transfer agent, if any, with the Warrant
Exercise Form attached hereto duly executed and accompanied by payment (either
in cash or by certified or official bank check, payable to the order of the
Company) of the Exercise Price for the number of shares specified in such form
and instruments of transfer, if appropriate, duly executed by the Holder or his
or her duly authorized attorney. If this Warrant should be exercised in part
only, the Company shall, upon surrender of this Warrant for cancellation,
execute and deliver a new Warrant evidencing the rights of the Holder thereof to
purchase the balance of the shares purchasable hereunder under the same terms
and conditions of this Warrant. The Company shall pay any and all documentary
stamp or similar issue or transfer taxes payable in respect of the issue or
delivery of shares of Common Stock on exercise of this Warrant.
2. RESERVATION OF SHARES. The Company will at all times reserve for
issuance and delivery upon exercise of this Warrant all shares of Common Stock
or other shares of capital stock of the Company (and Other Securities) from time
to time receivable upon exercise of this Warrant. All such shares (and Other
Securities) shall be duly authorized and, when issued upon such exercise, shall
be validly issued, fully paid and non-assessable and free of all preemptive
rights.
3. FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant, but the
Company shall pay the holder an amount equal to the fair market value of such
fractional share of Common Stock in lieu of each fraction of a share otherwise
called for upon any exercise of this Warrant. For purposes of this Warrant, the
fair market value of a share of Common Stock shall be determined as follows:
(a) If the Common Stock is listed on a National Securities
Exchange or admitted to unlisted trading privileges on such exchange or
listed for trading on the NASDAQ system, the current market value shall
be the last reported sale price of the Common Stock on such exchange or
system on the last business day prior to the date of exercise of this
Warrant or, if no such sale is made on such day, the average of the
closing bid and asked prices for such day on such exchange or system;
or
(b) If the Common Stock is not so listed or admitted to unlisted
trading privileges, the current market value shall be the mean of the
last reported bid and asked prices reported by the National Quotation
2
<PAGE> 3
Bureau, Inc. on the last business day prior to the date of the exercise
of this Warrant; or
(c) If the Common Stock is not so listed or admitted to unlisted
trading privileges and bid and asked prices are not so reported, the
current market value shall be an amount, not less than book value
thereof as at the end of the most recent fiscal year of the Company
ending prior to the date of the exercise of the Warrant, determined in
such reasonable manner as may be prescribed by the Board of Directors
of the Company.
4. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or in
equity, and the rights of the Holder are limited to those expressed in this
Warrant.
5. ANTI-DILUTION PROVISIONS.
5.1 ADJUSTMENT FOR RECAPITALIZATION. If the Company shall at
any time subdivide its outstanding shares of Common Stock (or Other Securities
at the time receivable upon the exercise of the Warrant) by recapitalization,
reclassification or split-up thereof, or if the Company shall declare a stock
dividend or distribute shares of Common Stock to its stockholders, the number of
shares of Common Stock subject to this Warrant immediately prior to such
subdivision shall be proportionately increased, and the Exercise Price shall be
proportionately decreased, and if the Company shall at any time combine the
outstanding shares of Common Stock by recapitalization, reclassification or
combination thereof, the number of shares of Common Stock subject to this
Warrant immediately prior to such combination shall be proportionately
decreased, and the Exercise Price shall be proportionately increased. Any such
adjustments pursuant to this Section 5.1 shall be effective at the close of
business on the effective date of such subdivision or combination, or if any
adjustment is the result of a stock dividend or distribution, then the effective
date for such adjustment based thereof shall be the record date therefor.
5.2 ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
In case of any reorganization of the Company (or any other corporation, the
securities of which are at the time receivable on the exercise of this Warrant)
after the Base Date or in case after such date the Company (or any such other
corporation) shall consolidate with or merge into another corporation or convey
all or substantially all of its assets to another corporation, then, and in each
such case, the Holder of this Warrant upon the exercise thereof as provided in
Section 1 at any time after the consummation of such reorganization,
consolidation, merger or conveyance shall be entitled to receive, in lieu of the
3
<PAGE> 4
securities and property receivable upon the exercise of this Warrant prior to
such consummation, the securities or property to which such Holder would have
been entitled upon such consummation if such Holder had exercised this Warrant
immediately prior thereto; in each such case, the terms of this Warrant shall be
applicable to the securities or property receivable upon the exercise of this
Warrant after such consummation.
5.3 NOTIFICATION AS TO ADJUSTMENTS. In each case of an
adjustment in the number of shares of Common Stock receivable on the exercise of
the Warrant, the Company at its expense will promptly compute such adjustment in
accordance with the terms of the Warrant and will notify the Holder in writing
of such adjustment within 30 days of the effective date of such adjustment. When
appropriate, notice may be given in advance as part of notices required to be
mailed to the Holder pursuant to Section 5.4 hereof.
5.4 NOTICES OF RECORD DATE, ETC. In case:
(a) the Company shall take a record of the holders of its
Common Stock (or Other Securities at the time receivable upon the exercise of
the Warrant) for the purpose of entitling them to receive any dividend (other
than a cash dividend at the same rate as the rate of the last cash dividend
theretofore paid) or other distribution, or any right to subscribe for, purchase
or otherwise acquire any shares of stock of any class or any other securities,
or to receive any other right; or
(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance of all
or substantially all of the assets of the Company to another corporation; or
(c) of any voluntary or involuntary dissolution,
liquidation or winding up of the Company, then, and in each such case, the
Company shall mail or cause to be mailed to each Holder of the Warrant at the
time outstanding a notice specifying, as the case may be, (i) the date on which
a record is to be taken for the purpose of such dividend, distribution or right,
and stating the amount and character of such dividend, distribution or right, or
(ii) the date on which such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding up is to take place, and
the time, if any, is to be fixed, as to which the holders of record of Common
Stock (or such Other Securities at the time receivable upon the exercise of the
Warrant) shall be entitled to exchange their shares of Common Stock (or such
Other Securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding up. Such notice shall be mailed at least 20
days prior to the date therein specified, and the Warrant may be exercised prior
to said date during the term of the Warrant.
6. PIGGYBACK REGISTRATION RIGHTS. If at any time the Company shall prepare
and file one or more registration statements under the Securities Act with
respect to a public offering of equity securities of the Company, or of any such
securities of the Company held by its security holders (other than a
registration statement on Forms S-4, S-8, or similar form) the Company will
include in any such registration statement such information as is required, to
4
<PAGE> 5
permit a public offering of the Warrant Shares; provided, however, that if any
other security holder of the Company, pursuant to an agreement with the Company
has the right to prohibit the Company from registering the Warrant Shares then
the Company may exclude from such offering all of, or any portion of, the
Warrant Shares required to be so registered. The Company shall bear all fees and
expenses other than the fees and expenses of the undersigned's counsel incurred
in the preparation and filing of such registration statement and related state
registrations, to the extent permitted by applicable law, and the furnishing of
copies of the preliminary and final prospectus thereof to the undersigned. In
connection with filing such registration statement, the undersigned will be
required to furnish certain information to the Company and hereby agrees to
indemnify the Company against any loss, liabilities or damages, including
liabilities arising under the Act, with respect to any such information so
provided by the undersigned.
7. TRANSFER TO COMPLY WITH THE SECURITIES ACT. This Warrant and any
Warrant Stock or Other Securities may not be sold, assigned, transferred,
pledge, hypothecated or otherwise disposed of except as follows: (a) to a person
who, in the opinion of counsel to the Company, is a person to whom this Warrant
or the Warrant Stock or Other Securities may legally be transferred without
registration and without the delivery of a current prospectus under the
Securities Act with respect thereto and then only against receipt of an
agreement of such person to comply with the provisions of this Section 6 with
respect to any resale or other disposition of such securities; or (b) to any
person upon delivery of a prospectus then meeting the requirements of the
Securities Act relating to such securities and the offering thereof for such
sale or disposition, and thereafter to all successive assignees.
8. LEGEND. Unless the shares of Warrant Stock or Other Securities have
been registered under the Securities Act, upon exercise of any of the Warrants
and the issuance of any of the shares of Warrant Stock, all certificates
representing shares will bear on the face thereof substantially the following
legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
OFFERED FOR SALE, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED PURSUANT TO THE PROVISIONS OF THAT ACT OR UNLESS AN OPINION
OF COUNSEL TO THE CORPORATION IS OBTAINED STATING THAT SUCH DISPOSITION
IS IN COMPLIANCE WITH AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION.
9. NOTICES. All notices required hereunder shall be in writing and shall
be deemed given when sent via facsimile, delivered personally or within two days
after mailing when mailed by certified or registered mail, return receipt
requested, to the Company or the Holder, as the case may be, for whom such
notice is intended at the address of such party as set forth on the first page,
or at such other address of which the Company or the Holder has been advised by
notice hereunder.
10. APPLICABLE LAW. The Warrant is issued under and shall for all purposes
be governed by and construed in accordance with the laws of the State of
Delaware.
5
<PAGE> 6
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed on
its behalf, in its corporate name, by its duly authorized officer, all as of the
day and year first above written.
VIRAGEN, INC.
By: /s/ Dennis W. Healey
------------------------------
Dennis W. Healey
Executive Vice President
Chief Financial Officer
6
<PAGE> 7
WARRANT EXERCISE FORM
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _________ shares of Common Stock of Viragen,
Inc., a Delaware corporation, and hereby makes payment of $__________ in payment
therefore.
----------------------------------
Signature
----------------------------------
Signature, if jointly held
----------------------------------
Date
INSTRUCTIONS FOR ISSUANCE OF STOCK
(If other than to the registered holder of the within Warrant)
Name
------------------------------------------------------------
(Please typewrite or print in block letters)
Address
------------------------------------------------------------
------------------------------------------------------------
Social Security or
Taxpayer Identification Number
----------------------------------
Phone and Fax #'s:
-----------------------------------------------
7
<PAGE> 8
ASSIGNMENT FORM
FOR VALUE RECEIVED
-----------------------------
hereby sells, assigns and transfers unto
----------------
- --------------------------------------------
(Please typewrite or print in block letters)
the right to purchase Common Stock of Viragen, Inc., a Delaware corporation,
represented by this Warrant to the extend of shares as to which such right is
exercisable and does hereby irrevocably constitute and appoint _______________
Attorney to transfer the same on the books of the Company with full power of
substitution in the premises.
Dated: , 199
---------------- ---
--------------------------
Signature
--------------------------
Signature, if jointly held
8
<PAGE> 1
EXHIBIT 5
Suite 1700, 350 East Las Olas Boulevard, Fort Lauderdale, Florida 33301
Telephone (954) 763-1200 / Facsimile (954) 766-7800 / E-mail [email protected]
Web site http://www.atlaslaw.com
FORT LAUDERDALE o MIAMI o BOCA RATON o NAPLES o SANTIAGO, CHILE
ATLAS PEARLMAN
P.A.
ATTORNEYS AT LAW
Jan Douglas Atlas Joel D. Mayersohn Of Counsel
Michael W. Baker Matthew W. Miller Jon A. Sale
Alan H. Baseman William Nortman Benedict P. Kuehne
Stephen W. Bazinsky Brian A. Pearlman Sergio Vivanco A.**
Roxanne K. Beilly Charles B. Pearlman
Elliot P. Borkson Jonathan S. Robbins Director of
Deborah Ann Byles James M. Schneider Marketing and Development
Robin Corwin Campbell Wayne H. Schwartz Scott I. Cowan*
Rebecca G. DiStefano Douglas Paul Solomon
April I. Halle Michael L. Trop
Kip O. Lassner Samantha Nicole Tesser
Eric Lee Steven I. Weinberger *not licensed to practice law
Andrew Lockwood Kenneth P. Wurtenberger **not admitted in Florida
May 15, 2000
Viragen, Inc.
865 S.W. 78th Avenue, Suite 100
Plantation, FL 33324
RE: REGISTRATION STATEMENT ON FORM S-3; VIRAGEN, INC.
(THE "COMPANY"), 2,400,000 SHARES OF COMMON STOCK
Gentlemen:
This opinion is submitted pursuant to the applicable rules of
the Securities and Exchange Commission with respect to the registration
by the Company of up to a total of 2,400,000 shares of Common Stock, par
value $.01 per share, underlying convertible promissory notes or common
stock purchase warrants (collectively, the "Common Shares"). The Common
Shares registered include up to 2,175,000 shares issuable upon
conversion of promissory notes and up to 225,000 shares underlying
common stock purchase warrants.
In our capacity as counsel to the Company, we have examined the
original, certified, conformed, photostat or other copies of the
Company's Certificate of Incorporation (as Amended), By-Laws, and
exhibits and corporate minutes provided to us by the Company. In all
such examinations, we have assumed the genuineness of all signatures on
original documents, and the conformity to originals or certified
documents of all copies submitted to us as conformed, photostat or other
copies. In passing upon certain corporate records and documents of the
Company, we have necessarily assumed the correctness and completeness of
the statements made or included therein by the Company, and we express
no opinion thereon.
<PAGE> 2
ATLAS PEARLMAN
P.A.
Viragen, Inc.
May 15, 2000
Page 2
Based upon and in reliance on the foregoing, we are of the
opinion that the Common Shares to be issued to purchasers upon
conversion of the promissory notes and exercise of the warrants, when
issued in accordance with the terms of such notes and warrants,
including the receipt of the consideration provided therein, will be
validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion in the Registration
Statement on Form S-3 to be filed with the Commission.
Very truly yours,
ATLAS PEARLMAN, P.A.
-----------------------
/s/ Atlas Pearlman, P.A.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333- _____) and related Prospectus of
Viragen, Inc. for the registration of 2,400,000 shares of its common stock and
to the incorporation by reference therein of our report dated September 17,
1999, with respect to the consolidated financial statements of Viragen, Inc.
included in its Annual Report (Form 10-K/A) for the year ended June 30, 1999,
filed with the Securities and Exchange Commission.
Miami, Florida /s/ Ernst & Young LLP
May 17, 2000
