<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 19, 2000
Registration No. 333- ___________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
VIRAGEN, INC.
- ------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 59-2101668
- ----------------------------------- --------------------------------------
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
865 S.W. 78th Avenue, Suite 100
Plantation, FL 33324
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(Address of Principal Executive Offices)
Compensatory Stock Options and Warrants Granted to Consultants
Stock Option Agreement with a Key Executive
- ------------------------------------------------------------------------------
(Full title of the plan)
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 and telephone number, including area code, of agent for service)
</TABLE>
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Proposed maximum Proposed Amount of
Title of securities Amount to be offering price per maximum aggregate registration
to be registered registered share (1) offering price (1) fee (1)
-------------------------------- ------------------ ------------------------ ---------------------- -----------------
<S> <C> <C> <C> <C>
COMPENSATORY STOCK OPTIONS AND WARRANTS GRANTED TO CONSULTANTS
Common stock, $0.01
par value per share 1,074,000 $ 0.79 $ 848,460 $ 224
STOCK OPTION AGREEMENT WITH A KEY EXECUTIVE
Common stock, $0.01
par value per share 1,000,000 0.50 500,000 132
----------- ---------
2,074,000 $ 356
=========== =========
</TABLE>
(1) The common shares are issuable upon exercise of options and warrants
with fixed exercise prices. Pursuant to Rule 457(h), the aggregate
offering price and fee for the consultants' options and warrants have
been calculated based on the weighted average price at which they may
be exercised. The aggregate offering price and fee for the stock option
with a key executive have been calculated based on the fixed exercise
price.
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
Viragen, Inc. will provide the information specified in Item 1 by Rule
428 of the Securities Act of 1933 to each optionee. We are not filing these
documents as part of this registration statement or as prospectuses or
prospectus supplements, in accordance with the rules and regulations of the
Securities and Exchange Commission.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Viragen will provide the information specified in Item 2 by Rule 428(b)
of the Securities Act of 1933 to each optionee. We are not filing these
documents as part of this registration statement or as prospectuses or
prospectus supplements, in accordance with the rules and regulations of the
Securities and Exchange Commission.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
We incorporate by reference the documents, which we filed previously
with the Securities and Exchange Commission, listed below:
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.
We also incorporate by reference any future filings we make with the Securities
and Exchange Commission when Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934.
ITEM 4. DESCRIPTION OF SECURITIES
COMMON STOCK
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, 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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
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
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<PAGE> 5
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.
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.
ITEM 6. 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 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.
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 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 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
3
<PAGE> 6
ITEM 8. EXHIBITS
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 Viragen's
Registration Statement on Form S-8 filed June 9, 1995).
4.5 1997 Stock Option Plan (incorporated by reference to Viragen'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 (incorporated by
reference to Viragen's Registration Statement on Form S-3
filed May 19, 2000).
4.7 Loan and Escrow Agreement between AMRO International, S.A. and
Viragen, Inc. dated March 1, 2000 (incorporated by reference
to Viragen's Registration Statement on Form S-3 filed May 19,
2000).
4.8 Common Stock Purchase Warrant issued to Equitable Equity
Lending, Inc. dated November 1, 1999 (incorporated by
reference to Viragen's Registration Statement on Form S-3
filed May 19, 2000).
4.9 Common Stock Purchase Warrant granted to Girmon Investment
Co., Limited dated December 21, 1998.*
4.10 Common Stock Purchase Warrant granted to Robert Keller, M.D.
dated November 1, 1999.*
4.11 Common Stock Purchase Warrant granted to David W. Kirchembaum
dated November 1, 1999.*
4.12 Common Stock Purchase Warrant granted to Bradford J. Beilly
dated November 1, 1999.*
4.13 Common Stock Purchase Warrant granted to Catherine Patrick
dated November 1, 1999.*
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<PAGE> 7
4.14 Form of Common Stock Purchase Warrants granted to Pablo A.
Guzman, M.D. between April 2, 1998 and November 4, 1999.*
4.15 Common Stock Purchase Warrant granted to Dunwoody Brokerage
Services, Inc. dated December 28, 1999.*
4.16 Common Stock Purchase Warrant granted to David Squillacote
dated July 1, 1999.*
4.17 Common Stock Purchase Warrant granted to Cameron Associates,
Inc. dated January 17, 2000.*
4.18 Common Stock Purchase Warrant granted to Nassau Securities,
Int'l. dated April 17, 2000.*
4.19 Stock Option Agreement between Viragen, Inc. and Gerald Smith
dated February 7, 2000.*
5. Opinion of Atlas Pearlman, 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 Pearlman, P.A. (included as part of
Exhibit 5).
- ------------
* Filed herewith.
ITEM 9. 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.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
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<PAGE> 8
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information 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 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
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 offered 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, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant 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 such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
THE REGISTRANT. 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-8 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 Director, Executive Vice President, and Principal May 16, 2000
- ------------------------------------------ Financial Officer
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>
7
<PAGE> 1
EXHIBIT 4.9
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 MA Y 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 ACCEPTABLE TO THE COMPANY IS OBTAINED
STATING THAT SUCH DISPOSITION IS IN COMPLIANCE WITH AN AVAILABLE EXEMPTION FROM
SUCH REGISTRATION.
December 21, 1998
VIRAGEN, INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
MH-O1
FOR VALUE RECEIVED, VIRAGEN, INC. (the "Company"), a Delaware
corporation, having its principal offices at 865 S.W. 78th Avenue, Suite 100,
Plantation, Florida 33324, grants to GIRMON INVESTMENT CO., LIMITED, a company
incorporated in Ireland, Company No. 233671 or assignees, (the "Holder"), the
right to purchase from the Company up to 500,000 fully paid and non-assessable
shares of Common Stock at a price per share (the "Exercise Price"), term and
vesting schedule and conditions hereinafter set forth.
This Warrant is issued pursuant to that certain Agreement made and
entered into as of December 21, 1998 (the "Effective Date") by and among the
Holder, (the "Agreement").
The term "Common Stock" means the Common Stock, par value $.01 per
share, of the Company. 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
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<PAGE> 2
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.
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 of the Agreement to which this Warrant is attached
and as set forth herein.
1. WARRANT VESTING SCHEDULE AND EXERCISE PRICES. This Warrant
shall be exercisable at $0.50 per share, vest in whole or in
part, for a period of 30 months for the number of shares of
Warrant Stock indicated, contingent upon the closing bid price
per share of the Company's Common Stock maintaining certain
target minimum levels for 60 consecutive days ("vesting
threshold") as provided in the Agreement. Upon the common
stock attaining each vesting threshold ("vesting date"), each
vesting threshold component of the Warrant shall be
exercisable for a period of 24 months.
- --------------------------- ---------------------------------
NO. OF VESTED BID MARKET PRICE
SHARES LEVEL
(VESTING THRESHOLD)
- --------------------------- ---------------------------------
44,448 $1.00
- --------------------------- ---------------------------------
44,448 $1.25
- --------------------------- ---------------------------------
44,448 $1.50
- --------------------------- ---------------------------------
44,448 $1.75
- --------------------------- ---------------------------------
44,448 $2.00
- --------------------------- ---------------------------------
44,448 $2.25
- --------------------------- ---------------------------------
44,448 $2.50
- --------------------------- ---------------------------------
44,448 $2.75
- --------------------------- ---------------------------------
44,448 $3.00
- --------------------------- ---------------------------------
- --------------------------- ---------------------------------
50,000 $4.00
- --------------------------- ---------------------------------
50,000 $5.00
- --------------------------- ---------------------------------
2. EXERCISE OF WARRANT. Following vesting, this Warrant may be
exercised as to the specified amount of Warrant Stock, in whole or in part, but
if in part, in minimum increments of 10,000 shares at any time, or from time to
time during the period commencing on the vesting date and expiring 5:00 p.m.
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<PAGE> 3
Eastern Time on the second anniversary of the vesting date, 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 with the
Warrant Exercise Form attached hereto (Exhibit A) 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 its 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. Upon
receipt by the Company of this Warrant, together with the payment of the
Exercise Price at its office in proper form for exercise, the Holder shall be
deemed to be the holder of record of the shares of Common Stock issuable upon
such exercise, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such shares of Common
Stock shall not then be actually delivered to the Holder. 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.
3. PIGGYBACK REGISTRATION RIGHTS. For the term of this Warrant, the
Company hereby grants Piggyback Registration Rights to the Holder and agrees
that in the event of the Company's filing of any stock registration on Form S-3
or other available registration form under the Securities Act of 1933, with the
exception of a currently pending Convertible Preferred Stock offering and the
Equity Line Agreement currently in registration, the Company will register any
and all shares purchased by the Holder hereunder. In the event that the Warrant
has not been exercised, in whole or in part, the Company agrees to include in
such registrations, with the exception of a currently pending Convertible
Preferred Stock offering and the Equity Line Agreement currently in
registration, any and all such shares underlying the Warrant. The Company shall
pay all costs and expenses of such registrations, excluding fees and expenses of
counsel for and other professionals advising the Holder, and underwriting
discounts, commissions or expenses of the Holder with respect to the sale of the
stock. In the case of any registrations pursuant to this Section 3, the Company
(i) will keep the Holder advised as to the initiation and progress of
proceedings for such registrations and as to the completion thereof, and (ii) at
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<PAGE> 4
its expense will keep such registrations effective for a period of at least nine
months from the initial effective date of the registrations. The Holder agrees
to provide such information to the Company as is reasonably requested by the
Company which the Company believes is necessary in order for the Company to
register the stock, and the Holder shall execute such documents, certificates
and other instruments as the Company reasonably determines is necessary or
appropriate in connection therewith.
4. 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.
5. 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
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.
6. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
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<PAGE> 5
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.
7. ANTI-DILUTION PROVISIONS.
7.1 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 similar distribution of 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 7.1 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.
7.2 ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC. In
case of any reorganization of the Company (or any other a corporation, the
securities of which are at the time receivable on the exercise of this Warrant),
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
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.
7.3 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
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<PAGE> 6
appropriate, notice may be given in advance as part of notices required to be
mailed to the Holder pursuant to Section 7.5 hereof.
7.4 OTHER ISSUANCES. Except as otherwise expressly provided herein,
the issuance by the Company of shares of its capital stock of any class, or
securities convertible into shares of capital stock of any class, either in
connection with a direct sale or upon the exercise of rights or warrants to
subscribe therefore, or upon conversions of shares or obligations of the Company
convertible into such shares or other securities, or as compensation or
otherwise, shall not affect, and no adjustment by reason thereof shall be made
with respect to, the number of or the exercise price of the Shares that remain
unexercised under the Warrant.
Without limiting the generality of the foregoing, the existence of
unexercised Shares under the Warrant shall not affect in any manner the right or
power of the Company to make, authorize or consummate (i) any issuances as
described above, (ii) any or all adjustments, recapitalizations, reorganizations
or other changes in the Company's capital structure or its business; (iii) any
merger or consolidation of the Company; (iv) any issue by the Company of debt
securities, or preferred or preference stock that would rank above the Shares
issuable upon exercise of the Warrant; (v) the dissolution or liquidation of the
Company; (vi) any sale, transfer or assignment of all or any part of the assets
or business of the Company; or (vii) any other corporate act or proceeding,
whether of a similar character or otherwise.
7.5 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,
6
<PAGE> 7
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.
8. TRANSFER TO COMPLY WITH THE SECURITIES ACT. The Warrant Stock or
Other Securities may not be sold, transferred, pledged, hypothecated or
otherwise disposed of except as follows: (a) in a transaction exempt from
registration under the Securities Act including pursuant to Rule 144 thereunder;
(b) 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
Warrant with respect to any resale or other disposition of such securities; or
(c) 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.
9. 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 ACCEPTABLE TO THE COMPANY IS
OBTAINED STATING THAT SUCH DISPOSITION IS IN COMPLIANCE WITH AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION.
10. NOTICES. All notices required hereunder shall be in writing and
shall be deemed given when telegraphed, 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
7
<PAGE> 8
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.
11. 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.
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/ GERALD SMITH
------------------------------
Gerald Smith, President
8
<PAGE> 9
EXHIBIT A
WARRANT EXERCISE FORM
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing __________ shares of Common Stock at an
exercise price of $ ______________ per share of Common Stock of Viragen, Inc., a
Delaware corporation, and hereby makes payment of $ ______________ in payment
therefor.
- ----------------------------------------------
Signature
- ----------------------------------------------
Date
INSTRUCTIONS FOR ISSUANCE OF STOCK
(If in a name 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:
---------------- -------------- ---------
9
<PAGE> 1
Exhibit 4.10
COMMON STOCK PURCHASE WARRANT
114,000 COMMON SHARES
VIRAGEN, INC.
(A DELAWARE CORPORATION)
Dated: as of November 1, 1999 and
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND CANNOT BE SOLD, TRANSFERRED, DISPOSED
OF, PLEDGED OR HYPOTHECATED IN ANY MANNER WHATSOEVER UNLESS REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR, IF IN THE OPINION OF COMPANY COUNSEL AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS IS IN FACT APPLICABLE TO SAID
SECURITIES.
THIS CERTIFIES THAT ROBERT KELLER, M.D. (hereinafter called the
"Holder") is entitled to purchase from VIRAGEN, INC., a Delaware corporation
(hereinafter called the "Company"), during the period hereinafter specified,
114,000 shares (the shares of Common Stock underlying the Warrants being
hereinafter referred to, in part or in whole, as the "Shares") of the Company's
common stock, par value $.01 per share ("Common Stock"), at an exercise price of
$1.00 per Share (the "Exercise Price"). The right to purchase the Shares under
this Warrant is exercisable, in part or in whole, commencing on the date hereof.
The right to purchase any of the Shares underlying this Warrant by the Holder
hereof shall expire on November 30, 2004 and the Holder shall have no further
right to purchase any of such Shares, effective 5:00 p.m. on November 30, 2004.
1. EXERCISE RIGHTS. The right to purchase the Shares under this
Warrant is exercisable in part at any time until expiration.
2. EXERCISE OF WARRANTS. The rights represented by this Warrant may be
exercised at any time within the period above specified, in whole or in part, by
(i) the surrender of this Warrant (with the purchase form at the end hereof
properly executed) at the principal executive office of the Company (or such
other office or agency of the Company as it may designate by notice in writing
to the Holder at the address of the Holder appearing on the books of the
Company); and (ii) payment to the Company of the Exercise Price then in effect
for the number of Shares specified in the above-mentioned purchase form. This
Warrant shall be deemed to have been exercised, in whole or in part to the
extent specified, immediately prior to the close of business on the date this
Warrant is surrendered and payment is made in accordance with the foregoing
provisions of this Paragraph 1, and the person or persons in whose name or names
the certificates for Shares shall be issuable upon such exercise shall become
the holder or holders of
<PAGE> 2
record of such Shares at that time and date. The certificates for the Shares so
purchased shall be delivered to the Holder within a reasonable time after the
rights represented by this Warrant shall have been so exercised.
3. RESTRICTED SECURITIES. Unless the Shares shall have been registered
with the Securities and Exchange Commission, as hereinafter provided, all Shares
acquired upon the exercise of the Warrant shall be "restricted securities" as
that term is defined in Rule 144 promulgated under the Securities Act of 1933,
as amended (the "Act"). In such event, the certificate(s) representing the
Shares shall bear an appropriate legend restricting their transfer and such
Shares cannot be sold, transferred, assigned or otherwise hypothecated without
registration under the Act or unless a valid exemption from registration is then
available under applicable federal and state securities laws and the Company has
been furnished with an opinion of counsel satisfactory in form and substance to
it that such registration is not required.
4. TRANSFER OF WARRANT. This Warrant may be sold, transferred,
assigned, or otherwise disposed of at any time by the Holder providing that the
Company shall be furnished with an opinion of counsel in form and substance
satisfactory to it that such sale, transfer, assignment or other disposition
does not require registration under the Act and a valid exemption is available
under applicable federal and state securities laws. Upon any such disposition,
the right to accelerate the lapsing of the Company's right of repurchase through
obtaining the aforementioned financings shall automatically terminate. Any
permitted transfer or assignment shall be effected by the Holder (i) completing
and executing the form of assignment, attached hereto, and (ii) surrendering
this Warrant with such duly completed and executed assignment form for
cancellation, accompanied by funds sufficient to pay any transfer tax, at the
principal executive office of the Company, accompanied by a written
representation from each such assignee addressed to the Company stating that
such assignee agrees to be bound by the terms of this Warrant; whereupon the
Company shall issue, in the name or names specified by the Holder (including the
Holder) a new Warrant or Warrants of like tenor with appropriate legends
restricting transfer under the Act and reciting the Company's right to
repurchase and representing in the aggregate rights to purchase the same number
of Shares as are purchasable hereunder.
5. REGISTRATION RIGHTS. The Holder shall have piggy-back registration
rights for all Shares underlying this Warrant in connection with any
registration statement filed through such dates by the Company to register
securities of the Company for sale to the public (except a registration
statement filed in connection with an exchange offering, a registration
statement filed to register securities in connection with a Company employee
benefit plan or a registration statement filed on behalf of selling security
holders which by the terms of its contract, or by separate written request,
precludes the inclusion of other security holders). The Company shall give
prompt written notice to Holder of any such proposed registration, and Holder
shall inform the Company, within 20 days after receipt of such notice, if it
wishes to register any of its Shares in the Company's registration statement. If
Holder does not so inform the Company, the Company shall have the right to
assume that Holder does not wish to register any of its Shares in
2
<PAGE> 3
the Company's registration statement. The Company shall pay all costs and
expenses of such registration, excluding fees and expenses of counsel for Holder
and underwriting discounts, commissions or expenses of Holder with respect to
the sale of its Shares. The Company shall also register Holder's Shares in one
(1) jurisdiction; provided, however, that the Company shall not be required to
qualify to do business in such jurisdiction as a condition to the registration
of the sale of the Shares in such jurisdiction or commit to a general consent to
service of process within the jurisdiction. Subject to the right of Holder to
sell its Shares under Rule l44 (as set forth below), Holder agrees to restrict
the public sale of its Shares under any such registration (which agreement shall
not affect any other shares of Common Stock or other securities of the Company
which Holder may own) to the extent requested by an underwriter of the Company's
offering of securities. Notwithstanding anything herein to the contrary, Holder
may sell shares of the Common Stock which it owns (including the shares as to
which it has registration rights) in the public marketplace pursuant to Rule 144
under the Act, to the extent that the provisions of the rule are satisfied. The
Company shall use its best efforts to make any such registration effective.
In the case of each registration pursuant to this Section 6, the
Company (i) will keep Holder advised in writing as to the initiation and
progress of proceedings for such registration and as to the completion thereof,
and (ii) at its expense, subject to the limitations as provided above, will keep
such registration effective for a period of at least nine months from the latter
of the initial effective date of the registration or the underwriter's
restrictive lock up period. Holder agrees to provide such information to the
Company as is reasonably requested by the Company which the Company believes is
necessary in order to allow the Company to register Holder's shares.
6. STATUS OF SHARES. The Company covenants and agrees that all Shares
purchased hereunder will, upon issuance, be duly and validly issued, fully paid
and non-assessable and no personal liability will attach to the Holder thereof.
The Company further covenants and agrees that during the period within which
this W arrant may be exercised, the Company will at all times have authorized
and reserved a sufficient number of shares of Common Stock to provide for the
exercise of this Warrant.
7. NO VOTING RIGHTS. This Warrant shall not entitle the Holder to any
voting rights or other rights as a stockholder of the Company, either at law or
in equity, and the rights of the Holder are limited to those expressed in this
Warrant and are not enforceable against the Company except to the extent set
forth herein.
8. ADJUSTMENTS. The initial per share exercise price of $1.00 per share
and/or the number of Shares issuable upon exercise of each Warrant shall be
subject to adjustment from time to time as follows: In case the Company shall
(i) pay a dividend in shares of Common Stock or make a distribution in shares of
Common Stock, (ii) subdivide its outstanding shares of Common Stock, (iii)
combine its outstanding shares of Common Stock, or (iv) issue by
reclassification of its shares of Common Stock other securities of the Company
(including any such reclassification
3
<PAGE> 4
in connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Shares purchasable upon exercise of each
Warrant immediately prior thereto shall be adjusted so that the holder of each
Warrant shall be entitled to receive the kind and number of Shares or other
securities of the Company which he would have owned or have been entitled to
receive after the happening of any of the events described above, had such
Warrants been exercised immediately prior to the happening of such event or any
record date with respect thereto. An adjustment made pursuant to this paragraph
(a) shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event. Such adjustment shall be
made successively whenever any event listed above shall occur.
9. GOVERNING LAWS. This Warrant shall be governed by and in accordance
with the laws of the State of Florida and may not be amended other than by
written instrument executed by the parties hereto.
IN WITNESS WHEREOF, VIRAGEN, INC. has caused this Warrant to be signed
by its duly authorized officer and this Warrant to be dated as of the date first
above written.
VIRAGEN, INC.
By: /s/ Dennis W. Healey
--------------------------------
Dennis W. Healey
Executive Vice President
ATTEST: Date: November 1, 1999
- --------------------------------
Secretary
4
<PAGE> 5
PURCHASE FORM
(To be signed only upon exercise of Warrant)
The undersigned, the Holder of the foregoing Warrant, hereby
irrevocably elects to exercise the purchase rights represented by such Warrant
for, and to purchase thereunder, _______________________ Shares of the Common
Stock of VIRAGEN, INC., and herewith makes payment of $______________ therefore,
and requests that the share certificates be issued in the name(s) of, and
delivered to
________________________________________________________________________________
whose address(es) is (are) _____________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------
---------------------------
(Signature)
---------------------------
Name (Print or Type)
---------------------------
Address
---------------------------
<PAGE> 6
TRANSFER FORM
(To be signed only upon transfer of the Warrant)
For value received, the undersigned hereby assigns and transfers unto
______________________________________ the right to purchase shares of the
Common Stock of VIRAGEN, INC. represented by the foregoing Warrant to the extent
of ___________________________ Shares, and appoints
_______________________________, attorney to transfer such rights on the books
of _________________________ with full power of substitution in the premises.
Dated:
------------------
---------------------------
(Signature)
---------------------------
Name (Print or Type)
---------------------------
Address
---------------------------
<PAGE> 1
Exhibit 4.11
COMMON STOCK PURCHASE WARRANT
58,000 COMMON SHARES
VIRAGEN, INC.
(A DELAWARE CORPORATION)
Dated: as of November 1, 1999 and
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND CANNOT BE SOLD, TRANSFERRED, DISPOSED
OF, PLEDGED OR HYPOTHECATED IN ANY MANNER WHATSOEVER UNLESS REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR, IF IN THE OPINION OF COMPANY COUNSEL AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS IS IN FACT APPLICABLE TO SAID
SECURITIES.
THIS CERTIFIES THAT DAVID W. KIRCHENBAUM (hereinafter called the
"Holder") is entitled to purchase from VIRAGEN, INC., a Delaware corporation
(hereinafter called the "Company"), during the period hereinafter specified,
58,000 shares (the shares of Common Stock underlying the Warrants being
hereinafter referred to, in part or in whole, as the "Shares") of the Company's
common stock, par value $.01 per share ("Common Stock"), at an exercise price of
$1.00 per Share (the "Exercise Price"). The right to purchase the Shares under
this Warrant is exercisable, in part or in whole, commencing on the date hereof.
The right to purchase any of the Shares underlying this Warrant by the Holder
hereof shall expire on November 30, 2004 and the Holder shall have no further
right to purchase any of such Shares, effective 5:00 p.m. on November 30, 2004.
1. EXERCISE RIGHTS. The right to purchase the Shares under this
Warrant is exercisable in part at any time until expiration.
2. EXERCISE OF WARRANTS. The rights represented by this Warrant may be
exercised at any time within the period above specified, in whole or in part, by
(i) the surrender of this Warrant (with the purchase form at the end hereof
properly executed) at the principal executive office of the Company (or such
other office or agency of the Company as it may designate by notice in writing
to the Holder at the address of the Holder appearing on the books of the
Company); and (ii) payment to the Company of the Exercise Price then in effect
for the number of Shares specified in the above-mentioned purchase form. This
Warrant shall be deemed to have been exercised, in whole or in part to the
extent specified, immediately prior to the close of business on the date this
Warrant is surrendered and payment is made in accordance with the foregoing
provisions of this Paragraph 1, and the person or persons in whose name or names
the certificates for Shares shall be issuable upon such exercise shall become
the holder or holders of
<PAGE> 2
record of such Shares at that time and date. The certificates for the Shares so
purchased shall be delivered to the Holder within a reasonable time after the
rights represented by this Warrant shall have been so exercised.
3. RESTRICTED SECURITIES. Unless the Shares shall have been registered
with the Securities and Exchange Commission, as hereinafter provided, all Shares
acquired upon the exercise of the Warrant shall be "restricted securities" as
that term is defined in Rule 144 promulgated under the Securities Act of 1933,
as amended (the "Act"). In such event, the certificate(s) representing the
Shares shall bear an appropriate legend restricting their transfer and such
Shares cannot be sold, transferred, assigned or otherwise hypothecated without
registration under the Act or unless a valid exemption from registration is then
available under applicable federal and state securities laws and the Company has
been furnished with an opinion of counsel satisfactory in form and substance to
it that such registration is not required.
4. TRANSFER OF WARRANT. This Warrant may be sold, transferred,
assigned, or otherwise disposed of at any time by the Holder providing that the
Company shall be furnished with an opinion of counsel in form and substance
satisfactory to it that such sale, transfer, assignment or other disposition
does not require registration under the Act and a valid exemption is available
under applicable federal and state securities laws. Upon any such disposition,
the right to accelerate the lapsing of the Company's right of repurchase through
obtaining the aforementioned financings shall automatically terminate. Any
permitted transfer or assignment shall be effected by the Holder (i) completing
and executing the form of assignment, attached hereto, and (ii) surrendering
this Warrant with such duly completed and executed assignment form for
cancellation, accompanied by funds sufficient to pay any transfer tax, at the
principal executive office of the Company, accompanied by a written
representation from each such assignee addressed to the Company stating that
such assignee agrees to be bound by the terms of this Warrant; whereupon the
Company shall issue, in the name or names specified by the Holder (including the
Holder) a new Warrant or Warrants of like tenor with appropriate legends
restricting transfer under the Act and reciting the Company's right to
repurchase and representing in the aggregate rights to purchase the same number
of Shares as are purchasable hereunder.
5. REGISTRATION RIGHTS. The Holder shall have piggy-back registration
rights for all Shares underlying this Warrant in connection with any
registration statement filed through such dates by the Company to register
securities of the Company for sale to the public (except a registration
statement filed in connection with an exchange offering, a registration
statement filed to register securities in connection with a Company employee
benefit plan or a registration statement filed on behalf of selling security
holders which by the terms of its contract, or by separate written request,
precludes the inclusion of other security holders). The Company shall give
prompt written notice to Holder of any such proposed registration, and Holder
shall inform the Company, within 20 days after receipt of such notice, if it
wishes to register any of its Shares in the Company's registration statement. If
Holder does not so inform the Company, the Company shall have the right to
assume that Holder does not wish to register any of its Shares in
2
<PAGE> 3
the Company's registration statement. The Company shall pay all costs and
expenses of such registration, excluding fees and expenses of counsel for Holder
and underwriting discounts, commissions or expenses of Holder with respect to
the sale of its Shares. The Company shall also register Holder's Shares in one
(1) jurisdiction; provided, however, that the Company shall not be required to
qualify to do business in such jurisdiction as a condition to the registration
of the sale of the Shares in such jurisdiction or commit to a general consent to
service of process within the jurisdiction. Subject to the right of Holder to
sell its Shares under Rule l44 (as set forth below), Holder agrees to restrict
the public sale of its Shares under any such registration (which agreement shall
not affect any other shares of Common Stock or other securities of the Company
which Holder may own) to the extent requested by an underwriter of the Company's
offering of securities. Notwithstanding anything herein to the contrary, Holder
may sell shares of the Common Stock which it owns (including the shares as to
which it has registration rights) in the public marketplace pursuant to Rule 144
under the Act, to the extent that the provisions of the rule are satisfied. The
Company shall use its best efforts to make any such registration effective.
In the case of each registration pursuant to this Section 6, the
Company (i) will keep Holder advised in writing as to the initiation and
progress of proceedings for such registration and as to the completion thereof,
and (ii) at its expense, subject to the limitations as provided above, will keep
such registration effective for a period of at least nine months from the latter
of the initial effective date of the registration or the underwriter's
restrictive lock up period. Holder agrees to provide such information to the
Company as is reasonably requested by the Company which the Company believes is
necessary in order to allow the Company to register Holder's shares.
6. STATUS OF SHARES. The Company covenants and agrees that all Shares
purchased hereunder will, upon issuance, be duly and validly issued, fully paid
and non-assessable and no personal liability will attach to the Holder thereof.
The Company further covenants and agrees that during the period within which
this W arrant may be exercised, the Company will at all times have authorized
and reserved a sufficient number of shares of Common Stock to provide for the
exercise of this Warrant.
7. NO VOTING RIGHTS. This Warrant shall not entitle the Holder to any
voting rights or other rights as a stockholder of the Company, either at law or
in equity, and the rights of the Holder are limited to those expressed in this
Warrant and are not enforceable against the Company except to the extent set
forth herein.
8. ADJUSTMENTS. The initial per share exercise price of $1.00 per share
and/or the number of Shares issuable upon exercise of each Warrant shall be
subject to adjustment from time to time as follows: In case the Company shall
(i) pay a dividend in shares of Common Stock or make a distribution in shares of
Common Stock, (ii) subdivide its outstanding shares of Common Stock, (iii)
combine its outstanding shares of Common Stock, or (iv) issue by
reclassification of its shares of Common Stock other securities of the Company
(including any such reclassification
3
<PAGE> 4
in connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Shares purchasable upon exercise of each
Warrant immediately prior thereto shall be adjusted so that the holder of each
Warrant shall be entitled to receive the kind and number of Shares or other
securities of the Company which he would have owned or have been entitled to
receive after the happening of any of the events described above, had such
Warrants been exercised immediately prior to the happening of such event or any
record date with respect thereto. An adjustment made pursuant to this paragraph
(a) shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event. Such adjustment shall be
made successively whenever any event listed above shall occur.
9. GOVERNING LAWS. This Warrant shall be governed by and in accordance
with the laws of the State of Florida and may not be amended other than by
written instrument executed by the parties hereto.
IN WITNESS WHEREOF, VIRAGEN, INC. has caused this Warrant to be signed
by its duly authorized officer and this Warrant to be dated as of the date first
above written.
VIRAGEN, INC.
By: /s/ Dennis W. Healey
--------------------------------
Dennis W. Healey
Executive Vice President
ATTEST: Date: November 1, 1999
- --------------------------------
Secretary
4
<PAGE> 5
PURCHASE FORM
(To be signed only upon exercise of Warrant)
The undersigned, the Holder of the foregoing Warrant, hereby
irrevocably elects to exercise the purchase rights represented by such Warrant
for, and to purchase thereunder, ____________________ Shares of the Common Stock
of VIRAGEN, INC., and herewith makes payment of $____________ therefore, and
requests that the share certificates be issued in the name(s) of, and delivered
to
________________________________________________________________________________
whose address(es) is (are) _____________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------
---------------------------
(Signature)
---------------------------
Name (Print or Type)
---------------------------
Address
<PAGE> 6
TRANSFER FORM
(To be signed only upon transfer of the Warrant)
For value received, the undersigned hereby assigns and transfers unto
____________________________________________________ the right to purchase
shares of the Common Stock of VIRAGEN, INC. represented by the foregoing Warrant
to the extent of ______________________ Shares, and appoints
___________________________, attorney to transfer such rights on the books of
_________________________ with full power of substitution in the premises.
Dated:
------------------
---------------------------
(Signature)
---------------------------
Name (Print or Type)
---------------------------
Address
<PAGE> 1
Exhibit 4.12
COMMON STOCK PURCHASE WARRANT
50,000 COMMON SHARES
VIRAGEN, INC.
(A DELAWARE CORPORATION)
Dated: as of November 1, 1999 and
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND CANNOT BE SOLD, TRANSFERRED, DISPOSED
OF, PLEDGED OR HYPOTHECATED IN ANY MANNER WHATSOEVER UNLESS REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR, IF IN THE OPINION OF COMPANY COUNSEL AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS IS IN FACT APPLICABLE TO SAID
SECURITIES.
THIS CERTIFIES THAT BRADFORD J. BEILLY (hereinafter called the
"Holder") is entitled to purchase from VIRAGEN, INC., a Delaware corporation
(hereinafter called the "Company"), during the period hereinafter specified,
50,000 shares (the shares of Common Stock underlying the Warrants being
hereinafter referred to, in part or in whole, as the "Shares") of the Company's
common stock, par value $.01 per share ("Common Stock"), at an exercise price of
$1.00 per Share (the "Exercise Price"). The right to purchase the Shares under
this Warrant is exercisable, in part or in whole, commencing on the date hereof.
The right to purchase any of the Shares underlying this Warrant by the Holder
hereof shall expire on November 30, 2004 and the Holder shall have no further
right to purchase any of such Shares, effective 5:00 p.m. on November 30, 2004.
1. EXERCISE RIGHTS. The right to purchase the Shares under this
Warrant is exercisable in part at any time until expiration.
2. EXERCISE OF WARRANTS. The rights represented by this Warrant may be
exercised at any time within the period above specified, in whole or in part, by
(i) the surrender of this Warrant (with the purchase form at the end hereof
properly executed) at the principal executive office of the Company (or such
other office or agency of the Company as it may designate by notice in writing
to the Holder at the address of the Holder appearing on the books of the
Company); and (ii) payment to the Company of the Exercise Price then in effect
for the number of Shares specified in the above-mentioned purchase form. This
Warrant shall be deemed to have been exercised, in whole or in part to the
extent specified, immediately prior to the close of business on the date this
Warrant is surrendered and payment is made in accordance with the foregoing
provisions of this Paragraph 1, and the person or persons in whose name or names
the certificates for Shares shall be issuable upon such exercise shall become
the holder or holders of
<PAGE> 2
record of such Shares at that time and date. The certificates for the Shares so
purchased shall be delivered to the Holder within a reasonable time after the
rights represented by this Warrant shall have been so exercised.
3. RESTRICTED SECURITIES. Unless the Shares shall have been registered
with the Securities and Exchange Commission, as hereinafter provided, all Shares
acquired upon the exercise of the Warrant shall be "restricted securities" as
that term is defined in Rule 144 promulgated under the Securities Act of 1933,
as amended (the "Act"). In such event, the certificate(s) representing the
Shares shall bear an appropriate legend restricting their transfer and such
Shares cannot be sold, transferred, assigned or otherwise hypothecated without
registration under the Act or unless a valid exemption from registration is then
available under applicable federal and state securities laws and the Company has
been furnished with an opinion of counsel satisfactory in form and substance to
it that such registration is not required.
4. TRANSFER OF WARRANT. This Warrant may be sold, transferred,
assigned, or otherwise disposed of at any time by the Holder providing that the
Company shall be furnished with an opinion of counsel in form and substance
satisfactory to it that such sale, transfer, assignment or other disposition
does not require registration under the Act and a valid exemption is available
under applicable federal and state securities laws. Upon any such disposition,
the right to accelerate the lapsing of the Company's right of repurchase through
obtaining the aforementioned financings shall automatically terminate. Any
permitted transfer or assignment shall be effected by the Holder (i) completing
and executing the form of assignment, attached hereto, and (ii) surrendering
this Warrant with such duly completed and executed assignment form for
cancellation, accompanied by funds sufficient to pay any transfer tax, at the
principal executive office of the Company, accompanied by a written
representation from each such assignee addressed to the Company stating that
such assignee agrees to be bound by the terms of this Warrant; whereupon the
Company shall issue, in the name or names specified by the Holder (including the
Holder) a new Warrant or Warrants of like tenor with appropriate legends
restricting transfer under the Act and reciting the Company's right to
repurchase and representing in the aggregate rights to purchase the same number
of Shares as are purchasable hereunder.
5. REGISTRATION RIGHTS. The Holder shall have piggy-back registration
rights for all Shares underlying this Warrant in connection with any
registration statement filed through such dates by the Company to register
securities of the Company for sale to the public (except a registration
statement filed in connection with an exchange offering, a registration
statement filed to register securities in connection with a Company employee
benefit plan or a registration statement filed on behalf of selling security
holders which by the terms of its contract, or by separate written request,
precludes the inclusion of other security holders). The Company shall give
prompt written notice to Holder of any such proposed registration, and Holder
shall inform the Company, within 20 days after receipt of such notice, if it
wishes to register any of its Shares in the Company's registration statement. If
Holder does not so inform the Company, the Company shall have the right to
assume that Holder does not wish to register any of its Shares in
2
<PAGE> 3
the Company's registration statement. The Company shall pay all costs and
expenses of such registration, excluding fees and expenses of counsel for Holder
and underwriting discounts, commissions or expenses of Holder with respect to
the sale of its Shares. The Company shall also register Holder's Shares in one
(1) jurisdiction; provided, however, that the Company shall not be required to
qualify to do business in such jurisdiction as a condition to the registration
of the sale of the Shares in such jurisdiction or commit to a general consent to
service of process within the jurisdiction. Subject to the right of Holder to
sell its Shares under Rule l44 (as set forth below), Holder agrees to restrict
the public sale of its Shares under any such registration (which agreement shall
not affect any other shares of Common Stock or other securities of the Company
which Holder may own) to the extent requested by an underwriter of the Company's
offering of securities. Notwithstanding anything herein to the contrary, Holder
may sell shares of the Common Stock which it owns (including the shares as to
which it has registration rights) in the public marketplace pursuant to Rule 144
under the Act, to the extent that the provisions of the rule are satisfied. The
Company shall use its best efforts to make any such registration effective.
In the case of each registration pursuant to this Section 6, the
Company (i) will keep Holder advised in writing as to the initiation and
progress of proceedings for such registration and as to the completion thereof,
and (ii) at its expense, subject to the limitations as provided above, will keep
such registration effective for a period of at least nine months from the latter
of the initial effective date of the registration or the underwriter's
restrictive lock up period. Holder agrees to provide such information to the
Company as is reasonably requested by the Company which the Company believes is
necessary in order to allow the Company to register Holder's shares.
6. STATUS OF SHARES. The Company covenants and agrees that all Shares
purchased hereunder will, upon issuance, be duly and validly issued, fully paid
and non-assessable and no personal liability will attach to the Holder thereof.
The Company further covenants and agrees that during the period within which
this W arrant may be exercised, the Company will at all times have authorized
and reserved a sufficient number of shares of Common Stock to provide for the
exercise of this Warrant.
7. NO VOTING RIGHTS. This Warrant shall not entitle the Holder to any
voting rights or other rights as a stockholder of the Company, either at law or
in equity, and the rights of the Holder are limited to those expressed in this
Warrant and are not enforceable against the Company except to the extent set
forth herein.
8. ADJUSTMENTS. The initial per share exercise price of $1.00 per share
and/or the number of Shares issuable upon exercise of each Warrant shall be
subject to adjustment from time to time as follows: In case the Company shall
(i) pay a dividend in shares of Common Stock or make a distribution in shares of
Common Stock, (ii) subdivide its outstanding shares of Common Stock, (iii)
combine its outstanding shares of Common Stock, or (iv) issue by
reclassification of its shares of Common Stock other securities of the Company
(including any such reclassification
3
<PAGE> 4
in connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Shares purchasable upon exercise of each
Warrant immediately prior thereto shall be adjusted so that the holder of each
Warrant shall be entitled to receive the kind and number of Shares or other
securities of the Company which he would have owned or have been entitled to
receive after the happening of any of the events described above, had such
Warrants been exercised immediately prior to the happening of such event or any
record date with respect thereto. An adjustment made pursuant to this paragraph
(a) shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event. Such adjustment shall be
made successively whenever any event listed above shall occur.
9. GOVERNING LAWS. This Warrant shall be governed by and in accordance
with the laws of the State of Florida and may not be amended other than by
written instrument executed by the parties hereto.
IN WITNESS WHEREOF, VIRAGEN, INC. has caused this Warrant to be signed
by its duly authorized officer and this Warrant to be dated as of the date first
above written.
VIRAGEN, INC.
By: /s/ Dennis W. Healey
--------------------------------
Dennis W. Healey
Executive Vice President
ATTEST: Date: November 1, 1999
- --------------------------------
Secretary
4
<PAGE> 5
PURCHASE FORM
(To be signed only upon exercise of Warrant)
The undersigned, the Holder of the foregoing Warrant, hereby
irrevocably elects to exercise the purchase rights represented by such Warrant
for, and to purchase thereunder, ____________________ Shares of the Common Stock
of VIRAGEN, INC., and herewith makes payment of $_____________ therefore, and
requests that the share certificates be issued in the name(s) of, and delivered
to
________________________________________________________________________________
whose address(es) is (are) _____________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------
---------------------------
(Signature)
---------------------------
Name (Print or Type)
---------------------------
Address
<PAGE> 6
TRANSFER FORM
(To be signed only upon transfer of the Warrant)
For value received, the undersigned hereby assigns and transfers unto
___________________________________________ the right to purchase shares of the
Common Stock of VIRAGEN, INC. represented by the foregoing Warrant to the extent
of _______________________ Shares, and appoints _______________________ ,
attorney to transfer such rights on the books of _______________________ with
full power of substitution in the premises.
Dated:
------------------
---------------------------
(Signature)
---------------------------
Name (Print or Type)
---------------------------
Address
<PAGE> 1
Exhibit 4.13
COMMON STOCK PURCHASE WARRANT
28,000 COMMON SHARES
VIRAGEN, INC.
(A DELAWARE CORPORATION)
Dated: as of November 1, 1999 and
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND CANNOT BE SOLD, TRANSFERRED, DISPOSED
OF, PLEDGED OR HYPOTHECATED IN ANY MANNER WHATSOEVER UNLESS REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR, IF IN THE OPINION OF COMPANY COUNSEL AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS IS IN FACT APPLICABLE TO SAID
SECURITIES.
THIS CERTIFIES THAT CATHERINE PATRICK (hereinafter called the "Holder")
is entitled to purchase from VIRAGEN, INC., a Delaware corporation (hereinafter
called the "Company"), during the period hereinafter specified, 28,000 shares
(the shares of Common Stock underlying the Warrants being hereinafter referred
to, in part or in whole, as the "Shares") of the Company's common stock, par
value $.01 per share ("Common Stock"), at an exercise price of $1.00 per Share
(the "Exercise Price"). The right to purchase the Shares under this Warrant is
exercisable, in part or in whole, commencing on the date hereof. The right to
purchase any of the Shares underlying this Warrant by the Holder hereof shall
expire on November 30, 2004 and the Holder shall have no further right to
purchase any of such Shares, effective 5:00 p.m. on November 30, 2004.
1. EXERCISE RIGHTS. The right to purchase the Shares under this
Warrant is exercisable in part at any time until expiration.
2. EXERCISE OF WARRANTS. The rights represented by this Warrant may be
exercised at any time within the period above specified, in whole or in part, by
(i) the surrender of this Warrant (with the purchase form at the end hereof
properly executed) at the principal executive office of the Company (or such
other office or agency of the Company as it may designate by notice in writing
to the Holder at the address of the Holder appearing on the books of the
Company); and (ii) payment to the Company of the Exercise Price then in effect
for the number of Shares specified in the above-mentioned purchase form. This
Warrant shall be deemed to have been exercised, in whole or in part to the
extent specified, immediately prior to the close of business on the date this
Warrant is surrendered and payment is made in accordance with the foregoing
provisions of this Paragraph 1, and the person or persons in whose name or names
the certificates for Shares shall be issuable upon such exercise shall become
the holder or holders of
<PAGE> 2
record of such Shares at that time and date. The certificates for the Shares so
purchased shall be delivered to the Holder within a reasonable time after the
rights represented by this Warrant shall have been so exercised.
3. RESTRICTED SECURITIES. Unless the Shares shall have been registered
with the Securities and Exchange Commission, as hereinafter provided, all Shares
acquired upon the exercise of the Warrant shall be "restricted securities" as
that term is defined in Rule 144 promulgated under the Securities Act of 1933,
as amended (the "Act"). In such event, the certificate(s) representing the
Shares shall bear an appropriate legend restricting their transfer and such
Shares cannot be sold, transferred, assigned or otherwise hypothecated without
registration under the Act or unless a valid exemption from registration is then
available under applicable federal and state securities laws and the Company has
been furnished with an opinion of counsel satisfactory in form and substance to
it that such registration is not required.
4. TRANSFER OF WARRANT. This Warrant may be sold, transferred,
assigned, or otherwise disposed of at any time by the Holder providing that the
Company shall be furnished with an opinion of counsel in form and substance
satisfactory to it that such sale, transfer, assignment or other disposition
does not require registration under the Act and a valid exemption is available
under applicable federal and state securities laws. Upon any such disposition,
the right to accelerate the lapsing of the Company's right of repurchase through
obtaining the aforementioned financings shall automatically terminate. Any
permitted transfer or assignment shall be effected by the Holder (i) completing
and executing the form of assignment, attached hereto, and (ii) surrendering
this Warrant with such duly completed and executed assignment form for
cancellation, accompanied by funds sufficient to pay any transfer tax, at the
principal executive office of the Company, accompanied by a written
representation from each such assignee addressed to the Company stating that
such assignee agrees to be bound by the terms of this Warrant; whereupon the
Company shall issue, in the name or names specified by the Holder (including the
Holder) a new Warrant or Warrants of like tenor with appropriate legends
restricting transfer under the Act and reciting the Company's right to
repurchase and representing in the aggregate rights to purchase the same number
of Shares as are purchasable hereunder.
5. REGISTRATION RIGHTS. The Holder shall have piggy-back registration
rights for all Shares underlying this Warrant in connection with any
registration statement filed through such dates by the Company to register
securities of the Company for sale to the public (except a registration
statement filed in connection with an exchange offering, a registration
statement filed to register securities in connection with a Company employee
benefit plan or a registration statement filed on behalf of selling security
holders which by the terms of its contract, or by separate written request,
precludes the inclusion of other security holders). The Company shall give
prompt written notice to Holder of any such proposed registration, and Holder
shall inform the Company, within 20 days after receipt of such notice, if it
wishes to register any of its Shares in the Company's registration statement. If
Holder does not so inform the Company, the Company shall have the right to
assume that Holder does not wish to register any of its Shares in
2
<PAGE> 3
the Company's registration statement. The Company shall pay all costs and
expenses of such registration, excluding fees and expenses of counsel for Holder
and underwriting discounts, commissions or expenses of Holder with respect to
the sale of its Shares. The Company shall also register Holder's Shares in one
(1) jurisdiction; provided, however, that the Company shall not be required to
qualify to do business in such jurisdiction as a condition to the registration
of the sale of the Shares in such jurisdiction or commit to a general consent to
service of process within the jurisdiction. Subject to the right of Holder to
sell its Shares under Rule l44 (as set forth below), Holder agrees to restrict
the public sale of its Shares under any such registration (which agreement shall
not affect any other shares of Common Stock or other securities of the Company
which Holder may own) to the extent requested by an underwriter of the Company's
offering of securities. Notwithstanding anything herein to the contrary, Holder
may sell shares of the Common Stock which it owns (including the shares as to
which it has registration rights) in the public marketplace pursuant to Rule 144
under the Act, to the extent that the provisions of the rule are satisfied. The
Company shall use its best efforts to make any such registration effective.
In the case of each registration pursuant to this Section 6, the
Company (i) will keep Holder advised in writing as to the initiation and
progress of proceedings for such registration and as to the completion thereof,
and (ii) at its expense, subject to the limitations as provided above, will keep
such registration effective for a period of at least nine months from the latter
of the initial effective date of the registration or the underwriter's
restrictive lock up period. Holder agrees to provide such information to the
Company as is reasonably requested by the Company which the Company believes is
necessary in order to allow the Company to register Holder's shares.
6. STATUS OF SHARES. The Company covenants and agrees that all Shares
purchased hereunder will, upon issuance, be duly and validly issued, fully paid
and non-assessable and no personal liability will attach to the Holder thereof.
The Company further covenants and agrees that during the period within which
this W arrant may be exercised, the Company will at all times have authorized
and reserved a sufficient number of shares of Common Stock to provide for the
exercise of this Warrant.
7. NO VOTING RIGHTS. This Warrant shall not entitle the Holder to any
voting rights or other rights as a stockholder of the Company, either at law or
in equity, and the rights of the Holder are limited to those expressed in this
Warrant and are not enforceable against the Company except to the extent set
forth herein.
8. ADJUSTMENTS. The initial per share exercise price of $1.00 per share
and/or the number of Shares issuable upon exercise of each Warrant shall be
subject to adjustment from time to time as follows: In case the Company shall
(i) pay a dividend in shares of Common Stock or make a distribution in shares of
Common Stock, (ii) subdivide its outstanding shares of Common Stock, (iii)
combine its outstanding shares of Common Stock, or (iv) issue by
reclassification of its shares of Common Stock other securities of the Company
(including any such reclassification
3
<PAGE> 4
in connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Shares purchasable upon exercise of each
Warrant immediately prior thereto shall be adjusted so that the holder of each
Warrant shall be entitled to receive the kind and number of Shares or other
securities of the Company which he would have owned or have been entitled to
receive after the happening of any of the events described above, had such
Warrants been exercised immediately prior to the happening of such event or any
record date with respect thereto. An adjustment made pursuant to this paragraph
(a) shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event. Such adjustment shall be
made successively whenever any event listed above shall occur.
9. GOVERNING LAWS. This Warrant shall be governed by and in accordance
with the laws of the State of Florida and may not be amended other than by
written instrument executed by the parties hereto.
IN WITNESS WHEREOF, VIRAGEN, INC. has caused this Warrant to be signed
by its duly authorized officer and this Warrant to be dated as of the date first
above written.
VIRAGEN, INC.
By: /s/ Dennis W. Healey
--------------------------------
Dennis W. Healey
Executive Vice President
ATTEST: Date: November 1, 1999
- --------------------------------
Secretary
4
<PAGE> 5
PURCHASE FORM
(To be signed only upon exercise of Warrant)
The undersigned, the Holder of the foregoing Warrant, hereby
irrevocably elects to exercise the purchase rights represented by such Warrant
for, and to purchase thereunder, ________________________ Shares of the Common
Stock of VIRAGEN, INC., and herewith makes payment of $____________ therefore,
and requests that the share certificates be issued in the name(s) of, and
delivered to
________________________________________________________________________________
whose address(es) is (are) _____________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
------------------
---------------------------
(Signature)
---------------------------
Name (Print or Type)
---------------------------
Address
<PAGE> 6
TRANSFER FORM
(To be signed only upon transfer of the Warrant)
For value received, the undersigned hereby assigns and transfers unto
________________________________________ the right to purchase shares of the
Common Stock of VIRAGEN, INC. represented by the foregoing Warrant to the extent
of ___________________________ Shares, and appoints ___________________________,
attorney to transfer such rights on the books of __________________________ with
full power of substitution in the premises.
Dated:
------------------
---------------------------
(Signature)
---------------------------
Name (Print or Type)
---------------------------
Address
<PAGE> 1
EXHIBIT 4.14
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.
__________, 1999
VIRAGEN, INC.
(Incorporated under the laws of the State of Delaware)
FORM OF WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
FOR VALUE RECEIVED, VIRAGEN, INC. (the "Company"), a Delaware
corporation, hereby certifies that Pablo A. Guzman, M.D. (the "Holder"), is
entitled, subject to the provisions of the Warrant, to purchase from the Company
up to __,000 fully paid and non-assessable shares of Common Stock at a price of
US$1.00 per share (the "Exercise Price").
The term "Common Stock" means the Common Stock, par value $.01 per
share, of the Company as constituted on __________, 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
<PAGE> 2
cancellation of this Warrant, if mutilated, the Company shall execute and
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. 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
2
<PAGE> 3
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 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
3
<PAGE> 4
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
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
4
<PAGE> 5
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. 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.
7. 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.
8. NOTICES. All notices required hereunder shall be in writing
and shall be deemed given when telegraphed, 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.
9. 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.
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<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
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 4.15
THIS WARRANT AND THE SECURITIES RECEIVABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS (i) A REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME
EFFECTIVE WITH REGARD THERETO, OR (ii) AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS AVAILABLE IN CONNECTION
WITH SUCH OFFER, SALE OR TRANSFER.
AN INVESTMENT IN THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE
HEREOF INVOLVES A HIGH DEGREE OF RISK. HOLDER MUST RELY ON HIS OWN ANALYSIS OF
THE INVESTMENT AND ASSESSMENT OF THE RISKS INVOLVED.
Warrant to Purchase
36,000 shares
WARRANT TO PURCHASE COMMON STOCK
OF
VIRAGEN, INC.
THIS CERTIFIES that DUNWOODY BROKERAGE SERVICES, INC. or any subsequent
("Holder") hereof, has the right to purchase from VIRAGEN, INC., a Delaware
corporation (the "Company"), not more than 36,000 fully paid and nonassessable
shares of the Company's Common Stock, $.01 par value ("Common Stock"), at a
price equal to the Exercise Price as defined in Section 3 below, subject to
adjustment as provided herein, at any time on or before 5:00 p.m., Atlanta,
Georgia time, on December 30, 2004.
The Holder of this Warrant agrees with the Company that this Warrant is
issued and all rights hereunder shall be held subject to all of the conditions,
limitations and provisions set forth herein.
1. DATE OF ISSUANCE.
This Warrant shall be deemed to be issued on December 28, 1999 ("Date
of Issuance").
2. EXERCISE.
(a) MANNER OF EXERCISE. This Warrant may be exercised as to all or any
lesser number of full shares of Common Stock covered hereby upon surrender of
this Warrant, with the Exercise Form attached hereto duly completed and
executed, together with the
<PAGE> 2
full Exercise Price (as defined in Section 3) for each share of Common Stock as
to which this Warrant is exercised, at the office of the Company, Viragen, Inc.,
865 SW 78th Avenue, Suite 100, Plantation, FL 33324, Attention: Dennis W.
Healey, Executive Vice President/CFO, Telephone No. (954) 233-8746, Telecopy No.
(954) 233-1416, or at such other office or agency as the Company may designate
in writing, by overnight mail, with an advance copy of the Exercise Form
attached as Exhibit A ("Exercise Form") sent by facsimile to the Company and its
Transfer Agent (such surrender and payment of the Exercise Price hereinafter
called the "Exercise of this Warrant").
(b) DATE OF EXERCISE. The "Date of Exercise" of the Warrant shall be
defined as the date that the advance copy of the completed and executed Exercise
Form is sent by facsimile to the Company and its Transfer Agent, provided that
the original Warrant and Exercise Form are received by the Company within five
(5) business days thereafter. The original Warrant and Exercise Form must be
received within five (5) business days of the Date of Exercise, or the exercise
may, at the Company's option, be considered void. Alternatively, the Date of
Exercise shall be defined as the date the original Exercise Form is received by
the Company, if Holder has not sent advance notice by facsimile.
(c) CANCELLATION OF WARRANT. This Warrant shall be canceled upon its
Exercise, and, as soon as practical after the Date of Exercise, the Holder
hereof shall be entitled to receive Common Stock for the number of shares
purchased upon such Exercise, and if this Warrant is not exercised in full, the
Holder shall be entitled to receive a new Warrant or Warrants (containing terms
identical to this Warrant) representing any unexercised portion of this Warrant
in addition to such Common Stock.
(d) HOLDER OF RECORD. Each person in whose name any Warrant for shares
of Common Stock is issued shall, for all purposes, be deemed to have become the
Holder of record of such shares on the Date of Exercise of this Warrant,
irrespective of the date of delivery of such shares of Common Stock. Nothing in
this Warrant shall be construed as conferring upon the Holder hereof any rights
as a shareholder of the Company.
3. PAYMENT OF WARRANT EXERCISE PRICE.
The Exercise Price ("Exercise Price") shall equal $0.86.
Payment of the Exercise Price may be made by either of the following,
or a combination thereof, at the election of Holder:
(a) CASH EXERCISE: cash, bank or cashiers check or wire transfer; or
(b) CASHLESS EXERCISE: surrender of this Warrant at the principal
office of the Company together with notice of cashless election, in which event
2
<PAGE> 3
the Company shall issue Holder a number of shares of Common Stock computed using
the following formula:
X = Y (A-B)/A
where: X = the number of shares of Common Stock to be issued to Holder.
Y = the number of shares of Common Stock for which this Warrant is
being exercised.
A = the Market Price of one (1) share of Common Stock (for purposes
of this Section 3(b), the "Market Price" shall be defined as
the average Closing Price of the Common Stock for the five (5)
trading days prior to the Date of Exercise of this Warrant
(the "Average Closing Price"), as reported by Nasdaq or if the
Common Stock is not traded on Nasdaq, the Average Closing
Price in the over-the-counter market on which the Common Stock
is traded. If the Common Stock is/was not traded during the
five (5) trading days prior to the Date of Exercise, then the
closing price for the last publicly traded day shall be deemed
to be the closing price for any and all (if applicable) days
during such five (5) trading day period.
B = the Exercise Price.
For purposes hereof, the term " Closing Price" shall mean the closing
price on the National Association of Securities Dealers Automated Quotation
System ("Nasdaq") Small Cap Market or OTC Bulletin Board, or if no longer traded
on the Nasdaq Small Cap Market or OTC Bulletin Board, the closing price on the
principal national securities exchange or the over-the-counter system on which
the Common Stock is so traded and, if not available, the mean of the high and
low prices on the principal national securities exchange or the National
Securities Exchange on which the Common Stock is so traded.
For purposes of Rule 144 and sub-section (d)(3)(ii) thereof, it is intended,
understood and acknowledged that the Common Stock issuable upon exercise of this
Warrant in a cashless exercise transaction shall be deemed to have been acquired
at the time this Warrant was issued. Moreover, it is intended, understood and
acknowledged that the holding period for the Common Stock issuable upon exercise
of this Warrant in a cashless exercise transaction shall be deemed to have
commenced on the date this Warrant was issued.
4. TRANSFER AND REGISTRATION.
(a) TRANSFER RIGHTS. Subject to the provisions of Section 8 of this
Warrant, this Warrant may be transferred on the books of the Company, in whole
or in part, in person or by attorney, upon surrender of this Warrant properly
completed and endorsed. This Warrant shall be canceled upon such surrender and,
as soon as practicable thereafter, the person to whom such transfer is made
shall be entitled to receive a new Warrant or Warrants as to the portion of this
Warrant transferred, and the Holder of this Warrant shall be entitled to receive
a new Warrant or Warrants as to the portion hereof retained.
3
<PAGE> 4
(b) REGISTRABLE SECURITIES. If the Company proposes to register
(including for this purpose a registration effected by the Company for
shareholders other than the Holders) any of its Common Stock under the Act in
connection with the public offering of securities of the Company (other than a
registration relating solely for the sale of securities to participants in a
Company stock plan or a registration on Form S-4 promulgated under the Act or
any successor or similar form registering stock issuable upon a
reclassification, upon a business combination involving an exchange of
securities or upon an exchange offer for securities of the issuer or another
entity), the Company shall, at such time, promptly give each Holder written
notice of such registration (a "Piggyback Registration Statement"). Upon the
written request of each Holder given by fax within ten (10) days after mailing
of such notice by the Company, the Company shall cause to be included in such
registration statement under the Act all of the shares of Common Stock issued or
issuable pursuant to the exercise of this Warrant to the extent such inclusion
does not violate the registration rights of any other security holder of the
company granted prior to the date hereof; provided that nothing herein shall
prevent the Company from withdrawing or abandoning the registration statement
prior to its effectiveness.
5. ANTI-DILUTION ADJUSTMENTS.
(a) STOCK DIVIDEND. If the Company shall at any time declare a dividend
payable in shares of Common Stock, then the Holder hereof, upon Exercise of this
Warrant after the record date for the determination of Holders of Common Stock
entitled to receive such dividend, shall be entitled to receive upon Exercise of
this Warrant, in addition to the number of shares of Common Stock as to which
this Warrant is Exercised, such additional shares of Common Stock as such Holder
would have received had this Warrant been Exercised immediately prior to such
record date and the Exercise Price will be proportionately adjusted.
(b) RECAPITALIZATION OR RECLASSIFICATION. If the Company shall at any
time effect a recapitalization, reclassification or other similar transaction of
such character that the shares of Common Stock shall be changed into or become
exchangeable for a larger or smaller number of shares, then upon the effective
date thereof, the number of shares of Common Stock which the Holder hereof shall
be entitled to purchase upon Exercise of this Warrant shall be increased or
decreased, as the case may be, in direct proportion to the increase or decrease
in the number of shares of Common Stock by reason of such recapitalization,
reclassification or similar transaction, and the Exercise Price shall be, in the
case of an increase in the number of shares, proportionally decreased and, in
the case of decrease in the number of shares, proportionally increased. The
Company shall give the Warrant Holder the same notice it provides to holders of
Common Stock of any transaction described in this Section 5(b).
(c) DISTRIBUTIONS. If the Company shall at any time distribute to
Holders of Common Stock cash, evidences of indebtedness or other securities or
assets (other than cash dividends or distributions payable out of earned surplus
or net profits for the current
4
<PAGE> 5
or preceding year) then, in any such case, the Holder of this Warrant shall be
entitled to receive, upon exercise of this Warrant, with respect to each share
of Common Stock issuable upon such Exercise, the amount of cash or evidences of
indebtedness or other securities or assets which such Holder would have been
entitled to receive with respect to each such share of Common Stock as a result
of the happening of such event had this Warrant been Exercised immediately prior
to the record date or other date fixing shareholders to be affected by such
event (the "Determination Date") or, in lieu thereof, if the Board of Directors
of the Company should so determine at the time of such distribution, a reduced
Exercise Price determined by multiplying the Exercise Price on the Determination
Date by a fraction, the numerator of which is the result of such Exercise Price
reduced by the value of such distribution applicable to one share of Common
Stock (such value to be determined by the Board in its discretion) and the
denominator of which is such Exercise Price.
(d) NOTICE OF CONSOLIDATION OR MERGER. In the event of a merger,
consolidation, exchange of shares, recapitalization, reorganization, or other
similar event, as a result of which shares of Common Stock of the Company shall
be changed into the same or a different number of shares of the same or another
class or classes of stock or securities or other assets of the Company or
another entity or there is a sale of all or substantially all the Company's
assets (a "Corporate Change"), then this Warrant shall be assumed by the
acquiring entity or any affiliate thereof and thereafter this Warrant shall be
exercisable into such class and type of securities or other assets as the
Holder would have received had the Holder exercised this Warrant immediately
prior to such Corporate Change; provided, however, that Company may not affect
any Corporate Change unless it first shall have given thirty (30) days notice to
the Holder hereof of any Corporate Change.
(e) EXERCISE PRICE ADJUSTED. As used in this Warrant, the term
"Exercise Price" shall mean the purchase price per share specified in Section 3
of this Warrant, as it may be reset from time to time, until the occurrence of
an event stated in subsection (a), (b) or (c) of this Section 5 and thereafter
shall mean said price as adjusted from time to time in accordance with the
provisions of said subsection. No such adjustment under this Section 5 shall be
made unless such adjustment would change the Exercise Price at the time by $.01
or more; provided, however, that all adjustments not so made shall be deferred
and made when the aggregate thereof would change the Exercise Price at the time
by $.01 or more. No adjustment made pursuant to any provision of this Section 5
shall have the effect of increasing the total consideration payable upon
Exercise of this Warrant in respect of all the Common Stock as to which this
Warrant may be exercised. Notwithstanding anything to the contrary contained
herein, the Exercise Price shall not be reduced to an amount below the par value
of the Common Stock.
(f) ADJUSTMENTS: ADDITIONAL SHARES, SECURITIES OR ASSETS. In the event
that at any time, as a result of an adjustment made pursuant to this Section 5,
the Holder of this Warrant shall, upon Exercise of this Warrant, become entitled
to receive shares and/or other securities or assets (other than Common Stock)
then, wherever appropriate, all
5
<PAGE> 6
references herein to shares of Common Stock shall be deemed to refer to and
include such shares and/or other securities or assets; and thereafter the number
of such shares and/or other securities or assets shall be subject to adjustment
from time to time in a manner and upon terms as nearly equivalent as practicable
to the provisions of this Section 5.
6. FRACTIONAL INTERESTS.
No fractional shares or scrip representing fractional shares shall be
issuable upon the Exercise of this Warrant, but on Exercise of this Warrant, the
Holder hereof may purchase only a whole number of shares of Common Stock. If, on
Exercise of this Warrant, the Holder hereof would be entitled to a fractional
share of Common Stock or a right to acquire a fractional share of Common Stock,
such fractional share shall be disregarded and the number of shares of Common
Stock issuable upon conversion shall be the next higher number of shares.
7. RESERVATION OF SHARES.
The Company shall at all times reserve for issuance such number of
authorized and unissued shares of Common Stock (or other securities substituted
therefor as herein above provided) as shall be sufficient for Exercise and
payment of the Exercise Price of this Warrant. The Company covenants and agrees
that upon Exercise of this Warrant, all shares of Common Stock issuable upon
such Exercise shall be duly and validly issued, fully paid, nonassessable and
not subject to preemptive rights, rights of first refusal or similar rights of
any person or entity.
8. RESTRICTIONS ON TRANSFER.
(a) REGISTRATION OR EXEMPTION REQUIRED. This Warrant and the Common
Stock issuable on Exercise hereof have not been registered under the Securities
Act of 1933, as amended, and may not be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of in the absence of registration or the
availability of an exemption from registration under said Act. All shares of
Common Stock issued upon Exercise of this Warrant shall bear an appropriate
legend to such effect, if applicable.
(b) ASSIGNMENT. Assuming the conditions of (a) above regarding
registration or exemption have been satisfied, the Holder may sell, transfer,
assign, pledge or otherwise dispose of this Warrant, in whole or in part. Holder
shall deliver a written notice to Company, substantially in the form of the
Assignment attached hereto as Exhibit B, indicating the person or persons to
whom the Warrant shall be assigned and the respective number of warrants to be
assigned to each assignee. The Company shall effect the assignment within ten
days, and shall deliver to the assignee(s) designated by Holder a Warrant or
Warrants of like tenor and terms for the appropriate number of shares.
6
<PAGE> 7
(c) INVESTMENT INTENT. The Warrant and Common Stock issuable upon
conversion are intended to be held for investment purposes and not with an
intent to distribution, as defined in the Act.
9. BENEFITS OF THIS WARRANT.
Nothing in this Warrant shall be construed to confer upon any person
other than the Company and the Holder of this Warrant any legal or equitable
right, remedy or claim under this Warrant and this Warrant shall be for the sole
and exclusive benefit of the Company and the Holder of this Warrant.
10. APPLICABLE LAW.
This Warrant is issued under and shall for all purposes be governed by
and construed in accordance with the laws of the state of Georgia, without
giving effect to conflict of law provisions thereof.
11. LOSS OF WARRANT.
Upon receipt by the Company of evidence of the loss, theft, destruction
or mutilation of this Warrant, and (in the case of loss, theft or destruction)
of indemnity or security reasonably satisfactory to the Company, and upon
surrender and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver a new Warrant of like tenor and date.
12. NOTICE OR DEMANDS.
Notices or demands pursuant to this Warrant to be given or made by the
Holder of this Warrant to or on the Company shall be sufficiently given or made
if sent by certified or registered mail, return receipt requested, postage
prepaid, and addressed, until another address is designated in writing by the
Company, Viragen, Inc., 865 SW 78th Avenue, Suite 100, Plantation, FL 33324,
Attention: Dennis W. Healey, Executive Vice President/CFO, Telephone No. (954)
233-8746, Telecopy No. (954) 233-1416. Notices or demands pursuant to this W
arrant to be given or made by the Company to or on the Holder of this Warrant
shall be sufficiently given or made if sent by certified or registered mail,
return receipt requested, postage prepaid, and addressed, Attn: Holder, address:
c/o Swartz Investments, LLC, 200 Roswell Summit, Suite 285, 1080 Holcomb Bridge
Road, Roswell, Georgia 30076, until another address is designated in writing by
Holder.
7
<PAGE> 8
IN WITNESS WHEREOF, the undersigned has executed this Warrant as of the
28 day of December, 1999.
VIRAGEN, INC.
By: /s/ Dennis W. Healey
----------------------------
Print Name: DENNIS W. HEALEY
Title: EXEC. V.P./CFO
8
<PAGE> 9
EXHIBIT A
EXERCISE FORM
TO:______________________________.
The undersigned hereby irrevocably exercises the right to purchase
__________________________ of the shares of Common Stock of VIRAGEN, INC., a
Delaware corporation, evidenced by the attached Warrant, and herewith makes
payment of the Exercise Price with respect to such shares in full, all in
accordance with the conditions and provisions of said Warrant.
The undersigned agrees not to offer, sell, transfer or otherwise
dispose of any of such Common Stock, except in accordance with the provisions of
Section 8 of the Warrant, and consents that the following legend may be affixed
to the stock certificates for the Common Stock hereby subscribed for, if such
legend is applicable:
"The securities represented hereby have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any
provincial or state securities law, and may not be sold, transferred,
pledged, hypothecated or otherwise disposed of until either (i) a
registration statement under the Securities Act and applicable
provincial or state securities laws shall have become effective with
regard thereto, or (ii) an exemption from registration under the
Securities Act or applicable provincial or state securities laws is
available in connection with such offer, sale or transfer."
The undersigned requests that stock certificates for such shares be
issued, and a warrant representing any unexercised portion hereof be issued,
pursuant to the Warrant in the name of the Registered Holder and delivered to
the undersigned at the address set forth below:
Dated:
- --------------------------------------------------------------------------------
Signature of Registered Holder
- --------------------------------------------------------------------------------
Name of Registered Holder (Print)
- --------------------------------------------------------------------------------
Address
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
9
<PAGE> 10
EXHIBIT B
ASSIGNMENT
(To be executed by the registered Holder
desiring to transfer the Warrant)
FOR VALUE RECEIVED, the undersigned Holder of the attached Warrant hereby
sells, assigns and transfers unto the person or persons below named the right to
purchase __________________ shares of the Common Stock of VIRAGEN, INC.
evidenced by the attached Warrant and does hereby irrevocably constitute and
appoint ______________________________ attorney to transfer the said Warrant on
the books of the Company, with full power of substitution in the premises.
Dated: ----------------------------------
Signature
Fill in for new Registration of Warrant:
- ----------------------------------
Name
- ----------------------------------
Address
- ----------------------------------
Please print name and address of assignee
(including zip code number)
- --------------------------------------------------------------------------------
NOTICE
The signature to the foregoing Exercise Form or Assignment must correspond to
the name as written upon the face of the attached Warrant in every particular,
without alteration or enlargement or any change whatsoever.
- --------------------------------------------------------------------------------
10
<PAGE> 1
EXHIBIT 4.16
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.
July 1, 1999
VIRAGEN, INC.
(Incorporated under the laws of the State of Delaware)
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
No. DS-01
FOR VALUE RECEIVED, VIRAGEN, INC. (the "Company"), a Delaware
corporation, hereby certifies that David Squillacote (the "Holder"), is
entitled, subject to the provisions of the Warrant, to purchase from the Company
up to 70,000 fully paid and non-assessable shares of Common Stock at a price of
US$0.50 per share (the "Exercise Price").
The term "Common Stock" means the Common Stock, par value $.01 per
share, of the Company as constituted on July 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
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.
<PAGE> 2
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. 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
2
<PAGE> 3
bid and asked prices reported by the National Quotation 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
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.
3
<PAGE> 4
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. 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.
4
<PAGE> 5
7. 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.
8. 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.
9. 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.
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
5
<PAGE> 6
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:
--------------------------------------------
6
<PAGE> 7
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: , 200
---------------- --
---------------------------
Signature
---------------------------
Signature, if jointly held
7
<PAGE> 1
EXHIBIT 4.17
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.
January 17, 2000
VIRAGEN, INC.
(Incorporated under the laws of the State of Delaware)
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
No. CA-01
FOR VALUE RECEIVED, VIRAGEN, INC. (the "Company"), a Delaware
corporation, hereby certifies that Cameron Associates, Inc. (the "Holder"), is
entitled, subject to the provisions of the Warrant, to purchase from the Company
up to 100,000 fully paid and non-assessable shares of Common Stock at a price of
US$1.17 per share (the "Exercise Price").
The term "Common Stock" means the Common Stock, par value $.01 per
share, of the Company as constituted on January 17, 2000 (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
deliver a new Warrant of like tenor and date. Any such new Warrant executed and
<PAGE> 2
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. 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
2
<PAGE> 3
(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 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
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
3
<PAGE> 4
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. 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
4
<PAGE> 5
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.
7. 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.
8. 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.
9. 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.
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
5
<PAGE> 6
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:
----------------------------------------------
6
<PAGE> 7
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: , 200
---------------- --
--------------------------------
Signature
--------------------------------
Signature, if jointly held
7
<PAGE> 1
EXHIBIT 4.18
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.
April 17, 2000
VIRAGEN, INC.
(Incorporated under the laws of the State of Delaware)
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
No. NS-01
FOR VALUE RECEIVED, VIRAGEN, INC. (the "Company"), a Delaware
corporation, hereby certifies that Nassau Securities, Int'l (the "Holder"), is
entitled, subject to the provisions of the Warrant, to purchase from the Company
up to 50,000 fully paid and non-assessable shares of Common Stock at a price of
US$1.94 per share (the "Exercise Price").
The term "Common Stock" means the Common Stock, par value $.01 per
share, of the Company as constituted on April 17, 2000 (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
deliver a new Warrant of like tenor and date. Any such new Warrant executed and
<PAGE> 2
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. 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
2
<PAGE> 3
(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 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
securities and property receivable upon the exercise of this Warrant prior to
3
<PAGE> 4
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. 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
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<PAGE> 5
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.
7. 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.
8. 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.
9. 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.
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
5
<PAGE> 6
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:
----------------------------------------------
6
<PAGE> 7
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: , 200
---------------- --
----------------------------
Signature
----------------------------
Signature, if jointly held
7
<PAGE> 1
EXHIBIT 4.19
EXHIBIT A
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of February 7, 2000 (the "Effective Date")
between Viragen, Inc. a Delaware Corporation (the "Company") and Gerald Smith
("Optionee").
The Company hereby grants to Optionee a Non-Statutory Option ("NSO") to acquire
Common Stock, par value $.01 per share, of the Company (the "Common Stock"),
subject to the following terms and conditions:
1. GRANT OF OPTION. The Company hereby grants to Optionee (the
"Option") to purchase up to 1,000,000 shares of Common Stock (the "Shares"), to
be transferred upon the exercise thereof, fully paid and nonassessable.
Optionee and the Company acknowledge that this Option supercedes and replaces
Optionees' right to purchase 1,000,000 shares, exercisable at $0.50 per share
for a period of five (5) years from the grant date, granted by the Company on
October 6, 1995 ("Replaced Option") and that the Replaced Option is hereby
cancelled.
2. EXERCISE PRICE. The exercise price of the Shares subject to the
Option shall be at $0.50 per share. The Company shall pay all original issue or
transfer taxes upon the exercise of the Option by Optionee.
3. EXERCISABILITY OF OPTION; RIGHTS AND PRIVILEGES. Subject to the
provisions of Paragraph 6 hereof, the Option shall be exercisable by Optionee in
whole or in part, at any time and from time to time, commencing on the Effective
Date (the "Exercise Date") through October 5, 2003
All granted but unexercised Options shall continue to be fully exercisable in
accordance with the provisions herein:
(i) if there occurs any corporate transaction (which shall include
a series of corporate transactions occurring within 60 days or occurring
pursuant to a plan), that has the result that shareholders of the Company
immediately before such transaction cease to own at least 66 2/3 percent of the
voting stock of the Company in a (a) reorganization, (b) consolidation, (c)
merger, (d) liquidation or (e) a similar of corporate transaction;
(ii) if the shareholders of the Company shall approve a plan of
merger, consolidation, reorganization, liquidation or dissolution in which the
Company does not survive (unless the approved merger, consolidation,
reorganization, liquidation or dissolution is subsequently abandoned); or
<PAGE> 2
(iii) if the shareholders of the Company shall approve a plan for
the sale, lease, exchange or other disposition of all or substantially all the
property and assets of the Company (unless such plan is subsequently abandoned).
4. NON-ASSIGNABILITY OF OPTION. The Option shall not be given, granted,
sold, exchanged, transferred, pledged, encumbered, assigned or otherwise
disposed of by Optionee, other than by will or the laws of descent and
distribution, and during the lifetime of Optionee, shall not be exercisable by
any other person, but only by Optionee.
5. METHOD OF EXERCISE OF OPTION. Optionee shall notify the Company by
written notice, in the form of the Notice of Exercise attached hereto
(Attachment A), delivered to the Company's principal office, attention: Chief
Financial Officer. At the Optionee's option, the payment for the Shares may be
made either by Optionee's check payable to the order to the Company in full
payment for the total exercise price of the number of Shares purchased or by
execution and delivery by the Optionee to the Company of a Note(s), in similar
form and content as Notes previously used by the Company for similar purposes
("Note(s)"), dated as of each Notice of Exercise. As soon as practicable after
the receipt of such Notice of Exercise and accompanying payment for the purchase
of Shares, the Company shall, at its principal office, tender to Optionee a
certificate or certificates issued in Optionee's name evidencing the Shares
purchased by Optionee hereunder.
6. TERMINATION OF OPTION. To the extent exercisable but not exercised,
the Option shall terminate upon the first to occur of the following dates:
(a) October 5, 2003
(b) the expiration of ninety (90) days following the date
Optionee's employment terminates with the Company and/or any of its subsidiaries
included in the Plan with Cause, as defined in Optionee's Employment Agreement
dated March 1, 1999.
Subject to the provisions of this paragraph, in the event of Optionee's death,
the exercisable but unexercised portion of the Option may be exercised by the
estate of Optionee, or by the person who acquired the right to exercise the
Option by bequest or inheritance or by reason of the death of Optionee.
In the event of Employee's termination without Cause, all granted but
unexercised Options shall continue to be fully exercisable in accordance with
the provisions herein. Additionally, in the event this Agreement is not renewed
at the end of the Employment Term, then all granted but unexercised Options
shall continue to be fully exercisable in accordance with the provisions herein.
7. PLEDGE OF SHARES. If payment for the purchase of Shares under this
Option is made through execution and delivery of a Note(s), effective upon
Optionee's purchase(s) of the Shares and the delivery of the Note(s), in order
to secure the Company's obligations under the Note(s), Optionee hereby pledges,
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<PAGE> 3
assigns and sets over to the Company, and grants to the Company a security
interest in, the Shares. The Shares pledged pursuant hereto shall be maintained
in escrow with Atlas, Pearlman, Trop & Borkson, P.A. pursuant to the terms of a
Pledge and Escrow Agreement previously used by the Company for similar purposes,
which shall be executed by Optionee and the Company upon delivery of a Note(s).
As long as any Shares remain subject to the lien of the Pledge, such Shares may
not be further pledged or encumbered in any manner, and shall not be sold,
transferred or otherwise disposed of. The Escrow Agent shall not be required to
relinquish the Pledge or the Escrow Agent's possession of the certificates
evidencing the Shares, unless no later than concurrently with the sale of the
Shares pursuant to an S-8 registration, all Notes which are secured by such
Shares are paid in full. In the event any of the Shares are to be titled in the
name of an immediate family member of Optionee or a trust pursuant to the terms
herein, as a condition thereto the designated title holder(s) of such Shares
shall execute and deliver to the Company a pledge and escrow agreement, in form
and content reasonably satisfactory to the Company and its counsel, consistent
with the terms herein. No transfer of Shares to, or designation by Optionee of
(for the purposes of owning Shares) any person or entity shall relieve Optionee
of any of his obligations under the Note(s) or this Agreement. With respect to
each Note under which a voluntary prepayment is made by Optionee, provided that
interest payments on such Note are current through the date of prepayment and
such Note is not in default and has not been accelerated, for each $5,000 of
principal paid by Optionee under such Note, 10,000 Shares of the Shares pledged
to secure such Note shall be released from the lien of the Pledge. As long as no
event of default has occurred with respect to a Note and no event giving right
to accelerate such Note has occurred, Optionee shall retain all voting rights
with respect to all Shares securing such Note. Following an event of default or
an acceleration event, the Company shall have and may exercise all voting rights
with respect to such Shares. Optionee hereby irrevocably appoints the Company
Optionee's attorney-in-fact for such purpose, it being acknowledged that such
appointment is coupled with an interest. Any dividends or distributions payable
in respect of any Shares subject to the Pledge shall automatically be applied to
pay down the Note(s) in inverse order of their respective maturity date(s). In
the event of a default under any Note, in addition to and not in limitation or
lieu of any other rights or remedies the Company may have against Optionee as a
result of such default, the Company may exercise all of its rights at law and in
equity as a secured party, including without limitation under the Uniform
Commercial Code, with respect to all Shares then securing the Note with respect
to which the default has occurred. Upon a default, without limiting any of the
Company's other rights and remedies, the Company may conduct a public or private
foreclosure sale of the Shares securing the Note with respect to which the
default has occurred. Optionee agrees that 10 days notice to him of any private
sale is fair and reasonable. The Company may be the purchaser at any public
foreclosure sale, and may bid any commercially reasonable amount at such sale.
In all events, in the event of a public or private foreclosure sale, Optionee
shall be liable for any deficiency. All of the Company's rights and remedies
under the Note(s), the Pledge and this Agreement, and at law or in equity, are
cumulative, and none is intended to be in substitution or in lieu of, nor is the
exercise of one intended to be a waiver of, any other. The Company shall have no
3
<PAGE> 4
obligation to proceed against the Shares before proceeding against Optionee with
respect to any default under any of the Notes.
8. SECURITIES LAWS. Employer represents and warrants that (i) all
shares underlying the Options will be issued from shares authorized by and
subject to the provisions of the Plan; (ii) the Plan and the shares underlying
the Options shall be registered under the applicable regulations of the
Securities and Exchange Commission on Form S-8; and (iii) such registration
covering the shares underlying the Options will be maintained as effective for
the longer of (a) the Employment Term or (b) the Exercise Period of the Options
as defined herein.
9. ADJUSTMENT OF SHARES. If at any time prior to the expiration or
exercise in full of the Option, there shall be any increase or decrease in the
number of issued and outstanding shares of the Common Stock through the
declaration of a stock dividend or through any recapitalization resulting in a
stock split-up, combination or exchange of the Common Stock, then and in such
event:
(i) appropriate adjustment shall be made in the maximum number of
Shares available for grant, so that the same percentage of the Company's issued
and outstanding Shares shall continue to be subject to being so optioned; and
(ii) appropriate adjustment shall be made in the number of Shares,
and the exercise price per Share thereof, that remain unexercised under the
Option, so that the same percentage of the Company's issued and outstanding
shares of Common Stock shall remain subject to purchase at the same aggregate
exercise price.
Except as otherwise expressly provided herein, the issuance by the Company of
shares of its capital stock of any class, or securities convertible into shares
of capital stock of any class, either in connection with a direct sale of upon
the exercise of rights or warrants to subscribe therefore, or upon conversions
of shares or obligations the Company convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof shall be made
with respect to, the number of exercise price of the Shares that remain
unexercised under the Option.
Without limiting the generality of the foregoing, the existence of unexercised
Shares under the Option shall not affect in any manner the right or power of the
Company to make, authorize or consummate (i) any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business; (ii) any merger or consolidation of the Company;
(iii) any issue by the Company of debt securities, or preferred or preference
stock that would rank above the Shares issuable upon exercise of the Option;
(iv) the dissolution or liquidation of the Company; (v) any sale, transfer or
assignment of all or any part of the assets or business of the Company; or (vi)
any other corporate act or proceeding, whether of a similar character or
otherwise.
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<PAGE> 5
10. NO RIGHTS AS STOCKHOLDER. Optionee shall have no rights as a
stockholder of the Company in respect of the Shares as to which the Option shall
not have been exercised and payments made therefore as herein provided.
11. BINDING EFFECT. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties hereto, their
heirs, legal representatives, successors and permitted assigns.
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to the
conflict of laws principles thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
VIRAGEN, INC.
By: /s/ Dennis W. Healey
-------------------------------
Dennis W. Healey
Executive Vice President/CFO
OPTIONEE
/s/ Gerald Smith
-------------------------------
Gerald Smith
5
<PAGE> 6
ATTACHMENT A
NOTICE OF EXERCISE
The undersigned hereby irrevocably elects to exercise the within Option to the
extent of purchasing __________ shares of Common Stock of Viragen, Inc., a
Delaware Corporation, and hereby makes payments of $________ in payment
therefor.
--------------------------
Signature
--------------------------
Date
INSTRUCTIONS FOR ISSUANCE OF STOCK AND CORPORATE RECORDS
Name:
---------------------------------------------------------
(Please type or print in block letters)
Address:
---------------------------------------------------------
---------------------------------------------------------
Social Security #:
--------------------------------------------
Phone #: ( )
---- --------------------------------
Fax #: ( )
---- --------------------------------
6
<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 Samantha Nicole Tesser
Kip O. Lassner Michael L. Trop
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 Street, Suite 100
Plantation, Florida 33324
Re: Registration Statement on Form S-8; Viragen, Inc.
(the "Company"); 2,074,000 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 and the resale of an aggregate of 2,074,000 shares of
Common Stock, par value $0.01 per share (the "Common Stock") to be sold
pursuant to the above the Registration Statement and the Company's
Common Stock purchase warrants and Common Stock purchase option
(collectively "Options") granted to consultants and to the President of
the Company. The shares of Common Stock to be sold consist of up to
1,074,000 shares of Common Stock to be issued to the consultants and up
to 1,000,000 shares to be issued to such executive officer under the
Options.
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, By-Laws, the Options, corporate
minutes provided to us by the Company and such other documents and
instruments as we deemed necessary. 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.
Based upon and in reliance of the foregoing, we are of the
opinion that the Common Stock to be issued upon exercise of the Options,
when issued in accordance with the terms thereof, will be validly
issued, fully paid and non-assessable.
<PAGE> 2
Viragen, Inc.
May 15, 2000
Page 2
We hereby consent to the use of this opinion in the Registration
Statement on Form S-8 to be filed with the Commission.
Very truly yours,
/s/Atlas Pearlman, P.A.
---------------------------
ATLAS PEARLMAN, P.A.
JMS/bb
<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-8 No. 333- _______) pertaining to the
Compensatory Stock Options and Warrants Granted to Consultants and the Stock
Option Agreement with a Key Executive 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.
/s/ Ernst & Young LLP
Miami, Florida
May 17, 2000
