As filed with the Securities and Exchange Commission on April 18, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VIMRx PHARMACEUTICALS INC.
(Exact name of registrant as specified in its charter)
Delaware 06-1192468
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2751 Centerville Road
Suite 210
Wilmington, Delaware 19808
(203) 329-0811
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
SIDNEY TODRES, ESQ.
Epstein Becker & Green, P.C.
250 Park Avenue
New York, New York 10177
(212) 351-4735
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Approximate date of proposed commencement of
sale to the public: As soon as practicable after
this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ] ---------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
============================== ------------------------ -------------------------- ------------------------- -----------------------
Title of Securities Being Amount Being Registered Proposed Proposed Amount of
Registered Maximum Maximum Registration
Offering Price Aggregate Fee
Per Share(1) Offering Price(1)
<S> <C> <C> <C> <C>
- ------------------------------ ------------------------ -------------------------- ------------------------- -----------------------
Common Stock, par 5,999,991 $2.50 $14,999,978 $4,545
value $.001 per share...
- ------------------------------ ------------------------ -------------------------- ------------------------- -----------------------
Warrants to purchase
Common Stock . . . 2,399,993 $2.50 $5,999,983 $1,818
Common Stock, par
value $.001 per share
============================== ======================== ========================== ========================= =======================
Total.............. $6,363
============================== ======================== ========================== ========================= =======================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee based
on the average of the high and low sales prices of the Common Stock on The
Nasdaq Stock Market on April 11, 1997, pursuant to Rule 457(c).
---------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
<PAGE>
Subject to Completion, Dated April 18, 1997
PROSPECTUS
- ----------
VIMRx PHARMACEUTICALS INC.
5,999,991 Shares of Common Stock
($.001 par value)
2,399,993 Warrants to Purchase Common Stock
2,399,993 Shares of Common Stock
($.001 par value)
-----------------
The 5,999,991 shares of Common Stock (the "Placement Shares"),
2,399,993 warrants (the "Warrants") and/or the 2,399,993 shares of Common Stock
issuable to the holders of the Warrants upon exercise thereof (the "Warrant
Shares" and, together with the Placement Shares, the "Shares") to which this
Prospectus relates may be sold by the selling securityholders named herein (the
"Selling Securityholders") from time to time in transactions on The Nasdaq Stock
Market at prices then prevailing or in negotiated transactions at negotiated
prices, or a combination thereof. See "Selling Securityholders" and "Plan of
Distribution." The Warrants entitle the holders thereof to purchase an aggregate
of 2,399,993 shares of Common Stock at $1.50 per share through June 20, 2006,
the expiration date of the Warrants. See "Description of Securities - Warrants."
The Company will not receive any proceeds from the sale by the Selling
Securityholders of the Shares and/or the Warrants. The cost of registering the
Shares and the Warrants under the Securities Act will be paid by the Company.
The Common Stock is traded on The Nasdaq Stock Market's National
Market under the symbol "VMRX". On April 17, 1997, the closing sale price of the
Common Stock, as reported by The Nasdaq Stock Market, was $2.375 per share.
Prior to this offering, there has been no public market for the Warrants;
application is being made for the listing of the Warrants on The Nasdaq Stock
Market's SmallCap Market.
-----------------
THE SHARES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK.
SEE "RISK FACTORS."
-----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION NOR HAS THE COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-----------------
The date of this Prospectus is , 1997.
<PAGE>
No dealer, salesman, or any other person has been authorized to
give any information or to make any representations other than those contained
in this Prospectus in connection with the offering herein contained and, if
given or made, such information or representations must not be relied upon as
having been authorized by the Company or the Selling Securityholders. This
Prospectus does not constitute an offer to sell, or a solicitation of an offer
to buy, the securities offered hereby in any jurisdiction to any person to whom
it is unlawful to make an offer or solicitation. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create an
implication that there has been no change in the facts herein set forth since
the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such material may be
inspected and copied at the regional offices of the Commission at 7 World Trade
Center, Suite 1300, New York, New York 10048, and at Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago Illinois 60661-2511. This material may also
be inspected and copied at and, upon written request, copies obtained at
prescribed rates from, the Public Reference Section of the Commission at Room
1024 at its principal office, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549. This material may also be accessed through the EDGAR
terminals in the Commission's Public Reference Rooms in Washington. Chicago and
New York or through the World Wide Web at http://www.sec.gov.
DOCUMENTS INCORPORATED BY REFERENCE
The Company's (i) Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, and (ii) Current Reports on Form 8-K filed on January
4, 1997 (as amended on Form 8-K/A filed on March 10, 1997) and March 24, 1997,
are incorporated in and made a constituent part of this Prospectus by reference.
All reports and proxy statements filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this Prospectus and prior to termination of the offering of the Shares
and the Warrants to which this Prospectus relates shall likewise be deemed
incorporated herein and made a constituent part hereof by reference from their
respective dates of filing.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document that is also incorporated by reference
herein modifies or replaces such statement. Any statements so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
Upon oral or written request, the Company will provide without
charge a copy of any document incorporated in this Prospectus by reference,
exclusive of exhibits, to each person to whom this Prospectus is delivered.
Requests for such documents should be directed to the Chief Financial Officer of
the Company, 2751 Centerville Road, Suite 210, Wilmington, Delaware 19808
(telephone no. 302-998-1734).
2
<PAGE>
THE COMPANY
VIMRx Pharmaceuticals Inc. ("VIMRx" or the "Company") is a
development stage company focused on identifying, evaluating, acquiring and
commercializing scientific technologies to be developed by the Company in
partnership with others. Therapeutic and related products from synthetic
hypericin, principally for the treatment of viral and retroviral diseases,
currently are under development. The Company also owns approximately 68% of the
capital stock of Innovir Laboratories, Inc. ("Innovir", Nasdaq: INVR) which,
together with its subsidiaries, is engaged in the research and development of
Oligozymes, a new class of biopharmaceutical agents for the treatment of a wide
array of human diseases. To further diversify its potential product line, the
Company has entered into two research agreements with Columbia University, one
relating to products developed by the Columbia Genomic Center, and the second
relating to a cardiovascular anticoagulant compound, and is actively seeking to
acquire rights to emerging innovative technologies.
Hypericin
The Company's principal product, VIMRxyn(R), is comprised of
chemically synthesized hypericin and, in laboratory tests, has inhibited the
infection of normal cells by targeted viruses. Hypericin is an aromatic
polycyclic dione found in the stem and petals of the common Saint John's wort, a
plant which has been used as a folk remedy since the Middle Ages. Hypericin
plant extracts continue to be used as lay treatments for various disorders. The
Company is investigating utilizing VIMRxyn as a treatment for viral and
retroviral diseases, including the human immune deficiency virus ("HIV"), which
is the retrovirus responsible for Acquired Immune Deficiency Syndrome ("AIDS"),
and also is investigating utilizing VIMRxyn as a treatment for hepatitis C, as a
therapeutic for brain cancer (glioma), and as a means of inactivating HIV and
other lipid-enveloped viruses in blood collected for transfusions. The Company
has a worldwide exclusive license to commercialize and exploit synthetic
hypericin compounds for enumerated purposes from New York University and Yeda
Research and Development Co., Ltd., an Israeli corporation engaged in the
commercial exploitation of scientific developments by scientists at a Weizmann
Institute of Science in Israel (New York University and YEDA, collectively, the
"Hypericin Licensors").
The Company has not established the efficacy of VIMRxyn in human
clinical trials for the treatment of AIDS. In 1994, the Company completed data
analysis of Phase I/Phase II human clinical trials sponsored by the National
Institutes of Health to determine the maximum tolerated dose and any side
effects of VIMRxyn as a treatment for AIDS. From the data collected, the results
showed a favorable pharmacological profile with no major organ or hematological
toxicity, and with skin photosensitivity as the primary dose-limiting side
effect. All of the patients enrolled in the trials experienced varying levels of
skin photosensitivity and several experienced non-life threatening acute skin
photosensitivity which required medical treatment.
Between January and September 1996, human clinical trials were
conducted in Thailand by a Dutch company retained by the Company under a
protocol submitted to the U.S. Food and Drug Administration (the "FDA") under
the Company's existing investigational new drug application to identify a
potentially efficacious lower dose of VIMRxyn, having minimal skin
photosensitivity, as a treatment for AIDS. The dosage administered was
well-tolerated by the patients and did not result in untoward toxicity or skin
photosensitivity and, based on the measurement criteria used, produced evidence
of anti-HIV activity. The Company is currently conducting in vitro interaction
studies to determine how VIMRxyn may be used in combination with other
anti-retroviral agents.
The Company is continuing to explore developing hypericin as a
means of inactivating lipid-enveloped viruses in blood collected for
transfusions and is conducting initial clinical studies to evaluate hypericin's
potential antiviral effect with respect to hepatitis C virus and its potential
anticancer activity in recurrent malignant brain glioma. The Company is also
conducting preclinical laboratory studies to evaluate the effectiveness of
VIMRxyn against a variety of human cell lines, including non-Hodgkins B-cell
lymphoma, endometrial carcinoma and cutaneous T-cell lymphoma.
3
<PAGE>
Oligozymes; Affiliation with Innovir
In December 1996, the Company acquired an approximately 68%
ownership interest in Innovir, a biotechnology company engaged in the research
and development of a new class of biopharmaceutical therapeutic agents,
collectively termed "Oligozymes" by Innovir, for the treatment of a wide array
of human diseases. An Oligozyme is a chemically modified oligomer, not composed
of RNA, that participates in an essential manner in the sequence-specific,
catalytic cleavage of a targeted RNA molecule. The management of the Company and
Innovir believe that therapeutic agents based upon Innovir's proprietary core
technologies have the potential to be cost-effective and highly specific
therapeutics for designated disease targets as well as to identify and validate
targets for drug discovery. VIMRx's management also believes that its
collaboration with Columbia University may provide synergistic opportunities for
the Oligozyme technology owned by Innovir. See " - Research Agreements with
Columbia University."
One of Innovir's two core technologies, its External Guide
Sequence ("EGS") Oligozyme technology, directs a naturally occurring cellular
ribozyme (RNase P) to disease-causing RNA so that the RNase P will cleave the
disease-causing RNA and render it inactive. An EGS Oligozyme is a small,
chemically-modified oligonucleotide segment that binds to a disease-causing RNA
to create a structure resembling a type of RNA which is cleaved by RNase P,
which thereby destroys the disease-causing RNA molecules before they create
disease-causing proteins. Innovir's EGS Oligozyme technology, to which Innovir
has an exclusive worldwide license for commercialization from Yale University,
is based upon Nobel Prize-winning research by Sidney Altman, Ph.D., Sterling
Professor of Biology at Yale University, a consultant to and member of the
Science Advisory Board of Innovir. Innovir is investigating the use of EGS
Oligozymes as a therapeutic to combat target viral and other diseases, and
currently is focussing on hepatitis B, hepatitis C, cancer, psoriasis and
bacterial infections caused by drug-resistant microorganisms.
Innovir's second core technology is its RILON(TM) Oligozyme
technology, which it acquired through its acquisition of VIMRx Holdings, Ltd.
("Holdings") from the Company in December 1996. RILON Oligozymes are composed of
certain types of chemically modified oligoribonucleotides, which are proprietary
to Innovir through Holdings' worldwide exclusive license from the European
Molecular Biology Laboratory and patents held by Innovir and Holdings. RILON
Oligozymes consist of two classes: type 1 RILON Oligozymes, which cut specific
targeted RNA molecules in a manner intrinsic to the RILON Oligozyme, and type 2
RILON Oligozymes, which are shorter in length than Type 1 RILON Oligozymes and
participate with the substrate of the targeted RNA molecule to form a structure
that results in the sequence-specific catalytic cleavage of the target RNA
molecule. Innovir is evaluating the potential use of RILON Oligozymes to combat
viral and other diseases, including cancer, central nervous system diseases and
psoriasis.
Innovir also is investigating the use of its Oligozyme
technologies to identify and validate disease targets for new drugs. Oligozymes
can be used in drug target identification and validation as substitutes for the
difficult-to-find selective inhibitors which otherwise are required in the drug
target identification and validation process. Such substitution is possible
because Oligozymes mimic the effect of select inhibitors at an earlier stage of
the disease-causing process than inhibitors. While inhibitors inhibit the
production of disease-causing proteins, Oligozymes inhibit the production of the
disease-causing messenger RNA molecules that produce such disease-causing
proteins and, in both cases, the pharmacological effect is the same.
Management of the Company and Innovir do not anticipate that any
of Innovir's proposed products will be available for commercial sale for several
years, if at all. Innovir's current capital is insufficient to enable Innovir to
complete the development of any of its products.
Research Agreements with Columbia University
In March 1997, VIMRx entered into a research agreement with
Columbia University ("Columbia") pursuant to which VIMRx Genomics, Inc.
("Genomics"), 90%-owned by the Company and 10%-owned by Columbia, was
established. Genomics will provide $30 million in funding to the Columbia Genome
Center established by Columbia, with $4.7 million to be paid during the first
year in quarterly installments. In exchange, Genomics will receive an exclusive
license to develop, manufacture, use, sell or market products resulting from any
invention or research product developed by the Columbia Genome Center and funded
under the agreement relating to the discovery, mapping, sequencing or validation
of disease-related genes. Following an initial five-year term, the agreement
automatically will renew for successive two-year terms, with the amount of
funding to be increased at a rate of 9% for every additional year. The agreement
is terminable by either Columbia or Genomics during the initial five-year term
4
<PAGE>
upon six months notice, but in no event earlier than September 7, 1999. Under
the agreement, VIMRx agreed to issue 200,000 shares of Common Stock to Columbia,
and granted Columbia "piggyback" registration rights with respect thereto during
the period April 1, 1997 to April 1, 1999. VIMRx intends to solicit equity
investments in Genomics for the funding requirements from potential technology
partners and other investors.
Investigators at the Center have been involved in localizing and
identifying novel human genes associated with genetically based diseases,
including cancer, late-onset Alzheimer's Disease, epilepsy, manic-depressive
disorder and glaucoma. VIMRx's management believes the collaboration with
Columbia may also provide synergistic opportunities for the Oligozyme technology
owned by Innovir: the Center provides access to proprietary gene sequences
implicated in disease processes and the Oligozyme technology may aid in
understanding the function of such genes and potentially lead to the development
of new diagnostic and therapeutic compounds.
In March 1997, VIMRx acquired an exclusive, worldwide license from
Columbia to develop, manufacture, use and sell products based on a patented
cardiovascular compound which, in pre-clinical studies, has demonstrated the
ability to selectively prevent blood clots that can lead to stroke during
surgery while reducing the potential for bleeding complications associated with
currently available anticoagulation therapies. VIMRx concurrently entered into a
research agreement with Columbia pursuant to which VIMRx will fund research and
development of such compound during a three-year period in the amount of
$2,700,000.
------------------
VIMRx is in the development stage, has earned no revenues from
operations and has incurred a cumulative loss of $42,371,000 from its inception
through December 31, 1996 in its research and development activities and in
conducting its operations. Its executive offices are located at 2751 Centerville
Road, Suite 210, Wilmington, Delaware 19808 (telephone no. 302-998-1734).
5
<PAGE>
RISK FACTORS
An investment in the Shares and/or the Warrants involves a high
degree of risk. Prospective investors should give careful consideration, among
other items, to the following factors:
1. Development Stage Company; Accumulated Deficit. The Company is
in the development stage and has not realized any operating revenues. From
commencement of its operations in January 1987 through December 31, 1996, the
Company incurred a cumulative loss of $42,371,000 in funding its research and
development programs and in conducting its operations. Potential investors
should be aware of the problems, delays, expense and difficulties encountered by
any company in the development stage, many of which may be beyond the Company's
control. These include, but are not limited to, unanticipated problems and
additional costs relating to development, testing, regulatory compliance,
production, marketing and competition. The Company expects to continue to incur
losses for the foreseeable future and there can be no assurance that the Company
will successfully complete the transition from a development stage company to
profitability.
2. Dependence on Limited Potential Product Line. The Company's
development efforts relate principally to (i) VIMRxyn as a treatment for AIDS
and AIDS-related conditions, as a means of inactivating HIV and other
lipid-enveloped viruses in blood collected for transfusions, and for other
applications; (ii) Oligozymes (through its approximately 68%-owned subsidiary,
Innovir), (iii) the discovery, mapping, sequencing or validation of
disease-related genes (through a research agreement between Genomics and with
Columbia) and (iv) a cardiovascular anticoagulant compound (through a research
agreement with Columbia). Although the Company continues to seek emerging
innovative technologies to diversify its portfolio of potential products, its
success currently depends upon the success of the foregoing efforts, as to which
there can be no assurance. Further, in the event the foregoing efforts prove
successful, there can be no assurance that more effective and/or less costly
treatments or procedures for the applications being explored by the Company and
its subsidiaries will not be developed by others.
3. Significant Capital Requirements of Innovir. Although the
Company has adequate funds to enable it to operate at its present level through
January 1999, Innovir, the Company's approximately 68%-owned subsidiary, will
exhaust its cash and cash equivalents in late 1997 based upon its current level
of operations, and will require additional capital to finance completion of the
development of its proposed products, including continuing research and the
rigorous testing and regulatory approvals which will be required. The Company
has agreed to provide Innovir with $1,000,000 in funds (through the exercise of
stock options) upon receipt of a written request from Innovir's Board of
Directors subsequent to May 31, 1997 specifying that Innovir has insufficient
funds to continue its operations. Further, there can be no assurance that
Innovir will be successful in obtaining its funding requirements from third
parties or from corporate partnership arrangements, in which event the Company
may be required to provide such funding in order to protect its economic
investment.
4. Skin Photosensitivity of VIMRxyn. The Company's data analysis
of Phase I/Phase II human clinical trials sponsored by the National Institutes
of Health to determine the maximum tolerated dose and any side effects of
VIMRxyn as a treatment for AIDS indicated skin photosensitivity to be the
primary dose-limiting side effect. Although the lower dosage of VIMRxyn
administered in a subsequent Company-sponsored trial in Thailand did not result
in untoward toxicity or skin photosensitivity, there can be no assurance that
such lower dosage will provide sufficient anti-HIV activity to produce a
commercially viable therapeutic product for humans.
5. Government Regulation. The manufacture and marketing of
therapeutic products is subject to extensive regulation by the FDA, as well as
by state and foreign authorities. Prior to the release of VIMRxyn for marketing
as a therapeutic product or agent, its tolerance, safety and efficacy as a
treatment must be established in human clinical trials and approval of a new
drug application ("NDA") obtained. Although the Company-sponsored Thailand
trials did not result in untoward toxicity or skin photosensitivity and, based
on the measurement criteria used, produced evidence of anti-HIV activity in 10
out of 12 patients, there can be no assurance that the FDA will accept the
clinical results therefrom. Among other additional regulatory requirements, it
is possible that additional toxicology studies will need to be performed in the
6
<PAGE>
United States, and Phase III clinical trials, which are both costly and
time-consuming, will need to be undertaken to obtain an NDA. Prior to its
commercialization as a means of inactivating HIV and other lipid-enveloped
viruses in blood collected for transfusions, a product license application
("PLA") or an NDA must be obtained. These are long-term and costly processes as
to the successful completion of which there can be no assurance. The other
applications of VIMRxyn as well as the other products being investigated by the
Company and its subsidiaries will be subject to similar extensive government
regulation.
In addition to regulations enforced by the FDA, the Company's
proposed products also may be subject to regulation under the Occupational
Safety and Health Act, the Environmental Protection Act, the Toxic Substances
Control Act, the Resource Conservation and Recovery Act and other present and
potential future, state or local regulations. Outside the United States, the
Company also is subject to foreign regulatory requirements governing human
clinical trials and marketing approval for drugs. The requirements governing the
conduct of clinical trials, product licensing, pricing and reimbursement vary
widely from country to country.
6. Limited Personnel -- Reliance on Third Parties. At March 1,
1997, the Company had nine full-time employees, and is substantially dependent
upon third parties, with all of the risks attendant thereto, to conduct human
clinical trials for VIMRxyn, develop VIMRxyn as a means of inactivating HIV and
other lipid-enveloped viruses in blood collected for transfusions, conduct
preclinical and clinical studies for other applications of VIMRxyn and to
manufacture synthetic hypericin compounds for the Company's needs.
7. Limited Manufacturing Capability. Only limited quantities of
synthetic hypericin have been manufactured. The synthesis process has been
developed at The Weizmann Institution of Science in Israel, using a natural
product available from a limited number of specialty chemical suppliers as the
precursor. The production process must be further developed and refined for
commercial quantities to be produced, as to the success of which there can be no
assurance.
8. Competition. The biomedical industry is highly competitive.
Competition in the field in which the Company and its subsidiaries are engaged
is intense and expected to increase as knowledge and interest in the technology
and products being developed by the Company and its subsidiaries increase. The
Company and its subsidiaries face competition from biotechnology companies,
large pharmaceutical companies, academic institutions, government agencies and
public and private research organizations, many of which have extensive
resources and experience in research and development, clinical testing,
manufacturing, regulatory affairs, distribution and marketing and some of which
have significant research and development activities in areas upon which the
programs of the Company and its subsidiaries are focused. Current and future
treatments for AIDS, and the use of combination therapy in connection therewith,
may render the Company's synthetic hypericin program for treating AIDS obsolete
or non-competitive. In addition, forms of hypericin extracted from plants are
being used as lay treatments for a variety of disorders, including AIDS. The
Company is similarly subject to substantial competition from pharmaceutical,
chemical and biotechnology firms in the attempt to develop a means of
inactivating blood and other lipid-enveloped viruses in blood collected for
transfusions, and in seeking to develop treatments for hepatitis C and
therapeutics for brain cancer (glioma).
9. Patents and Licenses. The Company has been granted an exclusive
license for the worldwide rights to synthetic hypericin compounds for viral,
retroviral and other applications by New York University and Yeda Research and
Development Co., Ltd. (the "Hypericin Licensors") which have been issued five
U.S. patents for anti-viral and anti-retroviral applications and manufacturing
processes and have filed patent applications for U.S. and foreign patents
relating to the synthesis and therapeutic uses of synthetic hypericin compounds.
Genomics, the Company's 90%-owned subsidiary, has an exclusive license to
develop, manufacture, use, sell or market products resulting from any invention
or research product developed by the Columbia Genome Center under its research
agreement with Columbia. The Company also has an exclusive worldwide license
from Columbia to develop, manufacture, use and sell products based on a patented
cardiovascular anticoagulant compound. There can be no assurance that such
patents, or pending patents if issued, will provide adequate protection.
Further, infringement claims may be asserted against the Company, the Hypericin
Licensors and/or Columbia which, if affirmed, might require the Company to
acquire licenses from others. The Company has agreed to indemnify the Hypericin
Licensors and Columbia with respect to any such claims.
7
<PAGE>
10. Absence of Product Liability Insurance Coverage. The testing,
marketing and sale of pharmaceutical products entails a risk of product
liability claims by consumers and others and such claims may be asserted against
the Company and its subsidiaries. The Company does not maintain product
liability insurance coverage other than a $1,000,000 product/professional
liability policy applicable only to its human clinical trials, and although it
will attempt to obtain such coverage prior to marketing any product, there can
be no assurance it will be able to obtain such insurance at a reasonable cost or
in an amount sufficient to cover all possible liabilities. In the event of a
successful product liability suit against the Company, lack or insufficiency of
insurance coverage could have a material adverse effect on the Company. Further,
the Company is required under its license agreement with the Hypericin Licensors
to have either $5,000,000 of product liability insurance coverage naming the
Hypericin Licensors as additional insureds or an indemnity to the Hypericin
Licensors by an entity satisfactory to the Hypericin Licensors prior to
marketing a hypericin-based product.
11. Risk Factors Relating to Innovir. Innovir, the Company's
approximately 68%-owned subsidiary, is a development stage company subject to
similar risks to those of the Company, including risks associated with an
accumulated deficit, dependence upon a limited potential product line,
government regulation, limited personnel, competition, patents and licenses and
product liability claims. In addition, Innovir has limited capital and
significant capital requirements and is dependent on certain key personnel.
12. Potential Adverse Effect of Sale of Shares and Warrants
Offered Hereby. Sales of the Shares or Warrants offered hereby in the public
market could materially and adversely affect the market price of the Common
Stock. Such sales also might make it more difficult for the Company to sell
equity securities or equity-related securities in the future at a time and price
that the Company deems appropriate.
13. No Cash Dividends. The Company does not anticipate paying cash
dividends on its Common Stock in the foreseeable future.
8
<PAGE>
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the
Shares and/or the Warrants being offered by the Selling Securityholders. The
proceeds to the Company from exercise of the Warrants will be added to the
Company's working capital and will be available for general corporate purposes.
SELLING SECURITYHOLDERS
The following table sets forth certain information with respect to
the Common Stock owned and the Shares and Warrants being offered hereby by the
Selling Securityholders:
<TABLE>
<CAPTION>
Warrants
Shares of and/or
Common Stock Placement Warrant After Offering
Beneficially Shares Shares -------------- -----------------
Owned Prior to Being Being Shares Percent of
Name Offering (1 ) Offered Offered Owned Outstanding
---- ------------- ------- ------- ----- -----------
<S> <C> <C> <C> <C> <C>
Aries Domestic 1,324,999 1,166,666 158,333 --- ---
Fund, L.P (2).......................
The Aries Fund (2).................... 2,725,000 2,500,000 225,000 --- ---
Armen Partners, 125,000 --- 125,000 --- ---
L.P...............................
Chesed Congregations 100,000 --- 100,000 --- ---
of America........................
Robert J. Conrads..................... 100,500 --- 12,500 88,000 *
Delaware Charter Guarantee & Trust Co. 50,000 33,333 16,667 --- ---
C/F Barry
F. Schwartz, IRA
Rollover..........................
Nathan Ehrlich........................ 37,500 --- 37,500 --- ---
Irwin Engelman & Rosalyn 99,999 66,666 33,333 --- ---
A. Engelman.......................
Laurence D. Fink (3).................. 400,000 266,667 133,333 --- ---
Laurence D. Fink and Lori W. Fink Family 99,999 66,666 33,333 --- ---
Trust u/a dated 1/10/95 (3)...........
Joseph H. Flom........................ 49,999 33,333 16,666 --- ---
Howard Gittis......................... 199,999 133,333 66,666 --- ---
Gilbert Goldstein, Trustee under 250,001 166,667 83,334 --- ---
Indenture of Trust QIT dated 12/23/88.
Gilbert Goldstein 49,999 33,333 16,666 --- ---
& Carol Goldstein.................
Robert P. Gordon...................... 12,500 --- 12,500 --- ---
Richard E. Halperin 12,499 8,333 4,166 --- ---
& Lucy Landesman
Halperin..........................
The Holding Company................... 25,000 --- 25,000 --- ---
Robert and Fern Hurst 99,999 66,666 33,333 --- ---
Foundation........................
Jackson Hole Investments Acquisition, 50,000 --- 50,000 --- ---
L.P...................................
Kenneth M. Jacobs..................... 39,999 26,666 13,333 --- ---
Javelin Ltd........................... 25,000 --- 25,000 --- ---
Robert Klein, M.D..................... 25,000 --- 25,000 --- ---
Kenneth Lerer......................... 24,999 16,666 8,333 --- ---
Dean Witter Reynolds Cust. for Solomon 25,000 --- 25,000 --- ---
Lerer IRA
Rollover..........................
J. Jay Lobell and Beverly O. Lobell... 100,500 --- 12,500 88,000 *
MacAndrews & Forbes Group, Incorporated 12,500 8,333 4,167 --- ---
Savings or Cash Option Plan for
Employees f/b/o Richard E. Halperin...
James R. Maher........................ 20,001 13,334 6,667 --- ---
James R. Maher as custodian for Caroline 20,000 13,333 6,667 --- ---
C. Maher under the UGMA of NY to age 21..
James R. Maher as custodian for James R. 20,000 13,333 6,667 --- ---
Maher, Jr. under the UGMA of NY to age 21
James R. Maher as custodian for 19,999 13,333 6,666 --- ---
Emily L. Maher under the
UGMA of NY to age 21..............
James R. Maher as custodian for 19,999 13,333 6,666 --- ---
Elizabeth H. Maher under the UGMA of NY
to age 21.............................
Alfons Melohn......................... 87,500 --- 87,500 --- ---
Ronald O. Perelman.................... 999,999 666,666 333,333 --- *
Linda G. Robinson(4).................. 249,999 133,333 66,666 50,000 ---
Jerry L. Ruyan........................ 50,000 --- 50,000 --- ---
Stephen H. Sands...................... 9,999 6,666 3,333 --- ---
Barry F. Schwartz..................... 49,999 33,333 16,666 --- ---
Sequester Ltd. Corp................... 50,000 --- 50,000 --- ---
J.F. Shea Co., Inc., as Nominee 1995-41 100,000 --- 100,000 --- ---
Todd J. Slotkin....................... 49,999 33,333 16,666 --- ---
Bruce Slovin.......................... 99,999 66,666 33,333 --- ---
Morris Talansky....................... 37,500 --- 37,500 --- ---
The Trustees of Columbia 200,000 200,000 --- --- ---
University in the City
of New York.......................
Venkol Ventures, 184,167 122,778 61,389 --- ---
L.P (5)...........................
Venkol Ventures, 115,833 77,222 38,611 --- ---
Ltd (5). .........................
Aaron Wolfson......................... 50,000 --- 50,000 --- ---
Abraham Wolfson....................... 50,000 --- 50,000 --- ---
Morris Wolfson Family Limited Partnership 50,000 --- 50,000 --- ---
Uzi Zucker............................ 25,000 --- 25,000 --- ---
--------- --------- --------- ------- ---- -----
Total............................. 8,625,984 5,999,991 2,399,993 226,000 *
========== ========= ========= ======= ==== =====
</TABLE>
* Less than one percent.
(1) Includes Warrant Shares issuable upon exercise of Warrants.
(2) Lindsay A. Rosenwald, M.D., a director of the Company, serves as
President and is sole shareholder of Paramount Capital Asset
Management, Inc., ("PCAM") which is the general partner of Aries
Domestic Fund, L.P. and investment manager of The Aries Fund.
Dr. Rosenwald disclaims beneficial ownership of the shares
beneficially owned by PCAM except to the extent of his pecuniary
interest, if any.
(3) Laurence Fink serves as a director of the Company.
(4) Linda Robinson serves as a director of the Company and the
Company retains a strategic communications consulting firm for
which Ms. Robinson serves as Chairman and Chief Executive Officer.
11
<PAGE>
(5) M.S. Koly, a former director and former acting chief executive
officer of the Company (having served in such capacities within
three years prior to the date of this Prospectus), is a general
partner of a limited partnership that serves as general partner of
Venkol Ventures, L,.P., and is a principal shareholder and advisor
to Venkol Ventures, Ltd.
3,000,000 of the Placement Shares were issued on December 23, 1996
to Aries Domestic Fund, L.P. and The Aries Trust (the "Aries Funds") in exchange
for shares of Innovir owned by the Aries Funds in a transaction pursuant to
which the Company acquired a controlling interest in Innovir (the "Innovir
Acquisition") and 200,000 of the Placement Shares were issued in March 1997 to
Columbia in connection with a research agreement with Columbia. The 2,799,991
balance of the Placement Shares and 1,399,991 of the Warrants were issued to
accredited investors in a private placement in June 1996 (the "June 1996 Private
Placement") pursuant to which the investors agreed not to sell such Shares and
the Warrant Shares issuable upon exercise of the Warrants prior to June 21,
1997. The 1,000,000 balance of the Warrants were issued in June 1996 to
accredited investors in exchange for the warrants received by such investors in
a private placement in December 1995 (the "December 1995 Private Placement"). As
part of the Innovir Acquisition, VIMRx agreed to file a registration statement
for the public resale of the 3,000,000 Placement Shares issued to the Aries
Funds and, as part of the June 1996 Private Placement, agreed to file a
registration statement for the public resale of the 2,799,991 Placement Shares
and 2,799,991 Warrants issued in connection therewith. As part of the December
1995 Private Placement, the investors were granted "piggyback" registration
rights with respect to the 1,000,000 Warrants issued to them, and as part of the
research agreement with Columbia, Columbia was granted "piggyback" registration
rights with respect to the 200,000 Placement Shares issued to Columbia.
The holders of the 2,799,991 Placement Shares and 1,399,991
Warrants issued in the June 1996 Private Placement may not sell or transfer
their respective Placement Shares and Warrants until June 21, 1997, without the
Company's prior written consent, except for sales or transfers to bona fide
affiliates or a bona fide pledge or pursuant to the laws of descent and
distribution.
DESCRIPTION OF SECURITIES
The Company is authorized to issue 120,000,000 shares of Common
Stock, par value $.001 per share.
Common Stock
The holders of Common Stock are entitled to share ratably on a
share-for-share basis with respect to any dividends when, as and if declared by
the Board of Directors out of funds legally available therefor. Each holder of
Common Stock is entitled to one vote for each share held of record. Upon
liquidation, dissolution or winding- up of the Company, the holders of Common
Stock are entitled to share ratably in the net assets legally available for
distribution. Holders of Common Stock have no preemptive rights. All outstanding
shares are, and the shares of Common Stock issuable upon exercise of the
Warrants will be, legally issued, fully paid and non-assessable. The Board of
Directors is authorized to issue additional shares of Common Stock within the
limits authorized by the Company's charter and without stockholder action.
Warrants
Each Warrant entitles the registered holder to purchase one share
of Common Stock at $1.50 per share at any time through June 20, 2006, the
expiration date of the Warrants. The exercise price of the Warrants and the
number and kind of shares of Common Stock or other securities and property
issuable upon exercise of the Warrants are subject to adjustment in certain
circumstances, including a stock split of, stock dividend on, or a subdivision,
combination or capitalization of, the Common Stock, or the sale of Common Stock
at less than the market price of the Common Stock other than upon exercise of
options or warrants outstanding on or prior to June 21, 1996 (the date the
Warrants were issued). Upon notice to the Warrantholders, the Company has the
right to reduce the exercise price or extend the expiration date of the
Warrants.
The Warrants were issued pursuant to a warrant agreement between
the Company and American Stock Transfer & Trust Company, the warrant agent (the
"Warrant Agent"), and are evidenced by warrant certificates in registered form.
The Warrants do not confer upon the holder any voting or other rights of a
stockholder of the Company. The Warrants may be exercised upon surrender of the
Warrant certificate evidencing such Warrants on or prior to the expiration date
12
<PAGE>
of such Warrants at the offices of the Warrant Agent with the form of "Election
to Purchase" on the reverse side of the Warrant certificate completed and
executed as indicated, accompanied by payment of the full exercise price (by
certified check payable to the order of the Warrant Agent) for the number of
Warrants being exercised. At February 1, 1997, there were Warrants outstanding
to purchase 2,399,993 shares of Common Stock.
Delaware Business Combination Statute
Section 803 of the Delaware General Corporation Law generally
prohibits a publicly-held Delaware corporation from engaging in a "business
combination" with an "interested stockholder" for a period of three years after
the date the person became an interested stockholder unless (with certain
exceptions) the business combination or the transaction in which the person
became an interested stockholder is approved in a prescribed manner. Generally,
a "business combination" includes a merger, asset or stock sale, or other
transaction resulting in a financial benefit to the stockholder, and an
"interested stockholder" is a person who, together with affiliates and
associates, owns (or within three years, did own) 15% or more of a corporation's
outstanding voting stock. The applicability of this provision to the Company may
have the effect of delaying, deferring or preventing a change in control of the
Company without further action by the Company's stockholders.
Transfer Agent and Warrant Agent
The transfer agent for the Common Stock and the Warrant Agent for
the Warrants is American Stock Transfer & Trust Company, New York, New York.
PLAN OF DISTRIBUTION
The Selling Securityholders may sell the Shares and the Warrants
from time to time through dealers or brokers in transactions on The Nasdaq Stock
Market at prices then prevailing, or directly to one or more purchasers in
negotiated transactions at negotiated prices, or in a combination thereof. The
Selling Securityholders and any dealers or brokers that participate in such
distribution may be deemed "underwriters" within the meaning of the Securities
Act and any commissions or discounts received by any such dealer or broker may
be deemed "underwriting compensation."
The cost of registering the Shares and the Warrants under the
Securities Act will be paid by the Company.
LEGAL MATTERS
The validity of the Shares and the Warrants offered hereby is
being passed upon for the Company by Epstein Becker & Green, P.C., New York, New
York. Members of the firm own, directly or indirectly, 295,000 shares of Common
Stock and options to purchase 100,000 shares of Common Stock.
EXPERTS
The financial statements incorporated in this Prospectus by
reference from the Company's Annual Report on Form 10-K for the year ended
December 31, 1996 have been audited by Richard A. Eisner & Company, LLP,
independent auditors, as stated in their report, which is incorporated herein by
reference, and has been so incorporated in reliance upon such report given upon
the authority of such firm as experts in accounting and auditing.
13
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses of this offering, all of which are to
be paid by the Registrant, are as follows:
SEC Registration fee................................ $6,363
Nasdaq Stock Market listing fee..................... 7,400
Printing and engraving expenses..................... 3,000
Accounting fees and expenses........................ 5,000
Legal fees and expenses............................. 30,000
Miscellaneous expenses.............................. 3,237
-------
Total........................................... $55,000
=======
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law grants
corporations the power to indemnify their directors, officers, employees and
agents in accordance with the provisions thereof. Article Eighth of Registrant's
Restated Certificate of Incorporation provides for indemnification of
Registrant's directors, officers, agents and employees to the full extent
permissible under Section 145 of the Delaware General Corporation Law.
Item 16. Exhibits.
2.2a - Copy of Agreement dated November 21, 1996 (the "Aries
Agreement") by and among the Registrant and The Aries
Domestic Fund, L.P. (1)
2.2b - Copy of Amendment to the Aries Agreement dated
December 23, 1996 by and among the Registrant and the
Aries Fund and The Aries Domestic Fund, L.P. (1)
2.3 - Copy of Agreement dated November 21, 1996 by and
between the Registrant and Innovir Laboratories, Inc.
(1)
4.4 - Copy of Warrant Agreement dated June 17, 1996 between
the Registrant and
American Stock Transfer & Trust Company.
5.1 - Opinion of Epstein Becker & Green, P.C., as to
legality.
10.3 - Copy of Registrant's Amended and Restated 1990
Incentive and Non-Incentive Stock Option Plan, as
amended through February 22,1997(2).
10.9 - Copy of Employment letter agreement dated June 21,
1994 between Registrant an Alfonso J. Tobia. (3)
II-1
<PAGE>
10.11 - Copy of Registrant's 1995 Outside Directors Stock
Option Plan. (4)
10.12 - Copy of letter agreement dated August 7, 1995 between
Registrant and Lindsay A. Rosenwald, M.D. (4)
10.13 - Copy of Stock Option Agreement dated August 7, 1995
between Registrant and Lindsay A. Rosenwald, M.D. (4)
10.14 - Copy of Consulting and Stock Option Agreement dated
November 17, 1995 between registrant and Eric A. Rose
, M.D. (4)
10.15 - Copy of Stock Option Agreement dated November 17,
1995 between Registrant and Donald G. Drapkin. (4)
10.16 - Copy of Registrant's 1996 Non-Employee Director
Restricted Stock Award Plan. (4)
10.17 - Copy of Registration Rights Agreement dated December
23, 1996, between Registrant and The Aries Fund and
The Aries Domestic Fund, L.P. (1)
10.18 - Copy of Research Agreement dated as of March 7, 1997
between the Trustees of Columbia University in the
City of New York and VIMRx Genomics, Inc. (5)
10.19 - Copy of Registrant's 1997 Incentive and Non-Incentive
Stock Option Plan. (2)
10.20 - Copy of Employment Agreement dated October 30, 1996
between the Registrant and Richard L. Dunning. (2)
10.21 - Copy of Employment Agreement dated August 26, 1996,
between the Registrant and David A. Jackson, Ph.D.
(1)
23.1 - Consent of Epstein Becker & Green, P.C. (included in
Exhibit 5.1).
23.2 - Consent of Richard A. Eisner & Company, LLP.
24.1 - Power of Attorney (included on page II-4).
- ----------
<PAGE>
(1) Filed as the same numbered Exhibit to Registrant's Current Report on
Form 8-K (Commission File No. 0-19153) filed January 4, 1997 and
incorporated herein by reference thereto.
(2) Filed as the same numbered Exhibit to Registrant's Annual Report on
Form 10-K (Commission File No. 0-19153) for the year ended December
31, 1996 and incorporated herein by reference thereto.
(3) Filed as the same numbered Exhibit to Registrant's Annual Report on
Form 10-K for the year ended December 31, 1994 (Commission File No.
0-19153) and incorporated herein by reference.
(4) Filed as the same numbered Exhibit to Registrant's Annual Report on
Form 10-K for the year ended December 31, 1995 (Commission File No.
0-19153) and incorporated herein by reference thereto.
(5) Filed as the same numbered Exhibit to Registrant's Current Report on
Form 8-K (Commission File No. 0-19153) filed March 24, 1997.
II-2
<PAGE>
Item 17. Undertakings.
(a) The 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;
iii) to include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change of
such information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) above do not
apply if 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 15(d) of the Securities
Exchange Act of 1934, as amended, 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.
(b) The 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 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.
(c) 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 provisions of its
Certificate of Incorporation, its By-Laws, the Delaware General Corporation Law,
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 of 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.
II-3
<PAGE>
POWER OF ATTORNEY TO SIGN AMENDMENTS
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below does hereby constitute and appoint Richard L. Dunning
and Francis M. O'Connell, and each of them, with full power to act without the
other, his true and lawful attorney-in-fact and agent for him and in his name,
place and stead, in any and all capacities, to sign any or all amendments to
this Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same as fully, to all intents and purposes, as they or he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Wilmington, State of Delaware, on the 14th day
of April, 1997.
VIMRx PHARMACEUTICALS INC.
By /s/ Richard L. Dunning
----------------------
Richard L. Dunning
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
/s/ Richard L. Dunning President and Chief Executive April 14, 1997
- ---------------------- Officer and Director
Richard L. Dunning (Principal Executive Officer)
/s/ Donald G. Drapkin Chairman of the Board and April 14, 1997
- --------------------- Director
Donald G. Drapkin
/s/ Francis M. O'Connell Chief Financial Officer April 14, 1997
- ------------------------ (Principal Financial and
Francis M. O'Connell Accounting Officer)
/s/ Laurence D. Fink Director April 14, 1997
- --------------------
Laurence D. Fink
/s/ Jerome Groopman, M.D. Director April 14, 1997
Jerome Groopman, M.D.
/s/ Linda G. Robinson Director April 14, 1997
- ---------------------
Linda G. Robinson
/s/ Lindsay A. Rosenwald, M.D. Director April 14, 1997
Lindsay A. Rosenwald, M.D.
/s/ Eric A. Rose, M.D. Director April 14, 1997
Eric A. Rose, M.D.
/s/ Michael Weiner, M.D. Director April 14, 1997
Michael Weiner, M.D.
II-5
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement on Form S-3 of VIMRx Pharmaceuticals Inc. and
subsidiaries (the "Company") of our report dated March 14, 1997 relating to the
consolidated balance sheets of the Company as of December 31, 1996 and December
31, 1995 and the related consolidated statements of operations, changes in
shareholders' equity and cash flows for each of the years in the three-year
period ended December 31, 1996 and the amounts for such years included in the
period December 30, 1986 (inception) to December 31, 1996, included in the
Company's annual report on Form 10-K for the fiscal year ended December 31,
1996. We also consent to the reference to our firm under the caption "Experts"
in the prospectus.
RICHARD A. EISNER & COMPANY, LLP
New York, New York
April 15, 1997
II-6
<PAGE>
Exhibit Index
Page
2.2a - Copy of Agreement dated November 21, 1996 (the
"Aries Agreement") by and among the Registrant
and The Aries Domestic Fund, L.P............... (1)
2.2b - Copy of Amendment to the Aries Agreement dated
December 23, 1996 by and among the Registrant
and the Aries Fund and The Aries Domestic Fund
, L.P.......................................... (1)
2.3 - Copy of Agreement dated November 21, 1996 by and
between the Registrant and Innovir Laboratories,
Inc............................................ (1)
4.4 - Copy of Warrant Agreement dated June 17, 1996
between the Registrant and American Stock Transfer
& Trust Company................................
5.1 - Opinion of Epstein Becker & Green, P.C., as to
legality.......................................
10.3 - Copy of Registrant's Amended and Restated 1990
Incentive and Non-Incentive Stock Option Plan,
as amended through February 22, 1997......... (2)
10.9 - Copy of Employment letter agreement dated June
21, 1994 between Registrant an Alfonso J. Tobia. (3)
10.11 - Copy of Registrant's 1995 Outside Directors Stock
Option Plan................................... (4)
10.12 - Copy of letter agreement dated August 7, 1995
between Registrant and Lindsay A. Rosenwald, M.D.. (4)
10.13 - Copy of Stock Option Agreement dated August 7,
1995 between Registrant and Lindsay A. Rosenwald
, M.D............................................. (4)
10.14 - Copy of Consulting and Stock Option Agreement
dated November 17, 1995 between registrant and
Eric A. Rose, M.D................................ (4)
10.15 - Copy of Stock Option Agreement dated November 17,
1995 between Registrant and Donald G. Drapkin..... (4)
10.16 - Copy of Registrant's 1996 Non-Employee Director
Restricted Stock Award Plan...................... (4)
10.17 - Copy of Registration Rights Agreement dated
December 23, 1996, between Registrant and The
Aries Fund and The Aries Domestic Fund, L.P....... (1)
10.18 - Copy of Research Agreement dated as of March 7,
1997 among the Registrant, The Trustees of Columbia
University in the City of New York and VIMRx Genomics
, Inc.............................................. (5)
10.19 - Copy of Registrant's 1997 Incentive and Non-
Incentive Stock Option Plan........................ (2)
10.20 - Copy of Employment Agreement dated October 30, 1996
between the Registrant and Richard L. Dunning...... (2)
10.21 - Copy of Employment Agreement dated August 26, 1996
between the Registrant and David A. Jackson, Ph.D.. (2)
23.1 - Consent of Epstein Becker & Green, P.C.
(included in Exhibit 5.1)
23.2 - Consent of Richard A. Eisner & Company, LLP
(included on page II-6)
24.1 - Power of Attorney (included on page II-4)
II-7
<PAGE>
- ----------
<PAGE>
(1) Filed as the same numbered Exhibit to Registrant's Current Report on
Form 8-K (Commission File No. 0-19153) filed January 4, 1997 and
incorporated herein by reference thereto.
(2) Filed as the same numbered Exhibit to Registrant's Annual Report on
Form 10-K (Commission File No. 0-19153) for the year ended December
31, 1996 and incorporated herein by reference thereto.
(3) Filed as the same numbered Exhibit to Registrant's Annual Report on
Form 10-K for the year ended December 31, 1994 (Commission File No.
0-19153) and incorporated herein by reference.
(4) Filed as the same numbered Exhibit to Registrant's Annual Report on
Form 10-K for the year ended December 31, 1995 (Commission File No.
0-19153) and incorporated herein by reference thereto.
(5) Filed as the same numbered Exhibit to Registrant's Current Resort on
Form 8-K (Commission File no. 0-19153) filed March 24, 1997.
II-8
<PAGE>
Exhibit 4.4
WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of June 17, 1996 between VIMRx
Pharmaceuticals Inc., a Delaware corporation (the "Company"), and American Stock
Transfer & Trust Company (the "Warrant Agent").
WHEREAS, in connection with a private placement offering of up
to 2,800,000 units ("Units"), each Unit consisting of one share of the Company's
Common Stock, $.001 par value ("Common Stock") and one-half a Common Stock
Subscription Warrant (each a "Warrant" and collectively, the "Warrants")
pursuant to a Subscription and Registration Rights Agreement dated March 21,
1996 between the Company and the investors signatory thereto, and the automatic
conversion of certain warrants issued by the Company in December 1995 upon the
closing of the private placement offering of Units, the Company will issue up to
2,400,000 Warrants; and
WHEREAS, each Warrant entitles the registered holder thereof
(each a "Holder" and collectively, the "Holders") to purchase one share of
Common Stock at an Exercise Price (as defined in Section 9 hereof) of $1.50,
subject to adjustment as hereinafter provided (the shares of Common Stock
issuable upon exercise of the Warrants hereinafter referred to as the "Warrant
Shares"); and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing so to act, in connection
with the issuance, registration, transfer and exchange of the Warrants, the
exercise of the Warrants, and the rights of the Holders;
NOW, THEREFORE, in consideration of the foregoing and for the
purpose of defining the terms and provisions of the Warrants and the respective
rights and obligations thereunder of the Company, the Holders and the Warrant
Agent, the Company and the Warrant Agent hereby agree as follows:
SECTION 1. Appointment of Warrant Agent. The Company hereby
appoints the Warrant Agent to act as agent for the Company in accordance with
the provisions set forth in this Agreement, and the Warrant Agent hereby accepts
such appointment. As used herein, the term "Warrant Agent" shall mean the
Warrant Agent and any successor appointed hereunder.
SECTION 2. Form and Countersignature of Warrants.
2.1 Form of Warrant. The text of the Warrant, the subscription
form (the "Subscription Form"), and form of assignment shall be substantially as
set forth in the form of warrant certificate attached hereto as Exhibit A. The
Warrants shall be executed on behalf of the Company by one or more authorized
officers. The signature of any such officers on the Warrants may be made
manually or by facsimile.
2.2 Countersignature of Warrants. The Warrants shall be
countersigned manually or by facsimile by the Warrant Agent and shall not be
valid for any purpose unless so countersigned. Warrants may be countersigned by
the Warrant Agent and may be issued or delivered by the Warrant Agent,
notwithstanding that the persons whose manual or facsimile signatures appear
thereon as proper officers of the Company shall have ceased to be such officers
at the time of such countersignature, issuance or delivery. Warrants shall be
dated as of the date of issuance or countersignature thereof by the Warrant
Agent either upon initial issuance or upon exchange, substitution or transfer.
SECTION 3. Issuance and Registration of Warrants.
3.1 Initial Issuance of Warrants. The Warrant Agent shall
issue the Warrants upon receipt of, and in accordance with, a statement from an
authorized representative of the Company as contemplated by Section 14.10 hereof
specifying the identity of, and number of Warrants to be issued to, each person
or entity to be issued Warrants.
3.2 Registration. The Warrants shall be numbered and shall be
registered in a warrant register maintained by the Warrant Agent as they are
issued. The Company and the Warrant Agent may deem and treat the registered
holder of a Warrant Certificate as the absolute owner thereof (notwithstanding
any notation of ownership or other writing thereon made by anyone), for the
purpose of any exercise thereof and any distribution to the holder thereof and
for all other purposes and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary. The Company shall not be bound to
recognize any equitable or other claim to or interest in such Warrant on the
part of any other person.
SECTION 4. Transfer and Exchange of Warrants.
4.1 Transfer of Warrants. The Warrants shall be transferable
only on the books of the Warrant Agent maintained at the principal office of the
Warrant Agent upon delivery thereof duly endorsed by the Holder or by his duly
authorized attorney or representative, or accompanied by proper evidence of
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succession, assignment or authority to transfer, which endorsement shall be
guaranteed by an eligible guarantor institution which is a member of a signature
guarantee program satisfactory to the Warrant Agent (an "Eligible Institution").
Warrants may be transferred only in whole, so as to allow the Holder of each
Warrant to purchase one full share of Common Stock. In all cases of transfer by
an attorney-in-fact, the original power of attorney, duly approved, or a copy
thereof, duly certified, in such form and with such other evidence of authority
as the Warrant Agent shall request, shall be deposited and remain with the
Warrant Agent. In case of transfer by executors, administrators, guardians or
other legal representatives, duly authenticated evidence of their authority
shall be produced, in such form and with such other evidence of authority as the
Warrant Agent shall request, and may be required to be deposited and remain with
the Warrant Agent in its discretion. Upon any such registration of transfer, the
Warrant Agent shall countersign and deliver a new Warrant or Warrants to the
person entitled thereto.
4.2 Exchange of Warrant Certificates. Each Warrant certificate
may be exchanged upon surrender at the principal office of the Warrant Agent for
another certificate or certificates entitling the Holder thereof to purchase a
like aggregate number of Warrant Shares as the certificate or certificates
surrendered then entitle such Holder to purchase. Any Holder desiring to
exchange a Warrant certificate or certificates shall make such request in
writing delivered to the Warrant Agent, and shall surrender, properly endorsed,
the certificate or certificates to be so exchanged. Thereupon, the Warrant Agent
shall countersign and deliver to the Holder a new Warrant certificate or
certificates, as the case may be, as so requested, in the name of such Holder.
No fractional Warrant certificates shall be issued and no new Warrant
certificate entitling the Holder thereof to purchase fractional shares will be
issued.
SECTION 5. Term of Warrants; Exercise of Warrants.
5.1 Term of Warrants. Subject to the terms of this Agreement,
each Holder shall have the right, which may be exercised commencing at the
opening of business on June 21, 1996 until 5:00 p.m., New York time, on June 20,
2006 (the "Expiration Date"), to purchase from the Company the number of fully
paid and nonassessable Warrant Shares which the Holder may at the time be
entitled to purchase on exercise of such Warrants.
5.2 Exercise of Warrants. A Warrant may be exercised upon
surrender to the Warrant Agent at its principal office of the certificate or
certificates evidencing the Warrants to be exercised, together with the
Subscription Form duly completed and signed, which signature shall be guaranteed
by an Eligible Institution, and upon payment to the Warrant Agent for the
account of the Company of the Exercise Price (as defined in Section 9 hereof and
subject to adjustment in accordance with the provisions of Section 10 hereof)
for the number of Warrant Shares in respect of which such Warrants are then
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exercised. Payment of the aggregate Exercise Price shall be made by certified or
official bank check.
Upon the surrender of Warrants and payment of the Exercise
Price as aforesaid, the Warrant Agent shall (i) cause to be issued and delivered
as soon as practicable to or upon the written order of the Holder in such name
or names as the Holder may designate, a certificate or certificates for the
number of full Warrant Shares so purchased upon the exercise of such Warrants
and, if the Warrants are exercised in whole, in lieu of any fractional share of
the Common Stock to which the Holder shall be entitled, pay to the Holder or
such other person as the Holder may designate cash in an amount equal to the
closing price per share on the trading day preceding the date of such exercise
multiplied by such fraction, and (ii) deliver the other securities and
properties receivable upon the exercise of the Warrants pursuant to the
provisions of the Warrants. The Company shall promptly provide to the Warrant
Agent the cash payable in lieu of a fractional share. No certificate for
fractional Warrant Shares will be issued. If permitted by applicable law, such
certificate or certificates shall be deemed to have been issued and any person
so designated to be named therein shall be deemed to have become a holder of
record of such Warrant Shares as of the date of the receipt by the Warrant Agent
of such Warrants and payment of the Exercise Price, as aforesaid. The rights of
purchase represented by the Warrants shall be exercisable, at the election of
the Holders thereof, either in full or from time to time in part, and in the
event that a certificate evidencing Warrants is exercised in respect of less
than all of the Warrant Shares purchasable on such exercise at any time prior to
the date of expiration of the Warrants, a new certificate evidencing the
remaining Warrant or Warrants will be issued to the Holder thereof, and the
Warrant Agent is hereby authorized to countersign and deliver the required new
Warrant certificate or certificates pursuant to the provisions of this Section
and Section 2 hereof.
5.3 Compliance with Government Regulations. The Company
covenants that if any shares of Common Stock required to be reserved for
purposes of exercise of Warrants require, under any federal securities law or
applicable governing rule or regulation of any national securities exchange or
over-the-counter market, registration with or approval of any governmental
authority, or listing on any such national securities exchange or
over-the-counter market, the Company will in good faith prior to the issuance of
such shares endeavor to cause such shares to be duly registered, approved or
listed on the relevant national securities exchange or over-the-counter market,
as the case may be. The Company covenants that it will use reasonable efforts to
obtain any required approvals or registration under state "blue sky" securities
laws for the issuance of the Warrant Shares.
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SECTION 6. Payment of Taxes. The Company will pay all stamp,
original issue, transfer, or similar taxes, if any, attributable to the initial
issuance of Warrant Shares upon the exercise of Warrants; provided, however,
that the Company shall not be required to pay any tax or taxes which may be
payable in respect of any transfer involved in the issue or delivery of any
Warrants or certificates for Warrant Shares in a name other than that of the
Holder of such Warrants.
SECTION 7. Mutilated or Missing Warrants. In case any of the
certificates evidencing the Warrants shall be mutilated, lost, stolen or
destroyed, the Company may in its discretion issue, and the Warrant Agent shall
countersign and deliver in exchange and substitution for and upon cancellation
of the mutilated Warrant certificate, or in lieu of and in substitution for the
Warrant certificate lost, stolen or destroyed, a new Warrant certificate of like
tenor and representing an equivalent right or interest, but only upon receipt of
evidence satisfactory to the Company and the Warrant Agent of such loss, theft
or destruction of such Warrant and an indemnity or bond, if requested, also
satisfactory to them. An applicant for such a substitute Warrant certificate
shall also comply with such other reasonable regulations and pay such other
reasonable charges as the Company or the Warrant Agent may prescribe.
SECTION 8. Reservation of Warrant Shares;
Purchase and Cancellation of Warrants.
8.1 Reservation of Warrant Shares. Commencing June 20, 1996
(following the filing by the Company of a Certificate of Amendment increasing
the Company's authorized shares of Common Stock to 20,000,000 shares), there
shall have been reserved, and the Company shall at all times keep reserved, out
of its authorized Common Stock, a number of shares of Common Stock sufficient to
provide for the exercise of the rights of purchase represented by the
outstanding Warrants. The transfer agent for the Common Stock (the "Transfer
Agent") and every subsequent transfer agent for any shares of the Company's
capital stock issuable upon the exercise of any of the rights of purchase
aforesaid will be authorized and directed at all times to reserve such number of
authorized shares as shall be required for such purpose. The Company will keep a
copy of this Agreement on file with the Transfer Agent and with every subsequent
transfer agent for any shares of the Company's capital stock issuable upon the
exercise of the rights of purchase represented by the Warrants. The Warrant
Agent is hereby authorized to requisition from time to time from the Transfer
Agent the stock certificates required to honor outstanding Warrants upon
exercise thereof in accordance with the terms of this Agreement. The Company
will supply the Transfer Agent and any such subsequent transfer agent with duly
executed stock certificates for such purposes. The Company will furnish the
Transfer Agent and any such subsequent transfer agent a copy of all notices of
adjustments delivered by the Company to the Warrant Agent hereunder.
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8.2 Purchase of Warrants by the Company. The Company shall
have the right, except as limited by law, other agreements or herein, to
purchase or otherwise acquire Warrants at such times, in such manner and for
such consideration as it may deem appropriate.
8.3 Cancellation of Warrants. In the event the Company shall
purchase or otherwise acquire Warrants, the same shall thereupon be delivered to
the Warrant Agent and be cancelled by it and retired. The Warrant Agent shall
cancel any Warrant surrendered for exchange, substitution, transfer or exercise
in whole or in part and such cancelled Warrant Certificate shall be disposed of
by the Warrant Agent in a manner satisfactory to the Company.
SECTION 9. Exercise Price. The price per share at which a
Warrant Share shall be purchasable upon exercise of a Warrant (the "Exercise
Price") shall be $1.50, subject to adjustment as provided in Section 10 hereof.
SECTION 10. Adjustments. The Exercise Price and the number and
kind of securities subject to purchase upon the exercise of each Warrant shall
be subject to adjustment form time to time upon the happening of certain events,
as hereinafter set forth. The Aggregate Warrant Price with respect to each
Holder shall equal $1.50 multiplied by the number of Warrant Shares represented
by the certificate evidencing the Warrants issuable to a Holder on the date
hereof.
10.1 Adjustments. (a) If, at any time or from time to time
after the issuance date of the Warrants, the Company shall issue or distribute
to the holders of shares of Common Stock evidence of its indebtedness, any other
securities of the Company or any cash, property or other assets (excluding a
subdivision, combination or reclassification, or dividend or distribution
referred to in Section 10.1(b), and also excluding cash dividends or cash
distributions paid out of net profits legally available therefor in the full
amount thereof, which together with the value of other dividends and
distributions made substantially concurrently therewith or pursuant to a plan
which includes payment thereof, is equivalent to not more than 5% of the
Company's net worth) (any such non-excluded event being herein called a "Special
Dividend"), then the Exercise Price in effect immediately prior to the close of
business on the record date fixed for the determination of holders of any class
of securities entitled to receive such Special Dividend shall be adjusted by
multiplying the Exercise Price then in effect by a fraction, the numerator of
which shall be the then Current Market Price (as defined in paragraph (g) below)
of the Common Stock less the fair market value of the evidence of indebtedness,
cash, securities or property, or other assets issued or distributed in such
Special Dividend applicable to one share of Common Stock, and the denominator of
which shall be the then Current Market Price of the Common Stock. An adjustment
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made pursuant to this Section 10.1(a) shall become effective immediately after
the record date of any such Special Dividend.
(b) Except for an event set forth in Section 10.1(e) in case
the Company shall hereafter (i) pay a dividend or make a distribution on its
capital stock in shares of Common Stock, (ii) subdivide its outstanding shares
of Common Stock into a greater number of shares, (iii) combine its outstanding
shares of Common Stock into a smaller number of shares or (iv) issue by
reclassification of its Common Stock any shares of capital stock of the Company,
the Exercise Price in effect immediately prior to the close of business on the
record date fixed for such dividend or distribution, subdivision, combination or
reclassification shall be adjusted to be equal to a fraction, the numerator of
which shall be the Aggregate Warrant Price and the denominator of which shall be
the number of shares of Common Stock or other capital stock of the Company which
such Holder would have owned immediately following such action had such Warrants
been exercised immediately prior thereto. An adjustment made pursuant to this
Subsection 10.1(b) shall become effective immediately after the record date in
the case of a dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision, combination or
reclassification.
(c)(i) Except as provided in Sections 10.1(a) and 10.1(e), in
case the Company shall hereafter issue or sell any Common Stock, any securities
convertible into Common Stock or any rights, options or warrants to purchase
Common Stock or securities convertible into Common Stock, or set a record date
for the determination of holders of any securities entitled to receive any such
issuance, in each case for a price per share or entitling the holders thereof to
purchase Common Stock at a price per share (determined by dividing (x) the total
amount, if any, received or receivable by the Company in consideration of the
issuance or sale of such securities plus the total consideration, if any,
payable to the Company upon exercise or conversion thereof (the "Total
Consideration") by (y) the number of additional shares of Common Stock issuable
upon exercise or conversion of such securities) less than the greater of (x) the
Current Market Price and (y) the then current Exercise Price in effect on the
record date for such issuance or, if there is no record date, the date of such
issuance or sale, the Exercise Price shall be adjusted by multiplying the
Exercise Price then in effect by a fraction, the numerator of which shall be the
sum of (1) the number of shares of Common Stock outstanding on such issue or
sale date or record date and (2) the number of additional shares of Common Stock
which the Total Consideration would purchase at the greater of (x) the Current
Market Price or (y) the then current Exercise Price, and the denominator of
which shall be the sum of (1) the number of shares of Common Stock outstanding
on such record date or, if there is no record date, immediately prior to such
issue or sale and (2) the number of additional shares of Common Stock to be
sold, issued or issuable (or into which the convertible securities to be sold,
issued or issuable are convertible). An adjustment
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pursuant to this Section 10.1(c) shall be made successively whenever an event
described in this Section 10.1(c) shall occur and shall become effective on the
record date for the determination of holders entitled to receive such issuance
or if there is no record date, immediately after the date of such sale or
issuance.
(ii) For purposes of this Section 10.1(c), in the
event the Company shall assume, amend or modify the terms of any right, option,
warrant or convertible security, for purposes of determining an adjustment, if
any, to the Exercise Price, if any, pursuant to this Section 10.1(c) such right,
option, warrant or convertible security shall be deemed issued or sold on the
date of such assumption or amendment or modification.
(iii) No further adjustment to the Exercise Price
shall be made upon the subsequent issue or sale of shares of Common Stock or
convertible securities or upon the exercise of such rights, options or warrants,
or the conversion of such convertible securities; provided that to the extent
that shares of Common Stock are not delivered (or securities convertible into
Common Stock are not delivered) after the expiration of any rights, options or
warrants to purchase Common Stock or securities convertible into Common Stock,
the Exercise Price shall be readjusted to the Exercise Price which would then be
in effect had the adjustments made upon the issuance of such securities
convertible into Common Stock or any rights, options or warrants to purchase
Common Stock or securities convertible into Common Stock been made upon the
basis of delivery of only the number of shares of Common Stock (or securities
convertible into Common Stock) actually delivered.
(d) No adjustment in the Exercise Price shall be required in
the case of the issuance by the Company of Common Stock pursuant to the exercise
of these Warrants or the issuance of shares of Common Stock pursuant to the
option, warrants, rights, convertible securities and contracts set forth in
Section 3.2 of the Subscription and Registration Rights Agreement as such
option, warrants, rights, convertible securities and contracts are in effect on
the date hereof.
(e) In case of any capital reorganization or reclassification
(other than a change in par value), or any consolidation or merger to which the
Company is a party, or in case of any sale or conveyance to another entity of
the property of the Company as an entirety or substantially as an entirety, the
Warrants shall after such reorganization, reclassification, consolidation,
merger, sale or conveyance be exercisable, upon the terms and conditions of the
Warrants, for the kind and amount of securities, cash or other property which
the Holder would have owned or have been entitled to receive immediately after
such reorganization, reclassification, consolidation, merger, sale or conveyance
had the Warrants been exercised immediately prior to the effective date of such
reorganization, reclassification, consolidation, merger, sale or conveyance and
in any such case, if necessary, the provisions set forth in this Section 3 with
respect to the rights and interests thereafter of the Holders of the Warrants
shall be appropriately adjusted so as to be applicable, as nearly as may
reasonably be, to any shares of stock or other securities or property thereafter
deliverable on the exercise of the Warrants. The above provisions of this
Section 10.1 shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, sales or
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conveyances. The subdivision or combination of shares of Common Stock at any
time outstanding into a greater or lesser number of shares shall not be deemed
to be a reclassification of the Common Stock for the purposes of this Section
10.1(e). The Company shall not effect any such reorganization, reclassification,
consolidation, merger, sale or conveyance unless prior to or simultaneously with
the consummation thereof the successor corporation (if other than the Company)
resulting from such transaction or the corporation purchasing such assets or
other appropriate corporation or entity shall assume, by written instrument
executed and delivered to the Holders, the obligation to deliver to the Holders
such shares of stock, securities or assets as, in accordance with the foregoing
provisions, such Holders may be entitled to purchase and the other obligations
under the Warrants. The issuer of any shares of stock or other securities or
property thereafter deliverable on the exercise of the Warrants shall be
responsible for all of the agreements and obligations of the Company hereunder.
Notice of any such reorganization, reclassification, consolidation, merger, sale
or conveyance and of said provisions so proposed to be made, shall be mailed to
the Holders not less than 30 days prior to such event.
(f) For purposes of any computation respecting consideration
received pursuant to Sections 10.1(a), (b) or (c) above, the following shall
apply:
(i) in the case of the issuance of shares of Common
Stock for cash, the consideration shall be the amount of such cash, provided
that in no case shall any deduction be made for any commissions, discounts or
other expenses incurred by the Company for any underwriting of the issue or
otherwise in connection therewith; and
(ii) in the case of the issuance of shares of Common
Stock for a consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the fair market value thereof as
determined in good faith by the Board of Directors of the Company (irrespective
of the accounting treatment thereof), whose determination shall be conclusive.
(g) For purposes hereof, the Current Market Price per share of
Common Stock at any date shall be deemed to be the average of the daily closing
prices for 30 consecutive trading days ending on the date immediately prior to
such date, and if the Common Stock is no longer listed on a national securities
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exchange or over-the-counter market, the Current Market Price (and the closing
price per share in Section 5.2) shall be as determined by the Board of
Directors.
(h) In the event of any adjustment to the Exercise Price
pursuant to this Section 10.1, the number of Warrant Shares shall be adjusted by
dividing the Aggregate Warrant Price by the Exercise Price in effect immediately
after such adjustment.
(i) In case any event shall occur as to which the other
provisions of this Section 10.1 are not strictly applicable but as to which the
failure to make any adjustment would not fairly protect the purchase rights
represented by the Warrants in accordance with the essential intent and
principles hereof then, in each such case, the Holders representing the right to
purchase a majority of the shares of Common Stock and other securities and
properties receivable upon the exercise of the Warrants may appoint a firm of
independent public accountants of recognized national standing reasonably
acceptable to the Company, which shall give their opinion as to the adjustment,
if any, on a basis consistent with the essential intent and principles
established herein, necessary to preserve the purchase rights represented by
these Warrants. Upon receipt of such opinion, the Company will promptly mail a
copy thereof to the Holders and shall make the adjustments described therein.
The fees and expenses of such independent public accountants shall be borne by
the Company.
(j) No adjustment in the Exercise Price shall be required
unless such adjustment would require an increase or decrease of at least $0.05
per share of Common Stock; provided, however, that any adjustments which by
reason of this Section 10.1(j) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment; provided, further,
however, that adjustments shall be required and made in accordance with the
provisions of this Section 10.1 (other than this Section 10.1(j)) not later than
such time as may be required in order to preserve the tax-free nature of any
distribution to the Holders or Common Stock issuable upon the exercise of the
Warrants. All calculations under this Section 10.1 shall be made to the nearest
cent or to the nearest 1/100th of a share, as the case may be. Anything in this
Section 10.1 to the contrary notwithstanding, the Company shall be entitled to
make such reductions in the Exercise Price, in addition to those required by
this Section 10.1, as it in its discretion shall deem to be advisable in order
that any stock dividend, subdivision of shares or distribution of options,
rights or warrants to purchase stock or securities convertible for stock
hereafter made by the Company to its holders of the Common Stock shall not be
taxable.
(k) Whenever the Exercise Price is adjusted as provided in this
Section 10.1 and upon any modification of the rights of the Holders of these
Warrants in accordance with this Section 10.1, the Company shall promptly
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but in no event later than ten days after any request for an adjustment by the
Holder, obtain, at its expense, a certificate of a firm of independent public
accountants of recognized standing selected by the Board of Directors (who may
be the regular auditors of the Company) setting forth the Exercise Price and the
number of shares of Common Stock and other securities and properties receivable
upon exercise of the Warrants after such adjustment or the effect of such
modification, a brief statement of the facts requiring such adjustment or
modification and the manner of computing the same and cause copies of such
certificate to be mailed to the Holders of the Warrants.
(l) If, as a result of an adjustment made pursuant to this
Section 10.1, the Holder thereafter surrendered for exercise shall become
entitled to receive shares of two or more classes of capital stock or shares of
Common Stock and other capital stock of the Company, the Board of Directors
(whose determination shall be conclusive and shall be described in a written
notice to the Holder promptly after such adjustment) shall determine the
allocation of the adjusted Exercise Price between or among shares or such
classes of capital stock or shares of Common Stock and other capital stock. In
the event that at any time, as a result of an adjustment made pursuant to this
Section 10.1, the holder of any Warrant thereafter exercised shall become
entitled to receive any shares of capital stock of the Company other than shares
of Common Stock, thereafter the number of such other shares so receivable upon
exercise of the Warrants shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the shares of Common Stock contained in Section 10.1, and the
remainder of the terms of the Warrants shall apply on like terms to any such
other shares.
10.2 Notice of Adjustment. Whenever the Exercise Price is
adjusted, as herein provided, the Company shall cause the Warrant Agent promptly
to give notice to the Holders as provided in Section 17 hereof of such
adjustment or adjustments and shall deliver to the Warrant Agent a certificate
setting forth the Exercise Price after such adjustment, setting forth a brief
statement of the facts requiring such adjustment and setting forth the
computation by which such adjustment was made. The Warrant Agent shall be
entitled to rely on such certificate and shall be under no duty or
responsibility with respect to any such certificate, except to exhibit the same,
from time to time, to any Holder desiring an inspection thereof during
reasonable business hours. The Warrant Agent shall not at any time be under any
duty or responsibility to any Holders to determine whether any facts exist which
may require any adjustment of the Exercise Price or other stock or property
purchasable on the exercise thereof, or with respect to the nature or extent of
any such adjustment when made, or with respect to the method employed in making
such adjustment.
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10.3 Statement on Warrants. Irrespective of any adjustments in
the Exercise Price or the number or kind of shares or other property purchasable
upon the exercise of the Warrants or other amendments to or corrections of this
Agreement, Warrants theretofore or thereafter issued may continue to express the
same price and number and kind of shares as are stated in the Warrants initially
issuable pursuant to this Agreement.
SECTION 11. No Rights as Stockholders; Notice to Holders.
Nothing contained in this Agreement or in any of the Warrants shall be construed
as conferring upon the Holders or their transferees the right to vote or to
receive dividends or to consent or to receive notice as stockholders in respect
of any meeting of stockholders for the election of directors of the Company or
any other matter, or any rights whatsoever as stockholders of the Company. If
the Board of Directors of the Company shall set a record date for any action
which would require an adjustment pursuant to Section 10, the Company shall
cause the Warrant Agent to mail notice thereof to the Holders of the Warrants
not less than 10 days prior to the record date with respect to any such action.
SECTION 12. Disposition of Proceeds on Exercise of Warrants;
Inspection of Warrant Agreement. The Warrant Agent shall account promptly to the
Company with respect to Warrants exercised and concurrently pay to the Company
all monies received by the Warrant Agent for the purchase of the Warrant Shares
through the exercise of such Warrants.
The Warrant Agent shall keep copies of this Agreement and any
notices given or received hereunder available for inspection by the Holders
during normal business hours at its principal office. The Company shall supply
the Warrant Agent from time to time with such number of copies of this Agreement
as the Warrant Agent may request.
SECTION 13. Merger or Consolidation or Change of Name of
Warrant Agent. Any corporation into which the Warrant Agent may be merged or
with which it may be consolidated, or any corporation resulting from any merger
or consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to substantially all of the business of the Warrant Agent, shall be
the successor to the Warrant Agent hereunder without the execution or filing of
any paper or any further act on the part of any of the parties hereto, provided
that such corporation would be eligible for appointment as a successor Warrant
Agent under the provisions of Section 15 hereof. In case at the time such
successor to the Warrant Agent shall succeed to the agency created by this
Agreement any of the Warrants shall have been countersigned but not delivered,
any such successor to the Warrant Agent may adopt the countersignature of the
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original Warrant Agent and deliver such Warrants so countersigned; and in case
at that time any of the Warrants shall not have been countersigned, any
successor to the Warrant Agent may countersign such Warrants either in the name
of the predecessor Warrant Agent or in the name of the successor Warrant Agent;
and in any such cases such Warrants shall have the full force provided in the
Warrants and in this Agreement.
In case at any time the name of the Warrant Agent shall be
changed and at such time any of the Warrants shall have been countersigned but
not delivered, the Warrant Agent may adopt the countersignatures under its prior
name and deliver such Warrants so countersigned; and in case at that time any of
the Warrants shall not have been countersigned, the Warrant Agent may
countersign such Warrants either in its prior name or in its changed name; and
in all such cases such Warrants shall have the full force provided in the
Warrants and in this Agreement.
SECTION 14. Concerning the Warrant Agent. The Warrant Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the Holders, by
their acceptance of Warrants, shall be bound.
14.1 Correctness of Statements. The statements contained
herein and in the Warrants shall be taken as statements of the Company and the
Warrant Agent assumes no responsibility for the correctness of any of the same
except such as describe the Warrant Agent or action taken by it. The Warrant
Agent assumes no responsibility with respect to the distribution of the Warrants
except as otherwise provided herein.
14.2 Breach of Covenants. The Warrant Agent shall not be
responsible for any failure of the Company to comply with any of the covenants
of the Company contained in this Agreement or in the Warrant.
14.3 Reliance on Counsel. The Warrant Agent may consult at any
time with legal counsel satisfactory to it (who may be counsel for the Company)
and the Warrant Agent shall incur no liability or responsibility to the Company
or to any Holder in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or the advice of such
counsel.
14.4 Proof of Actions Taken. Whenever in the performance of
its duties under this Agreement the Warrant Agent shall deem it necessary or
desirable that any fact or matter be proved or established by the Company prior
to taking or suffering any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed and except for a
notice pursuant to Section 10.2) may be deemed conclusively to be proved and
established by a certificate signed by an officer of the Company and delivered
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to the Warrant Agent; and such certificate shall be full authorization to the
Warrant Agent for any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
14.5 Compensation and Indemnification. The Company agrees to
pay the Warrant Agent reasonable compensation for all services rendered by the
Warrant Agent in the performance of its duties under this Agreement, to
reimburse the Warrant Agent for all expenses, taxes and governmental charges and
other charges of any kind and nature reasonably incurred by the Warrant Agent in
the performance of its duties under this Agreement, and to indemnify the Warrant
Agent and save it harmless against any and all liabilities, including judgments,
costs and reasonable counsel fees, for anything done or omitted by the Warrant
Agent in the performance of its duties under this Agreement except as a result
of the Warrant Agent's gross negligence or bad faith. In connection with such
indemnification, the Company shall be entitled to conduct any litigation and
shall only be required to pay the reasonable costs and fees of one counsel
selected by the Company. The Warrant Agent will cooperate in the defense of any
such action and will not settle such action without the consent of the Company.
14.6 Other Transactions in Securities of Company. The Warrant
Agent and any stockholder, director, officer or employee of the Warrant Agent
may buy, sell or deal in any of the Warrants or other securities of the Company
or become pecuniarily interested in any transaction in which the Company may be
interested or contract with or lend money to the Company or otherwise act as
fully and freely as though the Warrant Agent was not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any legal entity including, without
limitation, acting as a lender to the Company or an affiliate thereof.
14.7 Liability of Warrant Agent. The Warrant Agent shall act
hereunder solely as the agent of the Company and its duties shall be determined
solely by the provisions hereof. The Warrant Agent shall not be liable for
anything which it may do or refrain from doing in connection with this Agreement
except for its own gross negligence or bad faith. Anything in this Agreement to
the contrary notwithstanding, in no event shall the Warrant Agent be liable for
special, indirect or consequential loss or damage whatsoever (including, but not
limited to, lost profits) even if the Warrant Agent has been advised of the
likelihood of such loss or damage and regardless of the form of action.
14.8 Reliance on Documents. The Warrant Agent will not incur
any liability or responsibility to the Company or to any Holder for any action
taken in reliance on any notice, resolution, waiver, consent, order,
certificate, or other paper, document or instrument reasonably believed by it to
be genuine and to have been signed, sent or presented by the proper party or
parties.
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14.9 Validity of Agreement. The Warrant Agent shall not be
under any responsibility in respect of the validity of this Agreement or the
execution and delivery hereof (except the due execution hereof by the Warrant
Agent) or in respect of the validity and execution of any Warrant (except its
countersignature thereof); nor shall the Warrant Agent by any act hereunder be
deemed to make any representation or warranty as to the authorization or
reservation of any Warrant Shares (or other stock) to be issued pursuant to this
Agreement or any Warrant, or as to whether any Warrant Shares (or other stock)
will, when issued, be validly issued, fully paid and nonassessable, or as to the
Exercise Price or the number or amount of Warrant Shares or other securities or
other property issuable upon exercise of any Warrant.
14.10 Instructions from Company. The Warrant Agent is hereby
authorized and directed to accept instructions with respect to the performance
of its duties hereunder from the Chairman of the Board, the President, the Chief
Financial Officer, any Vice Chairman of the Board, or any Executive, Senior or
other Vice President of the Company or any other employee of the Company
expressly authorized in writing by any of such persons as having the authority
to deliver instructions hereunder, and to apply to such officers or employees
for advice or instructions in connection with its duties, and shall not be
liable for any action taken or suffered to be taken by it in good faith in
accordance with instructions of any such officers or employees.
SECTION 15. Change of Warrant Agent. The Warrant Agent may
resign and be discharged from its duties under this Agreement by giving to the
Company 30 days' notice in writing. The Warrant Agent may be removed by like
notice to the Warrant Agent from the Company. If the Warrant Agent shall resign
or be removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Warrant Agent or by any Holder (who shall with such notice submit
his Warrant for inspection by the Company), then any Holder may apply to any
court of competent jurisdiction located in Hartford, Connecticut for the
appointment of a successor to the Warrant Agent. Pending appointment of a
successor to the Warrant Agent, either by the Company or by such a court, the
duties of the Warrant Agent shall be carried out by the Company. Any successor
Warrant Agent, whether appointed by the Company or such a court, shall be a bank
or trust company, in good standing, incorporated under the laws of the United
States of America or any state thereof and having at the time of its appointment
as Warrant Agent a combined capital and surplus of at least $5,000,000. After
appointment, the successor Warrant Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as
Warrant Agent without further act or deed; but the former warrant agent shall
deliver and transfer to the successor warrant agent any property at the time
held by it hereunder, and execute and deliver any further assurance, conveyance,
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act or deed necessary for the purpose. Failure to file any notice provided for
in this Section 15, however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the warrant agent or the
appointment of the successor warrant agent, as the case may be. In the event of
such resignation or removal, the successor warrant agent shall mail, by first
class mail, postage prepaid, to each Holder, written notice of such removal or
resignation and the name and address of such successor warrant agent.
SECTION 16. Identity of Transfer Agent. Forthwith upon the
appointment of any subsequent transfer agent for the Common Stock, or any other
shares of the Company's capital stock issuable upon exercise of the Warrant, the
Company will file with the Warrant Agent a statement setting forth the name and
address of such subsequent transfer agent.
SECTION 17. Notices. Any notice pursuant to this Agreement by
the Company or by any Holder to the Warrant Agent, or by the Warrant Agent or by
any Holder to the Company, shall be in writing and shall be delivered in person,
by overnight courier, or by facsimile transmission (with hard copy to follow
promptly by first class mail or overnight courier), or mailed first class,
postage prepaid (a) to the Company at its offices 1200 High Ridge Road,
Stamford, Connecticut 06905, fax: (203) 329-0557, Attention: President; or (b)
to the Warrant Agent its corporate office, 40 Wall Street, New York, New York
10005. Each party hereto may from time to time change the address as facsimile
numbers to which notices to it are to be delivered or mailed hereunder by notice
to the other party.
Any notice required to be mailed pursuant to this Agreement by
the Company or the Warrant Agent to the Holders shall be in writing and shall be
mailed first class, postage prepaid, or otherwise delivered, to such Holders at
their respective addresses on the books of the Warrant Agent. Any other notices
which the Company or the Warrant Agent may wish to provide to the Holder may be
made in such manner (including by publication in a newspaper of national
circulation) as the Company or the Warrant Agent, as the case may be, shall
elect. Any notice requested by any other person may be dispatched in the
discretion of the Warrant Agent, but at no expense to the Warrant Agent or the
Company.
SECTION 18. Supplements and Amendments. The Company and the
Warrant Agent may from time to time supplement or amend this Agreement without
the approval of any Holder in order to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or inconsistent
with any other provision herein, or to make any other provisions in regard to
matters or questions arising hereunder which the Company and the Warrant Agent
may deem necessary or desirable, which shall not adversely affect in any
material manner the interest of the Holders. The Company and the Warrant Agent
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may from time to time supplement or amend this Agreement in any other respect
with the written consent of the Holders of not less than a majority of the
Warrants then outstanding; provided, however, that no change in the number or
nature of the securities purchasable upon the exercise of any Warrant, or
increase in the Exercise Price of any Warrant, or acceleration of the Expiration
Date of any Warrant, shall be made without the written consent of the Holder of
such Warrant, other than such changes as are specifically prescribed by this
Agreement as originally executed or are made in compliance with applicable law.
SECTION 19. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Warrant Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
SECTION 20. Applicable Law. This Agreement and each Warrant
issued hereunder shall be governed by and construed in accordance with the laws
of the State of New York applicable to contracts made and to be performed within
such State, without giving effect to principles of conflicts of laws.
SECTION 21. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation other than the
Company, the Warrant Agent, and the Holders any legal or equitable right, remedy
or claim under this Agreement; this Agreement shall be for the sole and
exclusive benefit of the Company, the Warrant Agent and the Holders of the
Warrants.
SECTION 22. Counterparts. This Agreement may be executed in
counterparts and by facsimile and each of such counterparts and facsimile copies
shall for all purposes be deemed to be an original, and all such counterparts
shall together constitute but one and the same instrument.
SECTION 23. Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
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SECTION 24. Captions. The captions of the Sections and
subsections of this Agreement have been inserted for convenience only and shall
have no substantive effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, all as of the day and year first above written.
VIMRx PHARMACEUTICALS INC.
By: /s/ Richard L. Dunning
Name: Richard L. Dunning
Title: President and Chief Executive
Officer
AMERICAN STOCK TRANSFER
& TRUST COMPANY
By: /s/ Herbert J. Lemmer
Name: Herbert J. Lemmer
Title: Vice President
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Exhibit A
Form of Warrant Certificate
(obverse)
EXERCISABLE ONLY ON OR AFTER JUNE 21, 1996 AND ON OR
BEFORE 5:00 P.M. NEW YORK CITY TIME ON JUNE 20, 2006
NUMBER
VPW: ________ WARRANTS: ________
SEE REVERSE SIDE
FOR DEFINITIONS
COMMON STOCK
SUBSCRIPTION WARRANTS CUSIP 927186 13 0
Incorporated Under the Laws of The State of Delaware
VIMRx PHARMACEUTICALS, INC.
This certifies that FOR VALUE RECEIVED
or registered assigns (the "Registered Holder") is the owner of the number of
Common Stock Subscription Warrants (the "Warrants") specified above. Each
Warrant initially entitles the Registered Holder to purchase, subject to the
terms and conditions set forth in this Warrant Certificate and the Warrant
Agreement (as hereinafter defined), one fully paid and nonassessable share of
Common Stock, $.001 par value (the "Common Stock"), of VIMRx Pharmaceuticals
Inc., a Delaware corporation (the "Company"), at any time between June 21, 1996
and 5:00 p.m. (New York City time) on June 20, 2006 (the "Expiration Date"),
upon surrender of this Warrant Certificate with the Subscription Form on the
reverse hereof duly executed, at the principal office of American Stock Transfer
& Trust Company, as Warrant Agent, or its successor (the "Warrant Agent"),
accompanied by payment of $1.50 per Warrant (the "Exercise Price") by certified
or official bank check made payable to the Warrant Agent for the account of the
Company.
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This Warrant Certificate and each Warrant represented hereby
are issued pursuant to and are subject in all respects to the terms and
conditions set forth in the Warrant Agreement (the "Warrant Agreement"), dated
as of June 17, 1996, by and between the Company and the Warrant Agent. A copy of
the Warrant Agreement may be obtained by the Registered Holder upon written
request to the Company.
Upon the occurrence of certain events provided for in the
Warrant Agreement, the Exercise Price and the number and kind of securities
subject to purchase upon the exercise of each Warrant represented hereby are
subject to adjustment.
Each Warrant represented hereby is exercisable at the option
of the Registered Holder, but no fractional shares of Common Stock will be
issued. In the case of the exercise of less than all of the Warrants represented
hereby, the Company shall execute a new Warrant Certificate, which the Warrant
Agent shall countersign and deliver, for the balance of such Warrants.
This Warrant Certificate is exchangeable, upon the surrender
hereof by the Registered Holder at the principal office of the Warrant Agent,
for a new Warrant Certificate or Warrant Certificates entitling such Registered
Holder to purchase a like aggregate number of shares of Common Stock as this
Warrant Certificate entitles such Registered Holder to purchase. A Registered
Holder desiring to exchange this Warrant Certificate shall make such request in
writing delivered to the Warrant Agent, and shall surrender, properly endorsed,
this Warrant Certificate to be so exchanged. Thereupon, the Warrant Agent shall
countersign and deliver to the Registered Holder a new Warrant Certificate or
Warrant Certificates as so requested, in the name of such Registered Holder,
subject to the limitations provided in the Warrant Agreement. No fractional
Warrant Certificate shall be issued and no new Warrant Certificate entitling the
Registered Holder thereof to purchase fractional shares will be issued.
Prior to the exercise of any Warrant represented hereby, the
Registered Holder shall not be entitled to any rights of a stockholder of the
Company, including, without limitation, the right to vote or to receive
dividends, and shall not be entitled to receive any notice of any proceedings of
the Company, except as provided in the Warrant Agreement.
The Company and the Warrant Agent may deem and treat the
Registered Holder as the absolute owner hereof (notwithstanding any notation of
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<PAGE>
ownership or other writing hereon made by anyone) for all purposes and shall not
be affected by any notice to the contrary.
This Warrant Certificate is not valid unless countersigned by
the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed, manually or in facsimile, by two of its
officers thereunto duly authorized and a facsimile of its corporate seal to be
imprinted thereon.
VIMRx PHARMACEUTICALS INC.
By:_____________________________
Secretary
By:____________________________
President and Chief Executive
Officer
COUNTERSIGNED:
AMERICAN STOCK TRANSFER & TRUST COMPANY, as Warrant Agent
By:____________________________
Authorized Officer
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(Reverse)
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT-______Custodian_______
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right under Uniform Gifts to Minor
of survivorship and not as tenants Act__________________
in common (State)
Additional abbreviations may also be used though not in the above
list.
SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the
right of purchase represented by the within Warrant Certificate for, and to
purchase thereunder, shares of Common Stock, as provided for therein, and
tenders herewith payment of the purchase price in full in the form of a
certified or official bank check in the amount of $
Please issue a certificate or certificates for such shares of
Common Stock in the name of:
Name_______________________________________
(Please Print Name, Address and Social
Security or Taxpayer Identification Number)
_______________________________________
_______________________________________
_______________________________________
_______________________________________
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<PAGE>
And, if said number of shares shall not be all the shares purchasable under the
within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder.
Signature ________________________________________
Note: The above signature must correspond
exactly with the name on the face of this Warrant
Certificate or with the name of assignee appearing
in the assignment form below.
- --------------------------------------------
Signature Guarantee Signatures should be guaranteed
by an eligible guarantor institution which
is a member of a signature guarantee
program satisfactory to the Warrant Agent.
ASSIGNMENT
(To be executed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
[ ]
________________________________________________________________________________
(Name and Address of Assignee Must Be Printed or Typewritten)
________________________________________________________________________________
the within Warrant Certificate, hereby irrevocably constituting and appointing
_____________________________________________________________________ , Attorney
to transfer said Warrant Certificate on the books of the Company, with full
power of substitution in the premises.
Dated:_________________________________ ______________________________
Signature of Registered Holder
Note: The above signature must
correspond exactly with the
name on the face of this
Warrant Certificate.
- ------------------------------------
Signature Guarantee Signatures should
be guaranteed by an eligible
guarantor institution which
is a member of a signature
guarantee program
satisfactory to the Warrant
Agent.
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<PAGE>
Exhibit 5.1
EPSTEIN BECKER & GREEN, P.C.
250 PARK AVENUE
NEW YORK, NEW YORK 10177
(212) 351-4500
(212) 351-4735
April 14, 1997
VIMRx Pharmaceuticals Inc.
2751 Centerville Road
Suite 210
Wilmington, Delaware 19808
Gentlemen:
We have acted as counsel to VIMRx Pharmaceuticals Inc. (the
"Company") in connection with its filing of a registration statement on Form S-3
(which registration statement, as amended at the time of its effectiveness is
hereinafter called the "Registration Statement") relating to the registration of
(i) 5,999,991 shares (the "Placement Shares") of Common Stock, $.001 par value,
of the Company ("Common Stock") and (ii) 2,399,993 Common Stock Subscription
Warrants (the "Warrants") and 2,399,993 shares of Common Stock issuable upon
exercise of the Warrants (the "Warrant Shares").
VIMRx Pharmaceuticals Inc.
April 14, 1997
Page 2
As such counsel, we have examined original copies, or copies
certified to our satisfaction, of the corporate records of the Company,
agreements and other instruments, certificates of public officials and such
other documents as we deemed necessary as a basis for the opinion hereinafter
set forth.
On the basis of the foregoing, we are of the opinion that:
(i) the Placement Shares have been validly
authorized, and are legally issued, fully
paid and non-assessable; and
(ii) the Warrants constitute legal, valid and
binding obligations of the Company, and the
Warrant Shares, upon issuance and payment in
accordance with the terms of the Warrants,
will be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and the reference made to us under the caption
"Legal Matters" in the prospectus constituting part of such Registration
Statement.
Very truly yours,
EPSTEIN BECKER & GREEN, P.C.
By: /s/ Sidney Todres
Sidney Todres
