VOID AFTER 5:00 P.M., NEW YORK TIME ON MAY 4, 2004
WARRANT TO PURCHASE 500,000 SHARES OF COMMON STOCK
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WARRANT TO PURCHASE COMMON STOCK
OF
EMPYREAN BIOSCIENCE, INC.
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THIS WARRANT AND THE SHARES OF COMMON STOCK
ISSUABLE PURSUANT TO THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD,
PLEDGED OR OTHERWISE TRANSFERRED UNLESS
REGISTERED UNDER THE ACT OR AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE.
FOR VALUE RECEIVED, Empyrean Bioscience, Inc., a Wyoming corporation (the
"Company"), grants the following rights to Uptic Investment Corp. ("Holder"):
ARTICLE I.
DEFINITIONS.
As used herein, the following terms shall have the following meanings,
unless the context shall otherwise require:
(a) "Common Stock" shall mean the common stock, without par value, of
the Company.
(b) "Corporate Office" shall mean the office of the Company (or its
successor) at which at any particular time its principal business shall be
administered.
(c) "Exercise Date" shall mean any date upon which the Holder shall
give the Company a Notice of Exercise.
(d) "Exercise Price" shall mean the price to be paid to the Company
for each share of Common Stock to be purchased upon exercise of this Warrant in
accordance with the terms hereof which shall be $0.50.
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(e) "Expiration Date" shall mean 5:00 p.m. (New York time) on May 4,
2004.
(f) "SEC" shall mean the United States Securities and Exchange
Commission.
(g) "Transfer Agent" shall mean the Company's transfer agent or its
authorized successor.
(h) "Underlying Shares" shall mean the shares of Common Stock issuable
upon exercise of the Warrant.
ARTICLE 2.
EXERCISE AND AGREEMENTS
2.1 EXERCISE OF WARRANT. This Warrant shall entitle Holder to purchase up
to 500,000 shares of Common Stock (the "Shares") at the Exercise Price. This
Warrant shall be exercisable at any time and from time to time on or after May
5, 1999 and prior to the Expiration Date (the "Exercise Period"). This Warrant
and the right to purchase shares of Common Stock hereunder shall expire and
become void at the Expiration Date.
2.2 MANNER OF EXERCISE.
(a) Holder may exercise this Warrant at any time and from time to time
during the Exercise Period, in whole or in part (but not in denominations of
fewer than 10,000 shares, except upon an exercise of this Warrant with respect
to the remaining balance of shares purchasable hereunder at the time of
exercise), by delivering to the Company (i) a duly executed Notice of Exercise
in substantially the form attached as Appendix 1 hereto and (ii) a bank
cashiers, certified check, or wire transfer for the aggregate Exercise Price of
the shares being purchased.
(b) From time to time upon exercise of this Warrant, in whole or part,
in accordance with its terms, the Company will deliver stock certificates to the
Holder representing the number of shares of Common Stock being purchased
pursuant to such exercise, subject to adjustment as described herein.
(c) Promptly following any exercise of this Warrant, if the Warrant
has not been fully exercised and has not expired, the Company will deliver to
the Holder a new Warrant for the balance of the shares of Common Stock covered
hereby.
2.3 TERMINATION. All rights of the Holder in this Warrant, to the extent
they have not been exercised, shall terminate on the Expiration Date.
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2.4 NO RIGHTS PRIOR TO EXERCISE. Prior to its exercise pursuant to Section
2.2 above, this Warrant shall not entitle the Holder to any voting or other
rights as a holder of shares of Common Stock.
2.5 ADJUSTMENTS. In case of any reclassification, capital reorganization,
stock dividend or other change of outstanding shares of Common Stock, or in case
of any consolidation or merger of the Company with or into another corporation
(other than a consolidation or merger in which the Company is the continuing
corporation and which does not result in any reclassification, capital
reorganization, stock dividend or other change of outstanding shares or Common
Stock) or in case of any sale or conveyance to another corporation of the
property of the Company as, or substantially as, an entirety (other than a
sale/leaseback, mortgage or other financing transaction), the Company shall
cause effective provision to be made so that the Holder shall have the right
thereafter, by exercising this Warrant, to purchase the kind and number of
shares of stock or other securities or property (including cash) receivable upon
such reclassification, capital reorganization, stock dividend or other change,
consolidation, merger, sale or conveyance as the Holder would have been entitled
to receive had the Holder exercised this Warrant in full immediately before such
reclassification, capital reorganization, stock dividend or other change,
consolidation, merger, sale or conveyance. Any such provision shall include
provision for adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 2.5. The foregoing
provisions shall similarly apply to successive reclassifications, capital
reorganizations, stock dividends and other changes of outstanding shares of
Common Stock and to successive consolidations, mergers, sales or conveyances.
2.6 FRACTIONAL SHARES. No fractional shares of Common Stock shall be
issuable upon exercise or conversion of this Warrant and the number of shares to
be issued shall be rounded down to the nearest whole share. If a fractional
share interest arises upon any exercise or conversion of the Warrant, the
Company shall eliminate such fractional share interest by paying Holder the
amount computed by multiplying the fractional interest by the closing bid price
of a full share of Common Stock on the date of the Notice of Exercise.
ARTICLE 3.
REPRESENTATIONS AND COVENANTS OF THE COMPANY.
3.1 REPRESENTATIONS AND WARRANTIES. The Company hereby represents and
warrants to the Holder as follows:
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(a) All shares of Common Stock which may be issued upon the exercise
of the purchase right represented by this Warrant shall, upon issuance, be duly
authorized, validly issued, fully-paid and nonassessable, and free of any liens
and encumbrances except for restrictions on transfer provided for herein or
under applicable federal and state securities laws, and not subject to any
pre-emptive rights.
(b) The Company is a corporation duly organized and validly existing
under the laws of the State of Wyoming, and has the full power and authority to
issue this Warrant and to comply with the terms hereof. The execution, delivery
and performance by the Company of its obligations under this Warrant, including,
without limitation, the issuance of the shares of Common Stock upon any exercise
of the Warrant have been duly authorized by all necessary corporate action. This
Warrant has been duly executed and delivered by the Company and is a valid and
binding obligation of the Company, enforceable in accordance with its terms,
except as enforcement may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting enforceability of creditors' rights
generally and except as the availability of the remedy of specific enforcement,
injunctive relief or other equitable relief is subject to the discretion of the
court before which any proceeding therefore may be brought.
(c) The Company is not subject to or bound by any provision of any
certificate or articles of incorporation or by-laws, mortgage, deed of trust,
lease, note, bond, indenture, other instrument or agreement, license, permit,
trust, custodianship, other restriction or any applicable provision of any law,
statute, rule, regulation, judgment, order, writ, injunction or decree of any
court, governmental body, administrative agency or arbitrator which could
prevent or be violated by or under which there would be a default (or right of
termination) as a result of the execution, delivery and performance by the
Company of this Warrant.
ARTICLE 4.
SECURITIES LAW COMPLIANCE.
The shares of Common Stock will be acquired for Xxxxxx's own account for
investment and not with a view to, or for resale in connection with, any
distribution of the shares within the meaning of the Securities Act of 1933.
Xxxxxx acknowledges that it is aware that the issuance of the shares of Common
Stock upon exercise of this Warrant has not been registered pursuant to the
Securities Act of 1933 (the "Act"), nor is it intended that they be registered
and the Holder has no right to require that they be registered, under the Act or
under any state securities laws. The Holder agrees that the shares of Common
Stock may not be sold in the absence of registration unless such sale is exempt
from registration under the Act and any applicable state securities laws. The
Holder also acknowledges that he shall be responsible for compliance with all
conditions on transfer imposed by any Commissioner of Securities of any state
and for any expenses incurred by the Company for legal or accounting services in
connection with reviewing such proposed transfer or issuing opinions in
connection therewith. The certificate for the shares of Common Stock shall bear
the following restrictive legend:
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THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OF THE UNITED STATES OF AMERICA
(THE "ACT") OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
("STATE ACT"). THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY
NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED FOR
VALUE, DIRECTLY OR INDIRECTLY, IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE ACT AND COMPLIANCE WITH APPLICABLE
STATE ACTS, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND
UNDER APPLICABLE STATE ACTS, THE AVAILABILITY OF WHICH IS ESTABLISHED TO
THE SATISFACTION OF THE COMPANY.
If (but without any obligation to do so under this Agreement) the Company
proposes to register (including for this purpose a registration effected by the
Company for shareholders other than the Holder) any of its stock or other
securities under the Act in connection with the public offering of such
securities solely for cash (other than a registration relating solely to the
sale of securities to participants in a Company stock plan, or a registration on
any form which does not include substantially the same information as would be
required to be included in a registration statement covering the issuance of the
Underlying Shares, or a registration of an offering of securities, the
underwriter of which objects to registration of additional securities), the
Company shall, at such time, promptly give to Holder written notice of such
registration. Upon the written request of the Holder given within twenty days
after mailing of such notice by the Company, the Company shall cause to be
registered under such registration statement such Underlying Shares as the
Holder has requested to be registered.
ARTICLE 5.
MISCELLANEOUS.
5.1 TRANSFER. This Warrant may not be transferred or assigned, in whole or
in part, at any time, except in compliance with applicable federal and state
securities laws by the transferor and the transferee (including, without
limitation, the delivery of an investment representation letter and a legal
opinion reasonably satisfactory to the Company), provided that this Warrant may
not be transferred or assigned such that either the Holder or any transferee
will, following such transfer or assignment, hold a Warrant for the right to
purchase fewer than 5,000 shares of Common Stock.
5.2 TRANSFER PROCEDURE. Subject to the provisions of Section 5.1, Holder
may transfer or assign this Warrant by giving the Company notice setting forth
the name, address and taxpayer identification number of the transferee or
assignee, if applicable (the "Transferee") and surrendering this Warrant to the
Company for reissuance to the Transferee (and the Holder, in the event of a
transfer or assignment of this Warrant in part). (Each of the persons or
entities in whose name any such new Warrant shall be issued is herein referred
to as a Holder").
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5.3 LOSS, THEFT, DESTRUCTION OR MUTILATION. If this Warrant shall become
mutilated or defaced or be destroyed, lost or stolen, the Company shall execute
and deliver a new Warrant in exchange for and upon surrender and cancellation of
such mutilated or defaced Warrant or, in lieu of and in substitution for such
Warrant so destroyed, lost or stolen, upon the Holder filing with the Company
evidence to it that such Warrant has been so mutilated, defaced, destroyed, lost
or stolen. However, the Company shall be entitled, as a condition to the
execution and delivery of such new Warrant, to demand indemnity satisfactory to
it and payment of the expenses and charges incurred in connection with the
delivery of such new Warrant. Any Warrant so surrendered to the Company shall be
canceled.
5.4 NOTICES. All notices and other communications from the Company to the
Holder or vice versa shall be deemed delivered and effective when given
personally, by facsimile transmission and confirmed in writing or mailed by
first-class registered or certified mail, postage prepaid at such address and/or
facsimile number as may have been furnished to the Company or the Holder, as the
case may be, in writing by the Company or the Holder from time to time.
5.5 WAIVER. This Warrant and any term hereof may be changed, waived, or
terminated only by an instrument in writing signed by the party against which or
whom enforcement of such change, waiver, discharge or termination is sought.
5.6 GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of Arizona, without giving effect to its
principles regarding conflicts of law.
Empyrean Bioscience, Inc.
Attest: By:
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Xxxxxxx X. Xxxxxx, President
And Chief Executive Officer
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NOTICE OF EXERCISE
TO: EMPYREAN BIOSCIENCE, INC.
(1) The undersigned hereby elects to purchase ________ shares of the Common
Stock of Empyrean Bioscience, Inc., a Wyoming corporation, pursuant to the
provisions of Article 2 of the attached Warrant, and tenders herewith payment of
the purchase price for such shares in full.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of Common Stock to be issued upon this exercise are
being acquired solely for the account of the undersigned and not as a nominee
for any other party, and for investment, and that the undersigned will not
offer, sell or otherwise dispose of any such shares of Common Stock except under
circumstances that will not result in a violation of the Securities Act of 1933,
as amended, or any applicable state securities laws.
(3) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
Date:
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(Name)
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