Exhibit 10.15
(Form of Warrant Agreement)
APOLLO BIOPHARMACEUTICS, INC.
AND
AMERICAN STOCK TRANSFER AND TRUST COMPANY
WARRANT AGREEMENT
Dated as of March __, 0000
XXXXXXX AGREEMENT, dated the _____ day of March, 1997 (this
"Agreement"), between Apollo BioPharmaceutics, Inc., a Delaware corporation (the
"Company"), and American Stock Transfer and Trust Company, a __________________
corporation, as Warrant Agent (the "Warrant Agent").
W I T N E S E T H:
WHEREAS, in connection with (i) the offering to the public (the
"Public Offering") of up to 1,200,000 shares of the Company's Common Stock
(defined below), $0.02 par value per share, and up to 1,200,000 redeemable
warrants, each such redeemable warrant entitling the registered holder thereof
to purchase one share of Common Stock upon the terms and subject to the
conditions set forth in this Agreement (collectively, the "Redeemable
Warrants"), (ii) the over- allotment option to purchase up to an additional
180,000 shares of Common Stock and up to an additional 180,000 Redeemable
Warrants (the "Over-Allotment Option"), and (iii) the sale to First United
Equities Corporation, its successors and assigns (collectively, the
"Representative") of warrants (the "Representative's Warrants") to purchase up
to 120,000 shares of Common Stock, the Company will issue up to 1,380,000
Redeemable Warrants and up to 120,000 Representative's Warrants (all of such
Redeemable Warrants and Representative's Warrants being hereinafter referred to,
collectively, as the "Warrants" and individually as a "Warrant"); and
WHEREAS, the Company desires to provide for the issuance of
certificates representing the Warrants; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer and exchange of certificates representing the
Warrants and the exercise of the Warrants.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth and for the purpose of defining the terms and
provisions of the Warrants and the certificates representing the Warrants and
the respective rights and obligations thereunder of the Company, the
Representative, the holders of certificates representing the Warrants and the
Warrant Agent, the parties hereto agree as follows:
SECTION 1. Definitions. As used herein, the following terms shall
have the following meanings:
(a) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(b) "Business Day" shall mean any day other than a Saturday or
Sunday on which banks in The City of New York are not authorized or required to
close.
(c) "Change of Shares" shall have the meaning ascribed to it in
Section 8(a)(i).
(d) "Commission" shall mean the Securities and Exchange Commission.
1
(e) "Common Stock" shall mean stock of the Company of any class,
whether now or hereafter authorized, which has the right to participate in the
voting and in the distribution of earnings and assets of the Company without
limit as to amount or percentage.
(f) "Convertible Securities" shall have the meaning ascribed to it
in Section 8(b).
(g) "Corporate Office" shall mean the office of the Warrant Agent
(or its successor) at which at any particular time its principal business in New
York, New York shall be administered, which office is located on the date hereof
at ___________________, New York, New York 100__
(h) "Current Market Price" per share of Common Stock on any date
herein specified shall mean the average of the highest quoted daily closing
prices of the Common Stock for the ten Trading Days preceding such date. The
closing price of the Common Stock on each Trading Day shall be (A) the average
closing bid price for the Common Stock in the over-the-counter market as
reported by the National Association of Securities Dealers Automated Quotation
System or (B) the closing sale price on the primary exchange on which the Common
Stock is traded, if the Common Stock is traded on a national securities
exchange.
(i) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(j) "Exercise Date" shall mean, subject to the provisions of Section
5(b) hereof, as to any Warrant, the date on which the Warrant Agent shall have
received both (i) the Warrant Certificate representing such Warrant, with the
exercise form thereon duly executed by the Registered Holder thereof or his
attorney duly authorized in writing, and (ii) payment in cash or by certified or
bank check made payable to the Company, of the amount in lawful money of the
United States of America equal to the applicable Exercise Price.
(k) "Exercise Price" shall mean the purchase price per share of
Common Stock that must be paid to the Company as a condition precedent to the
exercise of a Warrant, which amount shall initially be, subject to modification
and adjustment as provided in Section 8 hereof, $___ [130% of the initial public
offering price of the Common Stock] and further subject, in either case, to the
Company's right, in its sole discretion, to decrease the Exercise Price for a
period of not less than 30 days on not less than 30 days' prior written notice
to the Registered Holders and the Representative.
(l) "Initial Warrant Exercise Date" shall mean March __, 1997 [the
date of the Prospectus].
(m) "Initial Warrant Redemption Date" shall mean March __, 1998 [12
months from the date of the Prospectus].
(n) "Redemption Date" shall mean with respect to any Redeemable
Warrant, the date on which such Redeemable Warrant will be redeemed, as set
forth in a notice given with respect to such Redeemable Warrants pursuant to
Section 9.
2
(o) "Redemption Price" shall mean $0.25 per Warrant.
(p) "Registered Holder" shall mean the person in whose name any
certificate representing the Warrants shall be registered on the books
maintained by the Warrant Agent pursuant to Section 6 hereof.
(q) "Representative's Warrant Agreement" shall mean the agreement
dated as of March __, 1997 [the settlement date] between the Company and the
Representative relating to and governing the terms and provisions of the
Representative's Warrants.
(r) "Subsidiary" or "Subsidiaries" shall mean any corporation or
corporations, as the case may be, of which stock having ordinary power to elect
a majority of the Board of Directors of such corporation (regardless of whether
or not at the time stock of any other class or classes of such corporation shall
have or may have voting power by reason of the happening of any contingency) is
at the time directly or indirectly owned by the Company or by one or more
Subsidiaries, or by the Company and one or more Subsidiaries.
(s) "Trading Day" shall mean any day other than a Saturday or Sunday
on which the principal market on which Common Stock is traded is open for
trading.
(t) "Transfer Agent" shall mean American Stock Transfer and Trust
Company, New York, New York, or its authorized successor.
(u) "Underwriting Agreement" shall mean the underwriting agreement
dated March __, 1997 [the date of the Prospectus] between the Company and the
Representative, as representative of the several underwriters, relating to the
purchase for resale to the public of shares of Common Stock and Redeemable
Warrants.
(v) "Warrant Agent" shall have the meaning specified in the
introduction.
(w) "Warrant Certificates" shall mean (i) in the case of Redeemable
Warrants, certificates representing each of the Redeemable Warrants
substantially in the form annexed hereto as Exhibit A and (ii) in the case of
Representative's Warrants, certificates representing each of the
Representative's Warrants substantially in form annexed hereto as Exhibit B and
"Warrant Certificate" shall mean any one of them.
(x) "Warrant Expiration Date" shall mean, with respect to the
Redeemable Warrants and the Representative's Warrants, 5:00 p.m. (New York time)
on March __, 2002 [the date which is the fifth anniversary of the Initial
Warrant Exercise Date], or, if such date shall not be a Business Day, then 5:00
p.m. (New York time) on the next following Business Day, subject to the
Company's right, prior to the Warrant Expiration Date, in its sole discretion,
to extend such Warrant Expiration Date on five Business Days' prior written
notice to the Registered Holders.
3
SECTION 2. Warrants and Issuance of Warrant Certificates. (a) One
Warrant shall initially entitle the Registered Holder of the Warrant Certificate
representing such Warrant to purchase at the Exercise Price therefor from the
Initial Warrant Exercise Date until the Warrant Expiration Date, one share of
Common Stock upon the exercise thereof, subject to modification and adjustment
as provided in Section 8 hereof.
(b) Upon execution of this Agreement, Warrant Certificates
representing 1,200,000 Redeemable Warrants to purchase up to an aggregate of
1,200,000 shares of Common Stock (subject to modification and adjustment as
provided in Section 8 hereof) shall be executed by the Company and delivered to
the Warrant Agent.
(c) Upon exercise of the Over-Allotment Option, in whole or in part,
Warrant Certificates representing up to 180,000 Redeemable Warrants to purchase
up to an aggregate of 180,000 shares of Common Stock (subject to modification
and adjustment as provided in Section 8) shall be executed by the Company and
delivered to the Warrant Agent.
(d) On the Initial Warrant Exercise Date, Warrant Certificates
representing 120,000 Representative's Warrants to purchase up to an aggregate of
120,000 shares of Common Stock (subject to modification and adjustment as
provided in Section 8 hereof), shall be countersigned, issued and delivered by
the Warrant Agent upon written order of the Company signed by its Chairman of
the Board, President or a Vice President and by its Treasurer or an Assistant
Treasurer or its Secretary or an Assistant Secretary.
(e) From time to time, up to the Warrant Expiration Date, as the
case may be, the Warrant Agent shall countersign and deliver Warrant
Certificates in required denominations of one or whole number multiples thereof
to the person entitled thereto in connection with any transfer or exchange
permitted under this Agreement. No Warrant Certificates shall be issued except
(i) Warrant Certificates initially issued hereunder, (ii) Warrant Certificates
issued upon any transfer or exchange of Warrants, (iii) Warrant Certificates
issued in replacement of lost, stolen, destroyed or mutilated Warrant
Certificates pursuant to Section 7 hereof, (iv) Warrant Certificates issued
pursuant to the Representative's Warrant Agreement, and (v) at the option of the
Company, Warrant Certificates in such form as may be approved by its Board of
Directors, to reflect any adjustment or change in the Exercise Price, the number
of shares of Common Stock purchasable upon exercise of the Warrants or the
Redemption Price therefor made pursuant to Section 8 hereof.
SECTION 3. Form and Execution of Warrant Certificates. (a) The
Warrant Certificates representing Redeemable Warrants shall be substantially in
the form annexed hereto as Exhibit A (the provisions of which are hereby
incorporated herein) and the Warrant Certificates representing the
Representative's Warrants shall be substantially in the form annexed hereto as
Exhibit B (the provisions of which are hereby incorporated herein). All of such
Warrant Certificates may have such letters, numbers or other marks of
identification or designation and such legends, summaries or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrants may be listed, or to conform to usage. The Warrant Certificates shall
be dated the date
4
of issuance thereof (whether upon initial issuance, transfer, exchange or in
lieu of mutilated, lost, stolen or destroyed Warrant Certificates).
(b) Warrant Certificates shall be executed on behalf of the Company
by its Chairman of the Board, President or any Vice President and by its
Treasurer or an Assistant Treasurer or its Secretary or an Assistant Secretary,
by manual signatures or by facsimile signatures printed thereon, and shall have
imprinted thereon a facsimile of the Company's seal. Warrant Certificates shall
be manually countersigned by the Warrant Agent and shall not be valid for any
purpose unless so countersigned. In case any officer of the Company who shall
have signed any of the Warrant Certificates shall cease to be such officer of
the Company before the date of issuance of the Warrant Certificates or before
countersignature by the Warrant Agent and issue and delivery thereof, such
Warrant Certificates, nevertheless, may be countersigned by the Warrant Agent,
issued and delivered with the same force and effect as though the person who
signed such Warrant Certificates had not ceased to be such officer of the
Company.
SECTION 4. Exercise. (a) Warrants in denominations of one or whole
number multiples thereof may be exercised commencing at any time on or after the
Initial Warrant Exercise Date, but not after the Warrant Expiration Date, upon
the terms and subject to the conditions set forth herein (including the
provisions set forth in Sections 5 and 9 hereof) and in the applicable Warrant
Certificate. A Warrant shall be deemed to have been exercised immediately prior
to the close of business on the Exercise Date, provided that the Warrant
Certificate representing such Warrant, with the exercise form thereon duly
executed by the Registered Holder thereof or his attorney duly authorized in
writing, together with payment in cash or by certified or bank check made
payable to the Company, of an amount in lawful money of the United States of
America equal to the applicable Exercise Price has been received in good funds
by the Warrant Agent. The person entitled to receive the securities deliverable
upon such exercise shall be treated for all purposes as the holder of such
securities as of the close of business on the Exercise Date. If Warrants in
denominations other than one or whole number multiples thereof shall be
exercised at one time by the same Registered Holder, the number of full shares
of Common Stock which shall be issuable upon exercise thereof shall be computed
on the basis of the aggregate number of full shares of Common Stock issuable
upon such exercise. As soon as practicable on or after the Exercise Date and in
any event within five Business Days after such date, if one or more Warrants
have been exercised, the Warrant Agent on behalf of the Company shall cause to
be issued to the person or persons entitled to receive the same a Common Stock
certificate or certificates for the shares of Common Stock deliverable upon such
exercise, and the Warrant Agent shall deliver the same to the person or persons
entitled thereto. Upon the exercise of any one or more Warrants, the Warrant
Agent shall promptly notify the Company in writing of such fact and of the
number of securities delivered upon such exercise and, subject to subsection (b)
below, shall cause all payments of an amount, in cash or by check made payable
to the order of the Company, equal to the Exercise Price for such Warrants less
any amount payable to the Representative under Section 4(b) below, to be
deposited promptly in the Company's bank account.
(b) At any time upon the exercise of any one or more Redeemable
Warrants, the Warrant Agent shall, on a daily basis, within five Business Days
after such exercise, notify the Representative, its successors or assigns of the
exercise of any such Redeemable Warrants and shall, on a weekly basis (subject
to collection of funds constituting the tendered Exercise Price,
5
but in no event later than five Business Days after the last day of the calendar
week in which such funds were tendered), remit to the Representative an amount
equal to five percent of the Exercise Price of such Redeemable Warrants being
then exercised; provided, however, that the Warrant Agent shall not be obligated
to pay any amounts pursuant to this Section 4(b) during any week that such
amounts payable are less than $1,000 and the Warrant Agent's obligation to make
such payments to the Representative shall be suspended until the amount payable
aggregates $1,000; and provided, further, that, in any event, any such payment
(regardless of amount) shall be made not less frequently than monthly; and
provided, further, that such remittance to the Representative shall not be made
with respect to any exercise of any Redeemable Warrant (i) that has an Exercise
Price greater than the Current Market Price on the date of exercise, (ii) if
such Redeemable Warrant is held in a discretionary account at the time of
exercise and prior specific approval for exercise is not received from the
Registered Holder thereof, or (iii) if the exercise of such Redeemable Warrant
was not solicited by the Representative.
(c) The Company shall not be obligated to issue any fractional share
interests or fractional warrant interests upon the exercise of any Warrant or
Warrants, but instead shall pay cash in lieu of fractional interests based upon
the current market value of any fractional shares.
(d) The Warrant Agent shall retain for a period of two years from
the date of exercise any Warrant Certificate received by it upon such exercise.
SECTION 5. Reservation of Shares; Listing; Payment of Taxes; etc.
(a) The Company covenants that it will at all times reserve and keep available
out of its authorized Common Stock, solely for the purpose of issue upon
exercise of Warrants, such number of shares of Common Stock as shall then be
issuable upon the exercise of all outstanding Warrants. The Company covenants
that all shares of Common Stock which shall be issuable upon exercise of the
Warrants shall, at the time of delivery thereof against payment of the Exercise
Price therefor, be duly and validly issued and fully paid and nonassessable and
free from all preemptive or similar rights, taxes, liens and charges with
respect to the issue thereof, and that upon issuance such shares shall be listed
on each securities exchange or approved for quotation on any automated quotation
system, if any, on which the other shares of outstanding Common Stock of the
Company are then listed or quoted.
(b) The Company covenants that if any securities to be reserved for
the purpose of exercise of Warrants hereunder require registration with, or
approval of, any governmental authority under any federal securities law before
such securities may be validly issued or delivered upon such exercise, then the
Company shall file a registration statement under the federal securities laws or
a post-effective amendment, use its reasonable efforts to cause the same to
become or remain effective and to keep such registration statement current while
any of the Warrants are outstanding, and deliver a prospectus which complies
with Section 10(a)(3) of the Securities Act, to the Registered Holder exercising
the Warrant (except, if in the opinion of counsel to the Company, such
registration is not required under the federal securities law or if the Company
receives a letter from the staff of the Commission stating that it would not
take any enforcement action if such registration is not effected). The Company
will use its reasonable efforts to obtain appropriate approvals or registrations
under state "blue sky" securities laws for the purpose of enabling the exercise
of the Warrants, provided, that the Company shall not be required to qualify as
a foreign corporation or file a general or limited consent to service of
6
process in any such jurisdiction, or to make any changes in its capital
structure or in any other material aspect of its business or to enter into any
material agreement with any state securities authority, including any agreements
to escrow any shares of its capital stock. With respect to any such securities,
however, Warrants may not be exercised by, or shares of Common Stock issued to,
any Registered Holder in any state in which such exercise would be unlawful.
(c) The Company shall pay all documentary, stamp or similar taxes
and other governmental charges that may be imposed with respect to the issuance
of Warrants, or the issuance or delivery of any shares of Common Stock upon
exercise of the Warrants; provided, however, that if shares of Common Stock are
to be delivered in a name other than the name of the Registered Holder of the
Warrant Certificate representing any Warrant being exercised, then no such
delivery shall be made unless the person requesting the same has paid to the
Warrant Agent the amount of transfer taxes or charges incident thereto, if any.
(d) The Warrant Agent is hereby irrevocably authorized as the
Transfer Agent to requisition from time to time certificates representing shares
of Common Stock or other securities required upon exercise of the Warrants, and
the Company will comply with all such requisitions.
(e) Prior to the exercise of any Warrant, the Registered Holder
thereof, as such, shall not be entitled to any rights of a stockholder of the
Company, including without limitation the right to vote or to receive dividends
or other distributions, and shall not be entitled to receive any notice of
proceedings of the Company except as required by applicable law or provided
herein, in the Representative's Warrant Agreement, and the Underwriting
Agreement.
SECTION 6. Exchange and Registration of Transfer. (a) Warrant
Certificates may be exchanged for other Warrant Certificates representing an
equal aggregate number of Warrants or may be transferred in whole or in part.
Warrant Certificates to be so exchanged shall be surrendered to the Warrant
Agent at its Corporate Office, and the Company shall execute and the Warrant
Agent shall countersign, issue and deliver in exchange therefor the Warrant
Certificate or Certificates which the Registered Holder making the exchange
shall be entitled to receive.
(b) The Warrant Agent shall keep, at such office, books in which,
subject to such reasonable regulations as it may prescribe, it shall register
Warrant Certificates and the transfer thereof. Upon due presentment for
registration of transfer of any Warrant Certificate at such office, the Company
shall execute and the Warrant Agent shall issue and deliver to the transferee or
transferees a new Warrant Certificate or Certificates representing an equal
aggregate number of Warrants.
(c) With respect to any Warrant Certificates presented for
registration of transfer, or for exchange or exercise, the assignment or
exercise form, as the case may be, on the reverse thereof shall be duly endorsed
or be accompanied by a written instrument or instruments of transfer and
subscription, in form satisfactory to the Company and the Warrant Agent, duly
executed by the Registered Holder thereof or the Registered Holder's agent duly
authorized in writing.
7
(d) No service charge shall be made for any exchange or registration
of transfer of Warrant Certificates. However, the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith.
(e) All Warrant Certificates surrendered for exercise or for
exchange shall be promptly cancelled by the Warrant Agent.
(f) Prior to due presentment for registration or transfer thereof,
the Company and the Warrant Agent may deem and treat the Registered Holder of
any Warrant Certificate as the absolute owner thereof of each Warrant
represented thereby (notwithstanding any notations of ownership or writing
thereon made) for all purposes and shall not be affected by any notice to the
contrary.
SECTION 7. Loss or Mutilation. Upon receipt by the Company and the
Warrant Agent of evidence satisfactory to them of the ownership of and the loss,
theft, destruction or mutilation of any Warrant Certificate and (in the case of
loss, theft or destruction) of indemnity satisfactory to them, and (in case of
mutilation) upon surrender and cancellation thereof, the Company shall execute
and the Warrant Agent shall countersign and deliver in lieu thereof a new
Warrant Certificate representing an equal number of Warrants. Applicants for a
substitute Warrant Certificate shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Warrant Agent may
prescribe.
SECTION 8. Adjustment of Purchase Price and Number of Shares of
Common Stock. (a) In case the Company shall at any time subdivide or combine the
outstanding shares of Common Stock, the Exercise price shall forthwith be
proportionately decreased in the case of a subdivision or increased in the case
of a combination.
(b) In case the Company shall pay a dividend in, or make a
distribution of, shares of Common Stock or of the Company's capital stock
convertible into shares of Common Stock, the Exercise price shall forthwith be
proportionately decreased. An adjustment made purusant to this Section 8(b)
shall be made as of the record date for the subject stock dividend or
distribution.
(c) In case of any reclassification or change of outstanding shares
of Common Stock issuable upon exercise of the Warrants (other than a change in
par value, or from par value to no par value, or from no par value to par value
or as a result of a subdivision or combination), or in case of any consolidation
or merger of the Company with or into another corporation (other than a merger
in which the Company is the continuing corporation and which does not result in
any reclassification or change of the then outstanding shares of Common Stock or
other capital stock issuable upon exercise of the Warrants (other than a change
in par value, or from par value to no par value, or from no par value to par
value or as a result of subdivision or combination)) or in case of any sale or
conveyance to another corporation of all or substantially all of the assets or
property of the Company that is effected in such a way that holders of the
securities issuable upon exercise of the Warrants shall be entitled to receive
securities or other property with respect to or in exchange for the securities
issuable upon exercise of the Warrants, then, as a condition of such
reclassification, change, consolidation, merger, sale or conveyance, the
Company, or such successor or purchasing corporation, as the case may be, shall
make lawful and adequate
8
provision whereby the Registered Holder of each Warrant then outstanding shall
have the right thereafter to receive on exercise of such Warrant the kind and
amount of securities and property receivable upon such reclassification, change,
consolidation, merger, sale or conveyance, by a holder of the number of
securities issuable upon exercise of such Warrant immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance and shall
forthwith file at the Corporate Office of the Warrant Agent a statement signed
by its President or a Vice President and by its Treasurer or an Assistant
Treasurer or its Secretary or an Assistant Secretary evidencing such provision.
The above provisions of this Section 8(c) shall similarly apply to successive
reclassifications and changes of shares of Common Stock and to successive
consolidations, mergers, sales or conveyances.
(d) Irrespective of any adjustments or changes in the Exercise Price
or the number of shares of Common Stock purchasable upon exercise of the
Warrants, the Warrant Certificates theretofore and thereafter issued shall,
unless the Company shall exercise its option to issue new Warrant Certificates
pursuant to Section 2(e) hereof, continue to express the Exercise Price per
share and the number of shares purchasable thereunder as the Exercise Price per
share and the number of shares purchasable thereunder were expressed in the
Warrant Certificates when the same were originally issued.
(e) After each adjustment of the Exercise Price pursuant to this
Section 8, the Company will promptly prepare a certificate signed by the
Chairman or President, and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary, of the Company setting forth: (i) the
Exercise Price as so adjusted, (ii) the number of shares of Common Stock
purchasable upon exercise of each Warrant, after such adjustment, and (iii) a
brief statement of the facts accounting for such adjustment. The Company will
promptly file such certificate with the Warrant Agent and cause a brief summary
thereof to be sent by ordinary first class mail to each Registered Holder at his
last address as it shall appear on the registry books of the Warrant Agent. No
failure to mail such notice nor any defect therein or in the mailing thereof
shall affect the validity thereof except as to the holder to whom the Company
failed to mail such notice, or except as to the holder whose notice was
defective. The affidavit of an officer of the Warrant Agent or the Secretary or
an Assistant Secretary of the Company that such notice has been mailed shall, in
the absence of fraud, be prima facie evidence of the facts stated therein.
(f) Warrantholders shall not be entitled to cash dividends paid by
the Company prior to the exercise of any Warrant or Warrants held by them.
SECTION 9. Redemption.
(a) Commencing on the Initial Warrant Redemption Date, the Company
may, on not less than 30 days' prior written notice (which may be given before
the Initial Warrant Redemption Date) redeem all or a portion (pro rata among all
Registered Holders) of the Warrants at the Redemption Price, provided, however,
that before any such call for redemption of Warrants can take place, (A) the
average closing bid price for the Common Stock in the over-the-counter market as
reported by the National Association of Securities Dealers Automated Quotation
System or (B) the closing sale price on the primary exchange on which the Common
Stock is traded, if the Common Stock is traded on a national securities
exchange, shall have for 20 consecutive Trading Days ending within ten days
prior to the date on which the notice
9
contemplated by (b) and (c) below is given, equaled or exceeded $_____ [200% of
the initial public offering price of the Common Stock] per share (subject to
adjustment in the event of any stock splits or other similar events as provide
in Section 8 hereof); provided, further that so long as any Representative's
Warrants shall be held by the Representative or an affiliate of the
Representative, the Company may not redeem such Representative's Warrants.
(b) If the Company shall exercise its right to redeem any or all of
the Warrants, it shall give or cause to be given notice to the Registered
Holders of the Warrants, by mailing to such Registered Holders a notice of
redemption, first class, postage prepaid, at their last address as shall appear
on the records of the Warrant Agent. Any notice mailed in the manner provided
herein shall be conclusively presumed to have been duly given in accordance with
Section 12 whether or not the Registered Holder receives such notice. Not less
than five Business Days prior to the mailing to the Registered Holders of the
Warrants of the notice of redemption, the Company shall deliver or cause to be
delivered to the Representative a similar notice telephonically and confirmed in
writing together with a list of the Registered Holders (including their
respective addresses and number of Warrants beneficially owned) to whom such
notice of redemption has been or will be given and the number of Warrants to be
redeemed from each such Registered Holder.
(c) The notice of redemption shall specify (i) the Redemption Price,
(ii) the date fixed for redemption, which shall in no event be less then thirty
(30) days after the date of mailing of such notice, (iii) the number of Warrants
to be redeemed from the recipient Registered Holder, (iv) the place where the
Warrant Certificate shall be delivered and the Redemption Price shall be paid,
and (v) that the right to exercise the Warrants to which the notice of
redemption applies shall terminate at 5:00 p.m. (New York time) on the Business
Day immediately preceding the date fixed for redemption. No failure to mail such
notice nor any defect therein or in the mailing thereof shall affect the
validity of the proceedings for such redemption except as to a Registered Holder
(a) to whom notice was not mailed or (b) whose notice was defective. An
affidavit of the Warrant Agent or the Secretary or Assistant Secretary of the
Company that notice of redemption has been mailed shall, in the absence of
fraud, be prima facie evidence of the facts stated therein.
(d) Any right to exercise a Warrant shall terminate at 5:00 p.m.
(New York time) on the Business Day immediately preceding the Redemption Date
fixed for such Warrant. The Redemption Price payable to the Registered Holders
shall be mailed to such persons at their addresses of record.
(e) The Company shall indemnify the Representative and each person,
if any, who controls the Representative within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act against all loss, claim,
damage, expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which any
of them may become subject under the Securities Act, the Exchange Act or
otherwise, arising from the registration statement or prospectus referred to in
Section 5(b) hereof to the same extent and with the same effect (including the
provisions regarding contribution) as the provisions pursuant to which the
Company has agreed to indemnify the Representative contained in Section 7 of the
Underwriting Agreement.
10
(f) If and to the extent reasonably requested by the Representative,
five Business Days prior to the Redemption Date, the Company shall furnish to
the Representative (i) an opinion of counsel to the Company, dated such date and
addressed to the Representative, and (ii) a "cold comfort" letter dated such
date addressed to the Representative, signed by the independent public
accountants who have issued a report on the Company's financial statements
included in the registration statement, if any, of the Company in connection
with such redemption, in each case covering substantially the same matters with
respect to such registration statement (and the prospectus included therein)
and, in the case of such accountants' letter, with respect to events subsequent
to the date of such financial statements, as are customarily covered in opinions
of issuer's counsel and in accountants' letters delivered to underwriters in
underwritten public offerings of securities, including, without limitation,
those matters covered in Sections 6(k) and (l) of the Underwriting Agreement.
(g) The Company shall as soon as practicable after the Redemption
Date, and in any event within 15 months thereafter, make "generally available to
its security holders" (within the meaning of Rule 158 under the Securities Act)
an earnings statement (which need not be audited) complying with Section 11(a)
of the Securities Act and covering a period of at least 12 consecutive months
beginning after the Redemption Date.
SECTION 10. Concerning the Warrant Agent. (a) The Warrant Agent acts
hereunder as agent and in a ministerial capacity for the Company, and its duties
shall be determined solely by the provisions hereof. The Warrant Agent shall
not, by issuing and delivering Warrant Certificates or by any other act
hereunder, be deemed to make any representations as to the validity or value or
authorization of the Warrant Certificates or the Warrants represented thereby or
of any securities or other property delivered upon exercise of any Warrant or
whether any stock issued upon exercise of any Warrant is fully paid and
nonassessable.
(b) The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of Warrant Certificates to make or cause to be made
any adjustment of the Exercise Price provided in this Agreement, or to determine
whether any fact exists which may require any such adjustment, or with respect
to the nature or extent of any such adjustment, when made, or with respect to
the method employed in making the same. It shall not (i) be liable for any
recital or statement of fact contained herein or for any action taken, suffered
or omitted by it in reliance on any Warrant Certificate or other document or
instrument believed by it in good faith to be genuine and to have been signed or
presented by the proper party or parties, (ii) be responsible for any failure on
the part of the Company to comply with any of its covenants and obligations
contained in this Agreement or in any Warrant Certificate, or (iii) be liable
for any act or omission in connection with this Agreement except for its own
gross negligence, bad faith or willful misconduct.
(c) The Warrant Agent may at any time consult with counsel
satisfactory to it (who may be counsel for the Company) and shall incur no
liability or responsibility for any action taken, suffered or omitted by it in
good faith in accordance with the opinion or advice of such counsel.
11
(d) Any notice, statement, instruction, request, direction, order or
demand of the Company shall be sufficiently evidenced by an instrument signed by
the Chairman of the Board of Directors, President, any Vice President, or the
Treasurer (unless other evidence in respect thereof is herein specifically
prescribed). The Warrant Agent shall not be liable for any action taken,
suffered or omitted by it in accordance with such notice, statement,
instruction, request, direction, order or demand.
(e) The Company has agreed in a separate agreement to pay the
Warrant Agent reasonable compensation or its services hereunder and to reimburse
it for its reasonable expenses hereunder. The Company further agrees to
indemnify the Warrant Agent and save it harmless against any and all losses,
expenses and liabilities, including judgments, costs and counsel fees, for
anything done or omitted by the Warrant Agent in the execution of its duties and
powers hereunder except losses, expenses and liabilities arising as a result of
the Warrant Agent's gross negligence, bad faith or willful misconduct.
(f) The Warrant Agent may resign its duties and be discharged from
all further duties and liabilities hereunder (except liabilities arising as a
result of the Warrant Agent's own gross negligence, bad faith or willful
misconduct), after giving 30 days' prior written notice to the Company. At least
15 days prior to the date such resignation is to become effective, the Warrant
Agent shall cause a copy of such notice of resignation to be mailed to the
Registered Holder of each Warrant Certificate at the Company's expense. Upon
such resignation the Company shall appoint in writing a successor Warrant Agent.
If the Company shall fail to make such appointment within a period of 30 days
after it has been notified in writing of such resignation by the resigning
Warrant Agent, then the Registered Holder of any Warrant Certificate may apply
to any court of competent jurisdiction for the appointment of a successor
Warrant Agent. Any successor Warrant Agent, whether appointed by the Company or
by such a court, shall be a bond or trust company having a capital and surplus,
as shown by its last published report to its stockholders, of not less than
$10,000,000 or a stock transfer company doing business in New York, New York.
After acceptance in writing of such appointment by the successor Warrant Agent
is received by the Company, such successor Warrant Agent shall be vested with
the same powers, rights, duties and responsibilities as if it had been
originally named herein as the Warrant Agent, without any further assurance,
conveyance, act or deed; but if for any reason it shall be necessary or
expedient to execute and deliver any further assurance, conveyance, act or deed,
the same shall be done at the expense of the Company and shall be legally and
validly executed and delivered by the resigning Warrant Agent. Not later than
the effective date of any such appointment the Company shall file notice thereof
with the resigning Warrant Agent and shall forthwith cause a copy of such notice
to be mailed to the Registered Holder of each Warrant Certificate.
(g) Any corporation into which the Warrant Agent may be converted or
merged, any corporation resulting from any consolidation to which the Warrant
Agent shall be a party, or any corporation succeeding to the corporate trust
business of the Warrant Agent shall be the Warrant Agent under this Agreement
without any further act, provided that such corporation is eligible for
appointment as successor to the Warrant Agent under the provisions of the
preceding paragraph. Any such successor Warrant Agent shall promptly cause
notice of its succession, and a written consent agreeing to act hereunder, as
Warrant Agent to be mailed to the Company and to the Registered Holders of each
Warrant Certificate.
12
(h) The Warrant Agent, its subsidiaries and affiliates, and any of
its or their officers or directors, may buy and hold or sell Warrants or other
securities of the Company and otherwise deal with the Company in the same manner
and to the same extent and with like effect as though it were not Warrant Agent.
Nothing herein shall preclude the Warrant Agent from acting in any other
capacity for the Company or any other legal entity.
SECTION 11. Modification of Agreement. The Warrant Agent and the
Company may by supplemental agreement make any changes or corrections in this
Agreement (i) that they shall deem appropriate to cure any ambiguity or to
correct any defective or inconsistent provision or manifest mistake or error
herein contained; or (ii) that they may deem necessary or desirable and which
shall not adversely affect the interest of the holders of Warrant Certificates;
provided, however, that this Agreement shall not otherwise be modified,
supplemented or altered in any respect except with the consent in writing of the
Registered Holders representing not less than two- thirds of the Warrants then
outstanding; provided, further, that no change in the number or nature of the
securities purchasable upon the exercise of any Warrant, or to increase the
Exercise Price therefor, shall be made without the consent in writing of the
Registered Holders representing not less than two-thirds of the Warrants then
outstanding, other than such changes as are presently specifically prescribed by
this Agreement as originally executed.
SECTION 12. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
made when delivered or mailed first- class postage prepaid, or delivered to a
telegraph office for transmission, if to the Registered Holder of a Warrant
Certificate, at the address of such holder as shown on the registry books
maintained by the Warrant Agent; if to the Company, at One Xxxxxxx Square,
Building 200, Suite 2200, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Vice
President of Finance, Chief Financial Officer and Treasurer, or at such other
address as may have been furnished to the Warrant Agent in writing by the
Company; and if to the Warrant Agent, at its Corporate Office. Copies of an
notice delivered to the Representative pursuant to this Agreement shall be
delivered to First United Equities Corporation 000 Xxxxxx Xxxx Xxxxx, Xxxxx 000,
Xxxxxx Xxxx, Xxx Xxxx, 00000, Attention _________, or at such other address as
may have been furnished to the Company and the Warrant Agent in writing.
SECTION 13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 14. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Company, the Warrant Agent and their respective
successors and assigns and the Registered Holders from time to time of Warrant
Certificates or any of them. Except as hereinafter stated, nothing in this
Agreement is intended or shall be construed to confer upon any other person any
right, remedy or claim or to impose upon any other person any duty, liability or
obligation. The Representative is, and shall at all times irrevocably be deemed
to be, a third-party beneficiary of this Agreement, with full power, authority
and standing to enforce the rights granted to it hereunder.
SECTION 15. Counterparts. This Agreement may be executed in several
counterparts each with the same effect. Any single counterpart or set of
counterparts signed, in either case, by all the parties shall constitute a full
and original document for all purposes.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
[SEAL]
APOLLO BIOPHARMACEUTICS, INC. AMERICAN STOCK TRANSFER AND
TRUST COMPANY
By:________________________________ By:___________________________________
Name: Name:
Title: Title:
14
EXHIBIT A
No. W_____ VOID AFTER MARCH__, 2002
______________ WARRANTS
REDEEMABLE WARRANT CERTIFICATE TO
PURCHASE COMMON STOCK
_____________________________
CUSIP___
THIS CERTIFIES THAT, FOR VALUE RECEIVED
or registered assigns (the "Registered Holder") is the owner of the number of
Redeemable Warrants (the "Warrants") specified above. Each Warrant initially
entitles the Registered Holder to purchase, subject to the terms and conditions
set forth in this Certificate and the Warrant Agreement (as hereinafter
defined), one fully paid and nonassessable share of Common Stock, $0.02 par
value, of Apollo BioPharmaceutics, Inc., a Delaware corporation (the "Company"),
at any time from March __, 1997 [the date of the Prospectus] (the "Initial
Warrant Exercise Date"), and prior to the Expiration Date (as hereinafter
defined), upon the presentation and surrender of this Warrant Certificate with
the Exercise Form on the reverse hereof duly executed, at the corporate office
of American Stock Transfer and Trust Company, as Warrant Agent, or its successor
(the "Warrant Agent"), accompanied by payment of $_____, [130% of the initial
public offering price of the Common Stock] subject to adjustment (the "Exercise
Price"), in lawful money of the United States of America in cash or by certified
or bank check made payable to the Company.
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 March __,
1997 [date of the Prospectus], by and between the Company and the Warrant Agent.
In the event of certain contingencies provided for in the Warrant
Agreement, the Exercise Price and the number of shares of Common Stock subject
to purchase upon the exercise of each Warrant represented hereby are subject to
modification or adjustment.
Each Warrant represented hereby is exercisable at the option of the
Registered Holder, but no fractional interests will be issued. In the case of
the exercise of less than all the Warrants represented hereby, the Company shall
cancel this Warrant Certificate upon the
1
surrender hereof and shall execute and deliver a new Warrant Certificate or
Warrant Certificates of like tenor, which the Warrant Agent shall countersign,
for the balance of such Warrants.
The term "Expiration Date" shall mean 5:00 p.m. (New York time) on
March __, 2002 [the date which is the fifth anniversary of the Initial Warrant
Exercise Date]. If such date shall in The City of New York be a Saturday or
Sunday or a day on which banks are authorized or required to close (a "Business
Day"), then the Expiration Date shall mean 5:00 p.m. (New York time) the next
following Business Day.
The Company shall not be obligated to deliver any securities
pursuant to the exercise of this Warrant unless a registration statement under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
such securities is effective or unless, in the opinion of counsel to the
Company, an exemption thereunder is available. The Company has covenanted and
agreed that if any securities to be reserved for the purpose of exercise of the
Warrants represented hereby require registration with, or approval of, any
governmental authority under any federal securities law before such securities
may be validly issued or delivered upon such exercise, then the Company will
file a registration statement under the federal securities laws or a
post-effective amendment, use its reasonable efforts to cause the same to become
or remain effective and to keep such registration statement current while any of
the Warrants are outstanding, and deliver a prospectus that complies with
Section 10(a)(3) of the Securities Act to the Registered Holder exercising this
Warrant. This Warrant shall not be exercisable by a Registered Holder in any
state where such exercise would be unlawful.
This Warrant Certificate is exchangeable, upon the surrender hereof
by the Registered Holder at the corporate office of the Warrant Agent, for a new
Warrant Certificate or Warrant Certificates of like tenor representing an equal
aggregate number of Warrants, each of such new Warrant Certificates to represent
such number of Warrants as shall be designated by such Registered Holder at the
time of such surrender. Upon the presentment and payment of any tax or other
charge imposed in connection therewith or incident thereto, for registration of
transfer of this Warrant Certificate at such office, a new Warrant Certificate
or Warrant Certificates representing an equal aggregate number of Warrants will
be issued to the transferee in exchange therefor, subject to the limitations
provided in the Warrant Agreement.
Prior to the exercise of any Warrant represented hereby, the
Registered Holder, as such, shall not be entitled to any rights of a stockholder
of the Company, including, without limitation, the right to vote or to receive
dividends or other distributions, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided in the Warrant
Agreement.
Subject to the provisions of the Warrant Agreement, this Warrant may
be redeemed at the option of the Company, at a redemption price of $0.25 per
Warrant, at any time commencing after the Initial Warrant Exercise Date,
provided that (i) the average closing bid price for the Company's Common Stock
in the over-the-counter market as reported by the National Association of
Securities Dealers Automated Quotation System, or (ii) the closing sale price on
the primary exchange on which the Common Stock is traded, if the Common Stock is
traded on a national securities exchange, shall have for 20 consecutive days on
which such market is open for trading ending within ten days prior to the Notice
of Redemption, as defined below,
2
equaled or exceeded $_____ [200% of the initial public offering price of Common
Stock] per share (subject to adjustment in the event of any stock splits or
other similar events). Notice of redemption (the "Notice of Redemption") shall
be given by the Company not later than the thirtieth day before the date fixed
for redemption, all as provided in the Warrant Agreement. On and after the date
fixed for redemption, the Registered Holder shall have no right with respect to
this Warrant except to receive the $0.25 per Warrant upon surrender of this
Certificate.
Under certain circumstances described in the Warrant Agreement,
First United Equities Corporation shall be entitled to receive as a solicitation
fee an aggregate of five percent (5%) of the Exercise Price of the Warrants
represented hereby.
Prior to due presentment for registration of transfer hereof, the
Company and the Warrant Agent may deem and treat the Registered Holder as the
absolute owner hereof and of each Warrant represented hereby (notwithstanding
any notations of ownership or writing hereon made by anyone other than a duly
authorized officer of the Company or the Warrant Agent) for all purposes and
shall not be affected by any notice to the contrary, except as provided in the
Warrant Agreement.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of New York.
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 hereon.
Dated March __, 1997
SEAL APOLLO BIOPHARMACEUTICS, INC.
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
3
COUNTERSIGNED:
AMERICAN STOCK TRANSFER
AND TRUST COMPANY
as Warrant Agent
By: ___________________________
Authorized Officer
4
EXERCISE FORM
To Be Executed by the Registered Holder
in Order to Exercise Warrant
The undersigned Registered Holder hereby irrevocably elects to
exercise __________ Warrants represented by this Warrant Certificate, and to
purchase the securities issuable upon the exercise of such Warrants, and
requests that certificates for such securities shall be issued in name of
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
______________________
______________________
______________________
______________________
(please print or type name and address)
and be delivered to
______________________
______________________
______________________
______________________
(please print or type name and address)
and if such number of Warrants shall not be all the Warrants evidenced by this
Warrant Certificate, that a new Warrant Certificate for the balance of such
Warrants be registered in the name of, and delivered to, the Registered Holder
at the address stated below.
5
IMPORTANT: PLEASE COMPLETE THE FOLLOWING:
1. The exercise of this Warrant was solicited by First
United Equities Corporation unless the following box is
checked.
2. The exercise of this Warrant was solicited by
3. If the exercise of this Warrant was not solicited,
please check the following box.
Dated:________________________ X_____________________________
______________________________
______________________________
Address
______________________________
Social Security or Taxpayer
Identification Number
______________________________
Signature Guaranteed
6
ASSIGNMENT
To Be Executed by the Registered Holder
in Order to Assign Warrants
FOR VALUE RECEIVED, ________________, hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
______________________
______________________
______________________
______________________
(please print or type name and address)
____________ of the Warrants represented by this Warrant Certificate, and hereby
irrevocably constitutes and appoints _____________________________ as
its/his/her attorney-in-fact to transfer this Warrant Certificate on the books
of the Company, with full power of substitution in the premises.
Dated:________________________ X_____________________________
Signature Guaranteed
THE SIGNATURE TO THE ASSIGNMENT OR THE EXERCISE FORM MUST CORRESPOND TO THE NAME
AS WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION ON OR ENLARGEMENT OR ANY CHANGE WHATSOEVER AND MUST BE
GUARANTEED BY A BANK, BROKER, DEALER, CREDIT UNION, SAVINGS ASSOCIATION OR OTHER
ENTITY WHICH IS A MEMBER IN GOOD STANDING OF THE SECURITIES TRANSFER AGENTS
MEDALLION PROGRAM.
7
EXHIBIT B
No. W_____ VOID AFTER MARCH __, 2002
______________ WARRANTS
WARRANT CERTIFICATE TO
PURCHASE COMMON STOCK
_________________________
CUSIP____
THIS CERTIFIES THAT, FOR VALUE RECEIVED
or registered assigns (the "Registered Holder") is the owner of the number of
Warrants (the "Warrants") specified above. Each Warrant initially entitles the
Registered Holder to purchase, subject to the terms and conditions set forth in
this Certificate and the Warrant Agreement (as hereinafter defined), one fully
paid and nonassessable share of Common Stock, $0.02 par value, of Apollo
BioPharmaceutics, Inc., a Delaware corporation (the "Company"), at any time from
March __, 1997 [the date of the Prospectus] (the "Initial Warrant Exercise
Date"), and prior to the Expiration Date (as hereinafter defined), upon the
presentation and surrender of this Warrant Certificate with the Exercise Form on
the reverse hereof duly executed, at the corporate office of American Stock
Transfer and Trust Company, as Warrant Agent, or its successor (the "Warrant
Agent"), accompanied by payment of $_____, [130% of the initial public offering
price of the Common Stock] subject to adjustment (the "Exercise Price"), in
lawful money of the United States of America in cash or by certified or bank
check made payable to the Company.
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 March __,
1997 [date of the Prospectus], by and between the Company and the Warrant Agent.
This Warrant Certificate is being issued upon exercise of certain
Representative's Warrants issued by the Company and dated as of March __, 1997.
In the event of certain contingencies provided for in the Warrant
Agreement, the Exercise Price and the number of shares of Common Stock subject
to purchase upon the exercise of each Warrant represented hereby are subject to
modification or adjustment.
Each Warrant represented hereby is exercisable at the option of the
Registered Holder, but no fractional interests will be issued. In the case of
the exercise of less than all the Warrants represented hereby, the Company shall
cancel this Warrant Certificate upon the
1
surrender hereof and shall execute and deliver a new Warrant Certificate or
Warrant Certificates of like tenor, which the Warrant Agent shall countersign,
for the balance of such Warrants.
The term "Expiration Date" shall mean 5:00 p.m. (New York time) on
March ___, 2002 [the date which is the fifth anniversary of the Initial Warrant
Exercise Date]. If such date shall in the City of New York be a Saturday or
Sunday or a day on which banks are authorized or required to close (a "Business
Day"), then the Expiration Date shall mean 5:00 p.m. (New York time) the next
following Business Day.
The Company shall not be obligated to deliver any securities
pursuant to the exercise of this Warrant unless a registration statement under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
such securities is effective or unless, in the opinion of counsel to the
Company, an exemption thereunder is available. The Company has covenanted and
agreed that if any securities to be reserved for the purpose of exercise of the
Warrants represented hereby require registration with, or approval of, any
governmental authority under any federal securities law before such securities
may be validly issued or delivered upon such exercise, then the Company will
file a registration statement under the federal securities laws or a
post-effective amendment, use its best efforts to cause the same to become or
remain effective and to keep such registration statement current while any of
the Warrants are outstanding and deliver a prospectus that complies with Section
10(a)(3) of the Securities Act to the Registered Holder exercising this Warrant.
This Warrant shall not be exercisable by a Registered Holder in any state where
such exercise would be unlawful.
This Warrant Certificate is exchangeable, upon the surrender hereof
by the Registered Holder at the corporate office of the Warrant Agent, for a new
Warrant Certificate or Warrant Certificates of like tenor representing an equal
aggregate number of Warrants, each of such new Warrant Certificates to represent
such number of Warrants as shall be designated by such Registered Holder at the
time of such surrender. Upon the presentment and payment of any tax or other
charge imposed in connection therewith or incident thereto, for registration of
transfer of this Warrant Certificate at such office, a new Warrant Certificate
or Warrant Certificates representing an equal aggregate number of Warrants will
be issued to the transferee in exchange therefor, subject to the limitations
provided in the Warrant Agreement.
Prior to the exercise of any Warrant represented hereby, the
Registered Holder, as such, shall not be entitled to any rights of a stockholder
of the Company, including, without limitation, the right to vote or to receive
dividends or other distributions, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided in the Warrant
Agreement.
Subject to the provisions of the Warrant Agreement, this Warrant may
be redeemed at the option of the Company, at a redemption price of $0.25 per
Warrant, at any time commencing after the Initial Warrant Exercise Date,
provided that (i) the average closing bid price for the Company's Common Stock
in the over-the-counter market as reported by the National Association of
Securities Dealers Automated Quotation System, or (ii) the closing sale price on
the primary exchange on which the Common Stock is traded, if the Common Stock is
traded on a national securities exchange, shall have for 20 consecutive days on
which such market is open for trading ending within ten days prior to the Notice
of Redemption, as defined below,
2
equaled or exceeded $_______ [200% of the initial public offering price of
Common Stock] per share (subject to adjustment in the event of any stock splits
or other similar events); provided, further that so long as this Warrant is held
by the Representative or an affiliate of the Representative, the Company may not
redeem this Warrant. Notice of redemption (the "Notice of Redemption") shall be
given by the Company not later than the thirtieth day before the date fixed for
redemption, all as provided in the Warrant Agreement. On and after the date
fixed for redemption, the Registered Holder shall have no right with respect to
this Warrant except to receive the $0.25 per Warrant upon surrender on this
Certificate.
Prior to due presentment for registration of transfer hereof, the
Company and the Warrant Agent may deem and treat the Registered Holder as the
absolute owner hereof and of each Warrant represented hereby (notwithstanding
any notations of ownership or writing hereon made by anyone other than a duly
authorized officer of the Company or the Warrant Agent) for all purposes and
shall not be affected by any notice to the contrary, except as provided in the
Warrant Agreement.
This Warrant Certificate may not be transferred for a period of one
year from the Initial Warrant Exercise Date, except to officers of the
Representative or to members of the Representative's selling group in the Public
Offering.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of New York.
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 hereon.
Dated __________, 19__.
SEAL APOLLO BIOPHARMACEUTICS, INC.
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
3
COUNTERSIGNED:
AMERICAN STOCK TRANSFER AND TRUST COMPANY,
as Warrant Agent
By:_____________________________
Authorized Officer
4
EXERCISE FORM
To Be Executed by the Registered Holder
in Order to Exercise Warrant
The undersigned Registered Holder hereby irrevocably elects to
exercise __________ Warrants represented by this Warrant Certificate, and to
purchase the securities issuable upon the exercise of such Warrants, and
requests that certificates for such securities shall be issued in name of
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
______________________
______________________
______________________
______________________
(please print or type name and address)
and be delivered to
______________________
______________________
______________________
______________________
(please print or type name and address)
5
and if such number of Warrants shall not be all the Warrants evidenced by this
Warrant Certificate, that a new Warrant Certificate for the balance of such
Warrants be registered in the name of, and delivered to, the Registered Holder
at the address stated below.
Dated:________________________ X_____________________________
______________________________
______________________________
Address
______________________________
Social Security or Taxpayer
Identification Number
______________________________
Signature Guaranteed
6
ASSIGNMENT
To Be Executed by the Registered Holder
in Order to Assign Warrants
FOR VALUE RECEIVED, ____________________________, hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
______________________
______________________
______________________
______________________
(please print or type name and address)
____________ of the Warrants represented by this Warrant Certificate, and hereby
irrevocably constitutes and appoints ______________________ as its/his/her
attorney-in-fact to transfer this Warrant Certificate on the books of the
Company, with full power of substitution in the premises.
Dated:________________________ X_____________________________
Signature Guaranteed
THE SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST CORRESPOND TO THE
NAME AS WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION ON OR ENLARGEMENT OR ANY CHANGE WHATSOEVER AND MUST BE
GUARANTEED BY A BANK, BROKER, DEALER, CREDIT UNION, SAVINGS ASSOCIATION OR OTHER
ENTITY WHICH IS A MEMBER IN GOOD STANDING OF THE SECURITIES TRANSFER AGENTS
MEDALLION PROGRAM.
7
