EXHIBIT 4.17
EXHIBIT A-2
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE
EXERCISE OF THIS WARRANT (COLLECTIVELY, THE "SECURITIES") HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT, OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
UNDER THE SECURITIES ACT.
WARRANT TO PURCHASE
COMMON STOCK, PAR VALUE $.00001 PER SHARE
OF
ADVANCED VIRAL RESEARCH CORP.
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This certifies that, for value received,
___________________________________________ , or registered assigns
("Warrantholder"), is entitled to purchase from ADVANCED VIRAL RESEARCH CORP.
(the "Company"), subject to the provisions of this Warrant, at any time and from
time to time until 5:00 p.m. Eastern Standard Time on [June 30, 2004] ______
shares [25% of the total number of shares originally purchased by the Warrant
holder] of the Company's Common Stock, par value $.00001 per share ("Warrant
Shares"). The purchase price payable upon the exercise of this Warrant shall be
$___ per Warrant Share. [140% of the the original per share purchase price] The
Warrant Price and the number of Warrant Shares which the Warrantholder is
entitled to purchase is subject to adjustment upon the occurrence of the
contingencies set forth in Section 3 of this Warrant, and as adjusted from time
to time, such purchase price is hereinafter referred to as the "Warrant Price."
This Warrant is subject to the following terms and conditions:
I. Exercise of Warrant.
A. This Warrant may be exercised in whole or in part but not for a
fractional share. Upon delivery of this Warrant at the offices of the Company or
at such other address as the Company may designate by notice in writing to the
registered holder hereof with the Subscription Form annexed hereto duly
executed, accompanied by payment of the Warrant Price for the number of Warrant
Shares purchased (in cash, by certified, cashier's or other check acceptable to
the Company, by Common Stock of the Company having a Market Value (as
hereinafter defined)
equal to the aggregate Warrant Price for the Warrant Shares to be purchased, or
any combination of the foregoing), the registered holder of this Warrant shall
be entitled to receive a certificate or certificates for the Warrant Shares so
purchased. Such certificate or certificates shall be promptly delivered to the
Warrantholder. Upon any partial exercise of this Warrant, the Company shall
execute and deliver a new Warrant of like tenor for the balance of the Warrant
Shares purchasable hereunder.
B. In lieu of exercising this Warrant pursuant to Section 1(a), the
holder may elect to receive shares of Common Stock equal to the value of this
Warrant determined in the manner described below (or any portion thereof
remaining unexercised) upon delivery of this Warrant at the offices of the
Company or at such other address as the Company may designate by notice in
writing to the registered holder hereof with the Notice of Cashless Exercise
Form annexed hereto duly executed. In such event the Company shall issue to the
holder a number of shares of the Company's Common Stock computed using the
following formula:
X = Y (A-B)
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A
Where X = the number of shares of Common Stock to be issued to
the holder.
Y = the number of shares of Common Stock purchasable
under this Warrant (at the date of such calculation).
A = the Market Value of the Company's Common Stock on the
business day immediately preceding the day on which
the Notice of Cashless Exercise is received by the
Company.
B = Warrant Price (as adjusted to the date of such
calculation).
C. The Warrant Shares deliverable hereunder shall, upon issuance, be
fully paid and non-assessable and the Company agrees that at all times during
the term of this Warrant it shall cause to be reserved for issuance such number
of shares of its Common Stock as shall be required for issuance and delivery
upon exercise of this Warrant.
D. For purposes of this Warrant, the Market Value of a share of Common
Stock on any date shall be equal to (i) the closing bid price per share as
published by a national securities exchange on which shares of Common Stock (or
other units of the security) are traded (an "Exchange") on such date or, if
there is no bid for Common Stock on such date, the bid price on such exchange at
the close of trading on the next earlier date or, (ii) if shares of Common Stock
are not listed on a national securities exchange on such date, the closing bid
price per share as published on the National Association of Securities Dealers
Automatic Quotation System ("NASDAQ") National Market System if the shares are
quoted on such system on such date, or (iii) the closing bid price in the
over-the-counter market at the close of trading on such date if the shares are
not traded on an exchange or listed on the NASDAQ National Market System, or
(iv) if the Common Stock is not traded on a national securities exchange or in
the over-the-counter market, the fair market value of a share of Common Stock on
such date as determined in good faith by the Board of Directors. If the holder
disagrees with the determination of the Market Value of any securities of the
Company determined by the Board of Directors under Section 1(d)(iv) the
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Market Value of such securities shall be determined by an independent appraiser
acceptable to the Company and the holder (or, if they cannot agree on such an
appraiser, by an independent appraiser selected by each of them, and Market
Value shall be the median of the appraisals made by such appraisers). If there
is one appraiser, the cost of the appraisal shall be shared equally between the
Company and the holder. If there are two appraisers, each of the Company and the
holder shall pay for its own appraisal.
II. Transfer or Assignment of Warrant.
A. Any assignment or transfer of this Warrant shall be made by
surrender of this Warrant at the offices of the Company or at such other address
as the Company may designate in writing to the registered holder hereof with the
Assignment Form annexed hereto duly executed and accompanied by payment of any
requisite transfer taxes, and the Company shall, without charge, execute and
deliver a new Warrant of like tenor in the name of the assignee for the portion
so assigned in case of only a partial assignment, with a new Warrant of like
tenor to the assignor for the balance of the Warrant Shares purchasable.
B. Prior to any assignment or transfer of this Warrant, the holder
thereof shall deliver an opinion of counsel to the Company to the effect that
the proposed transfer may be effected without registration under the Act.
III. Adjustment of Warrant Price and Warrant Shares -- Anti-Dilution
Provisions.
A. (1) Except as hereinafter provided, in case the Company shall at any
time after the date hereof issue any shares of Common Stock (including shares
held in the Company's treasury) without consideration, then, and thereafter
successively upon each issuance, the Warrant Price in effect immediately prior
to each such issuance shall forthwith be reduced to a price determined by
multiplying the Warrant Price in effect immediately prior to such issuance by a
fraction:
(a) the numerator of which shall be the total
number of shares of Common Stock outstanding
immediately prior to such issuance, and
(b) the denominator of which shall be the total
number of shares of Common Stock outstanding
immediately after such issuance.
For the purposes of any computation to be made in accordance with the
provisions of this clause (1), the following provisions shall be applicable:
(i) Shares of Common Stock issuable by way of
dividend or other distribution on any stock
of the Company shall be deemed to have been
issued and to be outstanding at the close of
business on the record date fixed for the
determination of stockholders entitled to
receive such dividend or other distribution
and shall be deemed to have been issued
without consideration. Shares of Common
Stock issued otherwise than as a dividend,
shall be deemed to have been
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issued and to be outstanding at the close of
business on the date of issue.
(ii) The number of shares of Common Stock at any
time outstanding shall not include any
shares then owned or held by or for the
account of the Company.
(2) In case the Company shall at any time subdivide or combine
the outstanding shares of Common Stock, the Warrant Price shall forthwith be
proportionately decreased in the case of the subdivision or proportionately
increased in the case of combination to the nearest one cent. Any such
adjustment shall become effective at the close of business on the date that such
subdivision or combination shall become effective.
B. In the event that the number of outstanding shares of Common Stock
is increased by a stock dividend payable in shares of Common Stock or by a
subdivision of the outstanding shares of Common Stock, which may include a stock
split, then from and after the time at which the adjusted Warrant Price becomes
effective pursuant to the foregoing Subsection A of this Section by reason of
such dividend or subdivision, the number of shares issuable upon the exercise of
this Warrant shall be increased in proportion to such increase in outstanding
shares. In the event that the number of outstanding shares of Common Stock is
decreased by a combination of the outstanding shares of Common Stock, then, from
and after the time at which the adjusted Warrant Price becomes effective
pursuant to such Subsection A of this Section by reason of such combination, the
number of shares issuable upon the exercise of this Warrant shall be decreased
in proportion to such decrease in outstanding shares.
C. In the event of an adjustment of the Warrant Price, the number of
shares of Common Stock (or reclassified stock) issuable upon exercise of this
Warrant after such adjustment shall be equal to the number determined by
dividing:
(1) an amount equal to the product of (i) the number of
shares of Common Stock issuable upon exercise of this
Warrant immediately prior to such adjustment, and
(ii) the Warrant Price immediately prior to such
adjustment, by
(2) the Warrant Price immediately after such adjustment.
D. In the case of any reorganization or reclassification of the
outstanding shares of Common Stock (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 the case of any consolidation of the Company
with, or merger of the Company with, another corporation, or in the case of any
sale, lease or conveyance of all, or substantially all, of the property, assets,
business and goodwill of the Company as an entity, the holder of this Warrant
shall thereafter have the right upon exercise to purchase the kind and amount of
shares of stock and other securities and property receivable upon such
reorganization, reclassification, consolidation, merger or sale by
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a holder of the number of shares of Common Stock which the holder of this
Warrant would have received had all Warrant Shares issuable upon exercise of
this Warrant been issued immediately prior to such reorganization,
reclassification, consolidation, merger or sale, at a price equal to the Warrant
Price then in effect pertaining to this Warrant (the kind, amount and price of
such stock and other securities to be subject to adjustment as herein provided).
E. In case the Company shall, at any time prior to the expiration of
this Warrant and prior to the exercise thereof, dissolve, liquidate or wind up
its affairs, the Warrantholder shall be entitled, upon the exercise thereof, to
receive, in lieu of the Warrant Shares of the Company which it would have been
entitled to receive, the same kind and amount of assets as would have been
issued, distributed or paid to it upon such Warrant Shares of the Company, had
it been the holder of record of shares of Common Stock receivable upon the
exercise of this Warrant on the record date for the determination of those
entitled to receive any such liquidating distribution. After any such
dissolution, liquidation or winding up which shall result in any distribution in
excess of the Warrant Price provided for by this Warrant, the Warrantholder may
at its option exercise the same without making payment of the aggregate Warrant
Price and in such case the Company shall upon the distribution to said
Warrantholder consider that the aggregate Warrant Price has been paid in full to
it and in making settlement to said Warrantholder, shall deduct from the amount
payable to such Warrantholder an amount equal to the aggregate Warrant Price.
F. In case the Company shall, at any time prior to the expiration of
this Warrant and prior to the exercise thereof make a distribution of assets
(other than cash) or securities of the Company to its stockholders (the
"Distribution") the Warrantholder shall be entitled, upon the exercise thereof,
to receive, in addition to the Warrant Shares it is entitled to receive, the
same kind and amount of assets or securities as would have been distributed to
it in the Distribution had it been the holder of record of shares of Common
Stock receivable upon exercise of this Warrant on the record date for
determination of those entitled to receive the Distribution.
G. Irrespective of any adjustments in the number of Warrant Shares and
the Warrant Price or the number or kind of shares purchasable upon exercise of
this Warrant, this Warrant may continue to express the same price and number and
kind of shares as originally issued.
IV. Officer's Certificate. Whenever the number of Warrant Shares and the
Warrant Price shall be adjusted pursuant to the provisions hereof, the Company
shall forthwith file, at its principal executive office a statement, signed by
the Chairman of the Board, President, or one of the Vice Presidents of the
Company and by its Chief Financial Officer or one of its Treasurers or Assistant
Treasurers, stating the adjusted number of Warrant Shares and the new Warrant
Price calculated to the nearest one hundredth and setting forth in reasonable
detail the method of calculation and the facts requiring such adjustment and
upon which such calculation is based. Each adjustment shall remain in effect
until a subsequent adjustment hereunder is required. A copy of such statement
shall be mailed to the Warrantholder.
V. Charges, Taxes and Expenses. The issuance of certificates for Warrant
Shares upon any exercise of this Warrant shall be made without charge to the
Warrantholder for any tax or other
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expense in respect to the issuance of such certificates, all of which taxes and
expenses shall be paid by the Company, and such certificates shall be issued
only in the name of the Warrantholder.
VI. Miscellaneous.
A. The terms of this Warrant shall be binding upon and shall inure to
the benefit of any successors or assigns of the Company and of the holder or
holders hereof and of the shares of Common Stock issued or issuable upon the
exercise hereof.
B. No holder of this Warrant, as such, shall be entitled to vote or
receive dividends or be deemed to be a stockholder of the Company for any
purpose, nor shall anything contained in this Warrant be construed to confer
upon the holder of this Warrant, as such, any rights of a stockholder of the
Company or any right to vote, give or withhold consent to any corporate action,
receive notice of meetings, receive dividends or subscription rights, or
otherwise.
C. Receipt of this Warrant by the holder hereof shall constitute
acceptance of an agreement to the foregoing terms and conditions.
D. The Warrant and the performance of the parties hereunder shall be
construed and interpreted in accordance with the laws of the State of New York
and the parties hereunder consent and agree that the State and Federal Courts
which sit in the State of New York and the County of New York shall have
exclusive jurisdiction with respect to all controversies and disputes arising
hereunder.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer and its corporate seal to be affixed hereto.
Dated: June _____, 1999
ADVANCED VIRAL RESEARCH CORP.
BY:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, M.D.
President
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SUBSCRIPTION FORM
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(TO BE EXECUTED BY THE REGISTERED HOLDER
IF HE DESIRES TO EXERCISE THE WARRANT)
To: ADVANCED VIRAL RESEARCH CORP.
The undersigned hereby exercises the right to purchase
_________ shares of Common Stock, par value $.00001 per share, covered by the
attached Warrant in accordance with the terms and conditions thereof, and
herewith makes payment of the Warrant Price for such shares in full.
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SIGNATURE
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ADDRESS
DATED:
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NOTICE OF EXERCISE OF COMMON STOCK WARRANT
PURSUANT TO NET ISSUE ("CASHLESS") EXERCISE PROVISIONS
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Advanced Viral Research Corp. Aggregate Price of $
a Delaware corporation of Warrant ------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Aggregate Price Being
Exercised: $
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Attention:
Warrant Price
(per share): $
------------
Number of Shares of
Common Stock to be
Issued Under this
Notice:
CASHLESS EXERCISE
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Gentlemen:
The undersigned, registered holder of the Warrant to Purchase
Common Stock delivered herewith ("Warrant") hereby irrevocably exercises such
Warrant for, and purchases thereunder, shares of the Common Stock of ADVANCED
VIRAL RESEARCH CORP., a Delaware corporation, as provided below. Capitalized
terms used herein, unless otherwise defined herein, shall have the meanings
given in the Warrant. The portion of the Aggregate Price (as hereinafter
defined) to be applied toward the purchase of Common Stock pursuant to this
Notice of Exercise is $__________ , thereby leaving a remainder Aggregate Price
(if any) equal to $__________. Such exercise shall be pursuant to the net issue
exercise provisions of Section I. (b) of the Warrant; therefore, the holder
makes no payment with this Notice of Exercise. The number of shares to be issued
pursuant to this exercise shall be determined by reference to the formula in
Section I.(b)of the Warrant which requires the use of the Market Value (as
defined in Section I.(d) of the Warrant) of the Company's Common Stock on the
business day immediately preceding the day on which this Notice is received by
the Company. To the extent the foregoing exercise is for less than the full
Aggregate Price of the Warrant, the remainder of the Warrant representing a
number of Shares equal to the quotient obtained by dividing the remainder of the
Aggregate Price by the Warrant Price (and otherwise of like form, tenor and
effect) may be exercised under Section
I.(a) of the Warrant. For purposes of this Notice the term "Aggregate Price"
means the product obtained by multiplying the number of shares of Common Stock
for which the Warrant is exercisable times the Warrant Price.
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SIGNATURE
-----------------------------------
DATE: ADDRESS
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ASSIGNMENT
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(To be Executed by the Registered Holder
if he Desires to Transfer the Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ____________ the right to purchase shares of Common Stock of
ADVANCED VIRAL RESEARCH CORP., evidenced by the within Warrant, and does hereby
irrevocably constitute and appoint _______________ Attorney to transfer the said
Warrant on the books of the Company, with full power of substitution.
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SIGNATURE
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ADDRESS
DATED:
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IN THE PRESENCE OF:
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