EXHIBIT 10
THIS COMMON STOCK PURCHASE WARRANT (THE "WARRANT") AND ANY SHARES ACQUIRED UPON
THE EXERCISE OF THE WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY APPLICABLE SECURITIES LAW OF ANY JURISDICTION. NEITHER
THE WARRANT NOR ANY OF SUCH SHARES MAY BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT OR SUCH APPLICABLE
SECURITIES LAWS. NEITHER THE WARRANT NOR ANY OF SUCH SHARES MAY BE TRANSFERRED
EXCEPT UPON THE CONDITIONS SPECIFIED IN THE WARRANT, AND NO TRANSFER OF THE
WARRANT OR ANY OF SUCH SHARES SHALL BE VALID OR EFFECTIVE UNLESS AND UNTIL SUCH
CONDITIONS SHALL HAVE BEEN COMPLIED WITH.
FORM OF COMMON STOCK PURCHASE WARRANT
For ▇▇▇▇▇▇▇▇ Capital Corp. or its designees
To Subscribe for and Purchase Shares
of Common Stock of
ADVANCED BIOTHERAPY CONCEPTS, INC.
EXPIRES AT 5:00 P.M. PACIFIC TIME, ON JANUARY 18, 2010
DATE OF WARRANT: JANUARY 19, 2000
This certifies that___________________________________________ the registered
holder hereof, or assigns (the "Warrantholder") is entitled to purchase from
Advanced Biotherapy Concepts, Inc., a Nevada corporation (the "Company"), at any
time before the expiration time and date shown above (the "Expiration Time")
[not to exceed 4,685,135] shares of the common stock of the Company ("Common
Stock") at the purchase price per share of Fifteen Cents ($0.15) (the "Warrant
Price").
The number and class of shares purchasable upon exercise of the warrant
represented hereby (the "Warrant") shall be subject to adjustment from time to
time as set forth below.
SECTION 1. TRANSFERABILITY AND FORM OF WARRANT.
1.1 REGISTRATION. This Warrant shall be numbered and shall be
registered on the books of the Company.
1.2 TRANSFER. This Warrant shall be transferable on the books of the
Company only upon delivery thereof duly endorsed by the Warrantholder or duly
authorized attorney or representative, accompanied by proper evidence of
succession, assignment or authority to transfer. Upon any registration of
transfer, the Company shall execute and deliver a new Warrant to the person
entitled thereto. This Warrant may be divided or combined, upon request to the
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Company by the Warrantholder, into a certificate or certificates representing
the right to purchase the same aggregate number of shares.
1.3 FORM OF WARRANT. This Warrant shall be executed on behalf of the
Company by its President, Vice President or other authorized officer, and shall
be dated as of the date of signature thereof by the Company either upon initial
issuance or upon division, exchange, substitution or transfer. A Warrant bearing
the signature of an individual who was at any time the proper officer of the
Company shall bind the Company, notwithstanding that such individual shall have
ceased to hold such office prior to the delivery of such Warrant. The form of
election to exercise any Warrant and the form of assignment of any Warrant shall
be substantially as attached hereto.
SECTION 2. PAYMENT OF TAXES.
The Company will pay all documentary stamp taxes, if any, attributable
to the initial issuance of shares to the Warrantholder; provided, however, that
the Company shall not be required to pay any tax or taxes which may be payable
in respect to any secondary transfer of the Warrant or the shares.
SECTION 3. MUTILATED OR MISSING WARRANTS.
In case this Warrant shall be mutilated, lost, stolen or destroyed, the
Company shall, at the request of the Warrantholder, issue and deliver in
exchange and substitution for and upon cancellation of the mutilated Warrant, or
in lieu of and in substitution for the lost, stolen or destroyed Warrant, a new
Warrant of like tenor, but only upon receipt of evidence satisfactory to the
Company of such loss, theft or destruction of such Warrant. The applicant shall
also comply with such other reasonable regulations and pay such other reasonable
administrative charges as the Company may prescribe.
SECTION 4. RESERVATION OF SHARES.
There has been reserved, and the Company shall at all times keep
reserved so long as this Warrant remains outstanding, out of its authorized
shares of capital stock, such number and class of shares as shall be subject to
purchase under this Warrant. Such reserved shares shall be used solely for
issuances upon exercise of the Warrant. Shares of any class issued upon exercise
of this Warrant shall have all the rights and privileges of other shares of the
same class, whenever issued, subject to the adjustment provisions set forth
below.
SECTION 5. EXERCISE OF WARRANT.
5.1 EXERCISE BY CASH PAYMENT. The Warrantholder shall have the right
at anytime and from time to time to exercise this Warrant in full or in part by
surrender of this Warrant to the Company accompanied by payment to the Company
in cash or by certified or cashier's check or by wire transfer of funds of the
aggregate Warrant Price for the number of shares in respect of which this
Warrant is then exercised.
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5.2 CASHLESS EXERCISE. This Warrant may be exercised in full or in
part by surrender of this Warrant to the Company accompanied by written notice
substantially in the form attached hereto of the Warrantholder's election to
effect cashless exercise ("Cashless Exercise"). Upon Cashless Exercise, the
Warrantholder shall be entitled to receive, in respect of each share for which
this Warrant is then exercised, that number of shares of Common Stock (or such
other class of shares as may then be issuable upon exercise hereof) which,
valued at Current Market Value, have a value equal to the Current Market Value
of each of the shares as to which this Warrant is then being exercised less the
Warrant Price payable for each such share. For purposes of this Section 5.2,
Current Market Value of Common Stock shall mean (i) if the Common Stock is
traded in the over-the-counter market or on the National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ"), the per share
closing sale price of the Common Stock on the trading day immediately preceding
the date of delivery of such notice of Cashless Exercise as reported by NASDAQ
or an equivalent generally accepted reporting service, or (ii) if the Common
Stock is traded on a national securities exchange, the per share closing price
of the Common Stock on the principal stock exchange on which it is listed on the
trading day immediately preceding the date of delivery of such notice of
Cashless Exercise or (iii) if the Common Stock is not so listed or traded, the
fair market value of the Common Stock as determined in good faith by the board
of directors of the Company. The term "closing sale price" shall mean the last
sale price on the day in question as reported by NASDAQ or an equivalent
generally accepted reporting service or (as the case may be) as reported by the
principal stock exchange in which the Common Stock is listed, or if not so
reported, as reasonably determined in good faith by the board of directors of
the Company.
5.3 DELIVERY OF CERTIFICATES. Upon exercise of this Warrant, the
Company shall issue and cause to be delivered with all reasonable dispatch to or
upon the written order of the Warrantholder and in such name or names as the
Warrantholder may designate, a certificate or certificates for the number of
full shares issuable upon such exercise together with cash, as provided in
Section 7 hereof, in respect of any fractional shares. The Company shall effect
such issuance immediately and shall transmit the certificates by messenger or
overnight delivery service to reach the address designated by the Warrantholder
within two business days after receipt of the Warrant Price or, in the case of a
cashless exercise, after receipt of the Warrant Such certificate or certificates
shall be deemed to have been issued to any person so designated to be named
therein shall be deemed to have become a Warrantholder of record of such shares
as of the date of surrender of the Warrant and payment of the Warrant Price, as
aforesaid, notwithstanding that the certificates representing such shares shall
not actually have been delivered or that the stock transfer books of the Company
shall then be closed In the event of partial exercise a new Warrant evidencing
the remaining portion of this Warrant will be issued by the Company.
SECTION 6. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES.
6.1 ADJUSTMENTS. The number and kind of securities purchasable upon
the exercise of the Warrant and the Warrant Price shall be subject to adjustment
from time to time upon the happening of certain events, as follows:
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(a) If the shares purchasable upon exercise of the Warrant are
subdivided, combined or reclassified, or if other shares of the kind so
purchasable are issued in respect thereof as a dividend thereon (excluding
dividends required by the charter provisions governing such shares), the number
and class of shares purchasable upon exercise of the Warrant immediately prior
thereto shall be adjusted so that the Warrantholder shall be entitled to receive
the kind and number of shares or other securities of the Company which it would
have owned or would have been entitled to receive, after the happening of any of
the events described above, had the Warrant been exercised immediately prior to
the happening of such event or any record date with respect thereto. Any
adjustments made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the record
date, for such event.
(b) If the shares purchasable upon exercise of the Warrant become
entitled to receive a distribution of evidences of indebtedness or assets
(excluding dividends required by the charter provisions governing such shares)
or rights, options, warrants or convertible securities containing the right to
subscribe for or purchase securities or assets of the Company, then, in each
case, the number of shares thereafter purchasable upon the exercise of the
Warrant shall be determined by multiplying the number of shares theretofore
purchasable upon exercise of the Warrant by a fraction, of which the numerator
shall be the then Current Market Value on the date of such distribution, and of
which the denominator shall be such Current Market Value on such date minus the
then fair value of the portion of the assets or evidence of indebtedness so
distributed or of such subscription rights, options or warrants applicable to
one share. Such adjustment shall be made whenever any such distribution is made
and shall become effective on the date of distribution retroactive to the record
date for the determination of shareholders entitled to receive such
distribution. Current Market Value shall have the meaning set forth in Section
7.
(c) No adjustment in the number of shares purchasable hereunder
shall be required unless such adjustment would require an increase or decrease
of at least one percent (1%) in the number of shares then purchasable upon the
exercise of a Warrant; PROVIDED, HOWEVER, that any adjustments which by reason
of this paragraph (c) are not required to be made immediately shall be carried
forward and taken into account in any subsequent adjustment.
(d) Whenever the Warrant Price or the number or class of shares
purchasable upon the exercise of a Warrant is adjusted as herein provided, a
corresponding adjustment in the number of shares so purchasable or the Warrant
Price, as the case may be, shall be made so that the aggregate Warrant Price
payable upon full exercise of the Warrant shall remain the same. If such
adjustment results in more than one class of security being purchasable upon
exercise of the Warrant, the adjusted Warrant Price shall be allocated to such
securities on the basis of their respective fair market values.
(e) Whenever the number or class of shares purchasable upon the
exercise of a Warrant or the Warrant Price is adjusted as herein provided, the
Company shall cause to be promptly mailed to the Warrantholder by first class
mail, postage prepaid, notice of such adjustment or adjustments setting forth
the number and class of shares purchasable upon the exercise of the Warrant and
the Warrant Price after such adjustment, together with a brief
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statement of the facts requiring such adjustment and the computation of such
adjustment, the Company shall cause independent public accountants selected by
the Company to verify and, if necessary, correct such computation.
(f) The term "Common Stock" shall include (i) the class of stock
designated as the Common Stock of the Company at the issue of this Warrant or
(ii) any other class of stock resulting from successive changes or
reclassifications of such Common Stock. In the event that at any time, as a
result of an adjustment made pursuant to this Section, the Warrantholder shall
become entitled to purchase any securities of the Company other than shares of
Common Stock, thereafter the number of such other securities so purchasable upon
exercise of the Warrant and the Warrant Price of such securities shall be
subject to adjustment from time to time in a manner and on terms nearly
equivalent as practicable to the provisions contained in this Section.
6.2 NO ADJUSTMENT FOR DIVIDENDS. Except as provided in Subsection
6.1, no adjustment in respect of any dividends shall be made during the term of
the Warrant or upon the exercise of the Warrant.
6.3 PRESERVATION OF PURCHASE RIGHTS UPON RECLASSIFICATION,
CONSOLIDATION, ETC. In case of any reclassification of the securities of the
Company or any consolidation of the Company with or merger of the Company into
another corporation or in case of any sale or conveyance to another corporation
of the property, assets or business of the Company as an entirety or
substantially as an entirety, the Company or such successor or purchasing
corporation, as the case may be, shall provide by agreement that the
Warrantholder shall have the right thereafter upon payment of the Warrant Price
in effect immediately prior to such action to purchase upon exercise of the
Warrant the kind and amount of shares and other securities and property which
he/she would have owned or have been entitled to receive after the happening of
such reclassification, consolidation, merger, sale or conveyance had the Warrant
been exercised immediately prior to such action. Such agreement shall provide
for adjustments, which shall be as nearly equivalent as may be practicable to
the adjustment provided for in this Section. The provisions of this subsection
shall similarly apply to successive reclassification, consolidation, mergers,
sales or conveyances.
6.4 STATEMENT ON WARRANT CERTIFICATES. Irrespective of any adjustment
in the Warrant Price or the number of securities purchasable upon the exercise
of the Warrant, the Warrant certificate or certificates theretofore or
thereafter issued may continue to express the same price and number of
securities as are stated in the similar Warrant certificates initially issued.
SECTION 7. FRACTIONAL INTERESTS; CURRENT MARKET VALUE; CLOSING BID PRICE.
The Company shall not be required to issue fractional shares on the
exercise of the Warrant. If any fraction of a share would, except for the
provisions of this Section, be issuable on the exercise of the Warrant (or
specified portion thereof), the Company shall pay an amount in cash equal to the
then Current Market Value multiplied by such fraction. The term "Current Market
Value" of the Common Stock shall mean (i) if the Common Stock is traded in the
over-the-counter market or on the National Association of Securities Dealers,
Inc., Automated Quotation System ("NASDAQ"), the average per share closing sale
price of the Common Stock
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on the twenty (20) consecutive trading days immediately preceding the date in
question, as reported by NASDAQ or an equivalent generally accepted reporting
service, or (ii) if the Common Stock is traded on a national securities
exchange, the average for the twenty (20) consecutive trading days immediately
preceding the date in question of the daily per share closing prices of the
Common Stock on the principal stock exchange on which it is listed, or (iii) if
the Common Stock is not so listed or traded, the fair market value of the Common
Stock as determined in good faith by the board of directors of the Company. The
term "closing sale price" shall mean the last sale price on the day in question
as reported by NASDAQ or an equivalent generally accepted reporting services or
(as the case may be) as reported by the principal stock exchange in which the
Common Stock is listed, or if not so reported, as reasonably determined in good
faith by the board of directors of the Company.
SECTION 8. NO RIGHTS AS SHAREHOLDER; NOTICES TO WARRANTHOLDER.
Nothing contained herein shall be construed as conferring upon the
Warrantholder any rights whatsoever as a shareholder of the Company, including
the right to vote, to receive dividends, to consent or to receive notices as a
shareholder in respect to any meeting of shareholders for the election of
directors of the Company or any other matter. If, however, at any time prior to
the expiration of the Warrant and prior to the exercise, any of the following
events shall occur;
(a) any action which would require an adjustment pursuant to
Section 6.1 or 6.3; or
(b) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation, merger or sale of its property,
assets and business, as an entirety) shall be proposed;
then in any one or more of said events, the Company shall give notice in writing
of such event to the Warrantholder at least fifteen (15) days prior to the date
fixed as a record date or the date of closing the transfer books or other
applicable date or the date of closing the transfer books, as the case may be.
Any notice to the Warrantholder shall be given at the address of the
Warrantholder appearing on the books of the Company, and if the Warrantholder
has specified a telecopier address, by facsimile transmission to such address.
SECTION 9. REGISTRATION AND INDEMNIFICATION.
The Company and each Holder covenant and agree that:
9.1 REQUEST FOR REGISTRATION.
(a) REGISTRABLE SECURITIES. If the Company shall receive at any
time beginning January 19, 2001, a written request from the Holders of at least
fifty percent (50%) of the Registrable Securities then outstanding (the
"Initiating Holders") that the Company file a
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registration statement under the Securities Act covering the registration of at
least such number of the Registrable Securities then outstanding as would yield
an aggregate offering price of at least Four Million Dollars ($4,000,000) before
underwriting discounts and commissions, then the Company shall, within thirty
(30) days of the receipt thereof, give written notice of such request to all
Holders and shall, subject to the limitations of Section 9.1(b), use
commercially reasonable efforts to effect as soon as practicable, the
registration under the Securities Act of all Registrable Securities which the
Holders request to be registered by the Company in accordance with Section
9.1(b).
(b) NOTICE OF UNDERWRITING. If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their request made
pursuant to this Section 9.1 and the Company shall include such information in
the written notice referred to in Section 9.1(a). The underwriter will be
selected by a majority in interest of the Initiating Holders and shall be
reasonably acceptable to the Company. In such event, the right of any Holder to
include his Registrable Securities in such registration shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Holders and such Holder) to
the extent provided herein. All Holders proposing to distribute their securities
through such underwriting shall (together with the Company as provided in
Section 9.7(e)) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting. Notwithstanding any
other provision of this Section 9.1, if the underwriter advises the Company in
writing that marketing factors require a limitation of the number of shares to
be underwritten, then the Company shall so advise all Holders of Registrable
Securities which would otherwise be underwritten pursuant hereto, and the number
of shares of Registrable Securities that may be included in the underwriting
shall be allocated among all Holders thereof, including the Initiating Holders,
in proportion (as nearly as practicable) to the amount of Registrable Securities
of the Company owned by each Holder. Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from the registration.
(c) POSTPONEMENT OF REGISTRATION. Notwithstanding the foregoing,
if the Company shall furnish to Holders requesting a registration statement
pursuant to this Section 9.1, a certificate signed by the President of the
Company stating that in the good faith judgment of the Board of Directors of the
Company, it would be detrimental to the Company and its shareholders for such
registration statement to be filed and it is therefore necessary to defer the
filing of such registration statement, the Company shall have the right to defer
such filing for a period of not more than one hundred eighty (180) days after
receipt of the request of the Initiating Holders; PROVIDED, HOWEVER, that the
Company may not utilize this right more than once in any twelve-month period,
whether pursuant to this Section 9.1(c) or otherwise.
(d) NO REGISTRATION OBLIGATION. Notwithstanding anything to the
contrary herein, the Company shall not be obligated to effect, or to take any
action to effect, any registration pursuant to this Section 9.1:
(i) After the Company has effected two (2) registrations
pursuant to this Section 9.1 and such registrations have been declared or
ordered effective;
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(ii) During the period starting with the date sixty (60)
days prior to the Company's good faith estimate of the date of filing of, and
ending on a date one hundred eighty (180) days after the effective date of, a
registration subject to Section 9.2 hereof; provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective;
(iii) If within thirty (30) days of receipt of a written
request from Initiating Holders pursuant to Section 9.1(a), the Company gives
notice to the Holders of the Company's intention to make a public offering
within ninety (90) days.
(e) EXCEPTIONS. Notwithstanding the foregoing, a registration
will not count as one of the two required registrations under Section 9.1(d)(i)
unless: (a) the Initiating Holders were able to sell a minimum of fifty-percent
(50%) of the shares sought to be so registered in such registration; and (b) the
Company did not include shares to be sold by it in such registration.
9.2 PIGGYBACK REGISTRATION.
(a) INCLUSION OF REGISTRABLE SECURITIES. At any time after the
date hereof and prior to the date which is the third anniversary of the
Expiration Date, subject to the remainder of this Section 9.2, in the event that
the Company decides to Register any shares of Common Stock on a form that would
be suitable for a Registration of both shares of Common Stock offered by the
Company and Registrable Securities held by the Warrantholder, the Company shall
on each such occasion: (i) promptly give each Warrantholder written notice
thereof; and (ii) include in such Registration (and any related registration,
and in any underwriting involved therein), the Registrable Securities specified
in a written request executed and delivered to the Company by the Holders of at
least twenty percent (20%) of the then aggregate outstanding Warrants and
Warrant Shares, within twenty (20) days after receipt of such written notice
from the Company.
(b) NOTICE OF UNDERWRITING IN PIGGYBACK REGISTRATION. If the
Registration of which the Company gives notice involves an underwriting, the
Company shall so advise each Warrantholder in such notice. In such case, the
right of any Warrantholder to Registration shall be conditioned upon the
occurrence of such underwriting and the inclusion of such Warrantholder's
Registrable Securities in such underwriting to the extent provided in this
Section 9.2. All Warrantholders proposing to distribute their Warrant Shares
through such underwriting shall (together with the Company) enter into an
underwriting agreement with the underwriter's representative for such offering
in form and substance reasonably satisfactory to the underwriter's
representative. The Warrantholders shall have no right to participate in the
selection of the underwriters for an offering pursuant to this Section 9.2.
(c) WITHDRAWAL IN REGISTRATION. If any Warrantholder disapproves
of the terms of any such underwriting, such Warrantholder may elect to withdraw
therefrom by written notice to the Company and the underwriter delivered at
least seven (7) days prior to the effective date of the registration statement.
Any Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such Registration. The Company shall have
the right to postpone or withdraw a Registration proposed to be effected
pursuant to this Section 9.2 at any time without any obligation to any
Warrantholder.
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9.3 INDEMNIFICATION.
(a) COMPANY'S INDEMNIFICATION OF WARRANTHOLDERS. The Company
shall indemnify each Warrantholder, each of such Warrantholder's officers,
directors and partners, and each person controlling such Warrantholder, with
respect to which Registration, qualification or compliance of Registrable
Securities has been effected pursuant to Section 9.1 or 9.2 against all claims,
losses, damages or liabilities to which they may become subject under the
Securities Act or otherwise, to the extent-such claims, losses, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement (or alleged untrue statement) of any material fact contained in
any prospectus or other document (including any related registration statement)
incident to any such Registration, qualification or compliance, or arise out of
or are based on any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or any violation by the Company of any rule or regulation
promulgated under the Securities Act or the Securities Exchange Act of 1934, as
amended, or any state securities law applicable to the Company and relating to
statements made or required to be made by the Company in connection with any
such Registration, qualification or compliance and the Company shall indemnify
each such Warrantholder, the officers, directors and partners of each such
Warrantholder, and each person controlling such Warrantholder against any legal
and other expenses reasonably incurred by them in connection with investigating
or defending any such claim, loss, damage, liability or action; PROVIDED,
HOWEVER, that the Company shall not be liable in any such case to the extent
that any such claim, loss, damage, liability or expense arises out of or is
based upon any untrue statement or alleged untrue statement or omission or
alleged omission based upon, in reliance upon and in conformity with information
furnished in writing to the Company by such Warrantholder and stated to be
specifically for use in connection with the offering of securities of the
Company; PROVIDED, FURTHER, that the Company shall not be liable for amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company, which consent shall
not be unreasonably withheld. The obligations of the Company under this
paragraph shall survive the completion of the offering of Registrable Securities
under the registration statement.
(b) WARRANTHOLDER'S INDEMNIFICATION OF COMPANY. Each
Warrantholder shall, if Registrable Securities held by such Warrantholder are
included in the securities as to which such Registration, qualification or
compliance has been effected pursuant to Section 9.1 or 9.2 hereof, indemnify
the Company and each other Warrantholder, each of their respective officers,
directors and partners, legal counsel for the Company, and each person
controlling the Company and such other Warrantholder, against all claims,
losses, damages or liabilities to which they may become subject under the
Securities Act or otherwise, to the extent such claims, losses, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement (or alleged untrue statement) of any material fact contained in
any prospectus or other document (including any related registration statement)
incident to any such Registration, qualification or compliance or arise out of
or are based on any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading (but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such Registration
statement, preliminary or final
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prospectus, amendment or supplement thereto, or other document based upon, in
reliance upon and in conformity with information furnished in writing to the
Company by such Warrantholder and stated to be specifically for use in
connection with the offering of securities of the Company), or any violation by
any Warrantholder of any rule or regulation promulgated under the Securities
Act, the Securities Exchange Act of 1934, as amended, or any state securities
law applicable to such Warrantholders and relating to statements made or
required to be made by or in reliance upon information supplied in writing by
such Warrantholder in connection with any such Registration, qualification or
compliance, and shall indemnify the Company and each other Warrantholder, each
of their respective directors, officers and partners, legal counsel for the
Company and each person controlling the Company and such other Warrantholders
against any legal and other expenses reasonably incurred by them in connection
with investigating or defending any such claim, loss, damage, liability or
action; PROVIDED that such Warrantholder shall not be liable for amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Warrantholder, which consent
shall not be unreasonably withheld; PROVIDED, HOWEVER, that the obligations of
each Warrantholder hereunder shall be limited to an amount equal to the net
proceeds received by such Warrantholder upon the sale of his Registrable
Securities. The obligation of each Warrantholder under this paragraph shall
survive the completion of the offering of Registrable Securities under the
registration statement.
(c) INDEMNIFICATION PROCEDURE. Promptly after an indemnified
party receives notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying
party, notify the indemnifying party in writing of the commencement thereof and
generally summarize such action. The indemnifying party shall have the right to
participate in and to assume the defense of such claim.
9.4 MARKET STANDOFF. Each Warrantholder hereby agrees that, if so
requested by the Company and the underwriter's representative, such
Warrantholder shall not sell or otherwise transfer any Registrable Securities or
other securities of the Company, other than Warrant Shares registered pursuant
to Section 9.1 or 9.2 hereof, during the one hundred eighty (180) day period
following the effective date of a registration statement of the Company filed
under the Securities Act.
9.5 SURVIVAL OF REGISTRATION RIGHTS. The rights of the Warrantholders
pursuant to Section 9.1 and 9.2 hereof shall survive for three (3) years after
the Expiration Date as long as any Registrable Securities remain outstanding.
9.6 AVAILABILITY OF RULE 144. Notwithstanding anything contained
herein to the contrary, the rights of each Warrantholder under Section 9.1 and
9.2 hereof shall cease with respect to any Registrable Securities at any time
that the Warrantholders may lawfully sell all Registrable Securities without
Registration under the Securities Act pursuant to Rule 144 promulgated
thereunder or otherwise. The Company represents that, as of the date of issuance
of the Warrants, it has filed all reports required to be filed by it under
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended.
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9.7 OBLIGATIONS OF THE COMPANY. Whenever required under this Section
9.1 or 9.2 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to one hundred twenty (120) days. The
Company shall not be required to file, cause to become effective or maintain the
effectiveness of any registration statement that contemplates a distribution of
securities on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement for up to one hundred twenty
(120) days.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities, as applicable, owned by them.
(d) Use its reasonable best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, PROVIDED that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Subject to
Section 9.1(b), each Holder participating in such underwriting shall also enter
into and perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities, covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, such obligation to continue for one hundred twenty (120) days.
(g) Cause all such Registrable Securities registered pursuant to
such registration statement to be listed on each securities exchange on which
similar securities issued by the Company are then listed.
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(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such registration statement and a CUSIP number
for all such Registrable Securities, in each case not later than the effective
date of such registration.
9.8 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 9 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities. The Company shall have no obligation with respect to any
registration requested pursuant to Section 9.1 of this Agreement if, as a result
of the application of the preceding sentence, the number of shares or the
anticipated aggregate offering price of the Registrable Securities to be
included in the registration does not equal or exceed the number of shares or
the anticipated aggregate offering price required to originally trigger the
Company's obligation to initiate such registration as specified in Section
9.1(a).
9.9 EXPENSES OF REGISTRATION.
(a) DEMAND REGISTRATION. All Registration Expenses, other than
Selling Expenses, incurred in connection with registrations, filings or
qualifications pursuant to Section 9.1 shall be borne by the Company; PROVIDED,
HOWEVER , that the Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 9.1 if the registration
request is subsequently withdrawn at the request of the Initiating Holders (in
which case all participating Holders shall bear such expenses), unless the
Holders of a majority of the Registrable Securities agree to forfeit their right
to one demand registration pursuant to Section 9.1. All Selling Expenses shall
be borne by the Warrantholders of the Registrable Securities Registered pro rata
on the basis of the number of Registrable Securities Registered.
(b) COMPANY REGISTRATION. All Registration Expenses, other than
Selling Expenses, incurred in connection with registrations, filings or
qualifications pursuant to Section 9.2, shall be borne by the Company. All
Selling Expenses shall be borne by the Warrantholders of the Registrable
Securities Registered pro rata on the basis of the number of Registrable
Securities Registered.
9.10 DELAY OF REGISTRATION. No Holder shall have any right to obtain
or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 9.
9.11 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Section 9 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of at least twenty-five percent (25%) (or if the Warrant has already
been converted, to purchasers of at least twenty-five percent (25%) of Common
Stock) of such Holder's Warrants as of the date of this Agreement (as
appropriately adjusted for anti-dilution and any subsequent stock splits, stock
dividends, recapitalizations and the like), PROVIDED (i) the Company is, within
ten (10) days after such transfer, furnished with written notice of the name and
address of such transferee or assignee and the securities with
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respect to which such registration rights are being assigned; (ii) such
transferee agrees in writing to be subject to all restrictions set forth in this
Warrant and PROVIDED, FURTHER, that such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Securities Act. For the
purposes of determining the number of shares of Registrable Securities held by a
transferee or assignee, the holdings of transferees and assignees of a
partnership who are partners or retired partners of such partnership (including
spouses and ancestors, lineal descendants and siblings of such partners or
spouses who acquire Registrable Securities by gift, will or intestate
succession) shall be aggregated together and with the partnership.
SECTION 10. PRE-EMPTIVE RIGHTS.
The pre-emptive rights set forth in this Section 10 shall be only for
the benefit of the Warrantholders who shall have exercised this Warrant and who
shall hold Warrant Shares on the date of the exercise of such pre-emptive
rights, and such pre-emptive rights shall not be exercisable by reason solely of
the ownership of this Warrant.
10.1 ISSUANCE OF SHARES. In the event that the Company shall determine
to issue any shares of Common Stock ("Shares"), or any options, warrants or
other rights to any Shares, except as provided in Section 10.3 below, such issue
shall be first offered to all Warrantholders of Warrant Shares in the same
proportions as the number of Warrant Shares (as distinguished from other Shares
held by such Warrantholder) then owned by each Warrantholder bears to the total
number of Shares then owned by all shareholders of the Company, at a price and
upon terms not less favorable than the price and terms at which such Shares or
options, warrants or other rights are proposed to be offered for sale to others,
PROVIDED that each such Warrantholder of Warrant Shares shall be entitled to
exercise such pre-emptive right only with respect to all of his pro rata share
of such Shares or options, warrants or other rights and not with respect to only
part thereof.
10.2 ELECTION OF RIGHTS. Any Warrantholder of Warrant Shares entitled
to any pre-emptive right pursuant to the provisions of Section 10.1 above must
signify his election to exercise such right in writing within fifteen (15) days
after the date notice is given to such Warrantholder by the Company with respect
to the proposed issue of such Shares or options, warrants or other rights to any
Shares. In the event that any Warrantholder fails to exercise timely his
pre-emptive right to purchase his pro rata share of such Shares or options,
warrants or other rights to any Shares so offered by the Company, the
pre-emptive right of such Warrantholder shall terminate with respect to that
particular issue of such Shares or options, warrants or other rights to any
Shares. In such event, for a period of ninety (90) days after the date of
termination of such pre-emptive rights, the Company may offer for sale and sell
the unpurchased remainder of such Shares or options, warrants or other rights to
any Shares generally to any other person, at a price and upon terms not more
favorable than the price and terms at which such Shares or options, warrants or
other rights to any Shares were offered to the Warrantholders pursuant to the
provisions of this paragraph. In the event that the Company fails to consummate
the sale of such Shares or options, warrants or other rights to any Shares
within such ninety-day period, either in whole or in part, the Company may not
offer for sale or sell the
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unpurchased remainder of such Shares or options, warrants or other rights to any
Shares without again complying with the provisions of this Section.
10.3 DETERMINATION OF SHARES. For purposes of this Section 10, the
term "Shares" shall mean all shares of Common Stock issued by the Company other
than shares of Common Stock issued or deemed to be issued:
(a) upon conversion of shares of preferred stock or upon
conversion of other convertible securities;
(b) to an employee, consultant officer or director pursuant to
stock option, stock grant, stock purchase or similar plans or arrangements
approved by the Board of Directors, including without limitation upon the
exercise of options outstanding as of the date of this Warrant;
(c) to an equipment lessor, bank, financial institution or
similar entity in a transaction approved by the Board of Directors, the
principal purpose of which is other than the raising of capital;
(d) as a dividend or other distribution in connection with which
an adjustment to the Warrant Shares is made pursuant to Section 6;
(e) shares issued as the result of stock splits or stock
dividends;
(f) in any public offering by the Company pursuant to an
effective registration statement under the Securities Act;
(g) in a merger or acquisition that is approved by the Board of
Directors; or
(h) pursuant to any transaction approved by the Board of
Directors primarily for the purpose of (a) a joint venture, technology licensing
or research and development activity, (b) distribution or manufacture of the
Company's products or services, or (c) any other transaction involving corporate
partners that is primarily for purposes other than raising capital through the
sale of equity securities.
SECTION 11. EXPIRATION OF WARRANTS.
If not theretofore exercised, this Warrant shall terminate at 5:00 p.m.
Pacific time on the Expiration Date.
SECTION 12. SUCCESSORS.
All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Warrantholder shall bind and inure to the benefit
of their respective successors and assigns hereunder.
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SECTION 13. MERGER OR CONSOLIDATION OF THE COMPANY.
The Company will not merge or consolidate with or into any other
corporation or sell all or substantially all of its property to another
corporation, unless the provisions of Section 6.3 are complied with.
SECTION 14 DEFINITIONS.
(a) "EXPIRATION DATE" shall mean January 18, 2010.
(b) "REGISTER," "REGISTERED" and "REGISTRATION" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act of 1933, as amended, other than on Form ▇-▇,
▇▇▇▇ ▇-▇ or any similar successor forms, and the declaration or ordering of the
effectiveness of such registration statement.
(c) "REGISTRABLE SECURITIES" shall mean Warrant Shares which
have not been Registered and sold in any Registered public offering or in a
transaction which is exempt from Registration if such sale permits the removal
of restrictive legends and if, after such sale, such Warrant Shares are freely
transferable without Registration.
(d) "REGISTRATION EXPENSES" shall mean all expenses incurred by
the Company in complying with Section 9 hereof, including, without limitation,
all federal and state registration, qualification and filing fees, printing and
related expenses, blue sky fees and expenses, National Association of Securities
Dealers, Inc. ("NASD") filing fees and stock exchange or NASD listing fees, fees
and disbursements of counsel to the Company and the underwriters, if any, and
the expense of any special audits or financial statement reviews incident to or
required by any such Registration, whether or not any registration statement
becomes effective.
(e) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
(f) "SELLING EXPENSES" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities pursuant to
Section 9 hereof, and all fees and expenses of legal counsel to the
Warrantholders and any other expenses incurred by Warrantholder in connection
with such sale.
(g) "WARRANT" and "THIS WARRANT" shall include and any and all
warrants issued upon division, exchange, substitution or transfer of the
Warrants evidenced hereby.
(h) "WARRANT SHARES" shall mean the shares of Common Stock
purchased or purchasable upon the exercise of this Warrant.
(i) "WARRANTHOLDER" or "HOLDER" shall include any transferee or
transferees of a Warrant.
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SECTION 15. APPLICABLE LAW.
This Agreement shall be deemed to be a contract made under the laws of the
State of Nevada and for all purposes shall be construed in accordance with the
laws of said State.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by a duly authorized officer of the Company as of January 19, 2000.
ADVANCED BIOTHERAPY CONCEPTS, INC.
By:
-------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Chief Executive Officer
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PURCHASE FORM
The undersigned hereby irrevocably elects to exercise the right
of purchase represented by the written Warrant in respect_____________________
Warrant Shares provided for therein, and requests that certificates be issued in
the name of:
---------------------------------------------------------------
(Please Print Name, Address and Taxpayer Identification Number)
---------------------------------------------------------------
and, if said number of shares shall not be all the shares purchasable hereunder,
that a new Warrant certificate for the balance of the shares purchasable under
the within Warrant be registered in the name of the undersigned Warrantholder of
his/her Assignee as below indicated and delivered to the address stated below.
The undersigned:
[ ] elects to pay the full Warrant Price in cash or by certified or
cashier's check or wire funds transfer
[ ] elects "cashless exercise" pursuant to Section 5.2 of the Warrant
Current Market Value: for purposes of Cashless Exercise is: $__________
Number of shares issuable on Cashless Exercise is: __________
Date:
------------------ -----------------------------------------------------
Signature of Warrantholder
The above signature must correspond with the name appearing upon the face of
this Warrant in every particular without alteration or enlargement or any change
whatever.
Name of Assignee, if any:
------------------------------------------
(Please Print)
---------------------------------------------------------------
(Please Print Name, Address and Taxpayer Identification Number)
---------------------------------------------------------------
SIGNATURE GUARANTEED: Signature guarantee is required if certificates are to be
registered in the name of any person other than the name
written upon the face of the Warrant. Signature must be
guaranteed by a commercial bank or trust company or a
member firm of the New York Stock Exchange.
ASSIGNMENT
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers into
--------------------------------------------------------------------------------
(Name and Address of Assignee Must be Printed or Typewritten)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Taxpayer Identification Number of Assignee)
the written Warrant, hereby irrevocably constituting and appointing_____________
Attorney to transfer said Warrant on the books of the Company, with full power
of substitution in the premises.
Date:
------------------ -----------------------------------------------------
Signature of Registered Warrantholder
Signature Guaranteed: The above signature must correspond with the name
appearing upon the face of this Warrant in every
particular, without alteration or enlargement or any
change whatever, and must be guaranteed by a commercial
bank or trust company or a member firm of the New York
Stock Exchange.