EXHIBIT 4.07
THIS WARRANT AND THE SECURITIES RECEIVABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF OR EXERCISED UNLESS (I) A REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (II) AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER.
Warrant to Purchase 300,000 shares
WARRANT TO PURCHASE COMMON STOCK
OF
NANOPIERCE TECHNOLOGIES, INC.
THIS CERTIFIES that The ▇▇▇▇▇▇▇▇ Fund, L.L.C. or any subsequent ("Holder")
hereof, has the right to purchase from NANOPIERCE TECHNOLOGIES, INC., a Nevada
corporation (the "Company"), up to 300,000 fully paid and nonassessable shares
of the Company's Common Stock, no par value ("Common Stock"), subject to
adjustment as provided herein, at a price equal to the Exercise Price as defined
in Section 3 below, at any time beginning on the Date of Issuance and ending at
5:00 p.m., New York, New York time, on February 24, 2003.
The Holder of this Warrant agrees with the Company that this Warrant is
issued and all rights hereunder shall be held subject to all of the conditions,
limitations and provisions set forth herein.
1. DATE OF ISSUANCE.
This Warrant shall be deemed to be issued on February 24, 1998 ("Date of
Issuance").
2. EXERCISE.
(a) MANNER OF EXERCISE. On or after the Date of Issuance, this
Warrant may be exercised as to all or any lesser number of full shares of
Common Stock covered hereby upon surrender of this Warrant, with the
Exercise Form attached hereto duly executed, together with the full
Exercise Price (as defined in Section 3) for each share of Common Stock as
to which this Warrant is exercised, at the office of the Company, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attention: President, Telephone
No. (▇▇▇)▇▇▇-▇▇▇▇, Telecopy No. (▇▇▇)▇▇▇-▇▇▇▇, or at such other office or
agency as the Company may designate in writing, by overnight mail, with an
advance copy of the Exercise Form attached as Exhibit A ("Exercise Form")
by facsimile (such surrender and payment of the Exercise Price hereinafter
called the "Exercise of this Warrant").
(b) DATE OF EXERCISE. The "Date of Exercise" of the Warrant shall be
defined as the date that the advance copy of the Exercise Form is sent by
facsimile to the Company, provided that the original Warrant and Exercise
Form are received by the Company as soon as practicable thereafter.
Alternatively, the Date of Exercise shall be defined as the date the
original Exercise Form is received by the Company, if Holder has not sent
advance notice by facsimile.
(c) CANCELLATION OF WARRANT. This Warrant shall be canceled upon its
Exercise, and, as soon as practical after the Date of Exercise, the Holder
hereof shall be entitled to receive Common Stock for the number of shares
purchased upon such Exercise, and if this Warrant is not exercised in full,
the Holder shall be entitled to receive a new Warrant or Warrants
(containing terms identical to this Warrant) representing any unexercised
portion of this Warrant in addition to such Common Stock.
(d) HOLDER OF RECORD. Each person in whose name any Warrant for shares
of Common Stock is issued shall, for all purposes, be deemed to have become
the Holder of record of such shares on the Date of Exercise of this
Warrant, irrespective of the date of delivery of such shares of Common
Stock. Nothing in this Warrant shall be construed as conferring upon the
Holder hereof any rights as a shareholder of the Company.
3. PAYMENT OF WARRANT EXERCISE PRICE.
The Exercise Price shall equal the closing bid price on February 24, 1998
($0.25) ("Exercise Price").
Payment of the Exercise Price may be made by either of the following, or a
combination thereof, at the election of Holder:
(a) CASH EXERCISE: cash, certified check or cashiers check or wire
transfer; or
(b) CASHLESS EXERCISE: subject to the last sentence of this Section
3, surrender of this Warrant at the principal office of the Company
together with notice of cashless election, in which event the Company shall
issue Holder a number of shares of Common Stock computed using the
following formula:
X = Y (A-B)/A
where: X = the number of shares of Common Stock to be issued to Holder.
Y = the number of shares of Common Stock for which this Warrant
is being exercised.
A = the Market Price of one (1) share of Common Stock (for
purposes of this Section 3(ii), the "Market Price" shall be defined as
the average closing price of the Common Stock for the five (5) trading
days prior to the Date of Exercise of this Warrant (the "Average
Closing Price"), as reported by the OTC Bulletin Board, or if the
Common Stock is not traded on the OTC Bulletin Board, the Average
Closing Price in the over-the-counter market; provided, however, that
if the Common Stock is listed on a stock exchange, the Market Price
shall be the
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Average Closing Price on such exchange. If the Common
Stock is/was not traded during the five (5) trading days prior to the
Date of Exercise, then the closing price for the last publicly traded
day shall be deemed to be the closing price for any and all (if
applicable) days during such five (5) trading day period.
B = the Exercise Price.
For purposes of Rule 144 and sub-section (d)(3)(ii) thereof, it is
intended, understood and acknowledged that the Common Stock issuable upon
exercise of this Warrant in a cashless exercise transaction shall be deemed to
have been acquired at the time this Warrant was issued. Moreover, it is
intended, understood and acknowledged that the holding period for the Common
Stock issuable upon exercise of this Warrant in a cashless exercise transaction
shall be deemed to have commenced on the date this Warrant was issued.
4. TRANSFER.
(a) TRANSFER RIGHTS. Subject to the provisions of Section 8 of this
Warrant, this Warrant may be transferred on the books of the Company, in
whole or in part, in person or by attorney, upon surrender of this Warrant
properly endorsed. This Warrant shall be canceled upon such surrender and,
as soon as practicable thereafter, the person to whom such transfer is made
shall be entitled to receive a new Warrant or Warrants as to the portion of
this Warrant transferred, and the Holder of this Warrant shall be entitled
to receive a new Warrant or Warrants as to the portion hereof retained.
5. ANTI-DILUTION ADJUSTMENTS.
(a) STOCK DIVIDEND. If the Company shall at any time declare a
dividend payable in shares of Common Stock, then the Holder hereof, upon
Exercise of this Warrant after the record date for the determination of
Holders of Common Stock entitled to receive such dividend, shall be
entitled to receive upon Exercise of this Warrant, in addition to the
number of shares of Common Stock as to which this Warrant is Exercised,
such additional shares of Common Stock as such Holder would have received
had this Warrant been Exercised immediately prior to such record date and
the Exercise Price will be proportionately adjusted.
(b) RECAPITALIZATION OR RECLASSIFICATION. If the Company shall at any
time effect a recapitalization, reclassification or other similar
transaction of such character that the shares of Common Stock shall be
changed into or become exchangeable for a larger or smaller number of
shares, then upon the effective date thereof, the number of shares of
Common Stock which the Holder hereof shall be entitled to purchase upon
Exercise of this Warrant shall be increased or decreased, as the case may
be, in direct proportion to the increase or decrease in the number of
shares of Common Stock by reason of such recapitalization, reclassification
or similar transaction, and the Exercise Price shall be, in the case of an
increase in the number of shares, proportionally decreased and, in the case
of decrease in the number of shares, proportionally increased. The Company
shall give the Warrant Holder the same notice it provides to holders of
Common Stock of any transaction described in this Section 5(b).
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(c) DISTRIBUTIONS. If the Company shall at any time distribute to
Holders of Common Stock cash, evidences of indebtedness or other securities
or assets (other than cash dividends or distributions payable out of earned
surplus or net profits for the current or preceding year) then, in any such
case, the Holder of this Warrant shall be entitled to receive, upon
exercise of this Warrant, with respect to each share of Common Stock
issuable upon such Exercise, the amount of cash or evidences of
indebtedness or other securities or assets which such Holder would have
been entitled to receive with respect to each such share of Common Stock as
a result of the happening of such event had this Warrant been Exercised
immediately prior to the record date or other date fixing shareholders to
be affected by such event (the "Determination Date") or, in lieu thereof,
if the Board of Directors of the Company should so determine at the time of
such distribution, a reduced Exercise Price determined by multiplying the
Exercise Price on the Determination Date by a fraction, the numerator of
which is the result of such Exercise Price reduced by the value of such
distribution applicable to one share of Common Stock (such value to be
determined by the Board in its discretion) and the denominator of which is
such Exercise Price.
(d) NOTICE OF CONSOLIDATION OR MERGER. In the event of a merger,
consolidation, exchange of shares, recapitalization, reorganization, or
other similar event, as a result of which shares of Common Stock of the
Company shall be changed into the same or a different number of shares of
the same or another class or classes of stock or securities or other assets
of the Company or another entity or there is a sale of all or substantially
all the Company's assets (a "Corporate Change"), then this Warrant shall be
exercisable into such class and type of securities or other assets as the
Holder would have received had the Holder exercised this Warrant
immediately prior to such Corporate Change; provided, however, that Company
may not affect any Corporate Change unless it first shall have given thirty
(30) business days notice to the Holder hereof of any Corporate Change.
(e) EXERCISE PRICE ADJUSTED. As used in this Warrant, the term
"Exercise Price" shall mean the purchase price per share specified in
Section 3 of this Warrant, until the occurrence of an event stated in
subsection (a), (b) or (c) of this Section 5, and thereafter shall mean
said price as adjusted from time to time in accordance with the provisions
of said subsection. No such adjustment under this Section 5 shall be made
unless such adjustment would change the Exercise Price at the time by $.01
or more; provided, however, that all adjustments not so made shall be
deferred and made when the aggregate thereof would change the Exercise
Price at the time by $.01 or more. No adjustment made pursuant to any
provision of this Section 5 shall have the effect of increasing the
Exercise Price. The number of shares of Common Stock subject hereto shall
increase proportionately with each decrease in the Exercise Price.
(f) ADJUSTMENTS: ADDITIONAL SHARES, SECURITIES OR ASSETS. In the
event that at any time, as a result of an adjustment made pursuant to this
Section 5, the Holder of this Warrant shall, upon Exercise of this Warrant,
become entitled to receive shares and/or other securities or assets (other
than Common Stock) then, wherever appropriate, all references herein to
shares of Common Stock shall be deemed to refer to and include such shares
and/or other securities or assets; and thereafter the number of such shares
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and/or other securities or assets shall be subject to adjustment from time
to time in a manner and upon terms as nearly equivalent as practicable to
the provisions of this Section 5.
6. FRACTIONAL INTERESTS.
No fractional shares or scrip representing fractional shares shall be
issuable upon the Exercise of this Warrant, but on Exercise of this Warrant, the
Holder hereof may purchase only a whole number of shares of Common Stock. If,
on Exercise of this Warrant, the Holder hereof would be entitled to a fractional
share of Common Stock or a right to acquire a fractional share of Common Stock,
such fractional share shall be disregarded and the number of shares of Common
Stock issuable upon conversion shall be the next higher number of shares.
7. RESERVATION OF SHARES.
The Company shall at all times reserve for issuance such number of
authorized and unissued shares of Common Stock (or other securities substituted
therefor as herein above provided) as shall be sufficient for Exercise and
payment of the Exercise Price of this Warrant. The Company covenants and agrees
that upon Exercise of this Warrant, all shares of Common Stock issuable upon
such Exercise shall be duly and validly issued, fully paid, nonassessable and
not subject to preemptive rights, rights of first refusal or similar rights of
any person or entity.
8. RESTRICTIONS ON TRANSFER.
(a) REGISTRATION OR EXEMPTION REQUIRED. This Warrant has been issued
in a transaction exempt from the registration requirements of the Act by
virtue of Regulation D. The Warrant and the Common Stock issuable upon
exercise of the Warrant may not be sold except pursuant to an effective
registration statement or an exemption to the registration requirements of
the Act and applicable state laws.
(b) PIGGYBACK REGISTRATION RIGHTS. During the five (5) year period
commencing on the Date of Issuance, if the Company proposes to file a
registration statement for a public offering of any of its securities under
the Act, it will give written notice, at least forty-five (45) days prior
to the filing of each such registration statement to the Holders of the
Warrant and/or the underlying securities of its intention to do so. Upon
written request from any of the Holders notifying the Company within twenty
(20) days after the giving of such notice of each such registration
statement of their desire to sell the securities issued or of such notice
of each such registration statement of their desire to sell the securities
issued or issuable upon the exercise of this Warrant, the Company shall
afford such Holders of the Warrant and/or underlying securities registered
or qualified under such registration statement. This is not applicable to
a registration statement filed with the Commission of Forms S-4 or S-8 or
any other inappropriate forms, not is it applicable to the Warrant once
they have expired. The Holders who elect such piggyback registration
rights agree to withdraw such of the registrable securities as shall
reasonably be required by the underwriter in connection with any such
offering. Neither the delivery of such notice by the Company nor the
election or request by such Holders shall in any way obligate the Company
to file such
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registration statement under this Section 8(b), and the
Company may, at any time prior to the effective date thereof, determine not
to offer the securities to which the registration statement relates,
without liability to such Holders. In addition, each Holder shall, upon
the request of the managing underwriter, if any, of such public offering,
agree in writing not to sell, transfer, assign, hypothecate, or otherwise
dispose of the securities issued or issuable upon the exercise of this
Option for a period of 24 moths in such managing underwriter's discretion.
(c) DEMAND REGISTRATION RIGHTS. During the five (5) year period
commencing the Date of Issuance, upon the written request of the Holders
of those securities representing at least a majority of the sum of the
Shares issuable upon the exercise of this Warrant, the Company agrees to
prepare and file with the Commission, no more than once, a post-Effective
Amendment, or a registration statement under the Act, registering or
qualifying, as the case may be, this Option and/or the securities
underlying this Option. The Company agrees to use its best efforts to
cause the above filing to become effective. These Demand Registration
Rights are not applicable to the Warrants once they have expired.
(d) ASSIGNMENT. Assuming the conditions of (a) above regarding
registration or exemption have been satisfied, the Holder may sell,
transfer, assign, pledge or otherwise dispose of this Warrant, in whole or
in part. Holder shall deliver a written notice to Company, substantially in
the form of the Assignment attached hereto as Exhibit B, indicating the
person or persons to whom the Warrant shall be assigned and the respective
number of warrants to be assigned to each assignee. The Company shall
effect the assignment within ten (10) days, and shall deliver to the
assignee(s) designated by Holder a Warrant or Warrants of like tenor and
terms for the appropriate number of shares.
9. BENEFITS OF THIS WARRANT.
Nothing in this Warrant shall be construed to confer upon any person other
than the Company and the Holder of this Warrant any legal or equitable right,
remedy or claim under this Warrant and this Warrant shall be for the sole and
exclusive benefit of the Company and the Holder of this Warrant.
10. APPLICABLE LAW.
This Warrant is issued under and shall for all purposes be governed by and
construed in accordance with the laws of the state of Nevada, without giving
effect to conflict of law provisions thereof.
11. LOSS OF WARRANT.
Upon receipt by the Company of evidence of the loss, theft, destruction or
mutilation of this Warrant, and (in the case of loss, theft or destruction) of
indemnity or security reasonably satisfactory to the Company, and upon surrender
and cancellation of this Warrant, if mutilated, the Company shall execute and
deliver a new Warrant of like tenor and date.
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12. NOTICE OR DEMANDS.
Notices or demands pursuant to this Warrant to be given or made by the
Holder of this Warrant to or on the Company shall be sufficiently given or made
if sent by certified or registered mail, return receipt requested, postage
prepaid, and addressed, until another address is designated in writing by the
Company, to Attention: President, Intercell Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President, Telephone No. (▇▇▇)▇▇▇-▇▇▇▇,
Telecopy No. (▇▇▇)▇▇▇-▇▇▇▇. Notices or demands pursuant to this Warrant to be
given or made by the Company to or on the Holder of this Warrant shall be
sufficiently given or made if sent by certified or registered mail, return
receipt requested, postage prepaid, and addressed, to the address of the Holder
set forth in the Company's records, until another address is designated in
writing by Holder.
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IN WITNESS WHEREOF, the undersigned has executed this Warrant as of the
24th day of February, 1998.
NANOPIERCE TECHNOLOGIES, INC.
By ________________________________
Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer and President
The ▇▇▇▇▇▇▇▇ Fund, LLC, and any subsequent Holder agree that if The Global
Funding Group, an affiliate of the ▇▇▇▇▇▇▇▇ Fund, LLC shall not have completed a
minimum financing of One Million, Five Hundred Thousand Dollars ($1,500,000.00)
for Nanopierce Technologies, Inc. in connection with the Financing described in
the Letter, dated February 23, 1998, from The Global Funding Group to Sunlight
Systems, Ltd., (now known as Nanopierce Technologies, Inc.) on or before June
30, 1998, this Warrant shall thereafter, without any prior notice or any other
written acknowledgment, be null, void and of no further force and effect. If
such financing shall be completed on or before such date, Nanopierce
Technologies, Inc., and The Global Funding Group and the ▇▇▇▇▇▇▇▇ Fund, LLC
shall sign a written instrument confirming the successful completion of such
financing.
▇▇▇▇▇▇▇▇ FUND, LLC.
______________________
By Authorized Agent
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EXHIBIT A
EXERCISE FORM
TO: NANOPIERCE TECHNOLOGIES, INC.
The undersigned hereby irrevocably exercises the right to purchase
____________ of the shares of Common Stock of NANOPIERCE TECHNOLOGIES, INC., a
Nevada corporation (the "Company"), evidenced by the attached Warrant, and
herewith makes payment of the Exercise Price with respect to such shares in
full, all in accordance with the conditions and provisions of said Warrant.
1. The undersigned agrees not to offer, sell, transfer or otherwise
dispose of any of Common Stock obtained on exercise of the Warrant, except in
accordance with the provisions of Section 8(a) of the Warrant.
2. The undersigned requests that stock certificates for such shares be
issued free of any restrictive legend, and a warrant representing any
unexercised portion hereof be issued, pursuant to the Warrant in the name of the
Registered Holder and delivered to the undersigned at the address set forth
below:
Dated:
________________________________________________________________________________
Signature of Registered Holder
________________________________________________________________________________
Name of Registered Holder (Print)
________________________________________________________________________________
▇▇▇-▇.▇. ▇▇▇▇▇▇▇
▇
▇▇▇▇▇▇▇ ▇
ASSIGNMENT
(To be executed by the registered Holder
desiring to transfer the Warrant)
FOR VALUE RECEIVED, the undersigned Holder of the attached Warrant hereby
sells, assigns and transfers unto the person or persons below named the right to
purchase _______ shares of the Common Stock of NANOPIERCE TECHNOLOGIES, INC.
evidenced by the attached 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 in the premises.
Dated: ______________________________
Signature
Fill in for new Registration of Warrant:
___________________________________
Name
___________________________________
Address
___________________________________
Please print name and address of assignee
(including zip code number)
________________________________________________________________________________
NOTICE
The signature to the foregoing Exercise Form or Assignment must correspond
to the name as written upon the face of the attached Warrant in every
particular, without alteration or enlargement or any change whatsoever.
________________________________________________________________________________
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